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Full text of "Cobbett's complete collection of state trials and proceedings for high treason and other crimes and misdemeanors from the earliest period to the present time ... from the ninth year of the reign of King Henry, the Second, A.D. 1163, to ... [George IV, A.D. 1820]"

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^ 


State  Trials. 


VOL.  xm. 


COMPLETi^:^;10llil.ECTION 

yy  :.-!•-' 

State    Trials 

AND 

PROCEEDINGS   FOR   HIGH   TREASON   AND   OTHER 
CRIMES  AND  MISDEMEANORS 

FKOM  THE 

EARLIEST  PERIOD  TO  THE  PRESENT  TIME, 

WITU  irOTES  AJ^D  OTHER   ILLUSTRATIOJ^S 

COMPILED  BY 

T.  B.  HOWELL,  Esq.  F.R.S.  F.S.A. 


VOL.  xra. 


LONDON: 

nUNTBD  BY  T.  C  HAMSARD.  PBTERBOROUOH-OOUIIT,  FLBBT-STREBTi 

nw  LONOHAM,  B17B8T,  RBES,  ORHE,  &  BROWNE ;  J.  RICHARDSON ;  BLACK^ 
PARRY,  &  KINOWCRY  ;  J.  HATCHARD ;  E.  LLOYD ;  S.  BUDD  ;  < 

J.  PAULDBS;  J.  BOOKER ;  CRADOCK  k  JOT;  S.  JBFFBBY; 
R.  B.  STAMi;  i.  BOOTH ;  AND  T.  C.  HANSARD. 

1B12. 


TABLE  OF  CONTENTS 


TO 


VOLUME  XIIL 


*«*    The  new  Artides  are  merhed  [N.] 


Page 
SM.    The  Trial  of  Sir  JOHN  FREIND,  knt.  at  the  Old-Bailey,  for 

High  Treason,  a.  d.  1696 ] 

386.    The  Trial  of  Sir  WILLIAM  PARKYNS,  knt.  at  the  Old-Bailey, 

for  Hi^  Treason,  a.  d.  1696 63 

%6.    The  Trial  of  AMBROSE  ROOKWOOD,   for    High  Ti^luon, 

A.D.  1696 139 

:S7.    The  Trial  of  CHARLES  CRANBURNE,  for  High  Treason,  a.  d. 

1696 • I • ••»•••••    SS2 


3S&    TheTrialofROBERTLOWICK^forHighTreason,  A.D.  1696...    S6' 


389.    The  Trial  of  PETER  COOK,  at  the  Old-Bailey,  for  High  Treason, 

A.D.  1696    311 

900.    Tlie  Trial  of  ALEXANDER  KNIOHTLEY,  at  the  King's-Bench, 

fiirHigliTreMoi^  A.D.  1696 398 

391.  The  Ph)oeediDg8  against  the  Three  Nonjuring  Clergymen,  Mr. 
COLLIEE,  Mr.  CQPK,  and  Mr.  SNATT,  for  piAUdy  absolr- 
ing  Sir  WilUam  VeApm  and  Sir  John  Fraind  at  Tyburn,  a.  n. 
1096 ,.«u..M, , 406 


TABLE  OF  CONTENTS. 

Pd5pr 
asa.    The  Trial  of  JOSEPH  DAWSON,   EDWARD  FORSEITH, 

WILLIAM  MAY,  WILLIAM  BISHOP,  JAMES  LEWIS, 

and  JOHN  SPARKES,  at  the  OM-Bailqr,  for  Fdooy  and  Piracy, 

A.  D.  1696 ^ c 451 

393.  The  T^  of  Oq^tab  THOMAS  YAUGHAN,  at  the  Old-Bafley, 

for  High  Treason  on  the  High  Seas,  a.d.  1696 486 

394.  Froceedmgs  in  Rtfliament  against  Sir  JOHN  FENWICK,  hart. 

upon  a  Bill  of  Attainder  lor  Hijg^  TveasoD,  a.  d.  1696 538 


395.  The  Case,  with  the  Proceedings  against  Mijor  JOHN  BERNARDI, 
Mr.  COUNTER,  Mr.  BLACKBURN,  Mr.  CASSELS,  Mr. 
CHAMBERS,  and  Mr.  MELDRUM,  on  Account  of  the  Assas- 
sination-Plot, A.  D.  1696     759 

896.  Proceedings  agmnst  Sir  DUNCAN  CAMPBELL,  and  other  Hen- 
tors  of  the  Shire  of  Avgyle,  lor  High  Treason,  a.  d.  1686-1687. 
[Nov  first  printed  from  the  Records  of  Justiciaiy  m  Edin- 
burgh.] [N.] 787 

397.  Phiceedings  in  the  P^liament  of  Scotland  against  the  Viaooont  of 

DUNDEE  and  others,  for  High  Treason,  a.  d.  1690.   [Now  first 
priiMd  fircim  the  Flsrlnmentary  Records  at  Edinburgh]  [N.]...    818 

398.  The  Trial  of  ALEXANDER  HALYBURTON  and  WM.  ERA- 

SER, frr  High  Treason,  a.  d.  1692.     [Now  first  pnnted  from 

the  Beoords  of  Justiciary  in  Edinbnrgfa.]  [N.] 831 

399.  FtooeedingB  against  Captain  JAMES  MIDDLETOUN  and  others, 

ion  High  Treason,  a.  d.  1694.    [Now  first  published  from  the 
Records  of  Justiciaiy  at  Edinburgh.]  [N.]    849 

400.  Plrooeediags  in  the  Psriiaasent  of  Scodsnd  lespectii^  the  MAS- 

SACRE OF  GLENCO,  A.D.  1695.  [N.] 879 

401.  Prooeedings  gainst  STHOMAS  AIKENHEAD,  for  Blaspheeajr, 

A.  D.  1696.    [Now  first  printed  from  the  Reooids  of  Justiciary 

in  Edinburgh,  and  MSS.  the  property  of  Lord  King.]  [N.] 918 

402.  .The  Trial  of  EDWARD  Bari  of  WARWICK  and  HOLLAND, 

.    befoietfMHinwofLoids,fortbeMiirderof  Richard  Coote,  esq. 
A.  p.  1689   M.i*    999 


Pag§ 
40S.    Hit  TM  of  CHABLES  pni  IfDHUN,  btfert  the  Houie  of 

Locds»  for  the  Miudte  tf  Ridbtrd  CddCe,  em^A.^  1G09 1034 

404.  Abrief  Aoeomtdf  CheTirkI  of  CHARLES  DUNCOMBB,  egq. 
bifimdie  Lotd  Chief  Jualice  Helt,  at  the  King^i-Bendi  Bar  in 
Wfrtininfftf  ^iJ^j  i^on  an  Infennatioii  for  fidae  indorsing  of  Ex- 
dieqoer  Bills,  and  paying  them  into  the  Exchequer,  as  if  they 
had  been  first  paid  into  the.  Excise  Office  upon  that  Branch  of  the 
Berenue^,  a.  d.  1699.   [Now  first  printed  from  a  MS.  in  the  Pos- 

kc^theEailctfBadnor.]  [N.] 10G8 


405.  He  Trial  of  SPENCER  COWPER,  esq.  ELLIS  STEPHENS, 

¥^ILLIAM  ROGERS,  and  JOHN  MARSON,  at  Hertford 
AMiies,  for  the  Murder  of  Mrs.  Sarah  Stout,  a.  d.  1699    1106 

Hie  CASE  of  SPENCER  COWPER,  e^q.  JOHN  MAR- 
SON,  ELLIS  STEPHENS,  and  WILLIAM  ROGERS, 
gentlemen.    [Published  by  them  in  1699.] • 1190 

406.  The  Trial  of  MARY  BUTLER,  alias  STRICKLAND,  at  the  Old 

Bailey,  for  Forging  a  Bond  of  4O,000L  in  the  Name  of  Rob«t 
Ckyton,  a.d.  1699 ^ 1S60 

407.  FrDceedmgs  in  Pkurliament  against  THOMAS  Duke  of  LEEDS,  on 
an  Impeachment  of  High  Crimes  and  Misdemeanors,  a.  d.  1695- 
1701 '.  1S6S 

408.  The  Trial  of  PATRICK  KINNYNMOUNT,  for  Bh^hemy  and 

Aduheiy,  A.n.  1697«    [Now  first  printed  firom  the  Records  of 
Justiciary  in  Edinbori^]  [N.] 1874 

409.  The  IVooeedings  in  Pkrliament  upon  the  BiU  of  Divorce  between  his 

Grace  the  Duke  of  NORFOLK  and  the  Lady  MARY  MOB- 
DANT,  A.]>.  1700 UBS 

410.  FiroGeedings  against  Sir  WILLIAM  WILLIAMS,  hart  for  the 

PtaUicatioo  of  Dangerfidd's  Narrative,  a.  d.  1684-1695  [N.]  ...  1S70 


411.  Plroceedings  i«ahist  JOHN  Earl  of  MELFORT,  JOHN  "Eari  of 
BflDDLETOUN,.  RICHARD  Earl  of  LAUDERDALE,  and 
several  odien»  Ibr  Treason  and  Rebdlion,  mtidng  the  Froidi 
King  to  invade  diafar  Bl^gestiea  Dominions,  and  remaining  subject 


TABLE  OP  CONTENTS. 

Page 

to  the  FiMch  Kuig>  A.  d«  1694.    [Now  fint  printed  from  the  ^ 

Records  of  Justiciary  at  Edinburgh.]  [N.] 1448 

41S.  Proceedings  against  KENNETH  Earl  ^  SEAFORTH,  for  High 
Treason,  a.  d.  1697.  [Now  first  printed  from  the  Records  of 
Justiciary  at  Edinburgh.]  [N.] ••.  1446 

413.  Proceedings  against  Mr.  ALEXANDER  PITCAIRNE,  a  Minis- 
ter  of  the  Church  of  Scotkndy  for  High  Treason,  and  disowning, 
quarrelling,  and  impugning  of  his  Majesty's  Royal  Power  and 
Authority,  and  Rights  and  Title  to  the  Crown,  a.  d.  1697«  [Now 
first  printed  from  the  Records  of  Justiciary  at  Edinburgh.]  [N.]  1450 


A     COMPLETE    COLLECTION 

top 
TATE     TRIALS, 


c  Trial  of  Sir  John  Fheind/  knt  at  the  Old-Bailey,  for 
High  Treason:  8  William  III,  a.  d»  I696. 


hmda^^  March  23,  1696, 

I»iit0f»- House  in  the  Old-Bailey, 

"tic  trial  of  lir  JuLn  Frriod, 

tre]i!>on^    upon    an    Imlict- 

I  oy  um:  fj^nMjti  jury  for  the  city  of 

Ellic  sessions  ot'oyer  and  terminer 
r«ry  of  Newgale,  on  8aturday 

Arraignmenii,    Crytr^  make  pra> 

Ovex,  oyt2,  oypTj^  All  maoner  of 
i4  Dftf  e  ttoy  ihiuji^  more  to  do  at  ibii 
•MS  of  the  p«!ace,  Kessiotis  of  oyer 
Mr,  botd^t)  for  the  cily  ol  London, 
^diifttj  of  Newgu(e»  li'oldt>ii  for  the 
aim  and  county  of  31iddlesex,  ud- 
ir  Id  lhi«  day  {  ilriw  tiear,  and  ^ive 
Imkvi  for  now  tliey  will  proceed  tti 
iC  Ibe  crowti  for  I'lie  said  cily  and 
ltd  God  Mf  e  king  Willi  auk 
r*  Make  pruclamation  ugnln. 
Oytat»  You  good  men  of  the  cily  of 
HamiOftgil  to  Qppenr  hm:  this  da_\,  to 
i  •or  aofereitini  lord  the  kiu|;  und 
r  thftt  k  to  bi*  at  the  bur ;  answer  to 
I  a*  yon  i(h»Il  be  called^  every  man 
rati,  opoci  [laiu  und  peril  tiiut  will 
I. 

«  fietly  jury  urere  a)l  called  o? cr, 

Ito 


'  rhii'f  Jiittice 

. .  Mr,  justice 

!»>,  cume  into  tlie 

■••  rriil  cotitlut^nce  of 

«ij'i   ^viaiy    liiere  (^retietit,    the 

filt»  OH  I.  £a«t*i  Picas  of  the  Crown, 
mH.  9.  if.  8ec  aM,  iu  this  CaU 
nae  iraporlaiBl  ObaerTalious  on  ihi«i 
f4  ErOdiM'i  Hprech  on  the  Trial  of 
Ntfdyt  A*  ti'  ]7t^4.  And  a  Note  to 
'  Ooa  rBMaleao  t)«i  fol.  ^,  p*  iCr6. 
HI. 


prkouer  was  ordered  tobe  hrought  to  the  bar4 
which  was  done  accordiojjly, 

CL  ofAr.  Sir  John  Freind,  bold  up  thy  i 
hand. 

Freind,  My  lord,  I  humbly  move  that  1 1 
may  have  one  William  Courtney  (who  h  to  ba  i 
a  principal  witness  for  me  at  my  trral^t  and  ia.4 
now  a  prisoner  in  the  Gatehouse)  sent  for. 

L.  C.  J.  (Sir  John  Holt,)  Is  he  your  wit-*  | 
ne&s,  sir  John  ? 

Frcind.  Ves,  my  lord,  William  Coortoey*^ 
is  his  name. 

X.  C.  J.  Sir  John,  why  did  not  yoa  send, 
and  desire  this  before  ? 

Fretnd.     My   lord»  !  did  not  hear  of  him 
while  last  oig^lit ;    and  1  ho tnbly  beseech  your 
lordship,  that  you  will  please  to  let  him  beseol  i 
ibr. 

The  Judges  consulted  among  theraseket. 

X,  CX  Look  you,  sir  John  Freind^  Til 
tell  you,  if  you'll  appi^Hol  your  arrent  to  t'Ouio 
hither,  you  shall  have  an  '  Habeaji  Corpus  ai| 
tcstiticandnm^ :  hut  indeed  you  mi^^ht  have  »eut 
tliit)  morning',  and  then  tlie  writ  uiig^ht  ham 
beeu  tfot  ready - 

Frcind.  I^ly  lord,  I  did  not  know  so  much  ; 
for  ii  was  last  night  before  I  understood  that  he 
wa^i  to  be  a  witness. 

L*  C.  J.  You  mi§ht  have  sent  last  night,  or 
this  morniug,  and  you  should  have  had  a  war* 
rant  for  the  writ. 

Frcind,  1  assure  your  lonbhip^  I  did  uot 
know  so  much, 

L,  C,  J.  Well,  send  your  agent,  or  your 
solicitor,  and  you  shall  have  a  warrant  for  tha 
writ. 

Freind,  I  beseech  your  lordship  that  he 
may  be  sent  for,  and  that  the  messenger  may 
malcc  hastt;. 

L.  C.  X  Let  your  solicitor  come  to  my 
clerk,  and  he  shall  bavp  it. 

Fraud.  My  lord,  jf  you  please  to  give  a. 
rule  of  court  for  iU  I  suppose  it  may  b«  dona 
presently. 


S]  S  WILLIAM  IIL 

£.  C.  J.  No,  DO,  8jr  John,  it  most  be  by 
writ;  the  keeper  of  the  Gatehouse  eke  caoDot 
briofif  him. 

Freind.  My  lord,  that  will  be  a  longf  time 
before  it  can  be  done ;  I  desire  nothioi;  but 
that  f  may  have  him  here  to  give  his  evidence 
for  me. 

L,  C.  /.  It  will  be  ^t  ready  presently ;  I 
believe  he  will  be  here  time  enough  for  you  to 
make  use  of  his  testimony. 

Freind.  But,  my  lord,  suppose  he  shou!:! 
not  be  here :  it  would  be  a  great  hindrance  to 
me,  and  a  great  injury  to  my  trial. 

X.  C  J.  No,  no,  sir  John,  you  need  not 
fear  any  thing  of  that  nature,  we  are  not  in 
snch  haste ;  we  will  not  spur  you  on :  but  the 
warrant  shall  be  made ;  and  du  you  make  what 
haste  you  can  to  get  the  writ,  and  your  witness 
brought 

[The  Lord  Chief  Justice  gave  order  to  Mr. 
MasoD  his  clerk,  to  prepare  a  warrant  for  an 
Habeas  Corpus,  directctl  for  the  keeper  of  the 
Gatehouse,  to  bring  William  Courtney  imme- 
diately hither  to  give  evidenoe.1 

CL  of  Ar.  Sir  John  Freind,  hold  up  thy 
hand.    [Which  he  did.] 

Yon  stand  indicted  in  London  by  the  name 
•f  sir  John  Freind,  late  of  London,  kut.  for  that, 
whereas  there  had  been  for  a  long  time,  and 
yet  is,  an  open,  and  notoriously  public,  and 
most  sharp  and  cruel  war  by  lana,  and  by  sea, 
had,  earned  on,  and  prosecuted  by  Lewis  the 
French  king,  against  the  most  serene,  most  il- 
lustrious, and  most  excellent  prince,  our  sove- 
reign lord  William  the  Third,  by  the  grace  of 
Ood, of  J'Ingland,  Scotland,  France,  and  lrelf>.::d 
king,  defender  of  the  faith,  ike.  All  which  time 
ihe  said  Lewis  the  French  king,  and  his  sub- 
jects were,  and  yet  are  enemies  of  our  said  lord 
Che  king  that  now  is,  and  his  subjects.  Yon 
the  said  sir  John  Freind,  a  subject  of  our  said 
•overeign  lord  the  king  that  now  is,  of  this 
kingdom  of  England,  well  knowing  the  pre- 
inises,  not  having  the  fear  of  God  in  vour 
keart,  nor  weighing  the  duty  of  your  allegi- 
ance, but  being  moved  and  seduced  by  the  in- 
stigation of  the  devil,  as  a  false  traitor  a<;ainst 
the  said  most  serene,  roost  clement,  and  nost 
excellent  prince,  our  said  sovereign  lord  Wil- 
liam the  Third,  now  king  of  England,  <^c.  your 
supreme,  true,  natural,  rightful,  lawful,  and  un- 
doubted sovereign  lord  ;  the  cordial  love,  and 
the  true  and  due  obedience,  iidelity  and  allegi- 
ance, which  every  subject  of  our  said  sovereign 
lord  the  king  that  now  is,  towards  him  our  said 
sovereign  \wd  the  king  should  and  of  right 
ouffl)t  to  bear  withdrawing,  and  intending  ut- 
terly to  extinguish,  and  contiiving,  and  with  all 
your  strength  purposing,  designing,  and  en- 
deavouring tlie  government  of  this  kingdom  of 
England,  under  our  said  sovereign  lord  the 
king  that  now  is  of  right,  duly,  happily,  and 
Tery  well  established,  altogether  to  subvert, 
change,  and  alter,  and  his  ^'thtial  sobjects^  and 
the  freemen  of  this  king[dom  of  England,  into 
uitolerable  and  most  miserable  slavery  to  the 
albnwud  Fttath  king  to  subdue  ana  Iniiig ; 


Trial  of  Sir  John  Freind^ 

the  first  day  of  July,  in  theVeventh  yea 
reign  nt'  our  said  sovereign  lord  the  ki 
now  is,  and  divers  other  days  and  times, 
before  as  after,  at  London,  m  the  parish 
Peter  Cnrnhill,  iu  the  ward  of  Lirae 
falsely,  maliciously,  devilishly,  and  traitc 
did  compass,  imagine,  contrive,  pur|)n 
intend  our  said  sovereign  lord  the  king  tl 
is,  then  your  supreme,  true,  natural,  r 
and  lawful  sovereign  lord,  of  and  from  tli 
state,  title,  honour,  power,  crown,  con 
and  government  of  this  kingdom  of  Eng 
depose,  cast  down,  and  utterly  to  dopriv 
our  said  sovereign  lord  the  king  to  death  a 
destruction  to  put  and  bring ;  and  the  ai 
Lewis  the  French  king,  by  his  armies,  s 
legions,  and  subjects,  this  kingdom  of  £ 
to  invatle,  fight  with,  overcome,  and  sut 
move,  incite,  procure,  and  help,  and  a  i 
ble  slaughter  among  the  faithful  subjects 
our  said  sovereign  lord  the  king,  thro 
his  whole  kingdom  of  England,  to  ma 
cause ;  and  tliat  you  the  said  sir  John  Fi 
the  aforesaid  enemies  of  our  said  lord  tl 
that  now  is,  then  and  there  during  tl 
aforesaid,  traitorously  were  adhering  and 
ing :  and  the  same  your  mcst  impious, 
aud  dciilish  treasons,  and  traitorous  co 
iugs,  intentions,  and  purposes  aforesaid  t 
perfect,  and  bring  to  effeet ;  and  in  prose 
performance,  and  execution  of  that  tra 
adhesion,  ^'ou  the  said  sir  John  Freind,  i 
a  false  trailor',  during  the  war  aforesaid, 
the  same  first  day  or  July,  in  the  year 
said,  at  Xondon  aforesaid,  in  the  pari 
wanl  aforesaid,  and  divers  other  days  and 
as  well  hef(.re  as  after,  there  and  elscw 
London  rforesaid,  falsely,  ma]iciously,a 
ly,  secretly,  and  traitorously,  and  witi 
and  arms,  *&c.  with  one  Robert  Chamoc 
of  high  tr<:a8on,  in  contriving  and  con 
the  death  of  our  said  sovereign  lonl  ti 
that  now  is,  duly  convicted  and  attaintc 
with  divers  other  false  traitors  to  the  jur 
known,  did  meet,  propose,  treat,  consul 
sent,  and  agree  to  procure  from  the  at 
Lewis  the  French  kmg,  of  his  subjects, 
and  soldiers,  then  and  yet  enemies  of  o 
sovereign  lord  the  king  that  now  is,  grea 
hers  of  soldiers  and  armed  men  this  king 
England  to  invade  and  fight  with,  and  t 
procure,  and  prepare  great  numbers  of 
men,  and  troops  and  legions  against  o 
lord  the  king  that  now  is,  to  rise  up 
formed,  and  with  those  enemies,  at  an 
such  their  invasion  and  entry  into  thii 
dom  of  England,  to  join  and  unite,  n 
and  war  against  him  our  said  lord  th< 
within  this  kingdom  of  En^rland,  to 
levy,  and  wa^e,  him  our  said  lord  tli 
so  as  aforesaid  to  depose,  and  him 
and  murder ;  aud  moreover  with  th 
false  traitors,  the  same  first  day  oi 
in  the  yeai^  abovesaid,  at  London  af< 
ia  the  parish  and  ward  aforesaid, 
ously  you  did  consoh,  consent,  and  ai 
scod  the  afortsaul  Boberl  Chamock  as 


5J 


^or  High  Trea&on, 


t  jtm  tkm  Atfi  fiir  J  oho  Freind,  and 
4tmim9dmr  ^mlmrs  uiikn^^*^  ^'  ^'"*"  ^nij  into 
iiliafdioiis  af  Klr«iiee,  in  ul  tlie 

|lD  mpoM  to  }i 

fltl  tnml    meo    nforffesiiil,   Ittr  the    invaMon 

I  Ml  be  made;  and  iuMii«j^i'nce  and  no- 

~  I  tlteir  trtitlDmus  intention!;,  and  ad- 

iffn^  at!  the  premiKes  uniolhc  «aid  late? 

rian»^  nnd  iKe  siuid  ^lUle^^ne- 

1  L  s,  to  give  and  exhibit, 

I  Si>  iDluruj  ot   fiiher  purliculai'  things 

Of  nffeaoMtiiieefl  lUprcunln  t-etntin>r ;  a$  also 

Mfifme*  Ircini  liiem  of  ihe  said  intrnd(^d  in- 

tMB^  aod   ofh^r  things   and  ctrcutfigtuncfs 

^^■Bvattiif  tli€    prnuises   Li   receive,  and  the 

BSMilPy^u  th«f  saitd  sir  Jolin  Freind,  ami  tbe 

^^iVA^i^iT  traff#r«  in  this  kin'^'iioin  of  Eii^land^ 

^■li  m^^y,  r«OArt  and  deeluf^,  in  assistance, 

^■aaaMi,  mtm  aid  of  the  tiaid  (enemies  of  (nir 

ail  Wi  ike  kine  t^at  now  ti,tn  the  >tiir  afure- 

^il,  fell  Id  iacite  4iid   |»riK'iire  iliost.'  rnrntif^s 

ttvaart  fm«bly  ftod  boltU^  ttM 

4m i# £i»|vf ftnd  ;  andthetrt^i-  <i- 

f«i  Q«t»iv»4M:e9,  cotn|iiis«siii{7!i,  i)na<;iriiUiotiH, 

i>f  Tuii  ibe  S4id  sir  John  Freind 

1 1A  perfect  and  hdtit ;  and  all  the  pre- 

■i  Omi  tfimiier  to  t'lrecuti',  mffiiace  and  per- 

Bt  |«Mi  tlie  ftiid  sir  John  Freind,  diii'iu:^^  the 

riMHud,  so  «s  aforesaid  continued,  tu  wa, 

!  tnee  fint  day  of  Jnly<t  in  the  ahovesaid 

I  y«mr  of  lite  reit^n  ol  our  ttaid  lord  the 

kflff  ((kit  IMW  tit,   ait  li>ndon  uforesaid,  tn  the 

fMA«ai|  Irani  aforesaid,  <Al««ly  u:m1  trmtor* 

Oiii  M  |f#f)e(ire  and  obtain  to  yourself,  and 

^tmmft  ajul  Bc^rept  o(  a  <!iertain  comniiSHion 

•  ^i«af^tfr|iurtuig  it*elf  to  be  u  commis!»ion 

Mia  m4  &OCU  the  «tVjivsuid   Jan^e;!  the  se- 

flBVl.  ytikmi^  of    Eni^lftiid,  to  constitute  you, 

•i  aif  lit  Jotitj   Fretnd»  to  lie  a  e<»lonel  of 

!■««  tbe  army  by  you  and  the  other  lals^e 

^■■Miac^uist  Qiir»uici  Ion!  the  king  that  nnw 

m,wAm  ibi9  kin^dt^rn  of  Enj^^tand  to  h^  levied 

fliifann#4  ;  and  in  nnr«nanee  of  the  natd pre- 

iitififfiiiaKion   by   you  ihe  said  Mr  John 

o^rtaioed  and  acceiiied  of,  and  ym\r 

all    your    traitorous    intentions 

llie«ooo#rtor\  :      m,  fulHI, 

9i  avyfSrrf,  yuu  ibe  faid  !  ai  ur- 

^M^|r*  nit^tJiasameiD^i  u  •>  'm  .mh v,  in  the 

yc»r  abovc^aid,  at  Lonilon  afuiefinid,  in 

♦  «  .,.1  <inri»8aid,  r«!sfly,  ma!j»i* 

illriil^^  I '. ,  and  Iraktorciiisly,  di> 

iikin     aik[l    rpulv  lO  Ijc 

^e,  and 

ud  U»rd 

And  to 

d  ene- 

i<*id  iUt?  ktw^,  lurtignefii  and 

«a%rrt«    and   koldo  t-   of    the  aai  I 

*Frr  h<*iji^  about  to  invade 

i,  »i  ami  upon  tbeir  in- 

I  t4(doni,  titen 

» selves  lij^je- 

TU  \nu  iUr  sM'i  »u  ,»iM8iJ   r  ri'Mid    lo  join 

aod  teutons  ta  luriDi 


did  raise,  list,  and  retain^  and  did  procure  lo  be 
raised,  lissted,  and  reta^ined  ;  and  diners  sums  of 
money,  in  and  about  the  raising,  liatinff,  and 
retaining^  of  the  aforetiaid  suldtcrs,  and  man  ! 
arnried,  and  ready  to  be  armed  upon  the  ac* 
count  atbre^uid,  upon  the  a(oresaid  lirsl  day  of 
Julvt  in  the  seventh  year  ab^iveaaid,  at  Londoa 
nfofesaiil,  in  the  parish  an»l  ward  aforeiaid, 
ialsly,  mallcinuitly,  and  traitorously,  ilid  gire 
and  pay,  and  cause  to  be  paid  ;  and  those  so^ 
diers  and  men,  for  the  treasons,  intefilion^  and 
purposes  aforesaid,  then  and  there,  and  Inojf 
aikr  you  had  in  readioess.  As  atsn  the  same 
rtrst  tfay  of  July,  in  the  sefenth  year  nhnvesaid, 
at  London  aforesaid,  in  the  parish  and  ward 
aloresaid,  diners  borses,  and  very  many  arms, 
Cfuns,  carbine^i  pistols,  sviords,  atid  other  wea- 
pons, ammunition,  and  warhke  thinyfs,  and  mi- 
iilary  instruments,  falsely,  malidoui*Jy,  secret- 
ly, and  trai*orou*ily  you  did  obtain,  buy,  jj^at her 
and  procure,  and  caui>a  to  be  bought,  ^^uthered, 
obtatnefl  and  procured,  and  in  your  custody 
had  and  diftained,  to  thai  intent  to  use  the  fame 
in  the  said  invasion,  war  and  rebelfion,  against 
our  said  sovereig-a  lord  the  king  that  no*v  it, 
hitn  our  said  lord  tlie  king  of  and  from  the  ra- 
jfji  slate,  crown  and  command  of  this  kingdom 
uf  England  to  ileposc*,  cast  down  and  deprive, 
and  liim  to  kill  and  ninnlcr,  and  al!  the  trea*  i 
sons,  intentions,  conlrtvances  and  purposes  of  i 
you  the  said  sir  John  Freind,  as  aforesaid,  to 
fulfil,  [jerfect,  and  fully  to  bring  to  effect ; 
ai^iiinst  the  duty  of  your  alk^giance,  and  against  ^ 
itie  pcract  of  our  said  sovereijrn  lord  the  kin^ 
that  now  is^  his  crown  auti  di^fnity  ;  an  also 
aq'alnst  the  form  of  the  statute  in  this  case 
lUiidc  and  provided. 

What  nayest  thou,  sir  Johti  Freind,  art  thou 
guilty  of  tlushiifh  treaM>o  wheTeortlioustaudeil  ] 
tnrlit'ietl,  or  not  tjuilty  ? 

Ffcind.     Not  guilty,  my  lord.  i 

CL  of  Art.  Culprit,  how  wilt  tUnu  be  tried  f 
Fraud,     By  Ciod  and  my  country. 
CLif  Arr.     Gvd  send  liiee  a  good  delirer* 
ance. 

Freind.  I  don't  know  any  thing  of  it,  I  ata  | 
OS  innocent  as  the  child  unb^irn. 

The  Warrant  for  the  Habeas  Corpus  %rat 
sijjnc<l  by  the  Loid  Chief  Justice  Hoit,  and  de* 
Itvered  lo  the  priso ntr^  who  ti-ent  it  away  to  tho 
Crown  OtKcc  by  hia  solicitor,  to  get  l1ie  writ ' 
scaltd. 

FrfifuL  My  lord,  1  have  something  to  mov^e,  , 
if  your  lord^iup  please  to  hear  nte,  and  the  rest 
of  my  Inrdn  the  judges  :  Thnt  rt  any  uiaHer  of 
liiw  doth  arise  upon  my  trial,  I  may  be  heitrd 
by  my  counsel,  that  you  may  niit  deairoy  mm 
withrvut  law. 

L  C.  J.  Look  you,  sir  John  Freind,  If  any 
matter  of  law  ilo  arise  at  your  trial,  and  yo«a| 
will  tell  us  ^liai  timt  inutler  td'  law  is,  and  the 
court  see  that  it  is  a  matter  of  doubt,  we  ran^ 
and  ou^ht,  aifd  no  quciftton  Khali  asaign  yon ! 
counsel  J  but  tharis  tuue  euough  when  sucb' 
matter  does  urise, 

Freind,    !^1y  lord,  it  is  well  kuomi  to  your 


n 


ft  WILLIAM  tIL 


lordship,  and  all  the  coart,  that  I  am  not  a  law- 
jrer ;  but  I  hope,  as  you  are  of  counsel  for  the 
king'  as  judges  of  law,  so  you  will  be  of  coun- 
sel for  me ;  for  I  am  not  a  lawyer,  and  cannot 
know  whether  any  matter  that  arises  be  law  or 
do;  aud  therefore  I  humbly  beseech  your 
lordship  to  be  so  just  and  kind,  as  to  tell  me 
whether  it  be  law  or  not  law,  and  I  submit  my- 
■elf  to  your  lordship's  direction. 

L.  C.  J.  Sir  John  Freind,  we  are  bound  to 
tell  you  \ihen  any  thing  of  that  nature  appears 
before  us,  and  to  let  you  have  all  the  benefit  of 
the  law  that  possibly  you  can  have ;  for  we  are 
obti{;(ed  to  be  iudiiferent  between  the  king  and 
you. 

Freind.  My  lord,  I  don't  question  it.  I 
desire  also  I  may  have  pen,  ink,  and  paper. 

L.  C.  /.  Yes,  yes,  by  all  means.  [And  he 
had  them.] 

CI.  of  Arr,  Crier,  make  proclamation. 

Crier.  Oyez :  You  good  men  of  tlie  city  of 
London,  summoned  to  appear  here  this  day,  to 
■  try  between  our  sovereign  lord  the  king  and 
the  prisoner  that  is  at  the  bar,  who  have  been 
<»tlled,and  made  default,  answer  to  your  names, 
and  save  your  issues. 

[Then  the  Defaulters  were  called  over.] 

CL  of  At,  You  the  prisoner  at  the  bar,  these 
men  that  you  shall  hear  called,  and  personally 
appear,  are  to  pass  betweeu  our  sovereign  lunJ 
-the  king  and  you,  upon  trial  of  your  life  and 
death ;  if  therefore  you  will  challenge  them,  or 
any  of  them,  your  time  is  to  speak  unto  them 
as  they  come  to  the  book  to  be  sworn,  before 
they  be  sworn. 

Critr.   Call  ThonAas  Clark. 

Freind,  Pra^,  Sir,  how  many  may  I  chal- 
lenge ? 

£.  C.  /.  Look  you.  Sir  John,  you  may 
challenge,  that  is,  except  against  35,  without 
shewing  any  cause :  if  you  don't  like  them  to 
be  of  the  jury,  you  may  refuse  them  ;  and  as 
jmany  others  as  you  have  cause  to  except 
against. 

Freind.  My  lord,  I  humbly  beseech  you, 
tliat  because  perhaps  I  may  mistake  in  num- 
bering, that  1  may  have  timely  notice  before 
the  35  be  excepted  against,  or  else  it  may  oc- 
casion me  a  great  deal  of  prejudice. 

L.  C.  J.  Sr,  the  clerk  shall  take  care  of 
that,  he  shall  inform  you  how  many  you  chal- 
lenge, and  you  shall  receive  no  prejudice  of 


that  kind,  or  by  any  slip  in  point  of  form. 

CLqfAr.  Cryer,calir  -    " 

appeared.) 


CI,  qfAr.  Cryer,  call  Thomas  Clark.  (Who 


Freind.  Pray,  Sir,  must  I  not  see  the  gen- 
tleman ? 

L.  C.  /.  Yes,  yes,  by  all  means.  (He  was 
shewn  to  him.) 

Freind,  You  may  swear  Mr.  Clark ;  I  do 
not  except  against  him.  I  desire  but  honest 
gentlemen^  and  I  shall  come  off,  I  warrant 
you :  I  am  as  innocent  as  the  child  unborn. 

L.C.J.  Swear  Mr.  Clark. 

CL  qfAr.  Hold  him  the  book ;  (which  was 
done)  look  upoo  the  priwMier:  You  shall  well 


Trial  of  Sir  John  Freind^ 

and  truly  try,  and  true  deliTeraiioe 
tween  our  sovereign  lord  the  Idng  ai 
soner  at  the  bar,  whom  you  shall  have 
according  to  your  efiJIeiice.  So  help 

Ct.  of  Ar.  Nathan  Green. 

Freind,  I  except  against  him. 

CL  ofAr.  Thomas  Emms. 

Freind,  I  accept  of  him  for  a  ji 
have  nothing  to  object  against  him. 
sworn.) 

Ci,  ofAr.  Francis  Byer.  ^ 

Freind,  Pray  let  me  see  him  (He  ^ 
to  him).  I  do  except  against  him,  I 
him. 

CL  qfAr.  Benjamin  Dry. 

Freind.  I  except  against  him. 

CL  qfAr,  James  Demew. 

Freind.  I  accept  him,  I  havenoth 
against  him,  I  would  have  him  to  I 
man. 

Demew.  My  lord,  I  am  not  a  f reel 

L.  C.  J.  Sir  John,  do  you  challen^ 
remptorily,  or  do  you  challenge  him  1 

Freind,  My  lord,  I  do  not  challen 
all,  1  accept  of  him. 

AU.  Gen,  (Sir  Thomas  Trevor.) 
no  freehold,  we  that  are  for  the  king 
cept  against  him  ,  for  I  would  not 
body  that  is  ibt  a  freeholder  serve 
jury. 

CL  ofAr.  Henry  Hunter. 

Freind,  Pray,  my  lord,  is  this  { 
that  was  called  before  hud  aside  ?  He 
tliat  I  challenge. 

L.  C,  J,  No,  no,  he  is  challeng 
kinpr's  counsel,  as  no  freeholder. 

Freind,  Then  he  is  only  set  aside,  1 
I  speak  it  for  this  reason,  I  would  nc 
taken  in  my  number. 

L.  C.  J,  Care  shall  be  taken  of  all 
is  not  to  be  reckoned  as  one  that 
lengcd,  he  is  challenged  for  want  oj 
by  the  king's  counsel. 

CL  ofAr.  What  sa3r  you  to  Mr.  ¥ 

Fremd.  I  accept  of  Mr.  Hunter,  1 
swore.    (Which  was  done.) 

CL  qfAr.  John  Cox. 

Cox,  My  k>rd,  I  have  no  freehold  ii 

An,  Gen.  Then  let  him  be  set  asid 

CLoJAr,  George  Bodinffton. 

Freind,  I  except  against  him. 

CL  qf  Ar.  John  Hedges. 

Freind.  I  except  against  him. 

CL  qfAr.  You  challenge  him,  Sir 

Freind,  Yes,  yes,  I  do. 

67.  qfAr.  John  James. 

Freind,  I  challenge  him. 

CL  qf  Ar.  Thomas  Poole. 

Freind.  I  accept  of  him.    (He  wi 

CL  qf  Ar.  Peter  Parker. 

Freind.  I  accept  of  him.    (He  wi 

CL  f^Ar.  George  Grove. 

Freind,  I  except  against  him,  fc 
him  not  in  my  pannel. 

L.  C.  J.  How  conies  that  P 

Freind.  I  can't  tell,  my  lord  ;  I  1 
kept  alone  while  Satniday  last,  only 
9 


fur  High  Treason* 

Jin  Mr,  Baker,  the  \\m- 
f)  WAS  mlU  me  to  give  me 

[b  Wyersdale, 

btiiieuee  him, 
'smtifrf  Bbwitt. 

Uilili  li^^tr  hi  III. 

'i>hn  Wolfe. 
1  «io  assure  yon  I  lia^e  Liim  not 
'  Ujjon  my  Honl.     I   clialleti^re 

I  Jaclfsoiu 
f  of  Kirn*     (H«  was  sworn.) 
ktiiel  Jjotig', 

'  of  him.     (He  was  sworn.) 
rd  I'lii^welK 
i  _         uge  Um. 
mi»^if^e  Child. 

nBcent  of  him*    (He  was  sworn.) 
t  WiBiiieu  Walker. 


of  Ijirn. 
Willi. 
him, 

5>ert. 

IIQ. 

I. 


(He  was  sworn.) 


n 


Sir,  he  i&  not  in  my  pannel,  upon 

r.  tic  is  tn  the  original  nannet. 
BluribiJit^'Ajim,  M)^  hinl.  Liei^  U  the 
teeel,  tnU  here^s  his  name  here  ; 
I  moi  m  person  in  this  paiinel^  but 
■aCV>^l>  put  i<)<i  e\ci<pt  it  he  about 
Mlbt  «ii4l,  aiifl  this  is  none  of  them. 
IdMllMiipehini. 
I^TIlomss  Hollis.     (tie   did    not 

^Hnr«  Sir  John,  who  had  you  that 
^BUo  |(tiv«  It  you  ? 
^K  ISoticiiur. 

OM,  My  lord,  be  bad  none  froru 
mmr:  I  receifeil  the  panneJ  from 
It  ImI  Dobody,  irom  sir  John,  was 
B9  Ibr  •  copy. 

My  Kird,  uiy  snlicttor  brought  it  to 
larday  itta^ht. 
W  ho  »  }'<»ur  solicitor  that  gftre  you 

His  nmme  is  Mr.  Burleigh,  my  lord. 
»  Wh«r«t«  hef  Let's  see  this  Mr. 

r  lonl,  he  is  ^one  to  the  Crown- 
,  for  the  Habeas  Cor|fus. 
It  IS  your  own  Miilicilor  that 
'  no  yiHi,  if  it  be  m. 

!•  Hallis.    (He  did  not  ap- 

ITt  sir  Joho  Frttnd,  how  many 


tny  lord  ?  Would  ynu 
llMifroMUiy  1  httve  in  numlieri* 
Ife  mOB&et  uk  your  copy  of 


A.  D.  1G96.  f  10 

SlittufT  Burking/nim.  In  the  pannel  there 
are  nhove  fourscore. 

Frcind:  I  ha\rescienty-one,aiylord.  [Then 
Thomas  HoHis  appeared  ] 

C7.  of  Ar,   L>o  you  challeug^p  htm,  Sir  ? 

fcJh,  Buckingham.  Pray  hi  tht*  Stvi*iifJary 
produce  lus  punuel  that  iVe  had  from  my  bro- 
ther and  me,  and  I  am  surt^  the  court  vtill  (ind 
they  were  all  uumeil  in  that  pannel. 

j^lr.  Trotmariy  My  lord,  I  have  the  pannel, 
but  ihey  never  came  to  me  for  a  eopv^  as  [  ex- 
pected i  J  had  ^iit  Ohe  ready ;  it  sir  Jidm 
Freind,  or  usiy  p**(>r»n  hir  him>  hud  sent  to  me, 
they  nnght  have  bad  it. 

h\h  Bucktrtgham.  And  these  people  that  are 
not  in  sir  John  Freind's  pannel,  are  none  of 
the  balf-flozen  that  ii  ere  added,  >4  hen  we  came 
to  the  ktioHl«.ilgeof  them  that  they  were  free- 
holders. 

L  C.  X  When  were  thry  added,  8ir  ? 

Sh.  Buck,  Tlipy  were  added  on  Friday  in 
the  nfiernouu,  aiid  it  seems  he  never  came  for 
the  pannel  to  the  proper  officer  ;  and  those 
that  lie  objects  against  were  not  added,  hut  are 
in  thporiijinal  pannd. 

L,  C,  X  Truly,  I  cannot  see  any  body  is  to 
blame  in  this  matter  but  your  own  ibolicitor. 

Mr.  Trot  man.  My  lord,  1  assure  you  1  had 
made  a  copy,  iiud  wondered  I  did  not  henr  of 
them  :  J  fh»  nut  know  wbere  he  [^nt  this  copy^ 

L.  C  J.  fttti/.  Jn  truth,  if  yciu  wonkl  not 
send  loiheprnper  officer  lor  a  c*tpy,  when  you 
mif^ht  have  had  it,  you  must  be  content  vvith 
what  you  ha^e;  tor  noho^ly  h  bound  to  give 
you  a  copy,  UTde*s  you  ask  for  it. 

L.  C.  J.  Well,  what  suy  you  to  Tbonaai 
Mollis? 

Fret  nth  1  challenge  him,  my  lord,  for  he  is 
not  in  my  panueL 

C7.  f»/  -*1^.  J^^hn  Sher brook. 

Freind,    I  accept  of  biui,     (He  was  sworn.) 

CL  vf  Ar,  Jauies  Black  well. 

Frand.  He  is  not  ill  my  pannel,  upon  my 
word,  u\y  lord, 

X.  C.  X  1  cannot  help  It,  be  is  in  the  sherilf  ^s 
pannel  iliat  !•>  returned  here. 

Ff  tint/.   1  c  h  a  I  lenjje  hi  m . 

C7.  of' Ar.  'llioinas  Cwardner, 

Freind.   1  accept  of  him, 

Guidner,  My  lord,  I  ann  no  freeholder  in 
the  city. 

Just.  Roktb^.  Mr,  Carclner,  have  you  not 
lately  c<iuveyed  away  your  freehold  f 

Gardner.  No,  indeed,  my  lord,  1  never  had 
any. 

Cl.ofAr.  Wiliiam  Prince. 

Frvind.  1  accept  of  him.     (He  wasswom.) 

CL  ofAr.  John  MiuKins. 

Frnnd.   I  challenge  him. 

CL  of'Ar.  Robert  White. 

Fremd,  I  challenge  him* 

Ct,  of  Ar.  Josepli  More  woo  J. 

Frtmd.  I  accept  him  ;  his  name  is  John,  1 
sumMMe,  for  ku  it  is  in  my  pnneh 

CL  qt  Ar.     No,  it  is  Jo«H:pb. 

ASarrtcood,     My  name  is  Joseph* 

Freind,    Well,  Sir,  1  accept  of  you,  1  don*l 


llj  8  WILLIAM  IIL 

quertkHi  bat  yoa  are  ao  honest  man.  [He 
wan  sworo.] 

CI.  of  At,    C'ryer,  countez.  Thomas  Clark. 

Cr\ftr,  One,  &c.  [So  of  the  rest  to  the 
last.] — CL  of  Ar.  Joseph  Morewood. 

Cryer.  Twelve  good  men  and  true,  stand 
together,  and  hear  your  e?ideace. 

The  names  of  the  Jury  were  these:  Thomas 
CUrk,  Thomas  Emms,  Henry  Hunter,  Tho- 
mas Poole,  Peter  Parker,  Samuel  Jackson, 
Nathaniel  Long,  Creorge  Child,  William  Wal- 
ker, John  Sherbrook,  William  FriDce,  and 
Joseph  Morewood. 

Cl.  of  Ar,    Cryer,  make  proclamation. 

Cryer,  Oyez.  If  any  one  can  iut'orni  my 
lords  the  king's  justices,  the  king^s  serjeant, 
the  king's  attorney- general,  or  this  inquest 
now  to  be  taken,  of  the  high-treason  whereof 
the  prisoner  at  the  bar  stands  indicted,  let  them 
come  forth,  and  they  shall  be  heanl ;  for  now 
the  prisoner  stands  at  the  bar  upon  his  de- 
liferance;  and  all  others  that  are  bound  by 
recognizance  to  give  evidence  against  the 
prisoner  at  the  hwr,  let  them  come  forth  and 
give  their  evidence,  or  else  they  forfeit  their 
recognizance ;  and  all  jurymen  of  London  that 
have  been  called,  and  have  appeared,  and  are 
not  sworn,  may  depart  the  court. 

CL  of  Ar.  Sir  John  Freind,  hold  up  thy 
hand.  (Which  he  did.)  You  that  are  sworn, 
kK>k  upon  the  prisoner,  and  hearken  to  his 
charge :  he  stands  indicted  by  the  name  of  sir 
John  Freind,  late  of  London,  knight  (prout  in 
the  Indictment,  muiatii  Mi//auJ<«J,  and  against 
the  form  of  the  statute  in  that  case  made  and 
provided.  Upon  this  indictment  he  hath  been 
arraigned,  and  thei-eupon  hath  pleaded  Not 
Guilty,  and  for  his  trial  hath  put  himself  upon 
God  and  the  country,  which  country  you  are ; 
your  charge  is  to  enquire.  Whether  he  be 
^ilty  of  the  high-treason  whereof  he  stands 
indicted,  or  not  guilty  ?  If  you  find  him  guilty, 

Jou  are  to  enquire  what  goods  and  chattels, 
inds  and  tenements,  he  had  at  the  time  of  the 
high-treason  committed,  or  at  any  time  since : 
if  you  find  him  not  guilty,  you  are  to  enquire 
if  ne  iled  for  it :  if  you  tiud'  that  he  (led  for  it, 
you  are  to  enquire  oV  his  goods  and  chattels,  Vi% 
if  you  had  found  him  guilty:  if  V4>u  find  him 
not  guilty,  nor  that  he  did  fly  (or  it,  you  are 
to  say  so,  and  no  more,  and  hear  your  evi- 
dence. 

Mr.  Montague,  May  it  please  your  lordship, 
and  you  gentlemen  ot  the  jury  :  this  is  an  in- 
dictment of  hi;xh-treason,  tiiat  is  hrnui^ht 
against  sir  John  Freind,  the  jtrisoner  at  the  liar, 
for  assiociating  with,  and  aiding  the  king's  ene- 
mies, with  a  dcKigii  to  procure  an  invasion  tr<iin 
France,  and  to  raise  a  rebellion  within  this 
kingdom ;  and  this  was  to  deposo  the  king, 
and  to  restore  the  late  king  James ;  and  in 
onler  to  the  eO'ecling  thi'.se  his  u  irked  pur- 
poses, the  indirtment  sets  lorth.  That  the  1st 
of  July  last,  he  did  meet,  and  con-iulr,  and 
•g^ree  with  one  Mr.  Charnock  (a  gentleman 
since  tried,  convicted  and  attahiteu  of  high- 
tnaaoD}|  hovr  they  should  procure  an  army 


Trial  of  Sir  John  Freind^ 


[1 


from  France,  to  come  and  invade  thiskia| 
dom ;  and  sbouki  raise  a  suflicient  nnmberi 
men  to  facilitate  the  landing  of  the  FrsMl 
and  the  indictment  particularly  chams  ll 
prisoner  at  the  bar  with  sending  Mr.  Cnanitd 
into  France,  to  the  law  king  James,  to  aeqnsa 
him  with  the  design,  and  to  desire  him  topN 
cure  a  great  number  of  Ibrces  from  the  FrsM 
king,  to  come  here,  and  land  within  this  kii| 
dom :  and  the  indictment  does  likewise  cImiI| 
hiui  with  procuring  and  receiving  a  oommi 
slun  from  the  late  king  James,  to  couatiM 
him,  the  prisoner  at  ihe  bar,  a  colonel  of  hom 
and  likewise  with  laying  out,  and  ex:pendi^[ 
a:id  paying  several  sums  of  money  id  lislii 
and  kee|Mug  soldiers  and  men  in  pay  noil 
him,  which  were  to  be  in  his  regiment;  m 
w  ith  laying  out  several  sums  of  money  in  bq 
ing  arms  and  horses  for  this  inyasioD  and  v 
belliou  that  was  tlius  designed  to  be  made,  M 
raised  within  this  kingdom.  To  this,  gen 
men,  he  has  pleaded  not  guilty  :  we  shall  ii 
our  witnesses  and  prove  the  fact,  and  wmi 
not  doubt  but  you  will  find  him  so. 

Freind.  Prove  this  if  you  can;  itcauM*! 

Att.  Gen.  31ay  it  please  your  hMrdshif 
and  you  gentlemen  of  the  jury  :  the  prisQa 
at  the  bar^  sir  John  Freind,  stands  indioted  i 
high -treason,  in  compassing  and  imsmii 
the  death  of  the  king,  and  likewise  in  adnerk 
to  the  king's  enemies. 

Gentlemen,  the  overt-acts  laid  in  tlie  i 
dictment  to  prove  this  treason,  are  these: 

That  the  prisoner  at  the  bar  did  aoocpl 
commission  iVom  the  late  kin<^  James,  to  lai 
a  reg:imcnt  of  horse  in  this  kingdom,  in  Old 
to  jom  with  the  French  when  they  invaded  I 
and  there  were  several  meetings  and  consolh 
tions  between  him  and  several  others  who 
you  will  hear  named  by  the  witnesses ;  upc 
which  it  was  resolved  to  send  a  roessentfc 
one  Charnock,  into  France,  to  desire  the  la 
king  James  tu  prevail  with  the  French  Idng  t 
get  a  number  of  men,  in  all  10,000,  witn  i 
assurance  that  they  would  assist  him  wilb 
number  of  horse  when  he  came :  and  in  pn 
suance  of  this  design,  the  prisoner  at  the  hi 
did  raise  men,  and  pay  some  sums  of  aioa| 
((ir  their  subsistence,  and  listed,  and  had  tlMj 
in  readiness  ;  and  provided  horses  and  ani 
These  are  the  overt- acts  laid  in  the  indictmcAl 
the  evidence  that  will  be  produced  to  yoo,  I 
proie  this  treason,  and  these  overt- acts,  «l 
be  in  this  manner. 

Cientlemen,  you  will  see  by  theevidencetb 
there  has  lieeu  a  debign  and  conspiracy  ob  fb 
for  several  years  to  assassinate  tne  king's  pfl 
son,  and  to  have  an  invasion  from  Fi'unce 
that  time,  by  armed  force  here  to  subdue  tfc 
kin4rdoni.  The  pri*«oner  at  the  bar,  sir  Jol 
Freuid,  I  think  about  two  years  ago  had  a  cOC 
mission  sent  him  from  the  late  king  Ja0H 
to  raise  a  regiment  of  horse :  there  was  sevd 
other  commissions  sent  likewise,  but  one  * 
sent  to  the  prisoner,  whteh  he  accepted  of ;  • 
in  pursuance  of  it,  he  apjNiinted  several  ^ 
cerS|  and  listed  several  uien  for  that  pni|i0 


Jbr  High  Treason 

ims  of  money  for  the 
of  Ihfm. 
iti  Will  bear  that  \m  lieutenant 

Rfn  '  *  ;  ijor  was 

Blftter  ;  ftnd  tl  nasa 

t,  aiiid    !"•  '  V  I',  .-.iiig"  in  a 

lerg;jiiit :  I  rerusf>d  to  taie 

Clneol  i,.       ,  .  ;;;s  was  une  Evans; 
bCNI  WiA  annttHr;  »ntl  ttiere  Here 
wliom    vou  will    hear 
,  that  wero  an  pointed, 
llip  rriiiruent. 

rby  llieifit- 
f,  tliey  Ua^-e 
iiilift  ot'  nieo,  there 
between  the  prison^r 
other  jiersonx,  in  order 
|»eiifoci  Of?er  to  get  forces  from 
hBwmdtP  thh  kingdom.  The  firnt 
will  henv  (A\  was  ^t  the  Old 
in  L^deuhali-strect,  and 
iia  prisont^rat  the  bar,  nw 
y  lord  Moiil^Timerj,  sir 
llliam  Perkins,  !\Ir.Char- 
Gondemneil  and  executed 
;Aifirdering  tlie  kingf,)  Mr. 
'  k.  A I  thnt  meaing  you 
ikbatcs  were,  iind  what 
l«r  s^reral  debates,  who 
lli6y  resolved  to  send  Mr. 
to  ^  mlo  i^rance,  to  desire  the  late 
I  lo  fl€  10^000  men  of  the  Frf^iich 
mir  poasis,  about  8,CK>0  icot, 
ckoci^  n-   ''   '■  IIS  ;  and  they  did 

iLj'  m  assure  the  late 

t  Ul,  whenever  be 

r  r^f^^  ready  to  as- 

inu  lucFa^and  borse  amoog 

leo,  Mt,  Chariioek  umler- 
meiisa^e :  about  a  week 

fnr  \\f    \\i\<  ui'wWXiu**  frt 

i^mod,  ^'' a  full 

\c<  ileraen 

l»  tbat  bf-  lUTC^iit  salislj 

would  c^'itiiinly  do. 

ml  a  week  aftei'i  and  that 

Jttmes'it-9treet,  near  sir 

one  Mrs.  Monfjoy's; 

the  bar,  my  lord  of 

-me  con  I  [may  that 

^ —  nd  Mr.  Charnock 

i  In  ^gree  to  wImU  had 

J  before;    for  he 

^  *      "     ■    t  nit 

1^  A 

uil 

?  Jamey, 

f!  .....      .^Ly  bad 

\\w  tifne  when 

irJuna 

iiidcrs; 

whca 

iigfljuid 

.i  they 


A.  D,  169a  [ri 

discours<?cI  thit  matter,  the  people  being,  as  ibey  ^ 
Baidt  generally  dissatis6cd,  and  but  few  forces  ^ 
io  Eni^'^tund  to  oppose  them, 

Mr.  Charnock  accordingly  went  over  into  \ 
France,  and  about  a    montli   atier  returner! 
a^ain,  and  acquainted   tlieui  that  he  had  toM 
kmg^  James  their  resolution^  and  b<»w  they 
would  asKijit  hius  and  what  they  desired   of  ^ 
him  ;  aiidfin  short,  had  detiveredliismesfag^e: 
but  what  king  James  told  him,  he   thanked 
them  very  much  for  their  kindness  aoil  readi- 
nesa  to  as>iist  him  ;  but  at  that  time  the  French' 
king  could  not  spare  any  forces,  nor  coulil  it  be  i 
ati  that  summer^  and  so  there  was  nothing  t<»l 
be  done ;  and  thereupon  it  rested  lill  the  Us^ 
winter,  i 

Then  gentlemen,  you  will  hear,  that  the  last  ] 
wintfTthe  design  was  renewed  a^ain,  about  Ja« 
nuary  last ;  for  sir  George  Barcley  tv^  _ic  over 
from  the  late  king,  being  a  lieuleniJk^  in  hii  ( 
g\>ards  there,  and  then  they  entered  into  a  con- 
si  piracy  to  assassinate  the  king  ;  and  that  was 
to  be  clone  first  to  facilitate  the  invasion,  wbicU 
was  to  follow  immediately  upon  the  execution 
of  the  assassination:  For  they  thought  ihej? 
could  hive  no  assurance  of  success  in  their  lu^ 
vasion,  as  bug  aa  the  king  lived  j  and  I  hope 
every  one  will  lake  notice,  how  precious  that 
lite  IS  to  us,  when  it  is  so  apparent  to  all  the 
world,  that  our  enemies  cnnnot  hope  for  any 
success  to  iheir  eoteqirizes  and  designs  to  de- 
stroy us,  but  by  taking  that  litb  away. 

Gentlemen,  this  very  conspiracy,  you  will 
hear,  the  prisoner  at  the  bar  was  acquainted 
with,  and  privy  to,  eveu  ibis  assassmatiou  ; 
though  indeed  you  will  hear  he  did  not  much 
approve  of  it,  because  he  thought  it  would  be  & 
disscn'ice  to  the  lateVmg^^s  affairs  ;  but  he  wa« 
at  serei-al  meetiags  wilh  IVIr.  Porter,  and  Mr. 
Charnock,  and  sir  William  Perkins,  a»d  eeveral 
others  that  were  conspirators  in  that  design, 
;md  wa^  acquainted  with  il,  as  you  will  bear  by 
the  evidence* 

Gentlemen,  yon  will  hear  further,  that  aboul 
Janunry  last,  the  invasion  being  intended  to  be 

?tnckly  made,  the  prisoner  at  the  bar<  sir  John 
'rciodfhad  frequent  meetings  with  Dlalr,  that 
was  lieuteoant-colouel,  and  other  ofBcers,  to 
consider  and  prepare  how  to  be  in  a  readiness,^ 
About  that  time  the  prisoner  at  the  bar,  captain*  ] 
Blair,  and  one  captain  Ridley,  met  at  a  place 
in  E jcch an ge- alley,  and  there  they  discoursed 
among  one  another;    and  there  Ridley  said 
there  was   a  considerable    Roman    Catholic 
that  waa  sent  to  king  James^  and  \m  would' 
bring  the  last  orders ;   and  bir  John   Freind' 
said  he  knew  of  it  very  well,  it  was  so,  and' 
be  hoped  he  should  have  them  brought  very' 
quickly.  < 

At  auother  time,  the  prisoner  at  ihe  bar,  and*<i 
Blair  his  lieutenant-colonel,  met  at  Jonathan'* 
coffee-house,  and  the  prisoner  took  him  un  in  ' 
his  coach,  and  carried  him  along  with  hitn, 
and  there  they  had  a  great  discourse  of  the 
aflkirs  of  the  regiment.  The  prisoner  at  th« 
bar,  sir  John  Fretnd,  told  Blair  they  must  be 
very  good  bu&bands  of  their  money :  for  If  tht ' 


15] 


S  WILLIAM  III. 


Trial  qf  Sir  John  Freind, 


[1 


invasioD  iliould  miscarry,  he  should  not  have 
inooev  enough  to  carry  on  his  trade,  but  he 
ivoulcf  take  care  about  some  officers  that  had 
not  money  to  mount  themselves ;  hut  a  great 
many  were  to  prepare  for  themselves  at  their 
own  charges,  and  for  those  that  were  to  be 
under  them.  They  had  likewise  then  some 
discourse  about  the  Toulon  fleet  coming  about, 
and  that  he  thought  it  not  advisable  till  the 
Toulon  fleet  came  round.  He  said  he  would 
not  put  a  foot  iu  the  stirrup  till  that  were  done ; 
and  that  he  would  keep  out  of  the  way  till  all 
was  iu  a  readiuess,  and  advised  captam  Blair 
to  do  so  too. 

Gentlemen,  you  will  fmd  it  further  proved, 
that  about  May  last,  the  prisoner  at  the  bar  paid 
20/.  to  this  captain  Blair,  who  had  laid  out 
monies  in  the  aflairs  of  the  regiment,  and  this 
was  to  reimburse  him  what  he  had  so  laid  out ; 
and  it  was  in  this  manner :  You  have  all  heard, 
I  suppose,  of  one  colonel  Parker,  who  being 
taken  upon  his  coming  over  from  France,  was 
a  prisoner  in  the  Tower,  but  made  his  escape 
from  thence,  to  which  escape  the  prisoner  at 
the  bar  was  privy.  This  escape  cost  300/.  as 
you  will  hear,  and  the  prisoner  laid  down  100/. 
of  it.  But  this  was  to  be  repaid  him  ag^in: 
but  how  was  it.^  There  was  one  Johuson  a 
priest,  a  conspirator  likewise  in  this  design  of 
assassinating  the  king,  and  he  undertook  and 
promised,  that  the  late  king  should  pay  this 
100/.  And  accordingly  one  Piggott  went  over 
into  France,  and  had  this  100/.  paid  him  by 
king  James,  to  repay  it  to  sir  John  Freind : 
but  ne  thought  flt  to  keep  the  money,  and  sir 
John  Freind  could  not  ^ei  it  of  him,  and  he 
durst  not  ask  it,  because  he  knew  the  considera- 
tion was  not  flt  to  be  made  public.  But  he 
told  captain  Blair,  I  cannot  pay  you  the  money 
out  of  my  own  pocket ;  but  Pio;gott  ouj^ht  to 
pay  me,  who  has  received  this  uioney  ofmine. 
It  you  will  prevail  with  Johnson,  who  got  this 
money  from  the  late  king  to  be  paid  to  Pi^gott, 
to  persuade  Piggott  to  pay  this  20/.  1  will  allow 
it  in  part  of  the  money  he  is  to  pay  me,  and 
you  shall  have  it.  Captain  Blair  did  prevail 
with  Johnson  to  persuade  Piggott  to  pay  this 
SO/,  and  cajitain  Blair  did  receive  it,  and  sir 
John  Freind  did  agree  to  allow  it  to  Piggott 
out  of  the  100/.  due  to  bitn. 

Gentlemen,  at  another  time,  about  Christ- 
mas last,  there  was  another  20/.  paid  by  sir 
John  Freind's  order  and  direction,  by  Piggutt 
to  Blair,  u[)on  the  suiuc  account,  by  the  me- 
diation of  Johnson  the  priest ;  and  this  was 
paid  and  allowed,  as  being  laid  out  in  the  aflairs 
of  the  regiment  before,  he  being  intrusted  as 
lieutenant -colonel  to  look  atler  the  regiment. 

Gentlemen,  I  have  now  opened  the  substance 
of  the  evidence;  the  particulars  you  will  hear 
from  the  witnesses  themselves.  If  I  have 
opened  it  amiss,  you  will  take  care,  when  the 
witnesses  are  proiluceil,  to  observe  what  they 
say,  who  wi>l  tell  yon  what  really  was  done, 
and  \\\\\  rectify  any  mistake  of  mine:  for  I 
would  have  no  such  mistake  to  do  the  prisoner 
•t  the  bar  any  prejudice. 


Sol.  Gen.  (sir  John  Hawles).  Gentltnia 
Mr.  Attorney  has  opened  the  nature  ud  cow 
of  our  evidence  so  fully,  that  I  shall  malm  ■ 
repetition  of  any  of  the  particuhirs;  but  ^ 
our  witnesses,  and  prove  it  in  order  as  it  W 
been  opened.  And  first,  we  call  captain  OtiM| 
Porter.    [Who  came  in.] 

Freind.  BIy  lord,  before  Mr.  Porter  is  swan 
I  desire  to  know  whether  he  is  a  Uoman  Oi 
tholic  or  a  Protestant? 

L.  C.  J.  Why  do  you  desire  that  ?  Is  not 
Roman  Catholic  a  witness?  Though  be  be 
Roman  Catholic,  that  is  no  objection  to  hb  be 
ing  a  witness. 

Freind.  My  lord,  I  desire  to  ask  him  th 
question,  whether  he  be  a  Roman  Cathtii 
or  no? 

L,  C.  J.  Sir  John  Freind,  it  is  not  a  prop 
question. 

Freind.  My  lord,  a  man  ought  to  know  wli 
profession  they  are  of,  that  are  witnesses  agiin 
nim  for  his  life. 

L.  C.  J.  Will  you  ask  him  whether  he  bt 
Christian  or  no  ? 

Freind.  My  lord,  1  desire  to  know  wkatb 
he  be  a  Papist  or  a  Protestant. 

Jtt.  Gen.  If  Mr.  Porter  be  willing  toll 
yon,  he  may  ;  but  it  is  not  a  proper  qnrslic 

L.  C.  J.  Especially  before  he  is  sworn  ;  | 
is  not  intitled  to  ask  any  questions  wbateti 
till  he  be  sworn. 

Freind.  My  lord,  I  beseech  you  let  iiie  fan 
the  question  answered. 

Soi.  Gen.  Sure  you  don't  consider,  that  ll 
answer  to  that  question  is  to  accuse  hioMill 
you  don't  consider  the  consequences  of  it. 

Freind.  Pray,  my  lord,  let  me  have  fli 
right. 

L.  C.  J.  The  question  is,  Whether  it  if  jm 
right  or  no  ? 

Freind.  Mv  lord,  I  would  not  trouble  tl 
court  if  I  could  help  it,  but  my  life  and  all  is  i 
stake,  and  I  must  make  the  best  defenca  I  csi 

X.  C.  /.  Indeed  your  question  is  improfii 
iu  itself;  but  if  he  nave  a  mind  to  tell  yoi 
and  answer  voluntarily,  he  may. 

Freind.  I  humbly  be^  your  lordahip  thi 
he  may  answer  the  question. 

L.  C.  J.  I  cannot  see  you  have  a  right  ^ 
have  this  question  answered  you.  ! 

Freind.  Mr.  Porter,  you  are  a  gentleoMI 
and  I  desire  you  will  answer,  Whether  yoa  I 
a  Roman  Catholic  or  not  ? 

Sol.  Gen.  Before  he  does  answer,  I  d«l 
he  may  be  acquainted  with  the  danger :  he  HI 
bred  a  Protestant,  no  doubt,  and  then  tamil 
Roman  Catholic,  he  subjects  himself  tO(  a  ?« 
severe  penalty. 

L.  C.  J.  i^lr  John  Freind,  I  told  yoa  yoi 
question  was  not  proper  to  be  asked. 

Freind.  Pray,  my  lord,  let  him  answer  tl 
question,  it  will  be  of  great  use  to  me  in  ■ 
trial ;  pray  let  me  have  my  right. 

JL  C.  J.  You  shall  have  all  the  right  ta 
you  that  can  be;  but  in  the  first  place,  if. 
man  be  a  Roman  Catholic,  notwithttaiidiaKli 
rdigioD,  he  is  a  good  witoeai :  and  beMdci  tM 


jbr  High  Treatoih 

lif  uwwcring  the  question  may  sub- 
»  screral  peualties;  at  least  be  is 
•ecnCkiD  upon  several  acts  of  par- 
t  are  rery  penal ;  and  therefore  it  b 
•  to  be  asked. 

Bly  lord,  1  pray  only  that  he  may 
question. 

No  man  is  bound  to  answer  any 
St  tends  to  make  bim  accuse  bim- 
ect  him  to  any  penalties. 
M^  lord,  I  do  with  submission  de- 
it  Ts  no  f^reat  matter  for  him  to  say 
he  a  Papist  or  Protestant. 
If  it  be  uo  crreat  matter,  then  why 
It  upun  it  T  But  perhaps  it  may  t>t* 
ter  in  the  consequence  of  it  to  him ; 
pfore,  is  not  obliged  to  answer  any 

MIS. 

I  beseech  your  lordship,  let  him 

question. 

You  have  my  opinion ;  if  you  will, 

i¥e  the  opinions  of  the  rest  of  the 

opinion  is.  That  the  question  ought 
9wered. 

Treby.  Since  your  lordship's  plea- 
it  we  should  deliver  our  opinions 
oint,  I  must  declare,  1  am  of  the 
>D.  that  no  man  is  bound  to  answer 
nsthat  will  subject  him  to  a  penalty, 
f .  If  you  should  ask  him,  whether 
Jeer- stealer,  or  whether  he  were  a 
ir  any  other  thing  that  will  subject 
lishmeot,  *  either  by  statute  or  by 
w,  whether  he  be  guilty  of  a  petty 

tbe  like,  the  law  does  not  oblige 
irer  any  such  questions.* 
Well,  I  hope  the  jury  will  consider 
;  will  not  answer  the  question ;  and 
bey  are  to  take  it  for  granted  that 

Trefy,  And  now  to  this  present 
I  ask  a  man  whether  he  be  a  Fopish 

is  to  subject  him  to  danger:  for 
ask  him  that  question,  if  he  were 
IP  in  that  relijgion,  then  for  him  to 
If  of  that  religion  now,  is  to  own  as 
me  as  that  you  are  charged  with, 
not  si>,  but  he  was  always  bred  in 
HI,  yet  there  are  very  great  penalties 
luhiect  to,  as,  the  confiscation  of  two 
of  his  estate,  and  several  other  things 
IT  be  liable  to,  if  he  should  disclose 

liis  answer  to  the  question,  which 
bis  discovery  could  not  "be  proved, 

We  must  keep  the  law  steady  and 
een  tbe  prisoner  and  tbe  witness, 
'm/.  I  am  of  the  same  opinion,  it 
ct  bim  to  a  penalty ;  and  unless  he 
Urily  answer  it  of  himself,  I  think  it 
demanded  of  him  :  for  he  may  sub- 
tf  to  a  prosecution  by  it. 
!sMy.  I  think,  it  is  not  a  question 
if  r^t  be  imoosed  upon  him ;  be 
111;  but  he  is  under  no 


A.  D.  1699. 


[18 


vii,  if  be  will 


UU. 


ooDocfumilf 
e.  9.  a.  S. 


this  in 


obligation  to  answer  it,  because  it  may  tend  to 
accuse  himself  of  a  crime  for  which  he  may  be 
prosecuted,  and  likewise  will  subject  him  to 
other  penalties,  which  the  law  cannot  compel 
bim  to  subject  himself  to. 

(Then  Captain  Porter  was  sworn.) 

Freind,  1  hope,  gentlemen  of  the  jury,  you 
will  consider  this. 

Sol.  Gen.  Mr.  Porter,  do  you  know  sir  John 
Friend,  the  prisoner  at  the  bar  ? 

Capt.  Porter.    Yes,  Sir. 

Sol,  Gen,  Pray  then  will  you  give  my  lords 
and  the  jury  an  account  what  meetings  you 
have  had  with  him,  where  those  meetings  were, 
and  when,  and  what  passed  between  you,  about 
inviting  the  French  over  hither,  or  for  a  rising 
here? 

Porter.  My  lord,  about  the  latter  end  of 
May  last,  or  the  beginuing  of  June,  we  had 
two  meetings;  one  was  at  the  King's- Head, 
in  Leaden liall- street,  and  the  other  at  Mrs. 
Mountjoy's  in  St.  James's-street.  At  the  fu-st 
meeting  there  were  present  my  lord  of  Ailes- 
bury,  my  lord  of  Montgomery,  sir  John  Freind, 
sir  Wm.  Perkins,  sir  John  Fenwick,  Mr.  Cook, 
captain  Charnock,  and  myself;  afler  dinner 
Mr.  Goodman  came  in :  now  at  both  those 
meetings  it  was  consulted  of,  and  agreed,  to 
send  captain  Charnock  into  France  to  kine 
James,  to  desire  him  to  borrow  of  the  French 
king  10,000  men  to  come  over  hither,  8,000 
foot,  1,000  horse,  and  1,000  dragoons.  Capt. 
Charnock  said,  he  did  not  care  to  go  upon  a 
foolish  message,  and  tlieretbre  desired  to  know 
what  they  would  have  him  to  acquaint  kins^ 
James  with,  and  assure  him  of.  They  au 
agreed  to  meet  the  king  whenever  they  had 
notice  of  his  landing,  with  a  body  of  2,000 
horse;  of  which  every  one  in  particular  was  to 
bring  their  quota  wherever  he  would  appomt. 

Att.  Gen.  When  was  the  second  meeting? 

Porter.  That  was  at  Mrs.  Mountjoy's. 

Att.  Gen.  But  I  ask  you  when  it  was  ?  How 
long  after  the  first  ? 

Porter.  I  believe  it  was  about  a  fortnight 
after,  or  so. 

Att.  Gen.  What  was  that  meeting  for  ? 

Porter.  The  second  meeting  was  to  confirm 
the  first  Captain  Charnock  informed  me, 
that  he  was  to  go  within  three  or  four  days, 
and  therefore  desired  to  have  a  meeting  before 
he  went. 

Att.  Gen,  What  discourse  was  there  at  that 
second  meeting P  What  occasion  was  there 
for  it  ? 

Porter.  Capt.  Charnock  desired  the  meet- 
ing once  more  before  he  went,  to  see  whether 
we  all  kept  our  resolution. 

Sol.  Gen.  Pray,  what  do  you  know  of  air 
John  Freind's  agreeing  to  raise  a  regiment  of 
horse? 

Porter.  I  know  nothing  of  that  matter,  bat 
what  I  have  heard  several  people  talk  ;  but  I 
have  heard  him  say,  he.  would  be  as  ready  as 
auy  msn,  whenever  the  king  came ;  and  I  have 
heard  from  capt.  Chamocki  aad  fic^ia  tir  Wil« 

C 


19] 


8  WILLIAM  UL 


Ham  Perkyni,  that  he  had  a  commissioti  to  be 
a  colonel  of  horse. 

Att.  Gen,  Pray,  Sir,  upon  that  second 
meeting,  who  were  present  ? 

Porter,  1  told  you,  Sir,  the  priioner  at  the 
har  was  present  at  both  meetings. 

SoL  Gen.  Who  else  were  there  ? 

Porter,  My  lord  of  Atlesbury«  sir  William 
Perkyns,  capt.  Chamock,  and  I  cannot  tell 
whetner  my  lord  Montgomery  and  Mr.  Good- 
man were  there  ;  Mr.  Cook  and  myself  were 
there  ;  but  the  prisoner  at  the  bar  I  am  sure 
was  there. 

Sol.  Gen.  Pray,  capt.  Porter,  will  you  re- 
member and  recollect  yourself,  who  were  at  the 
iSrst  meeting  P 

Porter,  fhafe  named  them  already,  Sir. 

SoL  Gen.  Name  them  again  then. 

Porter,  My  k>rd  of  Ailesbury,  my  lord 
Montgomery,  sir  John  Freind,  sir  William 
Perkyns,  sir  John  Fenwick,  capt.  Chamock, 
Mr.  Cook,  and  myself ;  we  dined  there,  and 
after  dinner  Mr.  Goodman  came  in. 

Att,  Gen.  Pray,  Sir,  when  ^d  you  see  Mr. 
Chamock  afler  tnis,  and  what  discourse  had 
you  with  him  about  his  journey,  and  the  suc- 
cess of  it? 

Porter.  I  never  saw  him  till  3  or  4  days 
after  our  riot  business  in  Drury-Iane,  upon 
the  account  of  which  I  hail  been  a  prisoner  in 
Newgate.  ^ 

/  Att.  Gen.     Well,  and  what  did  he  say  to 
you? 

Porter.  He  told  me  that  he  bad  been  in 
France,  but  that  king  James  told  him,  the 
French  king  could  not  spare  so  many  men  that 

J  ear ;  and  withal,  that  he  bad  been  with  sir 
ohn  Freind,  and  the  sereral  other  persons, 
with  messages  from  the  king ;  but  1  do  not 
know  whether  he  had  been  there  or  no,  only 
as  he  told  me,  that  he  had  been,  and  brought 
that  answer. 

Att.  Gen.  Pray  now  tell  us,  what  other 
meetings  you  have  had  about  this  matter  thb 
winter? 

Porter.  I  was  once  with  sir  George  Barcley 
and  sir  John  Freind,  at  the  Nag's- bead  in  St. 
James's-street;  1  cannot  tell  what  discourse 
they  had  ;  they  whispered  among  themselves. 

Att.  Gen.  Who  else  was  there  r 

Porter.  There  was  sir  George  Barcley,  sir 
William  Perkyns,  myself,  Mr.  Terguson,  and 
•ne  Humes. 

L.  C.  J.  Where  was  that,  do  you  say  ? 

Porter.  At  the  Nag's -head  in  St.  James's- 
street 

Att.  Gen.  Was  there  any  body  else  there 
that  you  can  remember  ? 
.  Porter,  Capt.  Chamock  came  in  after  dinner, 
but  I  cannot  say  he  dined  there. 

Att.  Gen.  And  who  else  do  you  remember  ? 
^  Porter.  There  came  in  one  Harrison  after 
dinner;  he  is  a  reputed  Romish  priest,  and  goes 
by  the  name  of  Johnson. 

Mr.  Mountague.  Pray,  capt  Porter,  what 
was  that  meetingfbr  ^ 

.JPsHir.    Tliey  bad   ftrcnl  wl 


Trial  of  Sir  John  Freind^ 

among  themsdf^,  but  what  they  dis< 
1  cannot  tell. 

Mr.  Mountague,  Pray,  did  sir  Jol 
say  any  thin^  that  you  heard  at  that 

Porter.  Sir  George  Barcley  did 
some  people  that  were  not  so  violent  hi 
over  mto  France  to  stop  this  busine 
which,  said  1, 1  hope  you  will  have 
to-night  Upon  which  sir  John  Fr( 
is  there  any  thing  that  is  hul  behind 
tain  ?  If  there  be,  I  am  not  fairiy  dea 
I  will  proceed  no  further. 

Att.  Gen.  If  ur  John  Freind  has 
ask  him  any  questions,  he  may. 

L.  C,  J,  Pray*  cant  Porter,  let  mc 
this  question.  Did  all  that  were  ores 
first  meeting,  at  the  King's-bead  in 
hall-street,  agree  to  send  Mr.  Char 
France  to  the  late  king  ? 

Porter.  Yes,  my  lord. 

L.C.J.  All  of  them? 

Porter.  Yes ;  we  desiied  captain  < 
to  answer  to  the  king  for  us  that  we  w* 
him  at  the  head  of  S,000  horse. 

L.  C,  J.  Did  sir  John  Freind  agrc 

Porter.  Yes,  I  do  positively  affirm 

L.  C.  J.  Then  the  second  meetinf 
you  say,  was  at  Mrs.  Mountjoy's,  i 
said  then  ? 

Porter.  We  did  agree  all,  That  ca 
nock  should  go  on  with  the  message 
resolved  upon  at  the  first  meeting, 
would  go  on  with  the  business ;  and  I 
would  go  away  in  two  or  three  days. 

Att.  Gen.  Will  sir  John  Freind  as! 
questions  ? 

Freind.  I  will  only  ask  him,  if 
done,  whetlier  he  has  any  thing  mon 

Porter.  No,  Sir. 

L.  C.  J.  The  king's  counsel  have 
him. 

Freind.  Then,  m v  lord,  I  will  hea 
can  say,  and  when  I  have  heard  thei 
denoe,  I  shall  know  how  to  answer  t> 

L.  C  J.  Before  you  go,  captain 
would  ask  vou,  what  answer  Mr. 
brought  bacK  from  France  ? 

Porter.  I  say,  I  did  not  meet  wi 
Chamock,  until  after  I  came  out  of 
for  the  riot  business  ;  and  then  he  to 
had  been  there,  and  he  had  acqui 
several  gentlemen  with  the  messagi 
brought  from  king  James,  who  tba]\ 
for  Uieir  kindnesses;  but  the  Fre 
could  not  spare  so  many  men  that  ye 

Sol.  Gen.  Then  the  next  that  ^ 
Brice  Blair  (Who  was  sworn.)  Pn 
you  know  the  prisoner  at  the  bar, 
Freind? 

Capt.  Blair.  Yes,  my  lord  ;  and 
sorry  to  come  on  such  an  account  as 
against  him.    I  am  sorry  fir  it  wi 


Att.  Gen.  Well,  Sir,prav  wUl  yc 
aooount  what  yon  know  or  sir  Job 
having  a  oommiMon  firom  the  late 
a  colMid  of  hmei  ui  wkai  it  was, 


ft^  High  Treason* 
I  nj  ktnl  and  the  jury  ihe  whole 

All  ikai  f  C90  my  to  this  business  in 
I  ttj  Pt]itr,  and  1  refer  to  my  puper. 
(tfti  Y#ii  naufit  not  refer  to  your  paper, 

tcjl  mil  what  you  know. 
%  R»iii«jr  took  upOD  any  paper  to 

1 4k^  tte  ihe  commissiouy  Sir,  and  I 
L 

Its*  WbaS  cofnmtflsioii  was  it,  Sir? 
ii  inM  R  eommiMni  from  kiDir  James 
id. 
Where  did  you  see  it.  Sir  ? 
m  ii  m  M»  lodgings  at  the  Strand, 
firad  otiff  the  Straud,  io  Surrey* 

trm.  Who  shewed  it  voa  f 
Ha  ahewed  it  me  himself. 
Int.  What  was  it  flir  ? 
^J^  waa  fbr  raising  a  regiment   of 

^HWbeo  was  it  that  you  did  see  it  ? 

^■|i»wia  itf 

^yii  wiell  near  two  years  ago,  or 

^  as  1  remember 

>■«  Who  was  to  have  beea  colonel  of 

Mfltr 

Ha  was  oominaled  to  be  colonel  of  it 

I  liie  eooimisKion. 

X    Who   was    the    commissioo  di* 

directed  to  him,  to  sir  John 


PI  Wdlf  aiid  wliat  was  doue  upon  it  P 
vtobelhaoflicera? 
Ba  |irOflataed  me  lo  he  his  lieutenant - 
mA  I  had  tlie  same  from  Mr.  Bar^ 
aereral  letters  that  I  saw, 
ly  lord  Melford  and  secretary 
fiTth  king  Jamea« 
What  other  officera  were  there 

Tb»e  vaa  one  Richardson  wns  to  be 
I  CBfiaiaOv  and  ihei-e  was  one  Mr. 
■a  Io  iia  aoatheri  and  one  Hall  ano- 
jkm  waa  ta  be  bis  eldt^t  captain,  and 
UEfaaa  waa  to  be  his  captain-lieu- 
Veruatti   was  to  be 


fat.  Da  you  reroemher  who  waa  to  be 
'f 

Ha^  Sir,  1  think  I  cannot  he  positive 
rt»    f  ap^ke  tocapt  Baroesley,  that 
ant  tD  king  Jamea's  service, 
aiul  sometimes  he  accepted, 
ha  refuaed  it. 
ht^  Play,  what  did  you  do  as  lieu- 
taaal  upon  this  matter  ? 
I  cadaavoisr«Mi  all  I  could  to  get  offi- 
htokf  and  to  raise  troops,     Fendea* 
I  fil  vital  inen  1  couhl  myself, 
toi.    Piay  what  did  you  do  ?  What 
U  jwa  fwwcura  for  him  P 
I  tan  you  Vematti  and  Fiaber*  and 
JhM  thai  tiTCB  at  Deal. 
ia.  WImI  tiaa|Ni  did  you  get  under 


you? 
you  ? 

Blair,  What?  I  myself,  Sir,  do  you  meant 

Att.  Gen.  Yei,  I  do. 

Bkir,  Yes,  Sir,  I  did. 

Ati.  Oen,  Can  y<iu  name  any  of  them  ? 

Blair.  Yes,  Sir,  if  I  make  u^  of  my  paper. 

Sol,  Gfn,  You  may  makeuseof  your  paper 
to  refresh  your  memory- 

Bhtr,  There  is  a  paper  of  names  that  I  gave 
in  before  the  council. 

L.  C.  X  Mr.  Baker,  have  you  his  paper 
there  P  Let  him  see  it  to  refresh'  his  memory, 

Mr,  Bakfr,  I  have  none  of  the  papers,  my 
lord  ;  they  are  all  sent  before  the  council. 

Att»  Gen,  Pray,  Sir,  can  you  ttll  w  ho  was 
to  have  been  your  Ueutenant  iu  your  titiop  ? 

Blair.  One  Mr.  Bert  ham. 

Mr  Mountague.  You  say,  Sir,  you  were 
constituted  lientenanl  ct>loi»cl  ;  pray,  who  con- 
stituted you,  and  made  you  so  ? 

Blair.  I  had  only  a  promise  of  it  from  sir 
John  Freind,     . 

Ait.  Gen.  Pray,  did  you  lay  out  any  monies 
for  sir  John  Freind  ?  or  did  he  ever  pay  you 
any  money  afterwards  ? 

Blair,  Yes,  1  have  had  several  small  sums 
of  money  from  sir  John  Freind. 

Att.  Gen,  Pray,  what  was  it  for  P 

Blair,  It  was  to  drink  with  the  men  that 
belonged  to  the  regiment,  and  eiiconnige 
them. 

Ati,  Gen,  Pray,  did  Mr.  Ptggott  pay  you 
any  sums  of  money  ?  and  by  whose  order  ? 

nlair.  Yes,  he  paid  me  first  20/.  and  af\er« 
wards  he  paid  me  another  20/» 

Ait.  Gen.  By  whose  order  was  that,  !^iir  ? 

Blair.  It  was  by  the  order  of  sir  John 
Freind. 

Att.  Gen*  Pray,  Sir,  How  do  you  know 
that  sir  John  Freind  ordered  him  to  pav  it  youf  ] 

Blair.  Because  it  was  the  money  lliat  'Pig»i 
gott  had  received  to  repay  sir  John   Freind 
what  he  had  advanced  for  Ihe  furthering  of 
Parker ^s  escape  out  of  tlie  Tower. 

Att,  Gen.  How  do  you  know  that  he  ad- 
vanced   any   money    tor  procuring    Parker'a_ 
escape? 

Blair,  He  told  me  so  himself. 

Att,  Gen.  How  mucli  did  sir  John  FreinAf 
say  he  advanced  for  that  pur{>o5e  ? 

Blair.  Retold  me  100/. 

Ait.  Gen.  How  did  he  tell  you  he  was  to  ba^ 
paid  it  again  ? 

Blair,  He  told  me  that  king  James  ordered 
thepaj'ment  of  it  at  France,  when  Pig^ott  went 
over,  wh?ch  was  immediately  afterwards  ;  and 
I  had  of  that,  first  ^0/.  and  afterwards  UOL  by 
theorderofsir  John  Freind. 

Sal.  Gen.  Pray,  8ir,  did  sir  John  Frejod  tell 
you  what Piggott  had  received  in  France? 

Bluir,  Yes,  he  said  Piggott  had  i-eoeived 
100/.  in  France ;  and  be  *lid  not  pay  it  him, 
but  if  1  could  get  ZQl.  of  hia>,  he  if^uld  , 
allow  it. 

Jit.  Gen.  Pray  about  what  litne  was  it  that ' 
the  tint  20/.  was  racaivad? 


M] 


8  WILLIAM  HL 


Blair,  J  have  set  it  down  In  my  paper ; 
there  it  is. 

Ati.  Gen,  But  canoot  yon  tell  about  what 
time  it  was  P 

Blair,  It  was  about  last  May  or  Junei  the 
first  80/.  was  paid. 

Alt.  Gen.  When  was  the  last  SO/,  paid  ? 

Blair,  It  was  after  1  was  sick,  about  Mi- 
chaelmas. 

Mr.  Camper.  Pray,  Sir,  Who  was  by  when 
the  last  20/.  was  paid  P 

Blair,  Mr.  Piggott  paid  me  the  last  5/.  of  it, 
(for  I  received  it  at  several  payments  from  Mr. 
Pig^tt)  but  the  hist  5/.  was  before  sir  John 
Fremd,  at  Jonathan's  coffee-house. 

Sol,  Gen.  Pray,  do  you  know  any  thing  of 
air  John  Freind's  receiving  any  l^ter  from 
kiu^  James? 

Sluir,  Yes ;  he  told  me  he  had  a  letter  from 
king  James. 

Sol.  Gen,   How  long  ago  was  that? 

Blair,   Truly,  I  cannot  tell. 

Sol.  Gen.  1  don't  ask  you  the  precise  day, 
but  was  it  within  a  twelvemonth  P 

Blair,  Yes,  I  bdteve  it  might  be  there- 
abouts. 

Freind.  My  lord,  I  desire  he  may  speak 
out ;  for  I  dou't  hear  half  he  says. 

L,  C.  J,   Repeat  it  to  him  again. 

Blair.  Sir,  you  told  me  you  had  received  a 
letter  from  king  James. 

Friend.  My  lord,  I  shall  answer  to  all  this 
afterwards. 

Sol,  Gen,  Pray,  had  you  at  any  time  any 
discourse  with  sir  John  Freind  about  one  Slater  P 

Blair.    Yes,  1  had. 

Sol,  Gen.    Prav  tell  what  that  was. 

Blair.  He  told  me  he  was  to  bring  him  in 
several  officers ;  and  that  he  had  intended  to 
make  two  lieutenant-colonels,  whereof  captain 
Slater  was  to  be  one ;  but  when  he  saw  I  was 
not  satistied  with  that,  he  said  he  should  com- 
mand a  troop  of  non-swearing  parsons,  and 
tbev  should  M  an  independent  troop. 

Sol.  Gen.  You  say  that  Slater  was  to  com- 
mand that  troop  P 

Blair.  Yes,  and  it  was  to  be  an  indq>endent 
trooj>. 

Att.  Gen,  I  think  you  say,  that  he  and  you 
met  at  Jonathan's  coffee-house  P 

Blair.    Yes,  we  did  so. 

Att.  Gen.  Pray  what  discourse  had  you 
there  P 

Blair,  I  called  him  aside,  and  desired  to 
speak  to  him ;  and  it  was  when  Mr.  Fisher 
told  mc  of  tliiii  plot,  and  desired  me  to  speak  to 
him,  a  little  betbre  this  horrible  conspiracy 
broke  out.  And  1  told  liim  what  I  heard  from 
Fisher,  and  from  Harrison  the  priest  about  it ; 
and  he  told  me  that  he  had  heard  of  it,  and  he 
was  nfraid  it  would  ruin  king  James,  and  his 
affiiirs.  .^ 

Alt.  Gen.  What  was  it  that  you  told  him 
you  had  heard  P 

Blair.  This  last  horrid  thing,  the  conspiracy 
against  the  king's  life. 

Mr.  Camper.  Was  it  before  it  bidw  out  that 
lie  told  you  he  knew  of  It  f    ^ 


Trial  qfSir  Join  Frnnd^ 

Blair.  Yes,  it  was  shortly  before  it  br< 

Alt.  Gen.  Pray,  did  you  meet  wi 
again  P  And  did  be  carry  you  in  his  c 
at  any  time? — Blair.  Yes,  he  did.  Sir, 

Att.  Gen.  What  discourse  had  yo 
when  you  was  with  him  in  the  coach  P 

JB^ir.  He  took  me  in  his  coach  to  S 
tin 's-le- Grand,  and,  says  he,  I  will  do 
till  the  Toulon  fleet  meet  with  the  Brei 
at  that  time,  perhaps,  we  shall  be  all  tal 
but,  says  he,  you  may  sculk  about  tl 
better  than  I  can ;  and  therefore  I'll  kc 
self  private ;  and  we  must  be  as  good  h 
of  our  money  as  we  can ;  for  money 
very  scarce.  What  do  you  think  y( 
need,  says  he  P  Truly,  Sir,  says  I,  I  ca 
that  must  be  according  as  1  am  mountc 
I  found  I  had  a  few  indigent  officers  at  tl 

Att.  Gen.   Pray,  what  were  you  tu  < 

Blair.  Vte  were  to  sculk  up  and  dov 
when  he  asked  me  what  money  I  shou 
I  told  hirii  I  could  not  tell ;  for  there  i 
veral  indigent  officers,  most  of  which 
at  that  time ;  and  here  is  a  letter  thi 
from  sir  John  Freind,  to  confirm  my  n 
money  from  him. 

Att.  Gen.  Is  that  sir  John  Frein 
hand  P — Blair.  Yes,  Sir,  it  is. 

Att,  Gen.   Then  put  it  in.    Give  it 

[It  was  delivered  in  to  the  Attorney -G 

Sol.  Gen.  Pray,  what  have  you  li 
John  Freind  say  of  sir  John  Fenwick 
concerned  in  this  matter  P 

Blair.    I  heard  him  say,  that  he 
that  he  should  command  the  party  thai 
engaged  in,  and  that  sir  John   Fenw 
four  troops  of  horse,  that  lay  near  Rea 
be  employed. 

Sol.  Gen.  For  what  purpose  P 

hlair.  To  be  in  readiness  upon  the  i 

Freind.  Gentlemen  of  the  jury ,  1 C8 
a  word  ;  1  hope  you  hear. 

Att.  Gen.  Pruy,  Sir,  look  upon  tha 
\ou  say  you  had  that  letter  ftrom  f 
treind,  pray,  who  is  that  H  mentioned 

Blair.  It  means  Harrison  alias  J 
the  priest. 

Att.  Gen.  Pray,  what  was  that  lettei 
for? 

Blair.  It  was  about  the  Ust  SO/,  thi 
to  receive  from  Piggott. 

Att.  Gen.   Is  that  sir  John  Freiud's 

Blair.    Yes,  I  think  so. 

Att.  Gen.  Have  you  seen  sir  Johi 
write  P 

Blair.  Yes,  1  have  seen  him  writ 
think  it  is  the  same  hand. 

Att.  Gen,   Then  we  desire  it  may  be 

Then  a  Juryman  desired  he  might  b 
Wh^er  he  saw  sir  John  Freind  w 
letter  P 

X.  C.J.    What  say  yoa,did  you 

write  that  k*tter  P 
Blair.  No,  my  lord ;  it  came  to  my 
Ait.  dtn.   Did  he  ever  own  to  yoi 

writ  yoa  each  a  letter  P—£4nr.  Yei» 


Jhir  High  TreoMn. 

m.   Pnjy  let  it  be  read ;  read  it  all, 
1  short. 
Ir.  reads: 

?w  Captaio  Blair,  These. 

;  Tuesday  Morning, 

may  inoch  wooder  you  have  not  re- 
ins wer  of*  vours  before  now :  I  ba?e 
led  with  the  gout  in  my  hand  and 
1  have  not  been  able  to  pnt  pen  to 
thank  God)  I  am  somewhat  better, 
pe  to  be  in  London  a  Thursday  next, 
boor  <^  twelve,  at  Jonathan's  cofTee- 
he  weather  do  not  prevent  me ;  if  it 
i  not  come  before  Monday  following : 
*  you  fur  to  meet  me  about  that  hour; 
It  convenient  for  to  write  a  note  to 
r  some  reasons  1  shall  give  you  when 
I  wish  yon  good  health.  I  am, 
affectionate  friend  and  servant,  . 
"  John  Freind." 
a.  Prmy,  Sir,  what  dale  is  it  of? 
Ar,     It  lias  no  date  but  Tuesday 

m.    Did  sir  John  Freind  meet  you  on 
day,  according  to  this  letter  ? 
M.    My  lord,  I  desire  he  may  be  ask- 
thts  letter  came  to  him,  whether  by 

post,  or  how  ? 

1  doD't  know,  I  believe  it  was  by  a 

came  first  to  me  when  I  was  in  lied, 

ife  broaght  it  up  to  me. 

511.    Prmjt  Sir,  answ^  my  question. 

obn  Freind  afterwards  meet  vou  at 

s  coffee-house,  according  Jo  this  let- 

lir.    Yes,  Sir,  he  did. 

rem.    And  did  you  there  speak  about 

OB  that's  contained  in  that  letter? 

Yes,  Sir ;  and  accordingly  I  had  the 

ea.    What  order? 

Ao  order  for  the  SO/. 

!«.    Captain  Blair,  do  you  remember 

dined  with  sir  John  Freind  near  the 

e,  in  January  last  ? 
Yes,  I  think  1  did,  Sir. 

r».  What  discourse  was  there  between 
^  Who  was  with  you  besides  you  two? 

1  must  refer  that  to  my  paper. 
fi.    Well  then,  what  discourse  was 
f  on  and  sir  John  Freind  there  ? 

It  is  down  in  my  paper. 
m.    Do  you  know  one  capt.  Ridley  ? 

ra.  Was  he  at  any  time  present  when 
the  prisoner  at  the  bar  were  together  ? 

f.  My  lord,  I  cannot  hear  a  word  he 

/.  Here  is  a  great  noise  indeed,  and 
ms,  is  not  well,  and  speaks  but  low ; 
Icr  silence  in  the  court.  [Which  was 
Proclamation.] 

L  Look  ye,  air  John  Freind,  he  speaks 
r  that  you  sent  to  him  that  bears  date 
CMtey  momtng,  that  you  would  be  in 
d  seel  him  at  Jonathan's  eoffee-bou^ 
«nda/  foUowiDgi  at  twelve  o'clock; 


A.  D.  169S.  f  S6 

and  that  letter  was  read,  and  he  says  he  met 
you  accordingly,  and  there  was  order  taken  for 
the  payment  of  the  last  20/.  This  is  that  ha 
says :  did  you  hear  it  ? 

Freind.   No,  my  lord,  I  did  not. 

JLC.J.  That  is  what  he  said.  Then  go 
on :  you  say  he  met  you  at  Jonathan's  ooffee' 
house  according  to  that  letter  ? 

Blair.  Yes,  my  lord. 

L.  C.  J.  What  was  done  there,  when  yoa 
met  ? — Blair.   Nothing  but  the  order. 

L.  C.  J.  Who  did  he  give  the  order  to? 

Blair.    He  gave  the  order  to  Harrison. 

X.  C.  J.    Why,  was  Harrison  there  ? 

Blair.  Yes,  he  came  there  before  I  came 
away. 

L.  C.  J.  But  you  say  he  gave  the  order  to 
Harrison  f-^Blatr.  Yes,  my  lord. 

L.  C.  J.  What  was  the  order  for? 

Blair.    It  was  to  pay  me  that  money. 

L.  C.  J.    What  money  was  that  ? 

Blair.    It  was  the  last  20/. 

Alt.  Gen.  Was  the  20/.  paid  you  after- 
wards f-^Blair.  Yes,  Sir. 

Att.Gen.    Who  paid  it? 

Blair.  Mr.  Piggolt ;  he  paid  me  the  last  5/. 
of  it  before  sir  Jonn  Freind's  fiice. 

L.  C.  J.  Was  this  the  first  20/.  or  the  last, 
do  you  say  ? — Blair.  It  was  the  last. 

JL.  C.  J.   What  was  this  money  paid  for? 

Blair.  I  believe  it  was  to  support  me  to  go 
about  the  business  of  the  regiment. 

L.  C.  J.  You  believe ;  that's  not  enough : 
but  are  you  sure  it  was  so  ? 

Blair.   Yes,  I  am  sure  it  was  for  that. 

L.  C.  J.  Had  you  ever  demanded  money  of 
him  before? — Blair.  Yes,  I  had. 

L.  C.  J.  For  what  was  that  money  that  you 
demanded  ?  > 

Blair.  It  was  to  drink  with  the  men  that 
were  brought  in ;  to  cherish,  and  keep  then 
together. 

-  L.  C.  J.   To  what  purpose  were  those  men 
kept  together  ? 

Blair.  They  were  for  his  regiment. 

Sol.'  Gen.  Pray,  had  sir  John|Freind  any  oc- 
casion to  pay  you  any  money  upon  any  other 
accoufnt? 

Blair.    No,  Sir,  not  out  of  that  100/. 

Mr.  Cowper.  You  d(»  not  understand  the 
question.  Had  you  any  dealings  with  sir  John 
Freind,  but  al>oui  this  matter  concerning  the 
regiment?— B/air.    No,  never  in  all  my  life. 

Att.  Gen.  Well,  sir,  do  you  remember  your 
meeting  with  sir  John  Fremd  when  one  llid- 
ley  was  there  ? 

Blair.   Yes,  it  was  at  the  chop-hou^. 

Att.  Gen.  Give  an  account  what  passed 
there. 

Blair.  Mr.  Uidley  said,  a^ gentleman  waa 
lately  gone  over  to  France,  about  ten  days  be- 
fore ;  and  Mr.  Ridley  said,  he  was  a  very  sen- 
sible gentleman,  a  Roman  Catholic,  an  ancient 
man,  about  threescore  years  of  age,  what  he 
was,  I  can't  tell :  he  said,  he  believed  he  should 
bring  the  last  orders. 

Att.Gen.   What  did  sir  Joho  Freind  say  f 


m 


8  WILLIAM  m. 


Blair,  Sir  Jobti  Freind  said,  He  ktiew  nf 
it ;  but  he  named  do  more, 

SoL  Gen,  Wliat  was  the  effect  of  those  or* 
ders,  as  yan  uQtlerfitood  f 

Blair,    1  cAunoi  tell  that.  Sir,  indeed. 

SoL  Gtn.    Did  you  know  Mr.  Cbiirnock  ? 

Blair,    Yes,  t  did, 

SoL  Gen.  What  do  you  know  af  hii  going 
to  France  ? 

Blair.  I  met  Slim  iipou  the  Exchange  the 
last  summer^  and  I  told  hvm,  1  ex]>t:*€tcit  not  to 
have  ieen  htm  here  at  Ihat  time,  1  thought  he 
liad  been  abroad ;  he  told  me  be  was  come 
from  France  \  but  who  &ent  him  I  camiot  tell, 
I  do  not  know,  u^n  my  life. 

LSoL  Gen.    Pray  what  has  sir  John  Freind 
said  to  yoa  about  Fergusou?   Whether  was 
not  he  to  hare  been  an  otBcer  in  his  t^gimeiit .'' 
Blmr,    No;    but  sir  John   Freind  said,  he 
wonid  jiiin;   and  Mr  Ferguson  himself  has 
told  me  so. 
Ati.  Gen,    When  did  he  ttU  you  so  ? 
Blair,    A  gOiwl  while  ago. 
.    Alt,  Gen^    How  long  ago  ? 


I 


Blair,   Two  years  ago,  and  ahoye. 


Sot,  Gen.  Did  i>ir  John  Freind  tell  you  any 
thing  about  Ferguson,  that  tie  would  bring  in 
any  men? 

Blair.  Yes,  he  said  he  would  bring  in  a  great 
many. 

Att,  Gen,  Will  the  priioner  ask  him  any 
i^uestions  ? 

L.  C.  J.  Sir  John  Freind,  wiU  you  ask  this 
witness  any  4|uealions  ? 

Freind,  Yes,  m_y  lord,  I  shall  by  and  bye, 
if  Ihey  have  done  with  him, 

L,  C.  J,    Yes,  they  have  done  with  him. 

(Then  he  {^i  a  used,  and  [lerused  his  Papers.) 

Freind,  Fust,  a?*  to  the  commission  yon 
charge  me  witti,  that  I  should  receive  a  com- 
mission from  kiug  James  ;  1  desire  to  know, 
whetlier  it  was  signed,  or  sealed,  and  %vhat  dale 
ilwtsf 

Blair.  I  cannot  tell  the  datei  indeed,  sir 
John ;  for  I  neirer  thought  to  come  here  upon 
gueii  an  account  as  this ;  but  1  think  it  was  in 
paper,  signed  above  *  James  Rex,'  and  below, 
*  By  his  Slajesty^s  Command,  Melford  ^^  and  a 
littfe  seal  upou  the  margin. 

Freind.  This  is  the  hardest  thmg  b  the 
world  upon  a  man ;  here  you  have  ctiarged 
ine  with  money  to  subsist  and  encourage  sol- 
diers,—B/ajr.  Yes,  Sir. 

Freind.  I  would  only  say  thii  :  you  were 
recommended  to  me  for  a  very  honest  man, 
and  you  bare  come  to  me  several  times,  and 
told  me,  Sir,  my  necessities  are  very  great,  I 
am  ready  to  starve,  1  have  a  gr^^t  charge ;  ihr 
God^a  sake,  will  you  be  pleased  to  hestow 
something  upon  me,  to  relieve  my  necessities  ? 
It's  true,  I  have  given  you  money  several 
limes,  but  I  never  gave  it  for  any  other  use 
but  charity  \  God  knows  my  heart.  1  dcMre 
you  to  consider  with  yourself,  and  aoswer  it. 
There  is  a  God  above,  where  you  must  ^ive  an 
«ccouDt  fts  well  aa  I,  and  i  hope  you  wdl  con- 


are 


Trial  of  Sir  Jahn  Freind, 

sider  of  it.     Pray  declare  the  trutli,  V 
you  have  not  writ  those  lines  to  roe 
times,  that  you  were  ready  to  starve, 
ged  of  me  to  relieve  your  nec<^ftities? 

Blair.  I  bare  so,  Sir,  I  acknowledge 

Freind,     Pray  take  me  right,  and 
that  money  1  g^ave  you,  only  upon  pure 

Blair,  Yes,  you  did  give  me  charity,  b 
had  expended  m)  much  nvmey  in  your  b 
ne^,  that  reduced  me  to  that,  God  korms 
heart.  I  have  laid  out  many  a  pound  upon 
affair. 

Freind,    It  is  the  hardest  thing  in  the 
lb  in  is  a  floman  Catholic  too. 

Blair,    I  am  sure  it  cost  me  many  a 
more  than  ever  I  had  of  you, 

Freind.     You  say  you  listed  a  great 
nieo,  who  were  ihe  men.?    What 
ttames  i*  Who  were  they  for  ? 

Bhir,  I  have  given  a  list  of  them  to 
council. 

Fraud,  Who  are  they?  for  God  knows, 
know  nothing  of  them. 

L,  C.  X  You  have  a  list  Uicre,  let  it  be  | 
duced. 

Blair.  I  gave  it  to  the  council ;  :uid, 
John,  I  brought  in  several  otHcers  to  you. 

Att,  Gen.  Remember,  and  name  asm 
as  you  can. 

Blair.    I  have  named  the  oS^fjers  alreadj^ 

Ati*  Gen .    Na me  th em  again . 

Blair,  Did  not  1  bring  captain  Fisher 
you  ?  and  did  not  yon  promise  to  make  hi 
your  eldest  captain  r 

Freind.    No,  you  never  did. 

L.  C.  J.  These  are  questions  of  pur  o^ 
asking,  so  you  must  hear  him. 

Bltur,  I  brought  captain  Fisher  to  ymx,  i 
accordingly  we  dined  at  captain  Simons*s  ;  i 
tliere  was  captain  Ridley^  Mr.  Richardson,! 
Mr,  Fisher  and  you  talked  together,  and 
listened  to  him,  and  in  my  own  hearing  yi 
promised  he  should  be  eldest  captain,  u, 
condition  that  he  would  bring  in  a  troop ;  i 
til  is  is  true,  so  help  me  God. 

Freind^  K^rayi  where  are  your  men?  \ 
what  are  your  men  that  you  listed  ? 

Blair,  1  never  spoke  of  listing,  1  only  spo| 
of  encouraging. 

Freind,  Did  not  you  say  you  bad  listed 
great  many  men  for  to  he  of  my  regiment  f 

Blair.    No,  8ir,  I  did  not. 

All.  Gen.  I  think  you  do  mistake,  sir  Jobi 
he  did  not  aay  list. 

Blair^  I  had  money  from  you  upon  the  a 
count  of  encourag^g,  and  treating,  and  drini 
Lng  with  a  great  many  of  the  men :  and  y 
said  it  tvas  im possible  to  keep  them  togethc 
but  that  I  must  have  money  to  treat  them, 
drink  with  them  ;  hut  you  desired  me  to  be  i 
good  a  huslvand  as  I  could. 

Fr€i7id.  I  never  said  so  ^  these  are  very  hai 
tilings  upon  me. 

Blair.  Did  not  I  bring  captain  Cole  as 
captain  Ncale  to  you,  and  his  brother* in  la' 
Mr.  Robinson,  aiKl  Mr*  Gellibrand  ?  and  dj 
not  we  dine  together? 


High  Treainn, 
I  loMff  Dvllimg  of  atl  l!us»  1  ileclare 

mm- 
L  C  /.   If  joo  woit)<)  ask  bim  any  mortt 

AUr.  I  Imitiglit  tlii99e  tliree  gentlemfni  anil 

I.  '  'fut  diii  you  dine  llien  ? 

^        .     ;  Ucktiey,  uljeu  sir  Jobn  lived 
k«i^«  W  0^11  fiiMise. 
l^mi,   WHm  was  it  ? 
Ibp.    I  a  year  iiffo.     Pray,  sir 

kli^  4m  I  II  dteli  roe  out  of  coiinte- 

nK;J^tvgh  1  am  vrry  ill  ;  1  fi^iuk  notUiti^ 
[iHlliplnitJi,  Mill  Ihtrdurt*  t  viilt  not  bt^  ihixltt^d 
III CBUBleiMfvrr.      Yuit  kuow  tt hat  I  »iay  tn 
r;  ywn   ib^n  dmtik  a  ip^tass  of  i^ine  to 
»  C«l9:  Mtd  cSifl  not  you  promisi!  him, 
elc  ii«8  ofi«»  af  your  mothers  name, 
|taW«b<«lil  h^**^'  *  T'''«*'e  in  Uie  Excise  next 
itf  flic  oociii  .;'  ^i.iys  I,  sir  John, 

kitvil  yim  j;«    -  ,.  <i,  suys  be,  you  shsUl 

biKlWr^pukenL,  tnon.   Tliifi  was  belore  Hi>- 
|jMi>b«  vMMher-LU-htw,  and  Mr.  Ck'llibrand. 
[C  J,     Who  wA^  to  have  the  place  m  the 
?^Bh»r.   Captain  *Jole» 

I  koow  not  o  won!  uf  all  thiit. 
,  ftoAr^lny.    Cuptain  Btair,  be  not  itash^d, 
'fctlie  titsth«  and  yt)vi  need  fear  nothing. 
TImil,  I  ^Vt  was  before  Air.  Robin- 
I  Mr- G^^nibrand. 

1  donU  know  Gellibrand,  nor  none 

L  C  A   Was  that  Cole  ta  be  aor  thiiii^  in 

Bl^.   Y<«T  be  wai  to  hate  been  a  captain, 
■italria^ba  tmop. 
iit,Oi^    Hir  Jolin,  will  yoti  ask  him  any 


Sa^  I  miint  de|iend  ui>on  the  jnry, 
K  rvmcmher  hall'  what  he  has  said . 
tCt^  Do  vfiu  remember  any  discouHNe 
^9^9»fim  aa«l  him^  about  ^ome  brisk  uieu 
ivamaMf^ltow  him? 
^  C/  Ent  before  yoy  ask  him,  Mr.  8oli- 
•«  uuiM  knowr  whither  he  will  ask  him 
k  ^  •■nr  4|iiff^»oiif!,  fur  lie  is  nov/  his  nititess. 
1  fc  t»a  idk  bifii  any  more  f|uc*lioriN,  sir  John  ? 
I  can  aak  al»out  no  more  thun  whtU 


A.  D.  1696. 


[30 


L<LJ^    B«t  aak  him  what  you  will 
fmmL  Hy  kinl,  I  have  nul  heard  halt'whul 
W  Ut  Mid,  1  Im^  llie  jury  will  take  care  in  it, 
^  C  i.   Some  part  of  it  h  as  twice  repeated 


^K- 


Aa  III  lUal,  tnv  lord,  1  vvould  ask 
tAtm  or  two.    \Va«  that  my  letter  ? 

Y«,  it  wag. 

M  «e«  me  write  it  ? 
I  if  to  my  hands  by  a  porter, 
[•1^  •   I  waa  in  bed;  my  wife 

,    11  liAt  waa  llial  l«tter  for  ? 

to  lifda'  In  pay  tlie  last  UOl.  and  I 
a  raimii  nl*  a  lisHer  Ihat  you  writ  to 

vwl  y^  that  letter  to 


Blnir,    He  sihewed  it  me  himself, 

h.  C.  J,    ilow  jonff  affo  is  that  ? 

li^flrr.  A  yejif  und  a  halt  ajjo,  as  near  as  I 
can  remember, 

L,  C.  J,  Did  be  say  any  things  of  an  answer 
he  liad  to  it  ? 

Bimr.  Yes;  hot  I  cannot  remember  what  it 
was  directly, 

Jttrytnan.  ITe  %vas  pleased  to  say,  he  saw  a 
letter  from  king'  Jumet;* 

L.  C.  J.  Woj  no,  yir,  it  was  a  letter  to  kin^ 
James. 

Jitryjnun.  My  lord,  I  desire  ho  may  ba 
askeil,  if  he  kirnus  the  contents  of  thiit  letter  f 

L.  C.  J*  Did  you  see  htm  write  the  lettiTi 
or  did  he  shew  you  the  letter  he  hnd  writ  ? 

IMitir,  I  did  not  see  him  write  the  letter,  I 
seeliin  hand  to  the  letter,  and  he  shewed  me 
the  letter,  that  he  said  he  had  written  to  king 
Jamcfl  ;  and  tli^re  is  this  parti cu hi r  passage  to 
confirm  it,  it  was  at  Mr.  Piggoit*«  mother^ 
liouse;  I  dined  with  him  there  that  day,  and 
when  he  shiaied  me  the  letter,  f  told  him  I 
was  BO  well  fdeased  with  tlie  perming  it,  that  1 
believed  Mr.  Fcrgusou  had  a  hand  in  it;  and 
be  was  ^ary  angry,  that  1  should  think  he  was 
no  I  able  to  write,*  and  did  not  write  the  letter 
himself. 

Jnfynmn.  My  lord,  since  it  seems  he  perused 
the  letter,  I  d^ire  he  may  be  asked,  whether 
he  can  remember  the  contents  of  that  letter^  or 
ajny  of  it? 

Biair.  Really,  my  lord,  1  cannot  tell  that 
particularly:  but  I  am  a]>t  to  think  it  was 
about  the  husiuess  of  the  king,  and  about  the 
regiment. 

L*  C.  /,  Can  you  teU  truly  any  of  the  con- 
tents of  it.' 

Biair.  That  it  was  about  the  aiFairs  of  tha 
regiment,  I  am  piKHitiv^. 

IHr.  Cowper,  My  lonl,  before  he  goes  away 
(that  the  jury  may  nut  go  iiway  with  a  mis* 
take),  I  desire  it  may  he  observed^  he  does  not 
say*  h«  saw  sir  John  Freind  write  the  letter. 

*/..  C.  J.  No,  no,  but  that  he  shewed  it  bim 
himself 

Frcind,  When  was  that  letter  writ  that  I 
lihewed  lo  you  ^f 

Blatr.  It  \vn&  akiut  a  year  and  a  half  ago. 

Frdnd,  1  declare  in  tlie  presence  of  God,  L 
never  writ  one. 

Jtfrymftn,  He  says  you  shewed  him  the  let- 
ter»  therefore  it  is  very  fit  we  should  see  it. 

L.  C.  J.  Nay,  Sir,  you  must  not  talk  to  tha 
pri^ioner;  if  you  have  any  questions  to  ask» 
you  must  propose  them  to\he  court. 

Freind.  I  declare  in  the  presence  of  God,  I 
never  writ  any  such  letter  as  this  he  now 
charges  me  with. 

Biair,  And  I  do  declare  in  the  presence  of 
God,  you  shewed  me  such  a  letter. 

Frcind.  Yes,  you  may  ;  but  i  am  a  Pro- 
testant, you  ^re  a  Papibt ;  you  may  do  any 
thing*. 

Ait,  Gen*  \ci\  may  ask  any  questions  of 
bim,  sir  John,  but  you  mutt  not  raii  st  the 
witness. 


31] 


8  WILLIAM  in. 


Trial  ^  Sir  John  Freind, 


P 


Freind,  But  when  yoa  chargfe  me  with  the 
writing  of  a  letter  to  king  James,  1  ought  to 
speak  to  it.  It  seems,  J  am  out  to  ask  whether 
he  is  a  Papist. 

Att,  Gen.  He  says,  yon  shewed  him  a  let- 
ter, that  you  said  you  had  written  to  kiug 
James,  which  lie  read,  and  hked  the  penning 
of  it  80  well,  thut  he  thought  Ferguson  had  a 
hand  in  it ;  at  which  you  were  onended,  that 
be  should  think  you  could  not  write  such  a  let- 
ter vourself. 

freind,  I  declare  in  the  presence  of  God, 
I  never  writ  any  such  letter. 

Att.  Gen.  1  sup|M)se  you'll  disprove  him  by 
and  hye. 

Freind.  I  can  have  no  witnesses  to  this 
matter. 

Att.  Gen.  And  you  can't  expect  your  own 
denial  should  go  lor  proof.  If  you  will  ask 
him  no  more  questions,  let  him  go  down  and 
ease  himself. 

Freind.  He  must  not  be  asked  whether  he 
is  a  Papist ;  but  I  hope  you  will  take  notice, 
countrymen,  that  these  witnesses  are  Papists, 
and  they  think  they  merit  Heaven  by  swearing 
■gainst  Protestants,  whom  they  call  Heretics. 

L.  C.  J.  Indeed,  sir  John,  1  don't  bear  you : 
pray  speak  so  loud  that  the  court  may  hear 
what  you  say. 

Freind,  I  will,  my  lord ;  I  say  he|is  a  Ro- 
man Catholic,  and  I  have  witnesses  to  swear 
be  is  80 ;  and  desire  I  may  prove  that  he  is  a 
Roman  Catholic,  and  therefore  be  is  not  to  be 
beard  against  a  l^x>testant. 

AU.  Gen.  Then  the  next  witness  we  call  is 
Mr.  Bertbam.    [Who  was  sworn.] 

Freind.  But  I  have  not  done  with  Mr. 
Porter. 

L.  C.  J.  Well,  you  shall  have  him  by  and 
bve ;  let  the  king's  counsel  go  on  in  their  me- 
thod. 

Att.  Gen.  Pray,  Mr.  Bertbam,  do  you  know 
captain  Blair  that  was  here  just  now  ? 

Bertham.    Yes. 

Alt.  Gen.  How  long  have  you  known  him  ? 

Arthain.    About  eight  or  nine  years. 

Att.  Gen.  What  discourse  have  you  had 
with  him  about  any  regiment  that  was  to  be 
raised  for  the  late  king  James? 

Bertham.  Captain  Blair  had  (old  me  for  two 
years  last  pa^t,  that  sir  John  Freind  was  to  have 
a  regiment  of  horse,  thai  were  to  be  raised,  anti 
lie  posted  about  the  town ;  and  captain  Blair 
was  to  be  lieutenant-colonel  to  the  re(i^iment, 
and  I  was  to  be  lieutenant  to  captain  Blair  in 
bis  troop. 

Att.  Gen.  My  lord,  we  only  call  him  to  con- 
firm what  captain  Blair  has  said,  that  he  was 
to  be  his  lieutrnaiit,  and  that  this  was  talked  of 
two  years  before.  DitI  he  toll  you  sir  John 
Freind  was  to  have  a  re^jriment  of  horse? 

Bertham.  Yes,  SSir,  und  he  obliged  me  to 
bring  in  as  ninny  men  and  horses  as  1  could 
into  this  regimeiit,  and  he  tohl  me  capt.  Fisher, 
captain  Vertiatti,  and  captain  Cole  were  to  be 
ctptftins  in  the  revriipent 

It.  C.J*  And  what  were  you  to  be? 


Bertham.    A  lieutenant. 

L.  tj.  J.   To  whoiii?. 

Bertham.  To  captain  Blair ;  he  has  told  B 
so  several  times,  and  talked  to  me  about  lb 
alfairs  of  the  retfiment  a  great  deal,  that  I  cm 
nut  now  remember,  relating  to  that  purpoae. 

L.  C.  J.  This  is  no  evidence  against  sir  Johi 
Freind :  he  is  only  called  to  confirm  the  tMli 
mony  of  captain  ll^lair;  that  Blair  spoke  if  i 
long  before  he  gave  his  evidence,  and  iokl 
not  a  new  thing  now  invented  by  him. 

Sol.  Gen.  Sir  John  Freind  did  ask  what  m 
he  had  engaged,  and  among  others,  he  ntMi 
this  Mr.  Bertham  to  be  his  own  lieutenant,  m 
he  now  tells  you  Blair  promised  him  80  to  I 
two  years  ago,  and  tnen  told  him  air  J«h 
Freind  \vas  to  have  a  regiment 

Freind.  Do  yoa  know  me,  Sir  ? 

Bertham.  No,  l%r»  I  never  was  in  yii 
company  in  my  life;  f  only  .tell  you  wImI 
have  heard  fnim  caput  in  Blair ;  I  do  not  hm 
that  ever  I  saw  your  face. 

L.  C.  J.  His  evidence,  sir  John  Fraki 
hurts  you  not,  as  to  any  particular  thing  III 
he  knows  against  you ;  he  is  only  brought  1 
confirm  what  captain  Blair  said,  that  be  wial 
be  his  lieutenant  in  his  troop. 

Att.  Gen.  Then,  my  lord,  we  leave  it  hflm 

L.  C.  J.  Look  ye,  sir  John  Freind,  the  kMV 
counsel  have  done,  and  now  you  mmy  tp«i 
and  say  what  you  have  a  mmd  to  say  in  jm 
own  defence. 

Just.  Rokeby.  And  call  what  witnetMt  j« 
have  a  mind  to  call. 

Freind,  My  lord,  in  the  first  place,  1 4mm 
to  know  whether  Mr.  Courtney  is  come. 

L.  C.  J.  Your  solicitor  can  best  tell  thili. 

Freind.  I  perceive  he  is  not  come. 

X.  C.  J.  Well,  go  on :  I  suppose  be  will « 
be  long  before  he  comes,  we  wUl  stay  for  bin 

Freind.  My  lord,  1  must  wait  for  my  wi 
ness :  but  in  the  mean  time,  as  to  Mr.  Pomr 
evidence,  I  own  I  was  at  the  meeting  «t  tl 
King's-Head  in  Leadenhall-street ;  I  dedn 
1  was  at  that  place,  and  there  were  some  gm 
tlemen  there,  out  how  many  or  whom  I  cum 
say;  but  1  declare  there  was  not  one  w« 
spoken  there  of  any  raising  of  men,  nor  ll 
thing  of  that  nature,  that  he  speaks  of,  h 
only  we  were  drinking  a  glass  of  wine,  M 
eating  a  dish  of  meai  together,  and  sir  Jol 
Fen  wick  at  that  time  coming  in,  said  to  os, 
desire  you  to  come  to  our  end  of  the  town,  M 
take  a  dish  of  meat  with  us.  And  there  w" 
nothing  spoke  of  any  thing  relating  to  the  f 
vernment.  Gentlemen,  these  are  Papists,  tJ 
I  am  a  Protestant,  they  don't  care  what  tin 
say,  for  they  think  they  merit  Heaven  by  M 
fitroying  Protestants ;  and  they  are  not  to 
believed  :  and  that  is  the  reason  that  I  was  B 
to  ask  them  the  question,  liur  by  law  tbey  ■ 
not  witnesses,  and  for  that  1  appeal  to  jm 
lordship. 

L.  C.  J.  Hoit^  Why  are  ihey  not  witnesM 

Freind.    Nay,  1  appeal  to  your  lordship.  » 

L.  C.  J.  Bolt.  Truly  I  think  they  ara  III 
nesses,  i  know  nothing  to  the  oontrvy. 


frfmtt  Mt  lord,  Paf  i^l»  art-  not  :;ood  wit- 
pas  ic^tiutl  Frni.>i.nit<  foi'  tUi^  reason  tU'it 
1  Ml  idt  jmi ;  ly  tord,  tbat  a 

"*      ,  i%  i>  t   a  u)  jirove  a  Pro- 

^  5t>  ? 

Mj  Uiril,  J  ilt^ire  to  know  wbetUer 
cb  «  suiiiir  ? 

HW/.      V«-  no  doubt  *>f  it,  there  is 
t  &»  aiaiof  liic  25  ofEfL  3,  about 

Prmjr,  my  lord,  does  nul  tbat  make 

fed.  IZilf.    N(N  ioilccd,  I  know  no  fucb 

si  <j».   Thnt  cannot  be,  my  lord,  ihat  any 
mki^mif  ^oiiUI  Im?»  for  alt  were  Papists  tlien* 
m  no  »ucli  a  tbio^f  si  a  Protestatit  in 
pi^E*!.  S. 

My  l**ni,  tbere  k  tl»e  statute  of  the 

li-s  ibe  t«t.  cat?.  4tb,  autl  other  sta* 

in   llie   time  ni   kinor  riiarles  the 

ibHy  »n  th«'  3ui!i  yi'jir  nfiiis  reiyn, 

V    it  is  |»biu  they  ure  tiot  to  be 

ii««tnrtt«,  ♦t^cnico  they  bdieve 

;  anil  by  liiose 

tftttite-book,  I 

irijiiiir.j  I   iM,   tui*(  advUe  was 
r  bf  my  Sawyer ;  Jam  an  lawyer  my* 

...  .iti.i.. -J   ^  '  Mue«  J,  cap»  4, 


u  . 


tjuak  shall  be 


5Tv  t*«rt1.  the  person  is  not  rome. 
I-  Sjfaiubt  cai'tum  l^lair; 
l>e  h  a  prisuucr  at  the 
^<ai|j  was  pleaded  to 
.  c  nil  Uecatnc. 
,  \4^,  yes,  ^«^  ttill  ^tay  a  while* 
El  ^tr»y^  my  Ion!,  <lo,  foe  it  will  he 
^,         '  '  '  I'fur. 

1-  I Ittfe  yon  any  thing:  to  till 

i         '      neao  Ume?    |,Tbeu 

la  ytnti  au..^.iur  returned  ^illi  this 

1^   1  Wicf  ^"-  «-  •"  *^»»*  ^l"iT«r  tKf  r-ouft, 
IfM  s    to 

«  you  would  haF«? 

>  1  y  lo  bin)  ? 
.  .  uifu  Mi^  i|uev* 

Yf«,  yon  mtisi  propoiw'  yoiir  (|ur«- 

-"irt,  and   they  witl  aak  them  ot* 

Ir  lUts  be  the  |ier»on  you  apeak 

WIMM  '  -  '    'Mm. 

Mi,  '  I  deaire  you  would 

ijitiiio  Ulair, 

I  liHve  I  wen  a  pri- 

.u.  ;^„i,.M  >»-^   .iiiout  a  uioiiih,  and 

na  lW«  r#|itJiiu  Blair  at  the  same 

ia  M  a  iifriflDOSTt  as  tnentioned  in  tlie 

m;  kdjg  ray  cild  ac^uaiiitaoct,  (t 


was  in  bed,  b<?iug:  in  upon  soiue  other  accounts) 
and  IV hen  they  tuld  mti  Ciiptjiin  Blair  was 
brought  ill,  I  d^'sivetl  him  to  come  into  my 
eh u] fiber,  I  told  him  1  wixa  sorry  lo  see  liim 
tl>ere  ;  I  told  him  i  Imped  hc!  was  node  ol'thoi^e 
coneeru<.'d  in  this  phii ;  Ite  f^aid  ha  y^aa  In  the 
Proclamation,  but  that  he  was  itmocent,  and 
knew  uothiug  of  the  |ili3t,  nor  of  the  assaiisi- 
natioU)  nur  any  thing  like  it;  there  were  se- 
veral other  persons  m  thut  place  at  the  same 
time«  and  he  said  he  was  as  innocent  as  the 
chilli  uoboro, 

Freind,  Did  he  menlloQ  any  thing  of  me 
then  ? 

Courineif*  i^t  that  time  he  said  nothing  of 
yon. 

Frdnd,  Pray,  Sir,  do  you  believe  he  is  a 
Roman  Catholic  f 

C\>urinc\/.  \  do  not  know  his  religion  indeed. 

Frcind.  But  doo^t  you  know  him  to  be  a 
Uoitian  Catholic  ? 

Courlmy.  lie  bore  the  character  of  otte, 
but  I  nevcj  saw  him  at  any  church, 

Ju:it.  Rokcby,  Pray,  Sir",  how  bag  liave  you 
known  captain  Blair  ? 

Cifurinty.  By  sij^hl,  I  bare  known  him  six 
or  sevtfn  years. 

Just,  lioki'bjf'  Ptayt  upon  what  accoout  did 
youctill  hint  euplaiu  ? 

Cou}  tnrt/,  l\  vvaH  a  common  name  among  all 
the  cc?mj>aiiv  :  he  was  called  so. 

Ji*  C  J*    Wha(,  all  the  liuic  you  knew  himf 

CouTtrm/,  \Vh,  all  lifetime  that  I  knew  hini» 
1  knt  1%  uo  uthcj  name  that  he  had. 

l^'reind.  But  did  yon  not  liear  that  he  waa 
rejtuied  to  be  a  Roman  CaUnkheF 

Courtney,  i  have  heani  that  character  of 
htm  amunf^  tho^e  that  1  have  known,  but  X 
ha?e  very  little  knowledge  of  his  reltirioti. 

L,  C.  /.    Is  ibi'*  what  you  can  say  ? 

CouHnct/,  There  are  several  uthers  that 
were  witnetisefl  of  thisi  as  wlH  as  1 ;  1  neiiir 
saw  you^  sir  John  Freind,  br-fore  in  my  Idc,  lo 
tny  knowle«Jg:e,  nor  ever  spoke  to  you. 

Freind,    Sir,  a  note  vv.  ■     ue,  thatyou 

could  4o  mesomeservi'  .4   ^va*  tlie 

reason  1  st;nt  for  y oil  1  u.^  i:  ,Wt.  I'jnj>euter, 
Mr.  King,  and  .^fr.  Payne  may  he  called. 

X»  C,  J.  iJavc  you  done  with  this  man  then? 

Freind,  I)u  yuu  kuuw  captain  Porter,  Bir  f 

Cuui-hir,f,    Yes,  1  do.  Sir, 

i  ,  do  you  know  him  to  be  a  Ro- 

man    I 

Lour i net/.  Sir,  I  ha? a  heard  that  be  hai 
wiii'b  a  chanictcr. 

LC.J,    \\''  h^nhe? 

Courtnftf,  J iisao  Catholic. 

Lt.  C*J,    Thalii  ouly  L^  Inar-say. 

Frdn^d^  My  lord^  I  hate  done  with  this  toaii* 

L.CJ.    Myon  fi         '  J  hmi,  iben 

the  Icei'per  nia)'  at-  in, 

Courinei/,  8ir,  1  i»;i»f  sui.k  uni-;  else  In  say. 

Fraud,  My  lord,  he  sa^s  he  has  something 
else  to  sav* 

L.  C.  J,  Then  set  him  up  a^atn :  (trhich 
was  done.)  Well,  HiT^  what  is  it  you  hare 
mofe  to  say  f 


353 


8  WBLUAM  IlL 


Courtney.  Two  or  three  days  after  that 
time,  there  was  a  prisoner  then  io  the  Gate- 
house, who  was  ao  ensign  in  the  army,  was 
rcadintrthe  Flying- Post  in  my  chamber,  and 
in  that  Fly in<;- Post,  there  wa&  news  that  dpi, 
Blair  was  making  a  ^eat  discoFery,  and  that 
he  had  accused  sir  Jolm  Freind,  for  havinpf 
I'eoeived  a  commission  for  a  regiment  in  which 
he  waM  to  be  a  lieutenant-eotonel,  and  said  a 
great  deal  abont  that  regiment,  how  he. had  re- 
ceired  subsistence  money  for  them  from  sir 
John  Freind.  A  little  aftei;  captain  Blair  came 
into  the  room,  and  asked  me  if  I  had  got  the 
news  ?  I  told  him  yes ;  and  cajitain  Blair  then 
asked  what  was  the  import  of  it  ?  I  told  him  it 
was  there,  that  he  was  making  a  great  dis- 
coTery,  and  particularly,  that  ne  was  to  he 
lieutenant-coloneito  sir  John  Freind,  and  had 
received  subsistence  money  from  sir  J.  Freind 
for  the  men  of  the  regiment.  Captain  Blair 
answered,  that  they  might  put  what  they 
would  in  the  news,  but  he  knew  nothing  of  it, 
nor  flid  he  receive  any  money :  amd  this  was 
a  great  surprize  upon  me,  and  upon  those 
others  that  heard  him,  when  we  were  told  he 
was  to  be  the  main  evidence  against  sur  John 
Freind. 

Freind,  Well,  Sir,  do  you  know  any  thing 
else? 

Courtney.  Captain  Blair  was  bemoaning 
himself  afterwards,  that  he  went  against  hn 
oonsrience  in  this  thing ;  and  his  wire  told  me, 
that  he  was  very  much  concerned,  becanse  he 
was  fl^oiiig  to  do  this  against  his  consrience, 
and  she  was  sure  it  would  break  his  heart 

Freind.    Du  you  know  any  thing  more  ? 

Courtney.  And  he  told  me  in  bis  chamber 
vpoD  Friday  night  last,  about  Dioe  o'clock  I 
came  to  see  hira,  he  lay  upon  his  bed  Tory  ill, 
mod  his  wife  was  with  Aim  ;  1  asked  him  how 
he  did  ?  and  he  chipped  his  hands,  and  sakl  be 
was  very  ill.  Pray,  said  I,  what  ails  you? 
i^ure  you  have  gotten  some  very  ffreat  cold. 
Oh !  no,  says  he,  life  is  sweet,  I  don't  know 
what  it  n  I  ail,  but  were  it  not  for  liiei  I  should 
never  do  what  1  do. 

JL  C.  J.  Did  he  tell  yon,  he  went  against 
'his  conscience  ? 

Courtney,  His  wife  and  he  spoke  at  first, 
that  he  went  against  his  conscience,  and  he 
believed  his  conscience  was  in  a  miserable 
•itate ;  and  this  1  spoke  innocently  among  some 
of  the  prisoners,  and  I  did  not  know  that  it  was 
taken  notice  of,  but  it  seems  somdMxiy  baa  ac- 
ijuaintcd  sir  John  Freind,  and  so  I  am  brought 
here ;  I  know  nothing  of  being  a  witness,  I 
assure  you. 

Just.  Rokeby.  Pray,  who  were  present  when 
this  discourse  was  between  you  and  Blair? 
You  say  there  were  two  other  persons  present 
when  thill  discourse  was  between  you  and  cap- 
tain Blair,  and  his  wife :  who  were  thoaa  two 
persons? 

Courtney,  What  discourse  do  yoa  apeak  of, 
my  lord? 

X.  C.  J.    You  said  then  wm  two 
te  your  chamber. 


Triai  of  Sir  John  Freind, 

Courtney.  Does  your  lordship  meai 
reading  of  the  Flying- Post? 

L.C.J.  Yes. 

Courtney.  My  lord,  this  genttemao 
was  speaking  of,  was  lying  down  u 
bed,  and  captain  Blair  came  into  m^ 
just  after  the  news  was  read,  and  ask€ 
I  had  got  the  news  ?  I  told  him,  yes ;  I 
me  what  was  the  import  of  it?  I  t( 
they  said  he  was  making  a  great  dii 
and  particularly  against  sir  John  Frein 

L.  C.  J.   Well,  and  who  were  there 

Courtney.  This  ensign  that  is  noi 
soner  in  the  Gratehonse,  who,  I  supp 
say  the  same  thing. 

Alt.  Gen,  Pray,  my  lord,  let  Mr.  ] 
called  while  he  is  here,  and  let  him  kn< 
this  witness  says,  that  the  Court  and  Ji 
know  what  he  has  to  say  to  it. 

L.C.J.  Yes,  pray  let  Mr.  Blair  he 
in  again.   (Which  was  done.) 

L.  C.  J.  Trcby.   Now,  let  M^  Cour 

Siat  what  he  said  now  before  about 
kiir's  declarations  to  him. 

Courtney.  My  lord,  1  tell  your  1 
there  was  one  Tooley  a  prisoner  in  tl 
house,  when  he  heard  the  Flyinsr-Po 
bought  it,  or  it  was  ordered  to  be  boug 
it  being  brought  into  my  chamber,  1 
him  to  read  it,  and  I  was  walking  al 
room :  in  the  mean  time  captain  Blair  • 
and  asked  if  we  had  ffot  the  news  ?  ^ 
yes  ;  imd  he  asked  what  news  there  w 
I  replied,  it  is  said  that  you  are  making 
discovery,  that  you  were  to  be  lieutel 
lonel  to  sir  John  Freind,  and  had  re 
great  deal  of  subsistence  money  for  tl 
ment:  says  he,  they  may  put  what  t 
in  their  news,  but  J  know  of  no  reginr 
of  any  subsistence,  nor  of  any  com 
The  man  that  read  the  book  will  say  tl 
that  1  do. 

Att,  Gen,   When  was  this  ? 

Courtney.  This  was  one  day  w 
Flying-Post  came  out,  the  last  Satu 
one  I  think. 

L.  C,  J,  But  you  talked  of  soinet 
should  say  to  you  of  going  against  I 
science. 

Courtney,  That  was  upon  Friday  ni 
I  came  to  see  captain  Blair,  and  his  ' 
with  him,  and  captain  Blair  was  very 
dapping  bis  hands,  and  groaning,  aiid 
himseli^  M>d  in  a  very  miserable  a 
truly«  I  thought  he  was  giving  up  th 
I  asked  him  upon  what  account  he  wa: 
and  toM  him  Ithought  he  had  got  son 
cold:  he  told  me.  No.  Well,  said  I, 
BUir,  I  understand  you  are  Cfoing  to 
to  Hicks's-Hall,  and  I  pray  God  din 
Says  he  several  times,  1  pray  God  i 
all,  life  is  sweet  Oh  1  says  his  wife,  i 
he  would  never  do  it,  but  to  save  his  I 
it  foesagamst  his  conscience :  so  said  ] 
yon  have  had  the  character  of  an  hon 
tlcfflan ;  I  hope  yon  will  shew  yoursi 
wui  I  jgnj  Qi^  w^  jon  s  I  wish  n 


./or  High  Trtasm* 

yoar  door,  Savs  he,  I  am  an 
I  Hkfta  I  titat  b  the  tning  ibut  ti-ou- 
^tWDtfthtng"  tu  ibat  purpose ;  whteb 
like  riiiftorie  of  cunBCieDce  ivhicb 
li»e  fror14.  ]  Apiike  of  tliia  mtio- 
h^  tlie  pmonerH,  aori  it  seems,  it 
Niicatea  to  air  John  FretnO,  and  so 

fl  Iftcrv  to  tp!$tify  it. 
Prav,  ¥rLal  sny  you  to  l1»is,  cap- 
'Voa  bear  whav  he  sav^;  do  you 
Lnni  wtuU  ^ou  Icdaw  of  it. 

You  bear  what  dis<M>ur^  he  sa)  s 
nov  ;  w  bat  say  you  to  ir  ? 
^Hlcml,   this  ^eutlemnn  crowded 
l^b   tne ;  my   wife  m  as  wiiU  mc, 
imis  be  bad  acuri  of  brandy^  whlih 

B for  OK*  ti"  I  had  a  cold.  God 
t,  I  tle^ircd  Docomiiauv  mlglit 
lays  be,  C4i|Uain  BlLur/  I  have 
\  been  ao  boue^t  ^eatlemau  all 
I  yoci  are  going  to  UicKs's-  Hull  (o- 
«l  •  great  deal  of  such  discourse 
I  nray  Ood  Almiapbty  direct  you ! 
t  knrow  paraed.  1  was  very  ill, 
1  Ml  far  from  bdofif  wejl  nof¥; 
tbiog^  of  remoriie  of  conscience, 
.  leerey  atuJ  sahatiou,  1  uerer  ex- 
saeb  tmngtohtm. 
Did  your  wife  say,  th»l  you  were 
%at  you  wear  goia^'to  do  that  which 
Ml  floftacteocef  and  you  would  Dot  do 
pm  y«Ktr  life  T 
N»,  I  aiD  sure  »he  did  not. 
L  THii  ibat  gentleman  thrust  him- 
IMV  oofnpaiiy,  or  did  you  desire  hitn 
|a  CD  you  f 

No,  be  tlirast  himself  into  the  room. 
Tbe  &i(Uc  was  hard  by»  and  I 
Mr  groan,  and  ^o  I  went  in  to 
body  hid  access  to  him. 
where  i*  tb«  keeper  ? 
I  am,  8ir. 
I  beg  of  you  for  God's  sake, 

to  roe  hut  my  wife  ? 
i«  keeper  of  the  Gatehouse 
ly  fweor  him. 

OaldioiiK  was  sworn.) 

lat  do  you  cay  as  to  captain 
I  hat  tiobudy  should  come  to 

was  to  Ci>me  to  bim  uDle$«i 


\e»  ujMin  lino. 

ol*tkat  man*s  com- 

^  nothing  of  it. 

ilvraya  desirrd  to  huve  the  door 

'I"   <nside,  that  tiol^ody 

I)  \  had  a  miuil  to. 

n^-e  he  was  ill,  and 

that  I  know  of. 

with  me  came  to  me 

man  was  with  '  me^ 

hack  ;  ami  she  said, 

dear  Blair,  do  not 

thbf 


A.  D.  1696.  [38 

B&wr.  When  this  gentleman  was  with  me, 
she  desired  me  uot  to  say  any  thing  before  him  ; 
because,  said  she,  1  do  not' know  but  be  may 
be  a  trepan. 

Court  net/.  Upon  the  word  of  an  houest  man,  ^ 
and  my  reputation  is  nn  dear  to  me,  a>i  yonni  i»  i 
to  you,  she  &aid  nuthin^jf  ni  that*     She  itdd  me, 
you  were  going  to  do  thi*t  which  was  at^ain!»t . 
your  cohsf  ience,  aud  you  would  not  do  it  hut 
io  save  yuur  litk 

A(t.  Gen.  Pray  what  is  lhi<i  inau  couMuitted  ' 
for,  you  kee|)er?^A'er/;^n     He  ii  committed 
for  suspicion  of  treason. 

Caurtnej/.  1  have  boen  taken  no  five  linn*a 
upon  suspicion,  and  this  last  time  1  »us  com- 
mitted to  the  Gatehouse. 

Att,  Gen,    Where  do  you  hve,  Sir  ? 

Courincy,   Tn  Old  8outhampt<m  Buildings. 

SoL  Gen.    How  iong  have  you  lived  there  ? 

Courtney,  I  have  lodged  there  about  four  i 
3ear;!i  aud  an  half;  there  are  fieveral  pei^soai . 
cat!  come  and  give  a  testimony  of  me, 

Sol.  Gen.  How  came  you,  Sir,  to  be  broughl^  j 
as  a  witue^  here  ? 

Courtney.  1  was  surprized  at  it:  for  my^^ 
part  what  I  did  was  by  way  of  pity,  seeing  hinn 
in  such  a  condition ;  I  iiilicfl  your  soul,  be- 
cause you  and  your  wife  Volh  shewed  so  much 
trouble  and  remorse  of  conscience ;  a*  for  sir 
John  Frei nd,  I  never  saw  him  till  to-day  in  all 
my  life,  that  I  know  of. 

Alt*  Gen,   What  countr^^mati  are  you,  Sirf  "j 

Courtney >    I  am  an  Irishman  born. 

Alt.  Ocfi,  Have  you  any  estate  in  Ireland  ? 

Courtney.   No,  Su",  1  have  not* 

SoL  Gen.  Prav,  how  came  you  to  go  to  Mr.^  j 
Blair?  '  "  I 

Courtney,    I  have  known  him  t  long  time;'] 
f  have  been  of\en  in  hi«  coiujiany  at  tbe  coffee- 
houHe;  J  cannot  say  I  am  jiittmiitely  acquainted  - 
with  captain  Blair,  hut  only  us  I  h«ivr«eeu  him  , 
in  the  coIfee*hou*e  a  great  many  tiinesi. 

Sol.  Gai.  But  I  u&k  yau  huw  you  came  to  J 
go  to  him  ;  hecuuseit  ^pems  he  desired  nobody  I 
should  come  to  hiui  hut  bis  wife? 

Court nty.  He  may  say  wliat  he  pleases  ;  for  ] 
he  lay  tirst  in  one  room,  and  then  in  atiothef|  i 
aud  he  could  never  go  to  the  necessary  house, 
but  he  must  go  through  my  room  ;  but  if  yon  ^ 
(dease  to  send  for  Mr.  T^ndey  aitd  capt.  Court-  ] 
ney,  they  will  say  aud  swear  that  these  thlngi  j 
passed  iti  their  presence,  or  to  the  lame  piir* 
iM>se,  except  what  passed  between  bim  and  ma  | 
m  his  own  chamber.  Ensign  Too  ley  did  read  j 
the  pa)>er  of  the  Flying-  Post ;  and  as  for  j 
what  lie  said  of  his  knowing  DOthiiig  of  thf  1 
plot,  it  was  talked  of  up  aud  down  the  prison,! 
mid  m  it  came  to  me  ;  and  1  invited  liini  iuto] 
my  chamber  as  my  old  acquaintance  ;  thougb  j 
1  was  not  very  famdiar  with  hiui;  aud  as  Ti«  | 
declared,  he  knew  no  thing  of  the  matter. 

L.  C  J.  You  hear  what  he  says  ;  i^ptaiii  i 
Blair,  did  you  tell  hitn  you  knew  aothbg  of  j 
the  plot  ? 

Btair.  Yes,  I  believe  I  might  at  first ;  ai  I 
we  were  talking  w  hen  1  Brst  eame  in,  and  t  ^ 
told  him  the  truth :  lor  1  wa«  iniioceul  as  to 


39]  8  WILLIAM  m. 

lie  assassInalioD,  for  indeed  I  wasi  so ;  and  as 
othe  invasion  there  was  only  some  freneral 
discourse,  and  I  was  not  willing  to  explain  my- 
self among*  such  people  as  they  were,  when 
they  asked  me  any  questions  about  it :  I  had 
to  do  with  the  kiner  and  council.  '^ 

i.  C.  J.  Sir  John  "Freiud,  have  you  any 
more  witnesses  to  examine  ? 

Freiud.  Yes,  my  lord,  I  desire  Mr.  King 
may  be  called,  f  Which  was  done,  and  he  ap- 
peared ] 

X.  C.  J.  There  he  is.  Sir,  what  would  you 
ask  him  ? 

Freind.  I  desire  to  know  of  him,  whetlier 
he  does  not  know  captain  Blair  and  captain 
Porter  to  be  Human  Catholics,  and  whether  he 
does  not  know  me  to  be  a  Protestant. 

King.  I  am  of  ojiinion  Mr.  I*orter  is  a  Pa- 
pist ;  he  was  til  ways  taken  to  be  so  at  Epsom, 
where  I  used  to  go,  and  where  he  used  to  go, 
and  he  was  never  looked  upon  as  a  Protestant. 

L.  C.  J.  And  what  do  you  take  sir  John 
Freind  to  be  P 

King,    I  take  sir  John  Freind  to  be  a  Pro- 
testant ;  so  he  is,  and  so  he  ever  was. 
•   Freind.     But  when  you  have  bf^n  in  my 
company,  and  they  have  l>cen  speaking  of  the 
government,  what  have  I  said  or  done  ? 

King.  Whenever  they  started  any  reflect- 
ing words  upon  the  government,  he  was  used 
to  say.  Forbear,  I  do  not  admit  of  any  duci: 
discourse. 

jUl.  Gen.   How  long  have  j'ou  known  him  ? 

King,  He  has  been  mv  actpiaintaiice  this 
fifteen  years,  and  marriecf  a  relation  of  my 
wifes  husband.  (At  which  there  v/as  very 
great  laughing.) 

King.    I  mean  her  former  husband. 

X.  C.  J.  He  has  reconciled  the  matter  very 
well  tor  tliiii  point ;  for  he  tells  yon  he  meant 
her  first  Iiusliaiid. 

Frt'ind.  Ay,  my  loni,  no  doubt  of  it,  he  will 
recover  it;  it  was  her  former  liuisbaud.  Mr. 
Kinjr,  <lou't  you  mean  it  was  her  Ibrmtr  hus- 
band ? 

King.  Vcs,  Sir,  I  have  told  you  it  was  so; 
her  former  'uusbnud's  name  was  Tiiomas  I'ase. 

X.  C.  J.  Mr.  Tanner  you  are  to  lm>k  upon 
two  statutes,  the  one  is  ii  Juc.  1,  cap.  4,  and 
tlie  30lh  Car.  2,  cap.  fi. 

King.  My  loni,  1  ha.olicnid  him  say,  if  I 
bad  uot  taken  the  oaths  to  l^ing  Jame>.*  which 
oaths  are  iMiwiini;  to  my  coii^cieurc,  I  could 
as  freely  tako  the  oaths  to  the  present  govern- 
peikt,  as  any  iii:in  in  Kiii;i;iiul ;  but  I  will  live 
peaceably  a'td  (|i>i(.'tly  iiudc-r  the  govcriiment: 
out  because  Id*  not  take  the  oaths,  I  am  dou- 
ble taxe<l,  and  I  will  pay  it. 

Freind.  My  lord,  I  desire  captain  Kaines 
may  l;e  caJled.*  [Who  appcareil.] 
L.  C.  J.  What  do  J'ou  a-sk  him.  Sir  ? 
Freind.  Captain  Raines,  I  desire  to  know 
ofyou,  uheiher  Mr.  iVrter  and  Mr.  Blair  are 
Roman  Catl.oik*s ;  and  1  desire  you  to  speak 
•a  to  myself,  \ihat  I  am. 

Kaines,  They  are  so  reputed  to  be  at  Cp- 
fom ;  it  was  also  so  reported  there ;  and  1  have 


Trial  of  Sir  John  Freind^ 

been  acquainted  with  sir  John  Freui< 
years,  being  concerned  toeeth^r  in  the 
Bands  of  the  Tower- Hamlets,  and  1 1 
in  his  company  several  times  since 
came  in,  and  never  heard  him  give  an^ 
ing  language  against  the  governmei 
life. 

X.  C.  J.   Have  you  done  with  him. 

Freind.  My  lord,  I  did  not  hear  I 
I  suppose  he  has  declared,  as  to  capta 
and  captain  Blair,  that  they  are  Cathc 

X.  C.  J.  He  savs.  Porter  and  Blai 
puted  Papists ;  and  he  has  known  y < 
time,  and  l)een  concerned  with  yo 
Trained-bands,  and  never  heartl  yo 
upon  the  government  since  the  king  c 

Freind.  My  lord,  I  desire  to  know 
he  believes  me  to  be  a  Protestant  ? 

Kaines.  J  did  always  take  sir  J  oh 
to  be  a  Protestant. 

Freind.  Then,  next,  I  desire  Mr.  C 
may  be  called.     [Who  appeared.] 

X.  C.  J.    What  do  you  ask  him,  Si 

Freind.  I  desire,  Mr.  Carpenter, 
will  acquaint  the  court,  whether  y 
captain  Porter  to  be  a  Roman  Catb 
what  you  know  of  me.? 

Carpeiiter.  I  have  been  at  Epso 
suuiiuers,  and  usually  am  there  in 
time,  and  he  was  so  reputed  there : 
sir  John  Freind,  I  have  known  him  al 
20  years ;  I  keep  a  brew-house,  as  he 
lie  have  been  concerned  together,  ; 
had  several  occasions,  upon  the  a( 
trade,  to  meet  him  u{>on  particulars  of 
ment,  when  any  partners  came  in,  an 
knew  him  but  very  orderly  and  civil 
heard  him  reflect  any  thing  upon  th< 
menf,  but  was  always  peaceable  and  < 
was  always  looked  upon  as  a  IVotes 
went  to  church.    That's  all  that  1  cai 

Freind.  My  lord,  as  to  the  Slati 
will  your  lordsnip  please  that  the  Stat 
be  sent  for  ? 

X.  C.J.  Yes,  yes,  we  do  not  forget 
you  any  more  witnesses:^  Call  all  i 
neiis^\s,'and  we  will  consider  of  that  at 

Freind.^  I  desiie  Air.  Hawkins 
called.     [Who  ai)i)eared.] 

X.  C.  J.   What  sav  you  to  this  gc 

Freind.  I  desire  you,  Mr.  Hawkir 
an  account  what  I  am  ;  whether  you 
to  be  a  Iloman  Catholic  or  a  Protc^ta 

JL'ukins.  I  have  known  sir  Job 
these  twenty  odd  years,  and  have  ha< 
v>ith  him  many  times  before  the  chau 
verniuent,  and  since,  I  ue\er  heard  hi 
upon  the  government ;  nor  never  hea 
siieak  slightly  of  it :  and  as  to  his  bei 
Ptotestant  religion,  1  do  know  as  mu 
man,  as  much  as  another;  1  alway 
him  to  be  a  Pr<»testant  of  the  ('hurcl 
land,  as  good  as  any  man  alive;  I 
went  to  church. 

X.  C.  J.    What,  since  the  Revoiuti 

Hawkins.  I  have  nut  been  soconvei 
hiia  since  that,  because  1  went  out  oft 
8 


Jhf  High  Treason^ 

;  5ut  [  liislinrt^  there  are  those 
tmu  give  an  arx'uunt  of  thtit 

ImaturMf^uld  muy  be  oilled. 
^fli  I  ftupp4Jt>e  yau  hiivedi>pe  with 

r  Miiiild  stood  up.] 

vmi,  Sir? 

Ill,  i  Ua%v  known  <^lr  .lolin 

V,  Mlwnc  ibf"^^  iweivtv  years, 

him   as  a  smcere 

I  Imh'ii  ill  hrs  coni- 

u'lj,  ami  I  i»evef  lieurd 

1}  of  the  y;'overnmefit. 

^  ^ooj  Q,  IVutc^^tJiiit  Q$  any 


^  as  »ti)  in  England  ?  Thafs 


t  .1   il«ire  Dr.  Holhnofsworth 

kiUni*     iBut  be  dill  not  uppear.] 

Il  Thru,  my  lord,  1  de&irc  5Ir.ljUnton 

MM. 

If   Tb'^re  iM  Mr.  LuptODi  wbat  would 

re  he  win  jriFc  an  account 

liU'f  what  rrli&fifm  I  am  of  I' 

>rd»  lui  to  sir  John  Fri-iud,  1 

I lii ;  he \va!f  |dea.sed 

Ik  his  hou<e  a  con- 

,  i».Hu  rj»  iiK*j  aod  afWr  ihe  Revo- 

^sfU'r  ihi'   Uvfolotioii   ive  ulMayis 

pi^,..      ....;..  irt  tjjg  tJimrch  of 

-  pn»y  for  the  pre- 
'    '^^  »ry,  at  v*hich 

yon  le<t  bini  ? 

or  tive  ytara,  aa  I  re- 

1 1 'is  family  lessen eil ;  he 

May  to  ine,  Mr,  Lupton,   I   am 

bndjfej  and   n»y   fiHiiil}  lessens, 

'te  or  <&ix  yrnrs  a^^»),  and  1  shsitl 

on  for  ynii    at   present ;  hnt   if 

or  a  ehapfain  fi^ain,  1  'twill 

i:  ifitif  he  WHS  pleased  to  sixy* 

lm\^  is  it,  do  you  say,  that 

(ire  yrar«;  and  a*  to  any 
j^  a  Papisi,    I  have  ofren 
'otifi  •*  -  4...I  -^IjouI  the  Po- 
bit  h'^  '^ken  vviih  de- 

fici|iU      .  -       !\ipiii<s. 
ia?c  you  lu'nrtl  me  ^peak  of 
ibuut  any  thiii^f  of  an  invti- 
i  wouUI  ituitnrt!  fny  iHe  for  the  Fro- 
fl'lpiiii,  or  any  lliing  of  that  if"* 


(•ifcbCollfTtJw!,  Mr.  Ernkjne's  Ob- 


l4M    111 


its  ou  the  proposi^nl 
t.  It  hen  i'atkd  for 
Cane,  A,  D.  I71>1. 
-e.  lol.  9>  pp.  {j'2i, 

Ti  Ciflp,  fcil.    to,    pp.  2<J6,   rt  Kef|.; 
I  Cam:,    r  '     ■  •  '       •  '  -nVs 

,  IS,  |i;  ;  in 


A.  D,  1690.    •  [iS 

Lupion,    1  hare  often  beard  you  say,  as  tqj 

the  present  government,  that  thoujf h  you  eoQlcfj 
not  comply  ^^ilh  it,  yel  yon  won  Id  live  peace- 1 
aUly  under  it.  When  we  liave  been  talking  oM 
these  thin^,  you  said  you  never  would  be  iiuj 
a  plot ;  and  iliouorh  you  could  not  comply  with  J 
the  present  ^Ternraent,  yet  you  wouhl  nevei^  j 
concern  yourself  in  any  d^siarn  a^raiu^t  it.  FofCl 
my  part,  my  lord,  I  know  nothing  by  him/l 
hill  ibat  he  is  an  honest  and  a  worthy  gentle- 4 
iiian^  though  he  be  so  unlbrtuuate  to  be  under 
tViis  aeeusatton 

Ft£tf*d.  I  desire  Mr.  lioadley  may  be  calltd. 
[Who  apfHiared.]  1 

L,  C.  J.    WeLh  what  say  you,  Sir  P  *■ 

Freind,     Pray,  Mr.  Hoadley,  niti  yoii  g-iv^j 
an  account  to  the  court  uhat  you  know  of  mjl 
beiog  a  Protestant,  and  of  my  hie  and  oooverij 
«a.iion  ?  Jl 

llmdlty,  ]  believe  sir  John  Fieind  is  a  vt  r  jl 
settled  Protestant  in  the  Church  of  Erti^dand  jl 
and  1  have  reason  to  believe  so,  bec«iuse  I  hav^j 
frequently  discoursed  with  him,  U^^ause  1  havea 
had  a  couple  of  children  that  were  his  nejihewstJ 
npon  whose  account  1  have  been  forced  severafl 
times  to  VI  ait  upon  him  ;  and  he  has  often  saijj 
he  never  would  he  in  any  plot,  and  his  word^l 
that  he  used  to  ine  wi-re  reiOly  very  remarks*  1 
ahlCf  *■  Catch  tnc  in  the  corn,  aint  put  me  iiij 
*  the  pound,*  J 

L.  C  X    What  were  his  words,  Sirf 

HiHuU(}f.  He  used  to  say  he  would  neter  bil 
in  any  plot ;  for,  s»ys  he,  ^  Cati  h  me  in  thtt'l 
'  corn^  and  put  me  in  the  jionnd:'  and  I  havej 
heard  him  exprfss  himself  with  a  great  deal  t 
dea-vtuiinn  of  king-kilhnjf.  and  those  principle^,] 
of  the  Papists,  the  assassniating;  of  any  crown*'] 
ed  head. 

Alt.  Gen.  Pray,  8tr»  how  came  you  to  dis«J 
Cfinrse  with  sir  Jrihn  Preintl  ttknit  kiiig--kiNin^J 
ami  plots?  You  are  a  school ruiister  itseLmsj] 
how  happened  ttiis  sort  of  discourse  betweeiij 
you  ? 

HoadU^/,  There  will  be  discourses  aboi]t.'| 
tliese  things  sometimes, 

AtL  Gvn.  But,  pray,  how  was  the  discourwl 
introduced  f  What  was  the  occasion  of  the  dis-  f 
course?  iSure  there  wa^i  some  occasion  exLra^] 
ordinary  for  him  to  express  himself  to  you. 

tloutlUt/,  1  cannot  remember  the  particular  j 
ocra^ion,  but  such  iliscourse  ihei^  was. 

AU.  Gi'n.  Pray^  how  long*  ago  is  this  (ioii 
that  tins  discourse  was? 

-  ilttadity.     1  lielieve  it  was  five  or  six  timeff 
within  these  Iwo  years. 

Ait.  Gen.  What,  have  you  had  the  sanfipl 
discourse  five  or  six  times  one  after  another?     * 

lltuuitfy,  I  cannot  say  that ;  but  those  used 
to  be  his  words. 

Aii.  Gen,    What,  in  common  discourse? 

Hixfdiry,  He  said  he  would  never  be  in  any 
plot. 

Freind,  My  lord,  I  can  bring  a  rreat  many 
more  witnesses  of  this  kind,  and  1  believe  I 
could  have  a  thousand  to  prove  tni?  u  Protectant. 

L.  C,  ^  Chll  whom  you  will^  sir  John,  we 
will  hear  them. 


«3]  RWTLLIAM  ITT, 

Frtmd*   My  lordf  1  am  Tfry  ktfa  to  trouLle 

JiiiL  i£o4r^.  No,  it  will  mot  be  reckoned 
r  InniUe,  we  will  bear  all  your  rTidence. 
Fma^  Tbere  b  one  Mr.  Willis  aod  one 
.  UcQungi ;  boi  I  dttire  it  maj  not  be  for  • 
L  M  to  the  mctfl  of  partknimt,  for  they  are 
veiy  nialcrt&l  for  nie,  ai&  ]  sbmJt  shew  by  and 
Itye.  X^''*  ^^'^1**  apiMsanxt.] 

X^  (;.  J.    H  eU,  wLa  »«y  yoa  to  tbis  gen- 

iWind.  Mr.  Wiills,  I  desire  yon'd  ffi»e  an 
accottot  to  ibeir  lordsbips,  what  you  think  of 
ne^  aa  lo  my  betoj^  a  Protesiaiit,  and  how  I 
luive  bebared  myaeff  io  frery  reapect  all  aloog? 

WIUU,  My  ford,  I  bare  always  taken  it  for 
paiilad;  thai  tho^  tl>&i  come  to  church  are 
Proletiaiili  |  and  I  did  always  take  sir  John 
Frond  ta  be  a  Pirotealaiit.  Hie  acqaaintanoe 
I  bad  witK  bim  waa  sioce  he  H^ed  ia  tbe 
puU  of  Haduey,  aiid  we  have  bad  some  con- 
vena  together;  and  tiiere  have  past  friendly 
▼mli  between  iia ;  and  I  do  uot  remember  any 
diiGoarse  ivbile  1  was  there  that  tended  to  the 
goveromeot  ooe  way  or  *.n other.  1  was  uever 
veryofieo  with  him,  bul  bis  discourse  was  al- 
ways ▼cry  obh^Mog,  discreet^  aad  prudeot, 
wheoerer  1  was  iliere. 

L,  C,  J,  Pray,  Sir,  when  did  you  see  him 
t  eharch  ? 

WillU.  Truly,  my  lord,  I  camiot  call  to  mnd 
rbeo  it  was. 

L.  C.  X   Cannot  you  name  any  time  ? 

Willit,  He  may  be  at  church  sometimes, 
^.nd  I  not  see  him ;  our  seats  are  at  a  distance 
fnm  one  another,  and  there  are  pillars  between, 
that  one  can't  sec  erery  body ;  and  I  caooot 
cafl  to  mind  when  I  did  nee  him  last  at  church. 

X.  C  X  Has  be  been  there  w  ilhin  tbis  year 
Or  two  ? 

Witlii*  fie  has  been  gone  from  Hackney  a 
fcyear  atid  alxive. 

Mr.  Mountague.  Pray  can  you  say  you 
have  seen  him  at  church  within  these  four 
years? 

WiiUt,.  Truly  I  cannot  call  to  miud  whe- 
ther I  have  or  DO. 

Frrind.  I  desire  Mr.  Hi-mttio's  may  lie 
eslte<l.  J  roidd  call  a  grcTil  many  more,  but 
tlu-y  are  much  in  the  *iarnt"  eflVct  sb  these  are, 

i.  C.  J,  I 'all  \*'fioii»  yi>u  wtU,  sir  John,  if 
you  thiuk  fit  to  call  iheni,  we  will  henr  th*^m. 

Frcind.  Being  they  are  not  here^  I  will  not 
trouble  you  further  ;  it  is  all  to  the  same  pur- 
"  We* 

L.  C.  X  Well,  take  your  own  course ;  if 
^jou'll  call  them,  the  court  will  be  sure  lo  hear 
"^Ihem. 

Frciod,  Hut,  my  lord,  here  is  one  thinif 
thai  I  iiHist  d»:i*irL'  your  lordslup^s  direction  in : 
if  thei*e  ^feiiilemen,  ray  lord,  captain  Porter 
and  cajttjuii  HloLir,  who  are  the  two  witne&ses, 
and  iiune  but  those  t\%o  affainst  me,  if  they  are 
Papist j$,  they  are  not  cfoou  witnesjies  against  a 
Protestant,  to  prove  him  a  traitor  within  the 
■tatnte  of  the  2:>th  of  Edward  the  Sd,  For 
Che  stattite  says,  lie  that  is  indiaell  must  be 


Triol  ofSrJiAn  Fremd, 

pro? eably  attainted  ;  which  caMiol  be  by 
eridenoe  of  Papists,  and  tbose  that 
take  tiie  oaths  of  obedience,  wbicb  are 
to  be  taken  :  and  tberefblv  I  tonbly 
yon,  ibat  you  will  ptrte  to  tender 
oatlkB,  for  there  is  a  atatnle  tn  tbe 
cap*  4,  which  appoiiita  the  tendering 
nalbs  to  them. 

L,  C.  J.  That  ts  not  oar  bu^nesa  it 
time. 

Frtind.  Then  I  mtist  b^  yoor  pardon 
they  are  not  substantial  witiiefacs  ;  f^>^  ilm 
the  hkw,  as  I  am  Inlbrnied.  I  biimViI y  sol 
to  your  l<ird$hip,  whether  tibia  be  not  tbej 
1  only  speak  it  lo  know  whether  it  be  en 
nient  for  me  to  rehear.-e  it,  I  asked  the  f 
tioo  before  they  were  sworn,  I  kow 
i^bether  it  be  coorenient  for  me  to  tm 
now. 

L.  C,  X  Jly,  ay,  it  is  rery  oooTenienI  ■ 
now  is  the  proper  time. 

Frtind,  Before  e? er  they  wefe  swore  I  n 
bare  asked  them  tbe  question  whether  i 
were  Papists  or  not,  but  tt  was  not  allowf 
was  Of  er- ruled :  now,  ny  Lurd,  there  is  s 
a  statute,  aod  I  humbly  beseech  you  to 
them  the  oaths,  aod  that  would  be 
stration  that  they  were  Papists,  and  then 
could  be  no  ^ood  witnesses. 

X  (I  X  You  say  well,  if  we  conid 
such  a  statute,  that  no  Papist  should  be  i 
ness  ;  but  there  is  no  such. 

Frtind,  My  lord,  1  beg  your  pardon,  ai 
hope  you  wdt  not  take  it  amiss ;  1  tMct  w 
I  am  odrised  to  offer, 

L.  C,  X  No,  no,  by  no  means,  theie  will 
nothing  takeQ  amiss, 

Frtmd.  For  the  sUtute  of  tlie25tbof 
ward  llic  third,  and   that  of  the  Suth  of  1 
Cliarlts  the  second,  and  that  of  tbe  3d  of  k 
James  ihe  firi»t,   cap,  4,  here  it  is  p 
monslrable,  that  Papists  are  not  tu  be 
atrainst  any  Protestant,  who  is  with 
teemed  a  damnable  heretic  \  and  then  they 
tieve  the   fK>ue   and  (heir   pneiiti^  can  at 
them  from  all  oaths,  and  tbey  are  declai 
be  given    to  evasiuoN,  aail  e«|ui vocations*  I 
mental  reservntiniis,  and  can  have  disiper^sati 
fcir  all  thf  ir  villanies  ;  and  the rt lore  they 
not  to  be  crediletl  :  their  eridtnve  is  €%iu*i  f 
unh-ss  they   will  in   thi^  manner  upon  I 
oaths   renounce  these  prineipleu:    therefor 
hnuddy  Iwg  they  may  have  the  oaths  tend* 
them. ' 

L  C.  X  That  is  not  our  business  now, 

Frcind.  And,  my    hird,    jonr  lordship 
pleased  to  promise  me  that  if  any    matter 
law  dill  arist*,  my  tokmsel  i$hontd  he  hcard^ 

L,  V.  X  First  let  us  know,,  whether  llieri 
any  i>uch  law  as  you  mention,  or  tu  any  £ 
puqjo^e. 

Freind.  My  loril,  t  desire  my  counsel  i 
come  in,  and  speak  to  it :  for  my  life  is  in  t 
gfer,  and  so  is  evevy  lionest  gent]emau*s 
every  day.  1  am  as  clear  as  the  child  unb 
I  have  no  witnesses  to  prove  any  thing, 
therefore  I  desire  my  counsel  may  be  hear 


>u  VI  a 


J&r  High  IWesstm^ 


^tJL  If  tbr  nniri  did  think  there 

b  Hm  ot^ectfofi  that  yoa  tnake> 
I  Mil  lit  jrov  b«Te  ouum^I^  we  M-oald 
Djf  w«  mre  de&ifoiis  to  do  it  li'  it 

_  Wkit,  my  lord  ? 

'  To  allow  you  counsel,  if  there  were 
•  in  this  objection  io  relation  to  Pn- 
auts  viloesaes,  I  would  be  gtad  to 
I  tlttt  would  own  this  objecuon : 
teliii  I  iM  no  coloar  in  it :  the  statute 
irfkfCidaeed  tbat  ^ou  qnote,  and  then  we 
H  «t,  vhitber  tbera  be  any  things  like  it 
4  M  tftiole,  Pnj  will  you  read  those 
vailifcri  jnra  t^  ore  in  thai  statute  to  that 

IrmL  t  un  not  iO  expert  to  know  the  words 

Idbiad  ilkr ;  and  therefore  I  think  it  is  le- 

ildbald  Lave  connseK 

IX  It  ii  ftupiio«<^  you  have  had  crtun- 

Htialt  tupfiflfe  your  counsel  that  have  ad- 

^Wto  make  this  objection,  have  instruct* 

i^ t«  ileraibiHits  in  Uie  statute  it  is. 

hmi  ^y  lord,  1  desire  my  counsel  may 
troftdidtudheardto  it. 

LC  J.  1  It'll  yoOf  that  by  law  M'e  can- 
■I  hm  ooonid  to  any  such  matter  lliat  has 
^fiMr^if olMection  in  law  in  it?  though  Ibr 
^  Mn,  I  w»«h  we  could,  because  1  wonM 
mhr^  counsel  can  say  to  make 

^tb  ion,  that  Papists  are  not 

tfml  My  lord,  I  wish  you  would  hear 
i9««Mlnit. 

t»Ci.  Lmk  ye,  sir  John  Friend,  you  have 
^■■idhn  this  statute  may  he  turned  to>  and 
y^  A^  In  have  theiii  read,  and  they 
^  ^  ife  read  from  the  be^nniug^  to  the 

.A^  1 4mM  the  stjMnlcs  of  the  25th  of 

(lbt]Hnl«  the  3*!  ues  the  Ist 

KSUib  nf  K.  UieSd^may 

^  Wkal  diaptcr  is  thai  of  the  dOth 
tIw  tli«  ac^ootid  ? 
fttally  It  is  not  put  down  in  my 

,  A   Then  look  out  the  chapter,  while 

■ftqgf  tka  iilhiT^     Lyjok  ye,  g:eut|eiijeii 

r  jonr,  «r  John  Frejhd  does  desire  the 

Kfoir  t^  of  Edward  5,  may  he  reml, 

k  m  Ihe  sUltitc  alMjiu  treason*,  and  the 

-t.L.  i,  t.»  t^  iniitctcdY  and  it  shall 

'  Jirken  to  ii. 

This*  iH  made  in  the 
I   Ihv  thiril      **  A  do- 
Untl  he  judged  trea- 
inious  huve  bei*n 
^<4  tri^aaout  shall 
at  i^L" 
^Jfml,   1   h«^  the  favour  I  may 
1 10  be  retid. 
art, 

ium;  it  will 

II,  1  am  lid- 

•  »i»  vv\  our  h  ua  tn^a- 

TittBurrecUon :  and  iu- 


Tiling  men  to  come  from  beyond  sea  is  no 
treason,  unless  a  foreign  prince  be  invited  to 
corae  with  bis  own  subjects  ;  for  Euj^lish, 
Scotch,  and  Irish  are  not  enemies,  hut  leUels^ 
and  to  be  dealt  with  otherwdse ;  therefore  1 
leave  it  to  your  lordships,  for  I  am  no  lawyer, 
only  1  am  advised  to  insist  upon  these  things. 

Then  the  Statute  of  the  2r.th  of  Edward  % 
about  treasons^  was  read  thougbout,  only  about 
the  middle  the  priaooer  made  some  interrup- 
tion, 

Freind,  1  believe  this  statute  ts  not  the  sta- 
tute 1  go  upon  ;  that  which  1  mainly  insist 
u[iou,  is  the  statute  of  the  third  of  king;  Jaxnet 
the  tirst,  cap.  4, 

J  list.  Hchcby,  This  is  the  same  statute  yoa 
arc  indicted  upon,  tha  iH'eat  statute  for  trea- 
sons ;  and  as  to  your  objection  last  mentioned, 
what  is  treason  and  what  is  not,  he  is  not  yet 
come  to  that  part, 

Freind,  Well  then,  let  him  go  on  witJi  it. 
(It  was  read  to  the  end.) 

L.  C,  X  Now  it  has  been  read,  is  this  tbtt 
statute  you  would  have  ? 

Frcind,  There  must  nei»ds  he  a  mistake  bm. 
to  the  chapter,  it  i^  set  down  the  25th  of  £dw«> 
S.  but  there  is  no  chapter. 

L.  C.  J.  Yes,  this  must  be  the  statute,  ii  re- 
lates to  treasons,  and  it  has  those  words  in  it, 
that  what  you'read  out  of  your  papers  relates  to. 
Well,  that  wt  may  go  on  in  order  of  time, 
what  statute  of  king  James  is  it  that  you  men* 
tion  ? 

Frcind,  It  is  the  Sdof^king  James  1,  cap.  B^ 
it  is  upon  account  of  tendering  t!ie  oaths  ap- 
poiuti^d  to  be  taken  bv  the  statute,  and  (reading 
out  of  a  paper)  to  tell  the  court  that  they  ought 
to  have  the  oaths  tendered  theuK 

L.  C*  J.  That  is  the  buhiness  of  another 
time ;  read  the  statute. 

CL  of  Arr,  *'  An  Act  for  the  discovering  and 
repressing  Popish  llecusap  ts .  ^^  >Vh at  part  is  it  P 

Freind.  Truly,  my  lord,  I  cannot  tdl. 

L*  (^  J.  It  is  a  long  statute,  but  if  he  will 
have  it  read,  it  must  be  read  all. 

Freind.  My  lord,  I  would  not  give  the  court 
any  trouble,  hut  it  is  about  having  the  oaths 
tendered  to  them. 

CL  of  Arr,  I  beliere  this  is  the  para^ph, 
^^  And  for  the  better  triul  how  his  Majesty's 
subjects  stand  a^Tectcd  in  point  of  their  loyalty 
and  due  obeihence,"  &c. 

A  great  part  of  the  Statute  was  read,  relating 
to  that  matter. 

L,  C,  J,  What  else  would  you  have  read, 

sir  John  Friend  ? 

Frrind,  1  only  gather  from  thence^  ttiat  do 
Roman  Catholic  In  capable  of  sweariug  agiinsi 
a  Protestant,  L»ecau!ie  the  piipe  and  the  priests 
can  abawlvt?  them  from  their  oaths, 

X.  C.  J.  Well,  IV hut  have  you  uiore  to  sayf 
Frkitd.  My  lord,  t  ojily  « peak  this  as  to  Bo- 
roan  Catholics,  tliey  do  not  regard  an  oath 
against  a  Protestant,  because  they  have  their 
priests  that  can  &b«olva  theoo,  and  there  fore 


1 


47 


iviLLrAM  HI 


1 . 1  i. 


.//. 


...I, 


anj  t'<:a^^  1  h<pfie  vour  if#ni»hi'>  i«u:  iii:.'^%  it. 
M  vQu  are  ■:  ▼  couo<«'=-t ;  lor  \*ia  are  aa>«ixuel 
^r  me.  a<»  «*';i  aa  itie  kii:^. 

£.  C.  J.  Ye»,  >C9,  [  woold  Mp  jou  ia  anj 
tbia^  I  cnuH. 

J  si^/^-  M*  fcrd.  I  itvik  r>u  :  I  «:«*>%  y-<: 
to  fk«!^t  nae.  lor  I  am  as  inc'iocb  a^  :h-r  c'-.-.y. 
onhora.  i*hAL<oevcr  th«4  ri.«^i  i.avf»  S4r>.rr. : 
These  are  ha?'i  tiiLa^<»  'La:  jre  iii-i  uv>ti  a 
fTcnileaiaa.  ar.«i  bo  um:i  u  •sifr  ^:  :l.-»  rit^.  tb^'v 
itaaj  ftwom   by  two  PapHis,  tsLo  vriil  swear 

jL  6'.  J.  I^^k  je.  air  Jobii  Fri^:::*).  have  yoa 
aoj  viitn^vc^  tf>  proifuc«r,  i-iai  tbeM:  two  men 
faa.'et:«y  •iupU«^ure  or  mAi.i^xsAizst  jjj,  1^:11 
tbev  sbriCiM  aceorte  yru  tiLi^!;.  .' 

trtind.  My  lor*!,  1  a  f.  ♦'"•ry  I  hi»e  not  iry 
wit:!««fies:  1  have  Deen  «i  ke^-^i  u  »,  :^^t  I  ha'l 
not  Lrne  tor  people  l-  crmc  to  lUfr :  K  baai  d>x 
my  cAuaw-i  to  c-jin»?  :o  n-..:  "t?  .  ••■■  S:i:iL  liay. 

thai,  I  til  ink  it  wa^  Friidv  ei-i  ■  r  YrA»y  i^- 
tMliinby:  I  h^ii  rh^ui  coc  t. ':  FrL-i^y  iij't  i*? 
jrfUrriorHB:  1  wa.«  koi  v>  €?•-.?  rb*'.  d>V.-  v.*-:- 
perrui-rH  tu  cvr.*:  a:  ine:  •• ;  Ti/ursfliy  i  J  x- 
«n  oritf-r,  iiu*  r*!? r?  wa*  k  iii!?t:iNfc  ;a  :»r;  order, 
aiifl  I  H«sifr:  i  f>  a"*-*:  R-'  ■••Jrtrr  ord^r,  but  1  eouid 
no*,  wt  ary  if^iy  (o  t;-  ^airiLer  orler  lor  rae.  ti> 
hate  irv  trie:;  .4  ti  co  rini  eo^ufre  !Ot>>  zhin^. 
or  *'ise  I  iiLouJ'i  i^aie  I'/uikI  out  £dou^  ot'  w'ic. 

Att.  G^.n.  I  a-1!  sare  he  Lai!  an  onic-r  t'.r 
coumel.  at  th'^  «a[ne  t;oie  that  oocice  was  '^ren 
Ihoi  or  tii^  txidl. 

7-  C.  /.  Wh.-n  was  that? 

Aif.  (it  :.  On  Tii^V  ;V,  !rv  lord. 

/..  C.  /.  *Vh4t  sav  V  /u  tr.  I't.  >lr.  BaWrr? 

^Ir.  Bik^  .  My  *h'-.<,  I  .i:.l  alt<-i..l  »i.-  John 
Freiml  im  Tue^Iay  la>t,  m  jitc  inm  r.'  ti-.;:  *it' 
Hh  fial  as  thi^  <iiy  ;  ard  I  4t  the  9.i:ue  tin^c 
toUt  liirn  il  li^-  ^M<;l*i  iiamt.'  b.s  ^'mn*  1 10  tr.c,  1 
w^iild  |T'#..iire  an  oHer  lor  ilirm  '"  come  1.1 
bir:i.  The  ut-il  rnvnin-,:  he  .»;ts  j.lexse*!  t* 
mnieirt  mc  sir  Ba.-tho'oniew  Sh«#wer ;  I  to*.»k 
the  iilvrty  t-i  t^\.  biin.  thai  he  Itui^  w)  c«»a- 
cernwl  ar  tl»e  H'Misfr  ot  L»/nN,  an«l  at  the  com- 
mittee affint  pur!i;iin9!.tar>  b:i'*iD">'4,  sorn;: 
otinr  ]^r^f>ps  ttiat  ba>i  tumeil  hint  of  their 
cot2ns«'..  iiii".*;:l»*nnli:i^  iir.ki*  were  |irociired 
t«ir  !jm?:  Tij  ,■ »  iM  liip:;-  -s  i!jeir  csjUp.v  L  jtl  b\ 
tha!  Mi'-'-iii .  t'.it  \  V.  .1  .T  <{  •  .-.i"*:!.!!  i)  .•!  iiim.  aiiii 
l^rtat  i!r'r  ".  « .i-.  i''*»'ii  1.  •  !!ie  ri.-i'^iiivra ;  and 
theretorf:  l'  •  ^!/-  J  li  -n  tii  C'lij-i'Irnt  it,  n'.iu  tu 
•eiir]to^:r  [' jhIi.  ome-*  ^.i^jwer,  ?:tul  aay  wlit^r 
coini'fl  ili't  •«  iia'i  a  ti:.ri  I  t^t.  a. pi  ku'itv  ttirir 
|>l»^i:«iirr<«.  v.>,i\\*A.r  iUe\  wnui'l  atn-u  I  hnii ; 
ami  if  \h:  uijii!>t  ^nil  ni»r  wonl.  I  i»>i;i!il  procure 
an  oril<-r  tor  liiiii.  Hut  m-.l  iif  arj:.:  troui  him, 
1  went  «"i  Urin«'vi:!\  ii>  b:irj  a^^ii..  acl  he  ! 
he  hfiit  to  \Ir.  NortlKi ,  but  lif  uouUi  imt 
K  to  him  till  be  hail  j^puke  witu  ^ir  Hartho- 
Hkiovttfr,  but  he  wuaM  send  me  word 
I  w|ht,  yet  he  did  not.  Bui  the  next  day 
M  Mr.  BaddKh  to  ne   to  the  diiko  of 


.f  ZJ**  >rr-..  .-*  tf.i:  ae  w  Uli!  h,iTc  .*.' 
ijf' -1  ii..»--i.  '  !^.t.:*-»ua:r-\  I  prin: 
'i-ir  :ue  .t,  i  *•;  i*aj  ike  ^eot  wim  .r, 
•.>;3  i .-  P.i  .-T-1 -^  ;  3Ir.  U  ciue; 
Cr-*.-.  t.  .r  ■  ...-  -t  iheixi.  ^lk.  r.:i 
•*f»l---.  I  irr  -••»  :>*.w*iew'.iich-  acN 
u»l.  aivi  Mr  Lii:r  ri^b  »err  to  b- 
:  .  .  Mr.  b-.-.ei.-.i  ii*;  ibe  ••r.'.' 
r-'j€  I  a.-ry    i  ;■>  !iiri».  1  cat,P"t  h^'|»  0: 


ii: 


.  C^-^i  WAS  LtM  *.r\lKZ  t'< 


Mr.  Baker.  U  wa.s  upOGTburvlaj 

I      Fr-i   i.  M_\  i'HiJ.  may  i  s^^^k?  * 

/-  t.'.  J.  ^ '-'».}>»,  wint}OU  will, 

F  -i    :      My    ir-i.  the  reasiic  wh 

kPy  WtiRias^^    »j-  th  s  :    ihtrv  wi 

m^n.  oo^r  n)l«-;el  t  i.-h.  iieuietumi 

L  !•  as.   I  .^  '.'■  ;.-.T..«.k  to  :fn.  ar*!   1 

Jij'ii  ■.  .:'i  i  :ur.  e  iLorc^.  'h**  J-.'ja 

me  IV   ;..»  !.   ridvea^i  -Dnltr  to  :: 

.■-li  atTe*:   \L\  -fci  :;r*»»-«  ;    l*i!t  th«:\   ■ 

1..  ir,y  ■:.«  ...!  ii:.--r^i.r'^.  t>  ;t  liie-.  i 

r.i:   ii\e<isr ^rr.'-a  .  ;n  !*.   and  »    a  i 

;  ni«  I..  ^42..;  .t-y  .  ;"  r^,^  aa.si?tAr:ce ;  1 

«iw  wu  .i  a  'cs  jn  t, ■■■••*  wa>  iipoo  r 

J.'  .  O  -.    .U  :  vr  Mr.  Cx-iii.  :?:« 

^"'jt.   •"L-v^.:  r'.rr  :?.    b?  was  !H;CJrfd 

'  Ci'^a  ot  Trea-'L^. 

L  t.  J.  Ii  yju  h.i:l  w  »iitei]  iny 
i\a  I  Li.i  •:  •;  b»'en  s»^  t  i.'y  j.  •  L».-.-tni\ 
pecte:  I'j  iie.  you  t^Ii^h:!  :  !;jve*iL..«vt» 
ifi.il  earn*'  i».';  ti»  ri.r.   i  ..iT. 

Just-  t:,.-r.i^'.. .  ii-.t  i»iy  l-n|  ;.ut 
iii  y  .11  J.i*r :""•■«.  c.'M  \-  1  >hew  a;>\  r 
lhe>i»-  jiersoas  sa  •ui'j  iiife  ait\  ii;ii 

Ff-'fi  ♦.  >Iy  '.  r-L  I  wi-  c  «t  ?  ■  'i: 
ycr  a-*  to  kii--v  I'itse  1:1;  ^^  :  4:. 
tii;n:r.  thi:  a  l.k:  ;  iisit'*  :  i.;*..  s.\n  nii 

ih.iij.  t'.TU.'w.  ::»!.. ii^,..r.i  iiw*.'  r»»il 
null;.-!  ti.»  iii'i.^tr.  Mi'-'litf  ti  i\  art  I 
iii>i  .K.>i>r  n«». 

II "-^iy.  N'T  h;i*e  voiir  ;-.  lii.ex. 
lb  it  they  aiv  !»"::i.i:i  Calbvl;'."s.  bu! 
lLt:\  a.«:  rfi>;i:c»i«4r). 

A.  C".  y.  \\  cll.  1  raiiDLft  It'll  M :  a: 
would  lidve  Uir  ■  i.  ;|'  ilit  \  l,.'..»  i^^ii 
Ha*»  you  a»'._>  m.-n.  i.i  sjC.  s.r  Joii:i 

FuinJ.  N  ».  mj  lonl.  I  ieavo  ii  u 
\i»ii,  niiH  tliejiir_\  '••co:iS4iiiTcl'it. 

Sif.  Li.  :.  Mj\  It  |iL'a.so  yniu-  ;.-,ri 
\i»u  ijiMliini.i  •  t  ihr  j.iry.'l  am  of 
iJ»i«»  caM:  r'i»r  tue  k.n^,  uj^aid^t  mi-  J -.I 
the  ;.n9i<int:r  at  the  bar  ;  and  11  c*  uus 
til  sum  up  the  e^idciue  tnai  iia>  U 
Sir  Jo;in  Fi'viiid,  ilic»  pii^-iuirai  the  i 
but  oui).  that  hi'  li.i:ti  h.ihorto  had  1 
inal.  an  {  iiv  Nu...i  ii^«o  i:j  ;easoii  t«» 
ih.it  Idi  hi!ii  ai.j.  iiijury  in  i\\\  pa 
sure  b'.ih  l.t»,  aii«!  yuui  ami  :I  |  ^ 
lAtrJI  reuiembtT,  whcu  persous  of  as 
lily  as  he  is  or  belter,  had  not  the  si 
or  liberty  of  defenw«  in  such  ca^cs,  a 
tlenum  'has  had :  and  though  all  1 


Jhff  High  Treason. 

t  fh^  tliiie  was|  ivitbin  all  our 
i  intiifCtticy  wws  no  ssfety  for  a 
^ moA  leflifiir  his  Hberty ;   and  wtien 

imm  taken  awa^,  und  ure  uivaii9fl, 
t^Srt  iiiuiIiid'^.  Th^  tJTiie  «'ns, 
|H«ileitif»^  ...r.,  ,  .,.  ,..,.>  iK-  .  ^.irrh  of 
qfwikklj  litiHcff 

Hrr  a  vt  .1,  L  .       iseit  is 

* y,  tfip  time  was,  when 
kill   when   Pojiery  (for 
if|»f*n  the  wifne!i»fe»)  njts 
hoth  (14  and  it ;    and  if 
tfi«  Uaxani  of  liis  litV.  ind  at 
,  bJMl  nnt  re«cupil  U5»  Iherf  is 
i  (ml   ihut  all   Ihdt  we  feared  At 
[d  hsirR   b«4  n  nmde  i^ood   upon 
*  ii  uinchfdy  thioif  lo 

J  sort  cif  people 
f*f\'    \y >  n   what  w<»   ttjea 
rontinimtly  endcftfouriiitJ!:  to 
>        *     •   t(  i'i  an  ttnofratfful 
iire<l  his  life  tln^n 
'  ir.re  to  defend 
'ji  oiir  ene- 
c  a  i^tarlv  of 
they  ran  to  in r title  itcir 
Wis  iJi-uc^lyS  Kulijecis,  atid 
If,   ivfiJ-n    h«   is    present 
not  »c<*use  Ihe  pr'(j>onrr  al 
I  ttitiugti  it  IK  pliiita  be  knew 

'  €^U?  I  dH^re  before  God, 
[  Iciiop  n"ibir;^  of  it. 

if  it  wffe  iinuMi^  equals 

uoi^ritiffiil  tbio^.  whtn 

'  ■■:'     T  my  deli-nce,  ihtt 

life*;     i>r  when  be 

I ti- , .    ....  ujy  estate,  1  aUotild 

I  spiTiltDi^  bit.  ' 

*  ||u-  nrkr^ntfr  at  tl»e  bar  is  not 
J  of»  anil  wUal  yon 
rvidenee  nf»  tnen 
I  rr*tite  to  bim  :   hut  if  what 
_  iidfnee  i^ic*in!(t  Itim  is  true, 
r«i  th''  bar  in  one  of  those  |>er* 
%TCke  all  bc^  can  to   mak<>  this 
•^  bcvn  tbe  plate  of  rrtrt-'at  for 
to  (!\   In   fram  pe^fifoutitw  in 
i  M^y  to  m^k^  it  »s  nn- 
tJiat  fif^m  wliioh  fhey  came. 
—r   iipTiin*!  *hin»    ii, 
■  en  it  in  «^vid>?nce, 
>t   ifi  LeadenhaH* 
prisoner,  and 
-  r  t<»  consider 
xrick  the  late 
_  afid  i  at  la«i,  tliat 

iMioui'l  h  '    dy  hi  to 

'  iHe  J  io  bor- 

eblcioaft  .  liiKiOhorsef 

iii»i|  ;;  nnd  that  he 

k«  ittiAt  '  '.td  wiib 

ite  him 

to  meet 


A.D.  1696. 


[50 


to  go  upon  this  errand,  was  Mr.  Cliamock,  a 
person  lately  executp^l  for  the  treasons  of  which 
be  was  attamted.  Mr.  Chamook  was  diffident 
whether  this  was  the  f  ffeet  of  sober  cousidera- 
tioo,  and  thf^refore  wnntd  not  undertake  to 
carry  this  message  unlit  there  had  been  ano- 
i!it:r  oi*eiijig  of  the  same  persons  5  to  see 
whethf.r  iiit^j  continued  in  the  name  mind. 
Another  mcrtingf  accmthngly  was  appointi^d, 
and  agreed  upon,  and  thai  was  at  Mrs,  Moaut- 
joy's  tavern  at  St.  Jiimcs'ii,  and  there,  he  says, 
there  were  almost  all  the  p<!rson«  that  were  iti 
Leaden  halt -street  and  at  that  itkeeiing  the 
question  beii»gr  asked,  whether  tbfy  were  of  iho 
same  opinion,  that  Mr.  CharnocU  siumld 
Ifo  to  France  to  the  late  kinr^  upon  lltat 
me^^apfe,  that  I  told  you  of  before?  they  did 
u!l  Hirree  lo  abide  by  the  old  rfsohition  ;  that  ' 
h^  should  go,  and  make  as  sjniedy  a  return  as  . 
he  could,  and  bringr  hack  the  lute  ftiiig^'s  anitwer. 

Captain  Porter  tells  you,  that  Mr.  Charuock 
did  sfo  to  France,  and  "comcis  and  brin^  wonf  ' 
l»ack,   ibat  the  French  kiogr  could  n<»t  nt  that^ 
time  Bpare  that  foree  that  wjis  then  desired  ; 
dad  sii  it  was  delayed  at  that  time,  becaube  tba' 
Fnench  king  was  uot  at  leisure  then  to  employ*  I 
bis  men  in  this  service;    but  it  was  likely  tor] 
b»?e  taken  p^nce,  but  very  latily,  if  the  pron« 
deoce  of  God  had  nnt  prcTenleil  it. 

Oeutlifineti,  our    next   witness    is    Captah 
Blair,  and  be  tells  you,  That  about  two  yean 
atro,  sir  John  FreintI,  the  nvis«uer  at  the  bar,H 
niieweil  him  a  commission  that  he  had  received* 
from  the  late  kiojj  James,  to  raise  a  regimenlf  j 
of  horse,  of  whieh  he  was  to  be  eolonef ;  thq 
thiH  was  *i^ned   James  R^^x  at  the  top,   and 
cijuniersigned  by  my  lord  jlelfiird,  ami  it  wa»  I 
in  p:<pQr.     And  that* there  wpre  a  ^reat  many] 
c-'onyultatiotis  between  sir  John  Freind,  himself,* 
a  Of  I  others,  about  the  raising  of  this  regfi  merit, 
aod  jirovidinpf  officers  for  it.     He  tells  you  he  ! 
was  to  liave  been  lieutenant  colonel,  and  wa*  J 
to  procure  as  many  o0icers  ar»d  troupers  as  hi 
€Ould ;    and  he  Icils  you,  he  did  procure  several  I 
officers  ;   and  he  names  ihem  ;  one  Fisher  wai  f 
lo  be  eldest  captain,  oneVernatti,  ando0eHall|] 
aniJ  one  Hertham,  and  that  Bcrthnm  was  to  bN^I 
lionteiiant  to  Bliiir  in  hU  own  troop, 

Geiitlemrn,  a  gi'cnt   deal  of  tie  eridefio9| 
which  captain  Blair  U^  given,  is  indeed  out  i  " 
sir  Jubn  Freind's  own  mouth,  and  that  ia  1 
strOiig' an  evideuco  as  possibly  can  he  iriveti{1 
and  he  does  f*.r  tlut  ptirjiose  tell  you,  that  ht  j 
said  one  Evun^  was  to  be  a  captum  of  hora«L| 
and  one  colonel  Slater  was  g^rown  so  loiM'h  iii] 
sir  John  Freind*8  favour,  that  he  rif  alk  d  cap*l 
tain  Itlair,  in  the  opinion  of  sir  Jidm   Freinaf 
and  fiir  John  Freind  f»>r  that  reason  would  biivt 
two  Ijeuteuoht  colonel**,  whereof  81  or er  was  to 
bf»  one.       Captain    Blair  say*;,   he   took   that 
ariiiis,  that  any  one  besides  liimself  should  be 
in  thiit  post,  and  rercnted  tt  to  t  ir  John  Freind  ; 
atid  thf'retbre  sir  John  Freiud   found  out  ano. 
tlit'r  ottice  for  Slater;  :ind  that   wu^  to  be  a 
captain  of  %  trioft  of  horse,  that  khouM  consist 
of  lion-Hv^ earing  pnryons,  and  wluclt  were  to 
b«  an  independent  troop. 

£ 


0?xr.i£3n?L    £.i  ^"U  jm  ^uc  ic  nil    jk  iLzar  r*iua  J^i'v-i^i  mi  iinr  mt'ir 

:l:.i   ;    -^!:»-  nr-r     inc  -jt»^   ii-»  a  "UH   mdkt  uu  iii»c  Fsri'ia-a  miiisr'iHiii  n  ir  : 

-:.^   .1'  ii-..   *^.  I  -n  riti   rtiiut^u.  v-iici  le  uw  ler  •!"  ueo.  iau  r^  n  je  »  r  i.  r  ; 

..-»i\     l.iU       i:«    KiS    ^'iii.    HiiC    BT    ^UlB  Ml~'  .     Iiri    I:i    ILm    Vic    .1    0K   *•.: 

.'  -..  •!     '..it     ii.:i.     ii;^^    iiLi«    j«t::iiinana.    wk  » ltd    Uk    ThuuD  ii-si   •^^■'  «J- ■:*. 

I  ii.iiit-:-   :.4..»^.::    u    ii'rw.  uu  •!•(  Ukc  ir    hik  "nif  2r=£  ide*.      i^ii.  :s^'-  itt  isii- 

y^'    ...11*.  ::.^  le  vb»  ..  M  k  s:ii;uii  ii&sv^e.  i*i   ^-t^l.  ml  uu   am't  t  ;a  sr  • 

-f  -  4..T-I  fa.  (iuuiii.-i      >ii.  r»i[:r-^i:i:.i.  nax:  i*«  !;r  ^inj  xua  11:3.  ^l"    hiik  iiTt  - 

r       ■■.-_•*  -i-.a  nr :  • --_iiii  i^-  -ti  sut:*  am  ik  «-5-:  filBi  iiieaHn:. .  't-  1: 

:ii  'U  -     iiLii   lis  fa  4>i»iii&  ;  iiA  a  lu'^i.-^m-  aac  iub  rfi  ntaa.  hsk  r  uif  "firr* 

«  :.i    111?  uouiiHr  iii-i'      ik  %mrri  aiar  sr  ««iit*i  am.  irtip  levri  sxs'^mi:  m^s^ — 

.1:.:  v^'  ;ui.  t  r  Ufs  *-«sk.;«  ir  -•huii-*  Ftniar  itdtii*^  f^  i,jtsusi  s  n   lit  na^  • 

1  '  If'    'AH  7i«Hr.  ^iii   lUaf  K.~  .'lou    J^anc  t^uri  i^m  Ha  irs^tsicrf  r>«-i  z.--:~ 

i-i   mi:.ai«n«i::  "i-Ain  £ixic  .'im-v  ac  ?c.    -Jvsr-  *^  smivn      uw  ue  jv :  v  czib— ^  . 

7.;^:if .        j:  t    k1j»    ^'iil     2X«*C    ?'^ilL    1^1    »-  '.'.iiaiuiiia       KC    Uls-    »    W    fT     — ... 

*';--L  tiis   UAjfif**     iiic  nil.  2KT  cf:^   T-tn  ar  r^wii»  i*  ul      i.r  c  v:i>  :■«    -   - 

.'■111  ? '::n«t  iti  -mry  s  v  M7  i  u  am     wr  tr  m;.^  unerg-i.  112     s^^-^w  ■- 

▼  i»*3    aiicmi   ll.asr    v.»  :.--.^uui  m  m' •••<■  ^  *"^^  J^'iujifta  ««=^  v  '  r^  >  ^  ' 

r-iin-'zihri  iisi  ii>  -«AMi..ii  !.&;  •  I'.u  I'-iT  i:srt  IK  V  zibTaaoQ^  ns  *-^u:T        iu. 

r*!  L  rr  11  P^ifuj-ift  uu  XT  iii»  _•.  li.     ".'.unafcii  f*-?"    :t-«rr  siiiw:?  uu.  xien  V  :•'  i« 

3.:ur  UmxI  !•  1  i.:cr]s  ^n-ae,-!  i  «>5m;«  -n  "je  r  n  nr.br  iim^  -n«*«uri  lum*-^  •  ii^' 

ujxiMir  -r  .Ik  -''ij^nr.  zil  ib  irnnUs   liizuAz-r  k  u  ii>«a  jh-^luiut -aiin;*^  -  r 

ij    ii»    ^arr^t^n    ir  .•  .uT^mi:.  -it  i  k^-bh  2e  V.;    luc  oair  ip'-  ta  m  -  r  .r-^.: 

tr  .  ..  -  :.£^  npuc-^  'Jm  M  a  iad  iaLf     ui  >    i 

1.:  »:  r-i-  .•   .  ^ ,  »r  .tiuu  J"2Uii  1:^  rnns.f-n  i:  J  ;.r  iRs.iai.'v  .r  !::■•  i***;^  ._ 

Iff*  1.  "i. .   .-^■-  ;.  x»^i-i4*i*  itf  i-»*  I  "r-im  ?'^-  a    "*Ji^».a.     Si-    .  nuft%   -^■■- 

•'  :.  ^.i  ir  .rK.iic*«  j-i  1  ssier  :#»:  •  ^  ri-!!  zirntr.  us  "nifc>  LTr"Tn-Si  ^  sj   ■— 

*-^   :i— -  lau  :iit  itr=-;  mn  *iji-  mr  iiaf  w  1  r  w:  v:irt-^»     i  r  ^••..^'  -i.  :;— 

v"   -^^  Tix^.    :..n  u  iuci  i  xxt* .  aiU  c  mc^   t  Xm»7  x  r  :«»  r.c9.      =^  :. -      ^^    . 

r  :*-:  -^  *j«-_      T.d  n^xxisr  nuT^fi    »   im   a-  n  sn'^  n  y  c-j  1  .tA»5rJ  i'  -ii  -- 

~-n:     -■L..--t-r-i   i    wnnaL  mi  ^  n^  nuc  :::u  ?.;;    .  li ;  I  ir- •   "Ji-"*  »..    »'    -    . 

L-L— _^-         ■_'^':C    till    IXirtir    I,«ar     i*;  :     ..e-:  J  --Z-.    Vml;   XV*   r-'-T    (  u.  .*    •     1. - 

▼  j  .1— — *f«-t  iTu   i;^  T-^ii^mi;.  :ixu  i2--— r  ,  .    n  mnu    -nrujf;    r.   -^ili    i   r^'^Tt^-. 
"He  :-ii  -    .  -  ^   .^  .    Xiii:      ^     ut  »U2»tr  ^  *5^   ••    -       --ii^    :   nu  ;.  -   ^ 
w--i  ;^..   _  -   -".-.—  ^-1-     BSu  :ts  .-■^■ar-.  :ub«  cr.:    ii«=.^   •<*:  i»-  *i-i»i'i  T..r.:-.  . 
^»'    ■■«   :.:•■        ii:;vii    tt*    :*- i    t    i^ru    «*   «r  =-11?%:^    :>5C    i»c^     .     u«.  ••  >     . 
-    -.i   "  ■•-  ..         :  ii-'Tiz:    i    iic    ri^nr^   lui  im.*J  i  w»:"-  n. 

Ai^    u  «-=    x«  1    T  :-    r  :ri  "D    -  £1.^1;:'-*  t-i.i  •^»Mini  i' '..   ..■■     .-..^-  t. 

«'ina  •■!**-..    imlI    .:^    .-   A^.    T  .  L.-»i  1  r*Zii~  xt  :" .  :  .  ^     "  .     - 

u  »^-;  -  .rr.r».  ^     it  -i..-^  ^1    u.r.    ....   .tri-  i:j".i:r>r       ■  v       .■ 

au  !«»  r-.»  a  ::,.   -'..^..:      u- u; -'-      •■i*.-?  .  :.   .  ---  •  .-.  » 

^U  ¥ir^  2:_    -niii   !.  .11   .  ..    •  ■;;  -r    -  .      .-ik  *•'    ■-■-:■ 

■*    «*   M    r.  .!    :^.  :r--   ::-.    .■    .   .  -*      ■  .t ;..  :■.-•   i.  ^    -  .  : 
y^?FBc^     a;:^   i_   ■•   *    :-..            .  ^     ::-.   »  -■.—*■. 

■i^  3U#- "if  ."uu   *  "s--:!!.    T-:i    .:*:'        •■ - 

rci  ti:^    «r  «   .!'*   IT -»:■'»--■■•  "i:  ■  «-        »  .  .   ^■ 

al   in»  -i.ii-«    HI    ;..-:.:^-::--  -  -.     .  . 

M  B^^9  nt  111   IXtt  "vs*-^  n  «  ;:t^.^- 


Iri^w'TfctH  4«M  ..   ;v)>«    •  .U    «i.4     is. 


ir  oayntry^  and  to  your- 
\  gnilty  aceonliii^ty. 


turn  made, 
1Wimip«ft  o''  -^ 

Mivbia  Mid   I 
^fvMttof  tbr 


Mr.  C^mner.     Ifj^wr  JonlsUiji  pleases,  »jmre 

«r  t  v^knl  oa  iJie  Mtrie  sitle,     iMy  loni,  I  do 

•ttmoMtf  jQOr  lortl6lu|Miut  of  nn  Hfiprehcn- 

MB  ilut  ilittns  tit  ADV  ibiij^  nccf^^ury  la  be 

■il*  ibe  cudrt  iti  tfii?*  matier^  or  torVhe  n^  ! 

(MbfeHii  <»f  tii4.*  Jiiry,  but,  if  imssibi^t,  that  we 

M^tDttriticr  the  prisoner  at  tbe  bar,  tbnt  tie 

ImIiI  mmU^rd  me«iuref  in  t\m  pr«»«(eoiitiou, 

■Mliliini,  hot  tU4t  be  b  jvroved  cfiulty  of 

iiMBt  of  Mhtcb   be  stands  &ccus4:d/iind 

M  wtSkw  iherr  tt  no  u ei^bt  ai  all  ia  tbe  dc- 

fi  discredit  one  of 
If,  froili  some  dis*  , 
lo  buyfc  i^iUKsefl  be- 
Uere  |»roibtr.ed,   in 
e.     And  the  first 
.  iipOQ  Btuir'tt  (irftt  [ 
"1  t48  to  I  bat  titne, 
to  uo  more  than  lUin  ; 
ite^piiii  lUair  would  nt»t  ijoniess,  when  be 
■■pBfed  Itj  n  fellow- prisoner,  tbat  be  uaa 
i^^lfti^fO  to  horrid  a  de*ign.     What  iveigbt 
tarifm  «arli  a&  objection,  truly  I  cannot' 
m,km  will  k«ve  it  %a  any  uiaii^s  judjarni^nt  to  [ 
«M^,  ihttlat]  ;       be  i!^  Iresbly  taken  ' 

Ifiancfc  til  (V  [  <  y  not  immediately 

«■*•  ba  guilt  In  *  %  t TV  mi<ly  tbat  meeta  Uiin, 
vyfl*  fervoQ*  tftiit  would  not  bare  liked  bim 
1^  «sktft*«  atirh   a   eonfeasiun,   but  perhaps  < 
^^M  faA»c  dcslK^yed   hifn  iu  prison  for  so 

YW  nWr  dbieofiTBe  wm  upon  Friday »  tbe  < 
^»»4i»,  I  ikiiik^  before  captiui  Blair  went  to 
•M^f-V*!!,  trt  ah  enaniinjiiou ;  and  then  he 
^kBi«<il  into    Btutr'ft  cbaml«er»  when  i 
[  ill  mfon  tbe  bed,  accost&Uim  nith 
fijf  m  bis  ban<U  and  with  gfoud  ad>  I 
Acne  tjuiei  tbat  bi^  idiontd  take  i 
wbai  he  aboidd  say  at  llickbV 
t  llie  lik«  :  tind  tiien  ciiptain  Blair«  it 
iSA  exprec'c  Mime  relurtaucy   in  tbe  , 
r«aaj^tt|[  Mbnut,  as  if  it  were  ai^'ain^t 
kwdtnatiou.     If  tii;it  were  true,  ! 
n  BUir  ilenit^  it  pf»kitiv^;ly  U[K)n 
l^tl  «ras  no  more  than,  1  am  willing 
fe  fof  tbe  ttrKiuif  r,  t-npiain  Bbir  did 
I  l«r«v  whi  cait.e  into  iMinrt ;  ^ 

f   1  xr   iii  uAttiral,  since 

br*fn  tii%  trkiid  und  inliuiate, 
|WMiii^   10  ib-p^He  tbut  a^j4in^t  bim, 
I  l&«ly  ta  pritve  fatal  Ui  hitn* 

a'f  in  nn-'tbiT  part  of  bts  defence, 

itK  ;h  ;  ttie  (4%i4len(*e  brouf^bt 

I  Ibi  .  H  *ijliita»scfc  «f L'  ri*puttrd 

ll^abcMM'*,  ;tiiii  tbat  the  prisoner  is  a 

iFMimaiit  nf  ibr  cltureii  of  Eof/bind. 

t-lt  triM  »  ^'^      n  Im*  ritlionjUy 

|pii  V  \A  this,  tlmt 

Bfii*#^  «   .*......;   .vlitin  tliey   en- 

•  Maek  and  ex^tTuble  tU-fu^n, 
^tffjjt^od  PapiMa  ;  but  1  am  ^ure  it 
t  ifrt«i^  thai  Inr  (krisouer  ifi  so  doiu^ 
I  faftd  PnHdtanL  ^ 

ht  olijectA  to  I  heir  evidence  tliia  | 


A,  D,  1696*  [54 

lik'^vise,  Ihalt  if  tbey  be  p*j*ist<,  they  may  be 
absolved  by  the  pope,  or  their  pricsM,  tlhiiigli 
tbey  nboutd  linear  fiihely.     I^oasibly  tbnt  tnajf  I 
be  so,  for  ang-ht  I  know  ;  I  confes^^,  I  mn  not  I 
%ery   ^p\i  ait^uaintrd   with  tbe  prinripU-s 
thai  rVli(^on  t  but  ihi!¥  1  dure  say,  that  every  j 
one,  who  has  h€ard   \i'h»t  ha««  been  swiirn  by  j 
tbeni,  ivill  think  it  ftn  great  a  disserrice  to  tb«  ] 
popiii^h  i^use  and   interest,  th»t  it  will  be  ou#i 
of  the  lost  tilings  their  priests  will  ever  ab* 
solve  them  of, 

Uly   lord,  there  is  another  matter  the  \m* 
soner  has  thought  fit  to  in^iisl  upon  ;  Ke  hag 
broog^ht  two  or  three  elergvoifn  to   dtfitse^  J 
that  whenever  he   diseonrseil   ^  ith  them   (it  | 
seems  at  all  times)  he  was  talkitiir  about  fiein^ 
iu  a  plot,  and  ^ery  readily  told  m>  resjolution 
not  to  be  in  any.     It  seems  it  still  snaui  up«  j 
|>eniiost ;    hia    professions   were    made  very  ] 
cjiuscleiislv  :    for  they   all  say  nothinLr  jutro* 
dnced  therii ;  but  of 'bin  own' mere  mnliou  he  ] 
WU8  alwsvs  declaring  he  wa^  not  llien  in  a  plot, 
nor  ever'  would  he.     I    hove   heard,  thut  on©  j 
way,  weak  men   ami   chtldrt-n   often  dit»eover  . 
their  knowleilp^e  of  a  secrei  iiilrn»fied  io  thpm,  i 
is,  by  a  repeated  and   uunccetiHury  dcclartng'i  j 
that  they  know  nothinj^  of  the  matter. 

My  lord,  in  tbe  next  pbce  fur  \n*i  defence,  < 
he  itiEt  offered  a  point  ol  law  ;  Imt  I  be  r«*uri  so  j 
well  tjalisfied   him  in   that,   that   I  titiuk   ho  , 
waved  it.    He  alledg-ed^  that  a  Imre  conspti-aey  < 
to  levy  war  is  not  treason  ;  and  tht'  court  did  j 
him  nght  in  deelurtng  (as  tJod  forbid  but  they 
should)  that  it  h  not  treason  :  but   1  dtsi*e  lh#  ^ 
g-entlemen  of  the  jury  would  consider  ilitii  tho 
prisoner  at  the  bar  is  not  accused  barely  of^J 
CO n<t piracy  to  levy  war,  but  yon  are  told   to  < 
what  end  that  war  was  to  be-  feiied,  to  join  tho  i 
late  kind  upon  his  descent  into  this  kinplouf  ' 
witli  a  French   power,   ia  order  lo  drii^e  hit « 
iDuJesty   out  of  the  kin;»di>m,  and  lo  deposo  ! 
him  Irora  the  crotvn  ;    which  is  a  killing  bim 
in  the  eye  of  tlie  law  :  and  that  is  b i&(ti- trea- 
son»   by    whatever    mcuns  they    in  tended    to-  1 
effect  It;    wt»ciher  by  war,  or  a  slab|  or  any 
other  manner,  it  is  indifftTent 

In  the  n>'\t   pLice,    my   lord,   I    would   nofe 
take  nohce   fd'  another  pari   of  his   defence, 
which   had  bcuii   l^^tter  let  tilnne,  wherein  ho  | 
adnti(*»  iluit  he  was  prejient  at  the  two  ineeliny^ 
he  is  act  used  to  have  been  at  by   Porter  ;  but 
he  only  dtHei-s  in  one  point,  tint  there  was  no*  < 
ibluu;  ttilkt^l   then  but  u^rnerat  and   indifferent 
di>*courbe.     I'lie  witnesses   ha%e  swoni    what 
the  di«}CourHe  wns,  and  you  will  wetfi;h  the  one 
ai^ainstt  the  othH";     his  nlfirmntiou  «'t  a  ihiojj 
nnhkely  in  defence  of  tiiin»»elf,  aini  vvlinl  is  de-  < 
posed  oi>on  outli  by  the  king's  witnesses  to  the  1 
coiitniry.  ^  I 

My  lord,  there  is  one  thinif  more  I  wnuhl  j 
lake  notice  of,  and  Lh^t  is  ih*^  evultnee  o|  >|r. 
Bertham^  which  we  di>  ii«»t  produee  nsiiaihieet  1 
ewitlencc  yuanist  the  prisoner  :tt  ihe  Imr,  hot  af  j 
a  eoolirmulion  of  wh»t  was  swum  by    Blair. 
Aoil  kt   does  shew  tluU  the  uKitti'r  Hworn  hy  \ 
Hialr,  was  not  of  late   devised  out  of   nia« 
lice,  or  otlierwbe,  to  deairoy  the  prisoiier ; 


I 
I 
I 


I 
I 


65]  8  WILLIAM  IIL 

for  1  bat  Blair  acquainted  Bertham  frith,  and 
diiscaurHeU  tiira  atiout  Ihe  priticitMil  matters  of 
faci,  that  are  now  sworo,  at  Wast  l»o  years 
ttgtj;  diid  lK^»des  his  evidence  and  tbe  evi- 
d«fiice  ol  Bittir  concur  in  tbi^  particular,  that 
lie  was  i(i  lie  Keuteitant  in  Blair's  troop. 

My  lord,  such  &  coocurreucc  of  eTidcoce 
and  other  cirouinstauoes  iu  this  maltsr^  t^rpatly 
increr*se  the  wet^fht  of  the  pro<if  a^rist  the 
pi ihoiier,  especially  when  there  la  notliinf^  tiia- 
li-jiiil  ull«*tl^ed  by  him  in  bis  defence,  and 
therefore  1  shall  trouble  )our  lordship  do  fur* 
Iber. 

ii^C*J.  Holt.  Look  ye»  geolJemen  of  the 
jury.  «jr  ,loba  Freinrl,  the  pri^ouer  at  the  bar, 
i»  iiidtct^^d  iiir  hi^li  tre;ison.  The  trcastiti  thai 
IS  in«*rjttnDed  in  the  indictment  i»  ciHispirinn;^, 
c»tti;Ki«8in|^  and  irn^pning-  the  death  nnd  de- 
atinciiun  uf  ihe  kin;^.  To  prore  the  conspiracy 
and  desi^u  of  ihe  kind's  dt^ath,  there  are  two 
principal  overt-acN  thit  are  ni^iioty  insisted 
Upon,  The  one  n  the  eonsnltin^^  iiud  airreeing 
vith  d'vrrs  others  to  send  Mr.  Charntick  into 
Fiitiice  to  kio;;  J^mes,  to  desire  him  to  per- 
suade the  Frej»ch  kin^  to  sond  over  forces  here 
to  assist  them;  who  were  to  furnish  other 
forces  for  Iheraisni^'  of  a  war  within  tbis  kiu^- 
doni,  in  order  to  drj#oae  tbe  ktng^ :  and  ecvord- 
ingly  i\Ir,  Chai  uu*:k  was  s>^r»t  upon  that  de^igii. 
The  other  overt-uct  is  the  pri$on*?r'ji  bavioAf  a 
coinntiN»ion  from  the  tale  kin||,  and  prt>parm|r 
and  direelini^  men  l*>be  levretl,  and  U>  be  rea«ly 
to  he  in  a  reyimeni,  of  whnb  «tr  John  Frcrncl 
was  by  that  commission  to  iie  coUmel ;  and  this 
was  aiway«  to  assist  in  the  restitution  of  kln^ 
James,  and  in  order  thereunto  in  the  deposing 
and  exfujlsioii  of  king  William. 

These,  yinitit:nien»  (  tell  yoa»  ^rt  the  two 
overt -aci?i  that  are  priori piilly  insisted  npon  r 
and  lo  prove  sir  John  Freind' guilty  of  these 
ihere  are  two  witnesses  that  have  been  pro- 
duceil;  the  one  it)  explain  Porter,  whospeiJia 
to  the  tir^t,  the  other  is  captain  Blair,  «vho 
speaks  to  Ihe  second. 

Capi'iin  Porter  tellR  you,  Thai,  the  latter 
end  of  May,  or  the  bejfinninq- of  Jime  last,  he 
and  sir  John  Fix^ind,  nnd  othens  that  he  men- 
tioned,  were  at  the  Kint^^s-liead  tarern  in 
Leadenhnli'^lreet,  and  there  they  enteretl  into 
fi  disi^dui'se  abont  the  relomint^  of  the  late 
kin;^^  James ;  and  they  did  con«iid^r  anriooi*' 
iheiuMilves  w  hich  was  the  most  effectual  way, 
and  what  were  the  miftct  probable  means  m 
have  htm  rastored  :  and  tbereu|>on  it  was  agreed 
among  them,  that  they  woubl  send  a  messen- 
ger into  France  to  him,  to  dewire  him  that  he 
would  solicit  the  Frcocli  kinc  to  furnish  him 
with  jOjtKX)  men,  lo  Iw  sent  into  Eni^land, 
8,000  foot,  l,ODO  hoise,  iiud  1,000  draLjmins  ; 
and  ihey  did  agree,  that  when  these  forces 
were  sent,  consisting  of  this  number  of  men, 
then  Ihev  ^vould  bu  rendy  to  meet  and  join 
ilicin  uith  2,01/0  horse  :  every  one  of  them  was 
to  furmi*h  his  quota:  lo  which  sir  John  Freind 
did  es^ptessly  aj^ree.  Tiie  mes!i«!ni;er  tliat 
tliey  agreed  to  »«nd  was  mib  them  in  com- 
p;huyi  aud  iteard  tbe  cooitill^  ivliicii  was  Mr. 


Trial  0f  Sir  John  Freind, 

Charnock,  who  was  lately  tried  and  smce 
cute»l . 

This  being  at  that  tim<?  determiuefl, 
Cbarnock  intended  to  go  upon  theeitxntwn 
that  dt^igu,  and  made  ready  for  bis  |oi 
but  hefoie  he  went,  he  bad   u  desire  to 
witii  the  company  again,  and  Itare  a  f 
djscoun^e  upon  this  luatter,  losee  whether 
did   persevife  in    the  re&olutioo   tliey 
taken.     There  was  another  meeiiog 
week  or  a  ibrtnighl  after,  which  was 
Muuutjoy'fi,   a  tavern    in  8t.   James' 
wiiere  tiiet  sir  John  Freind,  capudo 
and  divers  others  of  the   company  t\ 
htlbre  at  the  King's- head.     And 
entered  into  a  delmie  of  the  matter  again 
quesiion  there  wai,  Hbetber  Mr.   C" 
should  be  sent  into  France,  as  it  was  t 
agn^d  ?  And  there  it  was  agntu   iletej 
he  sboulil  go  ;  to  which  beugrved  ;  ao4 
tarn  Porter  says,  that  be  dtd  go  about 
three  days  alter. 

31  r.  P'i  rtec  tells  yon  farther.  That  about 

time  th  it  Mr.  Charnock  CHmelNtck,  Mr  '^ 

was  in  prison,  and  be  did  oi^t  see  Inm  Uf 

^rst  return,  bnt  iif  4  rvinrds  he  met  and 

with  him,  and  ask<^  hou  whHt  nus  the  effi 

of  bis  negotiation  ?    And    ftlr«   Charndck  1 

bioi,  that  lie  bad  done:oi  he  was  dir*el«d;  1 

he  had  been   wtth    kiu^  James,  aod   li«  1 

spoke  to  the  FnAocli  kiiuj ;  hut  U%**  iiusw«rr 

turned  was  this.  That  the  French  kmi;  bud 

casion  for  liis  force?*  that  year  to  lie  oihfrwai 

employed,  imfl  therr:fc»re  he  could  tiot  aHi 

i  siich  a  number  of  men  thut  year;  and  I 

j  Portfr  asked  him  wbeiher  he  btui 

I  the  rest  of  the  gentlemen,  ami  urH|UAmiMt  tlw 

I  liierewith  r  And   he  said  lie  had.     lhi*»t«t 

substance  of  Mr.  Porter's  evidi  uce  ;  where! 

you  may  perceive  what  tbe  meetings  *»ere  ^ 

what  resotulions  were  there  taking,  and  wf 

waaithe  issue  and  effect  of  them. 

The  next  witne*iK  is  rapl^iin  Blair;  and  I 
evidence  giHJs  to  the  other  part,  that  is,  to 
John  Freiud's  having  a  conmnssion  trom  I 
late  king  James,  uiiil  engairing  him  and 
lo  be  in  his  regiment,  vi  liereof  sir  J  ohn  waa 
de  colonel,  and  the  providing  of  otHcers*  Jy 
'  for  that  the  evidence  siUndf^  ms  t 

Captain  Bt^iriellMye,  ih«l  about  two  orthi 

Jr'ejsrs  ago,  be  was  with  sir  Joht«  Freind  at  I 
odi^ings  in  8nri*ey -street,  and  there  be  il 
Sirnduce  a  commisKiun  tbut  be  had  from  ku 
Fames  to  be  colonel  of  n  regiment  of  bora 
be  was  to  raise  it  himself,  and  w;ls  to  apj>oi 
Htid  provide  what  officer  he  thi»UL;ht  lit.  I 
says,  he  read  tbeciminiitision,  and  it  was  sigl 
ed  at  the  top  James  Hex,  and  countersigned  | 
tbe  bottom  ilellbrt ;  this  he  is  posiiif  e  in  ; 
lurtber,  that  sir  Jofm  Freind  did  pmnnse 
he  should  be  lieutenant  colonel  ot  this  regitii 
and  aUo  tlint  cootain  Blair  viould  get  as  ci 
men  as  he  could ;  and  that  there  wore 
officers  that  were  appoinieil  in  that  ri 
and  particularly  one  Fisher  was  brought 
!;ir  John  Freind  by  captain  Blair,  to  be 
first  oaptatu^  aiul  one  colonel  Slater,  wiio.i 


IhnBiiiotlier 


for  High  Treason. 

I  b  imroitr  with  sir  John  Freind,  wss,  ta 
er  Ueuieoant- colonel ;  fori  t^id 
mmAt  I  liafe  »  luiml  to  bini  to  be 
■nl-CiiUine),  and  though  you  are  m 
Irt  is  no  i natter  if  we  ha%e  two  in  this 
t;  at  wliicli  Blair  look  ?ery  great  of- 
md  expresaad  as  much  io  sir  John 
I;  wliereu|)Oti  sir  Johu  Freind  iM  Uim^ 
1  Dot  be  9iH  hut  said  he  would  make 
provitioa  for  Mr.  8later ;  that  he 
I  be  It  ca{itiiia  of  im  independent  tniopt 
boutd  be  composed  of  noo -swearing  pai- 
,  and  tb«t  frhall  satisfy  him. 
And  sir  Jotiii  Frfiiid  4id  intrust  caplain 
lair  Kith  the  {vrov.thng  of  men,  and  managing 
f  lbein«  And  cav'tuiu  Bbir  tells'you,  he  was 
iA|^f«ai  de^l  fd  cUiirge,  and  bid  out  direrse 
imt»  cure»«  theui,  and  keep  Ihein  together  ; 
li  imiimifr  inotiey  (o  procped  in  that  aOair, 
ICMOM  Io  lir  John  Fi  find»  and  tuade  great 
iliAi  ii{'  ivBUied  money  to  carry  nu 
^in^  the  men  to  kwp  Io* 
<j  |>ress**d  wr  .John  Fi'^ind 
tolMMrii  turn  %viih  mme  money;  says  lir 
Ml,  There  is  lUO/.  due  Io  me,  beeau>^'  i  kid 
b«B  loot  lo  tun  he?  the  escape  of  colonel 
Fiji^otk  lias  receif  cil  it,  and  hail 
i  to  pity  It  me,  but  I  cannot  yet  ^et  it, 
11  bave  Wl'  «»ut  of  that  iOOi.  it  you 
unlit.  WeU,  buthow  ia  that  20L  to  be 
m^f  It  acems  there  was  one  HamKoa  or 
tkmam^  prmt^  who  had  some  inter^t  to 
.  and  he  was  to  htJp  hun  to  it  ; 
tUt*  20L  was  aetuatly  paid  the 
of  June  or  ibe  beginning  ot  Jvily 
ttO/.  be  swedirs  he  did  receive  npou 
bv  the  direction  of  s^ir  irdiu 
•a  employed  af  you  have  been 

BJair  had  occasion  for  more 
t  was  Home  time  after  I^liehat4niAJ 
wuh  lo  be  emjilityed  as  the  t-umier 
nI  hf  was  verv  tiupurtunate  to  ohtiuii  it 
r  Jono  Freind:  at  Uutj^ih  he  did  obtain  it, 
>  you,  and  the  manner  how.  He  pro- 
iltfttW  under  sir  Jolin  Freind'sown  haiid^ 
Hjimiit  Io  be  MO  ati^wei'  to  a  tetter  thut 
,  Blair  bad  «»eui  ui  turn  betore,  he  thiuku 
IJ^bebta  own  hand,  lor  he  in accjuainttd  with 
!■  baud- writing.  B<it  that  is  nat  all  to 
intf  it  hi%  band  I  lor  the  eoiuents  of  the  letter 
it  IMnarkable,  which  are  about  the  payiueul 
iwrnomy  U*  BKttr  :  The  ktler  bears  dale  on  a 
racdU^  mcirumgfi  aud  is  directed  to  captain 
Unr;  and  a  porter  hroug^ht  it,  as  he  tlnnks^ 
I  bai  buuse;  and  ihetaby  it  waa  ai»p<itoled 
bailiiax  abould  meet  on  Thursday  next  a!  Jo- 
■lbia*a  coffee- bouse  about  the  hoor  «d  tnelf  e. 
M  a0eonliii|fly  captain  Btair  came  U\  Ju- 
ItfdHa*^  eutfee^bou^e,  where  be  aecoidiistrly 
Mbaiitliair  ioba  Freind,  aad  there  waa  Har- 
iMVlbe  priest^  audPigi^ott,  and  (here  he  does 
latiiv^  a ftiin  t»f  monuy  upon  the  same  uccouni : 
bllMi  iKiw  ibe  proi^t  of  tiii^  leitar  doei^  not 
k  barely  u|m»q  the  knowledge  of  the  band, 
cOQbaiiS  of  It ;  and  the  subsequent 
tiae  aud  place  ateatiooed  in 


A.D.  1690. 


[58 


ibe  letter,  is  a  great  evidence  that  it  was  tir 
JoJin  Freind'a  band  writing',  and  more  monej 
is  proved  to  be  actually  paid  in  I  he  presence 
of  sir  John  Fretnd,  which  h  the  most  ma- 
terial part  of  the  evidence.  And  you  are  told 
further,  that  as  sir  John  Freind  and  captain 
Blair  were  g^^ing  together  in  a  coach,  from 
Jotiaf ban's  coflfec- house  to  8l.  MartiLi's-te- 
grand,  there  was  a  discourse  betwet-n  them  : 
and  sir  John  Freind  said,  For  his  part  he  would 
not  stir  till  auch  lime  as  tlie  Toulon  fleet  waa 
come  about,  and  joined  with  the  Brest  fleet. 
That  he  did  think  he  waa  in  dan^^er  of  being 
apprehended  wlieo  it  came  about,  and  therefore 
captiiiu  Blair  was  tosculk  tdl  then,  a&he  himself 
lold  him  he  would  do^  but  yet  be  should  get 
what  men  he  could.  Aud  this  is  a  great  ar- 
gument of  Uh  he'inft  concerned  in  the  iniended 
invAiiion,  and  that  hi  si  making  prL'paration  for 
hijs  reuim'  01  bad  relsvlioii  lo  the  French  tuva- 
sion  which  was  ex|H>cted. 

It  seemp,  two  ye;irs  ai(o,  there  being-  a  great 
intimacy  between  Blair  and  m*  John  Freind 
as  appears  by  all  the  evidence.  Blair  waa  ac* 
quaiint&il  with  this  desij^n.  For  you  are  fold 
of  the  letter  that  was  writ  by  him  to  king 
JameSf  which  he  shewed  lo  captaiu  Blair,  >md 
it  wan  ccmceming  bis  reg'icneut;  he  say»,  ihnt 
sir  John  Freind  owned  he  writ  ibal  letter  him- 
scll'«  that  Bhir  did  read  the  letter,  and  finding 
it  sfi  well  penned,  he  said  that  he  thou^^ht  Fer- 
guson had  a  hand  in  it,  at  which,  air  John 
I  Freind  w  as  angry  ;  but  tllair  says,  the  letter 
was  coijcenilng  the*  re|fiment  of  which  sir  Jobu 
Frt-Jiid  w&n  colonel. 

Tlinn,  tjemlemcfi,  you  liave  Bertbam  called 
to  prove^  that  Bluir  did  tell  him,  that  he  was 
lo  be  hi."*  lieutenant  colonel,  which  was  long 
beltire  there  were  any  thoughts  of  any  disco- 
very of  Ibis  iutendeil  invasion,  and  hetore  the 
dit^overy  'd'  the  plot  of  assassiiitttion,  which 
&ir  John  Freind  <tid  own  he  had  some  know- 
ledge of,  hot  he  disliked  it»  aud  said  it  would 
ruin  king  Jameses  aflbirs.  8o  that,  gentlemen, 
1  think  thiii  h  the  mim  and  substance  of  the 
evidence  that  baa  been  given  upon  this  occa< 
sion  against  nir  John  Freind,  to  iiiddce  you  to 
|jelii_'V€'  him  U»  be  gudiy  of  tkils  crime  witb 
which  lie  now  stands  charge  d. 

But  uow  ^ou  are  to  consifler  what  sir  John 
Friend  aays  on  hehaif  of  hunscif  In  the 
tirsi  place,  be  makes  an  obje<Liion  against  ihe 
cvedit  of  all  these  witneHsen,  that  ihcy  are  not 
to  be  believed,  bi?cause,  says  be^  Uiey  are  known 
or  reputed  to  he  lloman  t'atbolics  and  Papists, 
and  their  consciences  and  their  oaths  are  large, 
eiipeciiilly  wbeo  they  think  they  can  do  an  in- 
jury to  any  Protestant ;  and  therefore  they 
arc  pot  to  be  allowed  a^  witnesses,  at  least 
their  credit  Ls  not  sufficient  to  induce  a  jury 
to  believe  them.  At  first  indeed,  he  urged 
there  was  a  statute  and  u  law  that  did  disable 
them  from  being  w  itnesses  i  but  J  must  tell 
you  there  is  no  such  slalttle,  nar  indeed  is  tbeir 
being  PApiats  any  dimiuution  at  all  to  tbe  Cf«- 
dit  c7  tbeir  testimony  :  (For  Papists  are  legal 
witaeMeSi  aad  IbougU  there  wee  «tti4^t«  W>aa  U> 


59]  8  WILUAM  lU. 

pvniih  tbcm  for  thtir  wn-cookftmiij  m  the  , 
roorrii  of  EaglaBd,  and  for  other  their  IVipah 
pnctios ;  ycc  1  kaov  of  w>  law  that  readcn 

F^  ¥o«  are  I6  cocsider  Pm^om  are  ChrirtiaBB, 
r  hj  the  noae  oraa^rehrti  that  IVo- 
K«io;   and  aa for  that supfoait>M.  that 
ihov  look  opoa  Prptiitana  aa  Heretics,  and 

yadhffwuina  &r  aaj  oaifas  that  the j 
L  them  ;  you  are  to  coMier,  as  It 
hm  Terr  weA'ehserreii  by  the  Hag's 
cottDJol,  that  ^ey  are  Defer  lilce*io  okaia  aaf 
dhyeiiiiitinn  or  parcSoo.  if  they  iboiJd  Amvear  : 
«ht«uel«es  to  Meat  the  dedlps  of  the  B9pah 
faity  ;  aad  tlMTctore  it  b  a  very  iaeoasii&erabie 
•hfcvtiea,  a»«i  in  lav  case  haih'no  «e'^t. 

But  liiea  ue  doei  isscat  open  is,  that  ca{)taiD 
BSasr  &»  so:  u  be  teiMf^  ;  aa*!  there  are  two 
ohtetUMi^  he  gtokes  against  him.  Fkrst,  that 
he  j^  deoy  that  he  knew  aay  ihioir  of  the  ploc 
For  Biair'beia^  npca  thia* 
friaaaer  «>  the  Cue-hovae,  aai  aAerwanlsv 
^paa  a  liisuwuse  of  oook  news  m  the  flriac- 
whoeiD  it  was  menfawieU  that  captab 
hid  cfium.ll  all.  «»i  ataie  a  Mi  di>- 
aaJ  thereupon  he  4waU  ot.  he  was 
t  of  the  piM.  awl  knew  toidw;  of  iL 
Yob.  feaarwea,  or  to  esaoder  the  weight  of 
^hai  uOyecco^  Fim.  sa^vmr  he  had  nai  so. 
ii  toiiCtH  be.  he  vaa  bm  wiLac  <»  be  «^s  not 
obhtred  to  owm  ic.  and  vooU  w<  cimaesa  ii  u 
that  dtocukito  thoKe  DersBOS.  Ik  «as  boc 
hia  iaceresc  aaii  Tnalersce  to  be  too  opea  ;  asJ 
•hezefrjcf  ii  'i'sesairc  fxiifv.  6ct  ^lecause  a  baq 
«oa.«£  QfK  STTLsc  tjc-frs  t*^  bs  cJOAfSKea.  bat 
deaiKii  ajs>  £:o«ie<i^  qix  p^*::  vjmo  -jHfre  vw  !io 
orm&'.a  f*:-r  •.•n  r>  ow^  it.  s^itf  3ow  li^;  *wexr^ 
it  pcRU'Vtf.ji.  :-<r«ftH>r  he  iixou.a  swear  Tii»*i\r. 

Cir  toe  «Li<:ioL::p:a  .-r  CiZiirse/.  aa*i  iji  te»- 
Bxai>«iy.  cjtf  ajcn  u*  oiiiix  -jei-idrw*:  :>  ^«u. 
that  3<  on  a<K  &1V  &^  K3ew  9'^  j^v  :iif  Hc  c:' 
the  3i':c.  a*ic  ;.'i  Ccn  liiv  eoa«:er^  t.  jc  ajiuw- 

fe  mii-2  «r  J.. .-a  r  .-ein*!  j*  u-jifX.  i*  »»c:^c 
heM%'  1  j*^  ui  t::^*  •ft:si;£neo  as8a>t>uM&*'j.  set 
of  a  aeii;ri  w-.^^  »Mve  >i  'topuiM  '^tf  a:q£.  joti 
MRurs  kiA^f  Jauies. 

Ften    »  ai  L3tf  -jcier  ancasr  :ii3C  wjo  o^^ 

Siac  i«  •'n.Jd  u»  'ijocaua  Bsair^  ciukiiiwr.  aoti 
mrk  3.ir:!-f  t  i.;*  >nac  a*  Se  a  warh?**  jc 
H.ini:<  s-ixi  ue  i".n  ton*,  lai  said.  1  x^i  God 
lirrff:?  -  -m  ;  uii  j«  ny*  w  v^.  lil*:!!  prmmc 
nut  z  ^T-fci  api^-c  3i»  csBiciHaL-v.  iizd  le 
■am  '  «i  K  ji  v^ry  JTvv  crjOMe  a^oi£C  ic, 
aoit  i^ici  -9  jQiTCj.  L>ic  ]u«  vjyiin  Biair 
OAonasaL  ^isiii^  esLinixt^i  i?mc  lii.-«  cocft.  >bws 
tirs '-  soMiioe'y.  nui  za.>r-  m  «Hr  «.m  am  lay 
WM.v':  ma^  ij  zijz  t  w  .*  n^  't  bis  ova> 
■r.cace  H<f  iay^  ixac  .4«i^«avy  ^  j<  n  to  am 
-•-  ]}iiiL.  Jai  J<  ■«■  w  io-ftre 
>:i:::^  li  baev  bi^toanx  K«e 
le  i^ite  nriMiMao  to  ne 
if  iwean;  toiKto* 
vuh;  ami  Hr. 


7ns/  //Sir  JcJfai  Jrend; 


Beside*, geotlenBea, yoa  aretoi 
probabiLty  of  that  which  Mr.  Courtney  a 
When  m  aiaa  is  to  be  m  witneaa  the  next 
npcto  a  bill  of  indjcfent  bdbre  a  prand. 
that  he  should  be  so  itoiiscieeC*  as  to  lej 
bad  J  he  was  goin^  to  swear  against  hia 
^cie^l^e.  b  stnc^  aad  very  iiaafowiw 
Yo«  are  thciefoie  to  rniiiirtiFr  of  this  ^ 
matter,  what  evidence  ca^icziB  Blair  has  g 
aad  the  iapait  of  ii,  aad  the  wci^  asi 
dtoility  of  that  evidence  which  is  pvea  9§ 


Then  air  John  Freind 
aaatier :  Says  he,  I  am  a 
nat  GkelT  that  I  tbntama 


an  9V7->^if  !u  «ur'j<' 
af  ir.nd  a.«  iBinCi^ 
fas  ml 


lor  tbnt  he  hoa  called  e%ht 
TontherhBre' 


ftefBeatly  taumatd  with  him. 
he  was  ever  piipaihly  i 
they  have  been  fn^iBitfti  ia'h&i  com 
sinee  the  Revc'miBB,  sBd  they  never  kar^ 
ataar  tiaaeheulbuUBd  Bfon  the  ^ooeimi 
■ay.  1  thiak  one  mid.  thai  once  he  did  ro 
a  man  libr  taOuac  — liimiily  at  the  pi 
meat ;  that  he  »ed  CMSCutf  y  to  ^o  to  c^ 
t\Mr  or  lire  yean  ago  ^thoogh  there  is  i 
coont  Of  that  anee  •  Aad  partienJaitv 
ii  sne  Mr.  Laipam  that  was  hm  rhiplim 
hetefla  yeo  bewaoia  biaboiHe:  aodlfat 
rend  the*  cvoimoa- prayer  in  the  tsmily 
the  Rrroiu&oo.  atai  prayei  tor  the  kiae- to 
!iice  ^oeen.  aaJ  nr  Joda  Frcuad  w^f  eiftm 
seac  as  the  pnycrk.  aad  ponicTikLriy  whi 
prayed  tjr  tse  {rmeiit  kaac.  aa-l  the 
(^i:«<Ki :  bet  ce  sajs  he  ^uxnaisit'  hx»  be^  ] 
th^fn.v  S7e  i«ars».'aAi  b-to  jcen  iioae  confo 
wi;:>  2ini  HM. 

Tcere  2f  aobUier  w'.tiesa  toils  yoo.  he 
betnx  ^  >.r  J-*Qn  Fcvisd'y  ctiiiig>*a«  iL-versB 
m-3it7*ji  ih*  3eii<vc4W  3e  a  FtniceaciBa  ol 
chc-v^i  vf  Eii^asa.  asti  ham  aad  a  diie 
CMjicvru.u^  u«  Trvseoc  x^veraowat :  am 
siT  Jjit3  fc'mod  «Lti.  iiA.li  liiiM^ra  be  coal 
a.<e  3e  MiOd^  iu«i  :3c  kov  cuoiiirai  to  thi 
v^rninefu.  y^  be  *  is  -e^  t*«*l  '.o  hve  ^ 
aacer  :c  ;  ia<i  w<*4  ii  jcc  tuiruce  .a  aay  bb 
oc  pri*c  pV  be  ijtjc  onccifaM  a  m  ^  \he 

«iM«iia  JHl  Site  iB  i!M  'HhiCtj*. 

Tbj«  »  ne  turn  *aa  MObCUKv  rf  the 
deace  la  buch  ^niies :  aon  voo.  ;fvaik 
jrv  ir»  cvaaMiier  to*  •  i\zn£  'ti  txs  port  « 
defeiice  tLt?.  votftaer  is  je  a  4u&*:eut  as 
to  L-ie  ev.ueo.-tf  scivm  j|^imsi«  i.iU,  aat 
wai(rSc  «n:iia^  ai  jtifr-aoi-anof  wniU  the 
3KtfM»  Sir  wi«  JL:*?^  3a*;;  $«'Mn  '  F<K  a«£b 
be  TO  a  ftV^esfciiic  ^«fc  :c  »  Ti-oin  be  h 
i^nnL:  o^tibc  a>  tr^  ^j«mm<a& :  jnd  rtiec 
wvu;d  auc  Kike  ;3e  4«U2o  :  aoii  ci^Mi^  bi 
preMrac  »  the  coujomo  ?ra%«r.^  w^a  the 
jo«i  iiiarvo-  were  pra^tAi  air.  y<t  wbetto 
90iD*4  a  tiawo  iirat«r»  to  niry  aac-e 
^fVmran!  a  <nraB  3nm« .  wno  see  nuc  «cr^ 
adevaeil  to  the  prmoac*^o«e 


ba  a  lars 


>1 


for  High  Tii 


JL  D.  1696* 


^if  j<ii  nti)«r  liny  ITS  for  the  present  ^o- 

\  pMWM  Ar  t-rt :  \uh  nmnrU  iic:'  lluit  fscru^ile^ 
tttt^af  that   too; 

^0  wkmh  i;   tt  Pro- 

MWrifti  (ie  in 

•  linkii  re  he 

tmm  If  ttal  Ltnd  »botitii  ditcrmUt  these  Yvit- 
»MMsM  fiifi'  iMUfii  bp  hti8  bct-n  j$o  much 
r«BMJ  In  ft  Ptot.  y<m  ttrtr  to  CfJUHitler ;  atid 
CWfHV  ''  -nil  uAturc  of  the  ovi- 

iiMli  \  ih« other,  it  must  lie 

lM#jMr  «M[MrT|iM    .11111(1. 

Ha  the?  ti  Aiifiher  thing  that  he  <hd  in- 

fti  ipB,  Ufd  that  tti  maittir  iif  law.     Tht^ 

MMi^  tif  IMli  ¥J,  3,  was  read,  which    is 

^paimiatf  %hm\  trc£i«cms  ;  und  that  does 

■  liTRstfiecieM  of  ireitfiOii,  and  declares 

M  W  tms4»ti.     One  treason   is   the 

ami  ioiaginint^   tlte  de&^b  of  the 

il  thr  leryinjf   of  war :   Now, 

iW«f  it  no  war  aclonlly  levied  ;  and  a 

K-y  or  tlf&jgn  to  Wvy  war  does  not 

lilt  la»»  aijainst  trenson.     No^v 

mmi  I**!!  you,  if  there  be  only  a 

wsr,  it  is  not  treo^n :  bcil 

^lirf«i»f»irory  he  either  to  kill  the 

ihinu  or  iitifjriftou  him,  or  put 

upon  him,  and  the  way 

^aff^fCtiDg  of  these,  is  by  levy* 

^^t  tficT^  the  coii*?oltation,    and   the 

,     ,  ^  Ir? J  a  **ar  for  that  purpose,  ia 

Ifl^lniidct,  ihouuh  no  war  be  levied  :  For 

■^QBultufnn  Nud  cou!<piracy  is  an  o?ert- 

tapmit^  t\^  lompiii^ing^  the  death  of  tlie 

^*»W4«ih«<  firm   treH-suo  meittiiiuod  in 

^mmnl  tiic  S5ih  of  Ed,  3.     For  the 

J^^'AsttaUiic  are  ;  •  That  if  any  man 

f^,^^f^  *^^  imagine  the  death   of  the 

fy-' .  «w»  bmuii<'  H  UMU  ilesijfUR  the  death, 

^^^^  *■  drjtructioii  of  the  kinff,  and  to 

J"^fu»  •§fr«o  and  consults  to  levy  war^ 

not  be  high 'treason,  if  a  war 

liyWvbd,  1*1  u  very  str&tige  doctrine, 

-  ^  haa  aiwiiys  Iteeti   iield   to  he 

TWnnwiy  be  a  wwr  levied  without  any 

Lti.tr'*  ofrson^  or  endan^ritig 

U'vicil  is  high-trea- 

;;  f}  levy  war,  with- 

rson*     Aji  for  exain- 

J  I  hie  themselves,  and 

o  to  unine  bw,  which 

and  hope  thereby  to 

Icvyiuff  a  war  *and 

>^  and  d(*«ii|^ning  it  is 

iM>rii   iiiij    eiideavfjor  tti   great 

*lli«QK  iHlk  focce  lo  pull  down  all  in* 
l»  tXpel  atrmngers,  to  pull  down 
|r*^****i  !■  Inrytiigvf  wnr,  and  treason: 
l^t  purpgtHDjS  aod  de^iq^iiinrr  to  raise 
It  imttt  Utr  tiseb  »  ptirpoisc,  tk  not  trem- 
St^tm  feffttrr  Edition.  As  to  th  is,  wne 
isCIVMir  ^rt>ih\i  t  rihd  olln  t,  if:^  jJiis 


ruurn  III 


numbera  with  fi>rce  to  inake^oine  reforraation  of 
their  own  heads,  without  pursuing  the  methods 
of  til*  law,  that  is  a  levying:  of  war,  and  trea- 
son, but  the  purposing  and  designing  it  is  not  ao. 

But  if  there  be,  oi*  I  told  yoti,  »  purpose  and 
dei«i!{n  (o  (leittroy  the  kioj^,  and  to  depose  hiui 
from  his  throne,  or  to  restrain  hitn,  or  hava 
ixny  power  over  him,  which  is  proposied  or  de- 
signed lo  be  effected  by  war  tliat  is  to  be  levied, 
sneh  a  coD»pirar\  and  eonRuhatioir  to  levy 
war,  for  the  bringing  this  to  pa^,  is  an  overt- 
act  of  high -treason.  So  that,  fTPotleQien,  a< 
to  ihai  objection,  that  he  makes  in  point  of 
law,  it  is  of  no  force,  if  there  be  evidence  suf- 
(icietitto  convince  you,  that  he  did  conspire  to 
levy  war  for  such  an  end.* 

Gentlemen,  the  evidence  you  hsvo  heard 
what  it  is,  you  may  consider  the  weight  of  it, 
iind  the  eireumstances  that  do  attend  it ;  and 
likewise  the  answers  that  have  been  given  by 
the  prisoner  to  invalidate  that  evidence,  and  to 
prove  the  improbahi!itj  of  what  they  have  tes- 
tified against  him.  You  have  heard,  I  say, 
the  evidence  on  the  one  side^  and  on  the  other  ; 
If  you  are  not  satisfied,  that  what  the  witnesset 
have  sworn  is  true,  that  sir  John  Freind  did 
engage  in  such  a  detii^n  for  such  a  purpose, 
then  you  are  to  acquit  him  ;  but  on  the  other 
side,  if  you  believe  that  sir  Joint  Freiud  is 
guilty  of  what  the  witnesses  have  deposed 
against  him,  then  you  are  to  find  him  Guilty. 

Juryman^  My  hinl,  we  desire  we  may  have 
that  letter  with  ns  that  was  produced  here. 

L  C,  J,  No,  00,  you  cannot  have  it  by  law* 

Juryrrtan,  Alay  it  not  be  \ci\  with  the  Ibre- 
inan,  my  lord  ? 

L.  C.  J.  No  I  btit  you  may  look  ytmn  it  in 
court  before  you  go  away,  if  you  wilL 

Then  the  Lctier  was  handed  to  the  Jury, 
and  one  of  them  banded  it  to  the  prisoner. 

L.  C^  J.  ^by  do  you  do  so?  Yon  should 
not  give  the  prisoner  the  latter* 

Jurytnan,  It  was  done  to  see  whether  it  was 
ht«  hand  ;  and  we  desire,  if  there  be  any  Inidy 
here  that  knows  his  hand  writing,  or  that 
saw  him  write  it,  inav  he  prtiduced. 

L.  C,  J,  Why  ?  iJiil  not  be  own  the  letter 
to  the  witness  atteruants?  It  was  &wom  to  you 
he  did  ;  and  that  he  met  according  to  the  ap- 
pointment in  ttie  letter,  and  thai  money  was 
paid. 

Then  the  Jury  withdrew  to  conBidei  of  their 


I 


*  As  to  this  matter^  see  East*i:  t^leas  of  the 
Crown,  chap.  «,  sect.  9,  and  the  Stat.  :i6  G.  3, 
c,  7,  i.  36,  The  doctrine  of  ro untrue tive  Trea- 
son  is  much  agitated  in  numerous  cases  in  thi« 
Work.  8ee,  in  particular,  the  Case  of  lord 
Russell,  vol.  9,  p.  577,  and  the  discussions  to 
which  it  gave  rise,  voL  9,  p.  605^  et  teq.  i  the 
Case  of  lord  George  Gordon,  k.D,  1780,  and 
those  of  Hardy  and  liorne  Tooke,  a.  Dr  1704. 
See»  also,  Mr,  Luders^s  Co  odd  c  rations  on  thf 
Law  of  High  TrMson  ^  the  articU  of  Levying 
War* 


swnjUAMm. 


Mr.CUrk.  Here    {Mud  m  id  a  ike  T9A 

ymtrfef4ttt?'-~Jufy,  Yes, 
CLifArr.   WIm»  OmQ  Mj  fcr  jMi  ? 
Jarfjf,    ihir  fmrtrnm. 

a.  t^Arr.  ¥k  iolm  Fmid,  Md  m  A j 
hMi,  (wlndb  Im  my  Look  apoB  llw  piv 
•ODcr ;  bow  «iy  ye,  w  Im  Ctaihjr  of  ilw  kifli- 
tMMon  wb«roof  be  ttoadf  biftrttd,  or  flol 


ChifHy  f— Fot^mmh.   Guilty,  wy  lord. 

CL  if  Art.     Wbol  foo£  or  aMttd 
«r  tciMflM!ffit«  hul  be  01  Ibr  tiae  of  the  bigfe- 
irtawo  comoistted,  or  al  aov  tisM noef 

IbrMMn.    None,  tooor  kaoirlcdge. 

X.  C  X    Jaikir,  look  to  bhn,  bo  it  I 
0vil^  of  bi(|[fa-tretflM* 

CCofArr,  Tbeo  bearken  to  your  venKcf 
m  the  oourl  bae  reeorded  h.    Yoo  aay  thai  «r 


Ci.tfArr.    Crycr^i 

Cfjprr.   Oyex,  oycx*  eyes'!  Aft  bmoi 

noM  tbat  bof  e  ai^  dnajf  BHiir  10  do, ) 

idTerariacr,  balde*  ler  ibe  city  of  Lei 
awlGool-detiveryofNcwiiatp.  bnlim  Ji 
dtj  of  Lnmim  md  ceaaty  of  M iddlcoes, 
for  tbie  tiaie,  aod  ^re  tbc 


fCfCB  o^cbck ;  aad  God  Mve  tbeKin^. 


TbcD  tbe  prvoaer  was  carried  back  to 
gale,  aad  «rai  breugfat  tbe  aeit  day  to  t^ 
to  oiirr  what  be  bad  to  eay  tor  ttay  of 
;   aad  afleiaaida  leoeived  eeatei 


aaatraUor. 


385.  Tbe  Trial  of  Sir  William  Pabktns,  knt  at  the  Old-Ba 
for  High  Treason:  8  William  IIL  a.d.  1696.* 

Then  tbe  Jory  that  were  retoroed  in  th 
nel  were  all  called  orer,  aod  the  appem 
of  thoae  who  aaswered  to  the  call  we 
corded. 

Aboat  ten  of  the  clock  tbe  Judges,  (ti 
tbe  Lord  Chief  Jnetice  Holt,  the  Lord 
Justice  Treby,  and  Mr.  Justice  Rokeby, 
into  the  court. 


Tuaday,  March  24, 1696. 

ThM  day  the  Trial  of  Sir  WUltam  IHtfkypa, 
knt.  came  on  at  the  Sessions- House,-  Old* 
Bailey,  fnr  II iaii -Treason. 

CL  of  the  Ar.  Cryer,  make  Proclamation. 

Crygr,  O  ves,  O  yes,  O  ytM.  All  manner 
•f  porsoni  that  hare  any  thing  more  to  du  at 
tilils  general  sessions  of  the  peace,  sess^ns  of 
Oyer  and  I'erminer,  holden  for  the  City  of 
London ;  and  Gaol -delirery  of  Newgate  holden 
Ibr  the  City  of  liondon  and  county  of  Middle- 
■ex,  and  were  adjourned  orer  to  this  day,  draw 
near,  aod  gire  your  attendance,  tor  now  they 
will  preeeed  to  tbe  Pleas  of  the  Crown  for  the 
eetM  oHy  and  county :  and  God  sa?e  tbe 
King. 

C7.  fifAr.  Middlesex.  Cryer,  make  pro- 
datnation. 

Crver.  O  yes,  You  good  men  of  the  county 
of  Middlesex,  summou<Hl  to  appear  here  this 
day,  to  try  between  our  sorereign  Lord  the 
kkig,  and  tbe  prisoner  that  shall  be  at  the  bar, 
tnswor  to  your  names  as  you  shall  be  called, 
^try  man  at  the  fint  call,  upon  pain  and  peril 
shallfbll  tberetipon. 
^ ■ '  ■'  ■  '  ■ 

*  See  Kaat's  Pleas  of  the  Crown,  chap.  9, 
■eot.  8,  9,  and  tbe  autborities  there  cited.  8i*e 
toOi  in  this  Collectioii,  tlie  cases  of  sir  Henry 
fane,  vol.  6,  p.  1 10»  of  Messenger  and  otiiers, 
t«lO»  p.  aro  { of  Wbitobread  and  othera,  vol.  7, 
1^.  till  of  bummmm and otbai»»A. p. ITIO, 
Mdof  l>oiooii,a.D«  UiC. 


CL  cfAr.  Set  ab  William  Phrkrns 
bar.  r  Which  was  done.)  Sir  Wittiam 
kyns,  hold  up  thy  hand. 

Parkynt.  My  lord,  if  you  please,  I  h 
beg  tbe  favour  of  one  word  hefore  I  a 
raigned.  My  wife  cominsr  to  see  me 
distress,  sent  up  a  trunk  of  lioen  for  oi 
and  the  sheriflTs  of  London  hare  seized 
do  detain  it.  It  has  linen  in  it,  and  all  I 
oessary  things,  and  all  things  havo  bee 
from  me,  since  I  was  appre4ieuded,  but  ^ 
there;  I  have  nothing  to  siihsitt  upon  bu 
is  there ;  for  no  money  can  I  get  from  anj 
nobody  will  pay  us  afarthiiig. 

Mr.  Sheriff  iBuckingham.  My  lord,  w 
sent  for  to  Mr.  Secretory  Trumball's 
and  when  we  came  there,  there  was  f 
that  had  been  seized,  as  belonging  to  s 
liam  Parkyns ;  and  when  we  came  th 
was  opened,  and  there  was  in  it  some  he 
linen,  end  some  plate,  and  Mr.  Sei 
Trumball  waa  ideased,  afler  having  se 
the  trunk,  to  seal  it  up,  and  deliver  it 
brother  and  me,  to  be  xopt ;  and  this  is 
know  of  it. 


JiifT  High  TriUMftu 
Wbere  wts  ibis  trunk 

W«  fouM  if  iu  the  secre- 
'  It  mmm  ilelivfivfl  to  UiS  tliere, 
^e  «  rerr«^  fof  it  to  \mit^  it  duwti 
I  rm^led  ^ir  i  y^  cfid  not  \kt\£Ai  it. 
lx>ok    ye,  Mr    WiKtam    Purkyns, 
wmm  urisrtl,    I  fiii|ip<Hft?i  in  order  to 

.  Vcs,  I  Mieve  (t  was ;  but  I  hope 
Ktliiverie«t  back  now  they  have  fWuiitf 
'I  li«Ye  uQtUing  eljw  to  iub' 
%%  tb^re. 
r  may  plate  tliereT  What  is 

Tlicsre  fs  aorne  clia|vrr  and , 
pH  atid  some  piccw  of 
bnndrvfl  otim'^s  of  [sWlc^  for 
» bAd  it  from  the  Secretary's  ^ 
f  iKd  not  Md^  it, 

mlgei  cofititlted  tmoog  them- 

Tte  atifcHl  10  bare  hi«  plate  ta  sell, 

Bk  iKat  he  may  have  bread. 
iill  yrmr  lanhbip  |ilett8e  to  direct 
IHrisritback? 
tHk^^otme  care  or  other  shall  be 

k  My  lorlf  t  bave  nothin|^  to  sitb«ist 
mm  I  cfto  niJ^ke  something  of  wlinl  is 
ppv  m  wile  and  fourcbildreo,  and  no- 

i  IfpOD. 

[  yiwir  wife  make  application  for 

ar^'s.  It   cannot  now  bu  done 

fit  I  not  Miiiki;  complaint  of  it 

1  bei'n  Utken  in  it. 

1  c  Has  a  petiiiun  ; 

;  a  K\i»^e.  pris'iner,  anil  thry 

I  Iff  a*    a  pi4itioii  ;    but  fny  wife 

any  thinK  of  it  to  me  till  af- 

llbiH^  talk'd  nf  an  order  of  coun* 

had  for   the   ibnifTs  i$4ri/in|^  it ; 

be  ui  euoitirr!  into  it,  there  waa 

hi,  butoaly  to  aaareb  and  exa- 

rdl,  tome  order  shall  be  taken 

fi^noi.  My  h^nlf  we  tiaTe  given  a 
»1baftiQf«c»ry  for  it. 

ba  %un»x  hare  wherewithnl  to 
ly  btm    bread   while  he  \%  in 

,  lord,  I  »w?€  Mr  Bnr- 
sr  John  Frriiid'«  fcoli- 
uld  buuiidy   move  your  lordiiitip 
Ir  kii|mrc*l  tfito,  Imhv  hn  cnine  J»y 
fallbt|ttry  vr  Forii»e*iu»i 

I  a«i   a«  it  H  C11  tiie  j»ri- 

Mnorl 

.  hi**  I  Ibink  then  can  ba  no 
)i  ■      *    *  '  •'     ':  it  wotdd  be 
ilia  >  'itineiL 

U*  in.  [\Vlu<^h 

'  r.*  \  I  he  jidtinel 

IJrJ.-.-.-    --.^.i:* 

I  tiail  tlirte  fcraral  co- 


nie«tent  me  hj  sir  John  Freind'sfnemU,  to  the 
Hon*  tavi'in  alMjoi  ihree  or  four  o'clock,  and 
I  dt^livered  one  of  ibeni  to  Kir  John  Freind  ; 
but  he  had  one  before  I  deliyeretl  mioe. 

L.  C.  J.  Who  sent  thera  to  you,  or  brought 
I  hem  to  you  ? 

Bnrki^k.  I  had  them  brought  to  me  by  u 
porter, 

Mr.  Bakcr^  You  know  yon  might  have  had 
it  from  the  pro|frer  othcer,  for  asking'. 

Burl,  I  had  iliem  brought  me  from  S5p 
John  Freiud's  friends. 

L,  C.  J.  Can  you  tell  who  had  it  from  th#' 
aherifT.* 

BtirL     My  lord;   I  know  uot:  I  had  threo' 
ctvpies  sent  me  in  a  quarter  of  an  hour's  time  ; 
whence  they  came,   I  know  not  *  the  sheriff  \ 
know8  ine,  and  e^^ery  body  else. 

Sh.  Buck.  I  do  know  you,  and  would  havar 
you  be  fair  in  your  praciire. 

Bukcj\  The  inquiry  ia  made,  because  m* 
false  copy  is  put  ujion  him ;  you  might  hav# 
had  a  true  copy  it  you  had  apphed  yourself  J 
right. 

BurL     I  sent  to  Mr.  Farriogdon  f»>r  it 

L.  C\  J.  The  sheriff  dc'livered  it  the  se- 
conitaryi  who  Uthe  proper  officer. 

Just.  Hokebf/.  Sir  John  Freind  said  he  had 
it  from  him  yesterday » 

BurL  But  lie  had  one  before ;  bow  he 
came  by  it,  I  can't  tell ;  nor  whence  those 
came  that  were  brought  me  in. 

Just,  Rokebtf.  If  you  will  not  take  care  t» 
go  to  the  rijzhV  place,  it  is  nobody's  fault  bui 
your  own,  it  you  suffer  by  it. 

BtirL  I  \\as  with  my  lady,  and  delivered 
a  petition  for  \\m  trunk. 

L.  C  X  But  it  seems  it  was  under  th« 
cunifzance  of  the  secretary,  and  direciion  was 
vfivt?n  10  go  thither :  some  care  or  other  rau^t 
bt?  taken  in  it,  and  shall  \  but  go  on  now  to  ar- 
ruigu  the  prisoner. 

CL  of  Art.  Hold  up  thy  Imud.  (Which  be 
did.)  Thou  standest  indicted  in  Middlesex  by 
the  name  of  sir  Wihiom  pjrk^^ns,  late  of  the 
I>arish  of  Hi.  Paid  C oven t  Garden,  in  the 
county  of  1\ lid dtejsex,  kt.  For  that.  Whereas 
an  open,  nod  fHilonouMy  pnblic  and  most  sbur[i 
and  cruel  m  nr,  for  a  long  tunc  h»th  bet^n,  nndyet 
is,  Sy  Eieaund  by  land,  Itjid,  carried  on,  and  pro- 
secuted by  Le^is  the  Ficnch  ting,  against  th4 
most  senrne,  must  tltustrtous,  aotl  most  excel* 
lent  pruioe,  our  sovereign  lord  U'ilhain  the  3dg 
by  the  grace  of  God,  «if  Eagland,  Scollnnd, 
trance,  and  lrc^laml«  king,  defender  of  lh<l*  i 
f^dth,  'Sec.  During  all  t^hich  titne,  the  said*] 
Ijcwis  tti^  French  king  and  his  suhjecls  wer«, 
and  yet  are  efsi'mies  of  oi*f  said  lord  the  kinff^  ] 
that  now  i;*,  and  his  subject*,  Y^n  ihe  said  sir 
William  i*iirkyn3,  a  •lubjt'Ci  nf  our  said  sove- 
n  !  '  TJie  king  thsit  now  is  of  this  kingdom 
<  '    well  ktiowiug  the  premises,  not, 

1*1...,,;  luri  fear  «J  Uod  in  your  heart,  nor' 
\«'*  igbiusr  the  iluty  of  v^nr  alh'ginnre,  hoi 
bMiig  mot*«d  and  K»<luce<f  by  the  iuKtigation  of- 
\hr  tlevil,  ••  a  taN  traitor  against  the  aa)4 


67J 


6  WILLIAM  m. 


Trial  of  Sir  WJHam  Parfynt, 


P 


iDOsi  ferene,  uiost  clement,  and  most  cxoenent 
prince,  our  said  soverei^  lord  William  the  Sd, 
ttow  Wio^  of  En^rland,  &c.  your  supreme,  true, 
Datural,  ri((htful,  lawful,  and  undoubted  sove- 
reign lonl ;  the  cordial  love,  and  true  and  due 
obedience,  fidelity  and  allegiance,  v^bich  every 
■ubject  iif  our  Mid  lord  the  kin<c  that  now  is, 
towaniii  him  our  said  lord  the  kin^,  should 
bear,  and  of  right  ought  to  bear,  nithdrawin^, 
and  utterly  to  extiuj^uisb,  intending  and  con- 
triving, and  with  all  your  strength  purposing, 
designing  and  endeavouring  the  goremment  of 
this  Kingdom  of  EoKfland,  imder  him  otnr  said 
lonl  the  king  that  n^w  i<t,  of  right,  duly,  hap- 
pihr  and  very  well  estiildished,  altogether  to 
subvert,  change,  a  11 '1  alter;  as  also  the  same 
oar  sovereign  lord  the  kitig  ta  death  and  final 
destruction  to  put  and  bring  ;  and  his  faithful 
auhjects,  and  tlie  freemen  of  this  kingdom  of 
England,  into  intolerable  and  most  miserable 
slavery,  to  tlie  aforesnid  French  king,  to  sub- 
due ami  bring;  the  first  day  of  July,  in  the 
7th  vear  ot  the  rei^n  of  our  said  sorereign  lord 
the  king  that  now  is,  und  divers  other  days  and 
tiroes,  as  ueil  before  as  after,  at  (he  parish  of 
Sl  1^u2  Co\ent-Gardon  aforesaid,  in  the 
county  atmesaid,  i'alsely,  maliciously,  de- 
vilisluy  and  traitorously  did  compass,  imagine, 
contrive,  purpoije,  design  and  intend  our  said 
aovcreign  lord  the  king  that  now  is,  then  your 
supreme,  true,  natural,  rightful,  and  lawful 
soTereign  lord,  of  and  from  the  regal  state, 
title,  honour,  power,  crown,  eommand,  and 
fl^ovenimcnt  of  this  kingdom  of  £nghind,  to 
depose,  cast  down,  and  utterly  to  deprive; 
apd  the  same  our  sovereign  lord  the  king,  to 
kill,  slay,  and  murder ;  and  tlie  aforesaid  Lewis 
the  French  kincf,  by  his  armies,  soldiers, 
legions,  and  subjects,  this  kingdom  of  Eng- 
land to  invade,  fight  with,  conquer,  and  sub- 
due, to  move,  stir  up,  procure  and  aid  ;  and  a 
miserable  sluufj^hter  among  the  faithful  sub- 
jects of  our  baid  lord  the  king,  throughout  all 
this  whole  kingdom  of  England,  to  liiake  and 
cause;  and  that  ^ou  the  said  sir  William 
Tarkyns,  to  the  aforesaid  enemies  of  our  said 
lonl  the  king  that  now  is,  then  and  there,  dur- 
ing the  war  aforesaid,  traitorously  were  ad- 
hering and  aiding ;  and  the  same  most  abo- 
minable, wicked  and  devilish  treasons,  and 
traiterous  com  passings,  contrivances,  inten- 
tions, and  pur)Kme8  of'yours  aforesaid,  to  fulfil, 
perfect  and  bring  to  effect ;  and  in  prosecution, 
performance,  and  execution  of  the  traiterous 
adhesion  aforesaid,  ^ou  the  said  sir  William 
Parky  ns,  as  such  a  iaise  traitor,  during  the  war 
aforesaid,  to  wit,  the  same  1st  day  of  June,  in 
the  year  abovesaid,  at  the  parish  aforesaid,  in 
the  county  aforesaid,  and  divers  othar  days 
and  times,  as  well  Ittfore  as  afler,  there  and 
elsewhere  in  tin*  same  count}',  falsely,  ma- 
liciously, advisedly,  secretly,  and  traiteroufily, 
and  with  force  and  arms,  witli  one  llobert 
Chamock,  (late  of  High-Treason,  in  contriving 
and  conspiring  the  death  of  our  said  sovereign 
Isrd  the  king  tliat  now  is,  duly  con? icted  and 
fttaiatcd}  and  with  divpM  othtr  fiise  Imitors, 


to  the  jurors  unknown  did  meet,  propose,  tra 
consult,  consent,  and  agree,  to  jirocurBf  frn 
the  aforesaid  Licwis  the  French  king,  of  his  sal 
jects,  forces,  and  soldiers,  then  andyetenemi 
of  our  said  lord  the  king  that  now  is,  great  bh 
hers  of  soldiers  and  armed  men,  this  kingda 
of  England  to  invade  ami  fight  with,  and  tolsr 
procure  and  prepare  great  numbers  of  ami 
men  and  troops,  and  legions  against  our  m 
soFereign  lord  the  king  that  now  is,  to  rise  i 
and  be  formed  ;  and  with  those  enemies  stai 
upon  such  f  heir  invasion  and  entrance  into  tl 
kingdom  of  England,  to  join  and  unite ;  n 
belhon  and  war  against  him  our  said  soveici| 
lord  the  king,  within  this  kingdom  of  Englaa 
to  make,  levy,  and  trage ;  and  the  same  oi 
sovereign  k)ril  the  king  so  as  aforesaid  to  4 
pose,  and  him  to  kill  and  murder.  And  fli 
ther,  with  the  said  false  traitors,  the  same  ii 
day  of  July,  in  the  year  almvesaid,  at  the  poril 
aforesaid,  in  tlie  county  aforesaid,  traitorsoil 
you  did  consult,  consent,  and  agree  to  wm 
the  aforesaid  Robert  Chamock  as  a  bm 
senger  from  you  the  said  sir  Wm.  Parkyi 
and  the  same  other  traitors  unknown,  as  fl 
as,  and  into  the  kingdom  of  France,  in  vm 
beyond  the  seas,  to  James  the  3d,  late  n 
of  England,  to  pnipose  to  him,  and  deal 
of  him  to  obtain  of  the  aforesaid  French  Unj 
the  soldiers  and  armetl  men  aforesaid,  lor  tl 
invasion  aforesaid  to  be  made ;  and  intelligaM 
and  notice  of  such  their  trait«>rons  intentiM 
and  adhesions,  and  all  the  premises  to  thoM 
late  king  James,  ami  the  said  other  encmil 
and  their  adherents,  to  give  and  exhibit ;  tl 
them  to  inform  of  the  said  things,  partiealsii 
and  circumstances  thereunto  relating  ;  as  ak 
intelligence  from  them  of  the  late  intended  a 
vasion,  and  other  thingfs  and  circumstaiM 
concerning  the  premises  to  receive,  and  tha 
to  you  the  said  sir  William  Parkyns,  and  tl 
said  ether  traitors  in  this  kingdom  of  Engfaui 
to  signify,  report  and  declare,  in  assistsM 
animation,  and  aid  of  the  said  enenuea  of  oi 
said  soTereign  lord  the  king  that  now  is,  in  tl 
wtLT  aforesaid  :  and  to  stir  up  and  procure  tha 
enemies  the  more  readily  and  boldly  this  kioj 
dom  of  England  to  invade,  the  treasons  m 
traitorous  contrivances,  compassings,  imugis 
tions  and  purposes  of  you  the  said  sir  Willn 
Parkyns  aforesaid  to  perfect  and  fulfil,  and  i 
the  premises  the  sooner  to  execute,  nnana| 
and  perform,  and  the  invasion  aforesaid  to  m 
der  and  make  the  more  easv,  you  the  said  i 
William  Parkyns  afterwards,  to  wit,  the  IQ 
day  of  February,  in  the  year  abovesaid,  at  II 
parish  aforesaid,  in  the  county  aforesaid,  ai 
divers  other  days  and  tiroes,  as  well  beA 
as  afler,  I'thcre  and  elsewhere  in  the  soi 
county,  falsely,  maliciously ,  advisedly,  secret! 
traitorouslv  and  with  force  and  arms,  with  I 
aforesaid  Kobcrt  Charnock,  and  very  mai 
other  false  traitors  to  the  jurors  unknowDi  4 
meet,  propose,  treat,  consult,  consent  ai 
agree,  him  our  aaid  sovereign  lord  the  kinjp  tl 
now  is,  by  lying  in  wait  and  deceit,  to  aawH 
nate,  kill  and  mttrder;    and  that  eieorahi 


High  Trm$fm* 

iHmiMe  n^itssi nation   and 

Ufaf  Ibe  mmatwf  to  ejiceute  ami   (lerpetrate, 

^iitmmpis   ^  wtU  ti»e  same  day  anil  year, 

^ivtt^tfiiftHMly  y«u  ilul  trfal,  propose  and 

■■■ll    ifftit)    tlMJ««    trnititii^t    af   the    wiys, 

an<4  n^Mkns,   nml  ihe  time  antJ  place 

*\r  s,  iitid   l»ovv  our  said 

1  Kit  hy  iyii*!?  in  wait, 

I  l^mmfr  (it^^lit    **^  S  nUtii  ;    nnd  (tid 

9mim.  ixivr  st>it  n^  '  i  ic  i^me  tmiton, 

Ikl  WTi    (wkrucnieu  or   ittt  i<»:ibouts  of  thu»e 

taan^  Mil  wtliera  by  iIk'HI  at»d   ycni  the  6aid 

irffii^iai  PaH&yn*  tti  Ih;  liiiifd,  pioctired  and 

I  |yt*^fEVl*^  carlnrtrH  arid  ptstoH  with  i^rim- 

1ir  Mill   leadt'U-bulli'U  cbai^^ed,  and  i^'ith 

ill  rap<irr«    and  4i(her  weapons    armed, 

ii  W  ta  w^it  and  hv  in  amhufili  our  sajd 

[M  lii»  klu^   it)  litt  coach   i'einf^  when    he 

'\go  3Air«Kif],  lo  attack  ;    and  iUiiX  <i  certniu 

ttttCHMpetifit  nituil^er  ofthii^  men  so  armed, 

llaiMtel  iipoo  the  gu^nb  id' our  ^id  k>rd  the 

lii|lWp  miMl  there  atten>l»tit>:  hiin,  and  hein^ 

«A  hiSr  mmI  fthftiild  orer>iM»wer  aud  fight 

li#i«Bf  wblkt  tttbf'rs  ot'  the  same  men  »o 

tmaihm  iKir  9<yd  lord  tl»e  king  fihindd  kilt, 

^if»Mrf  Mittfvi«r  ;    and  that  you  the  staid  sir 

VV^ntt  Pif%5rik«,    then    and    there  did   take 

^m  ymt  to   fnxiride  five    hoiies  for  thos4> 

AM  ^bigli    aboulfl  to   kdl    and  imirdar   i»ur 

■ii  WitKi^ii    i'*^''  •'^^'Uiiig;    andalaa  that 

jBitW  a*iil  »:  Farkyni,  your  tre«- 

mm^  mimH  ytj  i   as  intentioitt,  desifnia 

I  aiiorewaid  ti»eiefute,  peqwtrate, 

wit|  the 

^^afinh  afore- 

t  camaty  aforesaid,  divera  burses^  aud 

W^  mmtf  antta^  f^uns^  carbines,  rapiers  and 

vaviiik  id  itiihet  weapons^  ammunition  and 

^mShnkmff%^  anil  inihtary  in  Mlrnn>cuts,  falsely, 

tmtmadf  •tcrrUy^  aadirauerously  did^obtam, 

kMf^mthgf^Bml  prtjcure  ;  and  to  he  bought,  oh- 

iMa^^MllCKsdtUid  prncnrcil  did  cause,  and  id 

fmrm^nAf  bad  *iiddetain^J,  witli  thut  inten- 

•MlkflttuiMMl  iimiit  Ihedetestnhlf:  obominuble 

4m  $i  mm  wmi  lord  ttie  king*,  and  the  invasiou 
tiknmiA^  at  «lbrtsaid»  lo  use*,  employ  and  be- 
^m  ;  lod  ala*  joor  treasoiii  and  utl  your  trai- 
Hfoao  ialtaiiiiiii,  purpoiea,  and  contriirajiaca 
timemid  In  ««#e«ltef  perpetnte*  fulfil  and  fully 
knf^  <i!»cl»  jroti  th^aaid  sir  VVilltam  iW- 
'i,  to  wit,  the  day  and  year  Idnt 
,ai  ibe  pariah  afuresaid,  in  the  county 
iy,  mahciouNly,  ailvigedly, 
Irmilorou'ily,  divera  soldifTv  ami 
Mid  rcAciy  to  be  arned,  albr  the 
f  Bbatuinabte  and  eicecrable  aasaa- 
[« oml  murder  nf  our  said  i»o ve- 
to aa  afoic»aid  shouhl  he 
ad  coffitnittedi  to  ri»«  and 
•aid  reltelUon  vi^ithiu  thi^; 
i  of  £figtuid  In  make  and  Mai;e,  attd 
ivrai  of  our  aaid  lunl  the  km^^, 
t  Uraofr^^ra,  auhjprta  »ttul  ^ioldinn* 
tmiti  l«rwiii  ibe  Frcmh  k\u*^,  li«>m;jr  about 
to  oiTaile  ibia  kua|f«lom  of  Kn^iand,  at  and 
mtaflMii  iad  ttitnuct  tuu>  tbii  king- 


iBiOMMnittoiaci  ait>re%3UJ  ti»eiecuie,  per 
Mi  md  Itfiiie  to  efl'ect,  9t\erwards,  to  ^ 
^  aai  Mor  t*it  ttbovc^aid,  nt  the  parinl 
^yiyii  ttic  ooitnly  aibre&aid,  divera  bur' 


dom  then  expecte*!  to  be  ahortly  made,  them- 
aelves^^  tojifether  with  you  the  s^iid  sir  William 
Faikyi]9^  lo  |om  und  unite,  iiud  ii»i4>  traopn  and 
lti;mns  toturm^  ytin  dirl  W^Vt  li»t,  and  retittn, 
and  did  procure  to  be  levi#*tl,  fiBted  and  retiuued  ; 
and  those  Mitdiens  and  men  for  the  freaKuns^ 
inttntitMis  and  purposes  aJoffsaid,  then  and 
there,  and  nfterw;nd8  m  readiness  yon  had, 
ai^ainsi  (he  duty  of  your  allegiance,  and  ag^ainst 
the  pe^ace  of  our  Ktud  }iOvert*tRTj  lard  the  king 
that  now  is,  His  crown  and  di'jMity  ;  as  also 
auuiuiit  (he  form  of  tlit'  statute  in  this  caae 
made  ami  provided. 

How  mytiui  thou,  filr  William  Parkyns,  Art 
thou  Guilty  of  thiH  hi{jrU  trcafton  whereof  thou 
standesi  indietcit,  or  Nt>t  <yuilty  ? 

Purkt/)i$,    Nut  Guilty. 

CI  af  Jr.  Culprit,  how  wilr  thou  be  Iryed  f 

I'arkjfus,  ByGotlaud  my  country. 

CI.  ofAr,  God  send  tl<ee  good  dtliverance. 

ParktfJki.  My  lord,  If  your  lordship  pleaaei 
to  fkvouV  ma  with  h  word  or  two. 

L,  C.  J,  Aj'e,  whnt  bay  ymi,  sir? 

Parkym,  My  lord,  I  have  been  kept  in  hard 
priaim  ever  evince  I  was  committed,  nobody  haa 
heea  suffered  to  come  to  me  till  Friday' last, 
then  my  coun^^el  cami*  to  me;  ami  lieinj^ 
charged  with  many  fucts  as  I  sec  in  this  indict- 
ment, it  will  be  necessary  to  hav^  divurt*  wit> 
Beascs  to  clear  myjielf  of  these  par(icu1ar»; 
tbev  arc  dispersed  up  and  down,  and  I  ham 
haci  no  ^me  to  look  after  thcmi,  and  therefore  I 
beg  your  brdahip  to  put  off  my  trial  till  ano- 
ther day, 

L.  C*  J.  When  had  you  fit^t  notice  of  your 
trial? 

Parkym,  The  first  notice  of  my  trial  was  oQ 
Wednetday  lu<;t,  in  the  aflenioon. 

L.  C.  J,  That  is  a  sufficient  time  of  notice  j 
fure  you  mi^ht  have  provided  your  witncs&ca, 
and  prepared  for  it  by  this  time. 

Parky m.  Bui,  my  lord,  beiui^  kept  so  close 
prisioner,  I  had  no  opportunity  fur  it ;  for  it 
waa  not  possible  for  mc  (o  ^etany  body  to  come 
to  me  till  Friday  noon,  not  so  much  as  my 
coimsel,  atal  tht^u  there  woi  but  ttro  daysi 
8alurduy  aud  Monday,  (^^unday  is  n«i  diky  lor 
any  business)  and  it  is  impirsskble  for  me  to  be 
ready  in  the  manner  t1»at  1  uo'^ht  to  be.  It  is 
a  perfect  distresa  and  harden p  up'm  me^  to  be 
put  so  soon  upon  ray  trial  without  loy  witiiai»f»eSt 
and  what  should  enable  xhk  lo  make  my  defeuce  ; 
therefore  1  humbly  iutrcat  ^our  lords»hipto  put 
it  off  till  another  day. 

L,  C.J,  What  witnesB  do  you  want,  air 
William  P 

Parkym.  I  have  divers  vt  ttncsse«,  my  lord, 
that  can  give  an  account  where  I  was  from 
time  to  time  ;  but  they  \\re  many  of  thorn  out 
of  (own,  and  I  have  E^nt  about  every  way,  hut 
caimut  ^ct  them  tog-ether  in  to  short  a  time. 

L.  C  J,  When  had  he  notice  of  bis  trial? 

Mr.  Baker.  On  Wednei^day  I  told  him,  that 
he  muiit  ex|»ect  to  be  tried  thrs  day,  and  withal, 
thai  it  he  would  name  me  any  counsel  that  ho 
would  have  come  to  hinii  heiibottld  baf  o  ap 
order  oejLt  morDiDg  for  tb«lB. 


I 


I 


I 


I 


nj  S  WILLIAM  IIL 

L.  C.  X    You  were  told^  it  seemti  on  W««l- 
dav  thai  y oti  might  ha?e  what  couDseJ  yan 
wouliL 

Mr.  Baker.    Aod  be    had    an  onJer    upon 

Thiirtiduy  morning  for  his  counseL 

Park^m,  I  could  ncit  have  it  without  anjili- 
cation  to  the  court  al  Whitdmit,  and  coidd  \\^\e 
nobody  to  corite  (o  me  till  Thursday^  and  it  was 
Fridiiy  hefore  I  ctudd  g^etmy  counsel  to  uie. 

L  i2,  J.  You  rnti^ht  have  sent  ti»r  your  wit 
lie8&e«  on  Thursday,  and  employed  someUKly 
about  that  matter  thfn. 

Parky  as.  The  solicitor  that  t  employed  waa 
eraidoy'ed  otherways,  and  1  could  not' employ 
any  hcwty  el^^e, 

jL,  C.'J,  Vts;  yon  mi^^ht  have  eoi ployed 
anv  otkier  about  tbatl>uiiiiiie^. 

*Farkynt.  I  had  uobofly  lo  send,  f  wns  kept 
close,  and  noliody  periuilted  to  come  to  me. 

L,  C*  X  Your  Solicitor  you  desired  had 
leave  to  come  lo  you. 

Mr.  Buktr.  Vou  know  that  Ihoae  you  sent 
for,  you  had  an  onJer  for. 

Parky  Hi,  !  could  uot  get  him  till  ThUisdny 
to  me,  1  hiuJ  no  messeii^er>  to  nend  till  then 

Mr,  Baker.  1  gave  ihe  keeper  direction,  lo 
let  him  have  persons  come  to  him  to  send  on 
any  errand, 

L.  C  X  The  keeper  had  ortlers,  it  sremSt  to 
let  any  messenger  come  lo  \ou  ;  and  he  woul  I 
have  bdped  you  to  tomebudy  to  send  of  this 
errand,  to  be  sure. 

Keeper,  I  always  did  it,  as  soon  as  I  know 
Ibev  have  notice  of  their  triaU 

Puriiyns,  But  the  keeper  is  not  always  in 
ilie  way  ;  and  besides,  when  I  hud  notice  ^i?en 
me  of  my  trials  tt  wa^  execution  day,  and  be 
was  not  at  hc»me  that  day. 

L.C.J  He  nnines 'no  witnesses,  only  be 
sa^g  he  has  divers  ^vitnetifes,  neither  is  there 
any  onlh  made  of  any  witnessts  ;  pray  bow 
lonif  is  it  since  you  were  comiiitijed  ? 

Parkynu  1  was  committed  this  day  fort- 
it  igliL 

L.  C.  X    Your  commitment  charged    you 
Willi   high'treaMim,   and    therefnre  you  kiiew 
what  you  ^lood  accused  of;  were  you  not  com - 
milted  for  bigb-lrea>ion  * 
•    Parkvhi.  Yt/s,  my  lord,  1  behere  I  was. 

&*/.  Gen,  {H\v  John  Ilriwles)  Jly  lord,  he 
litd  a  ¥ery  fair  time  to  pr«|jiire  for  Ills  <lefence, 
for  he  saw  hU  name  in  the  pioclamation  a  c;ood 
while  before  be  was  taken,  and  there  it  is  de- 
clareil  what  he  stands  charged  with. 

X.  C,  X    You   un^rht  htt^e   harl  a  copy  of 
your  commitment,  you  had  a  right  to  lii^e  it, 
,  and  therdiy  you   inight  have  seen  what  you 
were  accused  of 

Keeper,  We  ncTcr  do  deny  it,  if  it  be  de- 
aaanded. 

X.  C,  X  You  cannot  deny  it;  you  know 
what  penalty  you  are  umler  if  you  do. 

ParkyttM*  Nobody  was  permitted  to  come  lo 

JUC.  J,  You  might  have  asked  for  n  copy, 
or  any  body  else  ;  lor  you  hud  notice  of  your 
Irial  Bu  long  ogo  as  Wednesday  last. 


Trtol  ^Sir  William  Parh/nSf 


Mr,  Baker.  1  gave  him  notice  of  his  trial 
Wednesday,  and  tlien  told  bim  he  ctitiM  ^ 
for  it  agsinst  Uiis  day  ;    he  said  he  would 
deaviiur  to  petition  for  a  longer  time ;   1 1 
hiiQ  it  would  be  in  vain,  tor  be  niosi  prepare 
his  trial  to  day,  and  could   have  no 
Uiue. 

X.  ax  Sir  William,  truly  we  do  nal 
any  reason  lo  put  off  the  trial  u{ion  these  j 
geijtions. 

Parkyns.    My  lord,  it  is  very  bani ;  ihi 
humbi}  beg  I  may  bare  the  favour,  that  1 
have  counsel  a  I  low  ad  me ;    1  b&v«  no 
indktmenta. 

3.  C,  X  We  cannot  allow  counaeb 

Patkytis.  My  lortl,  if  I  have  no  ooi 
do  not   utiiletstand  these  matters,    nor 
advantage  may  be  proper  for  nae  to  take  to 
cases. 

L,  C  X  You  are  not  ignorant,  sir  Willk 
that  counsel  ha$>heen  alwiiys  refused  whea 
&irtt\  in  such  cases. 

Parkyns,    My  lord,  there  b  a  new  u 
parliameDi  that   is  lately  made^  which 
counsel. 

X.  C,  J.  But  tliot  does  not  commence  ] 
sir  Wdliam. 

Parkyns.  Mv  lord,  it  wants  hut  one  day. 

X.  ۥ  J.     Thiit  is  AS  much  as  if  it  wa 
murh  longer  time  :  for  wf  are  to  pr«»crfd 
ciirtling  to  what  the  law  is,  and  not 
will  be. 

Parkyns.  But  it  is  declarative  of  the  cam^ 
law,  l>ecause  it  say  a  it  was  always  just  a^ 
st>n»ihle. 

X  C.  X    We  cannot  alter  the  law 
ma  kern  do  it. 

Par  kyns.    Will  your  lordship  be  pi 
let  it  be  rea«l? 

L  C.  J.  Ay,  if  3  Oil  have  a  mind  lo  it»  Hi 
be  re^id. 

Parkyns,  Yes,  if  your  lordship  pleasea* 

L  C,  X  itea*l  it.      , 

CL  (if  Art ,  (Reads  )  "  An  Act  for  . 
ling  fd  Trials  in  Cases  of  Treason,  and 
prision  ol  treason.'*  (7  Will,  arid  M<  Cap.  d 

All  the  first  pamgrapb  of  the  new  Act 

read. 

L.  C.  X  Look  ye,  sir  William  Parkynit, 
law  has  not  taken  any  etfecl  as  yet;  but 
]»w  stands  as  ii  did  before  the  makmg  of 
act. 

Parkyns.  But,  my  lord,  the  law  says  il 
just  ai>d  rtosonable  that  ii  should  he  so» 

X  C.  X  We  go  accordmg  lo  the  law  m 
find  It  is. 

Parkym  And,  my  lord,  what  is  just  and 
sonable  to-morrow,  sure  is  just  and  reason 
to  ilay  ;  and  your  lordship  may  indulge 
this  case,  eKpi-cially  when  you  see  how  slrei 
notice  1  have  bad,  and  what  a  little  time 
bien  iilloweil  me,  that  1  am  not  able  to 
any  dele  nee. 

L.  €.  X  We  cannot  make  a  hiw,  we  tuusl 
accorrling  to  the  law;    that  oiusibeuur 
and  dircclion. 


J 


Jwr  High  Treoitm. 

Ym^  OT  lord,  hot  what  is  just  and 
mmrmkmMi    th«  law  is  groandeil 

TIm  pariiaiiMmt  has  thoaf^t  fit  to 
ft  iftWy  which  is  to  comineDce  from 
''this  month :  it  is  not  a  taw  till  the 
that  the  parliament  bath  appointed 
ra  law. 

Biit,  my  lord,  if  my  notice  had 
enient  notice,  1  had  been  within  the 
i  by  the  act  of  parliament ;  and  no 
lot  the  advantage  of  that  act  from 
rd,  nor  suffer  for  such  want  but  my- 
it  a  |>articular  hardship  upon  me. 

We  cannot  alter  the  bw,  ws  are 
sr  oaths  to  proceed  according  to  the 
at  present. 

Pray,  my  lord,  let  it  be  put  off  till 

then. 

Yoa  shew  no  reason  for  it ;  you 
messes  that  you  want ;  nor  hare  we 
at  we  ought  to  have  in  such  a  case. 
.  1  will  do  both  if  your  lonlsbip  will 
lit. 

rhere  ought  to  bean  oath  certainly ; 
ik  you  have  had  fair  and  convenient 

/on  have  had  as  much  notice  as  sir 
had,  who  was  tried  yesterday. 
.  As  1  am  informed,  he  was  charged 
t  facts  about  the  town,  but  1  am 
tfa  many  particular  things  nx>re  than 

The  act  of  parliament  says  nothing 
'  trial ;  that  still  ciintinues  as  it  was 
d  you  have  had  very  convenient 
)  oo,  Mr.  Hardesty,  to  swear  the 

\  Sir  William  Parkyns,  you  the 
the  bar.  Those  men  that  you  shall 
and  personally  appear,  are  to  pass 
r  sovereign  lord  the  king  and  jou 
f  your  life  and  death  ;  S'  therefore 
allenge  them,  or  any  of  them,  yon 
k  unto  them  as  they  come  to  the 
■worn,  and  before  they  be  sworn, 
.  1  bojpe  your  lordship  will  be  of 
me  then. 

8o  we  will ;  we  will  do  you  all  the 
lo.  Look  ye,  you  know  you  may 
S5  without  cause,  and  as  many  as 
th  cause,  but  no  more  than  35  with- 

\  8ir  Goddard  Ndthorp. 
r.  1  except  affainst  him. 
^  Leonard  Hancock,  esq. 
.  I  except  against  him,  he  is  the 
ant. 

^  William  Withers,  esq. 
u  I  challenge  him. 
r.  Samod  Powell,  esq. 
I.  1  challenge  him. 
r.  William  Norlhey,  esq. 
'•  Well,  1  don't  except  against  him. 
dr.     Hold   Mr.    Northey  a   book. 
IS  doBe.)    Look  upon  the  prisoner. 
weft  ftod  tnily  try,  and  true  deliver- 
I  lord  the  king 


'      A.  n.  1696.  [74 

and  the  prisoner  at  the  bar,  whom  you  shall 
have  in  charge,  according  to  your  e? idepce  $ . 
So  help  you  God. 

C/.  of  Jr.  Thomas  Tench. 

Farkym.  I  challenge  him. 

a.  ofAr.  John  Wolf. 

Farkyns,    I  challenge  him. 

CL  cfAr,  Jame^  Bodington. 

Farkym,  I  challenge  him. 

CL  ^Ar.  John  Smith. 

Farkym.  I  challenge  him. 

Cl.ffAr.  Edward  Gould. 

Farkyns.    1  have  no  exception  against  him. 
(He  was  sworn.) 

CI,  ofAr,  John  Raymond. 

Farkym,  I  challenge  him. 

CLqfAr,   Daniel  Thomas. 

Farkym.  I  have  no  exception  against  him. 
(He  was  sworn.) 

Cl.qf'Ar.  Isaac  Honey  wood. 

Farkym.  I  challenge  him. 

CI.  ofAr.  William  Underwood. 

Farkym.  1  challenge  him. 

CL  ofAr.  Arthur  Bay  ley. 

Farkym.  1  challenge  him. 

CL  ofAr.  Nehemiah  Ertning. 

Farlcym.  I  challenge  him. 

O.  of  Ar.   Johi)  Webber. 

Farkym.  1  rha  lenge  him. 

CL  ti  Ar.  John  Canf. 

Farkym.  I  have  no  exception  to  him.     ^ 

Att.  Gen.  We  challenge  him  for  the  kia|^. 

C/.o/i^r.  Thomas  Glover. 

Farkym.   I  challenge  him. 

CLofAr.  Henry  VVhilchcott     ^ 

Farkyns.    1  have  no  objection  against  him. 
(He  wasswoYn.) 

CL  ofAr.  Timothy  Tbombury. 

Farkym.  I  challenge  him. 

CL  ofAr,  Dormer  Sheppard. 

Farkyns.  I  challenge  hhn. 

CL  OfAr.  John  Temple. 

Farkym.  I  challenge  him. 

CL  ofAr.  Nathaniel  Gold. 

Farkym.  I  have  no  exception  a^inst  him. 

Mr  Gold.  My  lord,  1  am  no  freebokiei'  in 
this  county. 

Mr.  Baker.  Nor  have  you  no  copyhold,  Si^ir  ? 

Mr.  GM.  Yes,  Sir,  I  have. 

Att.  Gen.  However,  let  him  beset  by. 

CLofAr.  Robert Breedon. 

Farkym    I  challenge  him. 

CL  d'Ar.  Thomas  Taylor. 

Farkym.  1  challenge  him,  he  is  the  king's 
servant. 

CL  ofAr.  Joseph  Blifcsett 

Farkynt.  I  challenge  him. 

CL  ofAr.  John  Billier. 

Farkym.  I  challenge  him. 

CLofAr.  Francis  Chapman. 

Farkym.  1  chalteDgc  him. 

CL  of  Ar.  John  Cleeve. 

Farkym.  1  challenge  him. 

CL  OfAr.  Robert  Barapton. 

Furkim.  I  have  no  exception  to  him.    (He 
was  sworn.) 

CLqfAr.  WiUiamAtlM. 


»*] 


BWUJJAMia 


TfUl  qfSir  Waiiam  PaHlynt^ 


Parhfm.  I  diaUene«  him. 

CLcfAr.  TbomMSntton. 

Farkyns,  I  ha?e  no  txcqitioii  to  him.  (He 
was  svrom.) 

CL  ofAr.  Thomai  £dlin|r. 

Pcirlcyns.  I  have  no  ezc^oa  against  hiou 
(He  was  sworn.) 

CL  rfAr.  Robert  SandtoKm. 

Farkini,  I  ha?e  no  exception  against  him. 
(He  was  sworn.) 

ClofAr.  Ralph  Blarsb. 

PsrAyiM.  1  ha?e  no  exception  against  him. 
(He  was  sworn.) 

CL  efAr.  Richard  Bealing 

Furhffu,  Pray,  Mr.  Hardesty,  how  many 
have  I  challeDged. 

Mr.  Harde$ty,  I  wiU  tell  yon  presently, 
Sin — ^You  have  challenged  twenty-five. 

FarhffU,  Bnt  there  are  two  that  I  gave 
reason  for :  Do  yon  put  them  iu  among  them  ? 
that  is,  Mr.  Hancock  and  Mr.  Taylor  as  the 
lung's  servants. 

CL  cfAr,  Yon  may  speak  to  my  lord  about 
it ;  but  if  tbat^  aUowed,  then  there  are  hut 
twenty -three. 

Par /^fu.  Well,  Sir,  go  on  then. 

CL(f  Ar.  Richard  Bealing. 

Farkwn.  I  challenge  him. 

CL  ofAr,  William  Partridge. 

Farfcyns,  I  challenge  him. 

CL  ^Ar.  NichoUs  Roberts, 

Farkyni,  1  challenge  him. 

CL  ofAr.    Peter  uviffne. 

Farkyns.  I  challenfi;e  him. 

CL  of  At.  Joseph  Whiston. 

Farkynu  I  have  no  objection  to  him.  (Ho 
was  sworn.) 

CL  of  Ar.  Andrew  Cook. 

Farkyns,  I  challenge  him. 

CL  in  Ar.  Samuel  Hooper. 

Farkym.  I  challenge  him. 

CL  of  Ar.  Thomas  Heames. 

Farkyns,  1  have  no  exception  to  him.  (He 
was  sworn.)  • 

L.  C.  J.  Sir  William  Parkyns,  you  have 
eihallenged  two,  and  have  assigned  the  cause 
of  your  challenge,  that  is,  Hancock  and  an- 
other, and  the  reason  of  your  challenge  is,  be- 
cause they  are  the  king's  servants.  1  am  to 
acquaint  you,  that  is  no  cause  of  challenge  | 
hut  however,  the  kine's  counsel  do  not  intend 
to  insist  upon  it,  if  there  are  enough  besides. 
They  are  willing  to  ^  on  with  the  paonel ; 
«iid  I  speak  this,  because  I  would  not  have  it 

S»  for  a  precedent,  nor  have  it  understood  that 
e  cause  you  assign  is  a  good  cause :  Bnt 
however  they  will  not  stand  with  you^  if  there 
he  enough  to  serve. 

Farkyns.  My  lord,  I  submit  to  it  j  the  jury 
is  full,  1  think. 

CL  ofAr.  No,  there  are  but  eleven  sworn  yet 

Farkyns.  But  how  far  have  I  gone  in  my 
challensee  P 

CL  if  Ar.  There  are  fonr  which  you  may 
challenge  more. 

JW/gfiM.  There  are  two  allowed  me,  though 
HbaMtajpreoadcnl:  AwtlieraloiirftiUf 


CLqfAr.  Yes,  yon  mav  ohaHei 
more,  and  no  more.    Edward  Thomp 

Farkyns.  1  challenge  him. 

CLiffAr.  NicboUs  Rufford. 

Farkyns.  I  have  no  exception  of  hit 
was  sworn.] 

CL  iif  At.  Cryer,  oonntez.  William  ] 

Crytr.  One,  &c.  (and  so  the  rest 
twelve.) 

CL  ofAr.  Nicholas  Rufibrd. 

Crytr.  Twelve  good  men  and  In 
together,  and  hear  your  evidenoe. 

CL  ifAr,  Cryer,  make  proclamatioi 

Cryer.  Oyez,  if  any  one  can  infS 
lords  the  king's  justices,  the  king's 
the  king's  attorney-general,  or  this 
now  to  be  taken,  of  the  High-Treason 
the  prisoner  at  the  bar  staMs  indicted, 
come  forth,  and  they  shall  be  heard ; 
the  prisoner  stands  at  the  bar  upon  his 
ance ;  and  all  others  that  are  bound  b; 
nizonce  to  give  evidence  against  the 
at  the  bar,  let  them  come  forth,  and  g 
evidence,  or  else  they  forfeit  their  recoe 
— ^And  dl  jury-men  of  Middlesex  u 
appeared,  and  are  not  sworn,  may  de] 
court. 

The  names  of  the  twelve  sworn-  wen 
William  Northev,  Edward  Gold,  Dani 
mas,  Henry  Wbitchcott,  Robert  B 
Themss  Sutton,  Thomas  Edlinsr,  Rob 
derson,  Ralph  Marsh,  John  Whiston, 
Heames,  and  Nicholas  Ruiford. 

CLofAr.  Sir  William  Parkyns,  holi 
hand.  [Which  he  did.]  You  that  are 
look  upon  the  prisoner,  and  hearken 
cause  :  He  stands  indicted  by  the  imn 
William  Parkyns,  late  of  the  parish  of 
Covent^Garden,  in  the  county  of  Mi 
knight,  that  whereas  (prout  in  the  Ind 
mutatis  mutandis^)  and  against  the  fore 
statute  made  and  pn>vid^.  Ut>on  thic 
nipiu  he  hath  been  arraigned,  and  tl 
hath  pleaded  Not  Guilty,  and  for  his  ti 
put  himself  upon  God  and  his  counti*} 
country  you  are;  your  charge  is  to 
whether  he  be  guilty  of  the  high 
whereof  he  stands  indicted,  or  Not  Gi 
you  find  that  he  is  Guilty,  you  are  t( 
what  goods  and  chattels,  lands,  tenem 
had  at  the  time  of  the  high-treason  oon 
or  at  any  time  since:  If  you  find  I 
Guilty,  you  are  to  inquire  whether  he 
it ;  if  you  find  that  he  fled  for  it,  yoi 
inquire  of  his  goods  and  chattels,  as  if 
found  him  guilty ;  if  you  find  him  Not 
nor  that  he  did  fly  for  it,  you  are  to  sa^ 
no  more ;  and  hear  your  evidence. 

Mr.  Mouniag^e.  May  itplease.your  1 
and  you  gentlemen  of  the  jury 

Farkyns.  My  lord,  your  lordship  was 
to  say,  you  would  be  my  counsel.  1 
norant  in  matters  of  indictments,  I  beg 
be  any  fault  in  it,  von  will  let  me  know 

L.  C.  J.  Truly  1  have  observed  no 
it ;  I  do  not  know  of  any. 

Mr.  Momnttg^  GcntlamaBp  Ihia 


tfigh  Twim 

I  ti  hcmrj  &n  accysatioti  as 

Sf^v  man,  Ibr  tt   not  only 

tef  vit\\\  a  tr^iterons  design 

\  ihr  t!i»>  n  ijjurnt,  Boti  raisitjc^  war 

tlom  ;  which  was 

:'  kiti^^^s  enemies, 

^Atorei|;u  iuvMf(if>ni  im\  likewise 

f^ifaiuin  ibc  Ur<t  of  the  king, 

bff«ii  taken  away  by  a 

s  forth,  that 

r  at  the  bar, 

vrin  Ciiarnock,  and 

:  there  it  was  coDsuJtet] 

I lou hi  procure  French 

*iiv  king^dotti,  and  then 

V     Mr. 

•thehar 

nR^isa  tmeneng^r  into  trance,  onto 
)kMf  Jatnfs,  loac«)uairit  hira  with  thifi 
and  to  desifc  him  to  hnrrow  nf 
Ida^  as  many  tni^ips  aji  tie  coutd 
Haaiiea  descent  upon  this  kinifdom  ; 
Xllt)k««aii»e  time  were  to  fur ilitiite  the 
I  as  many  men  as  tltey  could 
linatidti ;  and  tlie  number  of 
iD(if3D,  who  were  to  be  firo- 
"  Ktii ;  of  whiHi  the  prisoner 
itul  fire,  who  were  to  he  in 
land  set  ujion  the  king  as  he 
ch,  upon  his  rettirn  from 
ere  lo  assault  and  attack  the 
\  were  liurbarottsly  to  atisfl^ 
kin^  in  \\is  coach  :  And 
I  the  primmer  with  under- 
pitri'  and  pro? idc  fife  horse?  and 
^  10  lie  umtdayed  in  thi^  bloody 
id  lilMJ  With  gatlrerifiy"  log-etber 
I  of  anns  and  ammunition  that 
wl  in  tilt-  inffur  recti  on.  To  this 
pn»otier  liufi  pleaded  Not 
b^  not  gurliy*  i'wl  torbid  he 
Hicted  \  But  if  he  br  i^tnlty,  and 
kct,  tli«  nation  experXs  thnt  you 
to  the  kin|^  and  kingdom,  and 

TI*o.  Trevor).     May  it  please 

anil    \*ni   Genih'iijeii  of  the 

sii  WiUimn  Par- 

i#»'  ^^>  treason,  for  com - 

tni^ty,  .iiid  adhering' 

end  the  ortfrt^actt 

to  prore  this  treason  are, 

had  «#^f»ral  meetluga  and 

•  ilmtii  a  mes- 

Jaroe*), 

>  king. 

le  king' 

ihat  he 

\\  p€r- 

3  royiil 

i'>ned  in 

.,^    ...  treaitfta 

fkm  efideooe   to   prore   these 
l«  mA  nUidi  m%  sIiaII  product,  will 


be  in  this  manner :  it  will  appear  that  the  pri^ 
sooer  at  (he  bar,  sir  William  Parkyns,  has  nad 
a  commission  from  king  James  to  raise  a  regri- 
ment  of  horse  ;  ai)4  about  May  last,  he  with 
BCf  eraJ  others  had^  meeting  at  the  Old  King^» 
Head,  in  Leadenh  all -street,  where  were  pre* 
sent  my  lord  of  Ailesbury,  my  lord  Montgo- 
mery, sir  William  Parky ns,  sir  John  Freind, 
air  John  Fenwiok,  Mr.  Charnock,  Mr.  Porter, 
and  one  Mr.  Cook  ;  and  Goodman  came  in  to 
them  after  dinner.  And  at  that  meeting  it  was 
consulted  and  concerted  among  them,  bow  they 
should  bring  back  the  late  king  James,  and  de- 
pose his  present  majesty  ;  and  in  order  to  that, 
they  did  resoire  to  send  Mr  Charnock  ai  a 
messenger  to  the  late  king  James,  to  deiir» 
him  lo  obtain  from  the  French  king  10,000 
racQ  to  invade  this  kingdom,  8,000  foot,  1,000 
horse,  1,000  dragoons;  and  to  encourage  the 
late  king  to  this,  tliey  did  assure  him  by  thtt 
same  messenger,  that  they  would  meet  him 
with  S.OOO  horstt  upon  his  landing  ;  and  ihey 
did  all  undertake  and  agree  that  they  would 
do  it ;  and  Mr»  Charnock  undertook  to  gti  of 
this  message. 

Gentlemen,  about  a  week  aAer  this  meet<- 
ing,  Mr,  Charnock  not  being  wifliog  to  gd 
upon  til  is  errand  vithout  a  good  aiisurance  that 
tliey  intended  to  perfarm  what  tbey  had  re- 
sohed  upon,  they  therefore  had  another  meet- 
ing of  most  of  tlie  same  persons  that  were  ai 
the  former,  and  particularly  the  prisoner  at  tha 
bar  was  one  j  and  that  was  at  Mrs.  Mountjoy  X 
a  tavern  in  St<  J umes\<}- street.  And  at  that 
meeting  they  did  aH  agree,  as  formerly,  aud 
continued  in  their  former  resolution,  to  send 
Mr.  Charnock  to  assure  the  late  king,  that  they 
would  meet  him,  according  as  they  had  pro- 
mised, if  he  would  give  them  notice  where  h«^ 
was  to  land,  and  he  should  not  fail  of  their  as« 
sistance.  And  at  these  meetint^s  thpy  did  take 
notice,  thftt  tlien  was  the  most  pi-opei  time  for 
such  an  invasion :  for  the  king  was  gone  ta 
Flanders,  mogt  of  the  forces  were  drawn  thi* 
ther,  ^ii\  the  people  were  dissatisfiecl,  and  so  it 
would  be  the  fittest  opportunity  to  accomplish 
their  desi«^n.  Aad  they  desireJ  Mr.  Charnock 
to  make  haste  to  carry  this  message,  and  ta 
intreat  king  James  that  he  w^uld  be  sp*  edy  and 
expert  it  iou^  in  his  couiing,  that  they  might  not 
lose  this  seELSon. 

Gentle  men ,  after  these  m  ceti  ngs ,  M  r,  Ch  ar- 
nock  did  within  a  few  days  go  over  into  Francei 
and  did  deliver  his  message  to  the  late  king- 
James  ^  who  took  it  very  kindly,  but  said  that 
the  French  king  could  not  spare  so  many  foreea 
that  )/ear,  hiving  other  work  ti»  employ  tbeiQ 
about:  u|>on  which,  within  a  month^s  tune,  or 
lesK,  be  came  back  again,  and  brought  an  tc- 
coiint  of  his  mefisage  to  those  gentlemen  wfa^ 
sent  him.  This  was  in  May  or  June  last,  and 
so  the  ftirther  prosecution  of  the  design  ceased 
at  tiiat  time. 

But,  gentleuien,  the  last  winter  it  was  re- 
vivcfl  ogaiu,  and  attempted,  and  carried  on 
very  near  to  the  obtaining  a  fatal  success.  And 
yon  wUI  bear,  thai  the  pri«OBar  it  tlie  Wr»  m 


79J 


8  WILLIAM  III. 


Trini  ffSir  WiUiam  ParHyns^ 


jWjUtara  Pjirkyriii,  bfts  had  ton  ((reat  a  hand, 

i#nd  been  a  \ery  great  inKlntrneut  in  bnth  the 

iMfts  of  thij»  wicked  con!«pir«ioy  and  treason ; 

|tiiiton)|  in  the  iniasion^  wljk'b  he  with  ollifrs 

fieiil  the  toeti^enger  over  to*^ocure;  hui  al^i 

[ill  the  otKiT  part,  the  bltick^t  iiart^  eren  the 

filiation  (d  the  king's  |»#»r*oij. 

Abitut  Jajiuar^   \nm  sir  Get^r^e  Barcley,  a 

lieuttnaiit  of  thi^  GuanJs   to   king  Jaineti  id 

Prann««  w^^  atMi  over  into  Eii^IauiI  to  en^a|j;e 

OMH  t"  )uin  in  the  conHpiracy  and  assas^i- 

iMIon;  and  fW  hiH  tis^istaot^  th<^re  were  sent 

f^nermtth  him,  and  Uffore  and  aftor  him,  smue 

20  troufi^rM  uf  tike  tale  kin^r^s,  »hat  were  his 

g^ujrd^  iti   FiAiice*     And  «ir  Oeunrtf  Barcley, 

to  tnioi»ni;je  the  persoiifi  that  were  to  join,  and 

whom  ht*  haci  broug'bt  over  with   biu't,   pre- 

tended  an  aufhnrity  to  justify  it,  that  is*  n  com- 

ii]f')<<i4»n  ffiiui  the  tale  kingf  Jiimes ;  and  he  com- 

nnnicateis  iliis  dt^ign  U\  Mr.  CUarnurkt  3V]r. 

Ipurt*??,   and  several  others,  and  nnwin^jst  the 

Pfe^t  to  the  iiriRoner  at  the*  Imr,  sir  Wilham  Par- 

tvnsi,  hn^inu^  a  great  ciMtfidrnce  in  hinu  and 

ltd  ari|naint  him  he  had   «uch  a  commission^ 

ird  heiihewed  it  hino,  and  iltat  commission  i^as 

1  kvy  v<ar  a^-atnat  the  k  10*^*8  pennon;  wliich 

liliey  tm)k  to  lie  a  HutBcient  authority  tor  itiem 

»  assassinate  the  king^V  person. 

Gentlemen,   in  order  to  the  arcompHsliing- 

fthis   horrid    eonspiracv,    there    were   several 

Deetin^  and  euitKultatitms  had,  at  whic  h  the 

'  }iri!»ifner  at  the  bar  was  presi  nt,  and  very  ac* 

tire      Sometimes  they  met  at  captain  Porl«r'ii 

lodo'inijfSi  at  another  time  at  the  Na^'s-Ht^itd  in 

Covent-Garden^  at  another  time  at  the  S*m  in 

the  Strand,  and  amuher  time  ut  tl;e  GJiibe  m 

Hat  tun*  Garden,   in  order  to  accomphsli  this 

deiii^D  :  and  at  the«e  meetings  you  will  hear 

they  did  propose  several  waya  and  methods  for 

the  execution  of  it ;  and  several  persons,  par- 

ticuliHy  one  of  them  Unit  have  sufTeiTd  (he 

puoishirieiil  of  die  luw  for  this,  were  app«»Hilefl 

to  go  and  view  the   i]f round,   wtn^re  the  km^f^i* 

persnu  mig-ht  m*nit  conveniently  he  as>^aulied. 

Mr.  itiiiLf,  that  was  execuieii  fur  it,  was  one, 

captain  Piirti'r  was  aouiln  r,  und  mie  Knight- 

ley  was  the  thinl ;  nnd  these  did  tfo  to  avv  the 

ground.     And  the  duy  before  they  went  there 

was  a  meetiner»  at  w  Ikich  was  prenen^  tlie  pri- 

Honer  at  the  bar,  and  others,   wbereni  it  was 

concluded  upon,  (hat  they  nhimld  1^0;  and  titey 

Hent  iiecordni^rly  to  %t^  thi^moit  convenient 

place  for  it.     They   went   (o    Brentford,    uud 

mftei  wards   to  the  other  siile  of  the  v*oier  to 

Hicbmond,  and  surveyed  nil  the  i^round;  and 

the  place  they  pitched  nnon  us  the  moitt  proper 

for  their  pnrpiise,  ^1  ns,  wlien  his  tna  jeirty  hhoidd 

return  frnn»  bunting,  to  do  it  in  the  lane  betwixt 

Bfenlf«»rd  and  Tuinham-Greeu.     And  arconJ- 

iuuly,  when  they  relurneij  m  theeveuint;,  ihi^v 

ranie  hy  upjioinmient  to  the  ^alace  wliere  tlie 

reiit  of  (he  iiCcompUce«  were  to  meet,  at  the 

Nau*S'Head  t»vero  in  Sl  JannV*,  anil  g-ave  an 

account  of  Ititir  proceeding  ;  and  at  tliut  nu^t- 

infj  likewise  was  sir  Wilhaui  Pttikyn»4,  thepii- 

loner  at  itie  bar,  Mr.  Chumock,  and  &<rve>ial 


and  i\li'.   Kinif's  es|iedition,   they  did 
the  thinfif  should  be  done  in  that  place, 
(hat  it  shrndd  be  done  in  this  manner. 

Sir  George  Bajrcley  with  about  difht  or 
in  his  party,  who  were  to  be  cbctsen  out 
the  other  p&iiitst  were  to  aasault  the 
coach,  and  cndeatour  to  kill  the  kiui^i 
the  rest  that  were  inlheoo}»cb  with  bim, 
the  others  in  two  parties  were  to  atti 
^nardji ;   and  the  nnmber  in  all  vrasto  bei 
40.     This  wa?.  fully  affieed  rtf>on 

And,  jfcnileinen,  ihe  Jir^t  time  that  thty 
solved  to  put  t  his  traitoriius  desist  in  exe    *" 
was  (he  15th  of  February,  which  vraa  a 
ihv,  the  usual  day  that  the  kini?  w 
eo  a-hunling  on  ;'  hut  it  bappeneil 
provideuci:,  that  ihe  king  did  not  go 
duy. 

They  had  contrived    further,  to  i 
thintr5iure,thEit  there  should  he  two 

whom  they  eal ltd  orderly  men,  wliol^. 

idaci  d  fit  keiiRmArt«jn,  to  t/ire  notice  vvhet] 
kin^  WL'ot   ahroiu) ;    nod  Chambers   waa  1 
and  Ouraocc  that  was  a  Fleminif  was  aa 
and  Durance  whs   likewise  en»ploye4 
the  inns  about  Turoham-Gieen  and  P 
for  the  h*d;4injr  of  their  men,   who  we 
placed  two  or  ihrte.in  an  inn,  that  the 
nut  tie  oliserved, 

Genlleri[>en,  the  first  day  appointed  ftiri 
acf^omplitihirrii^  this  cit^Lgn,  whii'li  wa^i  the  ij 
of  February,  being  over,  and  tlie}  dif&appoia 
yet  they  ihd  aJ'ierwards   reaolve  to  go  oni 
execute  it.     And  the  nest  Saturday,  \%  bu  " 
the  'i2d  of  Pehruary,  <vas  pitched  n|H 
time  of  e\'tH!u(ion  ;  and  accordingly  c 
the  21^t  of  February,  the  d.iy  befort?,  I 
a     ineetiog    at    the   JNaifV-head  in 
GanloD  ;    and  there  was   prcs^ent  sir 
Barclay^  capl.  Portor,  and  several  otlietn,! 
ajnongst  the  re**!  (lie  [»risontT  at  the  bar 
there  :  they  had  nt  tir.st  some  discoursa  an 
them  that  they  utre  in  doubt,  hcc^tuse  ofl 
first   disappointnvent,   wlieiber  there  had 
been  Kome  discofcry,  hut  that  dootit 
over;  for  il  was  said,  it  couM  not  I 
then  they  shnulil  not  Jiave  Iw-en  there  t^ 
That   seemed  probslde,    nnd    the   dia 
nieut  was  imputed  to  sotne  u«  (;ident ; 
gave  them  new  asi^urance  to  go  on,  and  1 
were  reii^olvetl  to  do  it  in  the  nan^e  itisni 
OS  they  had  formerly  resolved,  on  the  uext  1 
which  was  Saturday, 

Geollemen,  at  that  rneethig  Mr,  Porter 
quaiuted  (hem,  that  he  ha«l  tlie  mi^fortun 
hiive  Rome  of  ln.<i  horsesi  falku  sick  or 
and  he  acquainted  the  prisoner  v»ith   it; 
sir  U  illiam  P^irkyns  wa&  careful  to  sop 
with  other  horses,  and  (old  him«  he  cou 
note  from  one  Lewis,  who  I  think  is 
the  horse  to  my  iord  Feversham,  to  gel 
hor^ies;  and  accor<lin<r|y  he  dtd  send  a  QOte| 
three  horses  to  >lr.  Lewis. 

U|>on  the  29(1  of  t^ehruary  in  the  roor 
w  hieh  waa  the  time  lur  the  execution  of 
bloody  CO n s pi mcy,  they  had  met  together,  1 


I  aud  upon  the  report  of  captain  I'orter    rasolved  to  go  on  widi  it^  aud  put  it  in 


/Jrr  ftigfi  Treason, 

r  had  Eiotice  from  Chamb^rSt 
twfrnij  Ihtit  dav,  and 
ivm  &U,  tlitukliig 
ordered  n\\  thitiiifs 
crward$^  about  oue 
e«v9,  that  the  kin^ 
Uuitrds  w«tre  all  come 
icir  hoi-ies  l>ein^  all  of  a 
i  were  sent  back  to 
itn  to  be  in  a  ip^eat 
Jtt  the  thing  hud 
This*  ifentJe- 
acLtmiit  how   it  will  appear 
r«  at  to  the  eottsfYiriic y  ot  as- 
kin^i  aod    f^t'       t        etiiig^^ 
tvliout  it ;    :•!  ise  pn 

vir    WtllififU    ka\H\t\St    WAS 


there  wilt  be  a  little  more 
if  kl  be    oeccssiry,  to  confirm  this 
,  Aud  to  uUtew  titi  Tturi  lUat  the 
ir  hait  iu  thi^  ie^  this 

cy  ;  for  it  ^    ^r,  that 

EtnAl  a  cotnruU'Kiim  trorii  the  late 
Irai.ve  a  re^i intent  of  horse,  and 
Tiijfr  imo  Fraiic«>  to  in?ite  the 
rith  lO^OOO  French  ;  so  he  had 
aliou  at  arifiJi  to  be  rendv  fot' 
About    Michaelmas   loKt  the 
nt  a  pari'^t  of  gt»ods,  as  he 
v^re  put  iotii  ettjien,  I  thiirk 
j^bt  small  boxeSf  put  into 
and  tent  down  by  his  order 
Dill  oiie  H  ay  wood.     1 1  se(?mt» 
in«rrie«J  Mi\  Chamoek's 
f k  writ  A  lelUr  to  him,  and 
wotjld  give  ail'   William  Far^ 
djfe  s-omp.  (roods  there^  which 
jrst  not  trust  thnn 
r.shire»  because  his 
[Ibere  iu  li>ok  alier  ihem  ; 
I  that  letter  Mr.  Hay  wood 
:  tbe  goods  should  be  earned 
'  were  so,  and  there  ibey  were 
I  and  kept  till  thin  barliarous 
Hvereti;  then  you  will  tiod, 
bar  lent  his  own  scrvaDt 
ijf  w^fkmt  the  diacovery,  and 
t  JnwiMsdiatcly  '  ■ "  ^ -^  ^ '  ^  is  E 11  * 
W  m  llw  g^room,  ii  alter  his 

I  fo  diMrii  to  Wmi  t^..  ^^.liic  lo  one 
»Imi  canicd  llie  gooda,  and  desire 
lo  reniore  tho^e  gooAn, 
II «  them  privately  f  and 
hide  them.  And  ac> 
be  came  there,  which 
id  acquainted  Evans 
liad  ordered  him,  and 
bt  with  a  cart  to  IVlr. 
it  was  late,  and  they 
lillllieDext  mominif,  thej 
s^d  titey  could  stay  no  lontfer 
rtmive  tlic  gcKids  iiti mediately,  and 
{y  IAmtv  prer<  csnried  from  thence  that 
pir  mfliMD  Ftekym'a  own  house  in 
iirit ;  m»4  tbcre  tbev  were  buried  in 
i*     Hm*  m^  uua  mme  of  this 


fwttaiday  I 


ist\ 


A,  D.  1696- 

great  valae  were  put  into  the  grotinJ  to  pre* 
sertethcra.  But  after  this  di^cot'ery.  sir  Wil*  • 
liam  Parky ns  beingf  accused,  and  his  nume  put 
in  the  proclamatioo,  and  search  bem^  ordered 
to  l)e  made  at  his  house,  thej*e  tfofwls  thssi  hiy 
hid  at  Haywood's,  and  upon  tlie  removal  thence 
were  thus  btineil  in  the  g^mund,  came  to  be 
discovered,  and  the  cases  were  brokca  open, 
and  then  they  did  appeur  to  be  tr^'^^'*  of  an  ex- 
traordinary nature  indeed,  for  you  will  dndthey 
were  horse  arms  for  troopers;  thcfc  were  twa 
nrjd  luirty  carbines,  live  and  twenty  ciises  o£ 
pistols,  and  aboni  forty  oitd  swonls  witl>oQt 
ilih*  upon  them  t  but  thenilti*  lay  loose  hy  ihem; 
so  thai  this  will  make  it  apparent,  without  dis- 
pute,  how  tkr  the  prisoner  at  the  Imr  hiiii  en** 
Ij^n^ed  in  this  conspirBcy,  and  wlmt  prepara- 
tions he  had  made  for  the  execution  of  it. 

Cteotlemen,  it  itiJI  appear  ^arlhci  ag^iinstthe 
prisoner  at  tlie  bar,  ihi^t  he  Imtli  had  a  Lon-* 
siderahle  number  of  horses,  that  hiivc  freiiueut-* 
ly  been  brou^^ht  up  from  hi<f  hoo<e  in  Hert-^| 
lords  hire,  to  the  George- inn  iu  Hoi  born. 

But  before  ivecome  to  that,  I  woiiiil  acquaint^ 
you  withf  another  particular  port  of  our  evi- 
dence,   that    is  precedent  in   point  of   time,t 
ALK)ut  Christmas  last^  tbe  pitsoner  did  acqiiainir 
one  f!»w€et,   who  is  an  officer  in   the  Excifl©, 
(and   1   am  very  Morry  that  we  should   havo 
;iny  such  ofBcers  that  should  be  thought  tit  tc» 
be  intrusted  with  secrets  of  this  nature)   sir 
WilUam  Parkyns  acqaainte«1  this  Sweet,  au(|< 
f^re  him    anac^couutthat  he   liad    loii;^  had 
au  ajisurance  that  king  James  would  land  ;  but 
now  ho  had   it  under  his  own   hand,  that  bar 
would  land  very  speedily,  and    ih^t   be   had 
made  preparations   ibr  that   (turpose  to  meet 
him.     That  ^reat  things  were  expeijicd   iiont 
him ;   that  hU  own  troop  was  rt<ar|y,  and   ifi- 
ci»nsisted  chleAy  of  old  soldioi-s  ;    ami  that  se^  I 
vcral  persoas  who  had   been  ofBcer^  woidd  be  ' 
volunteers  under  him.     He  said  he  intended  t<»  I 
go  into  Ijeicesiershire,  and  there  he  was  t4i 
meet  several  gentlemen  from  the  North,  and', 
from  the  West,  to  consider  and  settle  a  cor* 
resjiondence  how  to  meet  the  lute  kingf  upon  , 
his  laiidintj;-  ;  and  acoordlng-ly  str  William  P^ir*  i 
kyri?i  did  g-o  ;  and  you  will   hare   an  account  ' 
that  he  came  to  Leicester  on   Friday   night*  i 
one  Scudamore  went  along"  with   him';    lhert*'| 
be  staid  all  Saturday »  and  a  qfood  part  of  Sun- 
day.     Inhere  came    isereral    persons  to    bim  j 
while  be  was  at  Leicester^    parlictilaHy  oik  J 
captain  Yarborough;  the  soo  of  sir  Thoma»j 
yarboroui^h,  and  a  parson,  whossiii  they  came  J 
as  fiir  as  froui  York  to  meet  sir  WilUarn  Par* 
kyns  at  Leicester  ;  and  theje  was  ^rtat  resoti 
tluther  at  that  time,  as  you  will  hear  tVottj  tin 
witnesses.    Sir  William   Parkyns  came 
a<^ain  from  Leicester  to  Brick  hit)  that  ni^h,^ 
and  retiiracd  to  his  own    house  on  Mondaj 
ni|^ht ;  and  a^ler  his  return,  he  acquainted  1 
Sweet,  t4»at  he  had  been   his  journey  to  Lei«  I 
rt^Kier ;    that  he  met  with  several  gentlemeal 
therefrom    the  North,  and  other  places,  anill 
had  settled  a  correspotideocy,  and  had  foantj 
them  all  tulty  eiigii|^d,  «Qd  w«ll  mdiaed  ,  all'l 


88] 


8  WILLIAM  m. 


Trial  »f  Sir  WiBiam  Parh/iu, 


[fl 


weot  well,  and  thert  was  no  dan^  of  any 
miicarriage  at  all ;  and  thia  waa  about  January 
lait,  that  thia  expedition  was  made  by  the  pn- 


And  now,  gentlemen,  as  to  that 
about  the  horaes,  which  were  ao  frequently 
brought  up  this  last  winter  from  his  house  in 
Hertfordshire,  to  the  George-inn  in  Holbom, 
there  is  one  very  unfortunate  circnmstance 
that  attenda  this  matter ;  that  is,  that  these 
horses  were  brought  to  town  just  the  several 
nighta  before  the  King  was  to  be  assassmated  ; 
fur  upon  Thursday  the  ISth  of  February,  he 
being  in  town,  sent  diredMna  to  his  groom  to 
bring  up  three  of  his  horses  on  Friday,  which 
waa  the  14tb  in  the  afternoon,  and  all  these 
horaea  were  fumished  with  pistols  and  fnr- 
nkora  for  troo|)ers ;  according  to  those  direc- 
tiena  his  servant  brought  up  the  three  horses, 
and  be  came  and  acquainted  bis  master  that 
ih&w  were  brought  up  according  to  his  order ; 
sur  WilKam  Parkvns  waa  then  at  hia  lodgings, 
which  were  in  the  same  house  where  Blr. 
Charaoek  did  lodge;  when  hia  man  had  told 
bias  the  horses  were  come,  he  pretended  at  first 
Ihat  be  had  some  thonghts  of  ffoing  out  of 
ISfwa  that  evening,  but  that  he  bad  changed 
^  bia  asiDd,  and  would  go  in  the  morning ;  and 
'  be  would  have  the  horses  ready  against  the 
Bexl  ■MNning,  which  was  Saturday  the  15th, 
the  first  day  upon  which  the  assassination  was 
intended  to  be  put  in  execution. 

The  next  morning  when  his  man  came  to 
bim  again,  he  had  changed  his  mind,  and  he 
would  not  g<)  out  of  town  in  the  morning,  but 
be  would  igii  in  the  afternoon :  and  it  will  ap- 
Vetrthat  he  did  not  go  out  of  town  that  day,  nor 
the  next  day,  nor  till  Monday ;  and  then  the 
desikfu  had  mi&ca fried  by  the  king's  not  going 
abroad  a  Saturday,  and  the  horyes  were  car- 
ried back;  and  when  he  went  out  of  town 
upon  Monday,  one  Holmes  went  along  with 
bim,  and  he  went  with  him  to  his  house  in 
Hertfonishire  ;  and  there  he  sthid  until  Friday 
after,  which  was  the  day  before  the  next  time 
that  was  appointed  for  the  execution  of  the 
JMsassination.  And  upon  the  Friday  they  came 
up  again,  and  then  there  were  more  horses, 
four  or  five,  that  were  brought  up  that  day ; 
and  all  of  them  with  pistols,  and  jack- boots, 
and  other  furniture  and  accoutrements  fi»r 
troopers ;  and  thesie  came  to  the  Ge<>rge-inn, 
where  sir  WilliHtn  Farkyiis  (^ve  his  man, 
Eubank,  ptirticiilar  orders  to  be  very  early  the 
next  morning  at  Keusin;r(uit  ;  that  was  the 
S9d,  and  he  was  to  go,  as  he  told  him,  to  one 
Brown,  tliHt  he  said  w>ik  eoncemefl  in  iheking*s 
kitehen,  an«l  hve«l  two  doors  otf  the  gate  that 
turns  itp  to  the  kin(X*s  house  ;  and  he  ivas  to 
t**ll  hi'u  he  was  sir  W.iliam  Parkyns^s  servant, 
but  ilmt  he  cume  from  a  man  that  loilged  at  a 
confei'tioner's  housr  over  ugaiust  Gray's  inn  ; 
in  which  place,  by  tiie  description  of  ihe  person, 
yiiu  will  liiid  ffir'Ge.triff'  Uarcloy  l-Mlged. 

Till*  man  went  aerontiui^ly  ai  eight  o'clock 
in  I  he  muniing  to  KfiiMugton,  and  inquired 
•ut  this  Brown,  and  met  with  him,  and  udd 


him  he  was  sir  William  Parkyna's  servant,  bt 
came  from  the  gentleman  that  lodged  at  tl 
confectioner's  in  Holborn.  Brown  said  he  bi 
nothing  to  say  to  him,  but  bid  bim  gire  hu 
his  almanack,  and  he  writ  in  it,  that  he  woo! 
be  in  town  in  two  hours  himself  and  wait  npi 
him  ;  and  bid  bim  carry  that  to  the  roan  tw 
lodged  at  the  confectioner's :  And  this  Bnm 
by  the  circumstances  of  the  whole  roust  on 
bably  he  one  of  the  orderly  men  who  lod^ 
at  Kensington,  to  give  notice  when  the  bM 
and  the  guards  went  out, 


Sir  William  Parky na's  servant  came  back  1 
the  confectioner's  house,  and  there  he  vm 
with  a  man  that  went  by  the  name  of  Rnnn 
he  will  tell  you  be  was  a  Scotch  man,  fir  1 
spoke  broacl  Scotch,  and  he  will  give  yoe 
particular  description  of  the  man,  o^  whiehi 
believe  it  will  annear'tbat  it  was  air  GeM| 
Barclay.  Sir  nilliam  Pirkyna*s  senrant,  m 
ter  be  had  delivered  his  message  td  tb 
Rogera,  came  back  to  hia  master,  andtoM  bii 
he  had  done  hb  errand  according  as  he  wi 
ordered ;  and  air  William  Parkjrna  aaked  bi 
what  RcH^ers  said,  and  be  tohi  him  thai  lie  b 
bim  tell  hia  master,  if  he  wouki  come  to  bim,  I 
would  he  ready  at  home  for  him.  This  Wi 
upon  Saturday  morning  the  S9d  of  Febrosij 

About  eleven-a*ck>ck  that  day  air  Willm 
Parkyns,  and  this  Lewis  that  we  s«4w  t 
before,  came  to  the  Geor^*Inn ;  and  Uierei 
William  Parkyna  asked  his  servant  whether  I 
had  received  any  more  than  two  saddles^  I 
there  were  two  aaddles  sent  in  thither,  aooni 
ing  to  an  order  that  had  been  given,  to  ftvnb 
two  other  horses  that  stood  there  at  the  Gceig 
Inn,  and  which  air  William  Parkyns  toU  I 
groom  bekNiged  to  two  friends  of  his,  snd  b 
hint  he  sore  to  take  care  of  them,  sod  te  m 
them  well  fed,  and  ordered  two  saddles  Is  1 
boui<bt  for  them.  Lewis  said  he  did  tbbi 
they  had  more  Chan  two ;  hut  yon  will  see  b 
the  evidence  tbat  this  same  Lewis  had  pv 
vided  thirty  saddles  for  sir  William  ParicyM 
but  there  seemed  to  be  a  controversy  betwbl 
them  at  that  time  how  many  had  really  bsi 
sent  in,  and  Lewis  affirmed  there  waa  twso^ 
four ;  but  sir  William  Parkyns  said,  1  fart 
had  but  twenty -two  of  the  thirty  yet,  fbr 


have  but  two  brought  in  here,  and  I  ] 
before.  This  you  will  hear  fully  proved ;  ■ 
I  think  it  is  impossible  for  any  booj  to  holiT 
but  that  all  this  preparation  of  aaiUlleo,  |nsM 
boots,  and  other  things,  must  convince  rf 
boily  of  tlie  prisoner's  being  so  far  engaged 
thisdesign,  tnat  he  can  never  answer  it  wills 
lilfiving  you  a  very  good  account  what  t 
preparation  was  for. 

Gentlemen,  a  great  part  of  thia  will 
proved  to  you  by  one  that  acted  in  it,  ss  ^  ■ 
vaut  to  sir  William  Parkyna,  that  is,  as  tf»  ^ 
coming  up  of  the  horses,  jack- boots,  ptalM 
and  other  arms  at  that  time ;  and  that  wi 
on  the  last  Saturday  it  was  disappointed,  all  ^ 
horses,  mit  only  tho^  air  Williani  Psrtd 
brought,  but  the  other  two,  went  nwsyfi 
great  hurry  and  ooofuiieo,  and 


jvf  High  Treasctu 

rj  of  tliHO  more ;    otifl  that  will  be 
Lliv  sertan[i»  in  tbc  very  tnti. 
ISteiUoo^n^    I  h-  [  ened  lo  you  the 

wma»madMlAtCiilii     >  v;  ^ewtUcatlour 

wiaim^Mt  muff  mmki:  a  out  very  undeniably 
urftiApEi^fftrmMr,  atir)  thr^refurc  I  will  not  give 


OfLFm 


i  .  ler.  (Wlio  was  sworn.) 

M/ rnrr,  ^HL*v  vwll^ou  ifive  the  court  and 
11b /^  an  i&frcoiiitt  of  the  meeting;' at  the 
Ki^j^Bead  iti  LemileuhAll- strict;  and  who 
atui  wbiit  rvsututiuns  and  aj^ree* 
cam 45  to  f 

'fr<-.  About  the  Utter  end  of  Mny 
ij^  bcpicvokif^  of  June,  there  were  two 
p  li«il«  til*  one  was  at  tiie  Ein^ V  Hend 
,  the  other  waA  at  Mrs, 
Dear  tiriuhu  FeuwickV  At  the 
I  there  was  tii^  loni  of  Ail es bury, 
gi  iti  HflOigoaiery,  air  John  Freind,  Hir 
mSkm  P^tf  tt^  the  prisoner  at  the  bar,  ijir 
iM  PflBwk£^  capl.  Cbarnock,  Mr.  Cook, 
Mr.  0aodinan  came  in  after 
tberr  we  c»n«ulted  which  was  the 
hmmy  §Siw  hdo^  Jameses  comtDfr  in  ;  and  we 
timing  lo  seud  a  tDessenger  to  him,  to 
Ui  hem  o^vTf  ami  to  desire  him  to  interpose 
li*  ths  Fmacb  kioff  for  tbe  ^ettio^  lO.mo 

mm  ii»  cttBtf  <w^  viab  y^t  8,000  foot,  1  ,uoo 

l^aad  1,000  drvgoooa.  It  was  then  con  si  ^ 
4Mi«i«  ibiittM  oeaenii  and  all  the  com- 

,  ptff  afvtvO  Mr.  Cbaroock  was  tiie  properest 
IVA     ISaj«  Mr.  Cbarnock,  if  you  send  me, 

'  pl  Irfl  Hit  what  «rrmod  i  shall  ^i  upon  :  We 
« ttiMJii  tHrn  affree,  that  he  should  ai^ure 
ti^i*  if  be  would  ooina  ortrr  at  such  a  time, 
^w«|i|«MCt  him  with  a  body  of  2,000  horse. 
kt.UoL  Did  tJharoock  uudertake  to  go 


^mp«  Yia»i  be  did|  and^to  profiOBe   this 
B^tt  kiiB,  ihat  he  minflit  projjose  it  to  the 


J  fiat  the  gettujt^  of  the  raeo. 
^  G«a.  lSd<>re    you  go  away,  1   desire 
iii  if  |««  one  tbtajTi  (iid  sir  \VLlham  Par- 
ner  si  the   bar,  agree  to  the 
»*-*l'«r<cr.  Y*^a.  be  did. 

Had  you  aoy  other  meetinf^  about 
,  and  wbeti  was  it,  and  who  was 


Mj  lord,  captaiii  Ctiarnock  said  at 
ool  go  of  a  foolish   me$.<iage 


y  ^fmtpm  m%  aU  agreed  to  be  at  the  head 
^Ulliaisa  tA  mef*!  king  Sumf^  at  iiis  land* 
H  ^tytry  Qo^aiinuld  hrin^f  his*ttuom. 
^^^^    Wbeo  wa»*  th«'  Htcond  uieeting, 
^ H«»  »ii  it,  and  w bo  was  there,  and  what 

j^*^   "  nt^  was   at  Mrs. 

*^T  nioi'k  fln^ircd  ui« 

Uk*-ii,  In  line  tie  Mrenl  awtiv,  lo 
*4r  kept  iu  our  first  retiihiuou  ? 
••^iacTiw  to  what  WM  resolved  upon  at 
'iM  kt  «4id   b^  would  go  in  two  or  three 


CQiDpany  a  me  lo  it  then  ? 
y  4idt  8ir,  ^  that  met  at 


SoL  Gen*  Pray  Dame  ihcm  orer  again  vb© 
they  were  ? 

Porter.  Sir  Wdtiam  Parkyns  was  Actually 

there,  and  my  lord  of  Aijesbury,  and,  sir  Jobtt 
Freind,  and  captain  Charnock,  Mr.  Cook,  atid 
myself;  1  cannot  teU  whether  my  lord  Mont- 
gomery was  there,  or  Mr.  Goodman. 

Att.  Gen.  Pray  when  did  you  see  captatn 
Charuock,  or  speak  with  him,  after  iliat? 

Porter,  It  was  when  f  was  in  priJion  about 
the  riot,  and  he  told  me  he  had  heen  ilii^re ;  but 
there  would  be  nothing  done  m  that  nmtter  at 
present  for  king  James  said,  the, French  king 
could  not  tlicn  spare  so  many  men,  though  hd 
thanked  us  lor  our  kind  o6ff  r  :  and  he  said  he 
had  been  with  my  lord  of  Ailesbury,  sir  Wil- 
liam Parky  OS,  and  the  several  other  people  of 
quality,  which  he  did  not  name^  end  had  car* 
ried  them  the  particular  messages  that  he  had 
in  command  from  the  king  to  carry  to  them. 

Att.  Gen,  Now,  pray  tell  us,  what  yon 
know  about  the  desit^-n  of  assassinating  tlie 
king,  and  what  hand  the  prisoner  at  the  bar  ws8 
to  hare  in  it  ? 

Porter,  About  some  weeks  before  I  keaH  of 
the  assasaination,  1  came  to  lodge  io  the 
bouse  iu  Norfolk -street,  where  capt.  Charnock 
lodged  ;  and  where  sir  William  Parkynslodgetf 
when  he  came  to  town.  Most  comitioidy  we 
used  to  go  in  the  evening  to  the  tavern,  or 
drink  a  botde  of  wine  at  our  own  lodgings; 
and  one  morning  I  asktnl  Mr.  Charnock,  if  I 
should  see  him  at  night  ?  He  said  he  was  en- 
gaged tu  private  company  for  that  night,  and 
he  could  not  go  with  me  to  the  tavern,  For^ 
says  he,  there  are  some  gentlemen  that  are 
lately  come  from  France,  and  there  is  sume- 
Ihing  lu  be  done  for  the  king*s  service.  If 
there  be  so,  says  1^  p^^J  1^1  ^^  be  conecTnei) : 
Says  he,  ihey  are  tut  newly  come,  aud  they 
wiFl  s«e  UMbrtfly  else  hut  meat  present.  A 
little  at^er  I  fefl  sick  of  a  fit  of  the  gout,  and 
Mr.  Charnock  came  to  Tisil  roe,  and  wc  tell 
into  discourse,  and  1  asked  him  alvout  those 
gentlemen  that  were  come  from  France,  what 
they  came  about  P  He  told  me  it  was  sir  G. 
iiarclty  that  came  fr«»m  France,  and  several 
other  officers  with  him»  and  that  he  had  a 
commission  front  the  late  king  Jaiuc!^  lo  levy 
war  againsit  Ihe  person  ot  king  William^  or  the 
prince  of  Orange,  as  I  thifik  it  was  named  La 
the  commission. 

L,  C.  J.  Who  told  you  thi^  ? 

Portfr,  It  wa-«*  capl.  Charnock  r  ho  desired 
|o  know  how  many  men  1  could  bring.  I  do* 
sired  a  little  time  to  consider  ;  but  I  sititl  there 
would  be  a  great  many  wuuld  Join  if  the  kin|^ 
landetL  whom  I  did  not  think  lit  to  Iruutt  with  « 
thing  of  this  nature  befurp-hand.  Some  few 
days  al^er,  capt.  Charnock  <tame  into  my 
chamber,  and  brought  sir  Gin»rgf  BarcJey,  and 
major  Holmes  that  said  he  Mai»  c^mie  from 
France  ;  and  there  we  had  lutle  more  but  a 
general  iliscnurse :  But  a  litlte  aft^r  tiiat  I  got 
well  of  the  gout,  and  we  liail  several  uie«-tinga 
at  several  places ;  at  the  Glob**. tavern  lU 
HatioQ-gardtD,  at  the  Nag '••head  iaCuveiil- 


w:i 


8  WILLIAM  IIL 


Trial  of  Sir  tVHOm  Parh/tts^ 


Garden,  and  at  the  Sun  in  the  Strand,  tHiare 
sir  Wiiliam  Parkyns  was  always  present. 
And  there  we  did  consult  of  the  best  ways  to 
assassinate  the  king,  as  he  eame  from  Kicb- 
■umd  after  hunting.  Sir  George  Barcle^ 
said,  he  had  receivra  800/.  from  king  Jaines's 
secretary  towards  the  huy4og  of  horses,  and 
fbhiishing  both  horses  and  men  for  the  expe- 
dition ;  and  it  was  considered  of  how  msny 
aaen  it  ^oald  be  necessary  to  bring.  The 
Dumber  agreed  upon  was  aMut  forty,  of  which 
sir  Geors:e  Barcley  was  to  provide  twenty  ;  I 
promised  to  bring  seven  or  eight,  sir  WilKam 
Parkyns  engagH  to  bring  five,  whereof  three 
should  be  mounted  with  his  own  men,  and 
ihe  other  two  my  naen  were  to  mount  upon.^ 

Alt.  Gen.  Do  you  know  the  names  of  those 
people  that  he  was  to  mount  ? 

Farter,  I  never  had  the  names  myself. 

Att.  Gen.  Well,  what  was  done  after  these 
eoDsultations? 

.  Porter,  I  asked  captain  Chamock  one  time ; 
if  I  might  not  see  the  commission  that  king 
James  had  given :  He  said  he  had  never,  seen 
It  himself,  out  sir  William  Parkyns  had.  1 
asked  sir  William  Parkyns,  one  evening  as  we 
were  smoking  a  pipe  by  the  fire-side,  whether 
he  had  seen  the  commission  ?  He  said,  he  had ; 
and  that  because  kin^  James  would  not  trust 
any  of  his  ministers,  it  was  written  and  signed 
with  the  king's  own  hand. 

Mt.  Gen,  Pray  did  he  tell  you  what  it  was 
for? 

Parier,  He  said  it  was  for  raising  and  levy- 
ing war  upon  the  person  of  the  king,  but  1  do 
Bot  know  whether  he  called  him  king  Wil:iam, 
or  the  |*rince  of  Orange ;  but  1  suppose  it  was 
the  prince  of  Orange. 

Ait,  Gen.  Pray  then  give  us  an  account  of 
yoor  going  to  view  the  ground,  where  it  was 
■oost  convenient  to  do  the  business. 

Porter.  There  were  several  propositions 
about  the  place  where  it  was  to  be  done ;  one 
vaa  to  be  on  the  other  side  of  (he  water  by 
ambuscade  in  Richmond  Park,  the  other  was 
to  be  on  this  side  of  the  water  after  the  king 
was  landed.  Sir  G.  Barcjey  was  tor  that  that 
was  upon  the  other  side  of  the  water;  'I* 
thought  that  it  would  take  up  too  much  time  to 
go  over  thither,  that  it  was  better  to  be  done  on 
this  side ;  but  because  there  was  difference  of 
opinions,  it  was  resolved  upon  that  somebody 
should  be  appointed  to  view  the  ground  ;  and  I 
SMS  appointcSd  for  one,  Mr.  Koightley  for  an- 
other, and  Mr.  King  would  needs  go  with  us 
lor  a  third ;  and  we  three  did  go.  We  lay 
all  night  at  Knightsbridge,  and  the  next  day 
went  and  viewed  the  grounds  on  both  sides  the 
river ;  and  came  back  that  evening  to  the 
Nag's- bead  according  to  appointment,  where 
eras  sir  William  Parkyns  the  prisoner,  and  sir 
George  Barcley,  and  Mr.  Chamock,  and  we 
gave  an  account  that  we  had  viewed  both 
^cea :  And  upon  our  report  it  was  resolved, 
Ihat  it  should  be  done  on  this  side  of  the  water, 
fa  the  lane  betweoi  Bivotford  aadTunibMB- 


Ait,  Gen.  Are  you  sure  sir  William  P) 
the  prisoner  at  the  bar,  was  there,  at  tha 
ingatthe  Nag's  bead  ^— Porter.  Yes, 

Att.  Gen.   Did  be  sgree  to  the  resoh 

Porter.  It  was  in  general  agreed  to 
that  were  there. 

Att.  Gen,  Pt^Yt  captain  Porter,  tb< 
us  an  account  or  the  oays  that  were  fi 
the  execution  of  this  design  f 

Porter.  There  waa  Saturday  the  15 
Saturday  the  99d,  because  Saturday  % 
day  the  king  used  to  go  a- hunting  and  si 

Att.  Gen,  Were  there  any  men  a 
sington,  to  give  you  notice  wbea  the  kit 
abroad? 

Porter.  There  were  two  men  that 
lodging  at  Kensington,  the  one  was  one 
hers,  wno belonged  to  captain  Chamock, 
other  was  a  Fleming,  one  Durance,  wt 
over  with  sir  O.  Barcley,  and  be  wei 
day,  and  thrast  himsdf  among  the  gu 
bnog  intelligence. 

Sol.  Gen.  What  was  the  reason  thi 
was  not  executed? 

Porter.  The  first  day.  Durance 
notice  in  the  morning  that  the  guan 
gone  abroad ;  and  afterwards  then 
notice,  that  the  king  wouU  not  go  abr 
day ;  for  which  reason  we  adjourned  i 
next  Saturday. 

Att.  Gen.  What  waa  the  method  yo 
take  in  the  execution  ? 

Porter.  The  method  agreed  upon  vi 
There  was  one  Rookwood  that  can 
France  upon  this  expedition,  he  was 
mand  one  party,  and  .captain  Charn> 
myself  was  to  <M>mmand  another  | 
attack  the  guards  ;  and  sir  G.  Barclei 
have  four  men  out  of  each  party  to  at 
coach  while  we  attacked  the  guards. 

Att.  Gen.  Well,  you  say  the  first  < 
was  disappointed  by  the  king's  not 
When  was  the  next  meeting  ? 

Porter.  The  next  meeting  was  upon 
the  dsy  before  the  22d.  I  was  sick 
week,  snd  I  do  not  know  whether  1  h 
all  the  week,  or  no ;  but  upon  Friday  tl 
and  it  waa  at  the  Sun*Tavem  in  the 
There  was  none  but  sir  6.  Barcley, 
Chamock,  sir  William  Parkyns,  and  ] 
Att.  Gen.  What  discourse  was  the 
Porter.  Sir  George  Barcley  came 
said,  he  was  afraid  3ie  thing  was  disc 
J  told  him  1  fancied  not,  for  if  it  bad,  w 
not  have  been  in  that  boose  at  tb 
Then,  says  he,  let  us  go  on,  and  try 
day.  Sir  William  Parkyns  was  Bake 
horses  were  come  to  town :  He  said  tli 
come  to  town  that  night.  Said  I,  I  ha 
misfortune  with  my  horses,  two  of  t 
fallen  lame,  and  won't  be  fit  for 
Saya  he,  if  I  had  known  that,  I  cot 
brought  more  horses  out  of  the  oounti 
ssys  he,  I  will  send  to  Mr.  Lewis,  ^ 
gentleman  of  the  botae  to  my  lord  Fei 
and  I  believe  be  can  help  us  to  more 
be  will  be  with  me  to-morrow  momic 


High  Treaion* 

I  m  noltf  ftoo  Mm  for  two  more.  Id  the 
:  I  Milt  ui  hitii^  antl  he  stui  we  a  note 
I  ta  riMtont  nty  men  :  And  he  sent 
|r*  Le^i*  could  hel|i  me  to  two  or 
that  they  were  nil  ihree  sadctleil, 
lacotKitredwith  ttostlersanil  pistoh, 
'  two  bad  only  i^^ildlea.  1  did  not 
PftfkyDft  on  Saturday,  the  t^d, 
m  mtme  of  my  friend »,  who  were  to 
;  wtih  ftte  ti|>i>a  this  enterurize  ;  and  we 
H  oolicv  tliat  the  guank  were  j^fonc 
,  Mil  thai  the  king  would  g'o,  at  which 
tcry  fflftd  :  But  when  we  had  notice 
^  «itf  not  go,  we  were  afraid  the 
aavered,  and  I  went  out  of  town, 
'  Sd  iMt  mem  way  of  them  aflerwards  till 
>  t^krti. 
iu*  Cn^  J*^y*  cftptain  Porter,  have  you 
\imi  mnj  lUm^  from  sir  WjlUam  Parky ns  of 
liilanog  9.  eocninisfiion  fmm  ktnsr  James  ? 

fwft^,  I  hav«  heard  captniti  Cliamock  ask 
ttf^tein  Parkyns,  why  he  did  not  go  alony^ 
iiA«ai  this*  expedition  f  He  said,  he  did  not 
ft  liaK«  he  could  not  gt>. 

JtL  Cm.  Whs  he  not  to  be  one  in  the  num- 
Ivttal  was  Ui  act  in  the  a8SA««i nation  ? 

fmier,  S€\  ;   he  said  he  liad  other  businesa 
tili,be  liati  a  regiment  to  look  after. 
L  C*  X  Horn  inany  horses  bad  yoa  from 

f'migw^  I  bad  never  a  one,  only  sir  Wil- 
Imi  l^^rltytn  «*  nt  nie  wont,  if  1  wanted  I 
H^kave  tliree,  for  I  had  told  him  I  would 
^  theiit,  tin  1  heard  whether  the 
|Mt  iliroaNl ;  and  then  I  had  notice  that 

*^\ntt%  go, 
J'  -  mI  you  8  note  for  them? 

J  for  these  three  horses  ;    but 

Cbia«i^^  ,mjtj  tie  had  a  note  for  two  horses, 
ffr*^   Old  he  fay  he  hud  a  note  from  toe  ? 
hti^.  Ko^   ]   don^t  say  so,   sirVVjIJiam  ; 
talsaniiatiil  me,  he  bad  a  note  whither  to 
rWi«n. 

^C.  X  Will  you  ask  him  any  ijueaiiona, 
I  llrWiittB  f— far/ryju.  No,  my  lord. 

hrfmm.    My  lonl»   I    desire  he    may  be 

iiii»  WteJtcr  at    any  of   those   meetinjfs 

^■i  «w  any  ili<cour«ie  of  the  aaatasinatioQ 

li«a  tir  Wilbans  Parky na  ? 

Lex    What  May  you   to  that,  captain 

Ym|  he  waaat  all  the  meetings 
afinn^ 

nv  lord,  I  deaire  to  know^ 

.  Purkyus  die^ccHiraed  of  it 

■  '    ■      ihout  it? 

^fr  y    what  be  did 

i||aitjmiBr,  niny  he  aj^retnl  to  it,  and  waa 

^  ^  SfebcirMES  for  it,  and  »Bid  it  was  ue> 

Ir  rff't-^- '   t-r   it  would   brinif  the 

>r*  ^li  he  could  not  per- 

a,  „  U:,uiMflf,  hecaufie  he  had 

he  waa  Uv  look  after  hi^t  re- 

^  Gra.  If  air  WilUam  Parkyna  wilt  ask 
•<*•  hvtfr  no  «me«tinnn,  we  will  go  on  to 
^^oi  911000,  wbich  i«  CQ*  Abrajiatu  Sweel, 


whom    Mr,   Attorney  iDeotioned.    [He    waa 
brought  in  and  Hworn.] 

Alt.  Gen.  Mr.  8wect,  will  you  give  tht 
court  and  jury  an  account,  what  sir  Williani 
Parky  ns  said  to  you  atwut  king  James's 
landing? 

Alt.  Gen.  Pray,  will  you  give  an  account 
what  discourse  you  had  with  tir  William 
Parky  us,  the  prisoner  at  the  bar,  aliout  king 
James's  returning  and  landing  witli  French 
forces  ? 

Sweet,  8ir  William  Parkyn*  did  tell  me, 
that  he  did  expect  king  Jauiek*s  landing  ;  and 
he«aid  his  own  troop  was  composed  of  old 
soldiers* 

Alt.  Gen.  How  long  hare  you  known  nir 
William  Parkins? 

Sweet,  This  three  years. 

Ah,  Gen.  Pray  leU  the  time  when  tlits  dis- 
course was.     About  what  time  was  it  ? 

Smett.  This  was  since  Christmas,  about 
Christmas  last. 

Ait.  Gen.  Where  was  it  that  you  had  this 
dj^c^iurse  ? 

Sueet.     It  was  about  his  own  hoose. 

It'  C.  J.  What  diiconrae  ? 

Sweet,  We  were  talking  about  king  James's 
comin<r. 

L.  C.  J.  Who  told  you  that  king  James  was 
coming  ?—-5«:eef.  Sir  Wilhani  Puikyns. 

Att,  Gen,  Wiial  did  he  suy  ? 

Sorer  He  said  he  had  bnught  a  great  many 
saddles,  thirty  sadilJes  ;  and  that  hiD  own  troop 
was  composeil  of  all  old  soldiers, 

AtL  Gen.  Did  he  tell  you  of  any  assurance 
that  he  had  n\  king  James's  landing  ? 

Sueet.  Yes  ;  he  ^aid  he  had  the  kiog'd 
word  for  it  ? 

Alt.  Gen.  Was  there  any  discourse  bet M-eeii 
you  about  any  journey  that  sir  Wilham  was 
to  take  ? 

Sweet,  Yet ;  he  did  tell  me  he  was  to  go 
into  Leicestershire,  and  was  to  meet  sereral 
gentlemen  in  I#eicestershire  ;  and  he  did  go, 
and  after  he  came  back  again,  he  «aid  he  had 
met  his  friends,  and  all  was  well,  and  that  the 
west  was  as  much  inclined  t^  king  Jameses 
interest  us  the  north,  and  that  a  Lord*s  brother 
was  concerned, 

Att,  Gen.  What  other  discourse  had  you 
about  this  matter  ? 

Sii?eei,  Nothing  eis^t  as  to  particukrs ,  that 
I  can  remember. 

Ait.  Gen*  What  orders  bad  you  to  come 
up  to  town  in  February,  and  when,  and 
from  w  hom  ? 

Sweet.  Sir  William  Parkyns  sent  forme, 
and  he  sent  me  a  letter  about  the  11th  of  Fe- 
bruary that  I  should  come  to  him  the  neict 
day  ;  and  I  diil  come  the  next  day. 

Att.  Gen,  Whither  did  you  come?  Where 
did  you  find  him  ? 

Sweet,  At  his  lodgings  in  Norfolk-street,  at 
the  house  where  Mr.  Chaniock  lodged ;  and 
after  I  had  spoken  with  sir  William  Parky  us 
about  the  letter  which  he  had  sent  me  to  come 
up,  he  told  fixe,  that  ibe  busineas  that  he  bad 


91]  8  WILUAM  UI. 

designed  for  me,  he  did  not  think  fit  I  should 
do,  because  of  ray  family. 

AU.  Gen.  Pr.iy,  what  directions  had  you 
fipom  him,  what  you  were  to  do  when  you 
went  into  the  country  ? 

Sweet,  When  1  went  into  the  country,  be 
ordered  me  to  go  to  his  house,  and  send  up 
three  of  the  strongest  horses. 

Att.  Gen,  When  was  this,  do  you  say  ? 

^weet.  It  was  in  February. 

Alt.  Gen.  What  time  in  February  ? 

Sweet.  The  elefenth  or  twelAh,  which  was 
Wednesday  ;  and  at  my  going  awav,  he  told 
me  if  i  had  not  a  letter  from  him  the  Friday 
following,  I  should,  come  to  town  affain.  1 
did  come  to  town  agfain,  and  then  he  asked  me, 
if  I  had  made  provision  for  my  family  ?  I  told 
him,  no ;  then  he  asked  me,  why  1  came  up 
to  town?  He  told  me  I  might  go  into  the 
country  again  on  the  morrow  morning. 

JLC.f  What  did  he  tell  you  f 

Sweet.  He  said  1  might  go  back  again  into 
the  oountrv.  I  came  upon  the  Saturday 
morning  to  nim. 

Att.  Gen.  Pray,  what  day  was  that  Sa- 
turday ? 

Sweet.  I  belief  e  it  was  the  13th  or  14th  of 
Februaiy. 

Att.  Gen.  You  say,  Wednesday  was  tlie 
twelfth  ? 

Sweet.  Yes,  I  believe  Wednesday  was  the 
12th,  and  I  came  to  town  the  Friday  afW  that 
13th,  that  was  the  14th,  and  on  the  Saturday 
I  went  home  again. 

Att.  Gen.  You  say  vou  cams  to  him  on  the 
Saturday  morning,  what  passed  between  you 
then? 

Sweet.  I  went  the  next  morning  to  sir  Wil- 
liam Parkvus's  lo4lgings,  but  he  was  gone  out, 
and  had  fet't  word,  that  1  must  come  again 
about  eleven  of  the  clock  :  I  did  go  about  that 
time,  and  he  was  nut  come  in,  and  there  I  met 
Mr.  Chamliers,  and  one  Mr.  Lee,  whom  i  had 
eeen  there  the  niulit  before. 

Att.  Gen.  And  what  discourse  had  yon  then 
with  them  ? 

Sweet.  We  had  little  discourse,  for  I  bad 
only  seen  them  the  night  before  ;  but  I  think 
Chambers  toitt  me  he  had  been  at  Kensington, 
and  I  desireil  to  know  what  news  there  ;  and 
he  told  me  William  kept  as  close  as  a  fox ;  and 
he  shewed  me  his  wounds,  and  said  those 
wounds  wautetl  revenge. 

Att.  Gen.  Where  did  he  say  he  receifed 
those  wouuds  ? — Sueet.  At  the^oyne. 

Sol.  Gen.  Pray,  Mr.  Sweet,  did  he  tell  you 
for  what  use  his  troop  was  ? 

Sweet.  He  did  not  tell  me  positively ;  but 
I  understood  it  to  be  to  join  king  James  when 
he  landed. 

Sol.  Gen.  Pray,  Sir,  where  did  you  dine 
that  Suiurday  P 

Sweet.  With  sir  William  Parkyns,  and  Mr. 
Charnock,  and  Chambers,  and  one  or  two 
more  that  1  did  not  know. 

Att.  Gen.  Will  y  ou  aik  him  any  quettioDe, 
aic  WiUiam  P 


Trial  qfSir  WiUiam  ParJcym, 


[H 


Farkym.  Did  I  tell  you,  Mr.  Sweet,  that  I 
had  a  troop  of  horse  ? 

Sweet.  I  will  tell  you  your  own  words,  and 
no  other :  You  said,  vour  own  troop  was  ooa- 
poeed  of  old  soldiers  r 

jL.  C.  J.  Pray  let  me  ask  yon  one  question  | 
How  many  horses  were  you  to  bid  the  mante 
bring  up  to  town  ?^ Sweet.  Three,  my  lord. 

Att.  Gen.  And  were  they  not  his  strongHt 
horses  ? — Sweet.  Yes,  my  lord,  the^  were. 

Att.  Gen.  Did  he  say  any  tbmg  to  jea 
about  volunteers  ? 

Sweet.  Yes ;  he  said  there  were  some  fn» 
tlemen  that  were  captains  and  old  officers  thil 
would  be  volunteers  under  him. 

Farkjfnt,  Pray,  where  were  those 
spoken  f 

Sweet,  Either  in  your  house  or  in  the  { 
I  cannot  tell  directly  which,  but  Btnm 
about  your  house  it  was. 

Purkym.  Where  is  that  house  P 

Sweet.  In  Hertfordshire. 

Farkynt.  Then  I  am  in  your  lordiiiip^ 
judgment,  whether  words  spoken  ia  Hei^ 
fordshire  can  be  an  evidence  ot  a  treason  edai 
here  in  Middlesex  f 

L.  C.  J.  Sir  William  Parkyns,  if  there  he  ■ 
design  to  kill  the  king,  and  there  are  aevml 
overt  acts  to  prove  that  design,  and  one  ie  ii 
one  county,  and  another  is  in  another  ooaefefi 
the  party  may  be  indicted  in  either  of  tM 
couuLies,  snd  evidence  may  be  given  of  httk 
those  overt-acts,  though  in  several  conntriik 
It  is  true  you  being  indicted  in  MiUdltiH 
makes  it  necessary  that  some  evidence  ihnnH 
be  given  of  some  things  done  in  Middlceev,m 
there  is ;  as  your  meeting  at  Mrs.  Mountioy% 
and  at  the  Nag's- head  in  Coventgarden^  eai 
the  Sun  in  the  Strand,  where  were  seveml  ew< 
suits,  which  are  overt-acts  of  the  same  treeseo ; 
and  if  treason  be  committed  in  several  counlia^ 
the  party  may  be  indicted  in  any  one,  and  Ihi 
evidence  may  be  given  of  tactH  done  in  all.  * 

Farkum.  Then,  Mr.  Sweet,  you  do  not  ny 
that  1  had  raised  a  troop,  or  would  raise  i 
troop. 

Smut.  I  told  you  your  own  words,  thU 
your  troop  was  made  up  of  old  soldiers. 

L.  C.  J.  But  yet  I  must  tell  you  furth«, 
sir  William  Parkyns,  if  i  remember  ritffat 
there  is  evidence  given  of  ft  discimrse  you  1wi 
in  NoHolk-stret't,  where  you  loiiged,  and  thai 
is  in  Middlesex. 

Farkym.  My  lord,  I  did  not  obaerre  ibel 
he  said  any  thing  of  me  about  Norldk-streeft. 

Att.  Gen.  Yes ;  that  is  what  he  says :  Yol 
told  him  you  bad  thought  of  a  buauuese  fei 
liim,  but  you  would  not  engage  him  in  it,  b» 
cause  of  bis  family. 

Farkynt.  Pray,  Mr.  Sweet,  did  I  tell  yee 
any  thiug  what  yon  were  to  do  ? 

Sweet.  No,  Sir,  you  did  not 

Farkyn*.    I  hope  the  Jury  will  take 


*  Seethe  fourth  Resolution  in  air  Hemfy 
Vane's  Case,  and  the  Note  to  it,  vol.  6,  p. 
183,  of  thil  CoUectinQ, 


\Jbr  High  Treoion^ 
lUfin  aoy  thiug  that  lie 

),    I  bat   iras  no  pfreal  matter, 
iini  any  more  que^tioos,  Sir  ? 

m9r  next  wilneat  is  James 
ho  vnm  »wom,) 
Do  vott  knuw  sir  William  Par- 


llo 


I 


he  IN  luy  matiter, 
<»rr»anl  w«s  you  to  liim  f 
gruoiu  to  him. 
%imfi  have  yini  be^n  Lis 
Krjt  [!  t^i^elvemonlU  yet. 

o  an  accouQi  what 

i  jeiceslcrshirc*  with  him. 
us  vfhiit  YOU  know   of 


^  Yei,  mr  (anl,  we  t?ent  from  our 
pt  lo  Stony*Stratf<iril»  and  there  we 

WIrti  lime  wa*  thisf  ? 

rmnnot  tell  tlie  day  of  the  month, 


IVbatday  ofUie  week  waa  it  f 
it  waa  on  a  Thursday . 
Aod  ivhere  did   you   go  from 


fm  €ua^  the  next  daj  lo  LeU 


^MMlm  ii^nt  with  him  ? 

^iDbe  ca|*tato  Scudaiuore* 

ML  Hciw  long  did  you  tarry  at  Lei* 

WWn  we  came  the  oext  day  to 
wm  staid  (hrre  till  Huoday  morninf*'. 
What  company   catue  to  your 
\  hm  WMA  at  Leicester  ? 

I  am  a  atran^erf  1  know  none 
fyer  there  before. 

I  yciu  remember  whether  there 
ttgli  there? 
fli«re  waj  one  that  said  his  name 


Wlienee  did  he  come  ? 
k.    He  Mid  be  came  out  of  York- 

lm«  Whn  came  with  him  ? 
I^TIii>re  wai  a  gentleman  in  black 
^■piid  he  was  a  milliliter. 
^Kl>id  yoti  obierre  auy  others  that 
Kcr  to  your  master  ? 
t^  It  wa«  market  day,  and    i   had 
^^  look  aAer ;  there  were  a  yreat 
^B^nit  up  niiii  tUmii  stairs;    but 
H^  V        or  no,  I  cttooot  tell. 

HT  come  baek  ag^uin  ? 

||f  \\  r  MAID   iiii're  tilt  Sunday  muni- 
ilMB  W€  €»m«  a  way. 

To  what  jdace  did  you  go  that 

•  ti9WD  called  BrickhiU,  and 

J  wm  caowr  home. 
FliiQ  cwne  back  with  him  ? 
•  ti«i caf»taiii  8cud«uore,  who 

f  liillMr  did  yoq  gt>  the  next  day  f 


Eubank.  We  came  to  Bushy  about  8  o'clocll 
on  Monday  ui^ht.  t 

Aii>  Gfn.  VV'ell  afler  this,  did  you  bring  up 
any  horses  to  the  Georrre-inn  to  your  master, 
and  when  ? — Eubank,  Yes,  three  horses. 

Att.  Gen,  Ay»  when  ? 

Eubank,  I  emmot  u-ll  the  day. 

jiU.  Gen,  What  day  of  the  week  was  ft  ? 

Euhnnk.     IJjfon  a  Friday, 

Ait.  Gen,  What  month  was  it  in? 

Euhank,  ludeedf  1  cannot  say  that. 

Alt.  Gen.    Do  you  remember  Valentine'i 
day  '^^ Eubank.  "Ves;  it  was  upon  that  day, 

Att.  Gen.  That  is  the  14th  of  February,  a 
remarkable  day,  and  wa^tben  of  a  Friday,*  the 
day  betbre  the*  assassination  was  to  have  been 
executed.     Whither  did  yon  bring  them  ? 

Eubank*  To  the  George -inn. 

A£t,  Gen,  How  were  they  furnished?  Were 
there  pistols  upon  them  ? 

Eubttnk.  No  ;  the  pistols  were  in  town,  and 
the  horses  were  sent  after  my  masier. 

Att.  Gen,  Where  were  the  pistols  left? 

Eubank,  indeed,  I  don*t  know. 

Att.  Gen,  Pray,  when  you  came  to  town^ 
did  ^rou  1^0  to  your  master,  and  acquaint  htm 
with  kf^Eubnnk,  Yes, Sir,  I  did. 

Ait,  Gen,  Pray,  what  did  he  then  say  to 
yon  P 

Eubank,  He  said  be  thought  he  should  go 
home  that  night. 

Att.  Gen*  Did  he  chanispehts  mind  ? 

Eubank.  Yes^  tor  he  did  not  go  till  Monday. 

Att,  Gen,  Did  he  tell  you  he  sbuuht  go  a 
Saturday  ? 

Eubank,  Yes ;  be  saki  he  thought  he  should. 

Att.  Gen,  Did  you  come  to  Ixim  to  know 
bis  mind,  and  wbat^jdrthUe  say  ? 

Eubank.  He  safd  in  the  morning,  he  would 
go  in  the  afteeooon  ;  but  fie  did  not. 

Att.  Gen,  Afterwards*  when  did  be  go  ? 

Eubank.  Lfpoo  Monday, 

Att.  Gen,  Who  went  with  hJra  that  Monday  ? 

Eubank,  One  Holmes,  a  fat,  thick  man. 

Att,  Gen,  Well,  pray  when  did  you  come  tt 
town  Rgain  ? 

Eubank,  Upon  the  Friday  following. 

Att,  Gen.  fiow  many  horses  did  you  bring 
up  then  ? 

Eubank,  On  the  Friday  following  we  brought 
up  four;  my  master  himself  came  up  with 
them, 

Att,  Gen,  Whf»  came  with  him  ? 

Eubank,  Me,  Holmes,  and  I,  and  another 
servunt. 

Att.  Gen,  How  were  the  horses  furnished  ? 

Eubank,  Every  horse  hud  pistols. 

Att,   Gen,     W'iml  did    you  bring 
W^ere  there  any  boots? 
-  Eubank,  None  but  what  we  rid  in. 

Att.  Gen.  Where  did  you  leave  »ho«e  horsei  ? 

Eubank.  At  the  Geortri*-iim  in  Holbora. 

Att,  Gen.  What  directiun(»  did  your  master 
give  you  that  ni^ht  for  going  the  next  monung 
upon  an  errand,  an«l  whither? 

Eubank.  1  had  no  message  from  him  ;  bnt 
there  waa  a  note  that  I  was  to  carry  to  Kcii- 


beaide? 


t 


OVQOTM  to 


ofieeriD 


OS]  8WILLIAMIIL 

■Injltmi  to  «!•  Bnwm;  and  I  WW 

ffo  w  the  gentlmiftn  that  livet  withiD  a  door  or 

two  next  the  going  i>^  ^he  kiiif'i  ({ite,  I 

Ibrfot  bit  nome ;    bat  tMo  nmm  where  Brown 

lod^  betofn|r«|  to  the  coort, 

the  kitchen  to  the  king ;  either 

or  eook,  or  something ;  and  thii  mu  lay  there. 

Ait.  Gen,  Whal  was  voor  mcMage  to  bin  f 

Eubank.  I  was  to  tell  him,  that  I  cane  to 

speak  with  one  Brown,  and  that  I  came  from 

a  gentleman  that  lay  at  the  eonfectianer's  in 

Hoibom,  over  against  Gray's  inn.    1  know  the 

gentleman  by  fmee  again,  if  i  see  him  ? 

Att.  Gfn.  Well,  what  did  he  say  to  yon  ? 

Eubank.  He  bid  me  ssl  my  horse  at  the 
Ked  Hon,  and  he  would  come  to  me  presently  ; 
and  i^he  did.  Says  he,  I  have  no  bosimM 
that  I  need  toseod ;  btH  I  will  write  in  your 
almanack,  and  yon  may  carry  it  back  and 
shew  it  him,  that  f  will  come  to  town  betwixt 
•ine  and  ten  o'clock.  I  did  go  back  and  tell 
that  gentleman  at  the  confcctkMier's. 

Att.  Gen.  What  kind  of  gentlenna  was  it? 

Eubank.  A  Innty  man,  with  a  great  nose, 
and  a  Mack  «iig ;  be  speaks  broad  Seotdi,  and 
be  wan  a  swarthy  cokmred  man,  and  he  ImmI  a 
wid^  month. 

Ati.  Gfn.  What  age  was  he  of? 

Eubank.  A  middle  aged  man. 

Att.  Gen.  Pray,  what  did  he  say  to  yoo  ? 

Eubank.  He  asked  me  if  I  had  seen  the 
gentleman  ?  I  told  him,  yes.  He  asked  me 
whst  the  gentleman  returned  for  answer?  I 
toM  him,  he  had  writ  in  my  almanack,  which  I 
hsd  «h«*wn  him,  that  he  would  be  in  town  be- 
tween nine  and  ien  o'clock.  He  asked  me 
then  where  1  was  going  ?  I  said,  to  my  master. 
Hujn  he,  tell  your  master  that  1  will  be  in  my 
chamber  ready  for  him. 

Alt.  (>rn.  l>id  yoo  go  to  voor  master,  and 
tell  hini  ^o?--- Eubank.  Yes,  I  did. 

At*.  Gen.  And  what  did  he  ssy  to  you  ? 

Eahank.  He  Rsid  lit*  designed  to  go  home 
ill  the  snertHMin,  ami  therct'itre  bid  me  go  to  the 
inn.  and  make  resdy  the  horses,  ami  know 
wbnt  nan  In  pav  lor  iliemf  and  he  would  come 
hx  nnd  livelhttlier. 

Att  (tr*i.  nulliesOvrwanlscometotbeinn? 

f>'-.i«iA.  Yr4.  Nir,  about  three  or  four 
•'clock  in  thi'  nOernwin. 

S-^  Urn.  IVriy,  who  came  with  sir  William 
rs!fcT»«* — Fhl'ttnK.  One  Ijewis. 

A*'*    f»V»f    |1ii  vtMi  know  him? 

f'H^ti\  I  lisve«ern  hi lu  before  with  my 
nt3«ler 

Att    I'-:    What  i«  he  ? 

f-'f"*-*.  The  J  *uy  lie  i«  my  lord  Ferer- 
thsiit*«  ^^vnlW>n»An 

.4 ' :  t  • '  •«  H  hat  iltil  he  nav  lo  vou  about  any 
sml.iif-i  • 

l!'Ki>.r^^  fh^t  i<k»*d  me  what  laiidlcsi*  and 
hew  \%*%if\  bail  V«^M  wnt  in  there  *  \ad  I  laid 
b«l  tw«v 

.Iff. tV<«   U  hrti  <«M  Mr  L«w«? 

iMAkVi  bitraww  mv 

IMMNI^.I*^  |i^   hlf    

VMM  iIamiM  I«  nrmiiv  -iirar 


TrialafSir  William  Parkins, 

Att,  Gem.   Did  be  : 
Pkrkyoa? 

•  £iiA«iA.    Itwas  Mr.  Lewis  that  saki 
twenty-ibur  to  the  best  of  my  rci 


bea 


a  J  ao,  or  sir  W 


^t.  Gen.  Where  were  they  sent  ? 

iuAsji*.   Indeed  I  koownot,! 
any  of  them  hot  those  two. 

^^  Got.  Who  deUrered  those  two  to 

Ewbmmk.  My  iiiasier,sir  William  Pferk 

Att.  Gem.  Who  were  those  saddles  for 

Eubank.   They  wers  for  two  gentlci 
hones  that  were  there. 

Ait.  Gem.  Whose  horMS  were  they  ? 

Eubank.  They  were  not  my  master's 
they  Stood  at  that  phK;e. 

Att.  Gen.  Did  yoor  master  erer  spei 
yoo  about  them,  to  hiok  aOer  them  ? 

Eub.  He  aaki,  if  at  any  time  I  was  tb 
shoukl  sao  that  the  hostier  gare  them 

Att.  Gem.  Were  they  yoor  master's  \u 
ornot?— &I*.  Nottlmtlknowof. 

Att.  Gem.  What  tkne  did  yoo  go  o 
town? 

Eub.  I  went  oat  of  town  with  them  i 
four  o'elock  m  the  afternoon. 

Att.  Gen.  When  did  you  hear  from 
master  afkcr  that? 

Eub,  Upon  Monday  I  had  a  letter  firom 

Att.  Gem.  What  was  that  letter  ibr? 

Eub.  It  was  to  go  to  my  master'a  boa 
Warwickshire,  to  one  Richard  Erans  tha 
his  serrant,  to  whom  he  sent  a  letter. 

Att.  Gen.  What  were  the  contenti  ol 
letter? 

Eub.  I  did  not  see  what  they  were,  j 
sealed. 

Att.  Gen.  Did  you  carry  that  letti 
Erans?— £a6.  Yes,  I  did. 

Att.  Gen.  What  time  did  yoo  come  thi 

Eub.  IcametbereaTuesdsyatfburo'i 

Att.  Gen.  What  did  Evans  and  yoo  do 
you  had  read  the  letter  ? 

Eub.  We  went  to  fetch  some  boies  tht 
master  had  ordered  Erans  to  fetch  boim 
was  about  two  miles,  or  more  from  booM 
tradesman's. 

Att.  Gen.  What  was  his  name,  was  it 
wood  ? 

Eub.  Yes,  f  think  it  was  something  lik 
name. 

Att.  Gen.  Did  yon  eo  with  Erans  to 
the  boxes  from  th«Dce  ? 

Eub.  They  had  a  man  that  dnwo  the 
to  t'eicb  them. 

Att.  Gen.  Where  they  carried  in  a 
then  ? — Emb.  Yes,  they  were, 

Att.  Gen.  Wtre  ytm  these  when  the 
were  brousrht  beck? ' 

Eub.  Yes,  I  was  at  my  nus«er*s  hoosc 

Att.  Gem.  What  did  t&ey  do  widi  ihev 

EfLb.  They  buried  them  in  the  i 

A(t  Gen. 'What,  in  thel 

Eub.  Yesk  S«r. 

Att.  Gem.  How  ssan 

£ad^  Five  er  tti,  I  lU^  I  te 
wvuithem.  9 


An.  Gem*  Tau  lieTp^  to  bury  iLem,  ditJ  yoQ 
M    N«  ;     boc  I  WIS  there,  J  nw  them 


in.  Cem.  Did  £tins  teU  yoa  wlttt  they 

£ci.  Bt«iit  U>U]  me  1  bey  wer«  choice  goods. 
Mi.  Owm,  £f  am  toJd  you  so,  did  lie  ? 

LC  J.  WIl&i  timeof  the  day  or  ntgfii  were 


Tkfy  *^nt  a«r»y  about  faur  o'clock  i 


LCX  How  far  is  it  from  «ir  WtJiiam  Par- 

r  tf>  HaynroodV? 
'Eak  I  tbtok  atHitu  tliree  or  four  mUtSy  J 

t  iHI  Wvir  far  cuactty . 
LCX  Wlxskt  tjfue  ittrj  they  retom  ? 
&I*  Alioul  t^nor  eleven  o'clock  at  night. 

ahfwmmm^  My  luftlf   t   under  eta  ml  he  sayi 
tafir^  tlirTfi  inirn^fliitely;   vfashefhvrey 

N«,  A  -Mo  bury  them;    but 

pot  upon  them. 
C*ai.  Pray,  EuUanki  let  mc  aak  you 
lli«  person  that  lay  at  Ihecontec- 
I  yen  oMerre  wbetliur  he  h«id  a  lame 

£^.  No,  I  did  not  take  notice  of  any  gucli 

fd.  Oem.  Will  air  Waiiam  Parkynsask  him 
■ffMaiioii.? 

L  C.  J.  Wlwt  fay  yoti,  air  William,  will 
jmmk  him  »nj  que«tion^  f 

PM^i,  Voo  aay  one  Holmes  wettt  out  of 
i^i  vak  BM? ;    pray  give  au  account  what 

BAMAst    LB? 

£iA.  flM  fat  Mr.  Hohnes,  if  il  plaase  vour 
^^■i^lt  Irras  at  ibe  Golden  Key  m  tfol- 

iyhm.  Ify  lord,  I  olwerve  this  to  dtatin- 
f^  n,  that  'H  was  iiol,  as  Mr.  Attorney 
i|a|al  it,  tnmjoT  Holmes  (hat  is  in  the  proclii- 
li  waa  t*t\€  that  used  to  beat  my  house 
r ;  be  wo»  m  ray  house  all  the  siiromer. 
sen,  Vou  dii!  well  to  ask  him  that 
Ui  ■  '  .  it. 
.C  J  auk  him  any  more  quea^ 

■  f —  Pt.*  K\f  I.  Sn^  my  lord. 
Orn.  Tli*Ti  our   uext  witness    is    one 
y  11  ipwrlV .     ( W  ho  was  sworn . ) 
Ah.  Cra-  Wbi»re  do  you  li?e? 
Hip    *t  io  Warwickshire* 

A*'  lb  whom  ilo  you  live  ? 

%  wyaelf*  »ir, 

in,  OtM^  i>o  you  know  of  any  goods  thai 
^cvfM  Ifnoi'Mr.  Haywood^b  house  to  hir 
^&am  I'fcrkyaaV  hoiMe  ? 

1  mmtm  lirMB  LilchfieU  fair  upon  Asli- 
by,  wlicfe  1  liad  been  to  carry  goods 

^WL  Gck.  Did  not  joo  my  yon  lived  of  your- 
^  I  Mked  y0ii  liJbr^^wboyou  lived  with  ? 


% 


rP— B 


t 


Ir.  Haywood. 


Ymi  fttd  TOO  bad  oo  master. 

.   %.  T¥i(t  ii,  wlMa  M  pleiieita«ii|iloy 
|l  *•*  far  bin^ 


me. 


Alt.  Gen,  Pray  tell  what  yon  carrieil  from 
Haywood  ^fi  house,  and  who  came  for  them  ? 

Mif  There  were,  to  the  best  of  my  remem- 
bratice,  either  seven  or  eight  boxes, 

Jtt.  Gen,  W  h  o  ca  rue  fo  r  I  hem  ? 

Hip.  There  was  one  of  sir  William  Parkyns'a 
men,  one  Richard  Evaos,  that  was  hiii  servant^ 
and  one  Whetstone,  that  was  tenant  to  sir  Wil* 
iiam. 

Att,  Gen.  Well,  how  did  tliey  come,  and 
what  did  they  do? 

Hip.  They  brought  a  ^^^gt>n  and  two 
mares. 

Au.  Ctn,  About  what  time  was  it? 

Hip,  It  was  about  nine  or  ten  o'clock  at 
night  when  Ihe^  weut  away. 

At.  Gen.  W/hui  orders  had  you  from  your 
master  ? 

Hip.  It  was  near  upon  seven  o^clock,  when 
the  waggurt  came,  and  toy  master  wished  me 

to  go  to  borrow  a  mare  of ,  at ;  1  did 

so,  and  1  brought  the  mare  1  bad  borrowed 
with  me  home. 

Alt.  Gen.  What  was  that  mare  borrowed 
for  f — Hip.    I  know  not. 

Att.  Gen,  What  use  was  she  put  to  aAer* 
wards  ?  What  did  \ou  see  more  ? 

Hip.  Why,  belore  the  team  came  (about  a 
quarter  of  Buhour  before)  to  fetch  these  goods*, 
my  in  aster  told  me,  that  sir  William  PniKyns^s 
men  were  to  come  to  fetch  some  betiding  and 
other  g^oods,  what  they  were  he  knew  not  | 
ami  he  ordered  lue,  when  ihey  knocked  at  the 
gate,  to  let  them  in  ;  and  I  ifjd  ^o. 

All.  Gen.  Well,  friend,  did  they  carry  away 
any  goods,  and  what  were  they  ;-* 

Hip.  They  were  in  boxes  at  first*  in  Uirae 
boxes ;  and  then  sir  Wilham  Parkyns^s  serrant 
did  knock  off  the  outside  lining,  which  was  a 
deal  board,  and  he  drew  the  nails,  and  took  oat 
of  two  boxes  thi^e  boxes  a^piece,  and  twn  out 
of  another:  to  tlie  best  of  my  remembittnce  I 
tliink  there  were  eight,  but  I  am  not  sure  whe- 
ther there  were  seven  or  eight. 

Ati,  Gen.  Did  they  cairy  them  away  that 
night  ? 

Hip.  Yes,  fdr  Wra.  Parkyns'sman  Htchart) 
and  the  tennnt  earned  them  to  the  wn^rmn,  and 
I  hghted  them  down  with  a  lauthom,  according 
to  my  master's  order. 

Ati,  Gen,    When,  what  day  was  this  ? 

Hip.    It  was  Ash- Wednesday  nt  niyfht. 

Ait.  Gen.  Then  set  up  Mr.  Haywood,  (whs 
was  sworn  before).  Pray  give  my  lord  an  ac- 
count, when  sir  William  Parky ns's  goods  wero 
brought  to  your  bouse,  who  brought  them,  and 
what  dii-ecllons  were  given  akjut  the  careful 
keeping  uf  them. 

Huywitod.  My  lord,  about  Miclmehnat  lasi, 
sir  Wj  Ilia  in  Party  ns'S  man  came  tu  me  wiih  a 
knier  frofo  one  IMr.  Chumock,  and  tlie  effect 
of  the  leiter  was,  to  desire  the  favour  of  me  to 
lodge  some  goods  of  sir  William  Parky ns  at 
my  house  f  for  he  was  taking  his  servaiits  frfuu 
his  botise,  and  he  was  lotb  to  leave  hts  goo^ls 
in  an  empty  bouse,  and  he  desirfd  me  to  let 
thorn  he  at  my  house,  which  I  did, 

U 


I 


m]  8  WILLIAM  IlL 

Jii,.  Gen,    How  were  they  put  tip  ? 
Hdj/umuL     I  think  in  three  chests »  pt'^^y 
h\g  chests,  niiiled  up  aod  tacked ;  and  there  wa^ 
ft  &<1  aud  beildiDg,  and  a  piece  of  tapestry  or 
i«o, 

Att.  Gen,  Pray,  did  that  letter  come  from 
Mr  Chartiock F^^Zfo^ztoo^.  Yes;  Evans,  iir 
Wilhain  Parky ns^s  maoj  broojjhl  it  me. 

Alt.  Gen.    Pray,  &^ir,   hnw  are  you  relat(^d 
to  that  Mr,  Charnock  ?  What  kin  ishe  lo  you  ? 
Haywood.    I  marrieil  hi^  sifter, 
L,  C,  J.    YoLi  took  the  goadt  into  your  coi*- 
tody  upon  that  letter  from  Charnock  f 
llajfw,    Y^es,  my  lord»  I  did. 
Ail,  Gin,    Pray,  nillyou^ive  anaccounif 
whether  y<^\\  were  in  town  hefoie  this  disco- 
very«  and  had  any  discoui'sp  with  Mr.  Charnock 
or  sir  William   Parkyns  ahout   these  ifOi»tls? 
When  did  you  se€  Mr,  Cliarnock  afterwards? 

}lai/u\  I  came  up  to  Lcnidt^n  the  loth  day, 
and  Twos  iu  London  the  t7th,  IBtb,  and  19th; 
I  think  those  three  dnys* ;  and  L  went  to  see 
Mr.  Charnock  at  hi^  lo^t^iti^a,  hut  i  t%»s  hardly 
with  him  a  nuarter  of  an  hour  ;  I  told  him  sir 
William  ParKynn  had  sent  some  goods  to  my 
houstf,  and  l'de:»ired  to  know  wlien  he  would 
fetch  them  away,  8ays  he»  I  caimoi  say  when 
1  shall  see  him  again.  8aiil  f,  J  shall  have 
some  business  at  i  he  Temple,  and  I  will  meet 
yon  at  the  Temple  coffee- hotn*e.  Say «  he,  I 
will  meet.  Am  hrinf^  sir  WilUanj  Parky ns 
with  you,  if  you  cnu,  said  V.  He  came  at)Qut 
eight  or  nine  oV^Iock  otv  Tuesday  morning  ; 
says  he,  sir  William  Pai-kyns  is  at  my  lod;^- 
ings,  just  a-i^oin^  out  of  town,  and  wolild  de- 
sire to  ^ee  you.  8o  I  tvent  up,  and  ah  WiUiam 
Porkyns  was  ready  to  ^o  out  of  town.  I  totd 
biui  [  hnd  some  goods  of  hi4  at  m)  kouf;e«  anit 
1  deaired  to  know  how  he  wovifd  dis[»os€  of 
them  i  what  he  wouht  do  with  thejn,  lie 
would  tuke  them  away*  he  said,  the  tirat  op- 
portonitv,  or  to  tliat  effi^ct. 

X,  C/J,    When  w as  this ?  Wliut  month  f 

Hayw.    U  was  tn  February  last. 

L/C.  X    What  day? 

Hoifw,  I  think  it  might  be  about  the  eigh- 
teenth day. 

L.  C,  J.  It  was  you  that  deiir«d  to  have 
them  taken  away,  it  seemSf  was  it  not  ? 

Hayw,  1  asked  him  when  he  would  take 
them  away,  or  what  he  wouhrdo  witlt  them. 

L.C.J,    And  what  answer  did  be  make  f 

Hayw,  He  aaid  lie  would  take  them  away 
the  first  opportunity,  as  soon  as  be  could  dis- 
pose of  I  hem,  or  to'that  effect. 

Ait*  Gen.  Now,  wbr>n  you  came  home,  tell 
us  who  came  tor  those  goods,  and  when  ? 

Hnifw.  I  think  it  wasi  upon  a  Hhrove- Tues- 
day that  I  came  home,  and  my  wife  naid  sir 
W^ilham  Parky  lis  had  sent  tor  liis  goods,  and 
deijiied  to  have  them  away  }  hut  that  she  had 
made  answer,  1  was  not  at  lioine,  but  should  be 
at  borne  so-on,  and  then  he  might  have  them 
away.  The  next  <!ay  I  came  home  from 
Litchfield  fair,  ahout  live  or  six  o^clock  at 
oigbt:  It  waa  Ash  Wednesday  at  night  when 
I  came  bome,  and  the  luau  came  to  me  be- 


Trial  of  Sir  fVUliam  Purkjpis^ 


[W 


tween  six  and  seven,  and  told  me  his 
desired  to  have  the  gofiils  away.     I  told 
he  mii^^ht  have  them  w  hen  he  would  ; 
he  would  have  them  away  that  night.     ^ 
him  it  was  an  unseasonahte  time  :  hut,  tiyvi 
the   waggon  is  a- coming,   and  I   desire  f 
would  give  me  leave  to  take  them  away  ;  m\ ' 
I  did  :  then  he  said  he  had  but  two  honjc^ 
he  dcsii'pd  me  to  lend  bim   a  horse  ;  w  hm 
did,  and  he  took  the  goods,  and  went  away 
tbcov ;  hilt   for   wliat   he  did  at\erwards 
them,  I  know  nothing  at  all  of  it. 

Sol.    Gen.     Then   swear    Mr.    Wh^ 
[which  was  done,] 

Ait.  f7f»»  Pray,  Sir,  do  yuit  giie  aii 
count  when  you  went  with  Evana  to  Uj 
wood's  house,  and  what  happened. 

Wh€titoj[}€.    His  man  came  to  me-^ 

AU.  Gen.    Whose  man  ? 

Whcttionc,    Sir  \V)niAm  Parkyns*! 
desire  me  to  go  to  Mr.  Hay  wood  *s 
Mime  goods  of  sir  William  Parkyna,  soi 
dmg,  and  some  odd  thiui>9,   which  1 
said  he,  1  will  gr»  the  next  way  to  tba 
and  1  w  ill  meet  you  (jeforc  you  can  get 
and  be  did  meet  me  half  a  mite  off  tbe 
and  toUl  me  I  musit  slay,  and  not  come  lo 
bouse  till  it  was  niglii,  till  it  was  later. 

L.  C.  /.  ^V  ho  told  vou  bo  ? 

Whetiion€,  Str  William  Parky tis'a  man 
me  so ;  so  be  went  forwards  to  the  gfate, 
then  came  tiuek,  and  called  me  to  come 
tlien  we  went  to  the  h^use,  and  loaded 
waggon  witti  hoxes  and  beilding  that  wii 

Aii,  Ofn.   How  uiaay  boxes  were  tf 

Whtihione.  I  cannot  telt  wlietber  thi 
seven  or  ci^ht. 

Att.  Gen.  Whither  did  you  carry  theiof 

WheUfone,    We  carried  them  lo  air  WiHi 
Parky n'i'i  iioii<ie. 

Alt,  Gen,  Whiit  was  done  with  them? 

Wftfitlune.    There  they  were  put  into 
grmind  by  the  Wiill   snlc,   where  they 
found. 

Aii,  G«n.  Why,  w as  you  present  w  hen 
were  found  ? 

Wftit stone.    Yes,  I  saw  th*>ro  dug  up, 

Att.  Gen.  Then  you  can  give  ua  a  a 
of  them  :     Wliat  were  they  ? 

Whtisione*  They  were  arms. 

Aii.  Gen,    How  many  were  there?     Wl 
quantity  ? 

Whemone,    Truly,  I  cannot  tell. 

Mr.BoAer.  Where  is  the  constable,  Tbi 
Watts?— H'^flf^*.  Here  am  L  (Uewasswofl 

Att,  Gen,  Are  you  the  constable  ? 

Waiti,  Yes»  Sir,  I  am  tbe  con^atahle, 
searched  sir  William   Parkyns*s   bouse, 
upon  aearchtug  in  the  garden  1  Ibund 
arms  there. 

Att.  Gen.  Pray  whatqaantity  of  arma 
you  find  there  ? 

Watt}i.  Four  dozen  of  sworda,  thirty-1 
carbines,  tweoty-flve  brace  of  pistols. 

Att^  Gen.  W'hat  kind  of  swords  were  th 

Wolii.  They  were  bro»d  « words,  tw«»-€d| 
aworda. 


Jbflt  High  Trea^m. 
Wefc  there  any  hilts  to  the 


ITaflt.  N't;    bill  ther^  wna  a  box  of  hilts 
ito  I  suppose  iva^s  pre|mred  forllieiTi^ 
jl*l.  Geo.  Where  did  you  find  iheiii? 
T^iU,   In  ji  border  under  the  wall  by  the 

•ft.  Did  yoo  see  the  boxes  broke  o^jen, 

\^U,    Yes,  Sir,  I  took  Ihem   and   broke 
I  o)ien  my  o^^n  self. 
KryfiKiiv*  'iVas  Whetstone   by,  pray,   Sir, 

I  they  were  broke  open  ? 
f«tij.    He  virus  not  tliere  by  at  the  first, 
E  dttj^  tbem  up;    bui  1  brought  iheiii 
»D  house,  and  there  I  broke  tlieiu  open, 
^  we  snw  them. 
,  O^n,    Will  you  a\k  him  any  questions, 
rWili^m? — Pitrkim.  No,  8ir, 
SoL   Otn.     Then    c^ll    Turton»    Freemai), 
PrHfry      (Who  were  dl  sworn.) 

AiL   G§n^     Pray   «et    up    Mr.    Fre«finan. 
^Wlicii  Witt  done.) 
da,  Gtn.  Where  do  you  lire  ? 

X\  ibe  George  Ian  iu  Holbora. 
ra».  What  are  you  ? 

I  am  hostler  there. 
Gen,    Prny  do  you  g'ive  an  account 
bonei  ^erekept  there  of  sir  WilliaRi 
fit^  Odd  bi)w  many* 
IWiiMiv.  He  was  a  ^ue^i  to  the  house  all 
^  Itot  mumm^t  sometimes  more,  sometimes 

Mt  Gm^    How  was  it  last  winter  about 
F^Arwf  Usi,  how  many  lior^es  htid  he  then  ? 
~      an^  He  bad  sometimes  three  i*arae  in, 
\  four  I  the  most  that  ever  he  had  uas 

Ail  Ora.  What  time  was  that  that  he  had 

n.  To  my  best  memory,  it  was  jast 
belbre   ihe  disturbance,  before  the 
ke  out. 
IM,  Gen.    Before  the  proclamation,    you 
an? 

itmmn.  Yes,  before  the  proelamntion. 
J  I,  Gtn,  When  was  it  P  What  day  of  the 
kit? 

aii.  They  came  in  on  Friday  night. 
LJ.  Hiftt.  Ubat-j  did  five  come  iu  then  ? 
Vcs,  J  thiuk  50. 
.  C.  J.  JfoU.  Who  was  with  Itirn  ? 

u.  i  only  saw  his  ^roooi  and  auotlicr 

,  Oe^  Huw  were  they  accrtulred  ? 
A ^41.     Fi>or    with   holsters   and    small 
on<*^  was  a  ltd  mare  with  a  porturan* 
mm!  in  a  hor!>e  cloth  wrapped  up  tiiert- 
VIS  one  oriwo  pair  of  jack  buots  and,  1  think, 
a  eallar  is  ooe ;  1  cannot  letl  whether  there 
•at  one  imdle  or  two. 
Att*  Gtn,   When  did  they  go  away  ? 
^rttman.  On  Saturday  in  the  alternoon. 
An,  Gtn.    Did  you  obsf  i  ve  any  pers4>ns  to 
eMBe  there  ou  Saturday  morning  f 

§n€nan.  There  were  two  men  that   were 
llMBVtthu  ml  out  between  two  and  three  hours  ^ 


A-  D.  1096- 


[102 


they  rid  out  between  nine  and  ten,  and  thejr 
came  in  again  between  twelve  and  one;  where  < 
they  had  been  1  cannot  tell ;  but  they  had  nd  , 
preity  hard  for  the  urae  they  were  out,  for  tUe 
horses  came  in  in  a  sweat. 

Att*  Gen.  Bet  ore  this  time  that  you  now  \ 
speak  of,  what  houses  came  up  ?    Can  you  re- 
member how  many  horses  came  up  the  week  j 
before  ? 

Fryman,  The  week  before  there  were  some,  ] 
but  how  many  I  cannot  remember ;  they  ▼cry- 
rarely  stayed  above  a  night. 

Ati.  Gen.  What  do  you  know  of  any  other  \ 
horses  that  were  left  there  P 

Freeman.  There  were  three  horses  that  were  | 
at  onr  house  a  week,  that  were  very  gwwl  , 
horses  ;  but  1  do  not  know  whose  horses  they  I 
were,  nor  the  names  of  llie  (gentlemen  that! 
c^wneil  them.  The  gentlemen  that  bronghlj 
ihetn  in  (raid  for  the  horses,  only  the  g^rooo 
told  me  his  master,  sir  William  Parky ns,  badj 
ordered  liim  to  see  the  horses  fed.  i  nevef  i 
received  a  farthingf  of  sir  William  Farkyuir] 
but  alwuYSof  the^rroom. 

Att.  Oen,  Pray,  did  you  obserre  any  parti>. 
cular  hor^e  that  was  brought  in  there,  a  roan 
horse  ? 

Freeman,      Yes,     there    was    oue     hor 
brought  in. 

AU.  Gen.  From  whence  did  that  horse 
come  ? 

Freeman,  As  was  told  me,  from  Moutilag:ue 
housi*. 

Alt.  Gen.  I  believe  you  mistake  the  place  | 
recotleci  yourself  a  little. 

Freeman.  Somerset  bouse,  I  mean  j  a  port«pJ 
brought  it. 

Jtt,  Gen,   Are  you  sure  it   was  Homera 
house? — Freeman.  Ves,  it  was, 

Att.  Gen.  Do  you  know  one  Lewis  ? 

Freeman.  1  do  not  know  him ;  perhaps  th^l 
tapster  does. 

L.  C.  J.  Holt.  How  many  horses  came  from 
Somerset  house  ? 

Freeman*  Only  the  roan  i^eldin^,  and  a 
very  fat  man  mounted  him,  and  rid  out  with 
sir  William  I*aikyus. 

Farkt^m,  Pray,  8ir,  what  sort  of  horse  was 
that  buy  ^Idiug  that  you  say  the  fat  man  rid 
upon  ? 

Freeman.  I  say  he  rid  upon  a  little  roan 
gelding  about  fourteen  hands  high. 

Farkjfnt.  But  the  bay  gelding,  bow  high 
was  that  ? 

Freeman,  About  fourteen  hands  high. 

Purkyns.  There's  your  mighty  borae  for 
service  I 

Freeman.  They  were  no  great  inzed  bo 
none  oClhem. 

Parkins.  And  have  not  yon  known  these 
horses  lo  have  been  mine  a  great  white? 

Freeman.  Ves,  I  have  known  tbeni  to  b« 
yours  a  good  while. 

L.  C.  J,  Hitft,  What,  was  the  roan  geldinf  ^ 
sir  William  Parkyns's? 

Freeman.  No,  not  the  roan,  but  the  others; 
iliey  were  oo  ftriBfe  liorsei^i^^  nvt^  S.\^^ 


8WILLIAMIIL 


^wtfljr  Acre  all  hift  muiii ;  tiMrevMBO 
■cwriuange  bone  bat  Ibe  roaa. 

L.  C.  J.  Hot.  Win  yoa  adc  bim  aiy  Mie 
^■frtiong?— >PT*ym,  Bfo,  nrloffii. 

&/.  0».  Tbco  icC  op  Mr.  Tiiitoo.  (WUeb 


kmnr  or  bonn'that  were  rtaading  al 


TrM^Sir  WSBam  Parkynt^ 


An.  Gem.  Fmr  will  j^m  fire  as  aeeaont 
wbatyoo  know  or  bones  thai 
tbe  Cicorge  Idd  is  Hotborm  ? 

IkrUm.  I  bare  knowo  sr  WHfiaaa  Ptfkjns 
to  bare  oic4  tbe  iao  tbii  fbar  or  fire  yean, 
ercr  since  tbe  inn  was  boilt;  and  in  last  Pe- 
bmarj  be  came  to  town  witb  tbrae  hones  tbe 
finttime. 

Alt.  Gem.  What  daj  of  the  month  was  that ; 

Tmrtom.  I  cannot  nj  what  day  ofthe  ODontb, 
hot  it  was  about  the  week  bdbre  bis  bit 
eominf  there,  which  was  joit  before  the  dts- 
coveryAftbeiilot. 

Ati.  Gem,  Do  yoa  know  what  day  of  the 
week  it  was? 

Turtm.  No,  truly  I  do  not,  for  I  fceef  no 
aceaaat  of  hones  goin^  in  or  out.  The  last 
time  of  bis  coming  was  witb  aboot  Ibar  or  five 
hones  to  tbe  bestof  mv  kaowlcdfe,  aodtfaat 
was  aaoa  the  Friday  before  the  Hot  broke  oat ; 
aod  then  upon  that  Friday,  sir  William  PSv- 
fcyas  gave  order  to  bb  groom  to  gat  the  * 
ready  against  8atarday  morniiy. 

Ait.  Gem.  Did  he  go  om  wiib  bio 
Saturday  BBoming. 

Tmriom.  Ue&td  not  eo  oat  with  afi  the 
hmati  according  as  he  nad 
two  genilemea  rid  oat  with  two  of  the 
and  staid  out  about  two  or  three  boon,  and 
caoM  in  again,  as  if  they  had  rid  pretty  bard, 
tbe  hones  being  in  a  sweat;  and  rathe  after- 
BOOB  thi-y  all  went  &irly  ootof  town,  and  gave 
not  that  they  expected  to  be  ia  town  on  Son- 
day  or  Nomlay  following,  bat  they  did  not 
mom  ;  hot  thoa  came  dmra  one  Mr.  Lewif ,  I 
know  not  that  that  is  his  name,  ool; 
formerly  bekmgod  to  my  lord  of  ' 
knew  him  to  be  gentleman  of  the  bone  to  my 
lord  Fercrdiam,  but  I  did  not  know  bis  name. 

Alt.  Gem.  Had  yoo  not  aeen  him  there  be- 
fore :  Wbattime  did  become? 

Turtom^  I  do  oot  know  that  1  ever  aaw 
him  there  before ;  be  was  on  Saturday  in  oar 
^ard. 

L.C.  J.  Hoii.  Yoo  are  asked  when  Lewis 
came? 

Turtom.  Tbe  first  time  I  see  him  was  on 
Satorday,  in  tbe  yard,  asking  fiw  sir  William 
Farkrns. 

L.'C.  J.  Holi.  What  time  on  Satordav  was 
that?  '  I 

Turtom.  It  might  be  three  of  tbe  dock  in  tbe  | 
aAemorm,  aboot  ao  boor  or  thereaboots  befon  J 
sir  WiHan  Psikyns's  horses  weot  away ;  and  | 
asking  for  sir  William  Pkrkyns,  and  he  not ! 
Wag  there,  he  retnroed  back  again ;  and  after  ' 
tlmy  were  gone,  ha  caaieagam,aad  1  toM  him 
;  hot  the  groom  had 


to  cwpDre  if  sir  W^uEam  nu 
were  cobdc  to  town ;  I  lold  him  n 
so  be  caoK  again  upon  Monday  momi 
twist  eight  aid  nine  of  the  dock,  and  asl 
if  I  hem  nothing  of  hia  coming  to  toi 
tald  him  DO,  I  did  net  bear  of  his  coming 

Att.  Gem.  The  horses  that  came  op  < 
day  night,  bow  were  ther  accoutied  ? 

Tmrtrm.  Two  or  tbree'of  them  had  h< 
I  cannol  say  bat  for  pistols  they  had 
firecasr. 

Att.  Gem.  Had  they  no  carbines? 

Tmrtom.  No ;  hot  ooly  horse  pistols. 

Att.  Gem.  Did  you  oor  obserre  anj 
anns,  or  other  famjtnre  ? 

Tmriom,  I  did  see  a  pair  or  two  of 
boou  that  they  rid  in,bat  I  did  not  sc 


Att,  Gem.  Were  there  nay  that  were 
op  in  a  bone-doth  ? 

r«rfoa.  Ko,I  did  aotaeeany,  ther 
not  broogfat  into  the  hove. 

Mr.  CSwpsr.  Do  you  know  what  tn 
hann  were  aaddled  that  day  ? 

Jkrtom.  No,ldidBOt. 

PaHbvas.  Yoa  obaerved,  aod  said  ther 
a«or  piBmls,didMla 


IWfsn.    Yes;  yoa 
two  or   three   pair   whea   yoa  caioe 

ParAyas.  And  as  to  tha  jack-baats,  ye 

we  rid  m  them.— 7Wfo«.  I  soppose  aa 

PaH^as.  We  abghled  at  Mr.  John's 


ly  wheal 
Oxfoid,  I 


mere  small  honm  all  of  them ;  pny  wj 
tell  tbe  coart  what  siaed  horses  they 
was  there  ever  a  great  borse  among  thea 

Turtom.  Nereraooe,  1  believe!,t&te» 
above  fouiteen  bands  and  a  half,  aome 
fourteen. 

SoL  Gem.  Did  you  see  the  roao  gdi 
What  size  was  that? 

Turtom.  A  small  pad,  thatoi^tbe 
thirteen  and  a  half. 

Att.  Gen.  Did  yoo  ever  aae  him 
with  so  maoy  boraes'  before  ? 

Turton.  i  have  seen  more  at  the  S 
and  Bockler,  when  1  lived  there ;  and  Im 
to  ino  there. 

Ait.  Oct.  Howmanv  have  yaa  aaen 
Swonl  and  Buckler?    ' 

Turtom.  I  have  seen  four  or  fire  at  a 
bui  tliis  is  many  yean  aco,  seven  or 
yean  ago,  wben'be'used  to  keep  his  coac 
fbar  bwses,  and  come  up  with  several  i 
borKs  with  him. 

Att.  Gem.  How  long  have  you  lived  i 
George  inn? — Turtom.  About  two  yean. 

Att.  Gen.  Did  you  obeenrc any  other] 
that  stoo<l  there  ? 

Tirrloa.  There  were  two  that  arcR 
sisasbio  bones  laigcr  than  any  of  air 
liam*sown. 

Att.  Gem.  Whoaa  weie  ther  ? 

2W<o«.  IcanaatteH. 

AU.  Gm,  Did  any  body 


fir  High  Tnoion. 

.  I  iomH  know  who  owned  them; 
I  one  that  paid  for  their  meat,  and 
away. 

m.  Who  it  that? 
.  TV«ly,  Sir,  I  cannot  tell ;  1  do  not 

0  he  wai;   I  n«?er  saw  him   in 

!«.  Has  ar  William  Parkyns  any 
tion^toask  him  ? — Farkyns,  No,  Sir. 
H.  Then,  my  k>rd,  we  shall  call  no 
lesMS,  anksB  he  gives  further  oc- 
e  leaTa  il^here  till  we  hear  what  he 

Sir  William  Parkyus,  Mr.  Attorney 
ad  Ae  king's  connsel  have  done; 
v  time  to  make  yonr  defence. 
ff.  My  kird,  I  rely  upon  your  lordship 
itece ;  for  I  am  ignorant  of  these 
ps ;  1  rely  wholly  upon  your  lord- 
pre  a  true  account  of  them  to  the 
>pe  yonr  lordship  is  so  just,  thst  you 
i  the  evidence  to  the  jury  as  it  is,  and 
ise.  Bot  1  do  not  observe,  that  as  to 
illation  there  is  more  than  one  wtt- 
kkat  is  captain  Porter:  There  is  not 
ire !  and  as  to  that,  I  suppose  yonr 
ill  declare  to  the  jury,  that  I  was  not 
in  It;  and  captam  l^orter  declares,  I 
re  no  hand  in  it,  only  I  was  to  fumiih 
s,  and  accidentally  I  was  at  some 
hmi  he  does  not  decWe  that  I  was  to 
w  HI  particular. 

.Yes,  yes,  you  agreed  upon  the 
Ike  sereial  resolutions  of  assassinat- 

2,  and  said,  that  it  was  necessary 
e  him  off. 
I.  Still,  that  is  but  one  witness,  I 
Ikriy  ;    and  the  law  says  positively 

1  ke  two  witnesses. 

;  Noi  to  every  overt-act,  there  is  no 

s. 

f.  As  to  the  assassination  there  is  but 

kerbothe;   and  so  as  to  the  regi- 

&d  not  say  that  Ijvas  to  raises  regi* 

t  that  he  was  tow  by  a  gentleman 

I  been  desired  to  be  in  the  matter,  but 

St,  because  I  had  engaged  in  another 

aboat  a  regiment ;    hot  this  was  all 

mv.  . 

\  Ves ;    he  said  yon  owned  you  had 

U    Besides,  it  b  said  you  owned  you 

saddles,  and  your  troop  consisted  of 

a. 

J.  No,  captain  Porter  never  said  so. 

m.  That  was  Sweet 

.  Yea  tekl  Porter,  yon  had  a  regi- 

ik  after. 

«.  Captain  Porter  is  here,  I  desire  he 


A.  D.  1696. 


[!« 


J.  Yes,  and  yon  told  Sweet,  that  yonr 

iated  of  old  soldiers,  and  that  you  had 

ifty  saddles. 

ML  Aly  troop,  aye!   But  still  there 

ag  era  regiment ;  nor  did  they  say  I 

i  a  legiient,  or  a  troop,  or  was  to 

MaeoC 

TeaioMgM  your  troop  coMftcd  of 


old  soldiers.  I  did  not  say  that  you  had  said  you 
had  raised  or  would  raise,  but  it  did  consist  of  old 
soldiers. 

L.  C.  J.  He  says  that  which  makes  it  plain, 
that  you  were  to  have  a  troop,  or  had  a  troop, 
consistiog  of  old  soldiers,  besides  volunteers 
that  had  been  officers :  and  thaty  ou  had  bought 
a  f^reat  many  s&ddles,  thirty  ssiddles ;  and  you 
were  to  go  mto  Leicestershire ;  abd  accord- 
ingly you  did  go,  and  upon  your  return,  yon 
did  give  an  account  that  all  was  well,  and  the 
west  as  well  inclined  to  king  James's  interest  as 
the  north. 

Parkyns.  That  1  went  into  Leicesterehire, 
and  met  several  gentlemen,  and  that  they  vrere 
all  well  inclined ;  I  hope  that  is  no  evidence  of 
treason  against  me :  every  body  ought  to  be 
well  inclined. 

L.  C.  J.  Aye !  but  they  were  all  well  dis- 
posed or  inclined  to  king  James's  interest 

Parkym.  He  did  not  say  so ;  if  your  lord- 
ship pleases  to  call  him  again. 

jL.  C.  J.  Call  him  again.  (Sweet  was  set 
up  agaiu.) 

SoL  Gen.  What  did  sir  William  Parkyns  tell 
you  of  his  journey  into  Leicestershire? 

Sweet.  He  said  he  had  lieen  there,  and  had 
met  his  friends,  and  all  was  well. 

L.  C.  J.  What  did  he  say  .^  Did  he  name 
king  James  ? 

Sweet.  He  did  not  name  king  James  to  me 
at  that  time. 

L.  C.  J.  Wbarwasthe  discourse  about,  that 
they  were  all  well  inclined  to  f 

Oweet.  He  always  named  it  the  king's 
interest,  and  did  not  namo  king  James ;  but  I 
understood  it,  and  always  took  it  to  be  ^mg 
James  he  meant. 

Mr.  Mountague.  What  did  he  say  of  the 
North  and  West  f 

Sweet.  He  said  that  the  West  was  as  well 
inclined  to  the  king's  mterest  as  the  North. 
>'  Att.  Gen.  Whatdkl  he  say  before  he  went? 

Sweet.  He  told  me  he  was  to  go  into  Leicester- 
shire to  meet  some  of  the  King's  friends. 

Parkyns.  Pray,  recollect  yourself,  and  con- 
sider what  you  say . 

Sweet.  He  said,  some  gentlemen  rid  as  far  to 
him,4»  he  did  to  meet  them. 

Att.  Gen.  Was  that  the  time  he  talked  abont 
the  troop  ? 

Sweet.  No,  that  was  before  this  time.  lean- 
not  remember  the  particular  time ;  it  was  at  his 
own  house,  and  captain  Scudamore  was  with 
him. 

Att.  Gen.  When  was  the  discourse  about 
king  James's  landing  ? 

Sweet.  He  told  me  that  he  believed  new  tha* 
king  James  would  hmd,  he  said  he  had  his  owtt 
word  for  it ;  it  was  about  Christmas. 

Att.  Gen,  What  did  hesay  about  preparation 
for  itP 

Sweet.  He  sakl  his  own  troop  was  is  consist 
of  aU  old  soldiers. 

L.  C.  J.  Dkl  he  tell  you  he  had  a  troop  ? 

Sweet.  I  speak  his  own  words;  he  said,  Mj 
troop  coonsti  of  all  old  iddiCTa. 


107 )  S  WILLIAM  m. 

L.  C.  J.  Was  iV  comisti*,  or  will  < 
though  I  think  there  may  be  no  great  matter  of 
difierenoe  in  this  case  P 

Parkynt,  Yes,  hit  lord,  but  there  is  a  great 
deal,  sore ;  for  *  willconsist'  sheirs  nothing  yet 
done,  and  all  is  but  words. 

L,  C.  J.  Sweet,  answer  to  sir  William  Par- 
fcyns's  question. 

Sweet,  I  tell  your  lordship,  I  repeat  his  own 
words,  My  troop  consists  or  is  composed  of  all 
«ld  soldiers. 

Mr.  Cowper.  AVhat  did  he  say  of  volunteers? 

Sweet.  lie  said,  there  were  some  gentlemen 
that  woold  go  along  with  him  asf  olunteer8,that 
had  been  old  officers. 

Mr.  Cowper.  Pray  let  me  ask  anotlier  ques- 
tion? when  be  discoursed  of  the  present  Kittg, 
by  what  name  did  he  use  to  speak  of  him  ? 

Sweet.  He  called  him  by  the  name  of  the 
prince  of  Orange. 

Parkym.  Pray,  recollect  jrourself,  Mr. 
Sweet,  and  think  of  what  you  say  :  since  he 
was  declared  king,  did  I  ever  call  him  prince  of 
Orange;  1  am  upon  my  life,  and  pray  speak 
nothing  but  the  truth. 

JL  C.  J.  Consider,  and  answer  the  questioui 
What  did  he  use  to  call  him  ? 

Sweet,  Truly,  my  lord,  I  am  not  positive  as 
to  that,  1  underwood  it  so.  I  never  knew  that 
he  allowed  him  to  be  king  of  England. 

Parkym.  Did  you  ever  hear  me  call  him 
prince  of  Orange,  since  he  was  king  ? 

L..  C  J.  Look  ye,  Sir,  how  long  have  you 
been  acquainted  with  him  ? 

Sweet.  About  three  years,  my  lord. 

L.  C.  J.  Well,  that  is  long  since  his  Majesty 
was  declared  king ;  have  you  ever  heard  sir 
William  Parkyns  call  this  king  prince  of 
Orange? 

Sweet.  1  am  not  positive  in  that,  butiunder- 
■tood  he  did  not  allow  him  to  be  king. 

Sol.  Gen,  You  frequently  discoursed  with 
hun  about  the  government,  it  seems ;  pray, 
what  did  he  une  to  call  him  ? 

Sweet.  I  have  heard  him  call  him  king  Wil- 
liam, and  the  little  gentleman. 

Parkyns.  When  ever  did  vou  bear  me  call 
him  the  Little-gentleman  ?  Mr.  Sweet,  pray, 
when  you  are  upon  your  oath  consider  well, 
and  recollect  yourself;  and  do  not  answer  rash- 
ly and  suddenly,  but  think  of  what  you  say. 
r  always  expressed  m3'self,  when  1  had  occa- 
sion to  speak  of  him,  and  called  him  king  Wil- 
liam, as  other  people  nse  to  do,  I  never  used 
the  words,  little- gentleman,  nor  prince  of 
Orange  neither. 

L.  C.  J.  Did  you  ever  hear  him  call  him 
tMberwiae  than  king  William  f 

(He  paosed  a  while.) 

L.  C.  J.  Pray  speak  the  trath  and  no  more. 

Sweet.  I  have  heard  him  call  him  jtrince  of 
Orange. 

L,  C.  J»  <But  you  have  heard  him  call  him 
kioji  William  too  ?^Swut.  Yea. 

Hr.  C&wper.   But  pray,  when  he  spoke  of 
Ite  Idtigf  what  king  did  >ou  understand  by  it  ? 
Smmi.  losedtouAderstaadkingJaiiiei. 


Tfial  of  Sir  JViUiam  Park^u, 


I 


Pdrkym.  What  is  that  to  me  what  he 
derstood  ? 

L.  C.  J.  But  I  would  observe  to  yeu 
tiling,  when  you  came  from  Leioeitenl 
vou  talked  how  well  disposed  they  were  tc 
king's  interest ;  he  says,  be  understood 
king  to  be  king  James,  and  you  said  the  \ 
was  as  well  disposed  as  the  North  ;  pray,  i 
were  you  employed  by  king  WiUiam  ta 
how  the  gentlemen  stood  affected  to  him  ? 

Farh^.  No,  nor  by  kmg  Jaroea  neitJM 

L.  C.  J.  Why  then  should  you  eon 
yourself  for  the  kmg's  friends  in  tbe  Wcsl 
the  North  ? 

Parkyiu.  I  never  was  in  the  West  isa 
life,  and  therefore  cannot  tell  why  1  aboiii* 
him  any  thing  about  tlie  West. 

Att.  Gen.  Pray,  Sir,  when  was  it  tha 
WiUiam  Parkyns  spoke  about  the  king's  & 
ing? 

Sweet.  It  was  about  Christmas,  be  sai 
believed  he  would  land. 

Parkym,  Did  I  tell  you  positively  it  m 
be  so  then  ? 

Att.  Gen.  He  tells  you  he  said  y<M 
believe  it,  for  you  had  it  from  his  own  moi 

Parkynt.  That  shews  it  is  not  probfl 
should  tell  him  so;  that  I  shoukl  hm 
irum  his  own  mouth,  carries  such  am 
probabilitj  with  it,  that  the  evidence  ifl 
descj  it  destroys  itself. 

Sol.  Gen.   He  does  not  say  you  had  it 
hb  own  mouth,  but  that  you  had  his  wort 
it ;  and  this  being  about  Christmas,  long^ 
our  king  was  returned,  it  could  mean  no  < 
king  but  king  James. 

L.C.J.  Look  you,  sir  William  Plaiir 
there  is  another  thing  I  would  observe,  V 
did  you  send  your  man  to  Kensington  tt 
Brown  ?  Who  is  that  Brown  ?  and' what' 
the  man  that  lodged  at  the  confectioner^ 
Holbom? 

Parkyns.  I  cannot  tell  who  it  was,  I  kc 
neither  Brown  nor  the  other  man  ;  but  I  s 
my  man  at  tlie  revest  of  Mr.  Chamock,  v 
lodged  in  the  same  house  with  me ;  he 
sired  he  might  go  upon  an  errand  for  him 
Kensington,  and  I  directed  him  to  go  n 
such  an  errand,  for  he  was  formerly  Mr.  CI 
nock's  servant,  and  1  desired  him  to  go  of 
errand  if  he  requested  it.  Who  these  i 
were,  I  know  not,  neither  of  them,  nor  anf 
their  business. 

L.  C.  J.  But  he  was  bid  by  the  roan  1 
lodged  at  tha  confectioner's  to  tell  bis  ma 
that  he  would  stay  within  for  him. 

Parkyns.  That  might  be  Mr.  Chamock, 
he  was  nis  servant  o^ce. 

L.  C.  J.  But  he  says  he  carried  the  n 
sage  to  yon,  and  you  received  it.  Well,  fa 
you  anv  more  to  say  ? 

Parkyns.  My  lord,  I  think  there  if  but 
positive  evidence  of  any  one  overt-act. 

L.  C.  J.  Yea;  what  do  you  think  of 
design  of  bringing  in  king  Janaea,  and « 
suiting  about  it,  and  assiatmg  in  tbo  in?oi 
and  preparing  a  troapi  aad  proridiaf  wom 


fijir  High  Treason. 

lit  Ml  diew  overt-acts  f  Do  you 
v  bafiflg  a  troop  of  old  soldiers  is  no 

If.  Tkereb  DO  positive  proof  of  aoy 
njamis. 

\  Itii  proved  there  were  arras  sent 
tllicbadmes  last  to  Mr.  Hav  wood's, 
fn  Wether  in  law,  and  these  lay  there 
l^edscfday  last,  afler  your  name  was 
damation ;  and  then  they  were  re- 
Um  night,  and  buried  at  your  house, 
Idun  op  there ;  and  here  is  an  ac- 
es wbat  arms  they  were,  four  dozen 
i,tweDty-five  pair  of  pistols,  tbirty- 

Ml. 

H.  First  it  does  not  appear  when 
s  were  broagrfat,  nor  for  what  intent 
(kooght  from  Haywood's. 
I  Bit  wbat  use  liad  you,  a  private 
nminyarms?  And  then  your  going* 
eaoshire  to  meet  some  gentlemen, 
gifiog  an  account  how  they  stood 
I  the  king's  interest,  whether  that  be 
id  for  the  interest  of  kmg  James,  1 
N  to  the  jury,  siuce  von  give  no 
kitfou  were  employed  by  king  Wil- 
li. My  lord,  I  went  upon  my  private 
>,iid  then  talked  of  news  as  other 

I  Botwben  you  returned  back  again, 
ni  tU  was  well,  and  gave  an  account 
Mi  were  disposed  in  the  West  and 

K  If  there  any  persons  named,  or 

B?  Can  it  be  an  overt-act  of  treason 

ilNe?er  my  acquaintance  ? 

X  Hot  your  going  with  that  de«gn 

^■ao  interest  against  the  king,  and 

*kiBg. 

K  He  does  not  say  I  discovered  my 

1  went  to  meet  with  some  friends  of 

^'  Did  be  not  tell  you  he  was  to  ffo 


td.  Yes,  be  did  so. 

•  Did  be  ten  you  to  what  purpose? 

Be  sud  be  was  to  go  to  meet  some 

r'lirieods. 

f.  Did  I  tell  yon  who? 

So. 

Bat  there  was  a  lord's  brother, 
etellyouofthat? 

He  said  all  things  were  well,  and 
rtt  as  well  inclined  as  the  North. 

To  wbat? 

'o  the  king's  interest. 

Trehy,  Yon  spoke  of  a  lord's  bro- 
as  concerned? 

le  said  several  persons  of  qnality  in 
fre  concerned,  and  a  lord's  brother 

them. 

.  Mj  bird,  1  desire  he  may  be  ask- 
esaid  the  king  would  land,  what 
SBl,  whether  he  named  the  late 
M  James? 
If  ill,  Msircr  that ;   when  he  die- 


A.  D.  1696.  [aO 

coursed  to  you  of  the  king's  landing,  did  h9 
name  the  late  king  James  ?  or  did  he  say  thsi 
late  king  James  ? 

Juryman,  Was  he  mentioned  in  the  dia- 
course? 

Siceet.  He  never  used  to  mention  king 
James  to  me,  but  only  the  king,  which  I  un- 
derstood always  uf  king  James. 

Att.  Gen.  Fray  wbat  time  was  it  that  he 
spoke  of  the  king's  landing  ? 

Sweet,  It  was  abooi  Christmas. 

Att,  Gen,  Therefore  no  other  king  could  be 
meant  but  king  James,  loa  there  was  no  other 
king  to  land  at  that  time  ^  and  he  said  he  had 
the  king's  word  for  it.  I  suppose  he  cannot 
pretend  be  had  king  William's  word  for  it. 

Parkins,  I  hope,  to  talk  of  the  king's  land* 
ing  is  no  treason ;  it  is  but  words :  If  I  teU  an 
idle  story  of  wbat  1  think  may  come  to  pass^ . 
shall  that  be  reckoned  treason  ?  Then  for  htm 
to  say,  I  had  it  from  the  king's  own  mouth,  it 
is  impossible  to  be  true,  and  is  no  overt-act, 
being  only  words,  and  cannot  be  reputed  tret-* 
son.  And  then  as  to  the  other  two  parts  of  the 
charge,  the  consultations  with  my  lord  of 
Ailesbury,  and  those  other  persons,  there  it 
but  one  witness ;  nobody  but  Porter ;  neither 
is  there  any  more  but  he  for  the  assassinatioD ; 
his  evidence  is  but  a  single  proof,  and  there 
ought  to  be  two  positive  witnesses,  by  the  law, 
to  each  overt  act. ' 

L.  C.  J.  HoU.  No:  there  ought  to  be  twa 
witnesses  to  each  species  of  treason,  that  is  alL 

Parkynt,  There  ought  to  be  two  wit* 
neises  to  both  these  parts  of  the  treason. 

L.  C.  J.  Holt.  I  must  tell  you,  sir  William 
Paricyns,  if  any  person  does  dengu  and  cooi* 
trive  that  the  realm  should  be  invaded,  or  tht 
king  deposed,  and  another  set  upon  the  throne^ 
that  conspiring  to  invade  the  realm,  or  dmse 
the  king,  are  overt-acts  of  high  treason,  witha 
the  statute  of  25  £d.  3,  and  the  same  speciea 
of  treason  as  designing  to  assassinate  him  is« 
It  is  compassing,  designing,  imagining  bis 
death  and  destruction.  Now  the  question  ii, 
whether  there  is  not  another  witness,  besidea 
capt.  Porter,  to  prove  another  overt-act  of  this 
design? 

Farkyns.  I  don't  find  there  is;  for  all  the 
rest  is  only  discourse. 

L.  €.  J.  Holt,  Yes,  for  what?  Do  you  think 
providing  arms  for  that  purpose  is  only  die-* 
course? 

PorArynj.' The  witnesses  do  not  say  for  what 
purpose  the  arms  were  bought. 

h,C,  J,  Holt.  Nor  do  you  tell  us  of  any  other 
purpose. 

Farkynt.  My  lord,  it  does  not  appear  wIma 
they  were  bought. 

L.  C.J.  Hjt.  Aye,  but  wbat  occasion  iiad 
you  for  such  a  quantity  of  arms  ? 

Parhyni,  My  lord,  t  did  not  buy  them,  after 
all.  I  found  them.  If  I  had  had  liberty  te 
have  sent  down  for  witnesses,  I  could  have 
proved  that  these  arms  were  in  boxes  all  rtisty 
m  my  bouse  when  I  first  came  lo  it. 

L.  C.  J.  HoH.    Aye:  But  why  were  tbey 


Ill] 


8  WILLIAM  IIL 


Trial  of  Sir  fVUUam  Parhym^ 


buried,  just  at  the  time  when  the  Plot  was 
broke  out,  and  the  whole  desijs^  discovered  P 

Parkyns,  1  caonot  tell,  ray  lord,  how  to 
help  it,  if  thev  will  make  an  ill  interpretation. 

L.  C.  J.  Holt,  What  interpretation  would 
you  have  us  make? 

Parkyru.  My  lord,  it  is  Tery  easy  to  ima- 
^ne,  people  do  not  care  to  be  found  with  arms 
at  such  a  time;  but,  however,  the  having  of 
arms  is  no  treason.  They  are  as  much  a  com- 
modity as  any  thing  else. 

Att.  Gen.  And  then  the  horse  coming  to 
town  just  at  such  a  time,  aM  the  saddles. 

Parkynt.  I  have  not  bought  a  horse  this  two 

rears,  and  I  travelled  in  no  other  manner  than 
used  to  do.  So  the  groom  tells  ye,  I  used  to 
come  to  town  with  three  or  four  horses  alwflvs. 
I  never  kept  less  than  six  or  seven  horses  this 
twentv  years  ;  sometimes  a  great  many  more ; 
and  they  were  verv  little  bcvses,  pads,  no  way 
fit  for  the  service  tbey  are  presumed  to  be  for. 
.  L.  C.  J.  Holt.  Have  you  any  thing  more  to 
sav,Sir? 

Parfym,  I  hope,  m^  lord,  as  to  the  assassi- 
nation I  am  clear :  Perhaps  the  world  would 
imagine,  I  have  had  some  inclinations  to  king 
James's  service,  and  perhaps  tbey  may  not 
think  amiss ;  but  I  never  did  any  thing,  nor 
had  an  opportunity  to  do. 

L.  C.  J.  Holt,  God  be  thanked  you  had  bo 
opportunity  ! 

Parkynt,  And  1  hope  my  life  shall  not  be 
taken  away  without  proof;  I  hope  it  will  be 
rather  thought,  tliat  every  one  should  be  taken 
to  be  innocent ;  and  it  would  better  please  the 
long,  that  I  should  be  acquitted,  than  to  let  me 
he  round  guilty  upon  slight  ground!<  and  ima- 
ginations, of  which  little  or  nothing  can  be 
tnaile. 

L.  C.  J.  Holt,  No  question  of  it :  It  will 
please  the  king  and  every  body  else,  that  you 
should  be  found  innocent. 

Parkynt.  Then  I  hope,  my  lord,  you  will 
not  strain  the  law  to  take  away  my  life ;  ac- 
cording to  the  rule,  That  it  is  better  five  guilty 
men  miouM  escape,  than  one  innocent  man 
suffer:  Fur  the  blood  a  of  man  may  lie  upon 
every  body,  if  it  be  causelessly  shed  ;  and  it  is 
very  severe  to  strain  the  law  to  take  away  any 
man's  life. 

L.  C.J.  Holt,  Look  ye,  sir  William  Par- 
ky os,  1  must  tell  you,  you  may  be  under  a 
very  great  mistake :  You  may  think  it  neces- 
sary to  have  two  witnesses  to  every  overt- act, 
but  that  is  not  so ;  for  if  there  be  one  witness 
to  one  overt- act,  and  another  witness  to  ano- 
ther overt-act  of  the  same  species  of  treason, 
that  is  all  that  the  law  requires. 

Parkynt,  Here  are  two  species  of  treason, 
levying  war  is  one  species,  and  assassination  is 
another. 

L.  C.  J.  Holt,  Your  design  was,  originally, 
the  restoring  of  king  James,  and  x  in  order  to 
that  the  dethroning  of  king  William. 

Parkynt.  That  appears  but  by  one  witness, 
which  is  not  aoeordiDg  to  kw,  which  requires 


L.  C.  J.  Hi^t.  One  way  of  effectii 
design  was  by  assusinatiite,  the  other  I 
sion,  or  by  force. 

Parkynt,  Still,  my  lord,  here  is'  tl 
witness,  and  that  is  but  one. 

L.  C.  J.  Holt.  Yes,  there  are  two. 

Parkynt,  None  but  captain  Porter. 

L.  C.  J.  Holt,  What,  not  as  to  the  r 
of  king  James,  which  tends  to  the  del 
kii^  William  ? 

Parkynt.  In  what  particulars,  my  k 

L.  C.  J.  Holt.  Your  providing  an 
going  to  Leicestershire,  and  sending  C 
on  that  errand  into  France.  As  to  the 
nation,  indeed,  there  is  but  one  positive 
besides  otlier  circumstances,  which  hf 
weight ;  but  as  to  the  other,  you  said  i 
would  come— — r 

Parkynt,  It  was  my  opinion,  that's 

X.  C.  J.  But  you  said  you  had  his  wc 

Parfynt.  Does  not  that  answer  it! 
lord  P  Is  it  possible  it  should  be  true 
who  was  in  England,  should  have  the 
one  that  is  at  such  a  distance  beyond  si 

L,  C.  J.  And  then  your  buying  of 
for  what  purpose  were  mey  ? 

Parkynt,  My  lord,  does  he  say  it  W4 
der  to  it?  I  am  sure  he  does  not,  and 
shall  not  be  presumed  out  of  my  life. 

X.  C,  J.  When  you  talked  of  thi 
landing,  and  said,  you  had  his  word  foi 
likewise  said,  your  troop  was  made  u 
soldiers,  besides  volunteers  that  had  I 
fleers. 

Parkynt.  Still  there  is  nothing  (U 
does  not  say  there  was  one  man  raised. 

L.  C.  J,  And  your  going  into  Ixmco 
upon  such  an  errand,  as  you  told  liini  y 
upon. 

Parkyns.  Well,  my  lord,  1  must  le 
your  lordship.  I  hope  you  uill  tonsi 
of  it. 

L.  C.  J.  We  must  do  that  which  is  i 
tween  the  king  and  his  subjects. 

Parkynt.  And,  I  hope,  my  loni,  the 
sioh  of  subjects  is  more  acceptable  that 
struction  of  them :  and  the  government 
concerned  to  save  the  iimoceut,  than  to 
the  law  to  punish  the  guilty. 

L.  C.  J,  It  will  be  more  acceptah 
indeed,  the  king  and  kingdom  are  vei 
concerned  in  this  matter,  and  at  tliis  i 
William;  and  the  gt>vernment  ought 
care  to  prcsene  it^eU'.  Have  you  an 
to  say,  8ir?  If  you  have,  pray  9|>eak  ii 

Parkyns.  I  have  no  more.  I  suli 
your  lordship ;  I  think  there  is  hut  < 
ness,  and  all  the  other  is  but  conjeci 
nonsense;  and  oul  v%itii€ss  is  not  sutfit 
the  law  of  England,  ibi*  by  the  statu 
must  be  two. 

L.  C.  J,    1  have  told  you  my  opinio 

Parkynt.  Besides,  y  out*  lordship  ha 
me  this  many  years,  and  you  know 
education  was  not  to  war  and  tigtiiiog. 
gown;  and  your  lordship  knoM  bovi 
aMy  1  have  bred. 


115]         ^^^P      ^r  High  Treasan. 

ImC.J.    f  i»«v«iniown  y mi  heretofore,  sir 
wmW  ytm  kept  your  profession  ami 


D*  1696. 


[114 


Fmriairng^    And  sow  fn  my  old  age,  niy  Itird, 

I  tm  grijitti  IJifTie,  aiit)  listve  lo«l  the  use  of  my 

invk  fTHii  ilMf  gnat,  und  arnrce  able  almost  to 

M«tt  tmf  ibet.     Therefore  it  cannot  in  reason 

mtkmtnt  ^rahahlc,  th&t  1  «^houl(l  en^a^e  in 

•■k  B  Msinrss  a»  this;  mill  therefore  I  bo(>e 

.  jii^mjl  inlerprrt  h\\  thiii^n  in  a  nriilder  sense, 

^■^■tor  flf  litis,  rftther  thnn  for  the  destruction 

^^^Bid  tlie  ruin  of  n  man's  fortune  and  Ik- 

LC^J.  I  idl  yoii^youbavehad  my  oinnion 
iiiiiiiiH,  the  tiumlier  of  i*ttne^sea<  1  su[>- 
fiw  lilt  Iftfil  mud  brother  witt  declare  tJieirs. 

L.CLJ^   Trrby^     My  lord  chief  justice,   it 

im^  ilort  please  to  hiive  us  deliver  onr  upi- 

MHi;  t  iJiir.k  w  ii  nus^lii  lo  be  verv  lender  in  a 

mm  •f  bl"  ■  -  hie  of  i^ir  Wilhaui 

PldcyiA  i»  ^  e  ought  to  he  careful 

Ai^Wliare  on  wrou§r  dnn«  him.     But  I  thitik 

Vibtettcs  iff  Ircison,  ripecially  of  this  na- 

l*«,4»fife  of  Uie  Uin^,  aufj  the  hvesi  af  all 

at  pe<»|»le  of  the  kiogYiom  are  also  at 

%tk*\  f«f  mutt  be  indifferent  in  ihit  ca*e» 

I  in«  tfrace  of  (jod  vve  uill  be  so.    The 

I  Utat  *\T  Wdliam  Parky  ui  proposes,  t», 

tlirrt;  ftre   two  iviineKses  upon   tbi^i 

totliii        't       if  vi^hich  he  is  indict- 

•^  «tedb  iSt  ti  "^iuK  Add  imagining 

^kaif^^MOii:  <M.c^  >^iU)es!4,   at   least,  does 

f^mtwmj  prore,  that  you  sir  VVilham  Parky ns 

M  ^tw  tD  thp  4leugii  of  aBiasginutmg  the 

lnC^ffBWMi,  afiU  proimaeto  provide  and  con- 

^Anlw«rii  Af»«l  arm^  to  that  purpose.     Now 

MfpM  tbct  t^   proved  but  by  onr  witue«is,  and 

hwi  gtJDc  no  fiirther,  Ibeo  your 

ukl  bate  hail  a  very  ^ood  ground, 

I  li»oa«i)ii  tiai  l^e  a  lei^itl  prfiof  of  tri^son  \ 

\  I  •ml  leil  you,  that  thiii  treaaon  of  com- 

vaA.  imayiniR^  the  kitig^F  death  may 

cndcnt  by  other  ov<?rt  acts,  besides 

KMainutirfa  r  to  conspire  with  a  foreign 

>  10  is  fade  the  1      i.         provide  arms,  to 

Ik  ii^wlara,  ae>  an  insurreotion 

Like  ^isiTf  (besie  mt^^  mert^acti  of  iriia* 

f  llRiktag^a  d«ath.    For  it  cannot  \>e  aup- 

bot  clial  be  that  would  liave  au  mvasion 

I  WfTiclbo  ag^in^l  the  ktng^i  person, 

1  tie  dfftro^^tiou  fH'  the  king ;  he  that 

tak«  away  all   bia  defenc*^,  which  he 

»e  by  tbaaasliitance  of  his  subjects^  antt 

icxpoaed  to  bia  mrittil  enemies^  cannui 

I  to  deitig'n  the  kin^^s  ruin  and 

Tbttdofv,  air  Witliatn,  such  thinisr^ 

Mr  mlsft  a  compasting^  and  imsi^iii- 

*.  lane's  fftratb  ;  your  providing  arms  and 

«re  etiil«<riee«  and  overt-mcta  of  this 

ad  f  ^'        '        I         M<^  upaoddoiiu 

I  iM€,  if  that  were 

,  »  i^irna^fmiiire^^c.  aa  it  seems 

leaM  was* 

Btf  ikat  U  not  aifd,  my  lord,  1 

fosir  ptr^on  lor  uiterrupting'  you  ; 

tiMl  I  WM  tlNsm  10  rise  I  by  tio 

aMwr«r}  %oA  tlmid^ra,  pray^  my 


lord,  do  not  inforce  it  beyot»d  what  the  evidence 
has  proved ;  he  said,  1  went  lo  meet  my  fnefids: 
was  there  auy  tbin^  said  it  waa  in  order  lo  « 
rising? 

L.  C  J,  Trehij,  I  think  you  mistake  your 
own  words,  an  you  spoke  thetn  to  the  witness, 
if  f  did  take  ihem,  ag  1  think  I  did,  t\^\\U  for 
they  were  several  times  repeated.  1  ^vill  do 
you  no  wron^,  sir  William,  1  assure  yoa.  You 
went  into  Leicestershire,  and  ynu  say,  it  waa 
to  meet  your  friemJs;  the  witness  says,  it  was 
to  meet  the  king's  friends  ;  by  the  kin|f,  it  is 
\ety  pbiio,  you  meant  not  km^  WiUiara,  bot 
kincf  James  ;  for  you  spoke  before  nf  the  king'*s 
landings,  which  was  at  Christmas  last,  when 
every  body  knows  kin;r  William  was  in  Eog* 
land.     These  coupled  tr^eet her 

Parkyns.  I  beg"  your  pardon,  my  lord; 
those  two  thin^  are  not  butb  to  be  joined  to- 
gether; the  discourse  of  the  king's  landing 
was  at  Christmas,  aa  he  says  ;  the  other  thmg, 
my  journey  into  Leicestershire,  was  a  mouth 
afterwardi^i  aud  therefore  they  caonot  be  coupled 
ti^ether. 

L.  C\  J,  Trehy.  The  coupling  of  them,  that 
I  meant,  was  only  to  shew  who  was  umlerstood 
to  be  spoken  of  by  you,  when  you  named  the 
king ;  so  Uie  question  is»  Whether  you  did  not 
mean  the  same  person  in  January  that  you 
meant  in  Decetnber,  by  the  word  ting,  espe- 
cially since,  as  a  discovery  you  bad  made,  vou 
said  farther,  the  West  was  as  well  iiiclinefl  to 
the  kin;^'s  interest  as  the  North,  and  a  lord's 
brother  was  concerned  in  it?  II  by  the  king 
you  had  meant  king  William  ;  how  imper- 
tinent and  insensible  had  been  all  this  discourse, 
that  the  west  was  as  well  inolitied  as  the  norths 
and  that  a  lord*s  brother  was  concerned  in  it  ; 
concerned  in  what  f  In  being"  indinetl  to  king 
W^illiam  ;  to  what  purpose  cuuld  that  be  said  P 

Farkynt,  It  may  as  well  be  interpreted  that 
way  as  the  oihtr. 

L.  C*  J.  Trtbff.  I  must  leave  that  to  the 
jury.  And  I  confess,  if  there  was  not  some- 
what more  in  ihe  case,  you  might  the  belter 
argue  upon  this  as  to  the  interpretation.  But 
layinef  aside  the  consideration  of  your  riding 
into  Leicestershire,  &c.  here  is  this  providing 
of  arms,  proved  by  four  or  five  witnesses,  and 
the  serving  of  I  hem  in  that  manner  ;  and 
there  is  no  account  given  by  you,  that  they 
were  provided  for  the  service  of  the  govern- 
ment, or  that  you  were  employed  so  to  do. 
Certuinly  it  is  not  lawful  to  provide  arms,  es- 
pecially for  a  wliole  troop,  as  for  aught  I  per- 
ceive here  was,  though  indeed  I  am  not 
skilful  enough  in  those  htisinesses,  to  know 
bow  mauy  make  up  a  troop  ;  but  it  is  plain 
here  was  uu  insurrection  intended,  when  the 
invasion  was  made  ;  and  that  is  an  evidenca 
that  these  arms  were  to  be  employed  upon 
that  accouut,  for  no  oll^n*  use  was  to  be  made 
of  them,  nar  is  preteiiiled.  If  you  had  found 
those  arms  in  your  house,  as  yon  say,  il  bad 
beeu  your  fluty  to  have  delivered  them  up,  or 
dinposed  of  them  lo  the  use  and  service  of  tha 
governmtut,  which  tervice  loo,  eould  oaly  be 


tl5] 


S  WILLIAM  m. 


TrMtfSir  WUliam  Parkyni, 


[1 


If  hen  you  haJ  a  commission  from  the  gorern- 
Dent,  And  not  of  your  own  liead.  And  then, 
besides  all  this,  von acknowletlge  tbat  you  bad 
a  tnK?p  of  old  soldiens. 

Parkym.  ft  is  but  slidlngly  that ;  for  he 
only  telU  yrm,  that  a  troop  would  be  com- 
Deed  of  ofd  soldiers. 

L»  C,  J.  Trehy,  How  can  that  be  ?  when  he 
taySj  he  refietiU  >oor  own  wordii,  My  troop 
coa«i»U  of  old  soldiera;  can  any  body  say, 
tbat  his  troop  eontisi^  of  old  soldiers,  without 
having  a  troop  ? 

Farkj/ri.  Pruy,  Mr.  Sweet,  speak;  my  life 
i«  at  slake,  di4t  I  s;av  to  you,  it  did  eonsistf  or 
it  was  to  i  oiiiist  ?  fletjoHeiM  youiaelf,  and  con- 
sider *vc«11  before  you  speak. 

X.  C.  /.  ^  hat  was  it  that  be  did  s&y  ?     It 

I  conaUt>  or  it  would  cousi&t  ? 

Sv^eei*  He  ^aid,  hia  troop  wa&  composed  all 
^f  old  soldiers* 

Parhtftis  Hut  does  it  appear  by  any  evi* 
ence,  that  I  bad  a  iruop?  If  1  had,  who  were 

ey  'i  l^one  of  lbtffi»e  men   do  apfiear.    Does 

(Ilia  trooj*   consii»t  of  men  iu  I  he  air?  that! 

bouhl  It-st  men  that  are  all  in  nubihus^  mvd  not 

onoof  them  to  be  known.     Suppose  I   shoidd 

lei  I  brio  a  tye,  or  make   Home   brags,   ia  this 


lere  ia  no  person  proved  to  be  li&ted 


treason  ?  IJ  ere 
01*  nftmed. 

L.  C.J.  Bularmi)  were  foutid  in  )Our  house 
for  a  troop. 

Farkynt.  But  v»here  (hey  were  Iwu^ht,  and 

fhen  tbey  wvre  bought,  and  made  ready,  it 
doea  not  appear ;  and  I  altirui  to  your  lord- 
ship,  if  you  would  give  m^*  but  one  day'atiniei 
I  would  prove,  that  they  were  at  my  house  in 
Waruickshire  when  I  iiratcame  down  thither, 
which  h  two  years  ago.      And  I   will  fully 

Qdke  it  out  to  your  satisfaction ,  or  I  will  be 

rucified  or  any  thing  iu  the  %vorld.  1  i^n 
prore  it  by  a  great  many  witnesses,  by  my 
fricuda,  ana  all  the  servatits  that  belonged  to 
me,  th^?y  were  there  long  before  ttiis  discourse 
vas  ImJ  or  thought  of. 

SimL  Rukeby.  If  your  lordship  escpecta  tbat 

[  should  dehver  my  opinion,  I  am  ready  to  do 
As  to  this  matter  of  law  that  sir  William 

[^arkyns  has  proposed,  he  says,  There  are  not 
Ctwo  Witnesses  to  the  same  overt-act>  and  there- 
fore no  evidence  of  treason  ;  truly,  I  take  it, 
anil  always  diij,  that  the  law  is,  iliere  need  not 
be  two  wilness^ij  to  the  same  overt^act  ;  but 
if  there  be  two  witnesses,  one  whereof  fapiaks 
to  one  ofcrt-oct,  and  another  lo  another  ovt^rt- 
act  of  the  same  species  of  treikson,  iUhhc  are 
two  wiines^s  within  the   law.     Now,  1  think, 

iic:reare  two  overt-ucts  in  ibe  indiclaii-nlul  this 
Jlreasou.  The  treaaon  is  compass! ng^  the  death 
Df  the  king;  the  uvtrt-acts  are  fir:»i,  the  par- 
pticuLtr  dehi^n  of  the  a^ksas&i nation  upati  his 
jKrrjscm,  and  the  other  is,  the  bringing^  iu  of  a 
J'oieii;n  ibrce^aiul  prejiaring  horses  and  arms 
I  meet  liuit  foreign  force  here:    All  to  the 

Ame  intent  and  purpose,  the  compasaiiicf  ami 
na^iuini?'  the  king's  death.  Now,  besides 
tliai  of  the  asiaasinalioii,  there  aie  a  ^reat 
lUiuiy  iiritiifii£es  that  jp»T«  thart  wtra  arms 


prepared  ;  for  there  were  found  a  great  t 
tity,   when    they  opened   the  boxers;    wii 
boxes,  tl  is  plain»  he  himself  sent  down  to  Hi 
wothI's  house :  For  though  Charnock 
letter^  yet  it  was  by  bis  direction,  as  be  i 
to  Haywood,  when  he  was  here  in  town, 
then  his  arrant  fetched   them  away  from  \ 
place,  and  this  1  take  to  be  another  ove 
and  proved  by  ieveral  witnesses.     Sir  Wii 
Parkyns  speaks  of  his  being  a  ^otin*ii 
hut   1   do  not   know    what    a  gowniQaii 
to  do  wiih  ««uch  a  quantity  of  arms, 

Farkym.  If  you  will  give  me  leave  to  I 
foriiOiue  people,  I  will  demonstrate  itaii 
as  the  sun,  that  ihey  were  in  the  house 
years  atfo,  wheu  I  came  finvt  thither. 

Just.  Rifkthy.  There  were  preparations 
ye^rs  ago,  it  appears,   for  the  di'«tructi« 
the  king  acd  kingdom  ;  however,  the  tneai 
were  accuiied  of  it,  bad  the  ludt  to  < 
be  iGf|uitted. 

Parkym,  My  h^rd,  1  hope  1  shall  not  U 
terpreled  out  of  my  life,  i  desire  the  sa 
niay  be  read. 

Just.  Rokeby,  What  statute  do  yon  ipei 

Parkyni.  The  23th  of  Ed.  3,  and  the  , 
statute  too,^  let  them  both  be  read  to  the  j 
that  they  may  consider  of  it. 

The  Statute  of  the  25lh  of  Edw,  3.  wwM 

Parkym*  There  is  nothing  of  two 
there. 

L,  C.  7.  No  J  but  there  is  another 
the  5th  ol  Edw,  6.  eap.  €.  that  may  l^e 
for  your  advautage  :  Will  \ou  haveVttail 

Futkyns,  Yes,  if  you  please  ;  I  kotiw 
is  another  Statute  that  does  direct  it,  aw'  t 
peeted  to  bare  found  it  iu  thl5  Statute, 

CL  of  Ar,  This  is  an  acl  made  in  tlic 
and  6th  years  of  king  Edw.  6, 

The  Statute  wis  read  to  tliese  w^ 
'*  Unless  without  Trial  he  shall  confesi 
same/' 

Purkym,  TheiT  is  enough. 

L.  C,  J.  You  have  heard  the  Statute  t 
would  you  infer  any  thi^ng  from  it  ? 

Parki/ns.  I  inler  that  there  ought  to  be 
witnesses,  and  here  is  but  one. 

L,  C.  /.  There  are  two  uituesses. 

Fat  kym    Not  direct  to  the  same  thiol 

L.  C.  X  1  shall  leave  it  lo  thejury,  wi 
this  evidence  does  not  prove  an  overt>a 
demonstrate  a  design  against  the  ki 
design  be  ti»  drpo^e  him,  and  that  is 
by  two  overt-acts,  undoubtedly  that  is 
within  the  Statute  ot  25  of  Edw,  3. 

Farkym,  Tliat  I  agree,  but  yet  there 
be  two  wiine^sst^  of  it. 

X.  C.  X    Suppose  dethroning  the  kitig 
the  main  desiLai  that  strikes  at  his  life,  aod 
rtisolve  it  shalT  be  done  one  way  or  other. 

•  7  and  8  W.  3,  c.  4,  s.  5,  not  then, 
seems,  iu  force,  but  If  it  were,  yet  it  does  j 
require  it,  but  only  tlrat  there  must  be  twa 
the  saiaa  trtasun.     Holt's  Bep.  60S« 


j€ff  High  TreoMm* 


er  by  iosurrecliou ; 
lib  tt  forei^  ftrmy. 
!)C«i  re  there  oiignt 

■teio^nu,  for  tUai  tcrv  last  act  that  is 
^Blin  a  ttivif  rlajv,  declures  It  ts  auf- 
^nb^ie  be  rtnt*  tu  rioe  oiert  act,  and 
ET loiiioiiier  i  but  ttHl  it  must  be  of  tbe 
jj^,f  '  •— ■  '  •  n|i;  and  dc- 
Ilt^f  .  of  bim,  aod 

B*{  ist  bim,  or  to 

to  III  L  ot  treason, 

iqU'  \vrr«^  overt- 

i**^-'  i:  ,:'^s  B8 can 

fcc  natU,  and  thrretore  there  ought  to 
no  eiirb  ot'tbcQi. 
That  wbicli    I  delivered  us 
M«,  tlint  ooc  witnetis  j» roving"  oue 
■y   vvitDPSM   proving   an- 
I  me  wufi  of  treason,  are 
^  rig;  as  tbe  Jaw  re- 
i'lilly  coa finned  in 
u  act  of  |»ir- 
i reason,  (bat 
'.   iirasoii,  but  by 
iiiony  of  two  Inw- 
^     .  \UtM\  to  tbe  same 
i\  to  one^  uod  fhe  other 
ovcrt*iict  of  the  sitine 

(wt.  Of  thr  %nme  trenBon*  aye, 

^<Te  i(  IK  (be  imagmiog 

liul  is  tile  Irrasoit. 

^^^Uoi  you  may  fay  i'V€*ry  thincf 
^Bl  if  you  pleciie  to  let  the  ^bolo 

|K>u  tliall  b^vf  it  rend  if  yois  will; 
^Bt  thai  IS  in  it  coocettiin^  this  \ 
Jf»iw  u  de^itjru  lo  depose  the  kioif,  i 
I^Siieifhited   by  sotne  overt -net,  is  an 
I  ••  pn>?t;  the  debii^  of  tlie  deniii  of 

hen  It  inu^l  l>e  manifest,  and  not 

;       ■' «l.  that 

ttmn,  that  is  an  orert- 

•i  of  hii!  deuth, 

Fbi_*y    toie  very  thftcrent  thing^f 

Mitioini,     IV e  have  seen  a  kiog' 

\9\  he  i%  aUtf . 

I  nm  iiure  ive  have  Meen  a 
d,  and  yet,  God  be 

*  IT  in  tbe  de- 

<he  iri'sson. 

(,  &ijLC«iii  to  aiuke 

'"»'V'r  people  will 

*brres^  or  to 

LIihj:  tbttt  is 

-act  of 

>s«  been 

r  fjules,  my 

^ t  (ho^e  men 

iBB  nr|ttil«d  tbe  mvUUuder  in  ciljecs 


HU»U    *!•* 


.Frvif.    Dal  ui. 


A.D-  1696.  [118 

of  tS  natore  i  For  any  act  that  expresses 
intent  of  dethroning  tbe  king,  by  means  of  \ 
invasion  by  a  foreign  force,  and  an  iys»irr»fctit*i 
against  tbe  king^,  is  a  proper  proof  of  a  Cie^x*^ 
of  bis  destruction  ;  and  if  not»  then  ajp-eeiotf  1 
shoot  htm  is  not  an  overt-uct.     Men  intiy  s; 
aiso,   that  there  need  be  actual  sbuotaig 
make  out  the  orert^act  in  that  cvkse. 

Farkym.  If  yonr  lordship  pleases  to  huft 
the  arri  read,  I  slmll  submit  to  your  lordship*^ 
ju^igment. 

L,  C\  J.  Let  it  be  rend. 
Forkynt.  If  you  please  to  r^d  the  act,  thf 
preamble  of  it. 

Ci,  fj/' Ar.  Tliisisan  act  made  in  ihe 
year  of  our  soiereit^n  lord  tbe  kiogf:  Is  tba 
tbe  act  ?  It  is  ait  act  for  regubting  of  iriiils  m 
cases  of  big li  treuHtJiK  and  mijtprisiou  of  tre 
sou.     Is  that  the  act  ? 

Faikt^ns.  Yes,  yes.     (Tbe  actwos  read.) 

Just.  Hokebtf.  Ibebeveifyou  look  into  tl 
^reat  case  in  purliament,  the  case  of  my  lor^ 
Niaffrirdj  you  v^ill  find  it  was  decfared  for  1 
that  one  ivitoc^s  lo  one  overt  act,  and  anothe 
witntss  tu  another  ovfit-act  id  tbr  same  t 
sou,  they  were   two  witacs^es  within  tbe 
and  this  vi  as  a  solemn  resolution  in  paritatuen 
iu  tbe  House  of  lAudii, 

Fftrkyns.  I  believe  it  has  been  done;  hul| 
here  is  a  tienefictal  biw  made,  which  H'  tafi 
trial  bud  been  ptit  off  a  few  days,  I  shooldl 
have  bad  the  benefit  of  it. 

L,  C.  J,    It  would  liaie  been   the  san 
tbin;r  a^  to  this  mntter,   for  this  act  declare 
the  ^^ry  same  I  hint;,  as  lo  the  two  witnesi»t?s. 

Fftfkt/m,  Aiid  tlien,  niy  loril,  I  could  bai«j 
bad  u  ilnesses  to  biiv  r  taken  cjH'  a  ^real  pari  i 
this  evidences,  nud  the  law  comes  lo  tuke  ifi^ 
vtiibin  one  day,  and  it  turns  here  upon  thisj 
mutter  of  Sweet,  ^^  lio  is  not  a  *:oo(l  evidence :( 
loriii'j  manifest  be  has  contratlicled  hini8clf|  ' 
and  It  is  miinifcst  be  has  sworn  what  cannot  be  j 
true. 

X.  C.J.  Wherein? 

Farktfm.  That  E  sliould  &ay  the  kin^( 
would  I  and  here,  for  I  bad  his  word  fur  it. 

Jusl»  liakciif/.  You  might  have  bis  word,  ( 
ufid  not  delivered  by  hi;^  own  mouth ;  tber«  d 
ure  other  ways  to  convey  a  man^s  word|  be-  j 
aides  sneakiuf*'. 

Farkiftit.  But  then  we  do  not  call  it  hiMt 
word,  that**  hearsay. 

Ju«»t.  Hoktby.  If  a  roan  write  his  note  Ihal^ 
he  will  do  such  a  things  we  may  rery  wellsayt  { 
we  have  his  word  for  it, 

7^.  C.  J.  It  is  not  impossible  hut  that  yoa 
mi^bt  speak  w  itb  him. 

Fnrkym,  It  is  impossible  I  should  speak 
from  hence  to  France.  • 

L.C.J,   You   might  have  been  over  witk 
liim  ;   I  bebeve  a  great  many  others  have,  and  . 
it  is  proved  3Ir.  Cbarnock  \Mmi  over. 

Just,  RGkiby,  If  any  man  should  hare  said  i 
nt  the  latter  end  of  the  lust  foomh,  I  believe 
thut  there  was  an  assassin  at  ion  mtended  against 
the  king,  because  1  have  h'ts  woni  for  it,  mere- 
ly from  reading  bis  speech  to  tbe  parlUiueot, 


IW] 


8  WILLIAM  m. 


I 


wherein  be  affinas  that  he  had  fsereral  proofs 
nf  it^  ihat  bad  been  a  firoper  exprpssioo,  though 
tie  <hd  not  hear  the  king  »peak  it. 

Farkym.  Yea,  if  be  had  the  speech  to  pro- 
duce. 

Just.  Rokeky*  Then  if  il  coroe  by  letter,  or 
message,  or  common  fame,  he  mig'ht  send 
you  word  by  particular  messenger. 

Parkj^m,  Yes  it  thtre  was  any  auch  au- 
thority as  that  it  were  true.  But  be  hasi  ma- 
nifestfy  c^ntradicteil  himself,  an  J  captain 
Porter  suears  for  I  its  own  life,  and  1  must 
leave  it  to  yon,  whetlier  tUey  are  to  be  behe^ed. 

Just.  Hoktby.  Captaiu  Porter's  testimony 
has  been  hiitHdently  cooBrmetl  by  the  ac- 
kuowledi^nient  of  dyin^  persons. 

L,  C  X  WeH,  have  you  any  more  to  say, 
air  WiUiam  Pnrkyna  ? 

Purkyni.  No,  my  lord,  I  submit  it  to  your 
lorrlsbip'si  tlirertion. 

X.  C,  J.  Then  what  say  you  to  it,  Mr. 
Attorney,  or  Mr.  Solicitor? 

Soi,  Gen.  May  it  please  your  lordship,  and 
yon  j^titlemen  of  the  jury,  \  ani  of  cuuosel 
tiir  I  be  kiug*  in  thifi  matter,  and  it  ist  my  turn  to 
sum  itp  the  evidencf  a^fainst  the  prisoner  at 
the  bar  ;  he  Btinds  indicted  for  eompa$«ing  the 
death  of  the  king*,  for  desii(ititi^  to  depose  the 
kin^;,  for  promoting  a  foreign  invasion,  for  in- 
tending an  tUiiurrLxtiun  here  at  home,  and  for 
aiding  unil  abetting  the  kinjsjf^s  enemies,  and 
lor  dtiin^  ^n  bat  be  coulJ  to  procure  the  sub<^ 
jeclioa  of  his  own  country  to  forcigneira  and 
Strangers. 

itemlemen,  some  of  these  crimes  run  into 
one  anoiber;  designing  the  death  of  the  king- 
by  assj^!iinaiiut>,  and  desitrnin;;  to  depose  the 
kinfi^,  aniotint  to  cue  and  the  snme  thing 
wirh  compa^^ing-  and  imag^ining*  the  death  of 
the  king. 

My  lurds  the  JLidg-es  have  given  you  their 
opttiiou  in  that  (K>mt  nf  law,  and  I  think  it  is 
«)^reoableto  alt  the  resolutions  tlmt  have  been 
since  tbc  iimkini,'-  of  the  statute  of  25  of  Ed vv.  3. 
1  think  tlmt  it  has  l»een  e\'p)aiiie4l  so  in  the  time 
of  Jtichurd  the  'h\ ;  but  this  \  am  sure  of,  that 
it  was  so  resulvod  in  the  time  of  Harry  thf* 
4ili,  XV  hen  there  ^oh  a  dt  sif^u  to  set  u|i  Richard 
the  secnnd  agiiin,  nnd  it  was  mJjud^fcd  lo  he 
hit,'h' treason  in  compasninij  JUid  iinng:iuing  the 
deatli  of  ibe  kinyf.  For  de]»osin^  the  kiu<|', 
is  deutroying  him  in  hii*  poiitic  capacity,  us 
much  OS  asHassinattnn  ami  itiurdentiiii^  t>j'  hjm 
is  de^troyiiif^  hiin  iu  his  nalurul  rapiiciiy  ; 
and  tip  Ci>n^()irulorB  in  such  tasts  krunv  wliat 
the  gfr**»l  i*rid  is  they  aim  sit,  fo  subvert  llit; 
govt  mm  em  as  it  is  esiajjlisheflhy  law,  whereby 
t'very  iii^u  eiifoys  his  oviii  prnperiy,  and  the 
freetloui  of  his  person,  uiitl  ihoi^e  that  will  be 
quiet  may  havj*  thr'ir  liberty  and  projierty  pre- 
srrvrd  rtttire  to  them  ;  1ml  sonie  pfiple  uri^  s^i 
\^vy  intpalient  of  suhmiilin^'  lo  ibf  bw,  that 
Ihey  ciinnoi  he  content  t^»  be  in  servitude  tlicm- 
selves,  l»ut  they  must  nefds  do  ull  they  cau  to 
brinj^f  it  upon  tlieir  fellow  subjects.  And  m 
wpre  yzxy  well  if  that  those  who  were  in  Jove 
with  slavery  I   would  but  go  ta  soiq«   other 


Trial  of  Sit  WUIUm  Parleys, 

places,  where  they  may  hav«  cuong^b  of 


^n*{  nut  brin|c  it  u|k»ii  those  who  are  so  Ultk 
sirons  of  such  a  thing,  as  we  are,  and  1 
always  «hali  he, 

Genilemen,  to  pro?e  sir  William  Parii^ 
Guihy  of  this  treason,   wliereof  be  stmnda 
dieted,   we  bate  produced  seTcral 
and  first  there  is   Mr.  Porter,  and  b«  lelis 
sir  ^ilbam  Parky ns  told  him  he  had 
coinmi«;sion   from   king^  James,  written 
bis  own  h&nd,  for  iP«kio§f  war  agiuost  the 
son  of  king  William. 

Parky  Hi.  Sir,  I  beg  your  pardon,  for 
ropting^  you,  but  there   was  not  one  w, 
that  said  ;    liere  is  Mr.  Porter,   pray 
if  ever  1  saw  a  comtnission  from  kin^ 

L.  C,  J    Porter  did  say  so,  if  1   i 
any  tiling  Porter  said  ;    you  told  him  yon 
read  the  com  mission ,  and  il  was  written 
bis  own  baud. 

Parki^ns.  Alt  that  I  beard  of  il  wu, 
when  1  was  desired  lo  «uake  one  in  the 
sas^ination,  ]  refused  it  because  I  said  I 
busy  about  the  matter  of  my  regiment. 

Jit,  Gen,  Pray  call  Porter  again*  (« 
Porter  came  in.) 

Sal  Gen,  Pray,  capl.  Porter,  will  yon 
thecuurt  and  the' jury  an   account  wliat 
beard  sir  William  Parkyns  say  about  the 
niisiiion  that  came  from  kin^  James  f 

Porter^  I  asketl  Mr.  LharnockwhY  I 
not  see  the  commission,  and  he  told  am 
bad  nether  seen  it  bimsrlf,  but  sir  William 
kyns  had.     I   did   a^k  sir  WilUam  Park^ 
whether  he  bad  ^een  it,  and  he  told  me  be 
sec  jt,   and  read   it,  and  it  was  to    raise  war 
against  the  person  of  the  prince  of  Orange. 

Ail  Gen,  Whose  baud  was  it  in  did  besayf 

Porter,  It  was  written   with  kiuy^  J 

own  hand. 

Parkyns.  This  was  my  mistake,   I  tbi 
he  had  said  1  told  him  I  had  u  eomoaissbii 
a  rf^iment. 

Idr,  Mnntaout.  Did  he ^ve  any  reason,  w 
it  was  written  with  king  James's  own  band  ? 

Porter,  We  used  to  say  amongst  ours^h 
it  was,  btcnuse  he  would  not  trust  any  of 
ministtrrs  \i  iih  it. 

Sot.  Gen.  I  ivould  not  do  sir  William  f 
kyns  any  wrong,  but  only  sum  up  what  is  i 
terial  in  the  eviflence  given  against  him.     1 1 
member  very  well  Mi*.  Porter  said,  Mr.  C 
nock  toI4  him  sir  Wilkiiim  Parky  psi  bad  i 
tbe  comuiis^ioB,  but  1  woybl   not  otfer  that: 
evidence    a^^inst  tho  prisoner   what   aooti 
told  him,  hut  he  says  besides  that  sir  Willie 
PafkyuH  tobi  him  bimself,  thai  he  had  s«ea 
and  tliat  it  was  written  with  king  James's  o 
h;^ud.     He  says  that   they   bad  st^verd 
ingi  together,   sir  Widiam    Parkyns,   and 
ffreat  many  others  ;  and  he  names  the  p! 
the   Na;^\s-heiid  in  Cor eut- Garden,  the  ^ 
Tavern  ui  the  Strand,  and  the  Ghd)e  tavern 
Hatton-Garden  ;  he  tells  you  particularly  t 
it  wus  agreed  that  King  (who  was  execuli 
and  Knigbiley,   and   hituself,  shouUI   go  I 
view  a  place  that  should  be  proper  for  the 


WJ 


Jof  High  Trenton, 

1,  Mid  Ui  fif e  n  report  to  the  prisoner, 
the  rest  of  Uie  consptraiors^  wKut  they 
lit  tlie  most  proper  place ;  and  that 
_  _•  tbey  did  rievf  (he  |>laee»  aod  came 
\  Digbt,  and  fuel  the  company,  wherertf 
liam  Parky  Ds  was  oue  ;  aDiJ  I  bey  j^ve 
oant  bow  ihe  place  was  viewed^  and 
,  was  thou|^ht  most  pmper,  and  ihen  all 
snv  ag^reed  to  ii^  He  says  indeet), 
nifiam  Parkyns  was  not  one  (Hat  was 
i  it  ia  bis  own  person,  but  one  Scuda- 
i  ta  be  the  man  employed  by  bim  ; 
f  Uul  say  it  vvaA  a  ihin^  that  was  very 
'  lo  be  done,  and  would  facilitale  the 
na  nfktn^  James,  and  the  hriniriin^ 
a^u  :  And  tliere  is  likev»i(ie  this 
it^g  efidence  of  Wr.  Porter^s  witli 
,  I  sbftK  observe  by  nnd  by,  tbut  sir  Wit- 
il^rkyns  was  to  procure  6re  horses,  three 
»iiwrwf  be  was  lo  mount  himself,  and  two  he 
wiatotrnd  CAptala  Porter  to  mount ;  and  if 
te«  vere  ftirther  occasion  he  could  procure 
aort  Irofii  Mr.  Lewis,  gentlem:in  of  t)ie 
hant  ts  my  Jord  Feversbam ;  and  accordingly 
vif  bare  jpnMiuced  to  you  two  witnesses,  Free- 
I  aiidTurtAti,  the  one  atajisier.tbe  other  an 
r  tbai  litedattheGeor(re-inn  in  Holhnnj, 
wIm  fife  yciu  an  accoiint  that  upun  Friday 
ktfbsllienrst  day  that  was  designed  for  the 
iHMSiitioo,  tliere  did  coute  tliree  hon»e8  to 
liini,  for  iir  Wdliam  Parky  ns  ;  but  it  beinq- 
{■I  «ff  upon  the  disappointment,  they  were 
Ml  Mt  w  town  ogam.  Upon  the  Friilay 
iftifuda,  ibe  day  before  the  discovery,  then 
^katwme  lour  bones  hrong^ht  to  town,  and  a 
Sill  wif  of  #fr<   Lewis,  which  was  a    roan 

B4fhfm.  Pray,  Sir,  will  yoii  please  lo  oh- 
ibil«»rtof  liorsestbey  were  ;  and  par- 
the  height  of  them,  that  it  may  be 
KPiv  fit  tfiey  were  for  this  business. 
M  6tm,  i  will  do  you  no  wron*^^  s\r  WiU 
bm,  if  I  can  help  it.  The  Jury  havt*  beard 
Ikecfidettce ;  and  by  and  by  they  will  bear  my 
brd'i  directions  :  but  tbey  du  say  there  were 
tokougbt  to  town,  juida'iiftb  was  Kc^nt,  a  roan 
tirsi,  the  witness  said  the  horiio  came 
•la^iie^  bouse,  but  then  preiit-nily  be 
1  biftuelf,  and  acknov^  le»!{(ed  the  »i is- 
i  ffcflerw  ards  said  it  was  from  Somer- 
80  there  were  llie  five  liorsefj,  tliree 
'  sir  William  Parkyns  was  to  mouni, 
Aiktn  Porter,  a^  he  hiniRetf  siiys  ;  and 
t(kw  1  instance  in,  aa  Diiikni<:!f  a  couciir- 
riif^f  idence,  and  very  near  to  two  ivtlnesses 
ttfirove  thi*  jjart  of  the  conspiracy. 

Ti>«o,  ^eotlemen,  captain  Porter  goes  fur- 
IW,  and  say>»,  that  be  had  beard  (but  sir  Wil- 
I  parky  us  did  not  tell  him  so  hiti>«elf)  that 
""liaiiii  Parkyiis  liad  a  commission  to  raise 
*ttt  of  burse,  and  was  pre|»aiing^  so  to 
^  linst  the  time  of  the  invasioti^  to  join 
vik  tlic  forces  that  were  to  come  imm  abroad. 
f}rtn  which,  ue  have  called  Mr.  Sweet 
lilipte  YOU  an  account  that  he  had  been  ai> 
fiijQlcil  wiib  sir  William  Parky ns  tor  throe 
^yi,  and  tlial  be  had  of\ea  talked  wiib  him 


iMftcapta 
Unit  facts 


about  the  kingf,  that  is,  his  present  majesty, 
whom  he  called  the  prince  of  Orani^f  and  th# 
little  gentleman  ;  and  about  kio;^  James,  wbooft 
he  used  to  c^it  always  king  ;  and  he  said  tb« 
kingf  wss  lo  land  very  speedily,  and  that  he 
had  a  troop  which  consisted  of  old  soldiers,  and 
that  there  were  several  volunteers  that  were 
ofHcers  ;  lie  said  be  was  to  take  a  journey  into 
Leicestershire,  anil  accordingly  lie  went ;  and 
when  he  returned  back  again  be  said,  the 
west  and  the  north  were  very  well  inclined  to 
the  kind's  interest,  or  to  thut  purpose.  And  to 
strengthen  his  evidence  we  pmve,  that  he  did 
gn  accord inj^rly  into  Leicestershire,  aod  we 
prove  it  by  his  servajit  that  went  with  him, 
w  here  he  met  with  several  persons,  particularly 
one  Vurboroiigh,  and  a  parson  ;  svlmt  they 
did  transact  the  servant  cannot  prove,  but  he  im 
a  concurrtiiLf  vvituetis  to  prove,  that  he  went 
into  Leicestershire  ;  and  we  have  all  the  rea- 
son in  the  world  to  believe  that  he  went  on  that 
erranil  that  he  s]>oke  of  before,  that  is,  to  nieet 
the  king^f)  friends,  as  he  chilled  king  Jamef. 
And  then  there  is  a  further  concurring  evidence, 
bis  having  a  regiment,  or  a  troop,  it  is  iM>t  ma- 
terial, whether  it  be  one  or  the  other ;  and  that 
h  the  matter  of  the  arms,  4  do2en  of  swords, 
S2  carbines,  36  cases  of  pistols,  that  were  hid 
in  the  garden  of  his  house :  And  these  arms 
we  have  traced  further,  be  sent  ihem  fnmi  his 
house  to  May  wood  ^s  bouse  ;  there  he  (bought 
they  would  not  he  safe,  ami  thcivfore  sir  Wil- 
liam Parky  ns  sends  far  them  privately;  they 
w  ere  to  cmne  away  at  night,  und  he  brought 
buck  to  his  house,  and  they  were  accordingly 
brou^jht  back  in  the  night  to  his  brtuse,  and  tber« 
they  were  buried ;  and  ilie  same  person  saw  them 
taken  up  afterwards,  which  brought  them  to 
liir  William  Parky n«'«  bnnse,  anr]  prines  they 
were  the  same  Imxes  that  were  buried,  and 
which  upon  opening  proved  In  he  tliese  urms, 
that  were  first  sent  to  Hnyvv(iod*s  and  after- 
wards brt»ygh|  bick  to  his  own  house. 

80  that  this,  gentlemen,  is  a  concumng  evi- 
dence both  to  what  Sweet  says,  ami  to  what 
Portr*rsavs;  and  those  are  the  two  witnessei 
to  this  part  of  the  trca^n,  that  there  wits  a  pro- 
vision of  arms  and  men  for  this  purpose,  uhicb 
he  said  he  bad  a  commission  for. 

Now,  gentlemen,  against  all  this  be  makes 
hut  a  very  small  objection. 

As  to  the  matter  of  two  witnesses  to  every 
overt- act,  that  has  l>een  over-ruled  by  the 
court;  autl  as  to  the  arms,  be  says  be  found 
tlif  m  at  bis  house  n  hen  he  first  came  to  it ; 
and  then  tbey  were  obi  rusty  arms,  but  of  this 
he  gives  you  no  manner  of  evidence.  But  if 
they  were  there  when  he  came  10  ibe  bouse, 
bow  came  he  at  this  time  of  day  to  hide  tbera, 
and  secrete  them  ?  Why  might  ihey  imt  be  M' 
public  now  bk  they  v*ere  before  be  came,  which/ 
lie  has  had  time  enough  to  prepare  (o  prove 
since  the  tinding  0I  them  ?  And  lie  does  not 
give  you  so  mut-'h  as  any  colounible  rea^ion 
why  he  so^ecreled  them.  And  therelbre  it  ir 
a  most  just  and  violent  sus^iicion,  that  tbej* 
were  for  the  purposes  thai  the  wittiesscfi  harir 


183] 


8  WILUAM  III. 


Trial  of  Sir  WiUiam  Parh/nt^ 


giTen  yoa  an  aoooimt  of;  and  you  hare  reason 
to  beliere  tbey  were  pronded  for  to  arm  that 
number  of  i6eo,  which  he  was  to  raise  to  assist 
the  French  when  they  came  to  land  here.  So 
that  if  you  believe  what  the  witnesses  have 
■worn,  you  cannot  say  but  that  he  is  guilty  of 
the  treason  charged  upon  him ;  and  we  doubt 
not  you'll  find  him  so. 

Mr.  Cowper,  May  it  please  your  lordship, 
and  you  gentlemen  of  the  jury ;  I  am  of  the 
same  side  of  counsel  for  the  king.  Sir  William 
Parkyns  has  given  us  a  good  caution,  which 
I  shall  take  care  to  observe :  and  that  is,  not  to 
strain  either  fact,  or  law,  to  his  pr^udice.  But, 
my  lord,  when  such  a  mattei-  as  this,  a  crime 
of  this  nature,  is  so  far  proved  against  the  pri- 
soner at  the  bar,  that  nobody  can  in  his  private 
judgment  reasonably  acquit  him ;  then  I  think 
it  a  good  piece  of  service  to  the  public  to  make 
the  matter  so  plain,  thnt  it  may  be  pot  beyond 
all  manner  of  doubt,  both  for  the  ease  of  the 
jurors,  and  for  the  satisfaction  of  all  others  that 
hear  this  trial. 
^  M  V  lord,  sir  William  Parkyna  has  truly  di- 
vided his  indictment  intu  two  parts,  the  one 
that  accuses  him  of  being  concfirned  in  the  as- 
gassination,  and  the  other  tliat  accuses  him  of 
being  concerned  in  inviting  the  French  into  the 
kingdom,  and  en>;aging  to  meet  them  with  an 
armed  force. 

My  lord,  as  to  the  first  part,  I  must  do  sir 
William  Parkyns  that  right,  that  there  is  but 
one  positive  evidence  as  to  the  assassination  ; 
but  that  evidence  tells  ye  he  agreed  to  it  at  se- 
veral meetings ;  nay,  tliat  he  was  one  who  said 
it  was  necessary  to  be  done,  in  order  to  the 
other  design  he  was  engaged  in,  the  facilitatintr 
the  landin;^  of  the  French,  and  king  James  his 
descent  and  restoration.  There  is,  1  say,  in- 
dood,  but  one  witness  of  that  matter,  but  the 
evidence  of  that  one  witness  is  coDtirmcfl  by 
many  concurring  cinMimsUmces ;  by  his  send- 
ing tor  horst's  to  town  the  day  before  the  first 
Saturday,  u  hen  this  execrable  treason  was  to 
have  l>ecn  exocuteil ;  by  sending  thcni  out  of 
town  again  that  day  U|K)n  the  disap|K>intnient ; 
by  sonding  for  theui  again  the  Friday  before 
tlie  MToud  Saturday  that  the  kiuir  was  to  have 
been  a^^sussinati'd  ;  by  his  bavin;<:  more  horses 
than  were  usual  with  him  that  day ;  by  his 
taking  care  tlirn  of  three  lutrses  thnt  were  none 
of  his  own,  and  one  of  tlniu  brought  very 
sus|uriously  fhmi  S«unerset- house;  and  that 
all  thest!  i'itfht  horses  should  l»e  immediately 
hurried  andranitHl  a\«ay  upon  tiic  disappoint- 
ment the  seot>nd  Saturtlay,  and  nothing;  cvit 
heani  of  them  atWrwards.*  I  say  one  of  them 
was  hn>nght « cry  suspiciously  ;  for,  my  loid, 
you  observe  it  cainc  fn>m  Somerset- houses  and 
was  si*nt  by  l^ewis  aei*oidin!r  lo  the  prisoner's 
promise  to  caiitain  Porter,  which  I>ewis,  it  is 
apparent  by  all  the  witnesses  of  this  matter, 
was  pri\y*to  this  design. 

My  lord,  tliere  is  another  circumstance  be- 
tidea  this,  which,  1  think,  has  not  been  ob- 
MTvcd ;  ami  that  is,  bit  Miiding  for  Sweet  up 
to  town  bafora  the  moomI  liiM  that  the  Idog 


was  to  have  been  asnannated ;  he 
indeed  before  both  the  times:  the  firs 
was  told  by  the  prisoner,  he  hid  once 
to  have  us»d  him  in  a  business ;  but 
cond  thoughts  he  had  compassioB  fc 
mily.  And  when  he  came  the  second 
was  first  asked  what  condition  he  ha 
family  in,  whether  he  had  provid 
money.  He  said,  No ;  and  tliere  upo 
chid :  and  the  priioner  said,  he  migh 
well  have  staid ^at  home.  All  these 
stances,  besides  the  one  positive  evid< 
vour  strongly  of  his  having  a  great  hi 
design  of  assassinating  the  king. 

Bnt  then,  iny  lord,  as  to  the  other  ] 
inviting  the  French,  and  preparing 
them,  that  is  positively  proved  by 
nesses.  Captam  Porter  tells  yoa,  tha 
soner  was  at  the  two  meetings  in  Le; 
street,  and  St.  James's- street,  where  i 
])ressly  resolved  by  all  that  were  pret 
the  prisoner  among  the  rest,  to  send  i 
over  to  invite  the  French  to  invade  tl 
dom,  and  to  promise  to  meet  king  Jan 
landing  with  two  thousand  horse.  H< 
That  sir  William  Parkyns  did  pa; 
agree  to  what  was  resolved  upon  at 
consults.  And  Sweet  tells  you,  thai 
prepared  for  the  same  design  ;  for 
William  Parkyns  told  him  the  kin 
land,  he  had  his  word  for  it ;  and  h 
had  a  troou  of  old  soldiers.  *  My  tr 
*  consist'  (lie  spoke  it  in  the  present  U 
it  being  a  doubt,  sir  William  Parkyns 
self  that  right  as  to  examine  the  witne 
and  he  repeated-  it  as  his  words)  '  3 
*■  consists  of  old  sol<liei*s,  or  is  compos 
'  soldiera ;'  and  he  was  to  have  sever 
teers  that  had  been  ofhcers. 

My  lord,  these  two  positive  wiin 
evidence  that  goes  to  the  same  spccici 
son,  nay,  to  the  same  design,  the  rais 
bi'llion,  and  the  deposing  the  king, 
killing  him  in  lus  politic  capacity  ;  I  s 
two  g(t  home  to  the  same  design. 

Anil,  my  lord,  this  evidence  upon  th 
of  the  indictment,  is  corroborated  tOd 
strong  circumstances.  There  is  a  joi 
Li>icestcr,  >^hich  Sweet  speaks  of,  thai 
Parkyns  told  him  he  would  underts 
journey  it  is  provid  by  his  servants  th 
undertake :  that  he  met  there  with  sev 
sons,  and  came  back  and  made  his  i 
Sweet  of  the  success  of  his  journey,  ; 
well  dis|>os(.Hl  the  king^s  friends  were,  1 
name  he  always  meant  king  James ;  1 
he  s|)okeof  our  present  king,  he  called 
IJitle  Geu'iloman,  or  sometimes  king 
and  sometimes,  as  the  w  itness  at  laft  s 
tively.  the  prince  of  Orange:  but  \ 
spokeof  the  king,  uitliout  anything 
alwaj^s  meant  king  James;  and  bei 
sfioke  of  a  kioj;  that  was  beyond  sea  a 
iBas  last,  which  could  not  be  king 
who  was  then,  and  had  been  in  EngUnt 
before. 

Aly  kird,  the  pr  itooer  in  hii  defenoe  I 


'High  Treoimi* 

him  thai  went  with  bim  loto 
been  formerly  Charnocli's 
«Dl  hy  Char  nock  with  the 
aod  not  by  him.     Yet 
fciit  the  evidence  swore  po«i- 
I  by  sir  William  Parky ns,  his 
lit  the  note  in  the  aliiianack 
1  to  whom  lie  was  directed  to 
I  at  the  caofectioner's  housif; 
Imt  done,  that  the  person  that 
^  ctiotier*8  did  not  remit  him 
►  hk  nin'^tersirWiUiDm  Par- 
would  lie  at  liorae, 
.  er  he  should  iiave 
sad  this  WAS  upon  the  very 
fwms  to  have  been  aswssi- 

William  Parky n»  ha«  corn- 
lie  ctiM  h&Te  had  his  evidence 
ksfe  imivcd  the  arms  had  been 
m  bause,  and  that  he  found  them 
CiflQO  thither  first.    If  we  should 
r,  we  niiifht  confess*  and  avoid 
ipfiiirent  that  these  nrms  were  on 
{mt  tip  in  a  suspicious  manner 
sent  to  Haywood's  (who  is  a 
ion,  by  reason  of  his  relation  io 
Etitlfotl  whuse letter  und  recomnkeda- 
iipceivefl)^  and  concealed  till  ttie 
ted  ;    and  then  they  were 
\  that  place,  and  buried  in  Mr 
own   i^aiYien.    This  was 
■tJa^'mg   out    of  the    plot; 
d  for  the    better  securing 
t>ds.     And     rthereaii   the 
II  ere    oKI    and    rii9ty 
nu  it  now  appears  they 
•lurbijkhcfl  arms,  and  the 
1b,  and  packeil  together, 
ftcour^c  to  another  arg'u- 
pUcf%  the  riio*l  inovinrj-,  1  must 
and  that  ia  the  art^nment  of 
of  his  education  in  the 
n*  of  his  ioiiniiitie*,  hi« 
y      Arj^uincnts  of  pJty  I  am 
guc  II ri  ttfrsw^r  to»  and  UiouU  be 
I  any  niotion«4  of  it ; 
1  by  vvay  of  answer 
"     t  he 
\i*  i  in 

ImM  ban*  bij  v, 

IfloUCll  hi  1/I...S  '---•-■■  •'-  ^.<.u^>it 
Btnil  46«iilayt>i» ;  that  hi<  ^l^atlil  h»vo 
f  ii|ian  lb.  J.  ,1  of  kiiigH  uimI  the 
mm  ;    !•  t-re  wai  no   jiity. 

•J  lhpii|:  '  l.iiil  their  dcsityus 

krf  taj  ^  er,  hut  they 

Ujm,  Htkii  rjer- 
Ui>u  ai  Ei^^^n^sinatinir  hiui 
di<»j»|H»iiitpd  ;     that   it 
V  under- 


A-  D*  IS96. 


[ISG 


Mke  out,  ami 


appear 
for  it ; 


iiNill«  iUQi,  I   tUiitki  of  his 


defence ;  I  Tiave^  as  well  as  1  was  able,  give 
an  answer  to  the  objections  made  to  it,  and  I] 
muat  now  leave  it  with  yoii,  gentlemen  of  thtr] 
jury :  and  IhoDgh  these  considerations  that  |  f 
hare  mentioned  may  not  quite  remove  all  com*  { 
passion,  yet  they  may  serve  to  confirm  you  tB 
a  resolution  of  doing  the  king,  and  kiu>rdoiii|J 
and  yourselves  justice ;  and  that  is  all  weaskl 
of  yon. 

i.  C.  X  Gentlemen  of  the  jury,  sir  Willian 
Parkyns  is  indicted  of  high -treason,  for  design  • 
ing»  'imagining,  and  compassing  die  death  of  J 
the  present  km^.  There  have  been  severalJ 
witnesses  produced  that  have  given  evideno*! 
upon  this  mdictment;  the  first  of  th«m  is  Mvml 
Porter,  who  has  been  a  witness  beretofor«J 
against  several  upon  the  like  occasion  ;  and 
he  gives  you  this  account,  that  about  the  latterl 
end  of  May,  or  the  beginning  of  June  last^J 
there  was  a  meeting  of  divers  persons  at  thM 
Old  King*s*head  tavern  in  Leadenb all -street,  till 
the  city,  where  they  dined  together;  and  the 
was  sir  VViUiam  Parkyns,  captain  Porter  Ijim* 
self,  sir  John  Fenwick,  sir  John  Freind,  and  i 
diversothers  that  be  has  raentionetl  to  you.  Afl 
that  meeting  they  did  consult  together,  whicli.] 
way  the  late  king  James  might  be  restored,  and  if] 
was  thought  very  necessary  that  there  shoulil  ] 
be  a  French  force  sent  over  hither  to  Join  with^ 
others  for  his  restoration.  And  they  did  amon^  ] 
tltemselves  agree  and  determine,  what  number  I 
of  forces  might  be  convenient  tor  tliat  purpose  ■  J 
they  did  propose  10,000;  6,000  foot,  3,000 1 
horse,  nnd  1,000  dragoons ;  and  that  a  messagr  I 
should  he  sent  over  to  king  James,  to  peri^uada  ' 
him  to  snhcii  the  French  king  to  furnish  hint  i 
with  sach  a  number  of  men,  to  ha  sent  over 
into  England.  Mr.  Cbarnock,  that  was  thea  i 
in  the  company,  was  lU<3  perbon  agreed  upon  j 
among  them  to  be  the  messenger  to  besenlj 
upon  this  errand  ;  which  en iployment  he  did  I 
undertake,  upou  their  promise,  that  they  would  j 
I'aisc  among  themselves  2,000  horse  for  to  me 
the  late  king  at  hi^i  landing. 

This  being  at  that  time  determined,  and  Mr, 
Charnuck  having  accepted  this  employment,  hm 
did  make  preparation  to  go  upon  thLs  eri-and.  In  i 
some  time  alter  (a  week  or  a  fortnight,  ortbere«  I 
abouts)  there  was  another  meeting,  at  whieb  ' 
were   several  of  the  same  persons  that  were 
pre3!«etit  at  the  former,  and  among  ihem  si^  j 
William  Parkyns  was  one ;  and  tliis  meeting  ^ 
was  at  one   Mrs.  Mountjoy'a,   that   keeps   a  i 
tavern  in  5>t*  Jame8*s-street,  where  they  did  1 
<lt**cuur5e  of  what  they  had  formeily  agreed  f 
upon,  and  did  again  consider,  whether  thejJ 
should  proceed  tosend  Mr.  Charnock  with  that  j 
meiisage  ;   to  which  thev  all  ngreed,  that  Mr, 
Cbaruock  should  go,  and  he  accordingly  wenit  J 
and  captuiii  Porter   met  him  abimt  five  or  s'lv] 
weeks  aficr  the  nteeting  at  Mrs.   Mountjoy*t|J 
and  Charnock  told  him  he  had  been  with  thaij 
several  persons  tvho  had  sent  him,  and  had  nc* 
qnainled  them  with  the  answer  of  king  James  |  J 
which  was,  that  at  that  juncture  of  time  th«j 
French  king  had  Hucb  occasion  for  his  foree%  I 
that  ho  could  UQi  ^ptire  tbem,  or  furntsb  biua  1 


ItZJ  8  WILLIAM  UI. 

with  fo  iBADy  to  come  over  here.  This  is  the 
lint  matter  tbat  Porter  givev  you  ao  account 
of. 

But  then  captain  Porter  tells  vou  farther, 
how  the  design  of  assassinating  the  king  was 
set  on  foot  about  the  latter  end  of  January,  or 
the  beginning  of  February  last;  about  which 
time  sir  George  Barclay  was  sent  over  with  a 
commission  from  the  late  king  James ;  which 
acems  to  have  given  great  encouragement  to 
that  paity  of  men  :  For  sir  George  Barcley, 
captain  Porter,  and  sir  William  Parkyns, 
wiih  divers  others,  had  several  meetings  at  the 
Globe  tavern  in  Uatton-Garden,  the  Nag's- 
Ueiid  tavern  in  Covent-Garden,  the  Sun 
tavern  in  theStrand,  and  other  places.  And  at 
these  meetings  they  entered  into  consideration, 
what  was  the  best  way  to  restore  the  late  king 
James  to  the  throne ;  and  it  was  agreed  among 
them,  that  the  best  means  for  the  effectine  that 
restoratioD  would  be  to  kill  king  William, 
which  they  resolved  to  undertake;  and  at 
these  debates  and  resolutions  sir  William  Par- 
kyns, the  prisoner  at  the  bar,  was  present. 
Cfapfain  Porter  being  asked  whether  sir  Wil- 
liam Parkyns,  at  these  consults,  did  consent  to 
tile  king's  murder,  he  said  they  did  all  agree 
to  the  asisssination  of  the  king ;  and  sir  Wil- 
liam Parkins  said,  he  thought  it  was  very 
necessary  to  be  done,  to  facilitate  the  restora- 
tion of  the  late  king. 

Gentlemen,  this  design  of  assassinating  the 
king  being  thus  re&alv^  upon,  the  next  thing 
considered  among  them  was,  how  it  might  be 
effected.  There  were  several  ways  proposed: 
One  was  by  an  ambuscade  ;  for  the  king  having 
a  house  in  the  countiy  by  Richmond,  his  Ma^ 
jcsty  u«ed  to  go  once  a  Heek  a- hunting  there- 
about, and  to  return  at  night ;  and  therefore 
an  ambuscade  on  that  side  of  the  \^  ater,  near  the 
house,  was  pi'o|Kiifed.  Then  another  proposal 
was  made  to  fall  u|H»n  the  guards  on  this  side 
the  water,  and  at  the  same  time  that  the  king*s 
coaoh  \%as  to  he  »et  upon.  And  these  two 
places  being  propoM'd,  there  was  some  dif- 
ference of  opinion  amung  ihcm;  whereupon  it 


Trial  ^  Sir  JVUUam  Parkyns^ 

other  two  were  to  be  mountad  by 
tain  Porter's  providing;  Mr.*  Porter 
Chamock,  and  one  Rookwood  were  to  bi 
cipally  engaged  in  attacking  the  guards, 
number  of  men  agreed  upon  for  the 
were  about  forty,  or  itvr  more,  and  sir  C 
Barcley  vras  to  have  a  party  oat  of  theok 
about  eight ;  and  as  tboae  other*  went 
upon  and  charge  the  {guards,  air  I 
Barcley  with  his  party  of  men,  was  lo 
the  king  in  his  coach,  and  by  abooting  i 
coach  to  kill  the  king  and  all  tbat  wen 
him. 

The  time  ajfreed  upon  for  patting  % 
sign  in  execution  was  on  Saturday  &e 
February.  That  day  it  was  expected  tl 
would  go  a  hunting.  And  two  mei 
nlantod  at  Kensington  to  give  notice  w\ 
king  went;  and  upon  such  notice  the 
were  to  march  out  in  small  parties, 
lodge  in  the  inns  and  public- bonsen 
Brentfonl  and  Turnham  Green,  upon  w 
the  king's  return  from  the  other  aide 
water,  and  sir  George  Barcley  waa  to 
readiness  to  set  upon  the  coach  in  the 
and  the  other  party  to  attack  the  guards. 

But  this  horrid  design  was  very  happfl 
covered,  which  prevented  the  kinff^ 
abroad  on  that  day ;  and  thouffh  they 
disappointed  for  that  time,  yet  the  des^g 
not  at  an  end :  But  tlicir  resolntions  qm 
to  make  the  like  attempt  when  they  oooU 
another  opportunity.  And  for  that  |R 
there  was  another  meeting,  as  captain  1 
tells  you,  iiiion  the  Friday  following  i 
Sun  tavern  in  the  Strand,  at  which  sir  IV 
Parkyns,  sir  George  Barcley,  Rookwoo 
Chamock,  and  captain  Porter,  were  pn 
and  they  did  agree  to  attack  the  king  a 
guards  the  next  day,  in  the  same  |dac 
manner  that  they  had  formerly  agreed 
But  by  good  providence  the  king  had  na 
it«  so  that  he  did  forbear  to  go  abroad  tha 
whereby  these  conspirators  were  total! 
appointed  of  their  barbarous  and  viUuno 
sign  which  they  had  resolved  upon,  ao 


WHM  agretHl  thai  some  persons  should  be  Kent  j  made  such  preparations  to  compass. 


to  view  the  ground  on  Wli  sides  the  Hater, 
which  |KM-KunH  wer»  eaptuin  Porter,  King  that 
was  exerntml,  and  one  Knightley :  And  so 
siiinv  days  hefon*  the  16ih  of  Februaiy  they 
did  go  un  bntli  sides  the  \«ater,  and  viewed  the 
ground,  and  reiunuHl  in  the  eveniui^  to  the 
Nug's-head  tavern,  nei*onling  to  ugreeinent ; 
when*  were  met  together  ^^ir  (ieorge  liHi'eU\v, 
•"Vlr.  ()hariiiH*k,  an<l  the  prisoner  ut  the  har  sir 
William  I'liikyiiM.  And  ihere  they  made  their 
rejioit  of  their  «ie\v  of  the  ifnuind  ;  upon  which 
Uitli  the  iiiopoHaU  were  debatetl ;  and  at  last 
till  V  did  all  h|(irt«  tliat  the  attaek  should  be 
iiiiido  u|Niii  tlis  king  on  thiK  side  of  the  water, 
III  a  iune  that  was  lietwiHMi  llrentloni  and 
TiiinltaMi  KitHPu;  and  the  attack  uinhi  the 
giianla  waa  likrwl««i  lu  be  made  thsreanouta. 

Nir  William  Parkyns  was  to  furnish  five 
liMiaaa,  whereof  ibraa  of  Itan  wara  in  hn 
UMlii  by  Mm  aT  Un  #w  piffUhif  |  Ai» 


It  is  true,  captain  Porter  does  tell  yi 
William  Parkyns  was  not  to  be  one  that 
be  actually  present  at  the  assassination ; 
was  to  furnish  five  horses;  three  of  then 
mounted  by  men  of  his  own  providing 
tw  o  by  men  that  captain  Porter  was  to  pi 
And  you  are  told  jiositively  that  captain  1 
at  this  last  meeting,  did  complain  that^  I 
hit  horses  were  fallen  lame,  and  aoqaau 
William  i\irkyns  with  it ;  and  he  prom 
III  Ip  him  to  two  more  by  the  means  i 
liewis  that  was  gentleman  of  the  bone 
loni  Feversham. 

Then  \ou  are  told,  that  sir  William  Fi 
sent  to  Sweet  to  come  to  town  the  litis 
bruary,  and  Sweet  i^>mea  to  town  aeoiN 
on  Wednesday  the  l«th  of  Febmair;  «i 
be  hail  discourse  with  sir  William  Pbrli 
bialo^nn;  where «r  WiUan ttM M 


Wm^mSkj^km 


J&r  High  Treamu 


bdlflm  he  intended  for  biin,  tnil 
Ed  Mm  f«  buitie  again  ;  and  iviihal 
tofa«  teltim  to  i<»wti  the  Fmlay  fcl- 
d  witef  Hid  i^r(»ovii  lo  litin^  his  h^ir**^.** 
|>«  nwotiAfied  tbree  lini-ses  which 
i ,  -•  -7"  '♦  he  had.  The  ^r  mho 
-.o-*,  mid  Swewl  came 
.-.  „ ,„,»  ...>  luait  till  SimirdHy.  8ir 
nrfymtftht,  he  thought  to  i^o  out  of 
ftfin^rfumn.  tjitt  tliil  not,  hiiL  !4aJd  till 

I  town. 

Aing^tbe  hOTBesof 

feP«^kyl]ft  v*er4;  hrouifht  to  town 
I  BMW  wer«  <»Mir,  and  wrre  set  up 
Mf^^inn  in  llolborn;  Mini  it  appears 
Leirii fiirn't«hcd  one  horse;  lor  there 
|tafi»u)>on  the  iiccounl  of  hir  Wm. 
^Kid«  a  roan  hor«^  wai*  ottf ,  which 
Hiicraet*huu»e.  This  ifi  proved  hy 
';  ndllnt  Leuia  him^eircame  in  on 
biheaft^rnomi  to  iaqiure  Ibr&ir  Wm, 
;  b»jt  he  wan  ^iie,  and  the  horses 
raj",  and  h**  once  came  with  sir 
|)fn%  Uk  the  inn.  These  are  cir- 
ili>  <  rinrur  w^fth  and  confirtn 
-  fsonccrniug  the  |>n}- 

iciiUr  of  captaiu 

-  the  comrnisHioei 

,  wliieli  t>  ii'^mnrkahlt?:  it  was 

a«krd  Ch;irn4H.'k  whether  he 

iiin  :  lie  sai<i»  No,  hut  sir 

:  and  sir  Wno.  Parkyns 

as  tlicy  were  siltinn^  by 

ler  he  had  seen  ttie  oom- 

*   "         ^'    '     1 1 .'  answered, 

>\  and  it  TV  as 

.  uui.  i..,.j«j ;  and  thai 

►  make  vnr  upon  the 

..i  ;.iug',  who  was  called  in 

L9   ynii   may    si4M>ose,  the 

^  tbftt,  geiithMnen,  ns  lo 

Wtfiiiialing  ihektni^,  and  of 

y  i»hidi  vraa  oiiderstood  by  them 

f^n%p.y  thifl  16  the  sum  and  ^wh- 

^*8  evidcne^?,  w  nttendeit  with 

by  itiese  cirf?aniiitauoe8,  as  yuu 

wit»f*x««  Sweet,  who  wag 

of  sir  William  I'arkyiM, 

"■  last  he  iras 

'S   il*^t  the 

i>   hi'  uiMirrslond  to  he 

He  aitked  sir  William 

\^  it?  aud  he  fcaid,  He 

Ifvr  tl;  and  that  \m  irmn»  con- 


'■   ^'-         ^,    He 

^  anil  he  did  i^ 

wn^in  Jatjuarv, 

itirr,     Th^y 

iijd  I  he  next 

tvfnit  with 

'ii'jli,  and  a 

"^"  «>t    Y-rknijire:  aud 


Mytn 


•rt  kt  Mid,  He  founll  all 


A.  D.  1699.  tlW 

thereto  be  Terv  well ;  and  the  west  was  as  wett 
inclined  to  the  king's  intei  e«it  as  the  north  ;  and 
a  herd's  brothei-  wasconeerned. 

Tiien  in  the  next  plncc  you  are  tohl,  That 
at  Michaeltnas  last  Mr.  Cbarnock  did  write  a 
letter  to  one  Haywood,  who  had  nnarncHl  his 
sjfiier,  and  llvtd  near  sir  William  Psrkyns  in 
WHrwiekshire,  to  desire  him  to  receive  *ome 
sfoeds  into  bis  house  that  were  to  come  from 
sir  William  Parky ns's,  and  lay  them  up  terr 
carefully  ;  for  they  were?  eboice  ifoods,  whicft 
sir  William  durst  not  leave  in  his  ow^n  hoiraov 
berauAe  he  had  left  it.  And  accordiuiily  there 
wer«?  lb  CSC  bojces  and  chests  sent  to  lla^  wood*9, 
and  receiired  by  him  into  hi«i  house,  where  they 
continued  till  the  latter  end  otrebruury.  Hay- 
wood about  th(&  lime,  when  the  destg'ii  of  the 
As«iasfii nation  was  on  foot,  met  t\ith  sir  Williaoi 
Parkynsin  town,  an*!  asked  him  how  he  would 
dispone  of  those  gfoods  ?  TherRiijjon  sir  William 
Parkyns  sent  hi^  servant  ioto  the  country  ;  and 
notice  was  {*iven  on  Ash-Wednt^sday,  the  Wed- 
nesday after  the  6r8t  proelamntion  that  i^ued 
upon  the  discovery  of  this  conspiracy,  that 
i\wsii  i^oods  should  beremovetl  :  and  a  man,  in 
the  evening,  went  to  Haywood**  bouse  with  k 
cart  and  horses,  and  removed  these  chests; 
they  were  three  in  number ;  and  li^iSL  hemj» 
opened,  there  were  eight  le^iser  ones  taken  uut^ 
and  carried  away  about  nine  or  ten  oViock  at 
night  to  sir  Wifliam  Parky ns':^  house  in  W»r« 
wiekshire,  where  they  were  buried  in  tin* 
garden,  and  afltrward  weru  dugf  u]i ;  whicit 
was  at  the  searching'  sir  William's  liouj^  upun 
the  bieakintrout  of  the  plot;  and  when  they 
were  ojirned,  it  did  appear  what  sort  of  go<wis 
they  w  ore :  they  were  arms,  a  considerable 
fjuautiiv  of  ibeni ;  four  dozen  of  Kwonb  with- 
out hills,  twenty*<iTe  pair  of  pistols^  and  m 
grcJit  number  of  carbines,  th'rrt)  -two  as  1  re* 
meiiiber^  and  a  puree!  of  hills  packed  up  in  a 
box  by  ihcmpelves.  This,  grenilemen,  is  swora 
to  you  by  the  persons  that  were  present  at  the 
dig-jjingf  them  up,  and  opening'  the  boxes.  ^ 

Then,  gfentlemeu,  you  are  told,  That  ibou^h 
sir  William  Paikyns  pretends  Tnc*'  were  arms 
ihst  he  found  in  the  house  when  t^e  came  \\x\* 
thcr,  yet  they  were  not  old  msty  art>is^  as  ha 
pratends,  but  they  were  very  brig^bt,  aud  Irt  fbf 
uw  and  service. 

There  is  one  ctrcumstaBce  ntofe  that  /jem^ 
to  affect  sir  Williawi  Parkyns,  ab^ut  the  besi- 
ncM'^  of  the  assassination ;  and  that  is  prced 
by  Eubank,  bir  WiJlium's  own  servant.  There 
was  a  note  seat  upon  tSuturday,  the  22d  of 
February  in  the  morning ^  to  one  Brown  at 
KenBing"tont  by  sir  William  Parky ns's  man  ; 
aod  this  Brown  writ  in  the  servant'^  Almanack, 
that  he  would  be  in  town  himself  in  a  little 
time^  iind  bid  bim  carry  it  lo  a  man  that  lodged 
at  a  confectioner's  over  as^ainst  Gray's-inn  gate 
in  Holkirn:  sir  WlUiatn  Parky  n'i's  man  ac- 
cordingly goes  to  this  confectioner's,  and 
S[M'akii  with  the  person  there  that  he  was  di- 
rected to  ^ri  to  J  and  he  says  he  was  a  ^k;otch• 
man^  and  talked  broad  like  a  Scotchman,  and 
he  bid  bioi  go  aud  idl  Itit  lutster^  tbtt  h^ 

K 


\st] 


8  WILLIAM  IIL 


Trial  of  Sir  WilHam  Parhym^ 


and 


would  stay  within  for  him  till  be  came 
he  did  accordingly. 

Gentiemen,  This  is  the  sum  and  substance 
of  the  evidence  that  is  iciTen  against  sir  Wm. 
Parkyns.  Now  you  are  to  consider  what  sir 
Wiltam  says  for  himself:  he  does  admit,  and 
agree.  That  what  Porter  says  is  very  positive 
and  full ;  but  that  is  but  the  eridence  of  one 
witness :  for,  sa^s  be,  by  the  law  no  person 
^oght  to  be  convicted  €f  h*igh'treason  upon  the 
testimony  of  one  witness*  As  to  the  matter  of 
bw  be  is  in  the  right :  no  man  ought  to  be 
CDovicteil  of  treaMHi  uikmi  tbe  testimony  of  a 
single  i«itnc58.  *  Now,  nrst  Suppose  the  desic^n 
to  assassinate  the  king  had  not  been  proved  ; 
consider  then  whrtlier  there  be  not  two  wit- 
nesses besides.  Porter  proves,  that  Chamock 
was  sent  into  Fiance,  by  sir  William  Parkyns, 
and  others,  upon  that  errand  ;  to  uhich,  if  you 
add  the  testimony  of  Sweet,  that  swears,  that 
air  William  Parlivns  told  him  the  king  would 
come,  antl  he  hail  a  troop,  and  had  bought  sad- 
dles ;  and  what  is  said  concerning  his  going 
;nto  Leiccsterahire,  and  his  having  a  quantity 
fii  arms :  if  all  which  be  understood  in  pur- 
suance of  the  design  against  his  present  ma-  - 
jesty,  then  there  arc  at  least  two  witnesses  of 
several  overt  acts  of  tbe  same  treason. 

For,  gentlemen,  I  must  tell  vou,  though 
there  had  heeii  no  evidence  ui  a  design  to  as- 
sassinate the  king,  but  the  desigti  and  purpo^^e 
bad  t»ern  tu  dcpuse  him,  and  set  the  late  king 
upon  the  throne,  or  join  with  a  force  to  invade 
the  realm,  that  is  high-trcasitH  within  the  sta- 
tute of  25  £dw.  3,  as  bt-iiig  a  designing  the 
death  and  destruction  of  the  king.  Tliere  hath 
been  a  full  proof  by  two  witnesses,  if  what 
Sweet,  and  the  other  witnesses  besides  Porter 
say,  tu  pro\e  sir  Wdliam  Parkyns  to  he  con- 
oerncil  in  that  design,  which  shall  be  consi- 
dered further  of  by^aiid  bye. 

Unt  in  the  next  place,  suppose  that  the 
me(*tings  at  the  King's- Head  in  Leadenhall* 
street,  and  at  Mounijnv's,  had  iu>t  been  proved ; 
but  Vie  desi^-ii  to  aNsassinute  the  king  is  proved 
by  one  \«  itncbs,  and  the  providing  men  and 
arms  to  fi^iU  against  him  is  proved  by  one 
other  witness  ;  this  is  a  pmuf  of  the  same  trea- 
son :  for  though  the  overt  acts  be  several,  vet 
thev  both  tend  to  the  same  end,  the  distinction 
of  ilie  king,  thouuh  in  a  different  manner  ;  and 
though  the  law  requires  two  \^  itni'ssc>s  to  the 
same  sort  of  treason,  yet  it  does  not  require  twu 
witnesses  to  any  uu«  overt  act.  For  if  one  wit- 
ness prove  one  overt  act  ai  one  time,  and  ano- 
ther witness  prove  another  o^ertaot  at  ano- 
ther time,  these  are  two  witne^syeK  within  the 
meaning  of  the  law ;  and  so  it  liaN  been  always 
practised,  and  never  denied  to  be  law  that  I 
ku.iw  of. 

Besides,  it  is  oliScTvaldo  upon  tlii«  ]H)int, 
ivhich  my  brother  has  inintioiiid,  that  t hit  in* w 
act  of  parliaiiieut,  which  dot's  not  yi  t  lake  tf- 
fect,  provides,  that  there  shall  he  riilu  r  twu 
witnesses  to  one  overt  art,  or  one  uitiuas  lu 
one,  and  another  to  another  of  thu  aaiiir  s|i«eimi 
•f  treason}  and  you  bnftthad  tbvopimuB  ol 


all  of  us  now  that  are  here,  that  tbett  are 
acts  of  one  and  the  same  species  of  treaso 

Bnt  then  sir  William  Parkyns  objects, 
Sweet  does  not  prove  any  overt  act.  N* 
that,  you  are  to  consider'tlie  force  of  8 
evidence,  who  tells  you  the  discourse 
William  Parkyns,  ab<»utChiistmas  last, 
king's  comiog,  of  bis  saddles,  and  of  hk 
consisting  of  old  soldiers,  and  volunteer 
were  old  officers.  But  says  sir  Wm.  Pai 
this  is  only  words,  and  words  are  not  tr> 
But  then  oonsider,  that  they  are  word 
relate  to  acts  and  tJiiugs.  You  hear  be 
great  quantity  of  arms,  beyond  what  be 
private  man,  could  have  occasion  for,  or 
use.  He  does  not  uive  you  any  accona 
he  was  to  ilo  with  those  arms,  or  to  whs 
pose  he  sliould  keep  them,  nor  why  he 
them  to  be  removed  in  the  night,  aftn 
had  lain  privately  in  Haywood's  bona 
caused  them  to 'be  carried  back  to  b 
house,  and  buried  them  in  the  ground,, 
such  a  time  when  there  was  a  plot,  wm 
the  plot  was  discovered,  and  a  prodamaB 
for  his  own  apprehension. 

Sir  William  Parkyns's  disooorse  with, 
of  king  James's  coming,  and  .bis  troo 
sisting  of  such  men,  plainly  shews  wh< 
anns  were  for.  For,  gentlemen,  meK 
courses  and  tlieir  woitls  explain  their  «• 
and  an  indifferent  action  in  itself  mky 
explained  by  words,  that  it  will  be  noi 
It  is  lawful  for  a  man  to  buy  a  pistol ;  I 
vskn  be  plainly  proved  fron;  bis  wonbi 
s|>eerbrs,  that  tbe  design  of  buying  it  i 
use  it  against  the  person  or  lite  of  tbe 
that  willbe  an  overt  act.  Now,  vi  ben  stl 
Parkyns  said,  The  late  king  would  oon 
that  he  had  a  troop  which  consisted  of 
soldiers  ;  then  these  arms  being  found  i 
manner,  I  must  leave  to  your  considc 
whether  it  is  not  a  proof,  for  uhat  purp 
did  provide  them,  and  to  what  use  he  bl 
to  put  thi'in ;  especially  since  he  gives  i 
account,  uhat  use  or  occasion  he  l^d  for 
He  says,  indeed,  he  found  them  in  tbe 
two  ^ears  ago ;  how  probable  tliat  is, yo 
consider. 

Then  there  is  another  thing,  his  goin 
Leicestershire  witli  Scudamore,  and  bis 
iug  there  with  Yarborough  and  other  pe< 
that  private  and  hasty  manner.  He  wi 
on  the  Thui-sday,  and  came  home  agaii 
Monday  ni^rht ;  and  then  he  meets  with  1 
and  tells  him  that  all  was  well ;  and  tbi 
was  as  well  inclined  to  the  king's  intercil 
North.  What  king  must  he  mean?  fl 
no  commission  from  king  William  to  | 
I^icestershire  to  discourse  with  people, 
how  they  xtomi  affected  to  bis  interest, 
loinca  uiul  tdls  vou,  tliat  when  sir  ^ 
I*arkyu8  N|N>ke  of  the  king,  he  undents 
meant  king  Jamca.  1  must  leave  it  « 
coiiiinlcration,  Imw  you  will  interunt 
wonls. 

Iitiirw.gwtlemen.ititnotfiitbem 
btujfiiniMaorfbmdt 


I 


US}  Jor  High  Treasoiu 

i  iDin^f  wnrds  or  actions,  wbeo  he  is  trteil  for 
Jiis  lile.  You  ought  to  \\h^e  a  lull  am)  s^iti^- 
hctaitj  etidcQce  U*  convince  von,  tliul  lie  is 
nHty,  before  you  pronounce  liiiii  so ;  Ikii, 
Kowtrer,  you  are  to  cooAidf^r  ibe  naiure  of 
ibitig^,  Slid  the  eircuinstanccb  lUat  attend  tliem. 
If  \»Mi  i-.ju  vu|ifKi»e  that  lie  went  intf>  Lt?icesier- 
kiiur  to  kini:  NV  illiam*s  frieufk,  ami  that  he  wns 
I  op  nn,  the  West  was  a^i  frell  affected  to 
hr<^  \\  ii;i«iai  as  the  North  ;  then  you  make  a 
Ufrrttt  cointtmction  from  Hwe»^t^  who   tells 

rl»  tiiAi  always  when  he  spake  of  the  king, 
OQilerstood  it  of  kini^  Jame^;  nod  ul  Chrm- 
Ais^  when  he  spoke  of  the  kiu^^s  crmMii|>;i  it 
ttnal  be  meant  kin^  James  ;  fm  kiuj;  H  iSliain 
«ii  ber«  iHffofv,  and  he  preteuttH  not  he  h^d 
my  autbority  to  raise  a  troop  forking-  WiUiam. 
60  that,  gentletnen,  1  inuRt  leave  it  to  you 

2  m  the  whde  matter;  if  you  are  nalislied, 
titr  Wil'iQin  PjLrkyns  is  g-uilty  of  the  tnat- 
Unffwliicb  he  standii  charged,  you  will  tind 
Vtfa^l^  ;  you  have  heard  the  evidence,  nnd 
wilooosider  of  tt;  and  if,  upon  the  trhol«.v,  yoii 
■«  Mt  feaLuHcd  that  he  is  gudty  of  the  nuiiers 
cbmed  itt  ibb  inJictwent,  then  you  are  to  ac- 
fDtitm. 

IWa  fto  ofltcer  beb;^  sworn  to  keep  the  Jury 
leeorliim  to  custom,  tbey  witlidrew  to  constiler 
oCtbor  Tmiict,  and  in  less  tliun  half  an  hour 
miimeil  iota  couii. 

CL^Ar*  Gentlemen  of  the  Jury,  answer  to 
}^iiritti»a.     William  Xorthey — '-^ 
%f,  Kort/tcy*    Here.    (And  so  of  the  rest  ) 
CLtfAr,  GeatleineOf  aj-e  yoti  all  o^eetl  on 
)««ri«fdicl? — Jury.   Yes. 
11  ^Ar.    W  ho  shall  say  for  yon  ? 
huj.    Out  tbreniau. 

Cl^ffAr,  Sir  VViiUam  Parky ns,  hold  up  thy 
ia4    nVbich  he  did.]     I^<jk  upon  the  pri- 
kom  fsmy  ye,  is  be  Guihy  of  the  hii^h- 
M^bereof  be  stands  intlicit^d,  or   Not 
€l«tf^,-^Forri«Miif-    Guilty,  my  h>rd« 
C^  v/Ar,    VVIiiit  (/ooda  or  chattels^  lands  op 
hail   he  at  the  time  of  the  hij^'h- 
oommilted,  or  ut  any  titne  siuee  ? 
Tmrtmmrt.    Nune^to  our  knowledge. 
X.  C  J.    Jailor,  look  to  him,  he  is  found 
f  adty  of  high  treason. 

CL  of  Ar.  Then  hearken  to  your  venlict  as 
the  tmiri  has  recorded  it.  You  say  that  sir 
Williaia  Parky  us  is  guilty  of  the  high-treason 
wbrceof  be  stands  indicted,  but  that  he  had  no 
I^Qods  or  chattels^  lands  or  tenentenl^,  at  the 
Hmeoflbc  high  treason  com  mitt  etl»  oral  any 
^lae  since,  to  v our  knowledge,  and  so  vou  say 
aU'—Ary.    Ves. 

CiuOfjir.  Gentlemen^  the  court  discharges 
|«ii,  and  tbaiiks  yuu  for  your  service. 

Wbik!  the  Jury  was  withdrawn  to  consider 
of  the  rcrdict,  sir  John  Fiemil  was  broutrht 
fttm  Newgate  to  the  Lar^  in  order  to  his  being 
ClM  to  Jv»dgtiieot,  and  after  the  verdict,  be 
Mnu^  himself  to  tlie  court  tbu» : 

Iftind,  My  lord,  I  humbly  beseech  your 
«bHibi^  to  ^ve  me  leave  to  read  tbii  Pitpcr* 


A.  D.  1696*  [1S4 

(To  which  the  Court  gave  n^;  answer.) 

Frcind,  My  Lord,  will  your  luidshipgive  m« 
lea)  e  to  read  it  P 

L.  C.  J.     Ay,  if  you  will. 

Frdftd,  (Ue'ntl*!.)  My  lord,  Ihnmhljmovein 
arrest  of  judg^ment,  Ihiit  I  am  not  convieied  of 
treason  liy  two  w  itnesses,  as  i  ought  Ut  liave 
been  within  the  statute  of  the  25th  of  Edtv.  5 : 
tor  Mr.  Porter  swears.  That  1,  with  others,  in 
May  or  June  last,  sent  to  the  French  king  to 
invade  England  ;  he  is  the  only  (Witness  to  that 
matter,  Mr.  Bbir  swears,  That  I  sljeived  him 
a  commission  in  8urrey- street,  about  two  years 
E»inoe,  sitjoed  by  king  James,  and  cntnter- 
Bit^^ncil  MeUbrd^  to  he  a  colonel  of  horge,  and 
that  1  gave  him  some  mouiea  for  the  cherish- 
ing of  Llie  men.  My  lord,  here  is  no  levying 
of  war  t(\vom  by  Mr.  Blair;  and  consfiiring  to 
levy  war  not  being  treason,  I  am  convicted  by 
one  witness,  and  therefore  I  pray  coyosel  may 
be  assijpfnrd  mp,  to  plead  thiti  matier. 

L.  C.  J.  !Sir  John  Preind,  that  which  you 
move  now  is  not  in  dVresl  of  judgment ;  it  'm 
matter  that  di>es  arise  uj»on  ihn  ciidence,  and 
what  yuu  now  &ay,  arraigns  the  verdict,  and 
the  prr»ceeiliiigs  upon  your  trial  There  were 
two  witm sses  agamtit  you^  that  m  plain.  You 
were  not  indicted  tor  levYing  war,  but  for  com- 
passing and  imnjiri'iin?  *l*«i  death  of  the  king  ; 
and  we  told  yon  the  design  of  the  invasion,  and 
c< inspiring  to  depose  the  f»re»ent  king*  und  rc- 
storc'  the  late  king^  was  an  o\  ert  act  of  that 
hi^h  treason.  The  romuiissi^jn  waK  not  so 
much  stood  U|JOnj  but  the  advancing;  monies 
U]H»n  ibis  account,  to  Bliiiryour  Ueu tenant  co* 
lone],  to  give  to  th«  men,  that  wna  a  pldiu  overt 
act,  and  oo  there  were  certainly  two  witnesses 
against  you. 

Fr^md.  Ms  lord,  I  hope  1  can  clear  myself: 
1  thank  God,  1  am  as  innocent  as  the  child  un> 
bom,  of  the  assus^in action  uf  the  king.  1  ivould 
not  have  the  peupLe  think  that  I  am  such  a 
man. 

X.  C\  J.  But  you  remember,  it  was  sworn 
you  knew  of  it,  and  we  hai  e  told  yon,  that  the 
design  of  restoring  the  late  king  by  force,  and 
de|ioi»iog  itte  king,  are  overt  acts  of  luiaginiog 
his  ileath,  if  such  an  intention  be  provod^  a^  it 
was  in  your  ease,  and  die  jury  havo  found 

it  so. 

Freiad*    My  lord,  I  humbly  beseech  yoti, 

because  t  do  not  understand  matter  of  law,  and 
am  advised  to  move  thi£  in  an'est  of  judt^ment ; 
I  desire  my  counsel  may  be  tieard  to  it. 

L,  C.J.    VVe  cannot  hear  counsel,  but  upon 


upn 
iVe 


is,  the  indictnieiii.  We  cannot  enter  into  any 
examination  of  this  matter  ihut  you  now  speak 
of,  vou  had  a  long  trial  yesterday. 

Frt:ind.  .^ly  liird,  1  am  sorry  to  give  yottr 
lordiihip  any  occasion  ot'  double;  but  1  hum- 
bly he&eech  yon,  if  it  may  be,  that  I  may  be 
heard  by  my  couuHel,  for  the  satistitctEon  of 
the  world  ;  pray,  my  loid^  hear  M^bat  they  can 
s*y. 

L.  C*  X  They  cannot  say  any  thing ;  00 
coutisel  m  the  worM  thai  Lmdersund  Ibeu- 


I    1»] 


8  WILLIAM  in. 


I 


I 


Trial  nf  Sir  WUUam  PnrHyfis,  [ 

miUen,  c«ti  annw  tiny  t!iin(f  ii^iiinst  wh«t  h«s    leant  silting  with  the  rest  of  tbtf  cAmi  upon 
been  so  (>(i«n  willed  and  always  practised*  wjocb,  pronounced  the  scntcoce. 

Freiud.  My  Innh  if  it  be  to^be  granted,  I  br-  | 

leh  vour  lnrdNUi{t  tii  i^innl  it^ 

L,  CX  ll  cannot  he  g-rantetl ;  besideft,  the 
matier  ytut  now  move  UjM>n  is  imprn|H'r ;  n  wn* 
all  rnnsidered  upon  your  tnal.  It  was  tokl 
you,  we  tlid  all  a^jree.  that  a  oompiracy  u\  levy 
wj  *  *     . 

(b 

ftl  your  trtjil,  and  that  U  miw  ut  ti% 

Far ky fit.  My  lord,  if  yonr  loriUhi[j  f»leaiieK) 
I  desire  1  may  have  the  hb^ity  of  fome  frieuda 
mill  re)dtions«  and  a  minister  to  dwne  to  me. 

L,  C\  J.    Yc8«  yen,  by  nil  jneans, 


Com,  Serj.     You  tlie  priaonem  aV  the 
fir  John  Fiernd  and  inr  William  Pnr'  '  ■  ' 
hafe  been  indicted   lor  high-trpas  - 
paasin£r  the  d^ath  anddesirtietion  < 
for  your  trial,  ytiu  have  pot  yourself  I 


ar  to  depose  tlK' king  la  treason;  or  to  invade    ^^^/^^^'^iTy'  '''}''^'  ^^'^^^^V'^  ^^  '^^ 
.ermlm  is  tr-.is«n.     All  this  ^a»  lioosidcrea  .  ^^^'**>'^     ^^J?  ,^*^'^<^«   *^   **^«  (?rcale5t  tn 

judgpient  ot  the  law  l hat  a  man  can  com 
and  it  is  Justly  and  ri^asoaably  tm.     For  r 
l»ery  and  (uunter  are  injuries  to  prUaie 
bttt  compa^iny^  the  death  of  ihc  l^ing^,   ii 
pa.'^iinjk^  the  dt^strurtion  of  the  father  of  y 

aoc 


Farki/u,.    If  yJur lordship  pleai*es,  thatlluv  |  *^"»>*'*.V,  and  letyng  in  rapine,  death 
i«v^,,m«  »«.!  i,*  ..«»«.„  „.:iL   „.„  \.^,i  ...«:.    fiolatioa  uimo  thousands  of  ncoidc. 


may  come  and  be  private  willi  rae,  and  |»ray 
let  rnc  have  a  rule  of  court  for  it,  olherwiae  l 
aball  not  havo  any  benefit  of  it* 

L,  C,  J.  Yes,  ye«,  it  is  very  fit  yon  shauld 
have  it ;  there  %hall  be  an  order  of  eSnrt  for  it ; 
•6e  that  the  keep^-r  take  care  tt  he  done  i»  itb 
calety. 

ftetnd.  My  lord,  I  desire  tlie  same  rd>eHy 
of  a  minister,  and  my  relf:tio[is  and  friends  to 
cofnr  to  ine  ;  that  for  w  bat  lime  I  biire  to  live, 
1  may  niakn  ihe  best  use  I  can  of  it  for  my 
Boult  which  I  hopeGoil  will  enable  me  to  do. 

The  Cotirt  was  adjourned  until  five  oVlock 
on  the  ilUrnoon,  and  aboiit  six  the  justices  re- 
lornt^l,  and  th«^  court  was  rej»umcd, 

Ci.of'Jr,  S^l  rJr  Jr»hti  Freiud  lo  the  bar: 
(wbich  was  do;."-**)  Sir  J<Au\  Fuind^  hold  up 
thy  band,  (which  he  did.)  Tlu»n  siiindesi  roo^ 
victed  ot  hit'-h-ireiison,  for  tiailoiously  fjrn- 
passing'  nnd  imagifuijj;  the  death  of  oni  so- 
Tereigij  lord  king  Willwm  tne  3rd.  What 
canst  thou  say  for  thyself  why  lliecoyrt  should 
not  gife  thee  judgment  accoi'ding  to  the  law  ? 

Then  belng^  made  io  kneeli  he  afterwards 

stood  up, 

Freind,    I  have  said  already,  what  I  have  to 

any  in  arrest  of  judgment. 

dnu.  Strj,  8ir,  yon  httie  heawJ  the  juds^. 
tnent  of  the  rourt,  as  to  what  joii  have  said  ; 
if  ymi  have  rjo thing  else  to  offer,  the  court 
must  proceed  to  jud;T;ment. 

CI  of  Ar.  for  Middlesex.  Sir  William  Pnr- 
kyn^,  toldupihy  band,  (which  he  did).  Tbon 
standest  convi*  t<,d  of  hi j^h-treasiou  in  rumpnss- 
in^'  and  imagininij:  the  death  of  the  kiugr,  and 
adheringf  t^i  the  Icin^^'-'g  ^n^i^it^s,  Wbatcan^i 
thou  »ay  for  thyself,  ivhy  the  court  should  not 
fTive  thee  judtfoieni  to  'die,  accordiDg^  Io  the 

He  was  made  to  kneels  and  rise  up  again. 

Fnrkyn^.    I  have  iiothingr  more  to  offer. 

C7.  t^f  Ar*   Then,  cryer,  make  proelamation. 

Crycr,  O  yes;  all  manner  of  jiersons  nre 
coiumaniled  to  keep  tsilence,  while  judgment  is 
io  ^iviiig^,  upon  pain  of  imprisonment. 

Which  Proclamation  was  made  on  both 
•ides  ike  ootitt  i  and  iheti  Ui\  Coniinan  2fer- 


pco[de.     .ind  < 
this,  the  liemonsest  of  offr  K^es,   is  Ca|mbl4 
ap.;ruvatton  ;  for  there  have  hcuii  always  < 
cufae$,  and  sninetimes  justifications  for 
lion:  and  as  to  murifer  and  private   re  veil 
ihcre  nmy  be  somewhat  said  iu  mitigation  fr 
ibe  violence  of  men*s  passions.     But  to 
and   conspire,  and  eousultf  and  debate  the 
struction  of  a  prince;  no  man  yei  ever  had 
confidence  to  muke  an  excuse  for  it.     1  wo 
nol  add  to  your  uffhction  ;  1  am  f^^isihle  of! 
severe  jndiirnient  that  is  io  fothiw,    ^nd 
you  ha»ebron!^bl  upon  yonrsclvrjt,  and 
but  oity  ym\  for  the  irrear  burden  of  ^uiU  ^ 
yon  have  laid  yomselvt"^  umler.   1  onlv  say 
to  offer  it  to  your  serious  contfdf ration,  in 
few  momcuis  you  have  to  prepare  for  aooi 
wui  Id,  nod  another  jud^i  ment.    Ail  thmt 
lor  me,  is  to  pruui>uuce  the  jud^iitent  of 
law  in  theiie  cases,  and  the  court  does^  awin 

'  That  you^  and  ench  of  you,  i(o  hack  10 

*  place  from  whcnte  you  came,  and  from  tkt 
'  oe  drawn  o'^i  n  hurdle  to  the  place  of  execiit 
'  wliere  you  f.hall  be  si^vcrally   haD|(e4  vp 
^  the  neck,  and  out  downalire;   \our  boi 

*  shall  U-npfrtdnpen,  your  privy  members 
*of),  yuuf  hiH^ek  taken  out  and  burnt  lid 
»  your  iinea  ;  your  headii shall  tie  sevt^red  fi 
'  your  bodies,   your  bodies  rei|ierli)ely  to 

*  dividcil  into  iburipiarters,  and  your  beads 

*  quariei-s  are  In  lie  at  the  dispoiial  oi  the  ki 
*"  and  the  Lord  have  mercy  upon  your  souliJ 

Then  the    prisooers  were  cairied   bftdl 
Newgate, 


On  Friday,  April  3,  1696,  sir  John  Frel 

and  sir  William  Parky  us  were  drawn  on  sledg 
from  Newgale  Io  T}  burn,  where  they  dehv^^ 
the  Ibllowiug  Papet-s  to  the  Usheriffs : 

Sift  John  Frkind's  Paper* 

Knowing  ihat  I  muftt  immediately  gifa 
account  to  God  of  all  my  actiooii,  and  thai 
ought  to  be  specially  careful  of  wlial  1  sa/ 
these  last  hours,  I  do  solemnly  profeaa, 
what  I  here  deliver  is  from  my  very  soul^ 
all  the  heartinesa  and  sincerity  of  a  dji 
ChrEMtan. 

The  catiae  1  am  brought  hiUier  to  tuflor  A 


fifr  High  Tremon. 

to  he  fi»r  caua«  of  OotJ  and 
tD  tiic  b*»5t  and  utritost  of 
)tAfpt  anil  inlbrtnatrofi,  ti}{;^rei'abie  ta 
^    *i#  l«n<l,  whif'li  I  hive  eifcniiore 
A  tinii  ihiljr  antl  »ille;;iaiice  lo 
*fw!  th?it  ii&  no  t'oiet^u,  so  n*?!- 
►  T  can  alieobu-  our  uli**- 
..  cilitf  new  &i)d  uniotcU 
il4f  kiri^V  liuUjects  can  de- 
#  hii«  ill!  Huy  HCi'uunit  i»r  con- 
not  ttti  iiiiriteiliutt:  riyfiil  in 
lit,  1  think,  not  to  if  a  lit  in  ; 
lue,  toa^^kt  luin  tn  the 
is  jiisUtiiiljte,  unit  our 
tiujfs  fimy  BiH'in  at  jtr«?- 
icve,  I  »tfi  *iurt*    r  lieai'lil  V  |>i  ay, 
iUy  reiitored  to  liis  rigtuhii 
in*. 

len  descent  of  his  majesty 

ddmiuioiiB,  in  order  to  the  re- 

I  dcdjire   \   hud  no  certain 

nor  €;iii  I  tell  >»  hut  t<i'*>i*n^^>» 

iUeve  it,  so  httle  reason  had  ]  to 

rr^pttriilioii  for  it.     1  §uppc»!^  it 
HliotiliJ  h«ri?  endeafoiir  to  clear 
Ana»an»iinu,  which  vi^as  not  the 
agtttnst  m«;    howeifr,   it  was 
;b  what  ttKMins  I  know  not, 
to  my  cit^advftntage,  I  for- 
tU^rein  UiSLrumuntJil;    and! 
e  very  hoiiom  iS  my  smil,  freely 
'1^  of liod  to  (lo^NOtoo,  nuchas 
\wm%%  aci^wary  toiftards  thtt  Ukln^ 
mUwii  1  really  look  upon  to  be 

more  than  mine, 
%e\\\  and  i  thank  Clod  I  am  so, 
i'liiirch  of  En|<hitu|,  thun^h, 
■t  unworthy  and  ui)|iro(3uihle 
«f  that  church  ivhiidi  siiflers  so 
*tnl  for  a  %%t\vX  adli^retioe  to  by- 
lt««  aati   C)hri<)iinD   }irin^{>le»  ^    ^br 
and  fortius  t  die. 

%  [lerfeet  chrtiity  f^r  p#*ople 
aod  do  heitrtdy   wish  vi-elt, 
ur  to  do  flo  to  all  my  fellow- 
at  per«ua«iou  Huevifr.     And  in- 
A  deal  *»f  opng^ht* 
ne  f>eo|de  of  I'cry 
•jMti;^""  ...  ,^..„v*-.,^  m.uiers. 

ad  d#^ire  it  may  not  he  taken  aii 

censure,  or  undue  reflection, 

to   the  Utility  i»f  popish  evi 

If  iacd  «o  to  do  lor  my  Ifetter  se- 

founiUliou  of  a  fttatuie  taw. 

mynelf  a   member   of  the 
laod,   1   ttiunt  take  \\\i%  nppor- 
il  for  (t«id*««  0ory,  to  apply 
l&atarri-  r  that  church, 

taiih  J  ,  k^  with  ruy- 

of  yri4j,  iiii  ijni"  «.ike,  and  the 
ila^  lo  In?  frry  cunslaot  and  se- 
itt  nl^gimia  olScea,  and  htdy  ituties^  of 
llki|l«ni  Mi^ice,  which  I  liave  too 
di»  aa  I  own  to  my  ^reat  Atrrrow  : 
tm  daniiFnra*  prevent  or  hinder 
i  iMeiMary  and  ftrrious  matters ; 
kci  j9^  vtry  card'ol  and  cir- 


A.0.  lG9e.  [1S8 

cumspect  in  all  your  actknis,  behaviour^  an^  ^ 
coil  verbal  ion,  aa  1  earue^illy  extiorieil  all  that  \ 
came  to  me. 

1  have,  i  thank  God^  a  threat  deal  of  satiftfac* 
tiow  in  my  present  HU(rt'nD»ja,  iwnA  have  tbunil  \ 
itao  evert»ince  1  hai^e  been  onder  tht?m  :    Anti  < 
blei»«ed   be  God  it  doih  cuotmn.dly  iucreafv 
upon  me.     Aod  i  do  now  lay  down  my  life  with 
all  cheeifidnesa  and  rebi^^otilion,  in  sure  anil  | 
certain  hope  of  a  retiinrfcttoo  lo  eterinil  life, 
through  our  Lord  Jestis  Christ,  through  whoa*  1 
merits  alone  i  hope  for  the  pardon  of  my  ains^ 
and  the  sahation  of  my  souK  •  i 

And  so,  U  Lord  1  inlo  thy  hands  I  comtnen^* 
my  sjiirK  ;  Cor  tliou  hast  re*keu»ed  me,  G.^ 
Lord  i    thou  God  of  Uw\\\  \ 

And  1  do  heartily  aud   humbly  lieseeeh  lh#. 
Almighty  Gmt,  and  my  most  gnieioua  Fathef^ 
to  for^^ive  and  bie&4  this  amfol  natioti  \   dehvep  I 
it  Jroni  the  jfuittof  relwtlioii,  blood,  and  perjury, 
thiit  i^  now  oi»  all  suk-:^  more  than  ever,  auti 
frinn  all  those  other   heinous  sina  which  cry 
aloud.    Prcsene  ft  ml  hfesa  this  Church.    Com- 
fort our  di8tlc^^sed  kinijj" ;    restore  him  to   hit  I 
ri^ht,  and  his  niiHed  subjects  to  their  allegi- 
ance :  hieas  aUo  his  royal  consort,  our  g^racioti^ 
queen  Mary  j    \m  royal  lii^hne&s  the  prince  «<f* 
Wales,  that   he  may  grow  in  stature,  and  iq 
favour    with    God    mid   man;     sup|H>rt  auj^ 
streijg-then  all  those  thatijuliei'  in  any  kind  for  a 
(food  cause;    give  them   patienee    under   all  I 
I  heir  affiicliim^,  and  a  happy  deliverance  out  o#] 
them.     Forgive  alf  mine  eneiuti^s. 

PuiiJon  u^y  former  jie^lecl  and  temissneiiM  ti 
religious  worship,  and  holy  dutifs,   and  all  tha  ' 
sinf  1  hitve  hern  ^oilty  oftolhi$i  very  inomenL 
CotisidtT  my  coiitritioD,  accept  my  icars ;  an4 
now  thou  art  pleased  to  lake  me  hcnee,  tiikcme  ' 
into  thy  favour,  and  grant  ihut  my  soul  may  be  ' 
^vilboul  s[m%  prespuied  unto  llice,  throng^h  the  ' 
meriU  of  thy  most  dearly  beloved  Son,  Jeaui 
Chiist  our  Lord.    Amcn^        John  FftEiND. 

8ia  Wri^UAM  Parkyn&'s  Paper. 

It  h'4ih  nol  l>eett  my  custom  lo  use  many  word%  i 

and    I   slull  not   be  \m\f^  upon  this  occasion^ 
biiving  btisiue^s  of  much  ;;reater  conaetiuenc© 
to  fmploy  my  thought*  upon.     1  thank  fiod  [ 
am   now  in  a  \\\\\  di»po«:ti  >n  to  charily,  and 
thri'etbre  shall  mAi^  no  com  idnints,  either  of] 
the    liard!»hi|ifi    of    my    trial,    or    any    other  I 
rigours  put  ujwn  me.     However,  one  circnTii^  i 
Btaoce  t  think  myself  obliged  to  Liioutioti,     ft- 
wai  !»w«^irfi  again'it  me  by  Mr.  J^'ortcr,  tbol   | 
hud  tH« ntil  to  him  I b%l  1  had  iien  and  read  a 
cotunui>>.ion  from  tbo  kmg  to  levy  wo«  upcm  ^ 
the  person  of  the  prince  of  Orange,     Now,  I 
must  tleclare,  thai  the  tenonr  ol  the   king'f  ^ 
commiMion,  %vhich  I  saw*  was  general,  and  ' 
directed  to  all  his  loving  suh^iects,  to  raise  and 
levy  war  against  the  prince  of  Orange,  and  hit 
ailhii'entH;   and  to  seize  all  forts,  caailes,  ^c, 
which,    1  suppose,  may  be  a  customary  form 
of  giving  authority  to  make  war  ;    but  I  must 
cord'ciifi  1  am  uot  much  acqnaintetl  with  mattert  J 
oi  that  nature:  but  as  for  any  conimiaiioti  pai^  ^ 


fis9] 


8  WILLIAM 


I  ^enlarly  leTetlcd  against  ibe  person  of  Ibc 
[  prince  ol'  Orftiigej  1  u^itlier  saw  oor  hctird  of 
I  may  sucb. 

It  i$  ime,  I  was  )>i-iv3'-to  tbe  d«9ig^ti  upon  Ike 
I  Prince,  hiu  waA  nutlu  «ct  in  it ;  and  am  fully 
^sattsIieJ  ttiat  very  few,  or  none)  knew  of  it  t>ut 
those  who  ufiiferuKik  tc»  do  it. 

I  freely  atknowicflpt*,  and  think  il  for  my 
rlioiioor  to  say » lliul  1  was  entirely  in  ihe  ii]i«re.<rt 
|i>f  the  king,  h^iti^  altrav^  firmly  pcrsnaded  of 
fthejnstice  of  bis  cause*;  nud  I'lookei)  npon  ii 
I  BR  my  dnty «  both  as  a  «ul  ject,  and  an  English* 
I  suan,  to  ^humi  hhu  in  tlie  recovery  of  bis  Ibrone, 


Trial  of  Amhro$e 


wbicb  I  believe  bim  to  be  deprived  ofcr>nti 
to  iill  lig^ht  and  jutitice ;  taking  tbe  lawt 
con&tituiiunif  i^f  my  cHJuntry  lor  my  guide. 

As  liir  n  lt£;ion,  J   Ji«e  in  the  commnuinn  01 
tbecbnn:b  orEngUnd^  m  \tbicb  I  H'aseducalifl 

And  ns  1  freely  foiijpive  all  tbu  world,  m  wb^ 
crer  I  may  any  ways  bare  iujured,  1  b 
ask  tbeai  pardon,  Wilua.m  P«\aEVjK 

Jeremy  Culberf  a  Nonjurin^  Minii 
piibliul  V  absolved  tbe  in  at  tbe  $^alIowa,  I 
wb it'll  tliey  were  executed  acix>rdii»g  to  I 
seuience. 


J8G*  The  Trial  of  Ambrose  RookwooDj  for  High  Treason :  At 
Sessions  of  Oyer  and  Terminer  for  the  County  of  iMiddk: 
sitting  in  the  Court  of  King's-Bench  at  W^almiosl 
8  William  III.  a.  dv  I696- 


.  HE  Court  h^tmq  sat,  at  wbit-li  were  present 

the  lord  t  biff  ju^irice  Holt,  tbe  lord  ekief  juslice 
Trebv,  Mr.  justice  Nevil,  Mr.  justice  Powell, 
Hiul  Mr,  jnstir:e  Eyre ;  tbe  Court  proceeded  in 
IbiH  manntT : 

CL  ofAr.    Cryer,  make  proclamaiion. 

Ctyer.  Oyez^  oyez,  oyez  :  All  manner  of 
persons  ibtil  buve  mly  ihin*^  more  to  do,  at  tliis 
Sessions  of  Oyer  and  Terminer,  bolden  for  tbe 
counlv  of  Mialdlesex,  itruu^  near  and  give  your 
MtenJanoe.     God  save  the  kiug^* 

Tben  tbe  Grand  Jury  were  called  over,  and 
tbe  a |iuea ranees  marked,  and  witnusaes  beiag 
Bworo  rn  court,  to  give  evidence  to  them  upon 
a  bill  of  indictment  ag^ainst  Alexander  Knijarht- 
ley,  ibey  in  a  little  lime  ailer  wiibdrew  to  bear 
ibe  cvi deuce. 

Then  ll»e  keeper  of  New^te  was  ordered  to 
bring-  his  jirisoiiers  to  tbe  liar,  (which  he  did)  ; 
to  wit,  Robert  Loivick,  Ambrose  Ilookwood, 
and  Charles  Cranburne;  who  were  thus  ar- 
rajgued: 

€f*  0fAr.  Robert  Lowick,  bold  up  thy  hand, 
(which  be  did) ;  Ambrose  Hook  wood,  bold  np 
thy  hautl.  (which  be  didj  j  Charles  Cranburne, 
hold  up  thy  hand,  (Hincb  be  did.) 

You  stand  indicttnl  in  the  connty  of  Middle- 
sex, by  the  names  of  Robert  Lowick  of  tbe 
parish  of  St,  Paul  Corcnt-^anleo,  in  tbe<x>nnty 
of  Middlesex^  gentleman  ;  Ambroae  Rook  wood 
of  Ibe  fiume  parish,  gfeotleman ;  and  Charles 
Cranburne  of  the  same  parish  and  county,  yeo- 
man ;  for  that  you,  to^ethtjr  with  one  Christo- 
pher Knighlley,  of  tbe  same  parigb  and  coun- 
ty, genlieman,  not  yet  taken  ;  not  having  tbe 
I  ear  of  God  in  your  hearts,  nor  weighing  tbe 

•  See  Holt,  633,  Easi'a  Pleas  of  the  Crown, 
c.  2,  «.  7.  16*  48,  49,  50,  S?,  and  tbe  autho- 
iTitief  there  cited.  See,  also,  in  this  Coftcciion, 
the  Trials  of  the  Regicides^  reL  3,  p*  947, 


duty  of  your  allegiance,  but  beini^f  moved 
reduced  hy  the  instigation  of  the  devil,  as 
tmitorit  against  the  utust  serene,  intist  Mil 
oua,  most  clement,  and  most  excellent  _ 
our  sovereign  lord  WiMiamthe  3d,  by  ihe^ 
of  God,  king  of  England,  Scolhnd,  Fraix* 
Ireland,  dttender  of  the  fiutb,  &cc.  yooj' 
pre  me,  true,  Tig-htful,  lawful,  and  uodoiil 
lord,  the  cordial  luve,  atnl  true  and   due  i 
die  nee,   fidelity   and   atlemance,    wtiicti  ef 
suliject  of  our  said  lord  me  king  that  now  i« 
towards  him  our  said  bird  the  king  e^hould 
and  id  right  ought  to  bear,  witbdrawiii|r, 
iiiterly  to  exlingnish^  iuiendioi^  aud  con 
aud  with  all  your  strength   resolving, 
ing,  and  conn  pi  ring  the  govern  meut  #r 
kingdom  of  Eugbnd,  under  him  oui* 
vereign  lonl   the  king  that  now  is,  of 
duly,  bajiptly,  and  well  estuhliahed,  at 
to  subvert,  ebauge,  and  alter,  %&  also  oiir 

I  lord  the  king  to  dealb  aud  tinal  d 
tmt  aud  bring,  and  kis  faithful  suhy 
freemen  of  this  kingdona  oi'  England, 
terable  and  most  mi*»eruble  t>ervjtude  to  Li 
tbe  French  kiii^  to  subjugate  and  iuthral, 
lOtb  day  of  February,  in  the  seventh  year 
the  reign  of  our  said  Hovereitcn  lord  ttle  ki 
that  now  is,  and  divers  other  days  and  times 
well  before  a^j  alter,  at  the  ptirinb  of  8t.  P| 
Coveot*£Tarden,  aforei»aid,  )u  the  county  i 

I  saiti,  falsely,  maliciously,  devdi&hly,  and 

I  tonmsry,  did  com[>a&s,  inmgine,  and  ooulrij 
resolve,  design,  and  intend,  our  baid  lord 
king  thai  now  ist,  to  kill,  slay,  and  murder, 
a  miserable  shiiigbter  auKiug  the  faithful  % 

jecta  of  our  snid  lord  the  kmg,  throughout 
whole  khigdom  of  England,  to  make  ;ind  cii 
and  the  Huine  your  most  impious,  wicked, 
devilish  treasons,  nud  traitorous  compi 
eonlrivanrcs,  and  purposes  aforesaid,  to  fi 
perfect,  and  bring  lo  effect,  you  tbe  said  Rod 
Lowick,    Ambrose    Rook  wood,    and    Chi 
CraQburne^  tojj^ther  with  tbe  satd  Cbristo^ 


jects,! 


Jbf  High  Treasort^^ 

,  mmi  werj  many  otber  false  traitors, 
rs  unkiMmii,  afterwards,  to  wit,  tbe 
4mj  of  Feb.  iu  tbe  year  abovesaid,  at 
afuresaid,  in  tbe  county  aforesaid, 
oibers  days  and  times,  as  well  be- 
sr,  tbere  and  elsewhere  in  tbe  same 
bielY,  malidousljr,  advisedly,  secret- 
namj^  and  witb  force  and  arms,  did 
poae,  treat,  consult,  consent  and 
I  our  said  lord  tbe  king^  that  now  is, 
I  wait,  and  gnile,  to  assassinate,  kill 
!r ;  and  th£  execrable,  horrid,  and 
assassination  and  killing  the  sooner 
,  sod  perpetrate,  afterwards  (to  wit) 
Isj  and  year,  and  divers  other  days 
at  the  parish  aforesaid,  in  tbe  county 
traitoronsly  did  treat,  prop<ise,  and 
tbe  ways*  manner,  and  means,  and 
ad  place,  where,  when,  bow,  and  in 
ler,  our  said  lord  tbe  king,  so  by  Iv- 
t,  the  more  easily  you  might  kill ; 
Bsent,  a$;nree,  and  assent,  that  forty 
or  thereabouts,  whereof  the  said 
!r  Knigbtley,  you  tbe  said  Robert 
Ambrose  mokwood,  and  Charles 
'y  sboukl  be  four ;  and  erery  one  of 
foosly  took  upon  himself  to  be  one, 
,  mittkets,  and  pistols,  chargfed  with 
r  and  leaden  bullets,  and  witb  swords, 
4  otber  weapons  being  armed,  should 
,  and  lie  in  ambnsb,  our  said  lord  the 
I  coach  beiniif,  when  be  should  go 
isvade,  and  that  a  certain  and  com- 
fllier  of  those  men,  so  armed,  should 
begnanlsof  our  said  lord  the  king* 
fing  him,  and  being  with  him,  and 
bt  witb  them,  and  overcome  them, 
crs  of  the  same  men  so  armed,  our 
ie  king  should  assassinate,  slay,  kill, 
rr ;  and  you  the  said  Robert  J^wick, 
Etrtokwoud,  and  Charles  Cranhume, 
mb  the  said  Christopher  Knigbtley, 
s,  and  all  tbe  traitorous  intentions, 
uul  eontrivances  afuresaid,  to  execute, 
falfil,  and  bring  to  effect,  afterwards 
be  aforesaid  lOtli  ilay  of  February,  in 
lb  year  abovesaid,  at  the  parish  afore- 
le  county  aforesaid,  divers  horses,  and 
ij  arms,  gtms,  pistols,  swords,  rapiers, 
r  weapons,  ammunition  and  warlike 
id  military  instruments,  falsely,  ma- 
secretly,  and  traitorously  did  obtain, 
ler  together,  and  procure,  and  cause 
gbl,  Jitained,  gathered  together,  and 
vidi  that  intention,  then  in  and  about 
tiMe,  horrid,  and  execrable  assassina- 
ig,  and  morder  of  our  said  lord  the 
BOW  b,  as  sibresaid  to  be  used,  em- 
ai  bestowed  ;  and  the  same  premisses 
sifeiy  and  certainly  to  execute,  dq^ 
m,  tbe  aforesaid  Christopher  Knight- 
•se  Edward  King,  late  of  high  trea- 
SBlriviBg  and  conspiring  the  death  of 
sid  tbeliinir  that  now  is,  duly  con- 
I  aUaintcd,  by  tbe  consent  and  agrec- 
ivcfsoT  the  traitors  and  conspirators 
.  As  nkl  10th  dftjr  of  February,  in  the 
f 


A.  D<  icde. 


[Uf 


seventir  year  abovesaid,  went  and  came  to  tb« 
place  proposed,  where  such  intended  assaesina* 
tion,  killing,  and  murder  of  our  said  lord  tbs 
king  by  lying  in  wait,  should  be  done,  per- 
formed, and  committed,  to  see,  view,  and  ob- 
serve the  convenience  and  fitness  of  the  same 
place  ibr  such  lying  in  wait,  assassination,  and 
Killing,  there  to  be  done,  performed,  and  com- 
mitted: and  that  place  being  so  viewed  and 
observed,  afterwaras,  (to  wit)  tbe  same  day 
and  year,  their  observations  thereof  to  several 
of  the  said  traitors  and  conspirators  did  relate 
and  impart,  (to  wit)  at  the  parish  aforesaid,  in 
the  county  aforesaid:  and  you  the  aforesaid 
Charles  Cranburne,  the  same  day  and  year, 
thei«,  in  order  the  said  execrable,  horrid,  and 
detestable  assassination,  and  killing  of  our  said 
lord  tbe  king,  by  tbe  traitors  and  conspirators 
aforesaid,  the  more  readily  and  boldly  to  exe- 
cute, perform,  and  commit,  advisedly,  know*' 
ingly,  and  traitorously  did  bring  and  carry  be- 
tween divers  of  those  traitors  and  conspirators, 
forward  and  backward,  from  some  to  others  of 
them,  a  list  of  the  names  ofdivers  men  of  those 
who  were  designed  and  appointed  our  said  lord 
the  king  so  as  aforesaid  by  lying  in  wait  to  kill 
and  murder ;  against  the  duty  of  the  allegiancs 
of  tlie  said  Christoplier  Knigbtley,  you  the 
said  Robert  Lowick,  Ambrose  Rookwood,  and 
Charles  Cranburne,  and  against  the  peace  of 
our  said  lord  the  king  that  now  is,  his  crows 
and  dignity,  and  against  tbe  form  of  tbe  statute 
in  such  case  made  aud  provided.' 

How  sayest  thou,  Robert  Lowick  ?  Art  thoa 
guilty  of  the  high-treason  whereof  thou  stand- 
est  indicted,  or  not  guilty  ? 

Lowick.    Not  guilty. 

CI.  of  Ar,  Culprit,  How  wilt  thou  be  tried? 

Lorrick,    By  God  and  my  couutrv. 

CI,  of  Ar,  God  send  thee  good  deliverance. 
How  sayest  thou,  Ambrose  liook wood?  Art 
thou  guilty  of  the  high-treason  whereof  thon 
standest  indicted,  or  not  guilty  ? 

llool:Tcood,    Not  guilty. 

CI.  of  Ar.  Culprit,  How  wilt  thou  be  tried  ? 

Rookicood,    By  God  and  my  country. 

CI.  of  Ar,  God  s«?nd  thee  good  deliverance. 
Charles  Craohiirne,  How  sayest  thou?  Art 
thou  guilty  of  tbe  high-treason  whereof  thou 
standest  indicted,  or  not  guilty  ? 

Cranburne,    Not  guilty. 

CI.  ofAr.   Culprit,  ilow  wift  thon  be  tried  ? 

Cranburne.    By  God  and  my  country. 

CL  ofAr.    God  send  thee  gobd  deliverance. 

Cranbt&ne.  My  lord,  I  desire  your  lordsbi|» 
would  ^rant  me  the  favour  for  my  wife  to  come 
to  me  m  private,  aud  that  1  may  have  pen,  ink, 
aud  paper. 

L.  C.  J.  (sir  John  Ho!t).  Pen,  ink  and  paper, 
yon  must  have  ;  but  as  to  the  other,  we  mnal 
consider  of  it.  KcepiT  of  Newgate,  What  has 
been  usual  in  those  cases?  ?■ 

Keeper,  My  lord,  we  let  nobody  coicSf  1lo 
them  in  private  hut  their  counsel. 

L,  C,  J,  That's  pro%ided  for  by  tbe  act  that 
allows  tbem  coansel ;  but  bas  it  been  usii»l 


tIS]  8  WILLIAM  IIL 

lieretofore  to  permit  any  body  c)«e  to  be  with 
them  in  private;  tlie  wife,  or  any  other  rela* 
tioDS  f'T^tCeeper.   It  has  not. 

L.  C,J.  It  is  very  dangerooa  if  it  should ; 
therefore  let  him  have  his  wife  oome  to  him  in 
the  presence  of  the  kee|ier. 

Cranbume.  ,And  pen,  ink,  and  paper,  I  hope, 
my  lord  ? 

L.  C.  J.  Yes,  ves,  that  you  shall  have. 

Cranbume,  Vuu  dun't  deny  me,  my  lord, 
that  1  roav  have  my  wife  come  to  me? 

L.  C.  /  No,  we  do  not,  but  she  ronst  not 
be  in  private  with  you,  for  fear  of  an  escape. 

Rookw.'od.  I  beg  the  same  favour,  my  lord, 
to  have  my  brother  come  to  me,  and  pen,  ink, 
and  paper. 

X.  C.  J.  You  shall  have  the  same  rale  \  but 
you,  kee|ier,  must  have  especial  care  whom 
you  do  [^miit  to  come  to  them,-  and  be  private 
with  them  ;  for  it  is  still  at  your  i>eril  if  any  ill 
accident  hap)>en8  by.your  indulgence  to  them : 
and  yet  it  iH  fit  they  should  have  all  that  is  rea- 
snnahle  for  preparing  for  their  defence  at  their 
trials. 

Lowick.  And  I  desire,  my  lord,  I  may  have 
my  sister  come  to  me,  and  the  liberty  of  her 
being  in  private  with  me. 

X.  C  /.  Your  friends  may  come  to  you  at 
seasouahle  times,  in  the  presence  of  the  keeper ; 
you  shall  have  any  thing  that  is  reasonaMe, 
out  the  safety  of  the  government  must  be  looked 
mftcr.  Therefore,  keeper  ofNewgate,  take  hack 
your  prisoners,  and  nring  them  here  this  day 
i€*nniglit  at  seven  o'clock  in  the  morning, 
without  any  other  order. 

[They  staid  at  the  bar  about  half  an  hoar, 
the  Judges  consulting  among  themselves  about 
the  precept  for  the  netty  jury  upon  a  late  act 
of  parliament,  whicli  has  appointed  six  days 
for  the  jury  to  be  summonea  before  they  ap- 
pear to  try  any  cause,  and  upon  ti>e  last  Act  in 
Relating  Trials  in  Cases  of  High  Treason  ; 
which  requires  tbnt  .the  prisoner  shall  have  a 
copy  of  the  pannel  of  the  jur^y  didy  returned, 
at  least  two  days  before  his  trial.] 

Then  the  Prisoners  were  carried  away,  and 
the  Grand  Jury  withdrew  to  consider  of  the 
evidence  against  Knightley,  and  in  a  quarter 
«f  an  hour  came  back,  and  being  called  over, 
delivered  in  a  bill  to  the  court. 

CI.  qfAr,  Gentlemen,  you  are  content  the 
court  shall  amend  matter*  of  form,  or  false 
Latin  in  this  indictment,  without  altering  any 
matter  of  substance  without  your  privity. 

Jury.   Yes. 

CI.  ofAr.  Then,  gentlemen,  you  may  go 
for  this  time;  and  you  are  to  take  notice  if 
there  be  occasion  at  any  time  to  call  you  to- 
gether, you  shall  have  suthcient  warning  given 
to  you  beforehand.  This  is  Billa  Vera  against 
Alexander  Knightiey  for  high  treason. 

f  ihen  the  Jwlgea  resumed  the  debate  among 
themselves,  and  at  last  resolved  tliat  there 
tAouM  go  three  several  Venires  for  the  petty 
jwjy  rttnmiMe  thin  day  at^imights  one  to  t^ 


7)iial^  Ambrose  Rdoknood, 

between  the  kmg  and  Robert  Lowick»  I 
cond  to  try  between  the  king  and  Ai 
Rookwood,  and  a  third  between  the  ki 
Charies  Cranbume;  because,  though 
diotment  be  against  them  jointly,  yet  it 
several  offence  in  every  one  of  them,  sc 
might  sever  in  their  challenges,  auti  thai 
be  troublesome,  and  therefore  it  waa  t! 
best  to  sever  them  in  their  triab ;  and 
fure  the  court  adjourned  for  an  hour  or 
thing  more,  while  the  precepts  for  th 
were  preparincf,  and  according  to  the  ai 
ment  met,  and  signed  and  sealed  the  pr 
and  then  adjourned  the  Sessions  of  Cly 
Terminer  until  this  day  se'nnight,  at  m 
the  morning.] 

Die  Martis  Vicesimo  primo  Aprilis, 
Regni  Regis  Williehni  Tertii  < 
Annoq;  Dom.  1696. 

The  court  sat  about  eight  o'clock,  al 
were  present  a  great  number  of  noblemi 
persons  of  quality,  who  were  in  the  €( 
si<Hi,  and  seven  of  tlie  judges ;  to  wit,  tl 
chief  justice  Holt,  the  loiS  chief  juatice 
tlie  lord  chief  baron  Ward,  Mr.  justice 
Mr.  justice  Powd,  Mr.  juatice  Eyre,  ai 
baron  Powis. 

CL  ofAr.   Cryer,  make  prodamatioii 

Cryer.   O  yes,  Oyea,  O  yea.     All  i 

of  |»ersons  that  have  any  thing  more  t«i 
this  Sessions  of  Oyer  and  Terminer,  adj 
over  to  this  day,  draw  near  and  give  yi 
tendance.  And  God  save  tlie  king. 
CL  ofAr.  Cryer,  make  proclamatioi 
Cryer,  O  yes.  Sheriffs  for  the  coi 
Middlesex,  return  the  precepts  to  you  di 
upon  pain  and  peril  will  fall  thereon. 

The  Uoder-Sberiff  returned  the  Prcc 

CI.  ofAr,    Mr.  Baker,  pray,  whom 
intend  to  begin  with  P 

Mr.  Baker,  With  AmbroHC  Rook  woo 
Cl.qfAr,  Cryer,  make  proclamation 
Cryer,  O  yes.  You  goo<l  men  of  the 
of  Middlesex,  summoned  to  appear  he 
day,  to  try  between  our  sovereign  lo 
king,  and  the  prisoners  that  are,  and  a 
at  the  bar,  answer  to  your  names,  as  yo 
be  called,  every  one  a't  the  first  call,  an 
your  issues. 

The  whole  pannel  was  called  over,  a 
appearances  of  those  that  answered  rec 
and  the  defaulters  were  again  called  ovc 

CI,  ofAr.  Keeper  of  Newgate,  set  Al 
Rookwood  to  the  bar,  (which  was  done) 
the  prisoner  at  the  bar,  Ambrose  Rool 
those  men  that  you  shall  hear  called,  ai 
sonallv  appear,  are  to  pass  between  oui 
reign  lord  tne  king  and  you,  upon  trial  ( 
life  and  death  ;  if  therefore  you  vrill  chi 
them,  or  any  oftliem,  your  time  is  to 
unto  them  aa  tliey  come  to  the  book 
sworoi  Jbefore  thej  be  awom. 


foir  High  Treason^ 

rthatmmfm  Sktmtr,  If  your  lordmlnji 
m  hmte  4  dtin^  or  two  to  propose  li> 
^;ip*  in  reapect  of  Oie  trial  tliis  day : 
lotfrrifi  M^  U^  your  fi?our  for  n 

af«  Maifiied  of  cotjiis^],  In  pur- 

lyf  paninment,  uml  we  Itope 

:h  we  tiimU  nay  in  defence  of 

be  itnputed  to  ogrsi'lveit.     I 

14  liave  Wn  a  rrAection  tipan 

cuiU  ^our  t«»rc]ihip8'  ju^tice^  H 

yte  klintifd  havt>  rrfused  to  »p- 

r,,. .     Km^ji  a  public(\lioti  in  the 

i  yowr  candor  taw Bril$ 

I  '!  upaa  othtT  occiuiions^ 

mn  b(*  no  reaiion  fur  such 

1    \%'4\e  n(ni¥  ;  for  we  must 

rim  liiive  bceji  pmctixer^,  mi 

_     hm  there  wus  never  a  reijjfo 

vrijhin   the  memory  of  man, 

irsrirtf-^renrp,    soch    i*»«iuew(i    of 

rrOiil   ihf   court  to 

Ud\\i  hvvn  ill  tiiis. 

tji  and  liberty  of 

(1  to  (he  bur,  and 

Ixtuji  mr  lilt!  Kjtme. 

W«  oome  not  bett*  to  coiinieoance 
PM  for  which  the  prisioaer  standi  ne- 
dw|mcicsples  upon  which  such  prac- 
le  prcMimti)  to  be  fouotled  ;  (or  wc 
IMft  cillier  reiitpatifi  or  civil,  ttiat  can 
'9XCmB^*m.  But  the  aul  of  par- 
mo^   warmnted   the  of 

ir  prfWMiK  Hccii^ed  to  j  i  ^ce 

litbooc  y<'Ur  l<»rd&bip  ^lU  (iittt  us 
•Iw  w  Uat  ohjectioni  u  c  con  on  their 

Look  3fe»  sir  B.  Shower,  go 
'^ilijeetloiif ;  Id  us  heur  whut  you 

My  k»rd^  It  appcari  to  be  a 
this  act  of  padiatnentf  ^he- 
I  be  tried  tiiis  day  :  »nd  if  it 
Itopep  ihnug'h  itslR«uld  nut  Itarc 
ih  the  court,  that  ue  upprehend 
ill  yoiir  lordship  will  excuse  nj^  and 
(tonlmff  to  your  judgment,  1  ue  act 
Tlifti  nil  that  ahailt  beaceuiied  and  iti- 
r  higb'imi«on,  whereby  uny  cgrrup- 
Mdtiiay,  or»haiI  be  raaJe  io  noy  such 
fff  oflrnden,  or  to  any  the  heir  or  lieirs 
Id)  o&mler  or  offeodcf  14,  or  for  mis- 
tvcftkonf  ah  all  htive  a  irue  copv 
^  leat ;  and  afterward*  all  all 
uf  the  jurors  who  are 

^  feturned  hy  tlie  sheriff  and 

Ima  tM0i  I  And  efery  one  of  them  so 


iliiitiB'ii 

ii^rbatb 

I  lliai  tiuB  tnii 
^tUttftmutiiif 


i.ili  he  tried  for  the 
'Mil  please  to  cast 
,  nud  it  will 
\ .  and  that  is 
Uw.  And  it 
jpprehend  it» 
fit  on  at  this 
iiiuldbe&oas 


I  worJa,  but,  aa  we  take  it, 


A,  D.  1$D&  [lift] 

the  mtetit  and  menntng  of  the  act  of  puritan 
too  are  for  us,  that  there  ought  to  have  been  i 
copy  of  the  panne)  after  the  return  two  days  I 
fore  the f riaL  For  in  the  Hrst  place,  my  h>fd,  th« 
words  are  plain  :  it  must  be  a  copy  ot  the  pnn-j 
neJ  duly  returned  by  the  sheriff.    Now,  though  j 
it  be  o'copy  of  the'  array  of  the  psmnel  which 
we  have  delivered  to  us»  yet  it  is  not  a  copy  of 
tlje  pannel  of  the  juroi-s  return etl ;  for  it  vi  n<i 
retiu'n  till  it  come  into  court.     And  the  kin^^^AJ 
counsel  must  admit,  that  iu  ihe  case  of  all  writt 
rcturuahle^  it  cannot  be  said  that  there  h  a  re«^ 
turn,  where  there  is  a  wririnjy  upon  Ihe-bacU^ 
or  a  label  annexed,  till  it  be  actually  returnrdJ 
into  court.     As  in  the  case  of  a  Fieri  raciaStf 
or  a  Maudauiua,  an  action  for  false  return  can^ 
not  lie  till  the  urii  he  actually  returned,     For| 
such  uction  must  be  brought  into  the  county  (. 
MiddleseXt   where  the  court  resides,    befbr 
i^hom  the  return   Is  made,  and   not  in   thfl 
county  where  the  shciiff  li%fd  that  ms^le  tha 
return  ;  for  it  h  not  a  return  till  filed  in  coun 
Now  here  the  words  of  the  net  are ;  *  Ueshalll 
*  hare  a  ct>py  of  the  pinuiel  of  t!ie  jurori?  whfl 
'  are  to  try    hiui,  duly  relunicd  hy  the  shenf 
*■  two  days  before  the  trial.*     Now/we  humhJyJ 
itwist  that  the  wonls  *  duly  returned*  ma-it  I 
antecetSent  to  the  having  the  copy,  or  else  hi 
caun<Ubesnid  to  Viave  a  copy  of  the  pannel 
duly  returned-    The  act  of  parliament  does  no| 
$ay  which  shall  he  duly  retuiued;  and  thcre« 
fore  there  do^^s  arise  a  doubt,  whether  yoiti 
lordship  will  not  direct  us  to  have  a  copy  afle 
the  return  made,  which  is  hut  this  dav* 

Mr,  Fhipps.  If  your  lordship  pVaaea 
spare  mo  a  word  of  the  same  ^idc :  We  lake  if^ 
that  by  this  act  of  parliament  the  Jury  must  I 
duly  returned  before  the  psiruiel  is  delivered  tq 
nn.  Now  the  returu  is  the  answer  that  is  in<; 
doi'setl  upon  the  writ  with  the  pantiel  annexe 
and  delivered  into  court;  for  the  return  ia 
the  court,  and  till  it  be  dehverei!  into  coun 
it  cannot  properly  be  said  to  be  a  relur ., 
We  acknowlt'dge  ihe  copy  of  this  pannel  h:^^ 
been  delivered  unto  us,  two  or  three  oayi 
ago.  But  the  Venire  beinsf  not  returned  filj 
to-day,  we  think  we  have  not  a  copy  of  the 
pannel  within  the  intent  oft  and  according 
to  the  act  of  parliament.  And  I  desire  to  pu 
your  lordship  this  caste :  this  act  of  parlia^ 
ment  df^es  likewiae  provide,  that  the  priijcmei 
should  have  a  ^^y  of  hi^  indictment  fivq_ 
days  before  his  trial,  to  enable  him  to  consul! 
with  \m  crnipsel  how  to  plead  and  defend  hiD 
self ;  suppose  then  a  copy  cif  a  bill  that  k  in^ 
tended  to  be  presented  to  the  errand  jury,  be  ile 
livered  to  the  person  accused  tive  ihys  beforj^ 
the  tfrand  jury  are  to  meet,  and  they  after* 
w  ards  meet,  and  find  it,  and  the  party  is  troughs 
immediately^  and  arraigned  upon  it:  this  js  f[ 
true  copy  of  the  indictment,  yet  certainly  Uii 
intent  of  the  ot-*t  of  paHiament  is  not  answered- 
for  it  waa  not  a  true  copy  of  the  indictment  a| 
the  titne  it  was  delivered^  And  I  take  \\u% 
caae  to  be  under  the  same  reason.  This  is  1^0^ 
a  (>annel  duly  returned,  till  now  ;  and  theretbri 
by  eoujecjucnce  we  have  pot  tW  adfantv^^v 


8  WILLIAM  in. 


I 
I 


I 


I 
I 


147] 

that  this  »cl  ofpnHiAmeiit  iDtcnded  to  give  us; 
for  Mhich  reason  we  humbl)^  apnrehc«iJ  we 
<«ight  not  to  be  tried  to-day  ;  which  we  suUmit 

to  v«»iir  [orthhip. 

L.  C,  X  What  say  you  to  it,  Mr.  Attorney  ? 

Alt.  Gcri.  (sir  Thomas  Trevor).  My  lord, 
with  suhmissioii,  this  objection  will  receire  a 
very  pbin  ftnswer.  If!  understand  it  arii^bl^ 
they  say  thul  they  ougrht  lo  have  a  copy  of  the 
paniivl  ik(\rr  it  is  relurned^  nnd  tliat  it  cannot  be 
mu\  to  be  duly  delivered,  accordiusf  to  the  pro- 
vision  in  Ih'm  act  of  parliniTicnt,  till  atier  the 
Vetiiro  Fat  ra*  be  duly  returned  win  th*'  court, 
and  ttu  11  they  are  to  have  it  two  days  before 
liiey  are  tried.  They  say  t!ie  Venire  Paoins 
1$  returned  but  to-day,  and  so  the  copy  deli- 
rered  to  ihem,  is  not  pui^uaut  to  the'iict  of 
parhament ;  ami  so  they  cannot  be  tried  to  day  : 
this  I  take  to  (je  the  oytjpction.  But  with  smi- 
n»ission,  my  h>rd,  it  will  be  plain  both  by  the 
Wi>nls  of  the  act,  and  the  reason  and  intention 
of  it,  that  there  is  no  occasion  at  all,  nor  no 
necessity  of  baring-  the  writ  returned  before 
the  copy  of  ibe  pannel  bt*  delivered.  The  wonfs 
of  the  act  of  parliament  iu  p  these :  ^  Tha!  every 

*  person  and  persons  w  ho  shall  be  accused,  in- 
•^  dictetl,  and  tried  for  treason,  or  misprision  of 

*  treason,  aiier  the  *2Mh  of  March,  lti9G,  shall 

*  have  copies  of  the  panoel  of  the  jurors  who 

*  are  to  try  them,  duly  returned  by  the  sheriff. 

*  and  delivered  to  thetn  two  days  before  they 

*  be  tried/  Now,  first,  tny  lord,  J  think  it  is 
apparent  what  the  menniDtj  and  desig^i  of  tlie 
act  of  parliaoieat  was,  thai  the  prisoner  should 
know  two  days  before  the  trial,  who  were  the 
jury  that  were  to  pass  upon  him,  that  he  might 
have  an  opportunity  lo  consider  how  he  sho»ihl 
make  his  challenges  as  he  thoug;ht  fit,  and 
time  to  enquire  into  the  qualifications  of  then], 
that  if  there  were  any  particular  ground  of 
challenge,  he  ruiglit  nut  lose  tliat  benefit ;  so 
that  if  he  has  a  copy  of  the  pannel  arrayed  by 
the  sberiff,  which  is  afterward  returned  by  the 
iherifTinto  court,  and  there  is  no  variation  of 
that  pannel  a  Her  wards  ;  then  cerloinly  the  end 
and  intent  of  the  act  is  entirely  pursued  :  for 
by  that  means  the  prisoner  liws^  the  names  of 
all  the  jury  returned,  and  ivreaAerwards  called, 
and  has  a  full  opportunity  of  making  such 
challenges  as  he  thinks  fit.  And  as  tho  reason 
and  intent  of  the  act  is  answered  by  this  con- 
struction, so  the  very  words  of  the  act  are  an- 
swered :  for  it  is  not  said  in  the  act,  that  he 
Bhall  have  a  copy  of  the  pannel  afler  it  is  return- 
ed, but  itissaiJ  a  copy  of  the  pannel  duly  rr- 
furuftd  by  the  sheriff;  ilrat  iij,  when  the  sheriff 
ba&^miyed  a  pannel,  then  he  is  to  have  a  copy 
of  that  pannel;  and  if  afterwards  the  sheriff  re- 
turn the  same  pannel  into  court,  is  not  this  a 
copy  of  the  pannel  duly  return etl  ?  With  sub- 
mission it  is,  and  sufficient  to  answer  both  the 
words  and  intention  of  the  act  of  jiarliament. 
It  is  true,  tny  lord,  if  the  act  of  parliament  had 
taid  he  should  have  a  copy  of  tne  pannel  after 
It  was  reiiirneJ,  then  we  could  not  have  said 
but  that  the  objection  would  hold.  But  when 
tke  words  are  g^eDeral,  and  it  h  most  reasonable 


Trial  qf  Ambrnsc  Rookwoodf 

to  be  interpreted  that  the  copy  is  to  he  delivff( 
when  the  arrny  is  made,  because  that  answi 
the  intent  anil  end  of  the  act  of  parUnme 
which  was  to  enable  the  prisoner  ta  mnVf  1 
chttllengfes,  we  take  that  to  be  sufficient; 
if  anotiier  interpretation  should  he  midfj 
would  render  the  trial  in  such  ctv- 
all  the  mischiefs  in  the  world,  ami  - 

firacticable  that  any  person  should  be  tried  ^ 
east  it  would  introduce  a  new  method  of  i 
ceedingfs  that  nerer  was  practised,  nor  <tugn 
be  introduced,  unless  ibis  act  of  parliaineiKj 
express  words  had  appointed  and  cou 
such  a  new  method  ;  and  we  siip|i 
lordship  will  nevpT  make  any  auch  co 
tion,  that  the  art  int tended  a  new  method, 
less  expressly  declared  ;  for  if  it  were, 
would  hate  it,  that  the  copy  of  the  pan 
not  to  be  delivered  till  after  the  returitl 
writ,  then  the  prisoner  cannot  be  tried 
the  return  of  the  writ ;  for  upon  the  retu 
ihe  writ,  the  jury  must  be  hroug-hl  to  the  I 
the  prisoner  must  be  brought  to  the  btr, 
adjourned  over  to  a  further  lime,  that  i&( 
mean  time  a  copy  may  be  delivered  to 
t  believe  that  they  can  never  shew  anyi 
dent  thtit  there  was  such  an  adjounim 
jury  of  life  and  death,  over  to  another 
a  person  to  have  a  copy  of  the  panne),  I 
him  to  make  his  challenges ;  and  eith 
must  be  the  conscqurncc,  or  else  the  jury  i 
not  ©ome  upon  the  return  of  the  Veuire  f^ 
but  there  most  go  a  Habeas  Corpora,  ^ 
prisoner  tried  ujion  that  Haheas  Gor 
first  there  Rjust  be  the  return  of  the  writ, 
the  copy  of  the  pannel  delivered,  then  IhgJ 
beas  Corpora  returnable  another  day  ;  i 
that  the  trial  must  be  had  :  but  I  belii 
can  be  no  in*»tance  given  of  a  trial  for  i 
upon  a  Habeas  Corpora.     Now  if  the  pa 
meut  htid  intended  that  they  would  not  I 
the-  copy  of  the  paDoel  delivered  till  after  1 
return  of  the  Venire  Facias,  tliev   would  c 
tainly  hnre  es:pre-ssed  aud  provided  how 
methofl  of  iria!  shouhl    have  been  ;   that  I 
that  either  the  jury  sliouM  have  been  :i<]jiiun 
over  till  anotiier  day,  or  else  brought  to  l" 
upon  a  Habeas  Corpora ;  which  is 
way  that  can  be  thought  of.    Indeed^ 
I  do  aeree,  that  if  the  sheriff  should  pfi 
copy  of  the  pannel  ^  and  afterwards  f^houl  " 
that  pannel,  though    but  in  one  na 
uoultl  not  answer  the  end  of  the  act  of^ 
ment,  because  the  prisoner  is  deprived  ( 
opportunity  of  knowing-  tin;  name  of  the 
son  that  he  so  altered,  in  order  to  his  mat 
his  challeng'es  against  him :  but  if  thc^  sh^ 
di>  return  the  same  persons  that  are  in  ( 
copy  delivered  to  the  prisoner,  then  we  do 
all  intents  nnd  purposes,  answer  the  end  4 ' 
act  of  parliament,  and  avoid  the  absurd 
struction  that  ihey  would  tnake  of  this  aCtl 
the  chang'in^  the  methoil  of  trials,  and  do' 
can  well  If  llwhat  method  should  be  piinn 
but  certairdy  if  tht?  act  of  parliament  intcn 
a  new  method  should  bepursded,  they 
have  described  and  settled  what  it  shntiltl  I 


f^  High  Tre^m* 

(dlr  Jdbn  Howies).    If  your  lorrU 

tft  «pjirr  mp  n  wonl  <^t'  the  i«anie 

:  i  hfts  been 

(trd  J  for, 

i  uLc  it,  the  ui  I  liiis  U>eii  ' 

errd  b»th  as  to  lb©  t* orils,  aoil  1 

r's  having' 

iiy  be  re- 

^  u  iiung^as  a  nfttmel 

ii<-.  sumfnoncJ,  and 

'f'fore  bis 
*  -.  ujai  Igni- 

ted fiufH- 
:  ^ts.  Cer- 
iieact  of  parliament 
■  lit  It  a  copy  of  ibe 
iirt  of  ibe  wril, 
d  that  Wfts  or- 
«|«i,  •«€  ojiv  4>4h^i  iidiiita  put  in  bill  those 
tenkftliaal  m  copy  of  before:  now,  my  tord,  1 
Aidtlibact  nf  p^trtiaimehl  mutt  be  takfii  ac- 
mgtmkt  iH*  IntanI  %iu\  meaning  of  It^  <j|-  else 
s«§Wr  ti  jTisoner^  and  hurdar 

Mt  ifctt  ir  it  sbouhl ;  this  tiot 

V^ltfsb&ii  ii.-v^c  ;i  i:<)\y\  of  bis  indictment  so 
mtm  flairs  bdbra  lii;»  trial ;  Dow  I  would  fain 
^arm  wWiilur  iWy  won  hi  have  it  cooiitrued, 
ill te  Cifrj  fItMv  mit  need  to  be  ddivereil  til) 
#v  kiBCj^Ofiil,  wtiich  oiu&t  be  if  tlicir  doe^ 
ibMt  the  act  i«  to  li«  con- 
nUnLT  t*»  ibf*  Strict  letter  of  it,  for 
in4d  V  I  of  the   issue;    what  if 

H^  ad<ctji  live  red  Ave  days   before 

jj  tti  %ial,  ihcit>g:b  nfier  imwt  joioetl,  it  is  well 
L  v*^  acctirdjoc  t<*  such  an  e^cpositian*  for 
K^VEvqninf;  nf  ilie  prittotier  i^  no  part  of  the 
H  ilk«i4  tH   it   %vii«  iW  intent  of  the  pur- 


be  ««iis  nrrui^ned, 

'      uijvJu  have 

>  lo  make 

I  ai  i>^ii  - ;  be  nii^ht 

wliicb   ft*U'r   plen 

cot  till  not   liaTe  the 

jitiarMranls  move  to 


|iQ>    til 

^iMiiirf  M  ;. 

s^'iaii^ol',  mtir  could  h< 
iW)  (lie  tiifliciifiefti,  ivliich  (If'  mi^fbt  other- 
,4mi  rraKiu  for,  »l  hp  hiul  the  copy 
•«  fntt  to  {dead,  no  Uitit  I  lake  it  the 
»W  ioAerpretetl  tivpry  H  litrt' »cc^»^liol;' 
on^ftl,  .itu)  ibo  piittotiei'  at  the 
jt>  lion  of  ihc  act,  hai 

ra/L,  i.^ui  five  or  aix  dayii 

lirian^nmrul,  aud  therelore  we  liuve 
[  tvi  ikii*  pfcti'iHine  atid  lueanin^  ot 
^4dJlcopy 
t  at  '  try  Jhiu« 

l4llly iMfintrii  LJV    iHL  -„j4  iMi,  Mliich  lfi( 

'  KvMifiif  lo  lii«  act  of  |»;ii  it.inienl. 

•^■lli^y  ««3v  tbiit  eicu  a  iO(>y  of  ll»t 

v4H»»rc  it  ^  found  would  nut  be  t^ood 

ru  I  lii\   .„<  1        I  0..1 1  is  Uuf,   hwt  tii>^  rH'si-' 


at  n^  'd  paiiucl  | 

•jfd  <  lie  jury  be  ! 

1«  lur  l^a  aWr^  it&u«i  array  aud  iH»iu* 


1696. 

plete  his  pannel  to  let  bis  bailiff  know  M^ho  must 
he  summoned ;  but  in  the  case  of  an  iu^iclioent, 
though  a  bill  be  drst  formed  by  the  clerk,  yel 
it  is  not  looked  upon  as  a  formal  indictment  ia 
point  of  taw,  till  it  be  found  by  the  jury  aH  tbeir 
vcrrdict,  and  preferred  to  the  court;  and  it  is 
not  necessary  tiiat  this  indiclme4it  should  be 
formed  for  the  jury  before  they  find  it,  for  I  hey 
are  p>roperly  to  make  their  own  presentmeuts 
thi  m^elves  \  and  the  ancient  practice  was,  that 
they  only  presented  the  fact,  and  the  matter 
was  put  into  form  afterwards  by  the  court,  and 
in  many  cases  it  \^  so  at  this  day,  aa  we  have 
had  some  instances  lately  ;  but  as  to  the  ar- 
rayinc^  of  a  pannel  it  always  was  ao,  and  always 
must  be  so  arrayed  by  the  liherifr  before  the  jury 
summoned,  and  there  is  the  dijTerence  beiweeti 
the  lairing  a  copy  of  an  indictment  and  the 
copy  of  a  pannel,  the  one  is  taken  notice  of  in 
point  of  law  to  be  necessary,  the  other  is  not. 
This  giving"  a  cop^  of  the  pannel,  my  lord,  we 
say,  ia  within  the  intent  of  the  act,  which  waa 
only  to  enable  persons  accused  to  make  their 
just  challenges,  and  that  they  may  as  well  da 
w  ben  a  copy  is  delivered  after  it  is  arrayed  by 
the  sheriff,  as  when  it  is  returned  by  the  slicritt, 
and  being*  so  done,  with  submission,  it  is  well 
done  within  the  words,  and  within  the  intent  of 
this  act  of  parliameut. 

Mr,  Contf€r$.  M  v  lord,  the  words  of  this  act 
of  parliament  are,  That  they  shall  have  a  copji 
of  the  (lannel  of  the  Jurors  who  are  to  try  them, 
duly  returned  by  the  sheriff,  and  delivered  to 
them^  and  this,  two  days  before  the  trial  t  my 
Joi'd,  that  this  is  the  pannel  of  the  sheriff  of  the 
jurors  that  are  t4.»  try  them,  as  soon  as  it  is  ar- 
rayed, has  beeu  observed  already  ;  nov^'  it  would 
be  a  forced  construction  to  construe  these  words 
that  follow,  '  duly  returned  by  the  sheriff,*  to 
be  meant,  that  a  co^y  should  be  delivered  alter 
the  jury  is  returned,  because  that  would  be  a 
delay  of  justice,  and  keeping  off  the  trial  longer 
than  Mas  intended  by  tltis  act  of  parliament, 
and  more  than  will  answer  the  end  of  thicj  law ; 
for  the  end  of  it  was  to  give  the  prisoner  all 
benefit  aud  advuola^c  of  exceptions  against  any 
ol'tho.^e  that  were  tutry  him,  and  if  ha  lias  ibia 
pannel  ttvo  days  before  his  tiial,  he  has  that 
hrnetit  the  law  intended  him.  Now,  uiy  loni, 
a!>  to  what  has  been  said  of  an  indictment,  whitib 
by  this  law,  be  ia  to  have  a  cony  of  loo,  thai 
is  plainly  quite  another  case  ;  lor  it  is  not  an 
indicttncut  till  it  {ie  found,  and  fio  answers  not 
the  words  nor  iuiention  of  the  act  till  found  by 
the  ;>rand  jury  ;  tdl  theti  it  is  not  a  copy  of  lus 
€har;;c%,  and  therefore  by  no  construction  can  it 
hf  culled  a  copy  of  the  indictment*  1  think  I 
need  mil  trouble  your  lonl'^hip  any  further  in 
this  iimitkfr,  because  thit^  objection  was  li>rea}ceii, 
and  liu&  beeu  already  cmisidcred  of  by  the  court 
upon  ihe  prisoner's  Jirraie'omeot. 

H\r  Barih,  Shoacr.  My  lord*  in  answer  to 
what  Mr.  i^olicitor  ha^  ttatd,  that  there  is  as 
much  reason  to  expect  tlkat  the  copy  of  the  in* 
dictmeut  should  not  be  detiveretl  lifl  after  pl«*a 
pleaded,  as  that  the  tr^nuel  should  not  be  deh- 
ver^fd  till  atler  the  jury  relumed,  because  iu  ibt 


I 


I 


I 


I 


8  WILLIAM  III. 

4%&c  of  the  indictnieat  it  is  said  so  mfttljr  days 
Irt4hr«  iKe  triat^  and  the  trial  caonot  be  till  issue 
jometl^  tUne  can  be  no  weigfhi  id  that  objec- 
tion al  ftli ;  for  the  wtrrds  of  the  act  are  quite 
differeAtty  penned  in  the  rnse  of' the  indictment 
from  what  they  are  in  the  c*ase  of  the  pannel  ; 
for  thouj;b  it  \*€  said  it  should  be  dotie  five  davs 
before  tbe  trials  }et  it  !<>  added^  Mn  order  to  the 
*  adviain^  with  counsel  how  to  ptead  ;*  which 
in  oat  be  before  pli^a  pleaded^  and  therefore  it 
m\nH  be  absi*U*!ely  necessary  lo  be  done  before 
the  arrm^moetit,  My  tord,  I  have  propoȣ*d 
roy  dimbt,  it  may  have  consequence*  on  the 
one  side  and  the  other,  we  submit  intirely  onto 
yoar  ktrdsHip'i  jtidjjfment ;  it  is  a  new  law,  and 
never  has  receivenf  any  opinion  ;  I  he  uords  of 
it  are,  •  duly  retumeii  by  the  sheriff',*  atjd  the 

Stie:»^ion  t»,  Whetlier  a  eopy  of  (he  pan  net  upon 
>e  array  btl^trr  it  be  returned  he  a  copy  of  tiie 
nantt*-]  ifaly  retnrred,  1  hough  the  s^mo  pannel 
»e  afterwards  duly  retitroed. 

Mr  Phiy^'S,  My  iord,  Mr.  Attorney  General 
ftWMB,  ilittt  the  piior<  I  after  it  is  array e<i  may 
be  ameitdHd  aod  n!tered  by  the  sherin ;  and  it 
waa  nevt  t  it  lentfed  by  this  act  of  puHiament. 
that  any  copy  of  the  pannel  should  be  delivered 
lo  the  prisoner  but  of  thoije  men  that  were 
really  reiurticd  ;  so  that  we  take  it,  we  ouio^ht 
to  have  it.tvto  days  after  the  return  and  before 
the  trial ;  fui-  certainty  it  must  be  a  copy  of  tbe 
men  returned,  which  if  the  shenfl^  may  alter 
at  any  time  before  the  return,  the  intent'of  the 
Act  of  parhument  cnn  never  be  an&w^ered  by 
any  copy  hnl  what  is  a  true  copy  of  the  return. 
Idr.  Coo  vers  would  aimner  iho  olijecii-m  that 
I  made  aoout  a  copy  of  the  indiihuent  by  tlii^, 
that  it  is  not  an  imiictmeut  till  it  be  fonnil  by 
Ibe  jury  ;  but  I  think  it  is  no  answer  lo  our  oh* 
jectioA  at  :0I,  though  it  be  but  a  copy  of  (he  bill 
intended  to  be  presented  to  the  ^rand  jury,  yet 
if  the  erand  jury  afterwohJii  And  it,  it  i.s  ns  true 
n  co^iy  id  ihe  indicmient  as  thisiii  a  copy  of  the 
jury  iiLcnded  (o  be  returned,  and  fifter'<  ards 
relnnied.  As  to  what  they  say,  thai  this  will 
inirodiice  a  new  metliod  ol  trial,  contniry  to  all 
form  o:  pwce^tlings,  that  can  be  no  objection 
neitlier ;  « or  if  it  lie  so,  we  cannot  tell  tiotv  to 
help  itf  the  parliament  have  thought  tit  In  have 
jt  so,  arul  wc  must  submtt  to  take  it  ai»  I  be  law 
itas  made  it :  if  there  be  a  necessity  for  a  Ha- 
beas Corpora  upon  ttic  provision  made  in  this 
act,  90  it  must  be,  for  we  must  take  the  law  as 
iilti,  We  subtiiit  our  objection  to  yodr  lord- 
ahip  ;  we  think  we  have  not  had  the  beuetit  of 
llua  law* 

Mr.  Cowptr,  Surely,  my  lordp  whiit  !VIr. 
Phipps  has  now  said  has  no  weight  in  H;  th:;t 
because  the  shenfTbad  it  in  l:is  power  U*  alter 
the  p»uDel  before  it  was  relumed,  therefoic  this 
is  1 1 01  now  a  true  copy  '^f  the  puniiel  ot  jurors 
who  ure  lo  try  tlic  pr isomer,  *liily  returned  by 
the  sheriff;  which  arc  llie  WLHiJs  in  the  act.  ft 
is  true,  if  (lie  shentf  had  in  fact  altered  iJie 
pannel  from  what  it  ivun,  aoil  returned  it  so  iiU 
tered  into  court,  no  doubt  of  it,,  the  prifioner 
would  be  very  well  iniillcd  to  muke  this  oh* 
jeotioQi  that  be  Lad  not  a  copy  of  the  pauud, 


Trial  of  Ambrose  Rookxx>ood, 

or  the  names  of  the  jurors  that  were 
to  try  him  ;  but  now  we  can  aver,  that  we 
pursued  this  act  of  parliametit  hterally;  for 
answer  to  their  objection,  we  may   ask 
queslioQ  of  ihem  upon  the  words  of  the 
Have  you  not  had  a  true  copy  of  tlie  namea 
those  tuat  are  to  try  you,  and  are  duly 
by  the  sheriff  for  that  purpoftel  and  was 
that  copy  delivered  nuto  you  above  t 
ago  r  They^  cannot  say  they  have  not  fa 
and  if  they  cannot  say  so,  then  both  the 
and  meautiig' ivf  the  act  of  parliament  are 
every  res|>ect  anawered. ;  if  when  thejury^ 
to  be  called  the  prisoner  iimh  the  pani 
altered t  be  has  reason  lo  object,  and  w 
the  benetit  of  the  objection,  that  he  has 
ar}  vantage  which  the  I  aw  intended  him, 
that  prove  to  be  the  fact,  we  think  Ker« ' 
compliance  with  this  law. 

8oL  Gen.    8ir  Uarth.  Shower  mista 
objections  about  the  copy  of  the  iudi* 
for  u  e  say,  if  the  intent  of  tjie  act  of  pi 
be  complied  with,  it  is  suiHcient,  t 
where  the  words  are  any  way  douhtfirf^ 
cording  to  the  wordsof  thisactof  pailMmctii 
copy  of  the  indictment  need  to  >»e  deliveied  " 
6ve'days  before  the  trial ;  but  it  appearinsr 
the  intention  of  these  law«m:ikers  was, 
should  have  a  copy  of  the  indictment  to 
him  to  plead  to  it  if  he  hail  cause,  tl 
though  the  words  be  *  before  the  trial/  we 
taken  it  that  he  should  have  a  copy  6ve 
before  his  arraignment,  and  so  we  have 
ptteil  with  Ihe  meaning  of  ihe  hiw  in  that  poii 
as  we  have  also  in  this,  which  was,  we  take 
only  to  enable  the  prisoner  to  nuike  his 
leoe^es,  and  if  that  (m  done  two  days  betbre 
trial,  with  tuhiuission,  it  fully  answers  thtslw 

L.  C,  X    Have  you  dooe^  gentlenaen? 

Couns.    Yes,  my  lord. 

L.  C  J.  Then  look  you,  sir  B»  Hbo' 
lo  this  point  that  you  now  insist  upon 
had  it  under  consideration  heretofore  ;  wi 
here  ihiji  day  se'nniglil,  and  then  we  did 
sider  tn  what  method  wt^  should  proc*eed, 
that  ttic  prisoner  mi«jlit  hare  the  benefit 
teodi'd  hirtt  by  this  net  of  parliament :  the 
of  parhament  does  <lesign,  in  the  first  pi 
that  every  prisoner  thai  is  to  be  tried  for  h 
treason  should  have  a  copy  Qi'  his  indicti 
at  leuHt  five  davs  before  the  trial ;  that,  I  tbinl 
was  ail  the  makers  of  this  act  of  parliament  iip 
tetide<l  at  the  6rst;  but  then  there  being  ml 
sequent  words,  which  shew  the  reason  wif 
Ibey  gave  him  the  copy  so  lon^  before  tfa 
trial ;  which  is^  that  he  mi^ht  advise  with  W 
counsel  ivhat  lo  plead  ;  ihejie  worik,  we 
oei*e,  have  given  the  prisoner  a  fuiiher  tin 
than  what  was  ongiually  intended,  thereto 
we  have  tbnn|^ht  it  necessary  that  the  priiioo 
should  have  a  copy  of  his  indicUneni  five  da 
Ijefore  he  be  arraij^ned,  which  is  five  days  b 
fore  he  was  put  I o  plead  ;  und  yoiir  client,  I 
prisoner  at  the  liar,  has  had  the  benefit  of 
act  in  that  re^spect  before  we  arraigned  bit 
then  Mler  he  has  pleaded,  the  nuestioii  wi 
when  bo  was  to  have  a  copy  ok  cbe  picmel 


tSSj  for  High  Treason* 

fmm  ik  imp  of  Ihif  *ct  of  {mrtiaEaeut  wbs, 
llrilbipiiQiNT  tboutd  have  &  oo)>y  of  the 
mmt^tmh\%M'ore  histii.il,  in  oi^er  that 
it  niflt  eOMi^kr  of  ibe  persons  t!ial  were  to 
vtIuoi;  Ihtthf  mi^ht  (>  seSror their 

riiw^  Impm,  unA  >  in;    that  so 

B^nrt^i  ,  btuHiit  ihe  law  ^ves 

ka^c^i  '  srui  thirty,   without 

fMrc4Uif,  if  !»«•  itifl  not  like  the  men, 
t  n laiuj  mone  at  he  &houM  think  he  hatl 
'tis  case,  the 
rient  ii  an- 
„  .  »  iiie  paiinel,  oa 

^^iVftn^^  Lww  days  before 

9mtlHu  ....  ha<4  th«  full  be- 

t  M  llw  Id  ol  ^  intended  ;  he  t9 

lOOf^  •«  Wfr  I  .  Liakti  hii  eiiil- 

i  tWUu  shouht  be,  and 

*lfce  flime  ii  ^d  tiim,  that  the 

liBinenl  mratit  he  should  hitve ;  then 
[  liie  de«i|fn  oi  tliiji  Act  of  jmrliajueut 
wtttd  tt'ui  cufiijdied  with  in  the 
I  i|nef«iori  ^i  l>  helher  the  worda 
i  ttre  satisfied  ?  For  we  wuidd  be  very 
:99e  ^'  \\iii  nttiirct  %vhere  an  act  of 
iaieiHlta /^vour  to  a  prisoner  that 
I  tj|#  |]*rfiif  hill  life,  to  abridge  htm  of 
t  (if  it(ir  ^  hich  tj»e  very  words  of 
I  ftlbw  him,  though  the  intent  of 
rli^oM^t  were  jiiiswei'ed  uiherwise; 
t  place  It  is  observable,  that  the 
ftiiu^iii  .lu*'k  iMit  uAy^  tliat  the  ori- 
II  lelurn  ;  nor  docs 

I  ^in  the  court,  but 
I  m  copy  of  tiie  panoel  of  tli«  jurors 
1  ihnt  are  t<>  \ry  him  ;  now  if  the 
>  days  before  the 
.[idthie9<n^^  tiitn 
>    ^laun^i,  whi^h  paanti  is 
IT}  rnurl,  ha«  tiot  he  then 
M  ■  '  I>ot!«  not 

?  For  you 
ufj^i  u  IS  ntii  Mu<;  ifi  the  words 
ltb«eii|>y  flmll  be  delivered  atter 

'^*-'    •  •-  ■' "  -  •' •   "  '  :\  copy 

r  cany 

i—    ^^ >  .i   i"'    ......inHfii'  he 

•ml  wi'  think  thijq  Answers  both 

1^  r  it  i'v  31  tonv  of  the  pannel, 

1 1.|  iv  returned. 

i^ii^  t  wouhl  in- 

r  ik«e  ttoiml  luiu^e  af  Crialt, 

^  to  Uie  very  process  itself 

le  ..'f  law  to  award  process 

\  •  Ji^  1A  Appear  at  a  cf  rt^iiu  time, 

B joiiaed  between  th*'  ktM^^  Hnd  the 

I  y«l  wbiiu  we  have  done  this,  and 

are  suoirnoned  and  do  ap- 

i»  ttiey  e)unt! ;  for  the  isaue 

iMitfe  atW  tho  rettirn,  the 

fcttf«  •  copy  of  the  pnnnci  two 

s  act  of  J,  and  the  very 

I  ftfL  J  led  iQ  giviog  a 

nvl  ^  ofm  ibe  return. 

i«tt<i  'itf  ooticider&tion 

«fOB  dkbttte  aitiuug  cmts«:tr«i|  we 


A.  D.  16M« 


[13* 


did  thiuk  fit  to  award  the  precept  returiiabf# 
this  day,  and  rrsolved  to  try  the  prisooer  this 
day*  unless  better  reasons  were  offered  us  to 
uUer  our  opinion,  and  we  are  not  sAtiMfied  thai 
any  such  better  reason  has  been  gpiven,  but  that 
this  trial  ought  to  gt>  on,  the  prisoner  having- 
the  fidl  benefit  that  wa>»  de^tigued  hrm  by  this 
act  of  parliament.  And  the  giving  a  copy  of 
the  panoel  that  is  returned,  liiuugn  before  the 
return^  sufHriently  satisfies  the  words  of  the 
act !  no  other  construction  can  be  made  with« 
out  great  absurdities  :  thiit  is  my  opinion. 

8tr  B.  Shower.  My  lord,  I  hope  we  shall  Ke 
excused  for  our  clieni,  we  have  another  doubt 
to  propo<ie  to  the  court, 

L.  C.  J-  You  have  bad  ray  opinion  upon 
this  point,  if  my  lords  and  brothers  are  of  uno<* 
ther  opinion,  they  wdl  tell  you. 

Jadgct,    No,  my  lord,  we  are  all  of  the  same 

DplDiOn. 

L,  C.  /.  My  Lord  Chief  Justice  of  the  Com- 
mon Pleas,  and  my  brothers  are  all  of  the  same 
opinion. 

Sir  B.  Shower.  My  lord,  we  say  we  hare 
aoothpr  doubt  to  pro(>ose  U{>on  this  act  of  per* 
liament:  it  ist  a  new  one,  and  never  put  in 
pr^iOLice  till  no  v,  and  therefore  we  hope  your 
iontship  will  please  to  excuse  us,  if  we  offer 
nor  objections,  because  there  has  yet  never 
been  a  delerniination  about  it,  and  we  are  es< 
signed  of  counsel  by  your  lordship. 

L.  C.  J.  Never  make  apologies,  sir  Bartbo* 
lomew,  for  it  is  as  lawful  for  you  to  be  of  coun* 
scl  in  this  cuse,  as  ii  is  in  any  nther  case  where 
the  law  allows  counseh  It  is  expected  you 
should  do  3  our  best  for  thuee  vou  are  assigned 
for,  as  it  is  expectei)  in  any  other  case  thatyrm 
do  vour  duty  for  your  client. 

ftr  B.  Shower,  My  lord,  our  exception  is 
this,  ne  say  that  this  trial  cannot  go  on  at  this 
time,  upon  this  act  of  parliament,  because  we 
have  no  true  copy  of  tho  whole  indictmenl ;  it 
does  not  appear,  in  the  copy  we  have  delivered 
to  us,  bet  ore  whom  it  was  taken,  or  wbether 
it  was  taken  at  all,  or  in  whnt  pkce  it  wat 
taken  ;  it  &i)ys  only  ^  Middlesex'  inthL»  margin, 
and  iheu  *  JuratoreA  pro  Domino  Re^e  pre* 
*  sentAnt:'  that  might  be  befori^T  the  justices 
of  the  peace  at  the  quarter  sessions,  or  it  mii^hl 
be  at  th^  monthly  sessions  at  HicksVHill, 
or  it  luiglit  be  at  the  Hc'Stions  at  the  Old  Bai* 
ley<,  or  it  fiiight  be  before  comnaisaionen  uf 
Oyer  and  Terminer,  as  perhaps  it  really  was  ; 
but  noil  eomtai  where  it  was  takeo^  nor  bow  it 
comes  hither  i  it  might  be  before  your  lordship 
here,  as  wc  believe  it  was,  but  inis  copy  not 
letting  us  know  where  and  bow  it  was  taken, 
we  think  we  have  not  the  benefit  of  this  law  | 
for  the  party  accused  is  by  this  act  of  parliA'^ 
ment  to  have  a  cony  to  atlvise  with  counsel, 
that  be  may  be  enanled  to  plead.  And  that  is 
the  reason  why  ihe  words  of  tlii^  aot  are  eo 
penned,  that  he  shall  have  a  copy  of  the  whole 
indictment,  which  we  cannot  plead  to,  unless 
we  know  where  it  was  taken,  if  we  should  have 
occasion  to  pleAd  any  special  matter.  And  be« 
tiilesi  my  loVd,  there  is  auotber  reesoii  why  W9 


IW] 


8  WILLIAM  III. 


•bouM  lia¥e  the  whole  indictment  to  enable  us 
to  plead,  because  if  we  bad  the  Caption,  it  miflfbt 
perhaps  ap[)ear,  that  Ihe  iodictment  wai  taken 
before  the  time  of  the  fact  alleged  in  the  in- 
dictment, and  then  that  would  make  it  Yioious ; 
it  might  be  belbre  the  9th  of  February,  when 
this  treason  is  said  to  be  committed,  and  thep 
we  ought  not  to  be  brought  to  trial.  Now  the 
design  of  this  act  of  paniament,  in  giving  the 
prisoner  a  copj  of  the  indictment  so  lon^  be- 
fore the  trial,  was  net  only  to  enable  him  to 
make  his  defence  upon  the  trial,  but  also  to  ad- 
vise with  counsel  to  plead ;  for  so  the  words 
are,^  the  better  to  enable  him  to  plead.'  Now 
we  savr  to  answer  tbb  end,  it  is  necessary  we 
should  have  a  copy  of  the  whole  indictment,  as 
it  stands  before  your  lordship  in  court.  And 
another  reason  is  this,  it  is  no  indictment,  un- 
less it  be  presented  by  the  jury,  as  their  inqui- 
sition upon  oath,  unto  some  court  that  has  ju- 
risdiction of  the  matter:  what  we  have  deli- 
vered to  us  is  only  a  copv  of  a  bill  as  to  be  de- 
livered to  a  gitmd  jury  to  oe  found ;  non  constat^ 
that  it  is  found.  Now  the  intent  of  the  act  of 
parliament  beinsp  to  give  the  prisoner  this  ad- 
vantage to  enable  him  to  plead,  he  may  have 
severfi  pleas,  of  which  he  micht  take  a  legal 
advantage  if  he  had  a  copy  of  the  whole,  which 
he  knows  not  how  to  come  at  now  ;  and  in  truth 
it  is  very  necessary,  because  if  he  be  tried  upon 
an  indictment  found  in  another  county,  then 
these  commi^oners  have  not  a  legal  authority 
to  try  him  ;  and  if  the  trial  should  go  on,  and  he 
be  acquitted,  he  is  subject  to  be  indicted  and  tried 
again,  and  never  can  relieve  himself  by  the  ac- 
quittal upon  such  an  indictment  before  persons 
that  had  no  authority  to  try  him.  I  doubt  he 
can  never  plead  the  acquittal,  because  he  can- 
not make  out,  that  he  was  duly  tried  and  ac- 
quitted :  and  for  these  reasons  we  humbly  sub- 
mit it  to  your  lordship,  whether  we  have  had 
the  benent  of  tliis  law,  in  having  a  copy  of  the 
whole  indictment  to  enable  us  to  plead  ;  and  if 
we  have  not,  till  we  have  that  benefit,  we 
humbly  conciive  this  trial  ought  not  to  go  od. 

Mr.  Phipps,  My  lord,  the  question  is,  Whe- 
ther the  style  of  the  court,  the  persons  before 
whom  it  was  taken,  and  to  whom  the  present- 
ment is  made,  the  time  when  it  was  taken,  and 
the  place  where,  ought  not  to  aopear  in  the  in- 
dictment ?  tliis  law  requiring  tnat  the  prisoner 
■bould  have  a  copy  of  the  whole  indictment  to 
enable  him  to  plead ;  for  if  it  should  hap|)en, 
that  the  indictment  was  taken  before  persons 
that  had  no  jurisdiction,  then  I  believe  it  will 
not  be  denied  but  that  the  prisoner  might  plead 
to  the  jurisdiction,  and  there  might  be  several 
other  pleas  that  he  might  take  advantage  of. 
I  would  desire  to  know  of  the  king's  counsel, 
whether  ever  they  saw  a  copy  of  an  indictment 
^ven  in  evidence,  or  pleaded  without  the  Cap- 
tion. It  is  not  a  true  copy  witliout  it;  there 
ought  to  be  the  time,  the  place,  and  the  style 
of  the  court  before  whom  it  is  taken. 

Ait.  Gen.  Truly,  my  k>rd,  I  think  1  need 
•ay  no  more  to  this  olgection,  than  it  does  not 
iH  a  proper  time;  far,  with 


Trial  of  Ambrose  Itookwood, 

if  the  prisoner  will  upon  thb  act  say  he  1 
had  a  copy  of  his  indictment  to  enable  1 
plead,  he  ought  to  have  taken  the  advan 
It  before  he  did  plead ;  that  is  the'propi 
for  him  to  object  thb  matter  to  the  cou 
if,  after  he  has  had  such  a  copy  as  this  p 
hashed,  he  does  submit  to  plead,  wit 
mission  it  is  too  late  to  come  at  his  tr 
make  this  objection,  he  cannot  be  reoc 
make  it  after. 

L.  C.  J.  That  is  a  full  answer,  Mr.  At 

Att.  Gen,  I  think  it  is,  my  lord,  wit 
mission,  not  that  we  would  wave  givin; 
answer  to  it,  if  it  were  in  a  proper  tim 
the  metl^  of  proceeding  roUst  be,  i 
tliink  we  have  no  occasion  at  this  time 
any  thing  more  to  this  objection. 

X.  C.  J.  No,  no,  that  is  a  full  answer 
point :  for  look  ye,  you  that  are  of  coui 
the  prisoner,  when  once  you  have  plead< 
admit  you  have  had  a  copy  ;  for  the  co 
given  you  to  enable  you  to  plead,  and 
you  have  pleaded,  you  have  passed  by 
vantage  that  you  could  have  from  thf 
as  to  any  plea  that  you  can  make :  for  it  i 
for  granted  ye  had  a  copy  to  enable 
plead,  and  to  advise  with  your  counsel  al 
since  you  did  plead,  and  did  not  insist 
at  the  time  of  your  arraignment  that  j 
not  such  copy. 

Sir  B,  Shower,  My  lord,  we  have  pi 
one  doubt ;  we  humbly  submit  it  to  the  < 

Sol.  Gen.  It  was  their  own  fault,  tt 
objection  was  not  made  in  time. 

X.  C.  J.  That  doubt  of  yours  may  s 
another  time,  but  now  certainly  it  is  qi 
of  time. 

Sol.  Gen.  Nay,  my  lord,  even  upon 
raignment  tbat  would  not  serve  their  tu 
ther. 

L.  C.  J.  We  will  not  enter  upon  tha 
pray  go  on  to  swear  the  jury. 

CI.  ofAr.  You,  the  prisoner,  look  t 
challenges,  as  I  told  you  before.  Cry< 
sir  Jeremy  Saiubrook. 

Cryer.    Vous  avez. 

Sir  B.  Shower.  Mr.  Rookwood,  you 
make  your  own  challenges. 

Rookwood.    I  do  not  challenge  him. 

CI.  of  Ar,    Then  hold  sir  Jeremy  the 

8ir  Jtr.  Swnbrook.  My  lord,  I  am  unt 
of  serving  upon  tiiis  jury,  for  I  have  be 
these  several  years,  these  dozen  years ; 
not  hear  what  is  said  in  court,  thoug 
now  so  near  the  court ;  I  could  not  hef 
your  lordship  said,  nor  what  was  said 
bar.  I  have  a  certificate  here,  if  your  h 
please  to  have  it  read  ;  and  most  of  the  | 
of  quality  about  the  court  know  it  to  be  : 

Att.  Gen.    My  lord,  I  am  afraid  it  is 

L.  C.  J.  Nay,  if  it  be  so,  it  is  not  iitti 
he  should  be  upon  the  jury,  when  he 
hear  what  is  said  :  you  must  excuse 
reriiv  Sambrook.    Go  on  to  the  next. 

CS.  ofAr.  George  Ford. — Cr^er.  Von 

CI.  of  Ar.  Look  upon  the  prisoner. 

BjoAmo^i^  1  challenge  him. 


Jbr  High  Tnoion. 

Mr.  FonI,  you  must  not  go  away, 
apoo  aoother  pannel,  wherein  you 
Aoyedy  though  you  are  now  chal- 

.  William  Underhiil. 
challenge  him. 
.  William  Withers, 
challenge  him. 
SamuelPowell. 
do  not  except  against  him. 
Then  swear  Mr.  Powell. 
M>k  upon  the  prisoner.    You  shall 
ly  ^y>  ^"^  ^^^  deliverance  make 
r  sorereign  lord  the  kinpf)  and  the 
lie  bar,  whom  you  shall  have  in 
I  a  true  verdict  give  according  to 
ce.     So  help  you  God. 
Thomas  Trench, 
challenge  him. 
John  Wolse. 
challenge  him. 
James  Bodingtoo. 
challenge  bim. 
John  myroond. 
challenge  him. 

Richard  Marsh.    [Be  did  not 

Georjre  Haws. 

challenge  him. 
.  Fiancis  Barry. 

challenge  him. 
.  Arthur  Bnily. 

[  except  t)ot  against  him.  [Sworn.] 
.  John  Webber. 

do  rot  except  acrainst him.  [Sworn.] 
.  Thoiuas  Glover. 
I  challenge  him. 

Dormer  Sheppard. 

challentre  him. 
.  George  Tredway. 

do  not  except  against  him.     [He 

Matthew  Bateman. 
'  challenge  him. 

Timothy  Thombory. 
[  challenge  him. 
.  James  Partberich. 
[  challenge  him. 
.  Thomas  Freeman. 
i  clial!enge  bim. 
'.  Joseph  Blithit 
I  challenge  him. 
.  Timothy  T/eonoy. 
[  have  nothing  to  say  against  him. 
om.] 

.  John  Harris. 
I  do  not  except  against  him.     [He 

.  JohnBillers. 

I  challenge  him. 

'.  Richanl  Bourne. 

I  challenge  him. 

%  George  Carter. 

!  do  not  excentagainst  bim.  [Sworn.] 

'.  Francis  Ctiapman. 

I  cfaallcBge  him.  . 

*.  Alexander  Forth. 


A.  D.  1696. 


tl58 


Hookw.  1  challenge  him. 

CL  (fAr,  Thomas  Playstid. 

Hookw,  I  challenge  him. 

CL  ofAr,  William  EUey. 

Rookw,  I  do  not  except  against  him.  [H# 
was  sworn.] 

CL^Ar,  John  Marsh. 

Kookw.  I  have  nothing  to  say  against  him. 
[He  was  sworn.] 

CL  of  Ar.  I^muel  Hooper.  (He  did  not 
answer.) 

X.  C.  J.  Did  Mr.  Hooper  appear  f 

CL  o^At.  Yes,  my  lord^  he  is  marked  as 
appeanns^. 

L.  C.  J.  Then  you  ought  to  call  him  Bgtan^ 
and  set  a  fine  upon  his  head. 

CL  ofAr.  Cryer,  call  Samuel  Hooper. 

Cryer,  Samnel  Hooper,  come  into  court  and 
give  voar  attendance,  upon  pain  often  poandf 
for  tfie  court  has  recorded  your  appearance. 

CLafAr.  John  Hall.  . 

BjookuD.  I  challenge  him. 

C/.  ofAr.  Nicholas  Roberta. 

Rookw,  I  challenge  him. 

CL  ofAr.  William  Partridge. 

Bmkw.  I  challenge  him. 

Sir  B.  Shower,  How  many  has  he  chl^t' 
lenged,  Mr.  Hardesty  ? 

CL  ofAr,  I  will  tell  you,  sir  Bartholomew. 
He  has  challenged  94. 

Sir  B.  Shovcr.  Well  then,  go  on,  sir. 

CL  ofAr.  Peter  Laveane. 

Rflokw.  I  challenge  him. 

CLofAr.  Thomas  Moody. 

Bjookw.  I  challenge  him. 

CL  ofAr.  Richard  Bealing. 

Rookw.  1  challenge  him, 

CL  ofAr.  Thomas  Evans. 

Rookw.  I  challenge  him. 

CL  ofAr.  Thomas  Rammage. 

Rookw,  I  challen^  him. 

C/.  ^^r.  EdwaroTownshend. 

Rookw,  I  challenge  him. 

CL  ofAr,  William  Gunston. 

Rookw.  I  challenge  him. 

CLofAr,  Samuel Freebody. 

Rookw,  I  do  not  except  against  him.  (He 
was  sworn.) 

CL  ofAr.  Philip  Wightman. 

Rookw,  I  challenge  him. 

CL  of  Ar.  There  are  now  thirty-two  chtU 
lenged. John  Wyberd. 

Rookw,  I  challenge  him. 

CL  (fAr,  William  Strowd. 

Rookw,  I  challenge  him. 

CL  ofAr,  Daniel  Byteild. 

Rookm.  I  do  not  except  ugainst  him.  (Ha 
was  sworn.) 

CL  ofAr,  Benjamin  Noble. 

Rookw,  I  have  nothing  to  say  against  him« 
(He  was  sworn.) 

CL  of  Ar,  Cryer,  count  them.  Samnel 
Powell, — • 

Cryer,  One,  &c. 

CLofAr.  Benjamin  Noble. 

Cryer,  Twelve  gfood  men  and  true,  stand 
together,  and  hear  your  evidence. 


159] 


8  WILLIAM  in. 


The  names  of  the  twelve  swoni  were  these : 
Samuel  Powell,  Arthur  Bailey,  John  Webber, 
Geor^  Tredway,  Timothy*  Lennoy,  John 
Harris,  George  Garter,  William  Atley,  John 
Marsh,  Samuel  Freebody,  Daniel  Byfeild,  and 
Benjamin  Noble. 

L,  C.  J.  Look  ye,  Mr.  Phipps,  your  oljce- 
lion  upon  the  indictment  slipt  me,  and  therefore 
I  would  speak  to  it  now :  You  said  it  might  be 
as  well  a  copy  of  the  indictment  before  it  be 
found,  as  well  as  this  a  copy  of  the  pannel  be- 
fore it  be  returned.  Now  that  cannot  be,  for 
an  indictment  is  not  an  indictment  till  it  be 
found,  it  is  <mly  a  writing  prepared  fi>r  the 
case  of  the  jurv,  and  ibr  expedition ;  it  is  no- 
thing till  it  IS  ibuid,  for  the  jury  make  it  an 
indictment  by  finding  it,  they  may  alter  what 
they  please,  or  refuse  it  absolutely.  And  if  the 
jury,  upon  examining  the  witnesses,  would 
only  present  a  matter  of  fact  with  time  and 
place,  the  court  might  cause  it  to  be  drawn  up 
mto  form,  without  carrying  it  to  the  jury : 
again,  there  needs  no  Bilia  vera;  for  that  is 
only  the  jury's  owning  that  which  the  court 
has  prepared  and  drawn  up  fiff  them :  but  a 
pannel  is  a  pannel  when  it  is  arrayed,  before  it 
De  returned,  and  a  copy  of  the  pannel  given 
before  it  be  returned,  is  a  copy  of  the  pannel 
returned,  if  it  be  afterwards  returned,  as  it 
must. 

Sir  B.  Shower.  But,  my  lord,  that  notion 
atrengthens  our  objection  that  we  last  made, 
that  makes  it  necessary  that  we  should  have  a 
copy  of  the  Caption,  as  well  as  the  other  part, 
to  make  it  a  true  copy  of  the  whole  iudict- 
ment. 

Z.  C.  J.  That  is  another  thinjf,  we  will 
talk  of  that  another  time  ;  but  I  speak  of  this 
only  as  to  his  objection,  which  slipt  my  me- 
mory, because  I  would  have  nothing  remain 
unanswered. 

Mr.  Phipps,  My  lord,  when  I  lie  Bill  is 
ibund,  the  copy  that  we  delivered  before  is  as 
much  a  true  copy  of  the  indictment  as  our 
oopy  of  the  pannel  is  a  copy  of  the  jury  re- 
turned. 

L,  C.  J.  A  pannel  is  a  pannel,  when  it  is 
arrayed,  but  a  bill  is  not  an  indictment  till  it 
be  tound ;  one  cannot  say  a  man  indictatm 
egistitf  till  it  be  found ;  afl  that  we  say  of  it 
before  it  oe  found  is,  that  there  was  quadam 
Billa  preferred  to  the  grand  jury,  and  if  the 
jury  bring  it  in  Ignoramus,  whereby  they 
disown  tm  presentment,  it  is  cancelled,  and 
there  is  no  record  of  it,  nor  nothing,  only  a 
memorandum  in  the  clerk's  book  perhaps, 
that  such  a  thing  was.     Well  go  on. 

CI.  qfAr.    Cryer,  make  Proclamation. 

CJryer.  O  yes,  If  any  one  can  inform  my 
lords,  the  king's  justices  of  Oyer  and  Ter- 
miner, the  kiag's  serjeant,  the  king's  attorney 
general,  before  this  inquest  to  be  taken,  of  the 
bigh-treason  whereof  Ambroee  Rookwood,  the 
pnaoner  at  the  bar  stands  indicted,  let  them 
come  forth,  and  they  shall  be  heard ;  for  now 
the  prisoiier  standi  at  tha  tar  upon  hit  de- 


Trio/  ofAmbroie  Roohcood^ 

liveranoe,  and  all  others  that  are  bouDd  I 
cognizance  to  give  evidence  against  th< 
soner  at  the  bar,  let  them  come  forth,  anc 
their  evidence,  or  else  they  forfeit  their  n 
nizance. 

CL  ofAr.  Ambrose  Rookwood,  hoi 
thy  hand,  (which  he  did).  You  thi 
sworn,  look  unon  the  prisoner,  and  hearl 
his  cause.  He  stands  indicted  bv  the  na 
Ambrose  Rookwood,  of  the  pansn  of  St. 
Covent- garden,  in  the  county  of  Midd 

f^nt.  for  that  he,  together  with  Ghrist 
nightley ,  not  yet  taken,  Robert  LowicI 
Charles  Cranbume,  and  divers  others, 
traitors,  &c. — prout  in  the  indictment, 
talis  mutandis^  and  against  the  form  c 
statute  in  that  case  made  and  provided, 
this  indictment  he  hath  been  arraigned 
upon  his  arraignment  hath  pleaded  not  g 
and  for  his  tnal  hath  put  himself  u|iof 
and  his  country,  which  country  you 
your  charge  h  to  enquire^  whether  he  be  i 
of  the  high-treason  whereof  he  stands  ind 
or  not  guilty ;  if  you  find  him  guilty, 
are  to  inquire  what  goods  or  chattels,  lai 
tenements  he  had  at  the  time  of  the 
treason  committed,  or  at  any  time  stn< 
you  find  him  not  guilty,  ye  are  to  it 
whether  he  fied  for  it;  it  you  find  that  b 
for  it,  you  are  to  inquire  of  his  goodi 
chattels,  as  if  you  had  found  him  guili 
you  fiod  him  not  guilty,  nor  that  he  did  i 
It,  you  arc  to  say  so  uod  no  more:  and 
your  evidence. 

Mr.  Mountague,  May  it  please  your 
ship,  and  fou  gentlemen  of  this  jury,  tli 
dictment  that  has  been  rt-ail  to  you,  does  d 
the  prisoner  with  high -treason  tor  compa 
and  imagininc^  the  ncatli  of  the  king,  fc 
deavouring  to  subvert  the  government,  s 
subject  the  people  of  England  to  the  slavi 
Ix»wis  the  French  king ;  and  for  this  eo 
indictment  sets  forth,  tliat  the  prisoner  s 
b:ir  did  privately  meet  with  several  false 
tors,  to  consult  how  they  mi*>-ht  compai 
death  of  the  king,  and  commit  those  other 
sons;  and  that  the  10th  of  Februar 
Cofent-gorden,  in  this  county,  it  was  a| 
among  them,  that  they  should  get  tog 
forty  horsemen,  whereof  the  prisoner  a 
bar  was  to  be  one,  and  they  were  to  lie  u 
bush,  and  set  upon  the  king  in  his  coach 
his  return  from  going  abroad ;  some  we 
attack  the  coach,  others  to  attack  the  gi 
and  there  were  some  to  kill  the  king  ii 
coach :  and  the  indictment  does  Tik 
charge  the  prisoner  with  gathering  tog 
horses,  and  providing  arms  for  this  piu 
To  this  indictment,  gentlemen,  ne 
pleaded  not  guilty ;  we  shall  call  oor 
ncsses,  and  prove  the  fact,  and  when  we 
so  done,  we  do  not  at  all  doubt  but  yoo  w 
your  duty. 

8ir  £.  Shower.  My  lord,  before  Jiha 
nesses  are  called  we  have  a  doubt  to  prapi 
your  lordship  upon  this  act  of  parliamenl 
that  it|  whether  we  are  to  take  our  «] 


^r  High  Treason^ 
lis  indictineBt  before  the  e?ideQce  be 


A.  D.  1696. 


[162 


giWi 


li  ihouki  properly  be  before  the 


The  words  of  the  act,  my 
*  before  the  evidence  gi?ea." 

That  act  proFides,  That  if  you  do 
be  advantage  of  it  before  the  ewi- 
I,  jroa  shall  not  move  tb^t  in  arrest 
Hi. 

lower.     It  ooly  says  before  evidence 
DO  evideooe  Ms  yet  been  given. 

But  you  are  certainly  very  irre- 
oint  of  practice,  nobodv  ever  took 
to  an  iDuictmeBt  after  the  jury  was 


lowr.  If  your  lordship  pleases  to 
da  be  read  of  tlie  act  of  parliament, 
lese :  Thai  no  indictment  shall  be 
oaleaB  exception  be  taken  in  the 
e  the  tml  shall  be,  before  any  evi- 
ti   in  court  upon  that  indictment. 

sav,  strimgly  implies,  that  the  law- 
ugnt  it  m^t  be  done  at  any  time 

eTidence  was  given  in  open  court, 
1ft  the  law  takes  notice  that  after 
it  shoold  be  of  DO  avail ;  it  would 
a  rery  improper  expression  beibre 
iven  ID  open  court,  if  it  bad  meant 
fory  were  sworn  and  charged ;  for 
evidence  supposes  the  trial  com- 
f  they  had  intended  it  otherwise, 
tat  it  should  be  before  the  jury  is 
ey  woukl  have  expressed  it  to  be 
i  arraignmeot :  but  mentkining  it  te 

the  court  where  the  trial  is  to  be, 
ience  given,  that  supposes  the  in- 
»  be  at  issue  h^ore  the  party  needs 
is  exceptions.  Therefore,  my  lord, 
'e  are  regular  in  offering  our  exoep- 

Pray,  what  say  you  lo  it,  Mr. 

a.  Truly,  ro)r  k>rd,  I  think  they  are 
jTular ;  for,  with  submission,  I  take 
High  this  Act  of  Parliament  has  in- 
!ni  with  several  tilings  which  were 
Ue  by  law  before,  yet  as  to  this  part 
Mil  aflowed  to  take  exceptions  to  the 
:,  otherwise  than  they  could  before 
IS  passed :  nay,  so  far  from  that,  that 
Isbip  looks  into^tbe  act,  you  find  they 
ned  in  this  point  from  an  advan- 
tbey  bad  before,  that  is,  they 
move  any  such  things  as  are 
itioned,  after  verdict  in  arrest  of 
;  so  that  this  part  is  restrictive  to  the 
ind  lakes  away  some  advantage  that 
fore  ;  which  was,  moving  in  arrest 
sot  slier  verdict ;  but  it  leaves  the 
rceptioBS  as  to  any  time  before  the 
it  was  before,  which  was  beibre  plea 
Ml  not  aiVer  the  jury  sworn  :  for  it 
denied  that  in  point  of  practice,  such 
this  that  is  now  offered  couM  not 
dane  before  the  act.  I  would  be 
ow  whether  they  can  shew  any  pre- 

nii. 


cedeirt  of  any  such  thing  as  they  now  contend 
for.  They  say,  the  words  of  the  act  are,  excepi> 
tion  must  be  taken  before  evidence  given  ;  but 
that  must  be  taken  at  such  a  time  as  t\iej 
might  by  the  course  of  law  do  it  before :  for 
when  the  jury  is  sworn,  they  must  give  a  ver« 
diet,  and  I  do  not  know  how  ihey  can  be  dis- 
charged without  giving  a  verdict ;  therefore 
unless  the  act  had  given  directions  for  a  parti- 
cular manner  of  proceeding  in  this  matter, 
which  it  has  not  done,  your  lordship  will  not, 
1  presume,  do  it  in  any  other  manner  than  as  it 
was  before  the  act  made ;  and  if  there  be  no 
precedent  to  be  shown  of  any  such  thing  as 
this,  of  taking  exception  to  an  indictment  after 
the  jury  sworn  and  charged  with  the  prisoner ; 
then  there  is  no  power  in  this  Act  of  Parliament, 
given  to  them  to  take  exceptk>ns  to  this  indict' 
meut  at  this  time ;  we  take  it  the  motk>n  is 
very  irregular  upon  all  accounts. 

60/.  Gen.  My  lord,  we  first  say,  that  it  is  not 
proper  for  them  to  make  any  such  motion  aa 
this  upon  this  Act  of  Pailiament,  till  they  tell 
us  what  their  exception  is,  that  we  may  see 
whether  it  be  within  the  words  and  meaning  of 
this  Act  of  Parliament.  The  only  thing  now 
that  is  proper  for  us  to  consider,  u  the  issue 
joined,  and  the  inquiry  whether  the  prisoner  at 
the  bar  is  guilty  of  the  high -treason  of  which 
he  is  indicted,  to  which  indictment  he  has 
pleaded  Not  Guilty :  that  is  the  thing  that  is 
now  before  your  lordship  to  be  tried,  they  have 
room  for  exceptions  to  the  indictment  after- 
wards, for  some  exceptions  T  mean,  (I  do  not 
know  what  their  exceptions  are)  but  if  they  be 
such  as  may  be  taken  after  the  verdict,  then  I 
am  sure  they  are  irregular  now  in  their  motion, 
and  they  can  shew  no  precedent,  when  it  was 
done  after  plea  pleaded  and  issue  joined,  as  it  is 
in  this  case. 

Mr.  Conyers.  The  advantage  that  the  act 
l^ves  the  prisoner,  of  having  a  copy  of  his 
mdictment  so  long  before  trial,  is  to  enable  him 
to  plead,  or  to  take  exceptions  to  quash  it ;  but 
I  never  heard  a  motion  to  quash  an  indictment 
after  a  jury  is  charged  to  hear  the  evidence. 
Certainly  they  ought  to  do  it  before  plea 
pleaded,  and  not  now  to  come  to  make  a  motion 
to  quash  the  indictment,  after  they  have  pleaded, 
and  the  jury  sworn  :  therefore  we  suumit  it, 
upon  the  constant  practice  in  like  cases,  to  the 
jud^ent  of  the  court. 

8ir  B,  Shower,  In  answer  to  that  which  Mr. 
Attorney  hath  said,  that  it  is  an  improper  time ; 
I  thought  truly  1  had  moved  it  for  the  advan* 
tajype  and  ease  of  the  king*s  counsel,  that  they 
might  not  proceed  upon  this  trial,  when  per- 
haps after  all  their  trouble,  the  foundation, 
which  is  the  indictment,  may  fail.  I  have  a 
great  many  exceptions  to  timiiidictment ;  they 
say  we  should  name  what  our  exceptions  are : 
I  will  acquaintthem  with  them  as  fast  as  I  can; 
if  your  lordship  please,  the  indictment  is  very 
louse  and  uncertain. 

L,  C,  J,  Certainly  the  motion  is  irregular  in 
point  of  practice. 

8ir  B.  Shower.  My  lord,  we  weieafinid,  wt 
M 


163] 


8  WILLIAM  m. 


Trial  of  Ambrose  Rookwood, 


[Mi 


■houid  be  excluded  from  taking  these  excep- 
tions afler  the  evidence  given. 

X.  C  J.  ^  you  are  by  the  express  words  of 
the  act. 

8ir  jB.  Shoicer.  Then  certainly  we  may  do  it 
before  the  evidence  given. 

JL.  C.  J.  But  the  act  does  not  say,  ye  shall 
do  it  any  time  before  the  evidence  given,  ospc> 
cially  in  such  an  irregular  manner,  after  issue 
joined  and  the  jury  swoni.  Suppose  Mr. 
ikttorney  had  given  some  evidence. 

Kir  B.  Shincer,  Then,  my  lord,  I  ngreo  we 
had  Ijeen  without  the  words  ;  therefore  I  now 
move  it  before  the  evidence,  because  the  Art  of 
Parliament  has  given  me  liberty  to  do  it  betbre 
the  evidence  given :  fur  the  law  having  given 
this  liberty  to  tlie  prisoner,  to  make  such  excep- 
tions within  such  a  time,  your  lordship  wdl 
not  restrain  us  from  making  use  of  that  liberty 
further  thmi  the  law  has  restrained,  but  we 
may  make  use  of  our  exceptions  betbre  the 
evidence  given,  eillier  to  induce  your  tordship 
to  quash  the  indictment,  or  the  iary  to  find  us 
Not  Gujily,  as  we  hope  your  lordship  will  direct 
them  to  do :  for  what  is  more  common  upon 
indictments  after  the  jury  are  sworn,  than  if 
facts  appear  ii|h>u  the  record  not  to  be  suffi- 
ciently alleged,  the  court  will  direct  the  jury  to 
find  the  party  Not  Guilty.  We  think  this  net 
does  give  us  this  liberty,  othetwise  I  know  not 
to  what  purpose  it  was  made ;  the  rery  mean- 
ing seems  to  be,  that  the  exceptions  of  the 
counsel  for  the  prisoner  might  be  of  prejudice 
to  the  king ;  and  therefore  it  says  ailer  the 
king's  evidence  given,  and  the  fact  discovered, 
no  such  exceptions  shall  be  mode :  therefore 
we  must  make  it  l>eVore  the  evidence  gi^-en, 
otherwise  this  Act  of  parliament,  that  was  de- 
■igned  in  favour  of  the  prisoner,  will  jprove  a 
very  great  hardship  upon  him,  especially  in 
case  of  an  imperfect  indictment,  as  we  appre- 
hend this  is,  and  he  will  be  in  a  worse  condition 
than  ever  he  was  ;  he  must  take  his  exceptions 
now  or  not  at  all.  The  act  says,  he  is  not  to 
take  it  after  evidence  given  ;  and  by  construc- 
tion the  kind's  counsel  would  have  it,  tliat  he 
should  not  give  it  before :  and  consequeDtlj  he 
lias  no  time  at  all  to  give  it. 

L.  C.  J.  Have  not  you  had  time  to  do  it  be- 
fore now,  sir  Bartholomew  Shower?  Cer- 
tainly you  had.  Yon  had  time  thb  day  seven- 
night,  when  you  were  arraigned ;  you  have 
had  vour  opportunity  if  you  vrauld  have  taken 
it ;  the  jury  are  now  charged,  the  indictment  is 
opened,  they  have  been  told  what  they  are  to 
enquire  of,  and  now  you  would  break  in  and 
take  exceptions  to  the  indictment. 

Sir  B.  Shoacr.  My  lord,  this  is  a  new  act  of 
parliament,  it  says  we  shall  take  our  exceiitions 
before  the  evidence  given ;  which  we  take  it,  is 
any  time  liofore  the  evidence  given;  and  if 
your  lordship  will  not  allow  us  to  do  it  now,  it 
may  be,  we  may  lose  the  benefit  of  it  absolutely. 

Z.  C  J.  It  is  one  question  whether  we  shall 
allow  it  or  no ;  and  another  question  whether 
you  can  claim  it  or  no :  certainly  it  is  an  irre- 
gular notioD,  and  the  likeof  it  wu  neier  eiler- 


ed  in  any  case  before,  be  it  criminal  or  civil 
for  if  it  be  a  criminal  case  that  is  not  felony  o 
treason,  when  the  issue  comes  to  trial  upon  ai 
indictment,  did  you  ever  know  any  exoe|Mioi 
taken  to  the  indictment  afler  the  jury  wcv 
cliHrged  ?  Certainly  it  is  contrary  to  an  prae 
tice ;  and  it  is  not  fair,  the  court  is  not  «d 
flealt  with ;  you  have  had  an  opportanity  be 
fore,  and  will  you  now  put  tlie  court  and  thi 
jury  to  Ko  great  deal  of  trouble,  to  stay  till  tb 
jury  be  called  ovrr?  The  prisoner  called  lo  -ki 
chaliciiiircs,  he  has  challenged  thirty -four,  th 
jury  is  sworn,  the  indictment  is  read  to  i ' 
the  charge  given  ihem,  the  connsel  have  i 
ed  the  indictment;  and  now  when  the  hm 
is  only  to  try  the  issue  with  which  the  jury  an 
charged,  you  come  to  turn  us  quite  round,  bg 
taking  exceptions  to  the  indictment. 

Mr.  Vhipp$,  My  lord,  we  take  it  the  M 
gives  lis  this  time  to  do  it  in. 

X.  C.  J.  You  know  you  had  another  tim 
more  proper  to  do  it  in. 

Mr.  Phipps.  My  lord,  if  we  have  not  tin 
now ;  then  this  clause  with  humble  snbmiMsii 
signifies  nothing  at  all. 

£.  C.  J.  The  clause  was  made  in  thiiM 
pect,  to  your  disadvantage,  because  you  ahiMl 
nave  a  copy  of  the  indictment,  whereby  JMJ 
might  have  an  opportunity  to  advise  with  OOH- 
•el,  that  they  might  instruct  you  how  to  jMj 
and  to  take  any  manner  of  exception  MM 
plea  pleaded,  it  ought  to  be  before  the  tridi  M 
now  because  of  tliis  advantage,  it  nrovidei  Ari 
you  shall  take  vour  exceptions  before  the  M^ 
and  not  move  Uiem  in  arrest  of  judgment,  Ai 
is  the  meaning  of  the  act. 

Mr.  Phipps.  Then,  my  lonl,  there  needed  n 
time  at  all  to  be  mentioned  in  the  act,  but  hail 
left  It  at  ft  was  at  common  law. 

JL  C.  X  Yes,  yes,  there  did  need  a  time,! 
be  limited ;  for  this  clause  was  made  1  lay  i 
yoor  disadvantage,  in  depriving  the  priaonerc 
the  benefit  of  such  kind  of  exceptions  in  arm 
of  judgment,  because  of  the  advantage  tin 
was  given  in  the  fbrmer  part  of  the  act,  wb€f 
yon  had  time  nven  you  to  make,  your  eseq 
tions,  for  which  end  you  are  to  have  a  copy  I 
the  indictment  five  days  before  you  are  calledl 
plead. 

Sir  B.  Shfmer,  We  could  not  come  beftn 
my  lord,  as  we  apprehend,  because  the  moii 
of  tlie  act  are  "  berore  evklence  given." 

L.  C.  J.  But  I  tell  you,  this  clause  watai 
foryonr  benefit,  hut  for  your  disadvantage. 

w  B.  Sh9uer,  My  lord,  what  wc  press  ann 
firom  the  very  words  of  the  act  of  purliament, 
the  meaning  of  the  law -makers  was  ais  fl 
king's  counsel  now  contend  to  have  it ;  dn 
would  never  have  used  those  words  **  beAl 
evidence  gi\en  in  open  court,"  but  haveia 
they  should  have  had  no  advantage  of  the  Ca 
ception,  unless  it  were  before  plea  pleaded: 
does  not  say  it  shall  be  uf^er  the  verdict,  or  v 
fore  the  verdict,  but  l>efore  the  e\'idenee  givci 
now  if  they  had  meant  what  these  genUeiM 
say,  they  would  have  appointed  it  to  be  bcAi 
the  Terdicti  which  would  have  included  d 


Jw  High  T^-eoiOH. 

ituam  then  it  had  been  like  the  penning 
•cfi  of  parliament,  the  statutes  of  Jeo- 
d  the  like,  whicb  saj,  that  after  a  ver- 
ih  and  such  exceptions  shall  not  arrest 
cot :  but  if  they  can  shew  me  any  sta- 
:  is  penned  like  this,  they  give  me  an 
all  those  statutes  are,  that  no  judg- 
all  be  arrested  or  delayed  upon  such 
exceptions  after  a  Terdict :  but  here  it 
ly  sball  not  arrest  judgment,  unless 
ptioD  be  taken  before  evidence  given  in 
irt.  My  loni,  we  submit  it  to  you,  we 
9  law-niakers  did  intend  somewhat  by 
ticalar  way  of  expression,  different 
olber  acts  of  parliament ;  and  truly  if 
as  we  offer  to  your  lordship,  wc  think 
ive  no  meaning  at  all.- 
ren.  Truly,  my  lord,  we  think  it  is 
in  what  the  pariiament  meant,  by  this 
B  ibis  act ;  the  design  was,  to  restrain 
ner  froan  moving  in  arrest  of  judgment, 
•pelUurr,  or  false  Latin,  or  little  matters 
if  he  did  not  move  it  in  a  proper  time, 
udi  a  liberty  allowed  him,  as  to  have  a 
the  indictment  sa  many  days  betbre 
ompelled  to  plead :  they  insist  upon  it, 
words  are,  belorc  evidence  given ;  it  is 
what  can  be  the  meaning  ot  that?  It 
at  such  time  as  the  law  allows ;  it  is 
dog  a  new  method  of  trial ;  you  Aall 
vpiion  before  the  evidence,  that  is,  be- 
trial,  for  it  can  never  be  intended,  that 
not  to  alter  the  course,  and  let  the 
bl«ak  in  between  the  timeof  the  jury's 
som,  and  the  evidence  given ;  that  by 
oald  ever  have  been  done  before. 
.  Skimer.  Pny,  Mr.  Attorney,  when 
«■  have  us  do  it? 

Gen.  R^iilarly  before  plea  pleaded,  at 
se  before  tlie  jury  be  sworn. 
/.  Undoubtedly  this  is  not  regular,  it 
vy  to  all  the  course  of  practice,  it  is 
dealiog  with  the  court.  But  tlien  there 
wr  consideratioB  in  the  case,  that  I 
lave  you  think  upon:  if  so  be  tlus  had 
a  trial  by  Niti  Priut,  then  the  judge  of 
"tatf  is  only  to  try  the  issue ;  but  now 
e  very  record  is  before  us,  and  we  are 
if  the  record,  as  well  as  we  are  to  asist 
f  in  trying  the  issue.  Now  take  it  in 
ler  case  of  the  like  nature ;  suppose  a 
Ihe  bar  in  any  civil  cause,  though  this 
wry  to  practice,  and  the  court  not  fairly 
(tb,  vet  when  we  have  the  record  before 
fina  an  error  in  the  record,  cannot  we 
be  indictment  and  discharge  the  jury  ? 
the  question,  Mr.  Attorney,  though  I 
Dttfcas,  I  do  not  know  that  it  has  been 
Me. 

Gem.  No,  my  lord,  in  a  case  of  treason, 
ibc  jury  are  once  charged,  they  are  to 
rvdict,  they  must  either  acquit  or  con* 

L  Mower.    It  was  done  in  Whitebread's 


ifiL  7,  f.  311  of,  thii  Colkctwn. 


A.  D.  1696.  [166 

Att.  Gen.  But  I  know  what  has  been  usu- 
ally thought  in  that  case,  and  1  believe  they 
cannot  shew  me  another. 

L.  C.  J.  Nay,  that  this  is  a  very  irregular 
motion,  is  very  plain. 

Sol.  Gen.  Certainly,  my  lord,  you  must 
take  it  as  the  Uw  was  before  this  act,  for  this 
clause  does  nothing  for  the  prisoner,  but  is 
against  him. 

L.  C.  J.  I  know  it  is  not  for  the  advanta^ 
of  the  prisoner,  therefore  I  put  it  as  a  case  in 
an  action,  or  an  indictment,  as  the  law  was 
before,  whether  this  being  a  trial  in  the  same 
court  where  the  indictment  was  found,  and  we 
find  an  insufficiency  in  the  record  before  us, 
whether  we  cannot  quash  the  indictment? 

Sol.  Gen.  Your  lordship  mentions  civil  ac* 
tions  ;  with  submission,  nothing  of  that  kind 
could  .be  doiieafler^oncethe  cause  came  to  trial, 
but  in  criminal  causes  accordinfi^  to  the  course 
of  practice,  which  will  always  be  the  law  till 
|Mu-ticular1y  altered  ;  I  believe  nobody  can  pre- 
tend that  after  issue  joined,  and  a  jury  charged, 
any  one  can  move  to  quash  the  indictmeDt,  I 
think  I  have  heard  it  often  said  in  this  court, 
that  in  capital  cases,  as  high-treason,  you  may 
put  in  a  plea  in  abatement  of,  but  not  a  motion 
to  quash  an  indictment;  1  am  sure  it  was 
disallowed  where  I  moved  to  quash  an  in- 
dictment of  murder,  let  them  but  show  any 
precedent  of  this  nature. 

Sir  B.  ShotDer.  We  will  show  you,  though 
this  is  the  first  case  upon  this  act  of  parliament, 
therefore  to  show  any  practice  upon  it  would 
be  very  hard  to  require  of  ns. 

L.  C.  J.  But  can  you  show  it  before  this 
clause  in  this  act  of  parliament  ?  whicb,  as  I 
told  you,  is  not  for  your  advantage ;  it  does 
not  ^ve  that  liberty  that  you  desire. 

Sir  B.  Shower.  All  the  clauses  in  this  act 
of  parliament  showed  their  intention  was 
this,  that  the  sense  of  the  law- makers  was^ 
that  we  should  have  this  liberty  at  any 
time  before  evidence  given,  for  it  there  lie 
such  words  as  showed  they  thought  it 
might  be  quashed  at  any  time,  though  they 
were  mistaken  in  the  practice,  yet  we  shall 
have  the  liberty  that  they  intended  us ;  and 
the  wording  of  this  act  shows,  that  the  parlia- 
ment thought  it  might  be  done  alter  tlie  trial 
begun,  before  evidence  given,  because  they 
restrain  us  from  taking  those  exceptions  after 
the  evidence  G^ven  ;  and  it  is  no  prejudice  to 
the  king  at  all  really,  it  is  rather  for  the  ad- 
vantage of  the  prosecution,  because  there  is 
none  of  the  evidence  disclosed,  and  therefore 
if  the  indictment  should  be  found  faulty,  still 
the  evidence  remains  undiscovered  upon  ano- 
ther indictment ;  and  1  have  often  heard  It 
said  at  this  bar  in  cases  of  indictments  for  fe- 
lony or  treason,  as  murder,  or  tlie  like ;  if  any 
one  did  come  as  amicus  curiae  and  acquaint- 
ed the  court,  that  they  were  ^iiig  to  proceed 
upon  an  erroneous  record,  or  give  an  erroneous 
judgment,  or  do  any  other  erroneous  act,  he 
ought  to  be  received  with  kindness,  because 
he  would  prevent  a  wrong  doing. 


l&T] 


8  WILLIAM  UL 


Trial  qf  Ambrose  Rookwood^ 


[UB 


L.  C.  J.  Tliftt  is  ID  the  proper  time,  not  to  i  or  aoy  such  notorious  crime,  till  after'  the  lad 


interrupt  the  trial  when  thcjiiry  is  once  sworn. 
p  Sir  B,  S/iOicer,  We  are  rcaily  to  oflTer  our  ex- 
ceptlons,  and  we  ho|u:  it  is  no  preiudice  at  all  to 
the  kin^;^  before  the  evidence  of  tuetact  isf^iven. 

Air.  Fhipps.  My  lord,  I  perceive  that  this 
clause,  as  they  w  oiild  have  it,  is  iutended  to 
prevent  us  from  moving  that  in  arrest  of  judge- 
ment, which  we  could  have  moved  l»efore,  aud 
ties  us  up  to  do  it  betbre  evidence  given ;  now 
I  would  fain  know,  if  we  could  not  before  this 
act  move  in  arrest  of  judgment  for  mis-spel- 
lingf,  or  false  LsUin,  or  improper  Latin. 

^U.  Cim,  You  mi^ht,  no  doubt  of  it. 

Mr.  Fhipps.    They  say    we  might ;    why 
then,  if  we  could  have  a  'time  to  move  it  af>er  i  time,  that  then  they  should  take  their 
the  verdict,  aud  that  lime  is  abridgeil  hy  the  '.  tion  and  no  other  time :   The  act  has  only  Hi 
act  of  parliament,  which  directs  that  it  shall  |  a  bound,  that  ihey  shall  not  do  it  afterwurii  | 

but  as  to  the  particular  time,  it  is  left  as  it  1MI 


determined. 

L.  C.  J.  No,  we  were  always  of  that  «|pi- 
nion,  never  to  allow  motions  to  quash  indict- 
raents  for  perjury,  murder,  or  any  great  of- 
ience,  but  it  must  be  moved  in  arrest  of  judfi 
ment  afterwards. 

Mr.  Cowper.  My  k>rd,  these  geatlciMi 
seem  to  beg  the  question  u|»on  this  ad  of  ysr 
liament,  as  if  it  had  apiiointed  this  lo  be  thi 
time  of  making  exceptions  to  the  indictaMBLj 
the  act  of  parliament  does  not  say  yon  ah4 
make  your  exception  immediately^  Mibre  tiM 
evidence  given  in  open  court,  as  if  it  had  fumtk 
ed  out  and  directed  to  them  that  partieahi 


be  before  evideuce  given  in  open  court,  surr; 
we  may  take  any  time  befto'c  the  evidence 

SVen,  aud  shall  not  be  restrained  further  than 
e  letter  of  the  law  has  restrained  us ;  for 
this  act  was  intended  for  the  benefit  of  the  sub- 
ject, and  ought  to  be  construed  as  much  in  their 
favour  as  the  letter  of  it  will  permit. 

Ml  Cen.  No  doubt  of  it,  it  is  to  be  done 
before  evidence  given :  but  the  question  is,  at 
what  time  it  must  l>e  l)cfore  the  evidence  given, 
whether  it  must  not  be  at  such  time  as  by  the 
course  of  practice  and  usage  of  the  law  it 
should  ha\  e  been  done  before  ;  if  you  will  sa- 
tisfy my  lord  and  the  court  that  ever  such  an 
exception  was  taken,  or  an  indictment  quashed 
between  the  swearing  of  the  jury  and  the  giving 
the  evidence,  ye  say  something ;  but  1  be- 
lieve not  one  instance  of  tliat  nature  can  lie 
given,  and  therefore  it  is  very  irregular  for 
lem  to  do  it. 

L.  C.  J.  They  do  not  pretend  to  it,  for  aughl 
I  bear,  for  1  would  put  tnem  upon  it,  to  show 
ine  whether  they  could  do  it  before. 

Sir  B.  Shou'tr,  I  do  not  question,  my  lord, 
but  it  might  be,  with  submission. 

Mr.  Conifers,  Did  you  ever  know  it  before 
that  any  one  undertotlk  to  inform  the  court  as 
amictu  curids^  but  it  was  to  prevent  a  wrong 
judgment  ?  And  for  that  you  have  your  pro- 
per  time  either  before  plea  pleaded  by  motion 
to  quash  the  indictment,  or  after  \erdict  to  ar- 
riist  a  judgment ;  this  act  of  parliament  han 
restrained  you  in  particular  instances  that  are 
mentioned  from  doing  it  after  verdict  in  arrest 
of  judgment;  but  having  given  you  a  copy 
of  the  mdictment  before  you  pleaded,  ^ou  have 
had  a  pro|>er  time  to  make  these  exceptions ; 
and  if  you  have  laiiscd  your  time  you  come  too 
late  to  do  it  now,  for  sure  nobody  eicr  made  a 
motion  to  quash  an  indictment  atter  issue  join- 
iBd,  and  the  jury  sworn. 

Sol.  Gen.  My  lord,  I  would  only  mention 
one  case,  and  that  was  of  sir  Richard  Mausell, 
upon  an  indictment  of  murder,  for  killing  the 
apothecary  in  llolborn ;  I  dicl  myself  move 
to  quash  the  indictment,  because  it  was  not 
expressed  in  what  year  of  the  king  the  fact 
was  done:  but  the  court  was  of  opinion  we 
iould  not  move  to  ^ua^h  an  indictment  for  that. 


before  to  the  nyular  course  and  method  of  piti 
ceediiigs,  which  is  before  plea  pleaded.  < 


Mr.  Fhipps.  My  lord,  they  do  not  aDMNi 
my  objection ;  it  is,  it  seems,  a  restriction  sf -| 
liberty  that  we  had  before  of  moving  in  aili4 
of  judgment ;  if  so,  we  ought  not  to  bo  it> 
strained  further  than  we  are  by  the  words  of  Ikl 
act  of  parliament,  which  say,  before  evidsM| 
given,  that  is,  at  any  time  before  evklenoegirMi 
as  well  aiiev  as  betore  plea  pleaded. 

Sir  B.  Shoicer.  I  would  sak  these  gentls— j 
whether  the  law-makers  intend«l  that  m 
should  have  no  advantage  of  excepting  agSBII 
false  spelling  aud  improper  Latin  ? 

BIr.  Conifers,  Yes,  they  did,  but  that }« 
should  do  in  your  profier  time. 

8ir  B.  Skotcer,  Then  the  time  for  doiag  1 
must  be  that  whieh  the  wonls  of  the  law  i^i 
before  the  evidence  given  in  open  court,  SM 
that  is  now. 

Mr.  Coni/er$.  No,  you  might  have  come  i 
the  day  of  arraignment,  and  have  taken  the  ad 
vantage  of  it  then  before  you  had  pleaded. 

L.  C.  J.  Ye  hare  had  my  opmion  whsft  ] 
think  of  it,  my  lords  and  brothers,  I  auppan 
will  tell  you  theirs. 

L.  C.  J.  Trebi/,  My  Lord  Chief  Justice  hi 
delivered  his  opinion' in  this  matter,  and  b 
thinks  fit  that  we  slM>uld  deliver  oura.  I  thid 
this  motion  of  the  prisoner's  counsel  to  quad 
this  indictment  after  the  jury  sworn,  is  iii« 
(j'ular  and  (juite  out  of  season  ;  the  intent  I 
tliis  clause  ui  this  act  of  parliament,  certaiil 
was  not  in  favour  of  the  prissoner  ;  it  abridgsll 
him  of  a  liberty  he  hail  la'fore,  but  gives  Ui 
nothing:  for  the  law-makers  did  think tba; 
had  given  the  prisoner  an  extraordinary  fovM 
in  the  foregoing  part  of  the  act,  in  giving  hii 
a  copy  of  tlie  indictment  five  days^  before  h 
should  plead,  aud  a  copy  of  the  pannel  twodaj 
before  he  should  be  trietl,  and  allowing  hn 
counsel :  and  all  these  advantages  were  I 
enable  him  to  auash  the  indictment,  or  fl 
process  returned,  for  the  clause  extends  I 
both ;  the  words  are,  **  That  no  indictment  M 
process  or  return  thereupon,  shall  bcqumhi 
on  the  motion  of  the  prisoner  or  his  counsel  fi 
mii-writing,  mis-spelling,  false  or  impinp 


fit  High  Treoion. 

ilm  eareqitioD  concerning' the  same  be 
dJ  made  in  the  respective  coart  where 
al  shall  be  by  the  prisoner  or  his  coun- 
rami  bcffire  any  eridencc  £fi?en  in  open 
lon  siich  indictment,  norsiial)  any  such 
Kin£r,  &c.  after  conviction  be  any  canse 
ladgment :"  Tlierefore  they  made  this 
tioary  profision  to  restrain  the  pri- 
n  part,  by  this  clanse;  as  much  as  to 
have  m  advantage  of  the  copy  of  the 
9ity  and  you  may  make  use  of  that  to 
by  motion,  if  you  think  fit,  as  you  ma^ 
I  process*  but  it  shall  be  *  beforo  evi- 
ivcu.*  It  is  true,  those  are  the  words, 
osinir  that  term,  viz.  *  quashing'  such 
eot  or  process,  shows  it  must  be  done 
a  way  and  time  as  is  proper  for  quash - 
d  the  very  words  are,  that  it  shall  be 
scion.  Now  we  are  to  ex|H>nnd  those 
And  1  say,  a  motion  to  quash  an  in- 
ty  mast  be'  understood  a  motion  in  the 
aeasoo,  which  I  think  is  before  plea 
;  hut  at  least  before  the  jury  is  sworn. 
iere  three  times  when  the  prisoner 
ia%e  had  the  advantage  of  a  fault  in  the 
ait  before  this  act.  1.  By  motion  to 
before  plea  pleade«l.  8.  Then  af^er- 
I  arrest  of  judgment :  and  3.  Af\er  that 
of  error.  Now  this  clause  of  this  act 
ray  the  privilege  of  moving  in  arrest  of 
Bt  for  mis-writing,  &c.  but  saves  the 
ge  upon  a  writ  of  error,  and  upon  a 
to  quash  the  indictment.  We  are  to 
r  what  is  a  proper  time  for  a  motion  to 
■  indictment;  the  motion  is  to  be  made  to 
1  and  to  them  alone.  It  is  not  to  be  made 
ovrt  and  the  jury.  When  the  jury  is 
il  application  is  to  be  made  to  the  court 
■g  a  jary  prevent  which  they  are  to  as- 
tW  trial  and  determination  of  the  fact 
I'bat  use  then  is  there  of  the  jury,  when 
ie  this  motion,  which  consists  only  in 
flaw?  They  mustbtand  by  and  i>e*out 
*  all  the  while  this  motion  is  makiiij^ : 
I  n«>t  reasonable,  nor  certainly  ever  was 
d,  that  af\er  a  jnry  is  sworn  to  try  a 
nf  fact,  they  should  stand  idle  while  you 
Ihitt^  which  you  should  have  moved 
they  came  to  the  bar:  suppose  you 
DOW  move  some  exception  to  tlie  Venire, 
trstnrn  tliereupon,  should  we,  when  we 
•V  also  have  admitted  the  jury  to  be 
quash  the  process  whereby  they  are  re- 
f  And  yet  we  may  as  well  do  that  as 
For,  Uie  act  provides  in  the  very  KSine 
sofH-eming  quashing  process  and  indict* 
But  wIkd  the  jury  is  sviorn,  and 
o  receive  their  evidence,  sure,  then  it  is 
ill  seamn  to  make  such  a  motion  ;  there- 
do  not  think  the  pariiament  intended  by 
ia«e  (which  was  a  kiml  of  exception  to 
uar  the  prisoner  received  by  having^  the 
fthf!  indictmeni)  to  institute  a  new  me- 
'  proceeiliD|(s  fur  motions  to  quash  in- 
nls,  even  when  a  jury  is  at  the  bar  and 
!•  try  the  issue,  and  there  is  nothing 
ID  ht  prpcodad  upooi  but  ODly  to  bear 


A.  D.  1696.  [170 

the  evidence  produced  for  the  proof  of  that 
issue,  till  the  jury  b  dischargeii.  But  still 
this  I  would  say,  this  is  a  new  case,  and 
upon  a  new  statute.  I  am  tmly  of  opinion, 
that  the  motion  is  altogether  unseasonable 
and  irregular,  and  it  should  have  been 
made  before,  and  j^ou  had  a  full  oppor* 
tunity  to  make  it  this  day  seven -nif^ht  before 

Elea  pleaded,  and  you  might  likewise  to  day 
efore  the  jury  was  sworn  ;  therefore  when  the 
jury  are  now  at  the  bar  actually  entered  into, 
and  employed  u|>on  the  service,  the  court 
ought  not  to  lie  interrupted  by  such  a  motion. 
Yet  nevertheless  1  would  propound  this,  that, 
seeinj(  it  is  a  new  case  and  uiK>n  a  new  statute, 
the  court  would  forgive  the  irreg^nlarity,  ^fur  1 
think  it  does  need  forgivcn(.f)s)  and  if  the  king's 
counsel  will  consent  to  it  (to  prevent  any  error 
or  any  pretence  of  hardship  u|k>u  a  new  law) 
that  we  should  hear  thf  ir  exceptions. 

L.  C.  Baron.  (Sir  Edward  Ward).  This  act 
of  parliament,  as  it  has  given  a  benefit  to  the 
prisoner  that  he  had  not  before,  in  allowing  him 
a  copy  of  his  indictment,  in  order  to  his  making 
exceptions  ;  so  it  has  restrained  him  as  to  the 
time  of  makin<^  those  exceptions :  that  he  should 
have  time,  there  is  no  doubt:  the  time  limited 
for  it,  as  this  act  says,  must  be  before  evidence 
given,  because  they  th<iught  it  unreasonable  that 
there  should  be  any  qiiasinng  of  the  indictment 
after  such  time  as*the  king  had  given  any  evi- 
dence whatsoever  in  the  case  ;  for  that  would 
be  a  discf  ivory  of  the  king's  evidence,  and  great 
inconveniences  would  ensue  thereupon  ;  but 
the  questiim  is  at  what  time  this  is  to  be  done ; 
whether  it  may  be  at  any  time  hefbre  evidence 
gfiven  or  no  ;  it  did  intend  surely  that  the  mo« 
tion  to  quash  the  imliclniout  and  the  exceptions 
to  it  mi^rlit  have  their  proper  effect,  and  that 
must  be  before  the  trial ;  for  it  was  not  the  in* 
tent  of  the  act  to  alter  the  metlio<l  of  proceed- 
ings, and  it  is  to  no  purpose  af^er  the  jury  is 
sworn,  for  then  their  proper  office  is  to  deter- 
mine the  fact ;  now  if  before  this  act  of  parlia- 
ment it  never  was  allowed  to  take  any  such  ex- 
ception as  this  after  the  jnry  sworn,  it  will  be 
consistent  with  the  words  of  the  act  of  pariia- 
ment, which  are,  *  That  it  shall  be  done  before 
*  evidence  given*:  if  then  it  be  in  the  regular 
time  for  motions,  which  is  before  plea  pleaded 
or  jury  sworn,  that  is,  before  evidence  given  ; 
for  it  is  not  said,  as  Mr.  Cow  per  observed,  that 
it  should  be  immediately  before  the  evidence 
given,  I  think  sure  such  an  exposition  as  was 
Ibrmerly  made  ought  to  he  made  in  this  case, 
the  time  not  being  precisely  fixed  by  this  act ; 
if  there  were  a  certain  time  determined  when 
men  should  take  their  exceptions,  as  we  know 
it  has  been  in  practice  before  issue  joined,  then 
af^er  the  jury  is  sworn  it  is  an  improper  time 
then,  I  think,  to  make  such  exceptions :  I  do 
not  suppose  this  act,  as  to  the  method  of  pro^ 
ceedings ,  than  it  was  liefoi-e,  but  this  ex- 
ception ought  to  be  taken  before  plea  pleaded  : 
tmly  it  is  a  new  act  of  parlinment,  and  this  is  so 
far  within  the  words  of  the  act  that  it  is  before 
evidence  given,  as  the  couiwel  for  the  prisoner 


171] 


8  WILLIAM  III. 


Trial  ^Amiroie  Raohoaod^ 


[17J 


say.  If  this  can  be  governed  and  ruled  by 
proceediog^  and  pracUce  in  former  timtis  in 
cases  not  of  feloay  or  treason,  but  oaly  in  cri- 
minal cases :  If  nobody  should  suifer  bv  any 
interpretation,  I  should  think  it  oujjrht  to  bear  a 
conformable  construction  to  what  the  practice 
"Was  before.  1  lake  it  you  have  lost  the  re^lar 
time  for  makings  your  exception,  and  you  iiifert 
the  whole  method  of  proceedings  u|>on  trials : 
for  to  what  purpose  is  it  to  take  exceptions  to 
quash  the  indictment  when  the  jury  are  once 
char^^d  with  it  ?  If  it  be  an  indictment  that 
ought  to  be  quaslied,  the  jury  ought  not  to  lie 
cliarged,  3'ou  have  had  two  times,  and  they  are 
both  of  them  elapsed,  for  this  matter,  that  is,  at 
the  arraitjrnineut,  and  before  the  jury  sworn; 
yet  I  woiild  propose  it  to  the  kind's  counsel  as 
my  lord  chief  justice  of  the  common  pleas 
has  done,  it  being  a  new  case,  that  it  sliould  be 
better  considered  of  and  agi-eed  upon,  that  in 
these  cases  we  mav  cro  on  upon  a  certain  rule 
that  it  may  be  established  for  all  time  to  come. 

Just  Nevilr.  1  would  begin  with  the  pro- 
posal, because,  I  believe,  I  may  not  he  so  clear 
m  my  opinion,  otherwise  I  must  df^Iiver  my 
thoughts  according  to  my  judgment,  but  1 
ivould  have  tlie  king's  counsel  consider  of  the 
proposal. 

Att,  Gen,  My  lord,  for  us  to  consent  to  that 
in  such  a  case  as  this,  where  the  court  thinks  it 
not  regular,  would  be  pretty  hard  to  desire  of 
us;  if  any  thing  of  advantage  should  happen 
on  the  other  side,  I  verily  think  the  counsel  for 
the  prisoner  will  notl>e  so  ready  to  consent  to 
wave  any  such  advantage,  nor  am  I  for  asking 
them  to  do  it ;  this  clause  goes  only  to  some 
faults  in  the  indictment ;  mis-spelhng,  mis- 
writing,  false  and  improper  Latin,  that  is  all  that 
they  are  restrained  from  moving  in  arrest  of 
judgment ;  any  thing  else,  any  uncertainty  or 
other  matter,  that  is  not  compi-ehcnded  under 
these  particulars,  they  may  take  advantage  of 
to  move  in  sluy  of  jads;tnent  at'ur  u  verdict ; 
this  clause  does  only  abridge  them  from  moving 
in  arrest  of  judgment  for  ums- writing,  mis-spel- 
ling, false  or  improper  Latin  ;  therefore  ii' your 
lordship  should  think  it  reasonable  we  should 
consent  to  let  them  in  to  make  any  exception 
now,  it  must  be  confined  to  those  particular  ob- 
jections of  false  and  improper  Latin,  there  can 
be  no  colour  to  make  the  liberty  larger,  because 
for  any  thing  else  thev  are  not  restrained  from 
moving  it  in  arrest  of  judgment,  for  there  can 
be  no  hardship  in  that  case,  as  I  think,  they 
have  no  reason  to  complain  that  there  has  been 
in  «ny  other  |mrt  of  the  case;  but  for  thase 
particulars  that  there  may  he  no  complaiut  of 
nardship,  if  your  lordship  thinks  it  reasonable 
we  should  consent,  it  may  be  we  may  be  pre- 
vailed upon  to  do  it,  though  whatever  hardship 
does  liap|)en  it  is  their  own  fault,  and  the  pri- 
soner may  thank  his  own  counsel  for  that  hard- 
ship :  if  we  assist  them  now  to  let  them  in,  it 
ouj^ht  to  be  taken  as  «  ff i*^'  kindness ;  and 
truly,  my  lord,  1  am  unwiiling  to  do  any  thing 
that  your  lordship  and  the  court  should  think 
bard  open  the  pnaoner.    Certainly  it  ia  the 


ftult  of  their  own  oounael,  now  the  law  baa  al 
lowed  the  prisoner  oonoadi,  not  to  take  tb 
proper  time,  and  parsue  the  naual  piaihodi 
and  it  is  a  strain  beyond  what  ia  iiraal,  that  w 
must  help  theur  faults  by  oar  consent ;  howeva 
if  the  court  think  it  reasonable,  I  shall  not  hi 
against  it,  but  then  I  am  sure  the  court  w|] 
tiuce  care  they  shall  be  confined  to  thoae  parti 
culars  that  are  mentioned  in  the  act. 

X.  C,J.  No  doubt  of  it:  Therefora  air  Bai 
thobmew  Shower,  are  your  exoeptiona  for  am 
spelling,  mis- writing,  or  false  or  impiepi 
Latin  f  for  if  th^y  he  such  things  as  yoo  nun 
move  in  arrest  of  judgment  and  hare  thaiai 
vantage,  then  there  is  no  colour  that  we  ibonh 
break  through  all  the  rules  of  prooeedii^grl 
admit  such  an  irreguUir  motion  aa  this. 

Sir  B.  Shower.  My  lord,  in  the  caae  of  lb 
life  of  a  man  I  will  not  take  upon  me  to  ag 
what  is  mis-spelling,  mis- writing,  or  fidie  f| 
improper  I.Atin,  or  what  is  substantial ;  .bol  d 
that  I  say  is,  I  have  five  exceptions,  ereiy  ev 
of  them  imports  a  doubt,  as  I  take  it,  wortly 
the  consideration  of  the  court,  and  some  of  ihgl 
effectual  enough  to  quash  the  indictmeni ;  bri 
for  me,  when  a  man's  life  is  at  stake,  and  J 
partly  depends  upon  me  as  his  counsel,  te  ■■ 
what  is  pro|ier  or  improper  Latin,  or  toadauH 
to  be  matter  of  substance,  and  then  to-monei 
to  have  it  come  and  told  me,  you  should  ban 
moved  this  to-day,  then  I  am  sure  they  wmH 
have  reason  to  say,  it  was  the  fault  of  tbe  pA 
soner's  counsel;  for  he  would  have  dMH 
very  ill  counsel,  in  me,  I  confess,  if  I  abod 
consent  to  put  any  such  disadvantage  apH 
him.  1  beg  the  favour  that  I  may  have  tbaJb 
berty  to  propose  my  objections,  which  I  thai 
are  worth  considering  of;  it  is  for  the  adfl» 
tage  of  the  king  for  us  to  take  our  exoeptiw 
all  together,  because,  else,  if  any  of  them  prM 
material,  the  trouble  of  the  trial  will  be  hi 
mispenceof  time. 

L.  C.  /.  No,  we  cannot  hear  all  yoor  ob 
jections,  but  those  that  are  mentioned  partiai 
larly  in  the  act  of  parliament !  for  such  as  Ml 
not  mentioned  in  Uie  clause,  you  have  a  pio 
per  time  to  move  them  in  arrest  of  judgmeoL 

Sir  B.  Shover.  Then  we  will  put  tfaw 
that  are  within  the  act. 

AU,  Gen.  If  we  do  any  thing  by  way  i 
consent  in  this  matter,  we  must  insist  upon  il 
that  they  lie  confined  to  the  particulars  intb 
Act ;  we  desire  they  may  0|>en  their  objeetiM 
to  the  court,  and  if  the  court  shall  think  thq 
are  properly  under  those  heads,  then  they  wa 
consider  ot  them,  if  the  court  he  ol*  anothi 
mind,  then  they  must  be  reserved  till  the  pie 
per  time. 

L,  C.  J.  Do  you  consent  then,  Mr.  Attorn^ 
that  they  shall  now  take  those  ezceptiona  tbo 
are  mentioned  in  theactof  imrliament  P 

AtL  Gen,  If  the  court  think  it  reaaonahl 
upon  those  terms,  1  do. 

Just.  Fawys,  Let  them  open  them  if  yea 
lordship  please,  and  let  us  keep  the  power  b 
our  own  hauda  to  do  aa  our  discretioni  ihal 
direct. 


fir  High  Treason. 

IVuty  I  do  not  know  -n^kether  we 
thing  in  thb  matter,  1  question 
ler  it  be  discretionary  in  os  to 
rh  ell  the  common  method  of  pro- 
admit  of  such  irregularities. 
reby»  1  bate  a  great  inclination  to 
lat  we  majr  get  rirl  of  these  pre- 
itions,  which  I  am  apt  to  think 
Yened,  disappoint  the  expectations 
raised  by  this  mentioning  them  in 
t  I  have  that  opinion  of  the  ability 
lection  of  the  counsel,  that  1  be- 
had  had  exceptions  sufficient  to 
lictment,  we  should  ha?e  heard  of 
le  more  nroper  than  this  now  be- 
rearin;;  the  jury  and  giving  evi- 
cro.  But,  possibly,  the  counsel 
t  to  make  an  essay,  and  try  what 
•tit  of  ihis  unusual  expression  in 

Vo,  DO,  1  know  tliis  is  a  piece  of 
oiirt  is  not  well  dealt  with  in  it. 
Treby,  Indeed  1  am  very  willing 
for  that  reason. 

look  apon  it  only  as  mere  trick, 
of  art  to  take  the  opinion  of  the 

trrr.  My  lord,  it  was  my  mistake 
take  it,  if  the  act  of  parliament 
otherwise,  they  woold  have  ex- 


A.  t>.  1696. 


[174 


oes  the  act  of  parliament  give  you 
tVy  and  a  greater  than  you  had 
It  not  deai^  to  abrid^  you  of  a 
oa  had  before  ?  Ortamly  it  never 
t  the  court  should  admit  of  any 
ceediugs. 

f//.  You  should  bare  timed  your 
r ;  for  certainly  now  the  jurr  is 

must  give  a  verdict  either  ofac- 
vietion ;  and  if  you  move  to  quash 
nt,  and  your  exceptions  are  ma- 
ry  cannot  proceed ;  you  see  what 
motion  has  brought  it  to,  'tis  cer- 
fity  irregular  motion. 
yehy.  What  judgment  would  you 
ire?  I  would  ask  you  that:  if 
on  were  moved  before  the  jury 

and  it  proved  material,  the  proper 
nv,  that  the  indictment  be  quash- 
r  they  are  sworn,  what  judgment 
re  ?  Must  we  not  expect  the  vcr- 
iry  first  upon  the  fact  ?  And  must 
e  judgment  upon  your  exception  P 
ouer.  I  know  not  whether  your 
r  not  give  judgment  first  to  quash 
at,  and  then  discharge  the  Jury. 
Freby.  And  what  if  we  do  not  find 
sh  it,  then  you  will  say,  we  must 
he  evidence,  as  we  were  going  be- 
rfering  ?  Are  we  to  be  doing  two 
ee?  I  am  pretty  certain  you  can 
precedent  for  any  like  proceedings 
it  is  confbuncung  the  offices  of 


i^"i7, 


p$.  If  your  lordships  tried  the  va- 
r  exoeptioDii  and  nnd  occasion  to 


quash  the  indictment,  there  wiH  be  no  need  of 
a  Jury.  ' 

L.  C.  J.  Upon  the  statute  of  Jeqfailes  in  a 
civil  cause,  supi>ose  at  a  trial  at  bar,  it  appears 
u|>on  the  face  of  the  declaradon,  that  there  is 
such  a  mistake  as  will  be  cured  by  the  verdict; 
bntifthe  party  had  demurred,  and  shown  it 
for  cause,  it  would  have  been  fatal.  Do  you 
think,  when  he  has  waved  the  benefit  of  de- 
murrer and  pleaded  to  issue,  that  you  slialt 
move  this  and  help  yourself  by  such  a  motbn^ 
becanse  it  will  be  helped  ai^er  a  verdict  ? 

Sir  B.  Shower,  It  this  act  had  been  worded 
as  that  Statute  of  Jerfaiiet  is,  it  may  be  we 
might  not. 

L,  C.  J.  Wh}',  it  is  not  said,  in  the  Statute 
of  Jeafailetf  that  it  shall  be  good  afler  issue 
joined,  before  the  jury  is  charged  or  sworn, 
but  that  it  shall  not  be  good  afler  the  verdict. 

Sir  B.  Shower,  It  is  before  the  evidence 
given. 

L,  C.  J,  Could  he  do  so  in  any  case  before 
this  act,  and  does  the  act  enlarge  your  libertyy 
or  abridge  it? 

L.  C.  J.  Treln/,  Sir  Bartholomew  Shower, 
you  iesist  upon  part  of  the  words  of  the  act  of 
parliament ;  it  suys,  No  indictment  or  process 
shall  be  ouashed  upon  the  motion  of  the  pri- 
soner or  nis  counsel,  unless  it  be  made  before 
any  evidence,  &c.  Now,  I  suppose,  the  par- 
liament use  that  expression,  *  upon  the  motion,* 
in  the  same  sense  as  it  is  useil  in  law,  viz.  for 
such  a  one  as  should  be  in  the  time  when  mo- 
tions for  quashing  the  indictments  are  proper- 
ly to  be  made ;  now,  when  is  that  ?  It  is  plain, 
it  was  always  before  the  jury  come  to  the  bar, 
nay  before  the  plea  of  the  party.  If  that  be 
the  proper  time  to  make  such  a  motion,  then 
that  expression  in  this  act  of  a  *  motion  to  quash 

*  the  indictment*  will  very  well  help  to  con- 
strue the  other  part  of  the  clause  that  you  in- 
sist upon :  For  if  the  motion  be  made  before 
plea  pleaded,  it  is  certainly  before  the  *  evi- 

*  dencc  civen*  in  your  sense.  And  1  conceive, 
that  under  that  expression  [evidence  givenj 
which  signifies  the  main  part,  the  parliament 
intended  to  comprehend  the  whole  proceeding 
to  trial,  beginning,  if  not  from  the  pleading 
Not  Guilty,  at  least,  from  the  Hwearing  the 
jury.  «  Before  evidence  given  in  court,'  may 
reasonably  be  expounded,  *  Before  the  prisoner 
«  hatli  fully  entered  into  that  contestation  of  the 

*  fact,  which  is  to  be  determined  only'  by  evi- 
dence in  court.  I  attended  the  court  of  Ring's 
Bench  a  long  time,  aiid  I  believe  that  1  have 
heard  it  said  a  hundred  times,  upon  motions  to 
quash  indictments  of  great  or  odious  offences : 
No,  try  it,  says  the  Court,  we  will  not  quash  it, 
plead  to  it,  let  the  fact  he  tried,  ynu  may  then 
move  it  in  arrest  of  judgment.  Those  expres- 
sions shewed  that  the  pro|)er  time  for  a  motiea 
to  quash  an  indictment  was  before  plea,  though 
they,  in  their  discretion,  would  not  grant  a 
motion  to  quash,  in  cases  of  such  great  offences. 
But  sure  they  did  not  think  that  when  a  jury 
came  to  the  bar,  it  was  a  tolerable  time  to  move 
to  quash  an  indictment ;  there  was  no  expecta- 


8  WILLIAM  m. 


176] 

tioD  of  lieariDg  of  jiucb  a  motion  then.  And 
certainly  this  clause  which  is  made  wholly 
against  the  prisoner,  sliould  not  be  construed 
to  help  him  to  sucli  a  new  extraordinary  and 
absurd  liberty. 

Sir  B.  Shower,  My  lord,  with  submissioa, 
that  practice  goes  upon  another  reason,  the 
court  would  not  quash  it  at  ail  u|)on  a  motion ; 
this  act  of  parliament  supposes  that  you  will 
quash  upon  a  motion  at  any  time  b^ore  e? i- 
dence  gk?en  :  We  never  heard  of  a  motion  to 
quash  an  indictment  for  felony  or  treason,  bat 
atill  the  court  would  always  say,  demur,  or 
plead,  or  move  in  arrest  of  judgment ;  but  by 
this  law  it  seems  the  sense  of  the  parliament 
was,  that  it  mi^lit  be  quash t  upon  a  motion. 

Sol.  Gen,  8ir  B.  Hhower  is  come  to  what  I 
said,  that  in  truth  there  is  no  such  thing  as 
quashing:  an  indictment  for  treason  or  felony, 
as  I  mentioned  in  sir  Rich.  Mansel's  case,  and 
I  think  the  rule  that  was  given  in  that  case 
will  serve  now  in  this  case ;  I  am  for  consent- 
ing, if  they  be  kept  i>itliin  the  limits  of  the  act 
of  parliament ;  but  I  must  desire  the  opinion 
of  the  court  before  we  do  consent. 

L.  C.  J.  Holt,  Aye^  aye,  Go  on,  brother 
Nevile. 

Just.  Nevife,  1  must  confess  I  cannot  but 
doubt,  as  this  act  is,  there  were  two  times  that 
tliey  bad  liberty  of  taking,  these  exceptions  to 
indictments;  but  indeed,  in  murder  and  treason 
they  were  sehlom  admitted,  till  they  came  to 
move  in  arrest  of  judgment;  but  still  there  was 
always  a  privilege,  and  a  time  given  to  the 
prisoner,  be  the  crime  what  it  would,  to  take 
that  advantage  which  the  law  ^ave  him,  to 
prevent  judgment  against  him.  Now  I  agree, 
It  is  irregular  and  unseasonable  to  offer  it  now, 
and  quite  different  from  all  former  practice; 
you  might  have  done  it  before  now,  the  act 
says  expressly  it  must  be  done  before  evidence ; 
but  you  might  have  taken  advantage  before  tlie 
jury  was  sworn,  nay  belbcs  you  had  pleaded, 
but  you  have  lapsed  your  time.  Yet  truly, 
notwithstanding  y<>"  ^^^'^  lapsed  your  time,  I 
cannot  satisfy-  myself  to  take  away  the  liberty 
that  the  law  has  given  the  prisoner  sometime 
or  other,  to  except  against  the  indictment.  It 
is  plain  that  before  this  act,  after  verdict  he 
might  have  moved  in  arrest  of  judgment,  now 
he  caunot  do  so ;  whether  the  tault  be  in  the 
counsel  1  cannot  tell,  but  the  great  prejudice  is 
to  the  person  that  is  to  be  tried,  who  will  now 
be  wholly  precluded  from  making  any  advan- 
tage of  the  exceptions  be  has  to  the  indictment, 
because  by  the  act  he  cannot  move  in  arrest  of 
judgment.  This  seems  a  strong  implication 
that  the  parliament  intended  he  must  hare  some 
time  or  other,  but  before  evidence  given,  to 
offer  his  exceptions.  I  say  this  only  to  those 
particular  things  that  are  mentioned  in  the  act, 
mis-writing,  mis  snelling,  false  or  improper 
Latin ;  as  to  these  four  particular  things  which 
the  party  is  barred  from  moving  in  arrest  of 
judgment,  I  cannot  satisfy  myself  but  that  he 
■hoald  have  one  time  or  another  to  take  thu 
advaatago  before  tho  c?  idence  giTOOi  mud  thera- 
8 


Trial  ofAmirose  Rookwoodf 

fore  I  think  he  should  haver  it  now :  It  ia 
it  is  altogether  irregular,  the  jury  being  ■ 
and  it  ought  to  have  boen  done  before ; 
hope  if  it  bo  admitted  now,  it  u  ill  be  witi 
observation,  that  nobody  wiiKever  offer  a. 
time  to  come.     An  tbia  case  is  before  u 
the  act  of  parliament,  which  perhaps  ma 
led  the  counsel  into  that  mistake,  that  it 
be  any  time  before  evidence  given,  ■ 
they  know  the  proper  time,  and  the  ■ 
method  in  other  cases ;  yet  I  doubt  it 
to  put  such  a  construction  upon  this  acfe 
sudden,  ^uite  to  debar  the  prisoner  of  M 
nefit  of  his  exceptions  to  the  indictmeoi. 

Just.  Powell.  I  have  already  dedaB 
opinion,  that  the  prisoner  has  had  bis 
time  for  making  his  exceptions,  but 
lapsed  that  time ;   but  1  am  not  mfnm 
motion  iu  a  case  of  life,  upon  ao  indiotnr 
so  great  a  crime  as  treason  is ;   and  wb4 
oonitequence  is  so  great,  if  it  may  <wdsxs 
the  rules  of  law,  and  it  be  the  sense^ 
court,  and  the  king's  counsel  conaaat 
them  be  heani,  I  submit  to  it,  nay  I 
second  or  third  that  motion  that  they  m 
heard. 

Just.  Eyres,  Truly  I  am  of  the  warn 
nion,  1  think  we  ought  not  to  alter  the  ti 
course  of  law  by  words  of  implication,  b 
any  further  than  the  act  of  parlianaent  doc 
press.  The  act  appoints  that  a  copy  of  d 
dictment  should  be  delivered  to  the  prison 
many  days  before,  to  enable  him  to  mtl 
exceptions,  and  therefore  deprives  him  i 
benefit  of  those  exceptions  af\er  convid 
arrest  of  judgment.  1  see  no  words  in  tl 
of  parliament  that  do  alter  the  coarse  of 
ceedings  as  to  this  matter,  from  what  it  i 
all  civil  and  criminal  causes  before ;  p 
must  take  their  advantage  of  excepting  ii 
proper  time,  but  when  it  comes  to  issiM 
next  thing  to  be  done  is  the  trial ;  and  ti 
must  needs  say  the  counsel  are  to  blame 
knew  this  so  very  well,  that  it'  they  bav< 
advantage  of  excepting,  they  did  not  tak 
advantage  sooner,  it  is  their  fault ;  but  i 
it  is  so,  I  am  of  opinion  not  to  foreclose  tfa 
soner,  as  the  case  stands.  I  would  be  1 
of  life,  but  at  the  same  time  I  declare  m; 
nion  upon  this  act  of  parliament  as  the  r 
my  brothers  have  done,  to  prevent  the  obj 
for  the  time  to  come ;  yet  seeing  there  i 
misfortuue,  and  there  would  be auardshif 
the  prisoner  by  the  default  and  neglect 
counsel  in  the  case  of  a  man's  life,  I  wo< 
so  tender  as  to  indulge  them  to  make  the 
jections  now. 

Mr.  Baron  Powyt.  I  am  of  the  same  •; 
the  prisoner  has  lapsed  his  time,  for  1 1 
this  clause  of  this  act  of  parliament  haa.D 
tered  the  common  course  of  proceedings  j 
I  take  it,  it  signifies  very  little  in  this  ca» 
certainly  it  was  intended  to  disable  the  pri 
and  not  enable  him  at  all ;  and  theielb 
the  case  is,  I  think  it  very  irregular  an 
practic^le  to  introduce  so  great  a  noTol 
to  admit  the  motion  forqaashing  thai 


in]  Jbr  High  Treason* 

■«i,«bnithejiii]r  k  twoni,  and  when  the 

Ad  iitke  ooljr  angle  pomt  to  be  detemiiaed, 

iiri  trciT  tUnpebe  ooj^  in  legal  course  to 

raatbm or  after,  but  for  us  to  contbund 

MM,  «•  lime  for  pleading,  another  time  for 

lriil,a<iMlber  for  arrett  of  judgment,  all  at 

eaee,  arftihtTe  a  jury  attending  merely  to 

hnr  cMMd  tt  the  bar  moot  points  of  law, 

«hiih  iri[k  be  determined  either  before  or 

rfbr Attml,  iiw  very  irregular,  that  it  really 

jgaihuM  Mtbing  but  confusion,  which  courUi 

tfjriiBeNgluto  avoid  aboTe  all  things,  and 

e^kliheep  to  the  proper  seasons  that  the 

kvibai.  Therefore,  truly,  I  think  in  strict- 

Mitf  hv  we  oi^bt  not  to  allow  it ;  but  it  be- 

i^iiiCMof  life,  and  it  being  a  new  case 

9im  I  Mw  Id  of  parliament,  if  the  kind's 

otmI  llub  fit  to  consent,  I  shall  be  for  it ; 

Vh^  I  tkmk  io  strictness  of  law  we  cannot 

iU,Ga.  My  lord,  I  am  Tery  unwilling  to 
^Ae  pnNMf  any  advantage  that  he  might 
fcwirity  thiv  act  of  parliament,  though  his 
•MiHafcilipt  the  proper  time;  if  sir  Bar- 
Mkv  Shower  will  say  bis  exceptions  are 
H  Mf  sf  the  four  particular  heads  mentioned 
■*■  Awe  of  the  act  of  parliament,  for  we 
■■oifiDctheni  to  that,  then  we  do  consent 
Atf  he  Aoold  make  them  now. 
^C/.  Truly,  Mr.  Attorney,  if  you  do 
^MM  that  they  take  their  exceptions  now, 
na^csonler  of  it  whether  it  can  be ;  hut  I 
**^*g  fco*  we  could  admit  them  to  that  li- 

[i****'  ^''^  ^^  *^®™  ^  •"y  i\img  ma- 
JiWy  Diy  nMve  it  in  arrest  oV judgment. 
,Jf^^^,  And  I  believe  tliey  won't  say 
» ^jWiuuj  are  ip  slight,  as  to  be  only 
■^■fcrm ;  they  say  they  are  substantial, 
"**iyeor  lordship  will  hear  them  in  a 

^^fiwfr.  I  do  hot  know  whether  I  am 
**Miiithelaw,  I  am  sure  you  are  mis- 
fen  ■  ike  indictment. 

_f  ^'-  J-  H  ell,  do  you  eonsent  to  let  them 
Hitfcdroijections,  as  to  those  four  heads  in 
■iflefjiafliameijl? 
da.  GfR.  ^'es,  mjr  lonl ;  if  it  be  any  niat- 
kifrjbstaoce,  that  is  out  of  the  case  at  pre- 
^  ^  the  provision  of  the  act  of  parlianicut 
^*!y  ^  mere  matter  of  form,  and  I  should 
**i^  uowilling-in  auy  point  that  is  material, 
^■■k  a  prtfoedeot  iu  such  a  case  as  this. 
^C/.  1  confess  if  you  bad  consented  far- 
"^iHoooiknow  bow  we  should  hare  ad- 

I^C.  J.  Trek^.  I  tell  vou  how  I  thought  it 
Wtbednoe ;  you  might  have  committed  an 
*|khniy,  for  ii>liich  in  a  case  of  life,  and 
2*'Mw  law,  i  believe  aud  hope  we  should 
"•k««  forgiven. 

^C  J.  Well,  for  my  |iart  I  will  not  com- 
''"■rimgubuity  upon  any  account  whatso- 
^1 1  cannot  see  how  by  law  thev  can  take 
ygyionsto  the  indirtment ;  Mr.  Attorney 
"Jl'BKnmli  and  '^'  h«  <K^*  I  ^ink  it  could 
rH  nleasbe  did  also  csonaent  to  discharge 
*!J*7i  bat  I  ne  they  will  Dot  ofitr  any  ob- 

VOLXIIL 


A.  D.  1696.  [178 

jections  according  to  your  consent,  Mr.  Attor- 
ney, and  therefore  pray  go  on  to  open  the  evi- 
dence. 

Att.  Gen.  May  it  please  your  lonlship,  and 
vou  gentlemen  ot  the  jury,  the  prisoner  at  the 
bar.  Ambrose  Rookwood,  stands  indicted  for 
liigh»treason,yin  compassing  and  ima(riningthe 
death  of  his  majesty.  Gentlemen,  the  overt- 
acts  that  are  laid  in  the  indictment  to  prove  this 
treason,  are ;  that  he,  ton^cther  with  divera 
others,  had  frequent  meetings  and  consultations 
in  order  to  assassinating  his  majesty's  royal 
person,  and  did  provide  horses  and  arms  for 
that  purpose. 

Gentlemen,  the  evidence  that  you  will  hear, 
to  prove  these  facts  that  are  thus  laid,  will  be 
of  this  nature ;  you  will  hear  by  the  witness, 
that  there  has  been  for  some  years  a  design 
carried  on  to  murder  the  king's  person ;  that 
bhis  was  discoursed  of,  nnd  several  debates  and 
consultations  were  had  about  it  the  last  year, 
some  thne  before  the  king  went  to  FlanOera ; 
there  was  several  meetings,  where  were  sir 
William  Parkyns,  captain  Porter,  and  Chjir- 
nock  that  was  executed,  and  several  others, 
and  there  they  did  consider  in  what  way  to 
take  off  tlie  king  at  that  time ;  and  you  will 
hear  they  did  expect  a  commission  to  authorize 
it  from  the  late  kin^  James ;  but  then  the  com- 
mission did  not  come,  they  had  not  any  such 
at  that  time  ;  but  they  did  tlunk  dt  to  not  it  in 
execution  without  any  such  order  and  autho- 
rity, and  therefore  they  endeavoured  to  have 
got  a  vessel  to  have  carried  them  off  afUr  they 
had  executed  this  bloody  conspiracy ;  hut  it 
happened  his  majesty  went  to  Flanders  sooner 
than  they  thought,  and  they  could  not  provide 
themselves  of  a  security  fbr*n  retreat,  aud  so  at 
that  time  the  design  was  laid  aside. 

Hut,  gv-ntleinen,  you  will  hear  this  conspi- 
racy was  renewed,  a*nd  Ki:t  on  loot  this  %vinter ; 
and  in  order  to  the  accouiplishmcnt  of  it  you 
I  will  hear,  that  almut  Christmas  la^t  there  wertt 
several  persons  sent  from  France  hy  the  late 
king  James,  on  purpose  to  put  this  horrible 
desicfn  in  execution.  Sir  George  Harcley  was 
to  be  at  the  head  of  it ;  he  was  a  lieutenant  in 
one  of  the  late  king  Jauies's  troops  of  guards 
in  France,  he  wos  sent  over  with  a  ci>mmission, 
and  Mr.  Hmiktvond,  tlip  prisoner  at  the  bar, 
was  a  brigadier  in  the  guards  there ;  these 
came  over,  and  several  oilier  troopers  of  the 
late  king  James's  guartl)«,  by  two  or  three  at  a 
time,  that  they  mii^ht  iiol  lie  observed;  parti- 
cularly you  will  hear,  that  when  sir  George 
liarcley  was  roine  over,  s<*vcral  troopers  were 
sent  hy  king  James  hini*^elf  to  come  to  him  at 
St.  Gernmins :  and  there  he  told  them  he  had  a 
piece  of  service  for  ihcni  to  do  in  Kusrland,  and 
that  they  should  obser\e  sir  George  llarcley'a 
orders  and  directions.  !\|ore  particularly  there 
was  one  Harn«  aud  Hiire,  two  troupers  in  the 
guards,  were  sent  lor  by  the  late  king  Jamea 
into  the  late  queen's  bed-chamber  at  St.  Ger- 
mains,  where  colonel  Parker  was  present; 
they  were  told  by  the  late  king,  he  was  sen^ 
sible  they  had  lervti)  hiin  t'aithtnlly,  and  he 


1T9J 


8  lAlLLIAM  lU. 


Trial  ^Ambnte  Ronkxaai, 


[M 


woold  advizioe  tbeni,  aod  he  had  now  a  pieee 
of  fervioe  for  them  to  do,  which  woolJ  enable 
him  to  do  h.  He  told  them  they  must  go 
orer  intu  Engiaod,  and  be  sore  to  obej  sir 
Geor^  Barclev's  directions ;  and  the¥  were 
ordered  tu  enjearour  to  find  out  sir  George 
Barcley  when  they  came  into  England  ;  and 
were  told  by  him,  that  they  would  meet  wa 
Geor{;e  Barcley  twice  a  week  in  Covent- 
garden- square,  m  the  ercnine.  and  the  token 
by  which  they  should  know  him  was,  he 
w'ould  wear  a 'white  handkerchief  out  of  his 
pocket;  this  they  were  toM  by  the  late  king, 
when  h^  sent  them  upon  this  errand.  Cokmel 
Parker  wai*  by  at  the  same  time,  and  beioff 
there,  be  was'  ordered  to  go  to  Mr.  Carol, 
secretary  to  the  late  queen,  who  had  order  to 
famish  them  with  monev  to  bear  the  charges 
of  their  j«fiimey  into  England ;  and  if  they 
were  detained  by  contrar}-  winds,  thev  bad 
letters  of  recomin»riidaiion'to  Monsi<nir  Lsioar 
the  French  king*!-:  president  at  Calais,  to 
furnish  them  with  money  to  bear  their  charges 
orer  into  England ;  and  aocordinsfly  they  went : 
bat  being  detained  at  C&lai.^  fur  w'ant  oV  wiuil, 
they  were  fumishe-d  Hy  the  French  president : 
ancl  by  the  beginning  of  February  tliey  came 
over, ' 

But  I  omitted  one  tiling,  trt'ntlemen:  Be- 
fore they  came  over,  the  late  king  when  they 
were  wit'h  him  took  a  list  nut  of  his  ptx;ket  of 
names,  and  told  these  two.  Harris  nnd  Hare, 
what  names  they  should  go  by  in  England  ; 
Harris  was  to  go  by  the  name  of  Jcckins.  and 
Hare  by  the  uame  uf  (jiiiny ;  and  accordingiy 
the%'  came  over  in  a  boat,  and  landed  in  Kent ; 
and  when  they  came  lotuwn.  they  endraTnuml 
to  find  out  sir  Gcurge  Barciev :  The  first  time 
I  thiok  thev  did  not  tind  him  ;  hut  tLe  sciond 
time  tlipy  i\A  find  him  ;  an'1  he  «a>uted  them, 
and  told  them  he  was  g)ad  tri  S4:e  them  come 
over,  and  he  would  fui'Dt^h  them  wi:h  money  ; 
and  he  sent  major  ilnlnu-s  tu  tl.nii ;  aud  ac- 
cording he  d:J  come ,  and  gitc  tiiriii  subsis- 
tence-money. 

Now,  geiitlemcn,  ynu  will  hear  that  Mr 
George  Barcley  being  cuiue  uvLt  with  these 
troopers,  and  many  others,  to  the  number  of 
sixteen,  that  at  several  times  were  sent  upon 
this  conspiracy ;  I  say.  after  they  were  come. 
sir  Geursfe  Barcley  had  frequent  meetings  and 
oonsuluuons  with  several  other  persons  that 
were  to  be  engaged  in  the  same  design  ;  and 
they  met  at  several  places,  sometimes  at  cap- 
tain Forter's,  sometimes  at  the  Nag*s-head  in 
Covent- garden,  at  anothir  time  at  ibc:  Sun 
tavern  in  the  Strand  ;  and  \  ou  w  ill  find  by 
the  evidence,  that  the  prisoner  at  the  bar,  Mr. 
Hook  wood,  was  present  at  most  of  those  meet- 
ings ;  and  there  they  did  consult  of  the  best 
ways  and  methods  for  puuing  this  conspiracy 
in  execution;  sometimes  they  thought  of  doing 
it  by  an  ambush  laid  on  the  other  side  of  the 
water,  by  persons  ou  foot,  io  a  little  wood  thoe 
Dcar  RicbnMNid,  whtfe  the  king  was  to  pan 


goards.  This  wi 
another  proposal  to  do  it'eoAiindetheivale 
and  therefore  to  settle  the  matter ooeaft 
ooospiratora.  King,  waa  aentto  view  thegrM 
oo  the  other  side  af  the  water;  aod  be  i 
gkKy  that  be  had  feand  a  very  proper  plai 
and  tbought  il  a  Tcrr  ooDTcnient  lacikod  ;  I 
vet  they  ware  nat'aU  satisfied ;  and  at  t 
SagVbead-tafcni  in  Caveot-gardca  thcji 
debate  the  matter  again,  aad  it  was  WDlfed 
have  the  gnmnd  Tiewed  again;  Hid  Fort 
and  Kjugfatlcy,  aod  King  thai  was  eaacHh 
went  to  vievrthe  ground  od  both  adea  t 
water,  to  see  which  was  the  most  eonvnii 
place ;  this  was  about  the  12th  of  Fetal 
they  did  take  an  account  of  the  most  eoM 
nient  pbees  on  either  side ;  and  when  thej  I 
ilone  it,  they  came  back  in  the  erening  to  fi 
an  account  what  they  had  done,  to  aaiv 
others  of  the  conspirators  who  met  far  tl 
purpose;  and  I  think  the  priaoncr  atlbab 
3Ir.  Rook  wood,  was  present  there  at  thia  dm 
ing ;  and  you  will  hear,  the  place  agreed  ay 
was  the  lane  that  l^«ds  from  Tamham^giiM 
Brentfurd ;  that  they  thought  the  moal  « 
venient  ptace,  becan^  there  were  several  ii 
iu  aad  about  Tumham-grreo  and  Brealii 
where  they  might  place  their  men  by  twa 
three  in  an  inn,  that  they  might  not  be  In 
to  obf ervation :  This  was  the  place  tbMH 
appro\'ed  of. 

Then  next,  the  manner  of  doing  it  waitB 
considered  and  adjusted,  and  that  wai  ta 
that  the  whole  number  should  be  divided 
three  parties ;  one  psny  to  be  commaadn 
sir  Gf  o*^e  Bardev  to  attack  the  coach  aaft 
the  king  and  all  tliat  were  in  it,  while aH 
same  time  the  two  other  parties,  to  be  ^ 
manded  by  captain  Porter,  and  Mr.  Rook*- 
the  prisoner  at  the  bar,  were  to  set 
guards  ;  and  ih*;  time  agreed  upon  to  _ 
execution  was  the  15ih  of  February  oa 
day.  that  being  the  usual  day  the* king 
to  Richmond  a-hunt:n?;  and  you  wiU 
that  on  Saturday  morning  they  met  in  si 
parties,  not  all  together,  hot  under  the 
heads  nf  the  parties,  in  order  to  be 
the  kio^  had  gone  out  that  morning,  to 
assassinated  him. 

Gentlemen,  I  say,  \ou  will  hear  of  e^ 
meetings  that  d^ty  ;'  tliere  was  one  meets  J 
>lr.  C'haruock*s,  where  were  present 
Purter.  sir  William  Parky ns,  and  several  ocJ 
and  another  meeting  vou  will  hear  of,  w^ 
the  jirisorier  at  the  fiar  was  present,  ^ 
lodgings  of  oue  i'uuuter.  another  of 
James*s  friends,  that  came  over  for  thi^ 
pose  ;  and  there  was  sir  George  Barcley' v 
there  was  the  prisoner  at  the  bar ;  and  ^ 
that  were  to  be  under  sir  Geoige's  ooKaH 
met  that  Saturday  moming,  in  order  to  ^ 
ready,  in  case  tlie  king  liad  gone  abiug* 
have  attacked  him :  you  will  'find  by  tla« 
dcnoe,  that  the  prisoner  was  there;  aadfY* 
that  was  one  of  the  troopers  sent  over  ^ 
Fianoc,  was  tent  for,  and  came  in  and  i^ 
thaabagicathany;  for  Harrii  was  ii0^ 


fir  High  Treason* 

\  Willi  ibe  immediate 
^1^  die  king ;  but  (inding 
be  ftsked  tbem  what 
ftlicy  tubl  Uiiii  tbev  vere 
Bdiaidv  upon  ihe  dvsigfn, 
I  asked  wbal  it  was ;  mid 
tliey  were  to  go  to  nitack 
_  i  to  awMstuate  hiui ;  anil 
prisoner  nl  the  bair  told  hitit|  it' 
>  Coutiier,  tie  sbiiuhl  bairc  par- 
L 111 *l ructions  from  bim  what 
Harris  wertt  to  Cuiinter  ; 
burse,  and  Hare's  borse 
were;  mid  Ibeir  borsca 
ID  Sofheraet- bouse,  by 
lile  tbere»  recoromen*ted  by 
of  my  lanl  Fevcrflhaiii'a  ser- 
to  tuLe  c^re  of  tb^iti,  and  of 
re  that  were  placed  tbere; 
consul ratort  bon«8  by  tbe 
kof  Mr.Lewta  were  lodgred  in 
l*liouae,  and  looked  ntler 
ain's  men;  and  tbithfr 
Lliingnte  were  directed  by 
te  fo  f«T  tbeir  horset. 
I  kappened  by  ¥ei-y  gtMHl  providence} 
I  BAJifvty  did  not  c^o  abroad  that  day  ; 
B  of  tbe  onlerly  men  ibat  lodgefl 
togi\e  ititelligerice,  came  iVom 
tbetn  that  tbe  king-  did 
uiiig,  M>  tbere  was  liotbint; 
Sftrria  %vai  told  that  be  abould 
r  »l  thai  time,  and  take  it  away  ; 
time,  till  they  were  to  go 
I  they  were  to  ride  out  upon 
'  bad  0]iporturrity«  to  make 
"viee ;  or  else  it  would  be  tboug-lit 
t  ii\  at  tbe  time  of  the  atiui^k, 
up  in  gooit  time  aud  order 
if  and  il  Hinitd  be  ttioii^bt 
rin  ttie  rider;  and  accord iu^jy 
laootber  of  those  cnnipiraturii, 
rris  ajid  Hare  to  ^merset- house 
boraes,  and  tbey  carried 
( m  8ubo ;  but  for  several  jii|^bt«i 
I  kept  at  Horoertiet'houae. 
^  fiad,  fcntlemen,  that  Mr.  Rook- 
It  priiuaf  rat  tlie  bar,  was  concern ei I  in 
iMiitultaiioiui  and  meeting,  in  m»(k- 
pnooQi  for  Ibe  a^aaasination  ^  tbey 
Im  1  Mid,  to  do  it  on  the  ]  5tb  of  Fe- 
t  ^  that  not  taking^  effect  at  that  dav% 
UhlNd  the  Haturday  following,  Mr, 
^^aii^otly  10  tbe  company  of  Mr. 
[^K)Mr.  Lowirk,and  otben«,  inhere 
t^Roui^c  of  Ibis  ttjiflafliiinatioii,  and 
Itjltrik  It  31  vrty  barbarous  thing ;  but 
«  they  would  do  it,  ^br 
y  «ir  f itorge  Bftrcjey : 
apr»-M«iy  declared  by  Lowick  and 
ftl  they  bad  diret^tions  to  obey 
1  wbat  be  would  hare  them  to 
i:  tbty  tnubt  and  would  obey 
rcaidution,  even  u|miii 
I  of  so  bloody  and 

r,  Gentlemtiif  by  tbe 


A*  D.  1696. 


[I8S 


evidence,  that  the  next  Saturday,  being  the 
two-and  twentieth  of  February,  they  rcsolf  ed 
to  put  it  in  exeeution  again  ;  and  accordingly 
tbere  was  a  meeting  on  tbe  Friday  before  at 
tbe  Sun  tavern,  where  were  present  sir  George 
Rarcley,  JMr.  Porter,  ami  others  ;  and  there 
Ibey  did  re^iobe  upon  it,  though  they  had  at 
first  some  apprehension  tbe  tbin^*  vVas  dis* 
covered  ;  but  thry  w^re  soon  satisfiud  there 
wiui  uo  fiiicb  tbiug,  because,  they  laid  amoug*' 
tbctuselves,  thai  if  it  had  heeu  so^  ibey  should 
have  been  taken  up,  and  not  have  been  per- 
mitted to  meet  there  :  therefore  they  resolved 
tbe  next  day  to  put  it  in  execution ;  and  ac* 
cordiogly  they  met  at  several  places,  and  got 
ready  in  the  mornings  in  case  the  king  had 
^oue  abroad.  The  prisoner  met  that  morning 
at  Portcr'jj  lodging,  with  several  other  trooperi, 
to  make  ready  tor  the  enlerprijsc :  and  there 
tbe  prisoner  at  tbe  bar  did,  at  that  time,  give  a 
list  of  ibe  names  ibat  be  was  to  command; 
for  he  was  to  have  one  party  of  those  that  were 
to  attack  the  guards,  ot  whom  Harris  was  one 
and  Hare  wan  another,  and  Richardi^on  waa 
another,  and  Blackburne  was  another^  and  his 
own  name  was  chief;  and  be  ordered  Harris 
to  go  and  see  to  get  them  ready,  for  I  hey  must 
go  out  that  morning :  accordingly  Harris  did  go 
and  got  them  ready,  and  came  back  and  gave 
an  account  of  it.  His  majealy  did  not  g*  abroad 
that  day  as  it  happened  very  fortunately,  by 
reason  of  the  bappy  discovery  ;  so  that  newi 
being  brcnight  back  again,  ihougb  they  had 
made  all  things  ready,  those  preparations  were 
put  of^',  and  ihey  did  nothing  that  day  ;  and 
quickly  after  the  discovery  was  fully  made,  and 
made  public  by  tbe  apprehension  of  the  oon^ 
spirators* 

Gentlemen,  you  will  have  this  matter  fully 
proved  to  you  by  several  witnesses,  that  I 
think  there  can  be  no  room  to  douhi  the  truth 
of  it  thsit  there  was  such  a  conspiracy,  and 
that  the  pri«;oner  was  as  highly  concerned  in  it 
as  those  who  sufPered  the  just  punishment  of 
the  law.  We  will  call  our  witnesses  to  prove 
this  ;  and  1  beliiive  they  will  lie  tibte  to  give  yoii 
an  account  <d'  the  whole  affair  luHter  and  mora 
fully  than  1  ckin  do^  or  can  prttend  to  open  it. 

SoL  GctK  Call  Mr.  Harris  and  Mr.  Porter. 

Sir  Ji,  Sii(*ucr,  Ue  0[>|K)se  the  swearing  Mr. 
Porter:  I  must  beg  the  favour  of  the  court  to 
hear  us  in  it ;  if  my  instructions  be  true,  we  in- 
sist tipon  it,  that  he  is  uol  capable  of  being  A 
witness ;  lie  standi  convicted  of  telony  ;  here  we 
have  tbe  record,  and  we  desire  it  may  tie  readi 

Copt.  Porter.  I  know  nothing  of  the  niBtter^ 
that  there  is  any  such  thing  nUindingoul  against 
me. 

H\T  B.  ShimeK  Then  sure  we  are  mistaken 
in  the  man.     Pray  let  us  heur  it  read. 

C/.  o/Ar.  (Reads  the  Record.)  This  i«  an 
indictment  of  murder  ugain^t  George  Porter, 
for  the  killing  of  sir  Jamts  Hackel,  knigbt. 

Att.  Gen.  Do  you  know  any  tliiiig  oflbiS| 
Mr.  Porter  ? 

Forter.  I  came  off  with  tnanBlaughter»  and 
pleaded  the  king's  pardon  lo  court. 


8  WILLIAM  III. 
Gen,     Pray   read    what    was   done 
Here's  the  jury's  verdict 


Trial  ofAmhroie  Rookwoodt 


V 


upon  it. 

CL  of  the  Crown, 


"  Uiiod  praedictus  Georgitis  Porter  est  culpabilis 

*  de   felooica    iDterfectione     pnedicti   Jacobi 

*  Hacket,  et  bod  culp.'  as  to  ttie  murder.  Here 
is  a  *  Curia  advisare  yult,*  aud  I  suppose  there 
was  a  pardon  afterwards. 

Just.  FouelL  Was  he  not  burnt  it  the 
band. 

Porter.  No  ;  I  pleaded  tlie  king's  pardon. 

L.  C.  J.  And  there  are  iteveral  acts  of  par- 
don since. 

Mr.  Cowper.  See  the  time  when  the  indict- 
ment was. 

CL  of  Ar,  It  is  the  8th  of  December,  in  the 
S6tli  year  of  king  Charles  the  Sud. 

Sir  JB.  Shower,  We  agree  that  he  did  plead 
the  king's  pardon;  ami  then  the  case  is  no 
more  than  this,  a  man  is  convicted  of  man- 
slaughter, and  the  king  pardons  him,  he  still 
remains  unqualified  to  ue  a  witness ;  we  say, 
this  has  been  the  case  that  has  been  much  de- 
bated in  Westminster-Iiall,  and  upon  debate  it 
has  been  resolved. 

Just.  Povell.  It  has  been  so,  but  always 
against  you. 

Sir  B,  Shower,  It  was  in  the  case  of  my  lord 
Castlemaine  *  at  this  bar ;  one  of  my  lords  the 
Judges  went  to  the  court  of  Common-Pleas  to 
ask  their  opinion,  and  these  ^ases  were  put  f 
In  case  a  man  be  outlaweil  of  felony  and  par- 
doned ;  in  case  a  man  be  c(tnvicted  ot  felony  and 
had  the  benefit  of  his  clergy ;  and  in  case  a 
roan  was  convicted  and  not  attainted,  i)ut  par- 
doned upon  the  second  case ;  they  were  of  opi- 
nion, that  the  receiving  the  punishmeiit  of 
burning  in  the  hand  had  purged  the  very  guilt, 
and  did  set  liini  upright  by  the  statute  of  the 
loth  of  queen  EiizatMSth,  thoy  thought  it  did 
operate  to  that  pur|K)sr ;  but  in  the  case  of  a 
pardon  of  a  man  attainted  or  convicted,  it  was 
agreed  he  was  not  qualilicd  to  be  a  witnc&s  ;  and 
Dangerfield,  against  whom  the  objection  was 
made,  bnng  burnt  in  the  hand,  was  received  to 
be  a  witness;  and  it  was  only  made  use  of 
against  him  to  take  off  his  credit.  I'be  record 
ot  that  case  is  in  iliis  court,  and  I  looked  upon 
the  print  of  Uic  trinl  this  d:iy.  Ue  say,  that 
there  is  a  case  in  1  RrownloM-  47.  a  nrian  at- 
tainted of  felon  V  cannot  he  of  an  inquest,  though 
pardoned  ;  and  we  think,  he  that  cannot  be  a 
juiyinan,  sure  caur.ot  be  a  witness ;  there  is  the 
same  exception  to  his  being  u  witness  as  there  is 
in  the  case  of  :i  jur^  man  ;  tor  the  oii<>  ought  to 
appear  as  free,  aud  sluad  as  cltur  and  unsus- 
pected, fn  respect  of  his  probity  and  verity,  as 
the  other,  as  th**  oiic  is  sworn  to  try  and  deter- 
mine upon  OhXli,  so  the  other  is  sworn,  and  his 
oath  is  to  sway  jti.d  dclcnuinc  the  jury,  and  in 
consequence  it  is  atl  one ;  and  upon  these  rea- 
sons we  hopr.'  he  is  not  a  good  witness. 

X.  C.  J.    Where  is  that  case  in  Brownlow  ? 
Sir  JB.  SJioictr,  It  is  i  Bnmnlow  47.  and 


*  See  his  Case  in  this  Collection,  vol 
1867.  t  i^  vol.  7,  p.  1098. 


7, 


then  there  is  11  H.  i,  41.  3  Bubt  1S4.  tl 
mv  lord  Cook  says,  if  a  man  be  convicte 
felony,  and  pankmed,  he  cannot  be  a  iuryn 
for  though  the  punishment  is  pardoned, 
guilt  remains,  so  that  he  is  not  *  proba 
*  legalis  Homo ;'  and  every  particular  pe 
has  an  interest  in  it,  that  they  have  free 
clear  persons  to  be  jurymen  and  witnesses. 
Mr.  Fhipps,  My  lord,  that  is  the  distin 
we  go  upon,  which  was  taken  in  Danger^ 
case,  U|)on  tlie  trial  of  my  lord  Castlema 
where  the  whole  court  were  of  opinion,  tb 

Kardon  from  the  king  ouly*  would  not  n 
im  a  good  witness ;  but  if  ne  were  burnt  in 
hand,  that  by  the  statute  of  decimo  octtm 
zahetha,  amounted  to  a  statute  pardon,  am 
him  right  to  all  intents  and  purposes :  and ' 
thev  did  take  notice  of  that  book  that  sic 
thoiomew  Shower  cited  of  11  of  Hen.  A 
a  man  attainted  could  not  be  a  jurjr 
though  pardoned  by  tbe  king  :  it  was  o% 
be  might  be  a  witness ;  but  Mr.  Justices* 
said,  it  was  the  same  reason  if  he  be 
for  a  juryman,  he  is  not  fit  for  a  wituetaa 
ought  to  be  both  *  probi  et  legales  Uc:» 
thus  the  case  stood  there.  And  thsjifc 
book  of  Bulstrode  is  the  same  ;  it  waaa 
case  of  a  prohibition  for  a  Modus  De^^ 
where  the  suggestion  is  to  be  provecS 
witnesses,  it  Was  objected  he  had  not  j^i 
by  two  witnesses,  because  they  were  I 
tainted  of  felony,  and  thontrh  they  «i^^ 
doned,  yet  that  did  not  make  them  gf^v 
nesses  in  the  opinion  of  the  court. 

L.  C.  J.    This  is  quite  another  case, 
not  come  up  to  your  point ;  here  is  no  ai^ 
and  here  is  pardon  upon  pardon,  by  act  ^ 
liament. 

Mr.  Phipps,  As  to  that,  we  think  the  0 
luent  pardon  is  out  ot  the  case  ;  lor  if  iim 
don  from  the  king  be  a  good  panlon,  XM 
no  guilt  for  the  act  of  pardon  to  work  upC^ 

Sir  B.  Shower.  My  lord,  this  we  thiols 
a  g(K>d  distinction  as  to  that  matter,  a  ma  i 
is  actually  pardoned  tlie  punishment  bj 
king's  pardon,  and  afterwards  an  act  of  p» 
comes  and  pardons  all  offences,  that  w^ 
does  nothing,  for  he  is  not  a  subject  of  ptf 
for  he  was  discharged  of  his  puuishmeut  Ir 

Alt.  Gen.  Sure  these  gentlemen  are  m 
earnest  when  they  make  this  objection. 

Sir  B.  Shower,  When  the  king  has  ones 
doned  him,  he  is  not  an  offender  witliii 
meaning  of  the  act  of  parliuiitenl,  and  t. 
fore  the  act  works  nothing  as  to  him,  & 
he  stands  as  much  disabled  from  being  ■ 
ness,  as  lie  was  before. 

3 usi.  Pou'tll.  In  the  case  of  CutingU 
llobbard,  there  it  is  baid  the  pardon  takes 
*•  tani  Hfatum  quam  Pu:nam,  &c.'  An  e 
being  brought  for  calling  a  ntan  thief,  ^i  b< 
been  indicted  for  felony,  and  convictedi 
pardoned,  the  court  adjudged,  that  heoiigl 
to  be  called  so ;  tor  he  was  no  thief,  f» 
pardon  had  u-ashe<l  him  entirely  clean,  ai 
was  discharged  both  of  tbe  guilt  and  pi2 
ment)  and  ail  the  cooiequences  ol  it. 


Jwt  High  Treamn. 

I  ibtt  bav#  be«o  put  are 
I  •!  ill  in  Ibtt  matter  ;  for  where 
^%  fooiriction  of  mnnslnughter,  and  the 
k  9«hloiifil,  we  think  that  pardon  of  the 
^H  a  wiy  oi*  ditdi^rge  at  much  ta 
Aiu^  in  tH«  hand,    I  tnke  it,  it  is  the  same 
'  l4i^  idmit,  tlml  will  dlschari^e  liim  to 
nil  and  Biirpo$f#«  tind  k»  we  think  does 
'HRwiiiallv;  *  t  his  clcr^-y,  and 

l>y  way  ot  statute 
\  -nian,  I  take  it 
.ise ;  but  even  in 
tto^it,  I  ,ir  ^  I,  ,h.*i  «he  purty  coii- 

*^  ifWr  I  uti  prdooe<l  him,  19 

™Wfriinii ,.  ^  jury  ;  bat  sapposing" 

>^taWiio,  yctltierc  are  many  caies  u  herein 

i      •  ttifl  mi V  i;  I  :i  V it II tjs ,  t h a  1  c*n not  he  a  j  11  ry - 

■•*  ic  credit  «»t'  such  n  ^vimess 

I      ii^«  m  it  i«  no  objection  agfainst 

iii  ba^  t  1p|JiI  \i  itncfis ;    and  it  is  a  very 

M^  iipiueni  to  m«f,  that  because  he  was 

h      fvMb  tb  kin^.iftliat  shoutd  hedetiden^ 

IikiliOTforr  th#  Hfi  of  panlon  sihoutd  have  no 
^-    "  r  i»  to  &ay,  that  the  king^'s 

P^  10  have  nothing  left  fur  the 

p^Mn^or.ii.n  to  work  upon,  and  certainly 
■VilnD  10  nght»  thai  10  all  iulenu  and  pur- 
f^kia  it  {rood  u  witnifiis  as  erer  tie  was  ; 
•i I •Tlhiii^  remained  to  Ijc  done,  the  act  of 
pv^^^i  hj«  (lone  itf  and  supplied  the  de* 
m\  Ia  Ifhink  the  king's  pardon  is  sutlicicnt. 
J^Cn*.  My  InnI,  I  supjwae,  they  do  not 
«tf<piit,  js  ifjiiikiniif  there  is  any  great 
P^  a  ii.  l«iji  orI  V  tor  uhjecttoii  fake  ;  but 
2.  Jj^*^**  001  Hi  lb  standing  this  objection 

^  I,  Ihey  take  this  exception 

1^/  L,  for  ihey  bpeakto  hii  cre- 

LCJ,  Hf^*  they  except  to  his  being  a 

*i  (Jn,  W'lo,  your  lordfUiii  retnerobers  a 

■■te  m  before  your  loroahip  not  long 

jj'^^^o  Kislcr  tcrni  laai,  when  one  wat 

"  "  I  bar  for  trenaoti,  and  Aaron  Smith 

a  witness^  and   the  prisoner 

li^am^'  *'if»'  •^'=  f^"  "/>od  witness. 

f  btb*i|  iii>*  ,  and  your 

Jllje  eon.      . ,     .■  ,  L  at  the  uct  of 

^■^Wreniiire  hiai  to  all  intents  and  pur- 

tCnyin.  lu  the  caap  of  the  earl  of  Cai- 
^^ii  bub  Ibe  courts  of  Kinfj^'V  bench  and 
*■■■•  Plwui  held  Dangertield  a  legal  wit- 
•^  Ifcwfh  biinifil  111  the  liantl  for  felony, 
■■•»i»dic  opinion  of  Roll«  :  in  Siiles  re- 
■•J((8,  htnf  thfti  hatli  been  hununl  in  the 
^  ^  Wooy,  may  tiiHwitlist:indlng  he  a 

^^'  SketPtr^  My  lord;  in  answer  to  that 
^^  wii  pyt,  titat  after  the  king*s  psirdon 

■Mb  ttoiy  1,^  ,  rlj^t  was  an 

2*ii*»  my  biri  -  ....  i  cane,  that 
2^^  **  ffooAt  lutd  our  notion  that  we 
'JJJJfcr,!*  good  loo;  he  cannot  be  im- 
'^'^^lafifuik  iiDpoted  to  btmf  when 


A.  D.  1696.  [180 

once  tKe  king  has  forgiven  him,  and  yet  that 
may  not  restore  him  to  U\^  entire  credit,  t»  wa9 
my  lord  chief  justice  ^»croggs'  diMtnctiun  iit 
the  cast;  of  Dan^erfield  ;  and  as  to  the  i^aeie  of 
AaroD  8milh,  that  was  very  di5*ereiil :  the 
reason  in  that  CAse  was,  because  the  crime  for 
which  Mr.  Htnith  waf;  indicted,  did  not  im- 
port any  such  aciindalous  oHence  lor  which  his 
ci^dit  could  be  impeached. 

L.  C.  J.  No,  no,  we  did  out  meddle  with 
that,  wc  went  upon  the  pardon. 

Sir  B.  Shower,  But  in  that  case«  they  did  oot 
insist  U|»on  it  that  he  hud  a  pardon  antecedent 
to  the  Act  of  Pardon^  so  that  he  was  rnhjicium 
capas^  tor  the  act  to  work  upon,  he  was  an  of- 
fender that  needed  a  panlon  ;  wlipreas  Mr,  Por* 
ter  beiug  pardoneil  belbre,  could  not  be  an  of* 
fender  neediiig  a  jiardon,  and  consequently  not 
withm  the  &^t  words  of  the  Act  of  Indemnily, 
because  he  was  pardoned  by  the  ktog  before; 
but  he  was  noi  by  that  pardon,  say  we,  re- 
stored to  his  credit  to  make  him  a  good  wit- 
ness«  and  the  act  of  parliament  did  not  affect 
him,  he  being  not  su^^eci urn  mAterUij  as  not 
being  an  offender. 

Mr.  Phippt,  As  to  Mr.  Solicitor's  case  of 
Aaron  Smith,  we  agree  the  act  of  parliament 
did  restore  him,  because  he  ncrer  ^ha  par- 
doned before  by  the  king*  so  there  remaineil  an 
oifence  for  the  piirtiainent  pardon  Ut  work  upon. 

L.  C,  J.  Do  you  agree  that,  then  you  may 
agree  the  otlier ;  for  the  act  of  parliament  par- 
dons uoue  but  those  that  the  king  can  [mrdoti 
generally. 

Mr-  Pltipps,  It  is  true^  my  lord  ;  but  we 
say  that  an  act  of  parliament  pardon  removes 
tliose  disabilities  which  the  king's  [lardon  does 
not ;  for  ef  ery  one  is  in  law  n  party  ti>  an  act 
of  j>iirl lament,  and  thereti'te  un  person  shall 
be  permitted  to  a  I  ledge  in  diHahihty  uf  uoolher, 
any  crime  which  he  hinisielf  haih  pardoned, 
for  that  IK  to  aver  against  his  own  act ;  but  it 
Is  otherwifle  in  the  case  of  ihc  king's  pardon. 

L,  C.  J.  Why  the  very  par  liniment  pardon 
comes  from  the  king  ;  the  king  has  a  full 
power  of  pardoning,  and  where  lie  does  pardon 
under  tlie  great  seal,  it  has  the  full  cfiVii  i»f 
the  parliament  pardon.  A  pardon,  hetore  at- 
j  tainder,  prevents  all  corruplinn  of  blnod,  so 
that  though  a  man  forfeits  his  goods  by  cnn- 
viciioo,  yet  alter  a  pardon  he  is  cap.djtk^  of 
having  new  goodn,  and  shall  h<dd  them  v^iih* 
out  any  forfeiliire  whatsoever  ;  (or  the  paidon 
restores  hira  to  his  lormer  capacity «  and  pr^ 
vents  any  further  forfeiture.  ludeed,  if  lie 
had  been  attainted,  wh^-rcby  h\s  hUyiM\  ita^  1  r^* 
ruptetl,  no  pnrdon,  whether  it  were  by  the  kui^ 
or  by  the  parliariieni,  cimld  purge' his  Uund 
without  reversal  of  the  attainder,  by  vtrit  of 
error,  or  act  of  pailiament,  or  «-\presu  word««  1  t 
the  act  to  restore  blood;  but  either  p.itd.i., 
makes  him  a  new  creature,  giieshiiii  kw^  i  . 
pacity,  and  makes  hi  111  to  all  intvut<t  »nd  pur- 
poses, frou»  the  time  of  the  [lardon,  tr>  be  ♦  pi*o. 
*  bus  et  legalia  homn,*  and  a  good  iutne»fc. 
Indeed  this  crime  might  be  objected  against 
his  credit ;   but  il  ii  not  to  be  urged  agiuusi 


I 


I 

I 


S  WILLIAM  ilL 

Ihe  sufficiency  of  hi^  evidenc^^  that  is,  his  be- 
ing a  witness.^ 

Att,  Gen.  My  lord,  we  tlcsire  he  may  be 
sworo*     (Which  was  rioue.) 

SoL  Gen,  Now,  Mr.  Porter,  do  you  give  my 
lord  and  ibe  jury  an  account  what  you  know 
of  ihb  intended  assays inatioo^  how  it  came  to 
your  knowledge,  a ud  what  share  the  prisoner  at 
the  bar  had  in  it. 

Forter.  My  lord,  the  first  account  that  I  had 
of  this  assussuiation  was  tVom  Mr,  CharDock^ 
who  brought  to  nie  sir  George  Bare  Icy  and 
major  Holmes  to  my  lodgfing  in  Norfolk. street, 
where  I  waa  sick  of  the  g-out.  Sir  George 
Barcley  did  not  then  parlicularly  acimaint  me 
with  the  lusine^,  hut  said,  he  wouUi  leave  it  to 
Mr.  Charoock  to  telJ  me  what  it  was. 

L,  C.  J,  \S  lio  told  you  80  r 
_  J*orier,  Sir  George  Barcley ;  and  after  that 
ire  had  several  meetings,  at  which  the  |»risoner 
at  the  bar  wm  present,  particularly  at  the 
Olohe-tavern  in  llatton-Ganli'D,  where  it  was 
consulted  of  the  best  ways  and  means  to  as- 
ias&inate  the  kiu]^^  as  he  cauie  from  Richmond : 
s^')me  were  of  opinion  that  it  was  best  to  be 
done  on  the  other  :^dc  of  the  walar ;  olhei  h 
were  of  opinion  that  n  sliouhl  be  done  on  this 
side,  by  a  party  of  mc^n  on  horsebiicit:  upon 
this  dilTereuce  of  opminn,  there  were  persorjs 
apiiointed  to  go  and  view  both  places;  I  was 
appointed  lor  one  to  go  with  captain  KuighlleVi 
and  Mr,  King  went  along  with  me,  and  we  did 
view  tlie  ground  on  both  sides,  and  when  we 
came  back,  we  gave  an  account  to  sir  George 
Barcley,  and  those  that  sent  ua ;  and  upon  our 
report,  sir  George  Bari^ley 's  mind  was  chancned, 
who  was  for  the  other  side  of  the  water  before. 
And  he  agreed  to  do  k  in  the  lane  that  leads 
from  Turn  bam- Green  to  Brentford,  After- 
wards there  was  a  meeting  at  the  Globe-Ta- 
vern in  Hatton- Garden,  and  there  it  was  agreed 
thai  the  king  should  bf3  attacked  on  S^Lturd ny 
the  151  h  of  February*  by  sir  George  Barcley 
and  hJH  party  ;  and  Mr*  Rook  wood,  the  pri- 
soner ut  the  bjir,  waii*  to  t'c»iamand  a  party  of 
men  that  came  over  from  Prance,  who  were  to 
as^nli  the  guanlii  on  one  sitk;  and  I  and  Mr, 
Charnock  were  to  set  upon  the  guards  on  the 
other  side.  Sir  George  Barcley,  with  four 
men  out  of  each  psrtVt  was  to  attack  the  king 
in  his  coach,  and  to  kill  him  and  all  that  were 
there  in  it. 

Z.  C.  J,  Who  were  at  tliat  meeting f 

1*0 tier.  There  were  sir  G.  Barcley,  capt* 
Chai-nock,  sir  Wm.  Farkyns,  myselt,  major 
Holmesj  capt.  Rocik\%ood,  nod  capt*  King. 


*  As  to  ilie  operntitm  of  the  King's  pardon  in 
giving  credit,  see  Mr.  Hargrave's  very  learn- 
ed Discourse  on  the  eflect  of  the  King's  Par- 
doii  of  Perjury,  as  referred  to  at  vol,  7,  pp.  1032. 
1090.  8t4f,  too,  Peake*s  Law  of  Evidence,  ch. 
5,  8.  2,  art.  Witnesses  restored  to  CrCiStt  by 
Pardon ;  and  in  this  ( -olleclion  I  he  Cases  of 
Heading,  vol  7,  p.  295,  of  Collier,  vol,  7,  p. 
1043 ;  of  lord  Castkmaine^  vol.  7,  p.  1067, 
and  <)f  Crosby^  vol.  12,  p.  1291, 


■      andiifC 


Trial  of  Ambrose  Mookwaod^ 

i,  C.  X  Where  was  thisP 

Porter,    At  the  Globc-Tavera  in 
Garden,  upon  Saturday  morning  the  16th, 
having  two  orderly  meu  tliat  lay  at  Kensi 
to  give  intelligeuce,  had  notice  brought  us 
that  the  king  would  go  out;   Durance, 
was  one  of  ihem,  used  tA»  go  every  moi 
court  to  get  us  what  itjieihgence  he  coi 
e;ir  Geotg'e  Barcley  told  me  upon  the 
that  he  should  give  me  an  account  a* 
ever  he  coukl,  the  next  ruorning;  and 
morning  at  my  lodging  in  Little  Hyder 
in  St.  James*s,  he  came  to  me,  and 
the  advance  guards  were  gone  out,  and 
king's  kitchen  was  gone,  and  all  was  pi 
for  the  king's  going  abroad,  and  tUeje  wtot 
great  many  noblemen  and  gentlemeu  «*bi 
back  wiih  bim>  and  therefore  he  thought 
would  be  DO  opportunity  of  eflectingtbe 
8aid  L  that's  no  objection  at  all,  nor  i 
son  for  putting  it  off,  because  when  the 
over,  all  the  company  goes  away,  and 
comes  only  in  his  coach  ^rtth  tlie  gua 
said,  he  would  give  sir  George  Barcley 
count  of  it,  jiud  he  came  back  with  sir  " 
Barcley  and  Mr.  Hfjokwood  to  my 
and   upon    repeating  that  objection,   and 
giving  the  sarue  answer,  it  was  agr«e«l 
kittg  had  gone  out  that  day  to  have 
design  in  execution. 

Alt.  Gen,  Was  the  priaouer  ot  tlie 
at  that  time  when  that  was  agreed  UfHUil 

Porter.  Yes,  he  was. 

i.  C.  X  Where  do  you  say  was 
ing.* 

Porter,  At  my  lodging  in  Little  Rid 

L*  C  X    Haxl  you  that  discourse  with 
George  Barcley  in  the  presence  of  the 
soner  ? 

Porttr.   Yes;  sir  George  said,  he  di 
wc  could  not  do  it,  becauie  there  would  go 
many  with  the  king,  but  I  objected  against 
that  after  the  sport  was  over,  all  the  eomi 
went  away,  and  the  king  came  t>sck  in 
coach  :  then  it  was  ai^recd  to  gu  on  ;  thi 
sir  George  Barcley,  l>nrdnce,  and  the 
at  the  bar,  and  myself  in  the  room. 

L.  C.  X  This  yoii  say  was  Saturday  tl 
16lh,  in  the  morning  i* 

Porter,  Yes,  my  lord ;  but  I  cannot  say 
saw  the  prisoner  at  the  bar  at  any  tneetii 
af>cr  that. 

An.  Gen,  Pray,  tell  my  lord  and  the  j 
what  method  ]^ou*were  to  take  in  putting 
design  in  execution. 

Porter.  There  were  to  be  so  many  ho 
armed  and   prepared   for    that  purpose. 
George  Barcley  told  me^  we  should   be 
40  or  45  horsemen,  and  they  were  to  be  dividi 
into  two  |>anie$,  and  sir  George  Barcley  *• 
to  have  four  meu  out  of  each  pariv,  a'ltd 
business  was  to  attack  the  king,  and  all 
were  with  him  in  the  coach.      Captain  Roob 
wood  WAS  to  command  those  that  were  coi 
out  of  France  to  serve  under  sir  George  Biri 
cley,  and  captain  Cliamock  and  I  were  to 
mahd  the  other  party,  and  both  parties  were 


w 


nfMin  the  guards  at  the  same  time  that  91  r 
Qtar^  Bifcrctcy  attacks  tl  Uie  kioij^s  coach. 
Ail*  Crn.  If  the  prisoner  Ts^il!  ask  him  any 


liir  i  .  Pray,  captain  Porter,  wlicti 

itrat  meet  nig' at  tlie  Glotie-Tavern  ? 
^rnHer^    If  was  otie  day  in  the  h  i^«^k  before 


Skomtr,  Was  Mr,  Rook  wood,  the  pri- 
t  die  bir,  there  that  day? 
r    Ye«,  he  wiis. 

SAtm^^r*  How  loo^ before  the  15lh? 
IWf«r.  One  day  that  week,  boi  I  canuot  tell 

Sf  E>  S^iMPer,  He  says  it  was  agrcf  (I  so^ 
amim  I  desire  to  know  whal  words  Mr,  Itook- 
voad  stlefeil  at  that  time  P 

nrf«r.  It  was  discoursed  by  every  one 
9om4,  wbtHi  wai  the  heuX  vtay  and  methniL 
Mr.  Rook  wood  say,  indef^d^  he  he- 
\  it  a  Tery  desperate  tiling,  and  he  wa«  not 
wmj  wilUn^  to  engag:e  iti  it ;  hut  when  nir 
Itaipe  Bareley  told  htm  lie  should  command 

In^pBtTt  tie  repliefi  io  French 

£1  Gm    What  is  the  meatiing  of  that? 
^^ter.  Tbere  is  an  end  of  it. 
Ah.  Gen.  Vou  say  the  prisoner  was  at  your 
M^iii^  Saturday  the   15th,  in  the  morniog^, 
VImI  diioatirfte  bad  you  there  f 

Pcrtir,  He  waa  theri?  upon  Saturday  in  the 
|,  the  15tti  of  Pebrnary,  and  Durence 
I  account  titat  the  kiug-'s  Hrst  §;uards 
««e  ^w»c^  and  the  king's  kiicUen  was  ^one 
Miirt.aod  it  was  expected  tliat  the  king  would 
|0  ibMl  eleven  a  clock  ;  bitt  it  was  <^aid,  that 
ONffWefe  a  great  uiany  preparin^f  lo  gfo  with 
kiiin,iiiAtlierefore  it  would  not  be  convenient 
W4i»il^t  day  :  Haid  I,  that  is  no  objection 
it  ill,  fMT  the  nubility  and  gentry  g*o  out  of  tiie 
Mimnma  as  the  sport  is  orer,  and  the  king 
wti  m  ^  with  a  few  (leople  lo  Mr. 


PttHichmondf  and  therefore  it  might  he 

ii««fl done  at  that  time  as  any  timet     Du* 

rucrtiiade  that  objection  at  fir^'t  himself;  and 

«Wfi  I  uiede  him  that  answer,  he  went  to  sir 

^  I  Barcley,  am!  he  came  hack  with  sir 

ga  Barcley,  and  the  prisoner  was  tbere  by 

liktlletame  time,  and  sir  George  Barcley  madtf 

I  liw  iame  objection ;  it  was  at  my  lodcring  in 

IliitJe  Hyder- street,  and  when  !  told  them  my 

••an  aj^aiDit  the  objection,  as   I    had  done 

•lirr,  they  all  n^^reed  to  do  it  that  day. 

Mr.  Phipps.    lit  that  second   meeiinfj,   did 

I  llr.  limikwotjcl  make  any  proposal  there  ? 

I    F$rl€r.  I  only  say ,  he  came  with  sir  Georije 

Bfenley,  tnd  w*bat*l  heard;    1  tell  you  sir 

Qmge  Barcley  made  that  objection,  and  I 

I  five  il  tbat  answer. 

Mr.  Bhippt,  But  what  did  he  nny? 
h/tUr,  J  cannot  say  that  I  Jieartl  Mr.  Rook- 
■Md  w^f  any  thin£^  in  particular ;  hut  tfaey  all 
fRed  to  do  the  thing  that  day. 
^  B,  Skomtr,    You  remember  nothing  that 

PW-I^,  Sir  Oeof^e  Barcley  said»  we  will 
f>  ind  prqure;    uid  be  went  away  with 


I 


[190 

81  r  B.  Shimfrr.  Pray,  when  did  sir  Geor^ 
Barcley  come  into  Etitjland  ? 

Porter,  Truly  J  Hir,  1  don't  know  that ;  the 
tjrst  lime  that  I  saw  him  after  he  came,  Mr. 
Char  nock  broug-ht  him  to  my  lodging"  tn  Nor- 
folk-street J  but  before  that,  Mr.  Chumock  told 
me  he  was  come  into  Eii£(land» 

L,  C,  J.  Hark  you,  Mr,  Porter,  when  you 
came  back  from  viewingf  the  ground  before  tlie 
Rrst  Saturday,  and  you  said  you  made  your 
report,  and  then  it  was  a^eed  that  it  should  be 
done  at  such  a  place ;  do  you  say  the  prisioner 
was  there  ? 

Att.  Gen,  No,  my  lord,  he  does  not  say  so. 
Do  you  say  Mr.  Rook  wood  was  there  at  that 
time? — Porter,    No,  my  lord,  I  do  not  say  so. 

Sir  B.  Shower,  I  am  sure  he  did  not  say  so 
befoR* ;  and  besides,  your  lordship  will  observe 
there  ia  no  «iuch  overt-act  aa  that  laid  in  the 
indictment  atjainst  ihe  prisoner,  that  Mr,  Porter 
made  his  report  upon  the  view  i  that  only  con- 
cerns Mr.  Knightley, 

L.  C.  J.  No,  that  is  not  an  overt-act,  I  agree 
it^  but  I  only  ask  the  question,  whether  the 
prisorKT  wut  there  ? 

L.  C.  J.  Trehtf.  If  it  were  an  overt- act  laid 
in  the  indict raeot,  it  would  not  aflfect  the  \in* 
soner,  because  the  viewing  of  the  ground,  and 
making  the  report,  is  captuip  Porter's  act,  and 
il  must  be  the  consulting  and  debating  after- 
wards that  must  affect  the  prisoner,  if  he  be 
coDcemed. 

Mr.  Cofiyers,  The  meetings  and  consulta- 
tions that  are  laid  in  the  iudictoient  are  tho 
overt-ociK. 

SoL  Gen,  Well,  if  they  have  done  with  cap- 
tain porter,  we  desire  Jllr.  George  Harris  may 
be  ftworn. 

Sir  M.  Shmt'tr,  My  lord,  we  beg  leave  l<x 
oppose  Mr,  Harris's  being  sworn  ;  here  was  a 
proclamation  that  did  take  notice  of  this  bar- 
barous conspiracy  to  assassinate  the  king,  and 
ihe  proclamation  did  signify,  Thai  the  king 
had  received  information  of  several  persons 
concerned  in  that  conspiracy  ;  and  for  the 
encourageiupnt  of  tJiking  those  so  accused,  he 
did  promise  a  tliousrand  pounds  reward  for  the 
taking  of  any  of  the  c^nspli-ators ;  and  in  the 
conclusion  of  the  proclamation  there  b  a 
clause,  '  That  if  any  of  the  conspirators  should 

*  discover  or  apprehend  any  of  thi*  other  per- 
*■  sons  that  were  therein  named,  so  as  thai  they 

*  should  be  brought  to  condign  punishment, 

*  such   conspirator   so  discovering  should  re- 

*  ceive  a  thousand  pounds  rewanf  for  any  of 

*  the  other  persons  apprehended,  and  his  own 

*  pardon,'  My  lonl^  we  have  a  witness  here 
ready  to  prove  thai  this  was  I^lr.  Harris*© 
case  ;  he  was  himself  in  the  proclamation,  he 
did  actually  discover  Mr;  Rookwood,  the  pri* 
soner  ut  the  bar,  and  was  instrumental  in  the 
taking  of  him;  and  consequently  U|?on  this 
clause  of  the  proclamation,  if  lie  he  brought  to 
justice,  then  is  Mr.  Harris  intitled  to  this 
reward  and  his  pardon  ;  and  conse(}uently  he 
has  such  an  interest  and  advantage  to  himself 
as  will  prevent  his  being  a  witaofis.    ll\sVt^ 


191] 


a  WILLIAM  III, 


I 


iii(teri],  ii'liere  it  U  at  the  kitt^*s  suit^  in  ft  ea- 

ItiUl  rase,  it  iit  |tretty  hard  to  say  I  bat  a  mao 
I3«  un  iiiiervt<i ;  liut  we  tbink,  as  this  c^se  is 
circumstiMitiated  ujioti  ttiis  |M'iicUiTiation,  that 
the  same  ohje^tiou  lieit  atj^aiiisl  him  tta  wmild 
4o  if  this  were  it  ti%il  cans**  j  if  we  shew  how 
lie  is  to  have  an  advanliige  hy  the  event  of  this 
cause,  then  he  is  iml  to  be  udmltied  a  witness. 

L>  C,  X  Did  he  appveheDd  any  btidy  upon 
the  pru€  lam  alio  u  ? 

8ir  B.  Skoner.  Yes ;  he  apprehended  Mr. 
Rookn ooil  himself,  or  was  the  cause  of  tt,  and 
thereby  is  intitled  to  the  reward  aud  bis 
pardon. 

Mr.  Phippt,  That  upon  which  we  f^und 
our  objection  is  tbe  ditfercnl  penning  of  the 
pioclamution  ;  for  if  any  one  that  is  not  a 
conspirator  do  but  ilbcovtr  and  apprehend  any 
of  the  persons  nsined  in  the  prndaniation,  he 
lA  intitled  to  the  thousand  pounds;  but  the 
conspirators  them  selves  must  go  funher  ;  for 
a  bare  discovtrj  and  apprehending  any  of  their 
ac4;omp1iie}i  will  not  entitle  tbt  m  to  the  reward 
nteniioned  in  the  proclamation,  but  they  must 
discov€'r  and  appretuMid  their  acuomphces  so 
as  they  be  bronjfbt  to  justice,  before  they  can 
be  eutitled  to  the  reward  ;  And  to  be  brought 
to  justice  for  any  crime,  is  in  common  under* 
ctandin^  to  be  brongfht  to  such  puuishment  aa 
the  I'*w  inflicts  for  the  offence.  Now,  Mr, 
Hanriir^i  case  is  this:  He  discovercti  Mr. 
Rooiwoody  antl  went  with  the  gnartis  to  tfje 
Compter  and  seized  l^im  :  And  if  Mr.  Hook- 
wood  iMJo't  conTicted,  Mr.  Harris  U  not  to 
bave  any  thiu^  for  his  pains;  but  if  he  he  con> 
Tjcicd,  Mr.  Harris  is  in  titled  to  the  thousand 
Dounds  and  biti  jmidon.  Aud  therefore^  surely, 
Mr  Harris  cannot  be  admitted  nn  evidence 
ftguiDSt  ^ir.  Ltookwood,  since  lie  is  to  receive 
CO  jfreai  a  benefit  by  his  conviction.  Upon  an 
iodirtmeiu  for  an  usurious  contract,  the  person 
trhofie  deed  it  is  ciinnot  he  a  witness,  because  it 
is  to  avoid  his  own  act:  So  in  an  indictment 
for  perjury,  on  the  stat,  5  Eliz.  the  party  in- 
jured by  the  perjurv  cannot  be  a  witness,  be- 
came \ie  is  to  have  lialf  the  forfeitures. 

Ait,  Gen.  I  suppose  ihey  will  make  out 
their  objection  before  they  expect  an  answer 
from  us, 

Sir  B,  ShoTser.  I  hope  your  lordsliip  will 
not  put  us  to  prove  a  copy  of  the  procUiniaiion 
from  the  iurolment,  but  that  we  may  have  the 
imme  tiivonr  as  in  the  case  ot  the  statute  book, 
that  the  print  of  it  may  be  ftUowed  for 
evidence. 

AtL  Gen.  My  lnr<J,  we  witl  not  stand  with 
them  for  tljai,  we  know  the^r  are  mistaken 
ttuoughout,  we  consent  the  procianiatlon 
should  be  read. 

CL  QjArr.  reads : 

•  By  the  King  a  Proclamation, 

*  William  J?, 

*  Whereas  bis  majesty  hi8  received  infor- 
«  mation  upon  oath,  that  the  persons  herein 
*  after  named  havCj  with  divers  other  wicked 
«  mad  Inutoious  penoaS|  catered  ioto  «  horrid 


Trial  ofAfnbrose  EooJcmood^ 

'  and  detestable  conspiracy  to  Msainnaie  i 
*•  murder  his  majesty's  sacred  pert<Wi  tor  wfa 

*  caus»e  several  warrants  for  high  treMoti  f 

*  been  issued  out  a^iost  them,  bttt  ihey  ' 

*  wittulrti^vu    themselves     from     their     i 

*  plucf's  of  abode,  aud  are  fled  frtjm  juitiq 
^  His  majesty  has  therefore  thouj^ht  fit,  by 
^  advice  of  his  privy  council,  to  issue  bU  i 

*  proclamution,  and  his  raaiesty  dotU 

*  command  and  require  all  his  loving  su' 
'  discover,  take,  and  apprehend  James  i 
*^  Berwick,  sir  George  Bardey,  major  Lou 
«  George  Porter,  capl,  8tow,  capt,   Wi'" 
■  capt.  James  Courtney,  lieutenant  Sfa 

*  Brice  Blair,  Dinanl, 

*  bers,- Boise,  George  Higgins^  ftndl 

*■  two  brotheri^,  sons  to  sir  Thomas 

* Davis  Cardell,    — G« 

• Cramburne,  Keyes, ! 

*  gross    alias    Pendergrass,    • 

* ^  Trevor,  sir  George  Maxwell, 

'  Durance,  a  Fl em  mi ng,  Christopher  Kniek 
'  lieutenant  King,  — Holmes,  sir  \\i" 

*  Parkvns,  — ^-^  RcM^kwood,  where 

*  may  be  found,  and  to  carry  them 

*  next   justice  of   peace  or  chief   ma 

*  who  19  hereby  reouired  to  commit   ^ 

*  the  next  ^a<4,  there  to  remain  uoliU 

*  thence  delivered  by  due  course  of  law^ 

*  his  majesty  doth  hereby  require  the  i 

*  tice,  or  other  magistrate,  imme<liately  to{ 

*  notice  thereof  to  him  or  his  privy 

*  And  for  the  prevention  of  the  goiag 

*  said  persons,  or  of  any  other,  into  Ir 

*  other  parts  beyond  the  seas,  his  maje 

*  require  and  command  all  his  office 
*■  customs,  and  other  hi«  officers  and  i 
'  of  and  JR  tlie  respective  courts  and  1 

*  towns  and  places  within  his  kingdom  i 

*  land,  dominion  of  Walts,  and  town  of 

*  wick  upon  Tweed,  that  tbey  and  eve 
'  them,  in  their  respective  stations  and  pla 

*  be  careful  and  dihgeni  in  the  examinah 

*  all  persons  who  shall  pass  or  endcavoarJ 
^  pass  beyond  the  seas,  and  that  tbey  do^ 

*  permit  any  person  whatsoever  to  go  latv  V 

*  land,  or  other  places  beyond  tbe  i 
^  out  a  pass  under  his  majesty^s  royal  sign  I 

*  Dual  until  further  order.     And  if  tbe^    ' 
«  diL^corer  the  said  persons  above-naq 

*  any  of  them,  then  to  cause  them  to  hmi 

*  bended  and  secured,  and  to  give 
*■  aforesaid.      Anil  bis  majesty    does 
'  publish  and  declare  to  all  pei-sons  wbd 
♦conceal  the  persons  above-named,  oraovj 

*  them*,  or  lie  aiding  and  assisting  in  the  c 
*■  iug  of  them,  or  turthcriog  their  escap 

*  tbey  shall  be  proceeded  against,  for  so 

*  offence,  with  the  utmost  severity,  ac 

*  to  law.      And  Ibr  the  encourag'emeot  of  j 
^  persons  to  be  diligent  and  careful  in 

*  vouring  to  discover  and  apprehend  tbe 

*  persons,  we  do  hereby  further  declare, 

*  whosoever  shall  discover  and  apprehend 
*•  persons  above- named,  or  any  of  them, 
■  shall  bring  them  before  some  justice  of  pea 

*  or  chief  magititrate,  as  aibrcsaid,  aball  U) 
4 


19S] 


J^  High  Trautnu 


•  wd  ttouK  n  •  vemird  the  auni  of  one  thoa- 

•  md  pood ;  which  w4  eun  of  one  thoatftiid 

•  MM,  the  Ms  oommiMioiiers  of  his  ma- 
•jtf^'i  liuiwiy  era  herebj  reqiiirtd  end  di- 

•  mad  10  Mf  aoooftltiigly .  AikI  if  any  of  the 
•faNHewve-BUiied  shall  discover  and  ap- 
*fgkainj  of  their  aecoinplires,  so  as  they 
•mj  be  braigk  to  justiee,  his  majesty  doas 
*mij  Mve,  that  every  person  makinip 
•Mh  ^tcttfaj  shall  have  his  majesty's 
^fmm  pudoB  for  his  offeoce,  aad  shall  re- 
*  CM  the  reward  of  ooe  thousand  pound,  to 
■hnTcd  in  inch  maDiier  as  afonsaid. 

'wn  at  Mir  court  at  Kensington,  the  93d 
*AvefFebni87, 1695-6,  in  the  eighth  year 
■viwragB.  God  save  rns.  King.' 

1k,Fhifp9,  My  k>rd,  the  different  penning 
tflbcdMniiiiot  only  in  that  proclamation, 
hi  it  if  dw  language  of  every  proclamation 
ttiibat^eoat  for  the  apprehending  any  of 
■afSiiiiiialuii. 

itti  ues.  Mj  lord,  all  that  we  say  in  an- 
Mlillija  obtfction,  is,  That  Mr.  fiarris  is 
■tiBBd  IB  toit  proclamation. 

IC  J.  What  say  yoii  to  that,  sir  Bartho- 
Imm^nmtf  He  ii  not  named  in  the  pro- 
*"*"■/  aad  an  if  he  hath  discovered  and 
^pihaM  the  prisoner,  he  has  earned  his 
■■ey,wWther  he  be  convicted  or  not,  beoause 
■^■"iPi  Dane  is  in  the  proclamation,  tho' 
liiiBML 

Jk,Hifft.  Then,  my  lord,  with  hnmble 
^■Mi here  is  another  proclamation  where- 
■^•■■•■ed;  we  desire  that  may  be  read. 

fcLtto.  Aod  when  it  is  read,  it  will  be  as 
■*J*fW  purpow  as  the  other. 

J^^yca.  Let  them  read  what  they  please, 

MBhi^Bothing  at  all  to  it. 
^kA  Certainly,  upon  this  proclamation 
■■■■•ijection;  for  he  is  intitled  to  his 
jiy  iheadj,  though  iUwkwood  be  never 

SkPkipi.  But  is  he  not  by  this  proclamu- 
ii^  wlirh  mentions  his  accomplices,  intitled 
MAhpardQa?  If  bo,  he  swears  to  secure  him- 

I  (I  /  By  the  apprehending  and  discover- 

ktkg m BBtlcd  to  bia  pardon. 
Mr.  Pkipft,   But  not  without  he  be  brought 

kJHriee;  that  b  to  say,  till  he  be  convictert ; 
inCvv  be  cannot  be  an  evidence  to  convict 
Ik 

L  C.  J.  That  is,  as  lo  any  that  are  there 
itoed,  if  any  of  them  discover  and  apprehend 
^  aaother,  it  mOst-  be  so  as  thnt  they  be 
b^  lo  juljce:  hut  if  any  person  that  is 
■iMBed  there  does  apprehend  any  that  is, 
ha  iatitled  lo  the  1,000/.  barely  by  the  ap- 


Ur.FkippM.  Then  there  is  another  procla- 
■laa  where  they  are  both  named,  as  Mr. 
MftwDcid  tells  me. 

fc&SAsver.  My  lord,  we  will  set  this 
Mlv  right ;  w«  will  show  the  other  procla- 
■NB,  in  whidi,  if  I  am  ri^tly  informed,  for 
kMCBBt  nad  it,  Mr.  Hams  is  named. 
Ju.Gtu.  IfyMhBVtBotmd  It,  I  would 
VOL.  XII. 


A.  D.  1696.  [194 

advise  jrou  not  to  trouble  the  court  with  it ;  for 
you  Will  find  the  latter  part  is  restrained  to 
three  or  four  particular  persons,  of  which  he 
is  none. 

Rookwood.  I  am  named  in  the  proclamation. 

Ait.  Gen,  Aye,  but  read  tho  latter  part  of  it, 
and  you  will  find  you  are  not  named  in  the 
clause  that  they  referred  to :  yon  need  not  read 
the  former  part  of  the  proclamuUun,  wc  a^ec 
the  prisoner  is  named  there,  but  only  look  to- 
wards the  bottom,  which  is  the  clause  that  they 
refer  to. 

C7.  ofAr,  (reads).  «  And  we  do  hereby  fur- 
*  ther  declare,'  &c. 

Att.  Gen.  They  have  not  considered  the 
proclamation,  and  therefore  make  an  objection 
of  they  do  not  know  what. 

Sir  B,  Shower,  We  ore  in  }?our  lordship's 
judgment. 

L.  C.  J.  For  what?  See  if  you  can  make 
or  state  a  case  for  otir  judgment. 

Sir  B.  Shaver.  Mr.  Rookwood  is  mentioned 
in  the  first  proclamation,  and  Harris  is  not: 
but  there  are  the  word  accomplices :  he  is  like- 
wise mentioned  in  the  last  proclamation,  but 
not  in  the  last  clause  of  it.  1  confess,  if  he 
had,  it  had  been  plain  it  would  have  taken  off 
his  testimony  ;  but  now  we  must  submit  it  to 
yon,  whether  he  is  not  an  interested  person^ 
and  consequently  no  good  witness. 

L.  C.  J.  Truly  I  £>  not  see  any  colour  for 
the  objection,  is  he  not  as  well  intitled  to  hia 
1,000/.  though  Mr.  Rookwood  hail  never  been 
ti^'d,  by  the  bare  apprehemling  of  Mr.  Rook- 
wood, as  if  he  was  convicted  ? 

Sir  B.  Shottcr.  No,  my  lord ;  because  the 
I  words  are,  so  as  he  may  l!e  brought  to  justice. 

L.  C.  J.  That  is  not  so,  as  to  any  person  that 
apprehends  one  mentioned  in  the  proclamation, 
if  the  person  that  apprehends  be  not  mentioned 
in  it,  and  named  himself ;  if  any  one  that  is 
not  mentioned  apprehend  one  that  is  mention- 
ed, he  is  intitled,  by  the  apprehension,  to  the 
1,000/.  If  any  one  that  is  mentioned  appre- 
hand  another,  then  he  is  to  bring  him  to  jus- 
tice ;  now  Mr.  Harris  is  not  named  in  this  pro- 
clamation, and  so  as  to  the  1,000/.  he  stands  in 
the  same  condition  as  any  other  person  that 
discovered  or  apprehended  one  of  the  persons 
there  nnmed. 

Sir  B.  Shtrtrer.  But  it  seems  he  was  one  of 
the  conspirators,  liecanse  he  is  himself  described 
in  another  ])roclamation.* 

Att.  Gen.  If  it  were  so,  it  would  not  be  ma- 
terial, nor  any  manner  of  objection  ;  but  as  they 
have  made  tfieir  obji^ion  upon  ibese^  procla- 
mations, we  think  there  is  nothin^j  for  us  to 
give  an  answer  to. 

Mr.  Cow  per.  Nay,  my  loni,  if  it  were  so, 
will  sir  Bnrtliolfimew  Siiowrr  say  his  client  is 
not  broiitrht  to  justice  unless  he  be  cK»nvicted  ? 
I  am  sure  the  wonls  *  convicted'  or  *  attainted,* 
are  not  in  the  proclamation. 

*  As  to  the  admittin*;  the  testimony  of  a 
Particeps  Criminis,  see  Howard  v.  Shipley, 
4  East,  180 ;  and  see  4  East,  ^^  686. 

O 


195J  S  WILLIAM  III, 

i.  C.  X  There  is  notliiug^  in  it:  yoti  roust 
twear  Mr.  Harris.     [Which  wa*  done  acconl- 

SoL  Gfti,  Will  you  give  an  accounl  to  oiy 
lord  aud  the  jury,  whut  you  ka<>w  of  this  cun- 
spiracy  against  tlie  kii^s  lite,  from  the  <irfil 
lime  you  were  acqu&iiited  with-  it,  aad  what 
liatKl  the  prisoner  ut  the  bar  bad  ki  it. 

Att,  Gen.  Pray  gire  an  account  of  ihe  whole 
things  your  coroing  over,  ami  who  sent  you, 
and  u|Miu  what  errand,  and  the  whole  tlmt  you 
know  of  this  conspiracy . 

Cap«,  /i»rn>.  Upon  I  he  14»b  uF  January 
last,  the  Fmich  Sule,  N.^i,  I  was  at  8t.  Ger- 
irt:)Lns,  whtrc  I  wa^i  sent  for  by  kiii<j  Jarae«, 
and  was  ordered  to  wait  his  dinner  till  it  was 
over,  ayd  accord iticrty  1  did  wait  till  bis  dinner 
was  oyer  J  and  then  i  came  in,  and  col.  Parker 
%vjts  with  hirn,  and  one  Mr,  Hare,  who  is  also 
moniioucd  in  the  procbmatlim,  was  there  also: 
lite  kill i*'  told  (lie  he  was  sensible  I  had  served 
btni  well,  and  now  he  had  an  opiTortuoity  of 
doiuif  sonifthinj^  for  me;  htitold  m*  he  would 

;id  tin;  into  Eo|^laud,  where  1  should  be  aiib- 

tr<!,  and  I  was  to  follow  the  orders  o\\  sir 
Cieorg^e  RttrrJf  y  ;  and  accoi  ding"ly  be  ordere*! 
toe  ten  kwidortsto  be  paid  by  Mr,  Caroll,  who 
is  secretary  to  the  lute  ([neen  ^  and  colonel 
Parker  wt;i)t  aloiiLf  uilh  me,  and  Mr.  Hare,  to 
Curoll,  an<t  told  him  be  aime  IVom  the  kin«;\ 
and  wc  hud  the  lewidi^rcs,  Hud  we  nent  to  Ca 
bus,  in  order  to  «inr  coniirtn^  over  luiher:  But 
we  wtre  told  if  we  were  wind-Liouni].  that  the 
money  we  received  would  not  Ijcur  our  chartjfi'* ; 
the»e  w;is  orders  pven  for  our  further  s^ubsisN 
ance  ai  Calais,  to  the  president  there,  Accoid- 
ijijrly  we  came  to  Calais,  and  the  wind  did  not 
ierve  us  tor  eif^Ui  or  nine  days;  and  v^hile  I 
stayed  there,  the  money  that  1  spent  at  Caluls 
wu>  piiiil  by  the  president  of  Calais,  Monsieur 
Lutour.  Afterward!;  i  landed  in  En^landi  near 
Uomncy  n^ai-sb,  as  1  was  told,  and  I  came  to 
the  house- of  one  Huni^  and  be  provided  me 
a]vd  iriy  eonirude  with  u  couple  of  borseis;  and 
cjominj^  from  tbencef  I  came  in  the  tirst  pUiee 
to  one  Tucker^s  an  a|K)ihecary  in  Sand  way  ^ 
and  next  from  thence  we  came  to  R  jche»ter, 
to  CharleH  Croft's,  and  from  thence  in  a  coach 
to  Grave^iend,  and  from  thence  by  v%ater  fo 
Ixindou:  That  ni^ht  we  lay  in  Grace-Chnrcb* 
street  at  an  inn,  it  beiujr  night,  the  night-tide, 
ani!  something  late.  The  next  day  1  came  to 
fi  lod^iikg  at  auactfuaintaoce's  of  my  comrade's, 
Mr,  Haie,  at  the  Unicorn  in  Browulow-stixei, 
one  Mi.  \Vatoman*s.  The  neJtt  m^ht  1  went 
to  look  lor  mv  (ieon^e  Bjircley,  whom  the  kiiSg' 
told  me  i  should  certainly  tiiid  by  »uch  a  sifrti 
of  a  wliili*  handkerchief  haogin^f  out  of  hi*? 
pucket,  on  Moiidays  and  Thursdays,  in  Covent 
Ourdeo,  wl^ere  bia  walk  was  to  be  iu  the  even  - 
ing^,  becniiNC  be  was  nut  to  appear  in  the  day- 
time openly,  ft  iuippcnrd  that  tij^oii  Monday 
flight  after  I  came  tt>  tow  »i,  I  went  there  and 
did  not  tind  sir  George  Bjndey  accordlnjof  to 
the  kind's  dirrctioti,  which  i  admired  at;  but 
tbcre  wat»  one  Mr*  Berk^nb^adt  who  ftotd  my 
coimada,  a  day  or  two  ailcr,  Tb^t  lir  George 


Triat  of  Ambrose  Ro€ihxood^ 


[ 


Barclay  would  mscds  speak  with  me,  and 
conlitij^ly  1  met  with  bim ;    and  he  askod 
liow  the  kim^,  queen,  prince,  and  princeis  i 
and  I  told  him  they  were  ?ery  well ;  I  told  1 
1  was  appointiHl  lo  attend  htm,  and  obey 
orders.     He  told  me  he  had  no  mon^y  at  f 
sent,  but  in  two  or  three  days  he  would  m 
some  ;  and  so  he  did,  by  major  Holfnei. 
bad  live  shillings  a  day  for  buintstetice, 
had  no  horse  ;  and  when  I  had  a  horse,  tl 
six  sbdlinG^j  a  d9.y  \  after  which  rate  1  bad 
sisteiice  for  a  month  at  five  shilling's  a 
Sruincas  going  then  at  thirty  shillings.     W 
Holmes    paid  me  the  moit(::y   by   sir  Ge 
BaiTley  V  oitler,  as  he  told  me,  and  ' 
w  ards  gave  mc  a  j^uioea,  and  that  was 
Satunlay  when  tbt*  a.^sa8Sioatjon  was  d 
for  that  we  told  hhu  we  watited  moi 
was  net  reabonable  we  should  take 
out  of  the  stable  before  we  paid  for  theiu: 
I    met  sir  George   Barcley  several   tii 
CiMrcot  Garden,  and  he  to  hi  mc  it  was. 
ciou^  place,  and  de<«ireil  me  not  to 
more  there  i  but  when  he  had  any 
ordeis  to  give  me,  be  w  ould  g'ive  me 
it  where  1  libould  meet  Uim  ;  and 
I  did  meet  him  several  times. 

Alt.  Gen.  Now,  Sir,  will  yoM  tell 
know  as  to  the  prisoner  at  the  bur  '^ 

Hants.  As  to  Mr.  Kookwood,  the 
that  the  assa>Bi nation  wa^i  diKi^iu'd  to 
Hrst  lime  that  I  knew  of  it,  i  met  Mr. 
wuod,  Qt  one  Mr,  i^orck^s  lodging*,  wbcte 
was  up,  and  t  saw  him  in  a  ^rcat  hurry 
MMtM!  eun«Lernation,  and  in  cau>e  M,  iiornard 
]  asked  bim  the  meanini^  of  it,  and   what 
were  uoiny'  abimi ;    and  5lr*  Umikwoitd 
me,  if  I  would  go  down  to  captain  Couul 
(ibonid  know  -,    accordingly  I  went,  and  to 
best  of  my  rmnembratice,  he  jfave  me  a  li 
iH>te  lo  captain  Couuter*  but  that  I  am  Dot 
Sktive  in.      1  went  to  ea|itaiii  Counter,  and 
soon  as  ever  I  came,  he  told  us,  we  must 
immediately  reudy  lo  ^o  to  Tumham  Greepi 

Ati.  Oen.  Where  was  that  ? 

Hnrris.  Ai  the  Woolpack,  that  was  tbei 

aii  near  a-ii  I  remember.    Mr.  Mare 

I  were  oi-deretl  together  to  come  there, 
there  was  Mr.  Uuugate,  who  had  Ikceu  tl 
smne  time,  and  when  I  came  in,  sir  Get 
Hrtrcley  ilid  dcclur*?  lau^hioi^,  *■  These 

*  jani?isaries.'      And    he  talked   sometl 
brintj^inu:  the  garter,  auil  of  .illacking  thei 
btit  he  went  out  of  the  room,  utid  af\i 
he  came  in  and  det*laretl»  '  W  b*  are  all 

*  honour,  and  that  tiw  business  we  we 

*  about,  was  to  attack  the  prince  oJ         _ 
but  Dnrant  came  in  alYer  that,  and  said,  * 

*  prince  of  Oranije  did  tint  go  out  that 
When  he  talked   of   attacking  the  prinoft 
Orange,  i  was  very  rimcb  startled,  not  km 
ift^  any  thin^  of  it  l)ctbre ;  and  1  Came  the 
uioiniug  to  Mr,  Rook wotkI,  and  asked  bi 
we  werti  to  be  the  mnrdcrf  rs  of  the  pridca 
Oranifet    Sa^'g  Mr,  Itookwood  to  me, '  I 
"^  afraid  we  are  drawn  into  some  such  husim 

*  but  it*  i  had  know  a  it  before  I  catoe  orarj 


m 

«%3cf mains,  tnd  ool  have  came  over  hither:' 

nd  taid  I,  *  This  is  rery  fiuc,  we  have  served 

'to  a  very  good  purpf*se,  to  he  «e(it  oFcr  upon 

*iucb  •!]  errifid  and  iiccount.*     After  this  Mr 

RooIcvioihI,   nod    Mr.   Lnwick,  and   I,  had   a 

iB««ting  at  Retl  hyou  Aeh1^»  where  we  did  dis- 

CQune  about  the  mutter.     I  did  often   declare 

against  it,  that  it  wax  nt*  hnrharous  a  thingf,  that 

oa  man  <»f  ht^oour  almost  woidd  he  g"iiihy  of  it ; 

tet  major  Lowjck  an<iwtred,  That  ue  were  lo 

dhiy   orders ;    for  sure  sir    George    llarcley 

wmd   not  undertake  a  thtug  of  that  Dature 

VftlMKit  orders. 

^^^Att*  Gen*    Pray  what  said  Mr.  Rookwood  ? 

^V  Barris,  lie  owned  it  was  a  harharous  ihtn^ ; 

^Ml  lie  was  sent  over  to  ohey  liir  Gtorge  Bnr- 

Hpj%  orderB,  which  he  had  several  limes  de- 

Hkunid   be  was  resoked  to   do  ;     upon    Ihnt 

wi»  pCftet) :     So  afterward?   I    came  to  Mr, 

BmihriHMtV  ltM%itig;     it  was  the  Saturday 

wmvmg    I    catfie  to  him,  and  no  weut    to 

■r  Gf*>nje    Barcley*s ;   while   he   was  there, 

Hr.    F*  !    gate    me    a    note,    naminif 

•»  ma  ,    pariicularfy   Mr.  Hnn^^ale^ 

Sfr.  Huafiird,  Mr.  Hare,  and  his  own  name  at 

top,  not  the  name  that  he  is  arraigned  by  here ; 

^  a  «liaiu  name  that  he  had|  as  the  rest  of  tis 

ill  hid  fiham  names,  which  at  that  time  we 

wcntlr^. 

L.  C,  J.  What  was  your  name  ? 

Hams,  My  name  is  Jetikias. 

L,  C,  X  Who  gare  you  that  name  ? 

ficiTti.  Kin*?  Jaines'al  8t.  Gerinnrns»  and 

legpffeBff.  Hare  the  name  of  GuiDey^  and 

Mt*  liwlrwood'^   name  wns   Robert*;,     ^^ng 

liMilold  us  in  hiis  bed  chamber,  we  were  to 

filjribHe  Dames. 

w.  Gen.    Pi'aVi  Kir,  what  did  Rook  wood 
•fivyiio,  when  he  gave  ymi  that  lii^t? 

Bp^ii.  He  ir»!d  me,  he  was  to  go  t<i  Turn- 
^QB  green>  and  1  waii  to  |^o  alonfjf  w'nh  htm^ 
todnya  he  to  me  stiiilin2"i  *  You  J^hall  W  my 
lidde  eainp  ;  and  g'et  the  rest  of  tlie  gonfle- 
■fO  fvmdy  :*  and  aceordinpfly  I  went  t'>  look- 
er lererai  of  the  ]»ersun^ — pariitrularly  *or 
Hf*  Bludttntrrie  ^  ^  hen  !  came  back  ag^tn, 
t  foood  him  lyini^  on  hts  bed^  and  thnt  sir 
L  Ccocge  Bare)ey  had  told  him  the  prince  of 
I  %miigt  did  not  go  out  that  day  ;  and  from 
I  ^kmett  we  went  lo  dinner,  where  miijor  Low  irk 
€aed  with  us,  and  Mr.  Bernard e  and  major 
UwirJc  seeing  me  in  a  heat,  aske<l  me.  Why 
I  iru  IQ  such  a  s%veat  ?  I  toJd  him  I  were^et- 
tinj^lboiie  men  really  for  Mr.  Rookw not) ^  who 
bi^  made  me  his  aid  de  camp ;  says  majnr 
Lawtek  to  me,  You  may  very  well  do  il^  for 

rMi  have  six  shilfhirjs  a-day  allowed  you,  and 
Iwte  nothing';  I  hnnji;-  two  m».'n  at  my  own 
cbari^.  Said  1«  Major  Lowick,  I  wonder  you 
^  ftot  apply  3'nurieH'  to  fir  George  Barclcy, 
lad  tlien,  I  Wieve,  yon  may  be  subsisted  t€H[». 
Hemtwered  me,  He  did  not  think  it  ivnrth 
ilKwItiJeto  trouble  him,  since  hir  had  never 
mfkt  to  him  of  it  before :  aod  Uookwood,  and 
mnmgde^  and  Lowick,  and  myself,  several 
lioei  met  b  Red -Lyon -fields,  and  talked  of 
I  the  prince  of  Orange* 


Alt.  Gen,  Who  did  T 

Harris,  R^okwood,  Bemarde,  I^owick  and 
myself^ 

Alt.  Gen,  P»^t  Sir,  let  me  aak  ymi  one 
one  question.     Where  was  your  horsse'at  6rst? 

Harrh,  At  first  it  was  at  my  lord  Fever- 
shames  stables,  as  tliey  told  me,  in  Somerset- 
House. 

Alt,  Gen,  Where  wera  the  other  persons 
bcrrses? 

Mortis.  There  vva<«  Mr.  Himgate^s  and  Mr. 
Harems  hcirsies  in  the  same  place,  at  the  same 
time,  UA  tli<iy  told  me. 

Alt,  Ccn,  How  came  you  by  yoiiir  horse 
there  ? 

Harris.  Major  Holmes  did  deliver  my  horse 
and  committed  it  to  my  care,  aod  I  carried  it 
thence  lo  another  place, 

Ati.  Gat.  Did  you  ob^^erre  there  was  any 
more  faorses  there  ? 

Harris.  I  beliere  there  was  five  or  siac,  as 
near  as  I  can  guess. 

At  i.  Gen.  Do  you  know  where  Rook  wood 
was  to  have  his  horse  ? 

Harris.  He  had  a  horsey  but  whence  he 
had  it  I  do  not  know. 

Alt,  Gen,  Had  jou  any  arms  delivered 
you? 

Harrii,  Yes,  I  had  by  capt.  Conoter. 

Mr,  Concert,  Were  you  at  do  other  place 
together  that  Saturday  night,  the  22d  of  Fe- 
bruary, lie  cause  you  say  you  dined  together  ? 

Harris.  Yes,  we  were  at  the  Bear  tavern. 

M  r.  Cmiyers,  W  hut  discourse  passed  betM  ccn 
you  there? 

Harris.  They  were  talking  about  the  assas- 
siuation  ;  but  what  any  particular  person  said, 
f  can  ant  tetl. 

Mr.  Conifers,  Pray  who  were  there  ? 

Harris,  There  it  is  Mr,  Kui^hlly,  captain 
RooKwond,  and  Mr.  King;  and' Knightly 
went  mtt,  and  came  iu  again,  and  dechred, 
we  must  btive  a  jjrent  deal  of  rare  of  ourselves 
or  weshonhl  he  taken  up :  and  he  whispeied  at 
fir*it,  and  lifter**  ards  I  asked  him  whit  it  vias ; 
and  he  t<»M  me,  and  said,  '  We  must  have  a 
care  of  ourselres,'  Says  Mr,  King,  staring 
ihis  way  with  his  eyes,  *  Surely  God  Almighty 
is  on  oilr  side  ;'  and  so  we  partctl, 

X,  V.  J.  Whcii  was  this? 

Harris.  This  was  the  ui^^ht  of  Raturday  the 
22d,  wlien  il  wsis  discovered;  for  souie  Oilhem 
were  taken  tip  the  next  day. 

An,  Gen,  Was  Rook  wood  there  at  thai 
time  at  tlie  liear  tavern  ?     , 

Harris.  I  cauBot  positively  tay  whether  he 
was  or  not, 

Att,  Gen.  What  discourse  had  you  there? 

Harris,  We  t:\lked  of  assassinating  the 
kin^;  but  what  it  was  in  particular,!  1  cannot 
tell, 

L,  C,  J.  W  as  Rookwood  there  ? 

Harris.  Yes,  I  beliirte  he  was ;  hut  1  cannot 
positively  say. 

L.C.  J.  You  say  it  was  the  la^st  Saturday 
that  the  king  was  to  g»  abroad,  that  you  appre- 
hended yott  were  ditco?cred  f 


199] 


S  WILLIAM  m. 


Harris.  Yei ,  we  apprabeiided  we  were  di»- 
oofered  before  that ;  tor  Mr.  Lowtck  told  me 
that  three  or  four  days  before,  in  that  week, 
that  his  name,  and  one  Harrison's,  were  given 
into  the  council,  and  another,  and  another, 
two  or  three  of  them,  as  he  told  me  ;  I  think 
three  or  four;  and 'upon  that  account  major 
liowick  went  from  his  lodging,  and  did  not  lie 
at  bis  lodging  the  night  bc&re ;  and  I  came  to 
major  liowick,  and  he  told  me  the  same  thing 
at  the  King's -arms  ta?em. 

Att,  Gen,  Can  you  remember  what  discourse 
you  had  that  Saturday  night? 

Mr.  Cowper.  You  say  that  on  Saturday  the 
93d,  Mr.  Bookwood  ga?e  you  the  list. 

Harris,  i  do  not  say  it  was  the  SQd,  for  I 
cannot  swear  to  the  day  of  the  month ;  but  it 
was  the  second  Saturday  that  we  were  to  hare 
gone  about  this  business. 

Mr.  Cowper.  You  say  he  gare  yon  a  list  of 
names :  pray  when  he  gave  yon  tmU  list,  what 
discourse  hapi)»2Dcd  in  the  room  just  before,  or 
miler  the  giving  of  the  liit? 

Harris,  Sir,  I  think  I  told  the  court  that  be- 
fore. 

,     Mr.  Ccmptr,    Sir,  I  desire  yon  would  re- 
peat it. 

Harris,  My  lord,  T  humbly  desire  to  know 
whether  I  am  to  answer  that  gentleman  that 
question  ? 

L,  C.  J.  Yes,  you  are  to  answer,  being 
upon  your  oath,  until  to  tell  the  whole  truth. 

Mr.  Cowper.  I  asked  him  the  question  so 
fairly,  what  discourse  introduced  the  giving 
of  the  list,  and  what  followed  upon  it,  that  I 
perceive  this  gentleman  does  not  know  which 
side  I  am  of. 

Harris,  Mr.  RooLwood  said  we  were  to  <^o 
to  Tumham  green ;  and  he  told  me,  that  I  wus 
to  be  one  of  his  party,  that  we  were  to  attack 
the  Prince  of  Orange. 

L.  C.  J.  You  suy  yon  were  tci  be  one  of  his 
party ;  prav  was  it  there  that  he  tuld  you,  you 
should  be  his  aid  dc  ramp  ? 

Harris.  Yes,  he  did  tell  me  I  was  to  be  his 
aid  dc  camp. 

Mr.  Fhipps,  Whose  hand  writing  was  that 
list? 

Harris.  1  cannot  tell,  1  iuul  it  fVom  that  gen- 
tleman. 

Mr.  Phipps,  Rut  whose  n  riling  was  it  ? 

Harris.  Indeed  I  know  not  bisTiand-writin^, 
and  therefore  cannot  tell  whose  it  was  :  he  w 
for  his  life,  but  I  believe  he  cannot  deny  any 
thing  that  I  have  said,  I  suppose  not :  i  should 
bo  very  sorry  lo  accuse  Mr.  Ruokwuoil  of  any 
thing  that  was  not  true. 

Mr.  Fhifps.  Pray  whose  names  were  in  that 
list? 

Harris.  I  have  mentioned  Mr.  Hare,  Mr. 
Hanford,  Mr.  Blackburne,  myself,  and  you, 
Mr.  I^kwood,  had  your  own  name  at  top. 

RookKood.  IVhattt  that  Blackburne? 

Harris.  He  is  a  Lancashire  man. 

Hookmood.  it  is  a  very  strange  thing  I 
■hookl  give  you  a  list  with  a  man's  name 
that  1  &  not  know ;  I  declare  it,  I  know  no 
■ucbponm. 


He  gave  it  into  my  hands,  and  hai 
me  agam,  or  I  threw  it  away  aftpr- 


Trial  tfAmbrote  Rookwoodf  [XW 

Harris.  'Mr.  Rookwood,  I  belkvoyovoi 
very  sensible  I  do  not  accose  you  of  any  thnf 
that  is  not  true. 

Mr.  Phipps.   When  did  you  see  that  list 

last?  '^  ^ 

Harris. 
it  from 
wards. 

Hookmood.  But  you  that  were  to  be  an  evi- 
dence ought  to  have  kept  it  to  justify  your  evi- 
dence. 

Harris.  Truly  1  did  not  intend  to  have  besn 
an  evidence  at  that  time. 

Att,  Gen.  if  they  will  ask  him  any  qucstioM^ 
let  them. 

Sir  B.  Shower.  No,  indeed,  I  will  ask  him  no 
questions. 

Ati.  Gen.  Then,  my  lord,  we  have  another 

fnece  of  evidence  which  we  would  offer  to  yonc 
ordship,  which  is  not  direct  evidence  agaiasl 
the  prisoner,  hut  only  to  prove  a  circumaCanoi 
or  two  of  what  has  ali-eady  l>een  sworn  :  wtt  do 
acknowledge,  my  lonl,  it  does  not  aftctNr. 
Rookwood,  but  only  to  strengthen  and  eonfini 
what  they  have  sworn. 

Sir  B.  Shower,  With  submission,  we  hopo  It 
will  not  be  eviilence  tit  to  be  given  as  to  the  pn« 
soner  at  all ;  for  because  a  man  may  i 
true  in  the  particular  circumstance  of  a 
that  therefore  he  swrars  true  what  he 
against  the  prisoner,  1  ihiuk  is  no  consequ 
in  ilic  world. 

L,  C,  J.  ft  is  a  thing  distinct  and  foreign  Is 
the  matter^  as  to  Mr.  Rookwood. 

Att.  Gen,  Mv  lord,  we  do  not  say  itdiradltf 
affects  Mr.  Rookwood  ;  but  when  your  l<irdili|^ 
bus  hcurd  it,  we  shal^ submit  it  to  you,  how  w 

it  conlirms  even  the  evidence  given '^^ 

him. 

Mr.  Coni/ers.  My  lord,  we  say  the  pn 
was  to  have  his  horse  from  SuinerseU bouse; 
and  that  there  were  horses  placed  there  for 
that  purpose  we  are  going  to  prove. 

Att.  Gen.  My  lord,  it  is  one  entire  ooupi- 
racy,  in  which  every  one  had  his  part;  ont 
was  to  have  his  hordes  and  bis  party  in  ent 
place,  and  another  in  another :  Now  that  thcit 
were  at  such  time  such  horses  at  SaoMmsl- 
house,  and  tliose  horses  were  i lelivereit  out  fioa 
Somerset- house,  is  certainly  a  confirmation  tf 
the  truth  of  what  the  witnesses  have  said. 

L.  C.  J.  It  is  so.  If  that  be  it  you  offer,  it  ■ 
very  material. 

Mr.  Coni/ers.  We  shall  prove,  That  upnn 
the  disuppointiiient  nn  the  iiist  Saturday,  tkt 


15th  of  February,  th«*y  were  to  be  ready  agniMl 
the  22d ;  and  you  will  hear  how  the  honm 
were  diK|iod<Ml  of  in  the  mean  time.  Call 
Chamberlain,  Maskel,  and  Allen. 

Att.  Gen.  Call  any  of  tlK.>m,  I  believe  itii 
enough. 

(Mr.  Chamberlain  appeared  and  was  sworn.) 

Att.  Gen.  Pray  will  ynu  give  my  lord  md 
the  jury  an  aucount  what  you  know  of  UM 
horses  that  were  brought  to  SomeiMi4M«i» 
abont  February  laat.  and  how  long  they  i 
there  ?  -^       ^ 


Jqt  High  Tremm* 


A.  D.  1696. 


[2QB 


There  ivas  six  horses. 

Aii.  Gem,    Who  bn>u|^hl  tUew  in  f 

OmmUrU^t.  They  were  sent  in  by  iom« 
pcnoo»  in  Mr.  Lewis's  Dstne. 

AtL  G€m,  Had  you  a&y  direction  to  take 
tweof  ibeaif 

Ckmi^bfrUiin.  Mr.  Lewis  sent  in  a  note  to 
1^  cafe  or  them  for  a  ni^fhtor  two. 

iff.  Gtm*    Who  carried  tJiem  away  ? 

Ciaiiiieri!<t*a.  f  cannot  tell  ;  some  people 
eiaa  to  wtt.  tbeui  thtU  1  oever  saw  before,  and 
di«f|ookcM«  of  them;  I  know  not  who  Utey 
«af,iiMl  I  defer  saw  tljera  since. 

Ml  Gen.  What  tiuae  waa  it  that  they  came 
lirihn? 

Ckamktrlain,   U  was  about  the  middle  of  the 

Att.  Gen,  W  hat  monlh  wasi  it  m  ? 
CkamhTiitin,  I  think  it  was  much  about  the 
baer  end  of  February,  to  the  beft  of  my  re- 


Ail  Gen.    How  kmg  was  it  before  the  plot 
[  m  disoovered  ? 

fTTTTiff-^  "     It  waA  about  a  week,  or  a 
mttlier,  before  the  plot  was  discovered, 
beat  of  my  knowled^re, 
.  Gem.  How  luog  staid  the  horses  there  at 


Tliree  of  them  staid  a  nigrht  or 
-tet  the  otlier  tliree  of  them  about  a 
'  of  n  week  or  ten  days. 
I,  G^n*  Who  <*\vncd  thcM»e  horses  ? 
_  ..riain.  They  w^-e  sent  m  in  Mr: 
»>  iMjne  ;  but  who  owueil  theoQ  I  cannot 
ndeeil. 

lU.Oivjferf.  Then  swear  John  Allen*  [Who 
mom.]     Pmy  tell  mv  lords  aart  the  jury 
jou  know  coucerning-  any  horses  aoout 
I  the  one  of  the  breakmiic  out  of  the  plot. 

dU,  Gen,    We    mean    in    Soon ei set-house 

m*  There  was  seren  horses  came  in. 
,  C^wtn.  Who  brought  iheio  ? 

AUen,  There  was  six  in  the  firsl  place  j  one 
MIM  is  aiier wards  io  ihe  evenitig. 

Mr-  C^myeri,  By  whose  order  were  they 
WMnrlit  there  ? 

Mien,  By  Mr*  Lewis's  order. 

Aii,  Gen,  How  loni^  did  iltey  stay  there? 

Alien.  Home  of  tiiem  stuid  there  several 
^lyi ;  ihrM  of  them  went  away  the  next  day, 
» I  thuik. 

Mr,  Cemiftri.  Bo  you  remember  about  what 
ine  tlmae  horses  were  brooght  thither  ? 

AUim*  They  weye  brouf  ht  there,  I  beheve, 
ibout  trfreo  or  eight  days  before  the  plot  broke 

J^,  Gen.  ftly  )onl«  we  only  ckll  thewe  wit- 
M^ci  to  confirm  the  testimony  nf  the  others. 
Ibt  them  wisre  auob  burses  there  at  that  tinie, 
lid  Ibr  lliejpinent  we  rest  it  here. 

L,  C,  J.  Then,  gentlemen,  what  say  you  to  it 
fcr  the  pritoiier  f 

Uk  B.  Sksmer.  If  your  lortkhip  pleaae,  we 
Hiofoou— cJ  for  the  prisoner  ;  and  ih  .t  which 
^  aie  40  tnaiat  upon,  is  tkk,  which  we  submit 
to  your  iordsKipA*  jndgmeut ;  1  u  the  fifpi  place, 


whether  here  be  two  wttneaaes  against  the  pri- 
soner to  proTe  this  treason  ^  according  to  tbs 
statute  of  Edw.  6,  which  ref|atrestwo  witiiessei 
in  High -treason,  and  lawful  ones  ;  but  that  in 
the  6rst  place  we  say,  there  are  not  two  wit* 
nesaesat  all,  at  least  not  to  any  overt-act  ibatis 
laid  in  this  indictment.  As*  to  what  captain 
Porter  snys  of  what  passed  between  him  and 
Durance«  the  dialogue  between  them  where 
Rookwood  was  preseut,  we  are  in  your  jordship^s 
direction  ;  and  we  doubt  not  but  I  he  jury  will 
take  It  into  their  coDsideration,  how  fur  ihat  af- 
fects the  prisoner  ;  that  he  shall  not  be  eun- 
cerned  in  any  trarisaction  lietween  Mr,  Porter 
and  any  other  persons  ;  none  of  their  declara- 
iiooK,  none  of  their  treasonable  practices,  can 
be  imputed  to  or  aflect  him  in  any  way  what- 
soever. Now  all  that  captain  Porter  says  of 
Mr.  Rookwood  is,  that  he  was  once  at  the  Ulobe 
tavern,  and  there  was  a  discourse  about  this 
matter  ;  and  then  he  telU  your  lordtbip  of  a 
dialo<^ue  between  him  and  Durance,  and  an 
account  of  what  passed  between  them  ;  but  he 
floes  not  say  any  thing  of  Mr.  Rookwood  being 
any  ways  concerned  in  the  matter,  but  only 
that  be  dropped  this  eiprcssitm,  it  was  a  des- 

Kerate  adventure,  a  dangerous  enterprise,  and 
e  seemed  against  it ;,  out  in  tlie  end  he  con- 
cladpd  i*ith  something  in  French,  which  what 
they  are,  and  what  they  mean^  we  must  f^tdimit 
to  your  lordship  and  the  jury  ;  he  interprets  it, 
when  sir  Georfje  Barcley  said  he  must  have  a 
share  in  it,  then  Rookwood  rcpUeil,  There  is  an 
end  of  it  But  there  i^  not  one  word  of  aj^ree- 
ment  sworn  to,  that  Air.  Rookwocid  spoke  to 
»hew  his  consent.  There  is  hut  utie  time  more 
that  Mr,  Porter  swears  to^  about  the  prisoner  at 
the  hiir^  and  that  is,  at  his  lodgiog<t  in  Little- 
Rid  or- street  ;  for  as  to  the  other  consult*,  Mr. 
Rookwood  was  not  present  there ;  ll  sesfiis 
there  was  a  discourse  about  the  affair,  but  that 
Rookwood  said  nothing,  hut  went  away  ;  there 
was  not  so  moch  as  the  learn  intimation  of  an 
agreement  to  any  such  design,  or  approbation 
of  what  was  a(;ritated  in  the  enmpnny  ;  and  we 
insist  upon  it  as  to  this  in  |M>int  of  Uiw,  that  it 
amounts  to  no  mor«'  than  mispn^ion  of  treason 
at  most.  My  lord,  1  will  not  now  contend 
about  notions,  nor  w  i1]  I  ar^ue  whether  con- 
sulting and  agreeing  t>e  eviileuce  of  an  overS- 
act ;  I  submit  to  your  lonlship'^  directiona,  aol- 
wiihstanditig  the*  variety  aitd  difterenoe  of  opi- 
Dions  thai  h«ve  hf*en. 

L,  C,  J.  8ir  Bartholomew  Shower,  I  know 
not  what  yariety  of  opijiions  you  mean  ;  there 
have  been  some  dietcourses  in  pamphlets,  1 
agree  ;  but  it  was  always  taken  aitd  hdd  for 
law,  that  consulting  and  agreeing  was  an  overt- 
act. 

Sir  B.  Shiiwer.  Here  is  no  evidence  ef  any 
agreement. 

L,  C.  J.  Pray  let  us  hear  what  you  sey  te 
that. 

8ir  B,  Sfimrer.  It  is  not  the  being  present 
where  traitors  do  consult  and  conspire  the 
death  of  thie  king,  unless  they  actually  agree ; 
nor  is  it  evidence  suliicietit  to  ^tde  or  prevail 


J03J 


8  WILLIAM  m. 


I 
I 


I 


upon  a  jurv^s  conscience  to  afiimn  tjponlhdr 
onths,  tnal  such  a  oU€  is  guilty  of  bigh  treason, 
because  such  a  ooc  w&s  were,  and  said  noliiing 
at  all ;  for  the  not  diaooveriog'  nAenvards,  tior 
accusing,  i«  no  evidence  at  all  against  Mr. 
B<H>kw^.  As  to  Mr,  Harris,  be  gives  ynu 
an  account  of  a  great  tJeal  that  does  not  afiPect 
Mr.  Roukwood,  neither  all  that  |iassed  at  8t, 
Germainst  nor  in  their  jnurnev  into  Knglatid  ; 
for  all  that  wa)  be  true,  am!  yet  the  pris»>ner  no 
ivay  concerned  in  it.  \u  to  what  he  affirms  of 
the  prisoner,  we  !>hall  submit  it  to  your  consi- 
deration :  what  it  aniounttt  eo,  and  all  that  bia 
deposition  comets  U[>  to^  i«,  that  Mr.  Uonkwood 
complained  thai  be  was  lu  uky  implicitly  sir 
George  Bardey's  orders ;  uiiil  i  I  arris  g^res  an 
account  but  of  one  particular  time  that  Mr. 
Rook  wood  undertook,  or  did  ag^ee  to  be  con- 
cerned in  this  matter ;  it  was  but  once,  and 
that  was,  when  he  gave  him  ibe  note  of  those 
that  were  to  go  to  Turn  bam- Green »  and  that 
he  was  to  be  his  aid -de -camp :  and  as  to  that, 
we  shall  gire  you  an  acwjimt  by  witnesses 
whom  we  shall  call,  that  these  two  witneaaes 
ought  not  to  be  believed  as  to  what  they  have 
sworn,  though  they  do  not  come  up  to  make 
two  witucKses  according  to  law  upon  ihij 
indictment.  What  they  have  aaid  as  lo 
this  man,  ia  not  credible,  though  thev 
nmj  speak  true  as  to  others;  aud  no  douGt 
there  waa  •  barbarous  conspiracy  ;  it  appears 
there  was  such,  beyond  all  eiceution  and  con* 
tradiction ;  and  the  persons  that  bare  been 
condemned  as  cons|iirators  have  acknowlei^^ 
it :  but,  my  lunt,  that  which  is  now  before 
your  lordship  and  the  jury  is,  to  enquire  whe- 
Uier  the  prisoner  is  concerned  in  this  nflair  at 
all  J  and  how  far  ;  and  we  hope  the  jury  will 
be  of  opinion  he  is  not  ctincemed.  The 
beinousness  of  the  crime,  and  the  aggravalioi» 
of  it,  being  to  Ik*  abhorred  by  all  mankind,  we 
ihink  ought  nut  to  snay  with  the  jury,  nor  in- 
lluence  thtfir  judgments  to  believe  a  witness 
ever  the  sooner  in  accusing  any  other  pei*son  ; 
it  ought  rather  to  have  a  contrary  allay;  for 
the  greater  the  crime  is,  aud  the  farther  off 
from  having  any  tolerable  opinion  in  the  world, 
Ihey  ought  to  expect  the  greater  proof;  and 
no  one  is  to  be  presumed  guilty  of  such  an 
act,  without  very  suOleicnt  evidence  of  it ;  and 
the  greater  the  crime,  the  proof  ought  to  be  the 
more  (lositive  and  undeniable.  It  is  not  their 
being  plainly  positive  that  is  sufficient,  but 
whether  it  is  such  that  is  good  in  law  ;  and 
about  that  we  are  sure  your  lordship  will  give 
(rue  directions  in  paint  of  law  :  and  whether 
the  witnesses  be  cmlible  or  no,  must  be  sub- 
mitted and  lefl  to  the  jury,  afkT  we  have  called 
some  wilnesaeD,  ulio  will  give  you  an  account 
of  their  reputation. 

Air.  Phippt,  My  loffd»  we  humbly  insist 
there  are  not  two  witncMCi,  such  as  the  law 
requires,  to  prove  the  charge  upon  this  indict- 
ment against  the  prisoner:  the  two  overt  acta 
that  touch  Mr.  Rookwood  are,  first,  csnsulting 
and  agreeing  bow  to  kill  the  king ;  the  other 
ja»  Ibe  Coding  artm  and  horses  lor  that  purpose. 


Trial  qfAmbroie  Rookwood^ 

But  as  to  tin's  latter,  Ibe  finding  arms 
hcki^ef,  there  im  not  one  eviAenor  that  comes 
to  it :  and  tLs  to  the  former,  the  consu 
whether  there  be  sufficient  evidence  that 
op  t*»  that,  is  very  much  a  question  wtti 
but  we  say,   with  submission,  there  are 
two  wit:iesses  in  that  case  ;  for  Mr.  Porter  ta^ 
only  whut  he  was  told  by  sir  George  Barcle^ 
thut  sir  George   )iro|}Osed  this  matter  !• 
withal  he  teils  yoti,  that  when  sir  G< 
cley  proposed  it,  and  Mr.  Rookwood 
fonniKl  what   the  design  was,  he 
from  conspiring,  consulting,  or  agreetng  to 
it,  that  he  said  it  was  a  bariiaroiia  act,  and 
recoiled  at  it.     Then  at  last  says  sir  Gi 
Barcley,  *  You  must  command  a  party* 

L.  C.  /.    Well,   and   what  said  Rookwi 
then? 

Mr,  Phippt,  Porter  says,  tie  then  8»Md,  ti 
is  an  end  of  it.     Now,  my  lord,  what  evid 
is  this  of  a  consultation  and  ugreemtnt.'  A 
this  is  all  that  Porter  says.     As  to  win 
Harris  says,  we  are  In  consider  whetl 
list  given  to  him  be  an  overt- net ;  and 
the  poitit  in  question  is,  whethr.'r  that  list 
be  given  in  evidence  against  Mr.  Rookwi 
upon  this  lale  act  of  parJiamenl^  as  an  oV( 
art,  it  not  being  laid  in  the  indictment  f  Tf 
is  indeed  an  overt-act  of  a  list  laid  in  thei]i< 
dictiuent,  as  given  to  Cranbnrne,  but  none 
given  to  Mr.  RookwooiL 

L.    C.  X    i*ray  take  the  evidence  rMd, 
first,  ubiit  will  you  make  an  overt-act?  HKf 
do  you  thu^k   when  there  is  a  debate  ai 
divers  persons  abaut  killine  the  kiag  ? 

Sir  B.  Shower.    With  submi»isiun,  that 
be  no  overt-act,  if  there  be  a  debate  of  sudl 
matter,  though  he  be  present. 

L  C.  J.  Aye  ;  but  when  there  ts  a  consnll^ 
and  upon  debate  a  resolution  is  formed,  aui 
Ihuugh  he  does  at  first  dislike  it ;  yet  when  tie 
15  tuld  be  must  command  a  party,  he  says  he 
is  content,  or  tliere  is  an  end  of  it — W  hat  doy 
you  make  of  that  f 

Sir  B,  Shouer,  He  said  he  did  not  like  it 
it  was  a  barbarous,  desperate  design. 

L.  C.  /.  It  is  true;  but  when  sir  Georai 
Barcley  said  he  should  command  a  party,  hi 
aorpiiesced,  and  said  there  was  an  end  of  i1 
There  was  a  discourse  about  cutting  off  tb< 
king,  and  that  was  agreed  upou  in  the  conn* 
pany  at  that  time  ;  and  though  at  grst  he  dii~ 
Dut  like  it,  yet  he  might  after^vanls  agree  to  il 

Sir  B.  Shcfwer,    My  lord,  that  is  it  which 
deny ;  we  say  there  is  no  proof  of  his  agree* 
meni  to  it. 

L,  €,  J.  Captain  Porter  says,  he  did 
that  he  said  be  looked  upon  it  as  a  ' 
desiga,  and  wa«i  averse  from  being  euj 
it,  but  aftenvards  did  agree  to  it :  whetl 
not  that  such  an  overt- ad  sa  is  laid  in  the  ii 
dictmeot  ? 

Hk  B,  SftDwtr,  My  lonl,  we  must  beg  leavt 
for  the  [irisoner  in  a  case  of  this  nature,  that  il 
may  be  recollected  what  the  evidence  did  aay« 
Mr.  Porter  did  not  take  upon  him  to  affirm  th;  ' 
Mr.  Rookwood  consented  to  it,  but  only  sai 


fmf  High  Treason, 

If  n  ftd  of  it.'  Now  we  must  leave 
e  jorjr,  what  they  caa  make  of  such 
laMrorioB. 

[  CiO  Mr.  Pteter  iu  again. 
n^tru  My  lord,  the  first  meeting 
ripnbof,  where  the  prisouer,  Mr. 
I,  wu,  ii  at  the  Glohe  tavern,  where 
Hie  wai ;.  the  next  meeting  that  he 
mfoo  the  Friday  night  before  the 
iby  when  the  buiioess  was  to  be 
iamrwards  he  met  at  Porter's  lodg- 
ibirday  morning,  in  RidernBtreet. 

a  Ca|it.  Porter  came  in  again.) 

Hirk  ye,  Mr.  Porter,  the  first  time 
■Iter  was  proposed,  when  Mr.  Rook- 
vcMSt,  Tou  say  was  at  the  Globe 
forter.  Yes,  my  lord,  it  was. 
And  you  say  he  disliked  it,  and  did 
»beooiioemed  in  it? 
Yes,  my  lord,  he  did  so. 
.  Well,  what  said  sir  Geo.  Barcley  ? 
Sir  George  Barcley  said,  he  ought 
ii  orden,  for  he  had  such  a  com- 
r  nch  a  thing,  and  he  drew  out  a 
w  it  was  to  be  done ;  ana  when  sir 
icley  told  Mr.  Rookwood  he  should 
bii  party,    he  replied  in  French, 
acnlof  it.' 

Thif  was  at  the  Globe  tavern,  was 
ffto*.  Yes,  my  lord,  it  was. 
I.  Pray  then,  capt.  Porter,  let  me 
Mber  question :  Was  he  afterwards 
tioy  other  meeting,  and  when  and 

Be  was  with  me  upon  Saturday  the 
\j  lotlging  in    Little  Rider-street, 
V  George  Baroley  and  others. 
L  What  discourse  happened  then, 

rbey  did  there  discourse  the  whole 
lir  George  Barcley  was  not  for  go- 
time,  b^aose  there  was  so  many 
rent  with  the  king,  that  there  would 
d  onportunity  to  effect  the  design  : 
n  they  would  go  off  after  the  hunt- 
',  and  so  it  was  agreed  upon  to  go 
mdertaking. 

Pray,  at  tliat  time  did  Mr.  Rook- 
1  to  ifislike  tlie  affair,  or  refuse  to 
It  ail  concerned  in  it  ? 
Vo,  my  lord,  I  cannot  remember 
B  one  word. 

(Vas  Mr.  Rookwood  there  ? 
^es,  there  was  Mr.  Rookwood,  sir 
ley,  and  Mr.  Dun  nee. 

And  had  \ou  discourse  at  that 
lis  buatinesN  f 

fes,  my  lord  ;  there  was  that  ob- 
of  so  many  people  going  with  the 
Bade  that  answer  that  1  tell  you. 
Why,  then,  suppose  at  the  Globe 
in  expression  had  not  dropt  irom 

hot  a  man  is  present  at  two  con- 
»  Md  about  the  death  of  the  king, 
liif  «iilMr  at  the  first  or  second, 


A.  D.  1696. 


rsoe 


Sir.  B.  Shower.  My  lord,  I  confess  this  is  a 
case  of  a  very  barbarous  nature,  of  which  I 
hope  my  client  will  acquit  himself:  but  I  think 
we  have  the  authority  of  parliament  on  our 
side,  thut  tills  does  not  amount  to  a  proof  of 
treason.  It  seems  they  lay  a  stress  upon  thta, 
that  Mr.  Rookwood  came  to  captain  Porter's 
MgingB  on  the  Saturday  morning  the  16tli : 
but  then  take  the  case  as  it  is ;  for  aught  that 
does  appear  upon  the  proof,  he  knows  not  upon 
what  account  the  meeting  is,  befin^hand.  I 
think  that  is  the  case  of  my  lord  Rnasel,  npon 
which  the  reversal  of  his  attainder  went,  that 
the  evidence  came  short,  and  that  it  was  but 
misprismn ;  fi>r  the  evidence  was,  that  he  was 
present  at  the  supposed  declaration's  readtng, 
but  said  nothing  at  all  to  it. 

L.  C.  J.  But  i  speak  of  two  meetings ;  thsrs 
was  but  one. 

Sir  B.  Shower.  My  lord,  I  do  not  know  whe- 
ther there  were  two  meetings  or  one  then :  but 
this  is  the  ground  we  ^  upon,  there  ought  to 
be  two  witnesses :  and  if  there  be  two  meetings 
upon  s|ich  a  design,  the  second  may  be  as  ac- 
cidental, and  it  does  not  appear  to  be  a  designed 
meeting ;  and  there  was  no  appointment  of 
Mr.  Rookwood  to  be  there,  nor  any  negocia- 
tion  by  way  of  message  or  otherwise,  to  that 
purpose.  Is  this,  my  lord,  an  overt-act?  Sup- 
pose a  man  be  present  at  a  consult  about  trea- 
sonable practices,  and  he  uses  words  that  are 
indifferent,  it  is  tme,  in  the  case  of  a  wager  it 
amounts  to  an  assent,  but  it  hardly  Will  come 
to  that  when  people  meet  by  accidenty  or  for 
they  do  not  know  what. 

L.  C.  J.  How  is  thb  by  accident? 

Sir  B.  Shower.  It  does  not  appear  that  it  was 
by  design  or  appointment. 

X.  C  J.  Thay  were  acquaintance. 

Sir  B.  Shower.  He  had  no  acquaintance  with 
him  but  in  sir  Georg^  Barcley 's  company. 

L.  C.  J.  But,  besides,  there  was  an  express 
consent  at  the  Globe  tavern,  when  Rookwood 
said,  *  There  is  an  end  of  it.' 

Sir  B.  Shower.  That  is  as  much  as  to  say, 
I  will  not  do  it,  I  will  not  go  with  you 

Sol.  Gen.  Sir  George  Barcley  was  the  per- 
son whom  they  were  to  obey;  and  Harris telhr 
von  he  told  them  what  they  were  to  do,  and  six 
horses  were  first  placed,  and  three  of  them 
after^vards  removed. 

Sir  B.  Shower.  That  will  not  affect  him  what 
sir  George  Barcley  said,  any  more  than  Lewis's 
a|>pointing  of  the  horses. 

L.  C.  J.  Then  here  is  another  thine,  Wh  j 
did  he  give  a  list  to  Mr.  Harris  ?  The  list  that 
was  given  had  Mr.  Rookwoofl's  name  at  top, 
as  he  was  to  command  the  paity,  and  there  was 
H»rns*s  name  and  Harems  name  as  of  his 
party ;  that  is,  their  feigned  names :  Mr.  Rook- 
wood's  feigned  name  was  Roberts,  that  was  at 
top,  and  &ey  were  to  go  to  Turnham-Grsen, 
and  Rookwood  told  Harris  he  should  be  his 
aid-de-caiiip. 

Sir  B.  Shower.  My  lord,  for  thatvl  think  we 
have  a  point  of  law,  that  we  apprehend  will 
turn  off  all  that  endence,  ind  sure  we  may 


«7J  8  WILLIAM  in. 

take  thai  exception  now.  The  words  of  the 
act  are,  That  no  evidence  ihall  be  tnven  of  any 
overtpact  that  is  not  expressly  laia  io  the  in- 
dictmeiit  Now  cannot  I  shew  upon  this  in- 
dictment, that  there  is  an  overt-act  in  such  a 
positive  direct  manner  as  tiiey  now  urge  about 
this  list  ?  Will  not  that  satisry  yonr  brdsliip's 
jud^ent  lo  set  aside  all  this  evidence?  To 
make  the  indictment  good  for  treason,  there 
ought  to  be  a  compassing  of  the  death  of  the 
king  laid,  and  an  overt»aet  laid  dedarinjg  that 
compassing ;  but  no  evidence  is  to  be  given  of 
any  overt-act  that  is  net  fand  in  the  indictment. 

L,  C.  /.  You  ans  not  to  take  exceptions  to 
the  indictment  now,  bnt  only  to  theevidsnoe. 

Sir  K  Shower.  I  have  tliis  one  exception 
more ;  there  is  never  a  *  Quodque,'  nor  a  <  Ju* 
ratotra  ulterins  prHsentant.' 

L.  C.  J.  There  does  not  need  f  bnt  that  is  a 
fault,  if  any,  in  the  indictment^  and  is  nor  to  be 
stirred  now. 

8ir  B.  Shmtr.  If  there  be  not  a  presentment 
by  the  jury,  then  tliere  is  no  overt-act  alleged : 
and  if  there  be  no  overt*act  alleged,  or  no  such 
overt-act,  then  we  are  within  the  words  of  the 
act,  That  no  evidence  shsll  be  given  of  any 
such  overt-act  but  what  is  alleged ;  and  it  is, 
if  not  expressly  alleged,  as  if  it  were  oot  al- 
ibied at  all.     Now  here  it  is  very  feoee,  *  6ec. 

*  iidem  Chrietopliorus  Knightley,'  and  so  it 
goes  on  with  the  rest,  did  so  and  so.  There  is 
a  presentment  at  first,  that  they  did  compass 
and  imagine  the  death  of  the  king ;  and  then 
the  indictment  comes  farther,  and  says,  that 
forty  men  should  do  this  business,  and  of  those 
forty  these  four  should  be  some;  and  then  the 

*  iidem'  bought  horses  and  arms,  snd  so  it  must 
go  to  the  last  antecedent,  and  then  there  is  no 
express  alleging  of  any  overt-act;  and  then  it 
is  as  if  no  overt-act  at  all  was  alleged. 

L.  C.  J.  This  exception  is  not  to  the  evi- 
dence, but  to  the  indictment:  it  begins  <  Jura- 

*  tores  preseutaiit  quod  ;*  Does  not  tliat  relate 
to  all  P 

Ijir  B.  Shower.  No,  my  lord  ;  and  1  can  tell 
\rou  a  reason  why  not :  if  it  be  not  so  well  al« 
hfged  as  it  should  be,  it  is  sn  indictment  as 
if  it  were  never  alleged  at  all ;  and  so  within 
the  words  of  the  act  of  parliament  this  is  not 
an  uveit-aot  aUeged,  and  therefore  they  cannot 
give  evidence  upon  it. 

Sot.  Gen.  Truly,  iny  loni,  I  crannot  imagine 
what  tlK*y  are  doing,  they  are  moving  in  arrest 
of  judginnit  bclun*  a  verdict  given :  they  say 
the  overt-art  is  not  (*xpn!8«ly  laid ;  In  that  an 
eareeption  to  the  ovidence,  or  to  tlie  indict- 
mentr 

Mir  B.  5AfiMT.  If  my  lord  will  plc;iso  M  •{ivr 
us  ihe  iihcrly,  we  would  Hhrwtlieni  can  lie  no 
venlict  kivcu  upon  this  iudiotmeiit. 

L,  C.  J.  Certainly  tliia  ia  an  imv^ilur  pro- 
ceeding ;  this  is  iiui'sp  time  of  exception  to  ihe 
j»lgmi*nt. 

Mr.  i^hippa.  Then,  my  kird,  wesiw  in  your 
JMdgtnisu,  aa  10  the  ppaaf  ikat  has  bean  niveti : 
if  a  own  be  pmssnat  m  aiastinir  if  several  iier- 
lip  %  PmmmmSim  Mnt^absut 


Trial  qfAmbroie  Rooktcood, 

killing  the  king,  and  this  man  is 
but  neither  assents,  nor  makes 
how  it  shall  be  done,  whether  tl 
silent,  and  saving  nothing,  is  sncl 
as  fdiall  coq,vict  a  man  of  treason  r 

L.  C.J.  i  tell  you,  oonsentini 
ous  design  is  an  overt-act  of  hig 
that  consent  be  made  to  appear  b; 
Now  the  question  is,  What  is  a  gi 
evidence  of  this  consent  ?  A  man  n 
times  St  a  treasonable  consult  fb 
king,  and  tliongh  perhaps  at  tb 
not,  yet  at  the  second  he  did  ki 
meeting  was  for  such  a  design, 
the  purpose  there  was  but  two  n 
at  the  second  it  is  determined  to  g 
design ;  Is  not  that  an  overt-ai 
cannot  be  proved  that  the  priso 
thing? 

Mr.  Fhippg,  If  the  first  meelins 
sent  or  an  overt-act,  neither  will 
third  be,  if  there  way  no  more  dot 
first,  but  they  are  like  so  many  c; 
out  a  figure. 

L.  C.  /.  The  first  meeting  posi 
accidental,  he  might  not  know  wh 
though  that  will  ge  a  great  way  i 
dissent  or  du»over ;  but  when  he 
with  the  same  company,  knowii 
bad  in  desiffu;  does  not  that  prov 
That  was  the  case  of  sir  Everard 
Powder  Plot. 

Mr.  Phippt.  But  where  it  may 
my  lord,  whether  it  were  with  a 
or  a  bad  design,  that  he  met  with  tl; 
it  ought  to  be  taken  most  favoi 
prisoner :  This  man  might  be  pn 
to  a  discovery. 

L.  C.  /.  But  besides,  that  is  m 
you  are  mooting  upon  points  that 
case.  When  Mr.  Harris  came  U 
wood,  and  finding  them  in  some 
being  inquisitive  what  was  the 
was  sent  u>  Counter ;  and  when  I 
what  they  were  to  go  about,  h 
meeting  Mr.  Rookwood,  says  to 
sent  over  to  murder  the  prince  of  ( 
Rookwood,  if  I  had  known  of  this  > 
1  came  from  France,  I  would  hav 
king's,  that  is  king  James's  pardon 
to  nave  been  excused.  Hereby 
Ilia  knowledge  of  the  design,  anil 
to  do ;  aud  though  he  dislflfied,  ye 
orders. 

Mr.  Phippg.  Tliere  is  no  doubt,, 
he  knew  of  it;  but  whttlier  your 
construe  his  silence  as  a  consent,  i 
the  question. 

L.  C.  J.  A  man  is  at  frequent  e 
killing  the  king,  and  does  not  re 
great  evidence  ut'  liis  consent. 

Mr.  Phippt.  Unt  it  is  not  prove 
actually  consent  lo  it. 

iSii/.  'Gen,    My  lord,  we  most 

your  lordbhip,  whether  this  is  nol 

IMPoper  and  irregular  at  this  ttnw! 

arguing  how  Ihr  thn  cntact  i»lc 

8 


209]  fir  High  Treason, 

hhtt  ibe  time  pf^per  for  sucti  tin  nirgiiiDetit 


dit.  Gen.  If  Uiey  will  call  thdr  whnes^e?, 
kt  them  ;  «jt  if  they  say  they  have  ncme,  then 
iht-v  uiAy  make  ibeir  observations  upon  the 
^ii«»Dce  ;  but  else  we  desire  we  may  be  kept 
miiie  tisuai  met  bod  of  jmiceeiling^s. 

Mr,  Fhipps,  With  submission,  we  thoutrht  it 
fklo  know  I  be  opinion  of  (he  court  fir^t,  if  there 
be  iwu  witne^Ases  against  the  prisoner ;  for  if 
tet  be  not  two  witnesses,  as  ibe  law  te~ 
•BRi,  ire  Deed  not  trouble  the  court  vritb  our 


I 


*r  B,  Shower,    Then»  my  lor  J,  we  mott  de- 
^  IliM  tbe  reeori)  may  tie  read  of  captnin 
^«  eotivictloQ  of  luaDslaur^bter ;  a  man 
s  been  ^^^iliy  of  doin^;  auch  an  act,  felo» 
,  mahcioijshy  and  voluntarily,  us  that  is, 
m  nnt  a  coiiifjetenl  ^ritneifs. 
Ci.  fJ'Ar.   It  haf  been  read  already. 
da 'Gem,    1  thought  we  hatt  been  over  that 
«ljKiio0  Fiefore. 

Sg  B.  SAcater.  We  think  it  h  proper  for  us 
li  Mfve  it  now  a^ahi ;  for  tbouoph  it  is  no  ob- 
MEfjoQ  to  bid  beiujf  a  legal  witness^  yet  we 
mf^  It  will  influence  his  rep*Jtation  as  to  bis 
fur  lie  ibat  has  been  g-uilty  of  killing  a 
In  guch  a  manner  as  the  indictmeut  lays 
"  ll  find  but  little  credit,  we  hope,  with  a 
of  comitrymen.  But  since  it  bas  been 
;,  and  your  lordship  and  tlie  jury  have  takon 
of  Vt,  we  will  call  some  otber  witnesses 
Id  Mr,  Porter's  reputation  and  behaviour, 
mk  they  wiTl  prore  things  as  bad  as  nn 
,  I  shall  not  open  them  to  your  lord- 
heg  leave  to  call  oor  witnesses,  who 
ac^^naint  you  what  they  have  to  a^y, 
da.  Gf».  Certainly,  my  lord,  you  will  not 
ik  10  let  tbcm  do  so.  I  desire  they  would 
vm  nny  ibing*  of  evidence  without  ac- 
the  court  what  ibey  call  ihem  for : 
Were  the  way  to  let  thein  in  to  call 

to  thiu^  that  are  not  proper. 
X  Nay,  without  doubt  it  is  not  regxilar 
ti'pfiodace  a»v  evidence,  without  opcniDg'  it. 

Ait.  Gen.  iFor  if  it  be  for  any  crime  that  a 
ntn  may  be  presented  for,  and  there  is  no  cod  - 
fiction  ;  1  think  that  ou^ht  not  to  be  given  in 
evidtnaee  to  take  awav  a  witness's  credit :  f f  it 
beonlv  tr»  bis  gencraf  reputation  and  behaviour, 
cy  may  jjo,  and  we  cannot  oppose  it. 
1  desire  sir  Bartholomew  Shower 
irm  opf^i  to  the  court  of  what  natare  hii  evi- 
ileoce  is. 

Sir  B,  Shower.    Well,  1  will  tell  you  then 
what  1  call  them  to. 

L.  V,  X    You  must  tell  us  what  you  call 
them  to. 

Sir  B.  Shoti^t'    Why  then,  my  lord,  if  rob- 
tifiirtipo  Vivvayjf  clipping",  if  convers- 

ing with  ,  it  fornication,  if  bng-gfery,  if 
any  of  tbe^e  irregularities*  will  t«ktf  utf  the 
credit  of  a  man,  1  have  inj^tmction^  in  my 
Wif,  of  «Tidieiiee  of  crimes  of  this  naturi*,  and 
jMint  porpofe  against  Mr,  Porter ;  and  we 
that  by  law,  a  priiioner  standing  for  liis 
m  tlberiy  to  give  an  acGoaat  of  the  ac* 
VOL,  Xltf. 


A.  D.  1696.  [2Ifl 

tioD»  and  behaviour  of  the  witnesses  ajjain*! 
him.  I  know  the  objection  that  Mr.  Attorney 
makes,  a  witiie<<B  does  not  come  pre[mrcd  ti 
vindicate  and  give  an  account  of  every  cctioii 
of  his  life,  and  it  is  not  commoi^ly  allowed  to 
give  evidence  of  particular  acTions  ;  but  if  those 
act  tons  be  repeated,  and  a  man  lives  in  the 
practice  of  them,  and  this  practice  is  continued 
tor  several  years,  and  this  be  made  out  t>y  evi-  • 
denee  ;  we  hope  no  jur3'^  tiiat  have  utiy  con- 
science, will  upon  their  cat  lis  give  any  credit 
to  the  evidence  of  a  person  against  whom  6Uclt 
a  testimony  is  given, 

3Ir.  Phlpps,  We  are  speakings  only,  my 
lorfl,  to  the  credit  of  Mr.  F'orier ;  and  if  wo, 
can  shew  by  evidence  Ibat  !ie  is  so  ill  a  man  a« 
to  be  guilty  of  those  crimes  that  we  have 
open  eel,  accord  ingf  to  the  instructions  in  oilf 
brief,  wc  hope  the  jury  will  not  think  him  fit 
to  be  a  gooil  evidence  against  us  in  this  matter* 

X.  C.  X  What  soy  you  to  this>  Mr.  At- 
torney f 

Alt.  Gen.  My  lord,  they  themselves  know; 
that  til  is  sort  ol  evidence  never  was  admitted 
in  any  case,  nor  cun  be,  for  il  mu«t  tend  to  the 
overthrow  of  all  Justice  and  legal  proceedin^st; 
for  instead  of  trying^  the  prisoner  at  the  baf, 
they  would  try  'Mr.  Porter.  It  has  been  al- 
ways denied  where  it  comes  to  a  particular 
crime  that  a  man  may  be  pvosacuted  for  ;  and 
this  it  seems  is  not  one  crirae  or  two,  but  S9 
many  and  so  long^  continued,  as  they  say,  and 
so  often  practised,  that  here  are  the  whole  ac- 
tions of  a  man*s  life  to  be  riot  up,  which  they  ^ 
can  never  shew  any  prececfent  when  il  wae 
permitted,  because  a  man  has  no  opportunity 
to  defend  himself.  Any  man  iu  the  world  may 
by  this  means  be  wonnded  in  bis  reputatioii, 
and  crimes  laid  to  his  charg^c  that  he  never 
thought  of,  and  he  can  have  no  opportnnity  of 
g-iving  an  answer  to  it,  liccause  he  never  ima- 
gined there  would  be  any  suc^h  objetrtiou  :  It 
IS  kinitig  a  man  in  his  good  name  by  a  side- 
wound,  against  which  he  has  no  protection  at 
defence.  My  li>rd,  this  ranst  tend  to  the  pre* 
venting  all  manner  of  justice  ;  it  is  agutnst  all 
common  sense  or  reason,  and  it  never  was  of- 
fered at  by  any  lawyer  before,  ns  I  believe,  at 
leastwise  never  so  openly ;  and  theri-tore  I 
wonder  that  these  gentWmea  should  do  it,  who 
acknowledge,  at  least  one  of  them  did,  that  ae 
ofleD  as  it  lias  been  now  offered  it  has  been 
over-ruled  ;  arid  I  know  not  for  what  end  it  is 
offered,  but  to  make  a  noise  in  t!ie  court: 
They  know  that  it  is  irregular  as  muth  as  any 
tbiiitj"  that  could  be  offered. 

SoL  Gm.  IndeeiJ,  my  lord,  if  the  prisoner 
at  I  he  bar  had  oflTered  this  matter,  if  bad  bf  en 
f  xcusabte  ;  but  that  gentlemen  of  ibe  long 
robe,  and  who  are  so  w^ell  acquainted  with  thu 
practice  of  the  courts  of  law,  shoyld  pretend  to 
do  such  a  thine^,  is  unaecountahle.  There 
was  somewhrit  like  this  tliat  was  offered  at 
Manchester,  but  that  was  by  the  prisoner,  to 
prove  that  one  Lunt  who  wits  a  witness  had 
two  wives,  and  they  brouj^ht  a  copy  of  an 
indictment  upon  whicU  i\ixx<  yi^  u^  ^^'lyi^e^a''. 


J 


8  WILLIAM  m. 


I 


I 


I 


811] 

after  lEiat  they  endeavoured  to  prove  Uim 
guilty  of  scleral  robberies ;  but  all  tbat  sort  of 
evidence  was  refused.  I  only  give  tlu^nt  this 
iJiKtaPce  to  shew,  ihftt  where  "the  prisoner  has 
attempied  it,  il  has  l)eeo  always  rejected  ;  and 
I  am  sure  they  caonot  shew  tne  that  ever  it 
was  allowed,  even  to  the  prisoner  himself,  to 
give  any  thiuj,^  of  this  kiud  in  evidence ;  and 
Ibis  1  must  say,  they  can  never  shew  me  any 
oue  parlicidrtr  ini^^tiiuce^  wlieii  counsel  ever  en- 
deavourerl  it>  do  it,  before  this  titne* 

Sir  Ji.  Sh&iier,  My  lord,  1  ment'otied  the 
particular  crimes,  the  faults  which  I  had  in 
my  instructions  to  object  against  the  credtt  of 
the  testimony  of  capl.  Porter,  in  answer  to  Ulr, 
Attorney's  desire,  that  1  would  ojien  the  jiar- 
ticulars  of  the  evidence,  that  I  would  call  my 
witneascs  to  the  truth  of  it ;  I  was  loth  tore- 
peat  the  words,  I  think  the  thing's  themselves 
»o  abominable  ;  but  we  conceive,  with  sub  mis - 
iiou,  we  may  he  admitted  in  this  case  to  offer 
what  we  have  oflfered.  Sun  pose  a  man  be  a 
commonf  lewd,  disi»rderly  telhyw,  oij^  that  fre- 
ijiiently  swears  to  tahhouil  lor  his  life :  Wc 
know  It  is  a  common  rule  in  p«int  of  evyeoce, 
that  airainsl  a  witness  you  shall  only  give  an 
account  of  his  character  at  large,  ot  bis  gene^ 
ral  conversation  ;  but  that  general  conversa- 
tion arisen'  from  particular  aetionn,  and  if  the 
witnesses  i^ive  you  an  account  of  such  dis- 
orderly actions  repeale*!,  we  liope  that  will  go 
to  bis  discredit^  which  is  that  we  now  ai^e  la- 
bouring for,  and  submit  it  to  your  lordship's 
opinion  whether  we  may  Rot  do  it» 

L,  C*  J.  Look  ye,  you  may  brin^  witnesses 
to  give  an  account  of  the  j^eneral  tcnour  of 
his  conrersationt  but  you  do  not  think  sure 
that  we  will  try  now  at  this  time,  whether 
he  be  guilty  ot  robbery  or  buggery.* 

Sir  B.  Shi/ner,  My  lord,  we  wd I  give  you 
an  accoutU  that  he  used  to  have  a  private  lodpf- 
ing*,  and  cume  in  with  his  horse  tiitd,  aiid 
several  other  such  things,  as  tbat  he  used  to  go 
out  in  disguises,  and  the  like* 

Mr*  Fhipps,  My  lord,  I  cannot  imagine 
why  a  man  tbat  has  been  giiiltv  of  any  such 
crimes f  and  is  not  taken,  should  be  of  greater 
credit  than  a  man  tbat  has  beea  token  and 
pt)nisbed« 

X.  C.  J,  Wliat  istbat  y^u  sa3%  Mr.  Phipps  ? 

Mr.  Phipps.  ^ly  lorJ,  I  say  it  is  the  crnu» 
that  renders  a  ujan  infamous,  and  1  do  not 
know  why  a  mun  that  has  had  the  good  for- 
tune not  to  be  taken  and  punished  fur  great 
crimas  by  him  coiumittedt  should  be  in  a  belter 
condition  as  to  the  credit  of  his  testimony,  than 
one  tbat  is  token  and  undergoes  the  punish - 
mentof  thelaw. 

SoL  Gtn.  Mr.  C  ha  mock  urged  that  as  far 
ms  it  wouhl  go,  but  we  are  obligSl,  it  seems,  to 
hear  things  that  have  been  over- ruled  over 
and  over;  but  I  desire  to  know  of  them» 
whether  they  can  shew  he  has  been  guilty  of 
a  greater  crime  than  he  has  confest  himsielt 


3, 


•  See  Peake*s  Law  of  Evidence,  chap. 
WitueMe«y  sect.  2,  art.  General  Chamctcr. 


Trial  of  Ambrose  Rookwood^  [212 

{(inliy  of  in  court,  I  mean  of  tlie  intended 
sa>isioation. 

Mr.  Phippt.  No^  we  agree  we  can  not ;  hut 
pray  let  us  prove  him  guilty  of  as  many 
crime*  as  we  can. 

Sot.  Gen.  But,  tny  brd,  1  ho{)e  you  will 
keep  them  to  ihe  general  question  of  the  CQfn% 
mon  ordinary  tenonrof  tiis  r^nversation, 

8ir  B.  Shouer.  Call  Mr.  OldfieId»  Mb 
Nicholas,  Mr.  Millbrd,  6hck  Will 

[Mr,  Mitt'ord  appeared, 

Cryer,     Lay  your  hand  on  the  hook.     Tii« 
evidence  that  you  shall  give  on  behalf  of  th 
prisoner  at  the'bar  »hall  h#  the  truth,  the  wbol^ 
truih,   and  nothing   but   the   truth.     Ho  bei| 
you  God. 

Sir  B.  Shovecr.  Pray  will  you  give  my  lorJl 
antl  the  jury  an  account  whelher  you  knoi* 
captjiin  Porter,  and  how  long  you  have  knowi|r 
hirn  ? 

Milford,    I   have  known  him  about  fonf 
y  ears- 
Sir  B.  Shower.  What  reputation  is  he  off 

Miijhrd*  I  never  knew  any  hurt  by  bim  i| 
my  life. 

Sir  B.  Shower,  Pray  what  is  your  naoief 

Miiford.  Frederick  Miitbrd. 

8ir  If.  Shower.  But  the  name  tdk  my  brief  I 
John  Mil  ford,  that  is  my  man. 

L.C^J.  But  you  sec  ibis  man  knows  hln. 

Sir  B.  Shoutr.  Call  ftlr.  Oldfit- Id.  ^ 

[Which  was  done,  and  he  appeared 

inglvO, 

Mr.  Phippt.  Do  you  know  captain  P^ 

Oldjield,  Yes,  I  do. 

Mr,  Phipp$.  How  long  have  you  knowi 
bim? 

Oldjield,  T  believe  about  twenty  yean, 

Mr,  Phipps.  Pray  will  you  ^ive  my  l'-^^— 
and  the  jury  an  account  of  his  lite  and  coAvec 
sal  ion. 

Oldjield,  I  can  say  nothing,  he  was  aliray 
civil  in  nsy  company,  but  he  was  lewd  in  ' 
discourse. 

Sir  B.  Shower,  What  do  you  mean  by  bei 
tei^d  in  bin  discourse  T 

Otdjitld.  Why,  he  would  be  talking 
extravagantly. 

Mr.  Phipui,  What  do  you  mean  in  talking 
Was  it  of  what  he  had  done  himself,  8ir? 

Oldjieid.    No  otherwise  than   that  he 
whored,  and  those  kind  of  things. 

Sir  B.  Shotiitr,   What  other  things 
whoring? 

Oldjield.  I  know  no  other  part  of  it. 

Sir  B.  Shoucr.  Where  is  Edward  Boucl 
(He  did  not  appear.) 

Mr.  Phipps,  CaU  WiUiam  O^Bryan 
did  not  appear.) 

Sir.  B*  Shaver.  Where  is  Mr.  Page,  and 
IlardimaD  ? 

(Wone  of  them  appeared.) 

Cryer*  There  is  not  a  man  of  iheio  berl 
Sir. 

Sir  B,  Shower.  Mr.  Webb#r,  Do  you  kooi 
where  they  are,  fur  the  court  stays  fur  them 


I  aooi^ 


1 


(Bi 


Jar  High  Treoim* 

Webber.  Inilced  I  Jo  uol,  llicy  were 
turned  to  he  hrrc'. 
Rf  B,Shimcr,  Where  is  Black  Will  ? 
Crjftr.  BUck  WUI.     (He  ajipeai-e*!,  und  was 

JL  C.  J.    Ask  him  if  lie  be  a  Christian. 
I  Cryrr.  I  bav«  asked  him,  and  he  says  he  is 
ICJuistiaa. 

(ThcD  he  was  sworn.) 

,  /,  Well,  what  do  you  ask  hitn  ? 
^BoDkmoad.  Will,  Pray  gire  an  account  of 
rQinster^aod  of  his  file  and  convt'ifcatinn. 
.  Phtppt,  You  are  sworn  to  I  el  I  the  tmlh, 
-Uciirt. 

It.  I  served  him  almost  ei^ht  years,  aiid 
L»  t>ee-o  a  rcry  good  master  to  me,  my 

Shvwer.  What  do  you  know  him  to 
af?^WilL  Nothing  al  all. 
Shoxer,  1  beUeve  they  hare  put  in 
•  men  to  confirm  his  reputation. 
hCJ.  Indeed,!  thiols  the  king\ counaeT 
iM  hire  called  these  witnesses  if  there  had 
t  aceaAioa. 

rB.  Shower*  We  siibmit  it  to  your  direc- 

Itow  far  this  e?idence  will  aflect   him ; 

inolbiogsaid,  aswc  ap^^rehend,  that  wilt 

,  to  treason  ;  if  the  prisoner  lias  a  mind 

_  any  thing^  himself,  we  hope  your  lord- 

»  will  p leasts  to  hear  him. 

.  J.  Aye^  if  he  will,  let  him. 

od,    Wy  lord,  Mr.  Porter  dops  not 
I  consented  to  command  a  parly « 
C.  J.  Is  that  all  you  have  to  say  f* Then, 
tatUmcat  w  ill  von  sum  up  ? 

.  Ctmyeri.  My  lord,  we  are  agreed  j  we 
t  to  the  court' on  btfih  sides. 
i  C*  J.    Then,  gentlemen  of  the  jury,  the 
rat  the  bar,  Mr.  Roukivood,  is  indicted 
Ibi^-treason,   m  compastsiug^,    irna|riiiing, 
Imtetidin^  the  death  and  destrnction  of  the 
,  by  a  itumi  barhaitius  and  wii'keil  assas* 
you  have  bad  an  account  of  this  de- 
two  witnesses  that  have  been  pro- 
the  one  is  captain  Porter,  the  other  is 
ris»  who  swear  ihey  were  Inith  con* 
<  as  actors  in  it. 
Captain  Porter  tells  you,  about  the  tatter  end 
of  Jinimry,  or  the  beginning  of  February   last 
ot^^e  Barcley    came  over  into  England 
(France;    and  there  was  a  former  ilesi^i 
der  the  king;   and  al^er  several  meei- 
conferences  amon^  the  cons|iirators, 
itne  to  a  resohitiun  itiat  he  shnnlil  be  a<;- 
Bled ;    but  which  way  to  effect  ii^  ad- 
l  of  a  dispute  among  them  ;  (or  the  kin^ 
yoa  have  heard,   going   frequently,  aliont 
tm  week,  a  hunting  on  theotlttfr  side  the 
Richmond,  the  design  was  lirsl  to 
ISBvituite  hitn  at  Hiatimond   P/^rk,  or  tlierc' 

Rl  he  riHurufd  from  liiinLin!jf,  and  pre- 
vras  made  acci}rdin;rty  ;  bui  thai  not 
folly  agreed  upon,  the  convenicncy  of 
held  iiill  some  debate;  for  sojne  were 
,  _  .A*  that  it  was  better  to  make  the  at< 
Irniptao  ibii  ii'Je  the  water»  tbao  un  the  other  i 


A,C.  ie9f. 


[21* 


.iKai 


tfftma 


.  Uarris 


theTefore,  as  Mr,  Porter  tells  yon,  to  deter- 
mine that  tlifficulty,  ihfre  ivt^re  several  men 
sent,  wtit?rei>f  he  was  one  ;  Knighltey  another, 
and  King  a  third,  to  view  the  ground  on  both 
sidas  the  water,  ami  to  make  their  report :  the 
grannd  Ijeing  viev»ed,  and  the  report  made  to 
some  of  their  aecom|»lireJ3,  v%lio  to  receive  it 
met  at  the  Nag\s'Head  in  Covent  Garden, 
which  was  about  the  tenth  or  tvvehUi  of  Pe- 
brnary  last ;  it  wa^r  (hen  agieid  Ibai  tlie  king 
and  his  guards  slmnld  be  attacked  on  this  side 
tlie  water,  about  Turnham-Green. 

Mr.  Porter  has  told  yon,  that  at  several 
mpt'iings  lor  I  lie  carrying  on  this  design,  the 
prisoner  Mr,  HiM>kwood  was  present*  m<>re[iar- 
ticubrly  at  the  Olobe  Tavern  in  Haiton-garden, 
where  were  also  sir  George  Barcley,  Mr. 
Clianioek,  sir  William  Parkyn^,  himself,  and 
others,  and  tliere  they  did  enter  into  a  consult 
liow  they  might  assassin  ale  the  king  ;  and  it 
beini^  proposed,  Mr.  Hookwood  did  not  like  it, 
as  Ml'.  Porttjr  says,  but  said  it  was  a  desperate 
a  I  tempt ;  and  thereupon  Kir  George  Barcley 
pulJed  out  a  scheme  tbi^t  he  had,  and  shewed  it 
at  that  time  to  Mr  H<iokwood,  and  said,  yoa 
Hte  sent  over  from  France,  and  ate  lo  obey  ray 
orders,  and  you  are  to  command  a  party ;  and 
then  Mr,  ilonkwood  made  an  answer  in  French, 
'  There's  an  end  of  it,*  which,  as  he  says,  im- 
ports a  consent. 

Then  at  another  time,  which  was  tlie  Sa- 
tnrday  morning  the  15ih  of  Feb  nary,  they 
met  at  captain  Porte r^s  lodging,  and  there  was 
a  discourse  about  going  on  to  put  the  design  in 
execution;  and  one  Durant,  otieofihe  men 
that  was  lo  watch  the  king  and  the  guards 
going  out  at  Kensington,  came  in,  and  th« 
question  was,  whether  they  should  go  that  day 
upon  the  design?  They  h&d  di^tcuur^e  abonc 
it,  and  Mr*  Huokwood  the  prisoner  was  ihera 
present,  and  there  did  not  up|>car  any  dissieat 
in  him  to  the  prosecution  of  the  design,  but  it 
seems  it  was  readily  agreed  among  ihem,  to 
pursue  it  according  to  the  former  detertaina- 
tion. 

Then  the  next  witness  that  is  produced  ia 
Mr,  Harris,  who  gives  you  a  large  account  of 
the  beginning  of  his  knowledge,  and  of  bi» 
being  concerned  in  this  matter ;  lie  tells  you 
he  was  in  France,  and  at  the  court  of  St*  Oer- 
mniits,  where  the  laic  king  then  was^  and  tliat 
he  spoke  with  him,  and  xvhere  was  also  co- 
lonel Parker ;  and  king  Jiiines  took  notice  of 
him  and  of  his  taithfut  sen  ice,  and  tuld  him^ 
he  ulways  designed  him  a  kiulne^s,  and  then 
h'^d  opportuuily  i>f  doing  it,  jlthI  «:atd  he  would 
send  him  over  into  England,  where  he  shouM 
he  subsisted,  and  directed  him  to  obey  th^ 
orders  <if  sir  Oporge  Barcley  ;  and  there  beiog 
one  Mare  by «  who  was  to  come  over  with  him, 
knvj  James  gave  them  both  names  of  di!$<^uise 
wtiich  ihey  were  to  go  by  in  England,  and,  as 
it  ^eeuis,  i»ther&  that  came  over  did  also  assume  ; 
tor  Mr.  Rook  wood  went  by  the  name  of  Ro- 
berts, Han  is  was  to  go  by  the  name  of  Jen* 
kins,  and  Hare  by  the  name  ofGuiney;  they 
were  directed  to  apply  thftxtselroitoiirGeori^c 


I 


I 


I 

I 


I 


Biircleyf  ^Ttd  had  ftirRctioDS  how  lliey  shnuL] 
f]|]d  hint^  lihith  wtre  lo  f^ointri  Covenl-g:ar<leii, 
in  the  ev*>ning,  ujmti  a  Momb y  or  a  Tlnii-siby 
unrj  it'  they  nnw  ii  persui)  thiit  had  a  vihtte 
hantlkerchitrr  hanLi";^'  out  at  liis  pcu^kel,  they 
were  to  Xnke  nonce  »it'  him  tn  te  sir  Gc-orije 
liarcley,  urMl  liny  hud  len  levvisd'itres  a  piece* 
tor  Ui^ir  ji}ume\s  tt*  carry  Ihem  uff;  ami  30U 
haF(7  hi^ard  tram  whom  tney  had  itietii ;  anil 
|bey  were  toM,  ihai  ifat  Calais  they  were  kept 
2im|i^ei-  than  I  hey  expected,  whereby  their  mo- 
ney was  spent,  care  wns  takf^n  tiiat  they  sihould 
i>R  till ppl led  from   the  governor  of  Calais^  the 

Sresj.letiithere;  and  it  sccm*i  Mr,  Harris  and 
Ir,  Hare  m  ent  together  to  Calais,  and  lay  a 
coaHiijerdlde  lime  for  want  of  a  wind,  wherehy 
Iheir  oioupy  fell  short  of  defray injf  their  cx- 
peuce^  ;  hut  thry  were  afterwards  aopplied  by 
the  (Tovernor  of  Cnlaii,  acrordioj^  as  was  pro- 
iniaeil  at  St,  Germains. 

Gentlemen,  lie  tells  yon,  thai  af\er  they  came 
intu  Eot^huulf  tlie  firt^t  time  thny  went  to  seek 
air  Getiix'e  Barcley,  wfts  npon  the  Monday 
uitfltl,  huL  ihi-y  didnot  find  bun  at  thyt  time  ; 
hnt  al'teruauU  thry  met  with  him,  and  Mr. 
Harris  hail  snbsistenee- money  from  him,  ac- 
cording to  kinj^  Jameses  promi<«e,  which  vvai>  lit 
^he  rate  tA'  5i.  a -day,  when  he  had  rm  horae» 
«nd  afterwards  when  he  bad  a  lior^e,  at  6*. 
fi-day  ;  this  is  the  account  he  ^i^ca  you  how 
lie  came  overt  ami  of  his  jounjey  and  inetftiniif 
with  sir  Grorye  Bare  ley. 

^nd  now  he  conies  to  «i{)eak  particularly  con- 
cerning* ilie  prisoner  at  the  bar,  Mr.  KookwomI  - 
He  tells  you,  that  on  Saturday  morningf  I  he 
l^th  of  February ^  the  first  day  when  tliis  as^an- 
■inuiiou  was  deniirucd  to  be  committed,  he  wi  nt 
to  the  lodi^itig  i>f  one  Burk»  wheie  Mr.  Rook 
wood  was,  with  others,  and  he  found  tlipm  all 
ia  a  i^eut  dii^oriU^r ;  and  ihi^reuiiim  Iil^  asked 
rijeni,  what  wjir  the  matter,  and  what  they  were 
l^oin^''  In  do  ?  And  Hftokwood  bid  liiiu  go  to  one 
Conuter,  aiid  Uv  shuuld  know  ol  him  whal  wu8 
the  matrcr :  acoordtnifly  he  went  to  his  h»d^* 
la^,  atid  Counter  told  him  ami  those  vUio  weie 
with  bnii,  tliat  ihey  muiit  {^f't  ri'udy  to  go  to 
Turnham  Giien  ;  tiiid  at  the  same  time  and 
jdace  hi'  mt*t  widi  sir  Giorj/e  Barcley ,  and  atWr 
tome  ttiNcouriie  of  aitnckui»,r  thi*  coach,  sir 
Ge^iri^e  Bdrclcy  at  the  fir^t  said,  they  nvre  tit  a 
iiinizarie<  j  ;ttu\  athrwards  ^TfjjM^  out,  he  caiue 
in  ngaui  aiul  sbhU  llit-y  were  mm  ot  houonr,  and 
ihut  iiu  y  wtre  to  go  ahroad  lo  attack  tlie  piiuce 
pf  Oninge, 

The  n«'Xt  day,  or  a  little  time  after»  Mr, 
Uarriv  mei  witi»  IVIr,  Hook  wood,  and  enters 
jntii  discourse  \*  ah  hrni  to  iIiir  cHVcl :  \\  hai  ! 
jire  we  sent  01  cr  to  aiunler  the  prime  of 
Ornmre?  It  m  a  strange  sort  of  employment  : 
(for  It  fcecrn»  lliey  wer^^  not  inrormt'tl  iuViauce 
what  lliey  «  ere  to  do  here,  hut  they  viere  to 
put  themseKes  under  ihp  cjihiuci  <d  »iir  Gemije 
Barcley,  nndohe^  lissordcTS  )  Air.  Uuok^Mlod 
taul,  he  wiw  afraid  thetljint^  vas  >o,  mid  tliat 
fhey  wcredniwnin  ;  hiil  said.  It  he  had  Unov^n 
pf  the  dt-Mii^n  helore-hnnd,  be  would  out  have 
^fce  o^ei*!  but  bafe  begg^^  the  king's  pardou. 


Trial  qf  Antdrase  Roohmod, 

Which  »ihews  not  only  \m  knowledj^  of 

desifrn,  but  bis  being  engaged  in  the  pn 
tion  ot  it. 

And  then,  Gentlemen,  you  are  told  fiirti 
Tl»a<  upon  the gfoin^f  out  iipon8dlurdn\  ihe  \ 
whii  b  was  the  second  time  it  w^^  to  have  i 
put  in  execution,  there  was  a  \\^\  of  meo  1 
Mr.  Uookv^ood  |ravfc  to  Mr.  Harris  of  sei 
names  that  he  ha«  mentioned  to  vou  ;  lie  sa' 
Mr.  RookwoodV  niirne  waii  at  the  top,  3fi 
that  was  to  command  the  party,  and  I  ho  m 
he  went  by  w»&  Roberlfi ;  and  there  was  (far 
connterteii  name,  which    u  as  Jenkins ; 
Hure*!i  comiterteit  name,  which  waa  Guii 
and  they  wtie  to  nifike  ready  lo  go  to  T( 
ham-Gietn.     He  tohl  liim,  there  was  a 
and  thnl  be  and  Harri<i  was  f  1  be  of  hifi  pari 
that  he  nus  to  attack  the  prmce  of  Orantje,! 
that  Mr.  Harris  .should  l>e  bt^  aid  ile  camp, 

G(  ntlemen,  I  fur^ot  to  tell  you,  That  betwi 
the  tirstS^aturilay  and  the  aec<md,  Mt^.  Han; 
Mr,  Hr»okwondt  anti  Mr,  Lowick,  walkriig 
Hed-Lyoo- Fields,  and  tht^re  in  di^coi 
amonf:*themselviii,  Mr,  Hun  is  and  Mr,  Ron 
wood  did  express  tiietosclveR  lo  he  iiiueb  c 
cerned  that  they  were  to  lie  employed  u 
m»ch  a  desig'n  as  this  was*  w  bich  they  owi 
to  be  tery  Jiarltaronai  hut  Mi%  Rf»okwooiJ  \ 
Lowick  said.  They  were  under  comiuund,  1 
tnuKt  obey  orders^  though  Mr.  Ruokwood 
not  like  the  design  they  were  enifatfed  in. 

CJeiitfcmetJ,thev  hii*etutd  }ou  ol  horses  I 
were  plai"©!!  at  fciuraenwt- ho«ise  in  a  sti 
thtre,  under  the  cpre  of  Mr.  Lewis,  my  I 
Fe*  ei'sham'si  gemleman  of  the  horse,  about 
or  seven  horspK,  und  those  n\  horses  tf 
thereat  that  time  were  afterwards  taken 
but  that  \s  only  a  circumstance, 

80  that,  Oetitlem^Ut  tins  i«  now  the  aitm  i 
siibvtQUce  ol  this  evidence  thai  has  been  gii 
you,  as  tar  aii  it  relates  to  the  prisoner : 
counsel  in  his  ilctence  have  ins i^teU  upon  1 
veral  ihiogs  ;  in  the  tirsi  place,  thougU  i|  1 
last  merit loneil  in  tune,  yH  ii  ou^hi  to  have  \ 
first  con!< id etation  ;  the  ciiunset  for  thepriaoi 
have  endeavoured  10  lake  otf  ttie  credit  of  ] 
Poller,  ami  have  0|ieneil  indeed  very  jjri 
crimes  ihut  he  Blioufd  heg<dhy  ol«  whn  h  nil 
»*ender  htm  a  person  n>*t  u»  be  lieht*%edj  I 
tbty  have  not  plowed  iiny  thio^  ;  no  utni 
that  they  haie  calleil  ajjaiiiHt  Mr.  l*oit#r*a 
the  leufit  a;(auii»t  Imii  lo  invalidule  hiK  lestaiicii 
or  to  induce  yon  lu  disbelirte  wIihi  iic  baa  sfl 

Thtn  they  Ray  in  poitit  of  law,  Tliere  is 
overt- art  pm^nl  fd'  iin>  design  agaioM  | 
kiiig^s  hfe  ihai  affects  ^\\\  Rtkokwc^od  ;  ui 
that  main-r  you  are  to  coiinider  of,  wbethep* 
noil  ilots  a|*fi^»r  by  the  it'^iuuony  of  two  n' 
I  ne^^c^,  that  Mr  liooki«ood  hqs  toneertiml 
this  desif^ii  of  U9»jia«}iirialiiig  the  kiOiT ;  Cft|ill 
Porter  is  pruiitive  that  lie  ^^  aiv  31I  the  cuu!»uli 
the  Glolje-iavern,  where  it  nas  firopt^Ftd,  1 
battd,  and  resoked  upon ;  but  Mr,  Rookwc 
Kny.s,  hu  <ltd  dii^like  11 ;  (^o  ^uyscapiatn  V*\ 
lit-  d  d  not  Hpprove  of  it  at  the  fiui  updn  | 
bi  tit;;  ioifuuhitid  ui  h  it-,  but  bein^  m 
j  to  obey  the  orders  of  sir  George  Dardey, 


•UUUl I 


imi 


High  TreasomJ^ 

George  Bareley  producing  a  sclieme  ready 
drtwn«  wlief^m  he  H4«  tu  cntnmaiul  the  party » 
l«Hij]g  hitik^  that  be  mtisl  n\\ey  oide rs.  Wan 
hrar  wbai  he  sakI,  uitl  tl>e  answei-  he  rrtiirnect 
inPraiichT  Tbrre  is  an  etui  oi  it ;  whether  that 
4iCi  Mtiamuutil  to  a  amsfut  und  a^rt^t-ment  tu 
biiOgfm^i  in  lU«  cle»i*^n,  is  l«t'l  m  ytmr  codsI- 
4ii»liiiii ;  trir  i^'  ii  ilo^  it  is  pUmly  an  o?ert-act, 
Tben,  Genlletiien,  yau  hcAr  further,  that 
liiiTTA  was  luld  by  iVlr,  Rjokwocvl,  that  lie 
■hAQlii  b«  orbts  party,  and  le  his  aid  itu  campi 
»B4|fotuTuriikiaiii'iir4^c'tJ  to  attack  the  prince 
iift)r»ni^,and  Ue  had  a]t»tot  men  given  Iriuihy 
Jliikiirooti,  and  viras  directed  to   get  the  rc^t 


ICfiff^&^cKH/.  That  was  not  in  thcindietmcnt. 
L*C  J.   But  you  were  at  that  rattling,  which 
1  lU  the  itidu'tnieiit. 

itrood.  My  lord,  that  list  ig  not  in  the  in- 
em  ;    the  list  in  th«  itidtctiiient  rctcrs  to 
Mr,  Cranbume, 

L  C  J*  Sq,  but  thai  is  an  evidence  of  yoar 
kifif  in  ihede^iun;  I  hope  ih»t  list  of  nieti 
•iit^aitfiieetideQceot  the  Lunjieut  and  aj^ree- 
■mtiJiaiMr*  RookwouJ  WHS  to  cifinmanJ  a 

6ur  B.  Shower.  With  ffubmission,  my  loril^ 
i^ftbcaci  seem  otIitTwise,  and  that 
&htiii1d  bt*|^veo  in  evidence,  that  is 
iy  allrili^ed. 

L.  C*  /-  But  ran  not  there  be  one  act,  that 
m%\  \m  [if*H%i  of  another  uet  wbirh  is  a!  ed^ed  I' 

liir  B.  Sfnm€r>  Then  there  \s  no  advautau^e  of 
Ibiv  lanr ;  |iir«  my  h*rd,  the  end  of  the  act  uus, 
Tttal  tht  y  dhuiihi  ktiu  .  the  puriicuhir  cnines 
tbsltbry  Merc  to  antiM^r  tu. 

LC'j.  TUat  cotdd  ne^er  be  the  end  of  the 
law,  \\ml  all  particular  facts  that  are  hut  evi- 
4ri3«F  oT ibt'  tnc)^  al led cieif  should  he  set  forth  in 
tW  4mJ*eUiietit ;  it  mii»  sutlicient  before  the  act, 
to  4J**<d|;r  any  overt  act;  mid  any  oth^rovfrt- 
aci,  |Jb«Ma|^U  iiut  alh'd^^tdautil  h^d  no  relation  to 
|lw ofipf t-sct  that  Masaiti'd^ed,  ytt  if  it  ucre 
ID  ilie  cainif  s^irt  ol  ireasou,  might  be  given  in 

*ftr  B    "^hoirer.  The  law  says,  Ye  sltaU  not 
^r  e«iilei)i'«>  of  any  overt-act  that  is  Dot  ex- 
H  ui«£iiiio(jed« 

C  J*  It  i«  not  urg^cd  as  an  overt- act, 
ft  r»idence  of  ati  overt- net  ibnt  is  alled^rei)  * 
liriailsiiee.  theov<rt-ait  alledged  iii,  tbuf  they 
M  HMWl  attd  conduit,  ^hall  not  ihey  fi^ive  in 
fvidf«l04$  wliat  Mixv,  ^idHiiiM^ii^  ^*  thosi:  tneet- 
IDfpi,  tliautrh  not  iilUdired  :'  ^ijr  George  Burctey 
^roilnc4^i  a  sbcbeme  at  the  (j lobe- tavern,  $iball 
oat  tbe  producing  of  that  scheme  be  ((iven  in 
v^vU^tictr  ^  If  it  may,  why  n^it  the  giving  the 
list  tM  Harris? 

Mr   V^ihjtfti.      !^Vy  lord,,   it   U  plain  it  was 
Itr  Attofuey's  opinion,   it  couhl  nut  ije  gi*en 
h  ^viueoce,   noteH!4  it  wns  alletlged  in  the  in- 
lifctiuent  \    liecao'^e    he   has    particularly   al- 
Id^l  lh«  bM  lu  Craubnrne^s  case^  in  this 
bilifitinefii. 
Oen.     I  know  not  ivhat  those  srentte- 
by  \\\i%  twrl  of  practice ;   certainly 
iiet«r  urera  w^  mftoy  irreg'uliM'ities  com- 


miitcd  in  any  trial  as  in  this,  and  tinw  parttcn* 
larly  to  break  iu  upon  the  court  in  the  midst  of 
tlvc  eliur^e, 

L.  C.  J.  Nay,  nay,  if ihcre  l»e  any  nxiatakep 
let  us  hear  them,  ih^it  it  n»uy  he  recltliied. 

L.  C,  X  Tre6y.  I  think  we  should  receivo 
them,  to  iiT  if  they  can  o*ake  it  our.  But  the 
objection  1  do  not  very  wi-ll  understand  yet  j 
^r,  as  I  take  tbe  matter  to  stand,  it  is  alJed^ed  i 
in  the  indictment,  that  ttiey  hail  prepared  men 
and  anus,  and  horses,  fai  the  execution  of  this 
desijfn.  Now  ii  it  not  fpa^onable,  or  can 
there  beany  thiniif  niort*  proper,  than  to  g'iv^ 
in  evidence^  and  prove  that  the  fnisouer  had, 
and  dehi  ercd  to  some  of  the  complices^  a  hst  of 
those  men  that  were  to  do  ilf  ^V'hy,  it  proves 
the  very  thiti^  alktfged  ;  but  let  usscewbe* 
ther  it  he  so. 

Sir  B.  Shower.  My  lord,  there  is  do  eucIi 
thing  a  Hedged, 

L.  V.  J.  That  ts  strange  !  pray  see  if  It  b« 
in  tb&  indictment. 

Clerk  if  Arr,      (Reads.)     *  Conreniebant, 

*  proposuenint,    traciaverunt,    consuliavernnt, 

*  consenserunt,  et  a|^reaveiuut,  ad  ipsum  Do- 

*  mhium  Kegem  nunc  ex   Insidiia  et  Dobper« 

*  cniiGiHUim^  Angiice  *  to  as^ssinate,MDto^fici- 
'  end  urn,  «t  murdrHndutn  ;  el  ad  execrahilemi 
'  horrendam,  et  dctestabilem  Assasbinationem, 
^  Angtice  ♦Assassination,*  et  interfectionem 
*^  illam  cilius  exeq»iendum    ci   perpetrandum^ 

*  postea   scilicet  t^iadem  Die  ct  Anno,   ac   di- 

*  verbis  alii^j  Ditbusot  Vicihus,  apud  Farochi* 

*  am  pro^diciam  in  Comiiatu  priedicto,  prodi* 

*  torie  troctavtrnnt,  projH'Huei  imt,  et  consulta- 

*  veront  *}e  Viis,  Modis  H  Mediis,  ac  Tempore 

*  et   Loco,   ubi,  qnando,  cjualiter   ef  quorimdo 

*  dictum   Dominuiu  Etegeni  sic  ex  Injiidiis  fa- 

*  eilius  iiiteriicerenl  ;  el  consenserunt,  asjrea- 
f  vcTunt    et    asseuserunt,    quitd    quadraginta 

*  Hiimiues  equestres  aut   eo  cir<'iter,  qnorura 

*  ii*ltm  IJlirisiophorns  Koighlley,  Rohrrtos 
'  Luwicki     Amhriiiiius  Hookv^ood   et  Caiolus 

*  Crauburne  Jbreut  qiiatuor,  et  quilihet  horum 

*  proditorie  sujier  se  j*usceprt  esse  nnum,  cum 

*  jjomlmrdis,  Sclopis  et  fciclopetin,  Putvere 
'  bofidianhco  et  GUdiuUs  plumbeis  oner  at  is,  et 

*  cunr  Ghifliis,  Ensihus  ct  aliis  Arm  is  annali 
<  imiidtiiti   tortnt,  et  essent  in  ^iubse^sn,    Art' 

*  gikt   *■  in  ambuiib,*  adundem  DrMiimum  Rc« 

*  ^em  in  ftbeda  sua,  An^Occ  *■  hif*  coach,'  cx- 

*  ihtentcm,    qnando    IbriN    iret    invurteudum  ; 

*  quodqne  quidam  et  competens  NuTuerus  do 
*•  HuminihuK  il  i^s^  sicarmatisinHaielhteft,  Art' 

*  glke  *  I  he  guards,'  ipsius  Domini  Regis  euni 
'  tunc  attendenies  et  bee um  existciiti  :^  agtjrcssi 

*  ibreut,  et  eoa  expugnarent  el  deMnterent^ 
^  d nm  alii  eonindem  IJoininum  sic  armiatoruiii 

*  ipsum  Dominura  Regtm  perruterent>  inter^ 

*  tkerent,  occiderenl  ct  murdrarent/ 

Mr*  Ctwyfri.  And,  my  lord,  there  k  cH- 
dence  of  some  of  these  forty  men,  wKoM 
nameti  were  given  in  a  list  by  Rook  wood  t» 
Harris? 

Mr,  Fhipps.  But  now,  in  CraDbnrne's  perl, 
the  list  is  expressly  altered  as  an  OTert-  icI* 


Ttiai  of  Ambrose  RaQkw:oi^ 


I 


L.  C.  J*  Never  talk  of  Cranbum^,  we  have 
Pdi  him  before  Ui»  uovt ;  Imt  wbnt  ilo  yua  »ay 
10  this  of  the  ru.i|riven  Uy  Rookwuod  to  Harria  ? 

Hit  B,  Shoicer,  My  Lord,  «ie  s:i  y  this  b 
not  evidence  of  aa  overt- act,  aceonlini^  tu  tUii» 
act  of  porhameol ;  whicb  sa)s,  wo  efi«kiiee 
shall  be  given  of  any  oiert-act,  ihut  is  imt  ex- 
jiresBly  ^ledgeci  in  tlic  iuiliftinent ;  lujw  ihe  in- 
nictment  says,  tbey  did  sy^ree  that  T^rty  hi^rse- 
men  armed,  ot  which  liietour  named  werei<»  In? 
foor,  and  every  one  uudertook  U>  ii€-  otie,  ^vbo 
fthoiilti  lie  ill  wait  to  svi  upoo  ilie  kii^i;  in  bis 
coacbf  aud  a  competent  dumber  sbuiild  set  upon 
the  guards;  and  then  it  E»ay$,  in  ordtitr  to  fulfil 
this,  they  did  pre^iare  tiorscs  and  arms,  and  one 
of  Ibemby  ihe  cooseui  ot  all  the  rest  did  <'arry 
forward  aud  backward  a  hst,  that  is,  Crao- 
bume;  atid  that  partirulur  hst  is  a  purlictdar 
overt-act  alledged  hi  the  indicltiient ;  which 
makes  it  plain,  ihey  thought  it  necessary  to  he 
particularly  alkd^ed  by  iliis  act  of  parha- 
lueDt,  or  they  could  not  g-ive  any  evidence  of  it ; 
now  the  list  tliat  evidence  is  given  of,  is  sup- 
posed to  be  delivered  by  rhe  prisoner  to  Harris, 
Now  first  we  say,  it  is  not  evidence  tliat  torty 
ahould  du  it,  for  tbey  may  dr*  it  without  a  list; 
and  next,  it  is  not  e%ideiite  of  iht;  hst  that  tbt;y 
have  mentioned,  lor  tliat  is  alledged  to  be  car- 
ried about  by  Cranburnc  j  iiod  as  the  prisotier 
himself  has  observed,  this  litit  ^iven  to  Harris 
is  not  in  the  indictincat,  and  iKeretbre  no  evi* 
dence  cmo  he  given  of  it, 

Mr.  Conyns.  It  is  an  evidence  ofthat  overt- 
ftct  wbicli  is  el  press  ty  alteJ^eil  iu  the  indict- 
iQent,  that  they  met  together  to  consult  how 
to  effect  this  treason, 

Mr,  Cow  per.  My  lord,  wc  are  In  a  very 
strange  case  berr,  it  we  be  not  very  proper  iu 
this  part  ol'our  evidence;  the  overt-act  livid  is^ 
That  the  prisoner  iint  together  wilh  olheriJ  to 
consult  how  to  assassinate  the  king,  and  tlui  e 
the  prisoner  among'  tlie  re^t  did  a^ree  it  lihould 
be  done  so  and  so.  It  in  admitted  the  prisoner 
was  there ;  hut^  say  they,  if  you  only  prove 
that  he  sale  by  while  there  was  a  ja^cner^d  dis- 
course of  such  a  matter,  but  do  not  provi^  ilnit 
li«  said  or  did  any  tiling  expressini^  his  usscnt^ 
that  will  not  amount  to  a  proof  of  the  overt -uct 
laid  ;  and  yet,  if  w  t?  go  abtuii  to  prove  further, 
any  act  done  that  manifests  his  assent,  then  ihey 
fifty  you  go  too  fur,  and  prove  an  overt- act  that 
in  not  menuonetl  in  the  iudictment.  Thtis  they 
j^rant,  the  agreement  U  a  sntHcient  overl-act, 
but  object,  that  being'  present  barely  is  nol  a 
snflic'ient  proof  o!"  his  n^reerueni;  then  whcii 
ive  go  to  make  prool  of  any  thing'  that  is  a  auSi- 
cient  proof  of  bis  agret* menl,  they  teU  us  it  is 
not  proper  upon  this  act  of  parhamcnt,  be- 
cause nut  hiid  in  the  indictment,  though  his 
agrei'meut  be  laid  in  iho  indictment :  And  m 
they  would  amuse  us,  rather  than  mJike  any 
solul  ob|ectioD  to  our  evidence.  Thi^  doctrine 
is  certainly  very  o<ld,  my  lord,  and  we  doubt 
not  will  bavc  hitlc  weight  with  the  court  or 
the  jury. 

Ait,  Gen,  According  to  this  doctrine,  all  ibc 
evidence  mu^  be  put  in  the  iodictuietit. 


L,  C.  J,    Tbey  ask  you,  wbai  Ais  givii^ 
tliis  hst  does  prove. 

Alt.  Gen,    His  tt§rr<-eing  at  that  m^^liner 
the  cuuspirary,  and  the  esecutufu  of  it,  by  ^t 
ing  that  list  of  the  names  of  iheni  that  were 
he  of  bis   parly,  aud  his  own  name  as   eoti 
mauda*  of  that  party,  this  he  I'-ives  to  one  tli 
was  to  be  nf  the  party,  and  particularly  wan 
l>e  his  aid  du  eamp^  in  order  to  ^et  them  read 
(or  the  txeculiun  ;  is  not  ihis  an  evidence 
the  agreement,  which  is  the  overt^act?     N 
man  in  the  world  can  he  convicted  of  treni 
if  thi!!(  doctrine  be  true. 

ihf.  Lien,  My  lord,  tbey  have  not  txpi 
something;  m  tfie  iudintmifntthat  has  beeu 
which  will  make  it  plain  tlmt  tins  is  the 
pfO|»er  evidence  of  the  overt-act  taid  in  liie 
diciment.     The  indictment  tiays,  tUey 
there  hiHinld  be  forty  men  or  ihcreaho 
ed,  of  u  hich  a  certain  number  shouhl  m; 
assuult  upon  the  king's  coach,  while  aoi 
purt  sliould  set  upon   ihe  guards:     N^ 
proof  wt:  tnake  is,  that  I^Ir.  liookwooil 
soner  was  to  command  a  party  that  w 
upon  the  guards  ;  and  in  order  to  it,  ' 
a  list  of  bis  lueu  to  Harris,  who  was  to 
aid    du    camp,  and  bids  hiui  get  those 
reiidy  ;  and  this  was  upi»n  tlie  day  that  tl 
nmtler  was  ly  be  acted  ;     So  that  it  proves  vcj 
pliiinly  that  oven-act  that  we  suggest  in  ll 
iudictment,  that  a  certain  number  of  thoae  mi 
were  to  ai^sault  the  king's  perMoo,  and  tini 
the  guards     And  therefore  tiiey  ueednl  not 
huvtf  interrupted  your  lordship;    for  this  I 
that  Harris  s]ieakii  of  is  a  very  good  proof 
tlie  (jveit-act  that  is  laid  iu  the  iudictment. 

L,  C  X  Then,  gem  I  em  en,  as  to  this 
which  they  have  objected,  that  this  liat  gii 
on  the  day  of  the  intended  asisa^inutiou,  oi 
nol  U*  ha  nlhiwcd  as  evidtnee  to  prove:  the  ti^ 
son^  because  it  is  not  fipecially  laid  in  ihe  ti 
dictment,  but  i«  by  the  lute  act  of  parliame 
excluded  from  btuig  proved  to  convict  the  pr 
souer:  Now  though  itie  act  d<*th  exclude  tf 
{giving  in  evidence  of  any  o^crt-act  that  h  n 
laid  in  the  indictment,  yet  it  doth  not  exclui 
tiiah  evidence  as  is  proper  and  (it  to  prove  tin 
ovt  rt  act  thai  is  laid  in  the  indictment,  T' 
tore  the  <pit:!3»riiio  ia,  VV  heihcr  this  giving  of 
hst  drich  not  prove  some  overt -act  that  is 
led^cd  in  the  indictment  P  There  is  in  the  ia 
dictinent  an  agreement  l^iid  ti»  kill  the  km0 
and  if  that  Itc  piovtfd,  that  is  an  overt-act  of  tlii 
treason.  Now  when  the  cum  sent  and  agre 
rnent  of  3[r.  Kuokwood  to  that  ilesign  isprorc 
surely  the  proof  of  his  giving  a  list  of  men, 
a  furlher  jiroof  that  he  did  sgree  to  it,  and  ihi 
it  is  very  proper  to  be  niveo  in  evirlence -,  t 
if  by  the  new  siatoie  no  one  act  r^^n  be  givi 
in  evidence  to  prove  {luollier,  th'  u  must  a 
uii\y  the  4jvei  t-act,  hut  also  the  evi^ience  of 
act'be  ejcpressed  in  the  indictment, 

ifontlcmen,  Vou  have  lieard  ihe  witiK 
wfial  they  tmy  c-ucerning  Ibi^i  mutter.     J 
first  place,  if  you  do  believe  that  there  wj 
cojiisnlttt  and  meeting!^,  where  tiiui  inteoi 
soisioaiioD  of  the  kmg  was  debated  and 

a 


Trial  qfCharUt  Cranbufne. 


A.  D.  1096. 


[S». 


I,  mud  tiMt  Mr.  Rookwoofi  was  present 
a^ree  to  it»  tbal  is  an  overt-act:  And 
r  yoa  are  ntisfied  that  there  was  an 
lit  to  prepare  and  proride  a  number  of 
et  opon  the  king  and  his  guards,  in 
iDcr  yon  have  heard,  and  he  was  con- 
n  making  this  provision,  and  was  to 
ost,  and  command  a  party  in  that  at- 
t  is  a  further  proof  of  that  consent  and 
nt  that  is  laid  in  the  indictment. 
men,  I  most  leare  it  to  you,  upon  the 
that  you  hare  heanl.  If  you  are 
upon  the  testimony  of  these  two  wit- 
bat  bare  been  prodoeed,  that  Mr. 
nd  is  gailty  of  thbtreason  of  which  he 
ed,  in  compassing  and  imagining  the 
'  the  king,  then  you  will  finuhim 
If  yoQ  are  not  satisfied  that  he  is 
eu  will  aoqoit  him. 

Jr.   Cryer,  swear  an  officer  to  keep 
,    (Which  was  done.) 
J.     Now,  if  yon  have  any  thing  to 
I  behalf  of  your  other  clients,  pray 

Skoteer*  Yes,  we  hare  an  exception, 
r  a  one  of  false  spelling. 
J.  If  so  be  it  be  any  such  matter  as 
i  move  in  arrest  of  judgment,  it  bad 
eseiied  till  after  the  verdict.  . 
.  Skomer.    Our  exceptions  wiH  serve,  if 
be,  for  Mr.  Rookwood  in  arrest  of, 
It,  and  tbey  will  serve  for  the  others 
■event  the  trouble  of  the  trial,  if  we 
or  lord^iip's  opinion  that  they  are  good 

I  the  Jury  withdrew  to  consider  of  their 
jwl  after  a  quarter  of  an  hour's  stay- 
.Mwned,  and  gave  in  their  verdict.) 

fJr,   Gentlemen  of  the  jury,  answer 

Hmrs.     Samuel  Powell. 

^melL  H«i«.    (And  so  of  the  rest.) 


Cryer,  Vousavez. 

CC,  ofAr,  Gentlemen,  are  you  all  agreed  of 
your  verdict? 

Jury.  Yes. 

CL  ofAr.  Who  shall  say  for  you  ?  . 

Jury.  Ourfoi-eman. 

CL  of  Ar,  Ambrose  Rookwood,  hold  up  thy 
hand,  (which  he  did).  Look  upon  the  prisoner  i 
How  say  yon  ?  Is  he  gnilty  of  the  high  trea» 
son  whereof  he  stands  indicted,  or  Not  Guilty  F 

Foreman.  Guilty. 

CL  of'Ar,  What  goods  or  chattels,  lands  or 
tenements,  had  he  at  the  time  of  the  treasoil 
committed  t 

Foreman.  None,  to  pur  knowledge. 

CL  ofAr,  Then  hearken  to  your  verdict  li 
the  court  has  recorded  it.  You  say  that  Am- 
brose Rookwood  is  guilty  of  the  high  treason 
whereof  he  stands  indicted,  but  that  he  had  no 
g[00ds  or  chattels,  lands  or  tenements,  at  the 
time  of  the  high  treason  committed,  or  at  any 
time  since  to  your  knowledge,  and  so  you  sav 
all  i»— Jury.  Yes.  ^ 

Mr.  PmoeU,  We  desire  we  may  be  dia* 
charged. 

X.  C.  J.  We  cannot  do  that,  till  we  see 
whether  there  be  enoo'gh  upon  the  other  pan* 
nel:  We  will  give  you  as  much  ease  as  we 
can:  We  shall  not,  I  suppose,  tiy  the  other  till 
the  afternoon,  therefore  you  may  take  your 
ease  for  the  present ;  but  you  must  be  about 
the  court  when  the  other  trials  come  on. 

(While  the  Jury  was  withdrawn,  the  court 
offered  to  the  counsel  for  the  prisoners,  that 
they  might  move  what  exceptions  they  bad 
before  the  Jury  was  sworn  as  to  any  of  the 
otiier ;  which  accordingly  they  did ;  but  that 
relating  to  the  case  of  Mr.  Charles  Cranburne^ 
in  whose  presence,  being  then  at  the  bar,  tbe 
objections  were  made,  mat  part  is  left  to  bia 
Trial.) 


The  Trial  of  Charles  Cranburne,  for  High  TVeason  t  At  the 
Sessions  of  Oyer  and  Terminer  for  the  County  of  Middlesex, 
sitting  in  the  Court  of  King's-Bencli  at  Westminster: 
SWuliamIII.  a.  d.  1696* 


Aprii  SI.  1696. 

SR  the  trial  of  Ambrose  Rookwood  was 
bile  tbe  jury  were  withdrawn  to  con- 
r^Sacir  verdict,  the  court  proceeded  thus : 
:.  J.  (Sir  John  Holt.)  Mr.  Attorney, 
w3|  yoQ  hare  tried  next  ? 
Gem.  (Sir  The.  Treror )  Cranburne, 
letdAmpleaiei. 

if  Ar,  Then,  keeper  of  Newgate,  set 
I  Cranbome  to  thenar. 


.flSS.    Holt,  68a.    Bast's  Pleai 
Gk»«i^e.S,a.40«49|6S. 


L,  C.  X  You,  ffentlemen,  that  areof  coonsei 
for  the  prisoner,  if  you  have  any  thin(|f  to  1 


for  your  client,  you  may  move  it ;  but  first  let 
tbe  prisoner  be  uere. 

(Then  Charles  Cranburne  was  brought  to  the 
bar  in  irons.) 

L  C,  J.  Look  j^ou,  keener,  yon  should  take 
oiTthe  prisoners  irons*  when  they  are  at  the 
bar,  for  they  should  stand  at  their  ease  whea 
they  are  tried. 


See  in  this  CoUectiooy  ?oL  5,  p.  979. 


I 

I 

I 


I 


8  WILLIAM  IIL 

Keeper.  My  lanl,  we  UaTe  no  instruments 
li«re  to  ilo  it  jnsjt  now. 

€L  of  Ar.  You  may  send  Lo  the  Gale- bouse, 
tod  borrow  insiruuiciits. 

Just  Pouxti    It  sJiMild   be  4uoe,  mdeeit  j 

L.  CT  J.  Well,  go  on  I  sir  Baiiliolomew 
Sbovver, 

ii//*  Gen.  My  lord,  bf^foreuir  Bardiobmew 
Shower  cuter  upon  his  excrptioiiK^  ut)1c<i«i)  tboj^e 
exoefitiofHj  of  bi!»  »re  some  of  the  pMiiiculars 
m^nttotieO  io  this  acl^  he  imiNt  tir>l  do  it  tnav, 
after  plea  pleaiJed,  befur^  ibe  trial ;  btil  be 
iDUil  ilo  it  in  arr<fst  uf  jufl|rrtieDt. 

L.  C.  J.  Trcbif,  It  is  true,  regularly  ;  but 
let  bitu  use  his  own  juilgment. 

L.  C  J.  It  is  very  true  ;  the  course  ha?  nol 
been  to  allofr  them  to  ino?e  to  quasb  an  imliel- 
meiit  lor  treatjon,  or  felony  ;  but  it  may  be  done. 

Ait.  Gin.  8ure,  it  must  he  only  ft'r  such 
thinffs  aa  ihey  cannot  take  advantage  of  in  ar- 
real  m  Juilg'tnent  after  ll»e  verdict 

L,  C  J.  It  hats  uut  been  the  eonrae,  but  it 
may  be  done. 

Ail  Gen,  Not  where  there  is  an  isaiie  join- 
ed, and  a  jury  returned  to  try  ihnt  issue  ;  I  be- 
lieve ihat  oever  vva»  done,  nor  ai tempted. 

L.C.  J.  Triby,  If  there  were  any  prejudice 
to  the  kro^  by  it,  it  were  not  fit  for  nn  to  alter 
the  course  ;  but  tel  ii5  hear  \%  hat  his  ei^ceplians 
«i*e. 

Sir  B.  Shnwwr.  I  have  several  exceptions ; 
five  at  least ;  one  of  them  is  within  the  very 
word«  of  the  act,  that  is,  improper  Latin  ;  I  atn 
aure  some  of  it  is  so. 

L,  C.  X    Well,  let's  bear  what  that  is. 

ii\T  B.  Shower,    It  saya,    ^  anno  re^ni  dicli 

•  doitiini  regi<  nunc  ^eptimo,'  and  Lewis  is  the 
last  kiofif  rtienttont'd  before ;  and  so  here  in  no 
year  of  the  king  of  Eng^lond  meniione^l.  It  is 
A  certain  rule,  that  relatives  most  refer  to  the 
last  auteeedent ;  and  that  rule  hol(]»  ahrays, 
unless  there  Ue  weirds  thai  accompany  the  re* 
lative^  which  undeiiiahly  shew  to  what  it 
refers* 

L.  C.  X  Aye ;  but  do  we  call  the  French 
kiB^  *  cfominus  rtxf* 

L,  C.  J.  Trehtf.  He  would  have  beeu  bo,  if 
hm  had  succeeded  in  his  invasion^  aud  thi^  as- 
sassin at  ton. 

8ir  B,  Shomer.  In  every  indiclmenl,  if  there 
be  occasion  to  mention  a  former  kin^,  il  \%  al- 
ways nupcr  res  and  such  a  one,  naiiiin<T  the 
©aiiie  of  the  kiuj?,  where  llie  preseut  king's 
Dame  does  iiiterveue,  to  prevent  contiisioo; 
and  so  in  civil  actions  it  i«  the  same ;  and  so  it 
shouki  have  been  here. 

L.  C,  X  Ay  ,  but  I  tell  you^  it  is  *  dotninua 
'  rex  nunc/  which  i^  our  king^. 

Mr,  Phipps.  It  iii  not  said  *  Anfjlia?/ 

L.C.J,  But  wherever  it  is  *  dominns  rex,' 
we  understand  it  of  the  kiniif  of  Kny:land^  and 
nobody  ehe»     Readnhe  indictment, 

Ci.of  Ar.  '  Necnon  cundeni  Uoitiinum  He- 

•  gem   ad  Morieiu  et  finaleni   De^tiutiioncm 

•  ponere  et  adiluceret  »c  subdjtos  suos  fideleh, 

•  ct  Liberoi  llonaiues  Hujus  llegtii  Anglia:  in 


Trial  ofCharUs  Cranbume^  fl 

I  *  servitutnm  intolernhitefn  et  fiitserrimani 
j  *  dovico  RpLri  Ctullico  sulijoi4:arf,  et  maneipal 

*  Dectmo  llie  Frferuanr,  Anno  Ket^ni  dicti  D 
I  *  mini   uunt*   Regis  ?»eptiiiio,  el   tltYersia  i 
I  *  DiehiH,  &c.» 

I      L.  C  J  Can  any  man  imagine  this  to  be 
'  Frem  li  king  ? 
I      Sir  B.  Shower,  My  lord,  jour  lordship  U 

to  imagine  one  way  or  other, 

Mr.    dm  per.     In   the   strictest  sense 
grammar  in  the  world,  it  must  menu  kin|;  \ 
Imw^  a  nil   no  other.      We  do   ncH   need  3 
irnsigmaijoo,  v^  hi  n  in  the  strictest  constnit;!! 
it  ift  pin  in  who  it  refpvs  to. 

Hir  B.  Sh(*wtr.  I  am  «nre  no  grammar 
make  it  go^id  ;  nothing  but  a  &up{M>sttii>ii 
hefp  it 

Mr.  Corrper,  When  it   is  said  *  Dictus  1 

minus  Hex,'  if  sit    Barlbokmiew  Shower 

ItuiI  out  another  *■  Dominns  Rex*  in  the  im 

I  tneni,  then  he  may  make  something  «d'  hi* 

i  ji'Clion  ;  hui  the  *  Dinnmus*  is  only  appbe 

mirovfn  king  throughout. 

L.  C.  J .  PnOj/.  Hesides,  as  to  the  rule 
sir  Bartholomew    Shower  menlionUt  it  it 

*  ad   proximum  Amcceilens  fiat  relittio  nisi 

*  jjediwl  Henteufia.*     That  is  the  rc'stricti( 
the  rule,  it  must  relate  to  the  next  aiiti 
uidess  the  sense   would    Le   projutltced  ; 
here  if  ibis  const  rut- 1  ion  should   be,    it  m 
make  this  clause  in  he  no  better  than  nni 
\ix.    I'hat  the  Hidyects  and  freenieti   of 
realm «  ^re  to  be  brought  into  inii>lerabte  alavf 
to  Lew«i  the  French   king,  snch  a  day  m 
seventh  year  of  the  reign  of  our  lord  the 
king. 

Sir  B.  SAoo?er.  We  say  it  is  little  better 
notisense ;  I  am  sure  it  is  looin;,  ami  un^ 
and    not  grammar,   but  carries  a   tiew  I 
with  it, 

X.  C.  X  No,  it  is  as  well  as  it  con  be. 

Sir  B.  Shtnrer*  Then,  my  lord,  there  i» 
other  exception  ;  it  is  said,  '  riiver^B  Diebin 
^  Vieihus  tnin  antea  quam  ]K)stea  ;'  and  tl 
afterward*!  it  say^,  *  posieti  nt  ilicet  eoilem  1 

*  cimo  Die  Februari*  •/  that  is  repugnant  j 
is  wi  much  as  to  say,  That  upon  the  lOtj 
Fchruary,  and  two  days  after\*ards  (to  wit) 
said  lOiliday  of  Felnuarv  ;  ihat  is,  afler 
days  afler  the  10th  of  February,  viz.  upon 
same  tenth  day. 

Att.  Gen.  'Vhat  *  Postea'is  another  sentei 
and  relates  to  other  tn  att  era 

Sir  B.  Shower.  It  raunot  in  propriety 
speech  be  said  to  hr  after wanls  ihe  B^ame  tfa 

Soi.  Grn.  (>»ir  Jolin    Hawles,)     If  sir  P 
tbolomew  Shower  remcnlhers  the  evidence 
we  have  given  this. day,  he  will  find  it  w&f 
fact  so ;  they  inirt  on   the  8atunlay  mom! 
and  allerwanls  met  again  the  night  of  the 
day, 

L.  C.  X  There  is  notlnng  in  that  oh} 
sure;  it  is  a  common  form,  when  they  tell 
tliffereiit  mnllcri. 

Hif  B,  Shonrr.    Well  then»  if  yon   will  beti 
the  rest  which  are  not  of  the  same  notntv, 
bhuli  come  to  what  we  think  %  faitid  except 


»] 


fur  llfgh  Treason* 


ite««f  tbb  b4lcltii€Qt  af  Hic1i^Trea<«on  l>emg 
tfiiii»4t  •  9(i)>jecc  hurt),  ought  to  have  liud  the 
irc>fJ»iii  it,  *  Contm  siiprcftium  nutumleitt  Li* 
'^ijtfi  l>oniiniim  %uu%\\  ;*  ac?cor<linif  to  Cal?irr» 
V^ute  in  the  7th  Report,  \o\.  septimt* 

L,  C.  J>  It  h  ^  L'ODtra  Ligeonttie  su:£  I>c- 
kitiim,'  IS  it  not  ? 

Sir  B.  Skouer.  That  won't  help  it,  my  lord, 
fiDr  «)t  that  H  appHcaMe  to  an  ahen  horn  :  ami 
foiifhe  raae  in  luy  tonl  Dy«r,  144^  where  it  i^ 
■H,  thai  U'  an  indictmc tit  of  treasrrn  he  ajritini^t 
ttufieii,  you  mai^t  not  pnt  in  the  word  nnttira- 
Im;  if  yoti  do,  tt  will  be  t'itulty,  because  he 
#«w  but  a  local  alle^ance  to  tlie  king  of  Eng* 
bad,  and  not  a  uaCural  one.  Now  ne  say^ 
llmv  are  none  of  thase  prisoners  hnl  are  «iib- 
horzi,  and  the  constant  fornn  in  queen 
lb 'a  time,  and  queen  Mary 'a,  was  to 
( the  wortls  *  Natur&Jem  Dominum/  and 
f  cannot  a  hew  me  any  of  those  prece^leots 
tit.  There  wa«  occasion  in  Tncker'ii 
tMelo  lixjk  into  this  matter,  and  seardi  aJl  tiie 
frwl4R>t».  1  have  looked  in  my  lord  Coke's 
■Mi^  and  alt  the  preccdetit;» ;  *  I  have  seen 

Zlerd  of  £sjifx^it  indictment,  and  all  the 
m  in  queen  Eli/aheth*s  time,  and  those  of 
lii  b^orst  in  the  Power- Piot,  and  tho<ie  of 
^  Rcpcide?*^  and  Tucker's*  own  indictment 
iMf ;  nil  a!oti«^  it  is  '  Njuuralem  Ekiitnnum 
wttm  i*  and  the  reason  for  it  i^i,  he  that  U 
ilMvloffi,  yon  never  pot  in  *  Natumlem  Do- 
iImmii  atitjm«'  because  he  owes  a  double  alle- 
gincv;  ufie  natoral,  to  liis  own  ktni^  under 
dotninion  he  was  bonj,  and  llie  other 
to  the  king  in  whose  dominions  he  re- 
^for  lie  is  bound  to  observe  the  laivs  of  the 
here  he  livci:  and  if  he  violate  them, 
Wettlc  the  allegiance  that  he  owes  to 
iment  where  he  lives^  upon  nccotnit 
^|tf«i9ectinn  he  cnjuyn  under  it.  But  if  he 
h  s  fubjeet  uf  the  king-  of  England,  he 
Itt kii  ime  oainral  liege*lord  ;  and  he  Wwv^ 
^ai£iiffi»tiinau  born,  the  kin^rstEinds  in  that 
I  to  Him,  as  he  does  to  all  bia  native  ^uh- 
fJHti    *  I   to  tbreigtters;  and  therefore  it 

Wia  1  I  equisite  to  be,  nnd  has  always 

heUi  ito  indictments  of  trertson  Qjraiujit 

iiKjr  And,   my  lord,  we  think  the 

•«\  f^:,.-,.M,vMi  ofthe  court, afterwards  afdrmed 
klbellou^euf  Lords  that  reversed  Tncker'ii 
r,  went  upon  thta  opinion,  that  Ihe  law 
I  *  natormletn  ligeumi  Dooiinum'  to  be 
pot  in.  There  the  exception  was^  that  *  Con- 
Urn  Uebitum  Lii^eaotite  su»^  waa  omitted :  to, 
vl^lcii  it  Witt  objected,  that  there  was  *  Dottii- 
inn  Sopremum  Naturatem,*  which  was  equi- 
Hlmt;  no,  It  was  amweredjioth  were  reqtii 
#i,  becmu<ie  every  act  chared  in  the  indict- 
Mil  oiit^ht  to  he  bid  against  the  duty  of  hla 
al^giaace.  Now  io  indictnaents  of  ueason, 
M«  af»  certain  words  ihnt  are  es«enti>tl,  be- 
Otte  of  their  relation  between  the  king;  and 
tei  people.     There  are  c^-riaiu  forms  of  words, 

"^'  '  *  ...i  ....... f.-.-.  I      'tjntoinHke 

|f^  ►f      Those 

....^.,.  ..^  .;.  .....V,,..  .  ^iidlhe  want 

will  be  a  fatal  ej(crptioa ;  ^  vrc  tliiiik 
Xill. 


A.  D*  169G.  [29fl 

it  would  be  in  this  case,  ns  nnith  as  if  the  word 
^  Proditorie^  had  been  left  out ;  oras  if  in  a  case 
of^lony  and  btlr^la^yl  the  wortls'  FeSunice^anit 
'  Bnr^lariter*  had  been  left  ouU 

Mr.  F  hip  pi.  .My  lord,  we  take  the  prnctice 
and  precedents  to  be  the  rule  of  law  in  thecaiite  ; 
nnd  I  have  looked  over  a  great  ninnv  t>rcce- 
derits,  besitles  thofie  that  sir  Bartholoiiievr 
Shower  has  cited  ^  and  1  never  saw  any  one  pre- 
cedent of  an  indictment  of  treason  a|;ainst  a 
snbjeot  born,  without  the  wnrd  Natui-alcTu  ;  ami 
all  ilie cases  cited  by  sir  Barlholoniew  Shower 
are  full  in  the  point.  Counter's  ca?te  tu  my 
lord  Hobbart,  2fl,  wher^  it  is  i^aid,  ihut  if 
there  bean  indictment  agnint  a  subject  iKirn,  it 
most  be  *  Contra  naturalem  Domi.imu  ;*  if 
n^^ainst  an  alien,  *  naturalem'  must  h<*  left  out* 
Ty  say  *  Contra  Ligeanttfc  susc  Dfbiium*  will 
not  do,  it  is  not  enough,  for  that  may  bi»  said  ^ 
ag'aiof.t  an  alien,  because  he  owes  a  locsil  aU 
legiunce,  though  not  a  natural  one.  Ami  I 
take  it,  upon  this  difference,  this  indictinent  ii 
not  Lfoml. 

Att,  Gen,  My  lord,  1  do  not  know  how  faf 
you  will  think  it  proper  to  enter  iuto  thi»  mat* 
ter  before  the  triaL 

L*  C.  J.     Mr.  Attorney,  1  think  yon  had  ai  * 
good  speak  to  it  now  as  al'an other  time ',  though 
1  must  confess  it  is  not  so  proper  in  point  of 
practice. 

Ait,  Gen,  Well,  ray  lord,  then  we  u  ill  speak 
to  it  now.  The  objection  is,  that  the  words 
*  natundem  Donnnum^  is  not  in  the  indictment ; 
which  they  say  is  conlriiry  tolhe  usual  form  ; 
as  to  the  'prece<lents,  llier'e  are  a  great  oianj 
n  here  it  has  been,  and  lam  sure  a  great  many 
where  it  has  not  Ijeeo ;  and  I  am  sure  for  this 
six,  seven,  or  eight  years  hist  past,  it  has  always 
been  omitted :  and,  with  suimuassion  to  your 
lordship,  it  is  not  at  u\\  necessary,  if  there  be 
words  m  the  indictment  which  shew,  that  what 
he  did  was  agiinst  the  duty  of  his  aHcgiiincft 
to  his  lawful  and  undoubted  lord  (wbtL-h  are 
the  words  in  this  inflictmetit).  h  u  true,  if  he 
he  not  a  subject  born,*  naturalem*  cannot  be  in, 
because  that  is  contradictoiy  to  the  obedience 
which  he  owes,  for  it  if  not  a  uiitui*ul  obedience 
that  he  owes,  but  a  local  ;  but  if  a  man  be  a  sub- 
ject born,  and  commits  treason  against  (he  al- 
legiance that  be  owei;,  that  is  against  \.m  na- 
tnral  allegiance;  for  whatsoever  he  doe* 
against  his  allegiance,  he  does  against  hh  na- 
lural  allegiance,  and  so  there  is  no  need  to  put 
in  the  word  '  naturalem  i*  becau.<ie  he  owes  no 
other  alkgiance  but  that;  it  is  sufHcient  if 
that  be  put  in  whieh  shews  its  being  ngainst 
h\9  allegiance.  If  they  could  shevv  that  a 
subject  born  has  two  allegianres,  one  that  is 
naiuralpand  the  other  that  is  not  natm-al ;  then 
if  you  would  prosecute  him,  you  must  shew, 
whether  it  was  against  his  natural,  or  against 
his  other  allegiance.  But  whrn  he  has  none 
but  a  natural  allegiance,  certainly  against  his 
allegiance,  without  putting  in  natural,  will  be 
well  enough.  It  is  true,  where  there  is  no  na- 
tural allegiance,  it  must  be  wrong  if  you  put  it 
ID,  because  you  put  iu  thatalle^uiiu:«  ^Uv^k 


8  WILLIAM  III. 


Triml  of  Charles  Crmihurne^ 


I 


he  iloe^  liot  owe  ;  but  where  he  is  a  suUjcctborti, 
to  fHH  ill  iiaturul  Lic^e-Iorij,  there  is  no  grouud 
at  uU  lor  it;  there  are  words  enow  that  sliew 
it  was  against  his  allegiance  to  his  biwfu) 
ajid  uudiJitljte*!  lord. 

L,  CJ.  Lrfiok  vou.fiir  Bartholomew  8iiower, 
ho%v  does  it  appi'ury  that  these  uieu  are  subjectii 
J>orn  f  The  metier  yuix  go  upon  does  not  B|i- 
pear  hjjoq  (lie  indictment,  and  you  are  not  to 
ijo  rttf  trom  lliat. 

Sir  B.  Sitowcr.  Every  man  is  presumed  to 
\  be  80,  unless  tlie  contrary  appears. 

L.  C*  /.  Yoii  quote  Caivia*s  Case,  and  the 
oilier  ca!»es  that  are  there  put ;  those  are  all 
cases  of  aliens;  there  is  Dr  Lopez's  Case:  he 
hein^  au  alien  comes  into  England,  and  coin- 
luits  high-treason  :  why,  say  they,  how  shall 
we  indict  this  man  ?  We  cannot  say  it  ia  *  contra 
*•  Naiumlem  Do m mum  sutim ;'  for  he  owes  no 
natural  allegiance  to  the  queen  of  England ; 
how  shall  ne  do  to  frame  a  good  indictment 
ag^ainst  this  man?  They  considered  of  thisj 
and  they  said  it  will  he  a  good  indiclmeut,  to 
charge  htm  with  high-treason,  or  any  one  elsc^, 
leaving  out  the  word  *  Naliiralem:*  For  if  it 
appear  he  ha<i  cimimittetl  an  offence ai^ainst  the 
laws  of  the  kiog^doni,  and  against  the  duty  of 

this  allegiance,  which  h  high  ti-eason,  that  is 
enongfh*  ^ow  as  to  Tucker*s  Case,  It  was  re- 
versed for  want  yf  the  conclusion,  *  contra  De- 
*  bitum  Ug'eantia;  sua?.*     Thoise  words  arc  ma- 

I  ferial  ;  for  let  the  oifcnce  be  nevtT  so  much 
tt^ainstthe  person  of  tlie  king-,  as  to  assassinate 
him,  or  levy  war  a^ain^l  hihi,  yet  sliU  if  it  be 
not  against  the  fhity  of  his  alle^iducc,  as  it 
cannot  be  if  he  owt^s  him  mine,  it  is  not  ht^h* 
treason.  And  therefore  if  it  be  againi!il  his  al- 
lr;fiance,  whether  that  allegiance  bo  natural  or 
local,  it  IS  ail  one,  it  Is  euough  to  moke  it  high* 
tfttuon. 
Sol,  Oen,  In  that  case  in  Dyer,  ihey  nht^w 
where  it  was  a  fault  to  put  thewoid  in,  but 
tliey  can  she\f  U4»  caKC  where  it  has  bei'u  ud- 
judt;e<l  lo  be  a  fault  to  leave  the  word  fiut, 

L,  C  J\  No  doubt  it  would  be  a  fjiult  lo  have 
that  in,  *  Contra  Naturalcm  Dominum  isuum/ 
where  iheie  is  oidy  a  loia!  allegiance  due, 

Mr,  Vhipps,  ifuw  di^es  it  wppear  whether  it 
is  the  one  or  the  other  that  is  due  ? 

L.  L\  X  It  is  no  maltci  whether  the  one  or 
tilt'  utlier  do  appear,  it  is  hi^h-treason  be  it  the 

I  one  or  the  other,  if  it  be  against  the  duty  of  \m 
alk-q-iance. 
Mr,  Phippt>  Nuppoii^  au  indiclment  against 
an  alien  were,  '  Coniru  Natunilem  Dominum.' 
JL-  C.  /.  That  would  be  ill,  because  then 
you  liad  laid  it  more  specially,  and  otherwise 
than  really  it  is,  and  restrained  it  where  you 
ou^ht  not" to  doit. 

Sir.  Phipps,  How  then,  ray  lovd»  shall  it  ap- 
pear that  lie  onfy  owed  a  local  obedience  ? 

IL.C.  J.    It  may  be  given  in  evidence,  that 
he  is  an  alien  Unu, 
Sol,  Gen.    lie  may  plead  it  in  abatement  to 
the  indictmsnt, 
X*  C*  J.    He  ought  to  be  acquitted,  for  you 
ktve  indicted  hiiu  of  a  criine  against  his  natural 


allegiance,  when  he  owes  no  such.  Bui  altc* 
giance  generallj  coa>prehends  all  sorts  of  nU 
leg^tance,  natural  and  locaK 

8ir  B.  Shou'cr,  Ho*v  then,  my  lord,  come  att 
the  lawyers  of  all  ages  to  put  in  those  wiird»ii]K 
indirttuents  of  high-treason  against  subjecisi 
born  ? 

L.  C.  X  No.  I  have  seen  abundance  of  priH 
cedents,  that  have  only  *  Contra  Ligeantisf  sun 

*  Debitum'  generally,  and  so  the  tnost  part  are 
for  allegiance  is  thi*  genu^,  and  if  that  l*e  sug-, 
gestedj  all  the  iijHi^ies  are  contained  iindtrr  tUat«' 

Alt,  Gen,    Well,  have  Ihey  any  inore:*         , 
Sir  B.  Shotrcr.    Ves,  we  ha%e  more.  j 

L.  C.  /.  Well,  you  shall  have  them  all  in 
lime. 

Sir  B.  Shou.cr,  My  lord,  here  is  another  ob- 
jection, and  that  is  thi^ :  Here  is  one  Ihct  tb«t 
they  have  laid,  and  that  is  the  second  overt- 
acL  in  this  indictment,  that  tliey  conaeoted 
agreed  (hat  40  men,  (whereof* these  four  w 
to  he  four)  hut  do  not  lay  it  to  be  done  trailof: 
ously.  They  9>av  *  Consenserunt,  agreaven 
^  et  assenscrunt,^  hut  not  *  proditorie  f  anil 
never  saw  an  indictment  that  laid  an  ex 
overt-act,  without  repeating  the  word  »_ 
If  your  lordship  pleaBics,  the  words  in  the  ii 
dictment  are  thus  ;  as  to  tlie  first  overt 
is  laid  in  this  manner;  *■  Et  ad  execi 

*  assassin  at  ioncm  illnm  cx^uend.'  ut 
time  and  such  a  place  *  proditorie  tractaverua^ 

*  proposuerunt  et  Consultaverunt  de  vii£  et  i 
^  dis  mediis,  (S:c/  and  tlien  comes  this  whie 
we  except  against;  '  etcoosensenmt,  agiemfi 

*  runt  et  assenserunt  quod  quatlragiuta   Ho 
*■  mines,'  6:c.     Now  this  is  a  plain  di^unet  i 
and  tiiere  is  no  *  pruditorie'  to  it ;  and  if  ef  ^ 
they  can  slicw  me  any  indictment,  in  which  \ 
overt-act  was  laid,  of  which  they  ga^re 
evidence,  and  it  liad  not  the  word  '  prouitotj 
in  it,  1  am  very  much  mislaken.     I  am  i 
nevcir  saw  any  isuch.     And  it  is  not  i 
say*  ihat  the  nature  of  the  thing  is  sue 
that  it  cannot  hut  be  a  treasonable  act; 
they  must  alkdge  it  to  be  ho,  by  liie  express  i 
of  that  word  w  liich  the  law  has  appointed 
express  this  crime  by.     In  the  ca^^e  of  an 
dictoient  for  felony,  if  it  l)e  not  s;iid  felony,  it  j 
not  g^uod*    They  are  not  to  describe  tfi 
circumlocution,  which   is  a  particular 
fixi  by  law,  the}'  must  use  the  verba  arii 
terms  of  art,  and  no  other  i  if  your  lor 
plea!«es  it  may  he  read. 

SoL  Gen,   Let  it  be  read  if  you  please  j 
take  it  in  English,  and  ii  is  no  more  than  I 
thej  did  Irailnrously  compass  the  death  oft 
king,  and  for  that  purjwse  they  did  Itaitottiui 
meet,   and  consult  abtjut  the  wa\s  and  mo 
and  did  consent  and  agrt^e  that  forty  men, 

C/.</ Jr.  Reads;  sEt:-'^-- 
'  rendam  et  Det»^stabilem 
^  glise  A&iiassinaiion,   et   .i..v...--« 

*  Citius  exequeiidutn  ct  anno  ac  Divers 

*  Diehus  et  V  icibns  apud  parochiam  pr 
*■  ill  Comitatu  piudicto  proditorie  tractaveruiil 

*  propostierunt  et  ConsuUaverunt  d,e  viis  i 

*  et  mediiB  ac  Tempore  et  Loco  ubl  quaii 


Vr 


for  High 

^  ftidliler  et  <)UOfDndo  Dictum  Doaiinn  na  Repeal 
*  sic  e%  m^ditd  facilius  Interticerpnt." 
SrJ5.  Shower,   There  is  an  end  of  that,  now 

Aft.  Gin.  No,  sir  Burthnloniew,  yon  mis- 
Itkr,  there  \9  no  end  of  h,  that  ia  done  at  the 
tmm  tiiDf^  with  that  wkiich  tbibws. 

Sr  B.  Shauer,  No,  it  is  oot  iJie  same  overt- 
Mi;  but  Irt  bim  ^o  on. 

€L  tf  Ar^    *  Et  Cons^iiscrtint  Apfreaveruiit 
*fi  A^os^ruiit   (jutxi   ijuariraginla    Homines 
"       lTe«.* 

'  B.  Shotrtr.  Weill  vou  DWil  read  no  fur- 
'  for  our  objection.  \Ve  say  there  wants 
t^mir4  *  Proditone:*  for  there  are  tvvo  uvf^ii 
Kts  lh^  oi>e  is,  that  they  Iraiioroiisl y  did  coii- 
iulld^the  ways  and  means  haw  to  kill  the  hioj^, 
iad  that  ovnt^act  we  agree  to  he  vrell  luid : 
fcni  i'  -  they  consented  and  agreed  Ibiit 

lfc«»'  lie  fort)'  raeu,  whereof  thciie  four 

ilmAk  be   four,  bat  do<*8  not  say  they  Iraitor- 
•i^  iigreed ;  a/>e  not  these  distinct  acts  * 

m.  Phipps.  Surely,  my  lord,  they  are  dis- 
^ikta4:tf  ;  for  this  part  of  the  bidictment  upon 
vfaidi  ttir  BariholoEnew  grounds  hh  objection, 
It  tint  overt  <  act  of  whkb  the  iist  in  Mr.  K<*ok- 
mmd^  Case  was  ui^'ed  by  tbo  king's  roiSusel, 
md  agreed  by  tlie  court  to  be  an  evidence. 

Tbeo  the  jury  against  Mr.  Hook  wood  t^ame 
^  %  aud  deb? (tred  in  their  vejdiet,  as  it  is  in  his 
H  ttmi^  then  allerwards  the  court  wetit  on  thu^ : 

^L^i^G^n.     My  lord,  the  objection  is,  that 
^HHHbie*  is  not  inserted  into  that  |ninif  nlar 
^^mt^nt  the  indictment,  which   shews  thdr 
fOti  f  ment  that  there  bhfmhl  he  <brty 

•m,  ihe  four  named  in  the  inditinirnt 

•WvUibefuur  Now  your  lordshlji  observes 
itov  the  indictment  nm<i^  it  is  for  €onipas«ini^ 
io^wairintn^r  the  d^^aih  and  destruction  of  the 
fi  aft*i  »i  >ietB  forth  for  this  parpuse^  thai  to 
compassing  and  imag^inUig',  they 
iraetdverunt  et  consiiUaierunt  ife 
fn  Modis'  bow  theyshoithl  kill  the 

^at  which   immetl lately  follows 
i>,  tji**  ^mrlicular  method  and  means  that 
verc  agreed  ujwn,  that  is,  t!iat  there  sliould 
befbrty  men.     Now  this  is  the  strangest  sojr. 
'911    that    ever   was,    when  we    have   lict 
^  fiiai  fi  iljoniusly  they  did  so  afjree  of  the 
•i,  anf]  then  set  forth  the  parti- 
tbat  here  must  he  *  proditorir* 
ai.     Thia  is  such  a  construction  us 
nt  adoiire  how  it  couhl  come  into 
Wf  UQcV  head.     It  iif  part  of  the  sentence  ;  tor 
ilMotber  part^a<?  we  have  laid  it^  i^  not  com-  ' 
ylBia  before:  it  may  be  it  might  be  sufficient 
;  setting'  forth  the  finrttculnr  waysi  and 
but  when  it  is  set  forth  it  is  part  ot  the 
bt  iuid  refers  to  the  tirst  begin i&ing^. 
-L  C-  J.    Aye,  sure  it  does. 
Ait,  Gen,  'I  caunot  tell  what  they  vi  onld 
Wn^,  unless  ibey  would  have  us  repeat  the 
•wrt  *  proditone^  in  every  line. 
StiL  ijcii.    Or  before  every  verb* 
Ifcr  U.  Shmctr.    So ;  but  I  think  it  oyght  to 
N  npcileil  tt  erery  overt-act. 


A.  D.  1696. 


[■ 


sio 


[  Mr,  Conyfrs,  If  your  lordship  please*:,  after 
I  thai  they  have  set  h^rlh  that  this  was  th^  par- 
ticitlar  method  and  way  ag:reefl  uj>on  at  their 
confvdtfttionf  that  forty  horsemen  or  ihere- 
ahout!i  should  q;o  about  it,  of  wliich  the  per- 
sons indicted  w^r%  to  be  four,  it  goes  on,  *  Et 

*  Quitrbet  eoriim  protliloric  super  se  Suscepit 

*  esse  tmum/  there  it  is-pat  in,  and  it  ajijieari 
to  be  as  particular  as  possible  can  be. 

Mr,  Cofvpcr.  i»u*  Btirtholomew  Shower  says, 
limt  when  we  have  alleg-ed  that  they  did  trai- 
torously treaty  propose,  and  consult  of  the  means 
and  ways  uf  killing*  the  kin^,  there  we  have 
done  the  sentence,  and  ma^le  that  one  overt - 
act.  Now  h(nv  U  the  sfnlence  done?  Tlie 
next  woj'd  is  a  conjunction  copulative,  ^  et  coit> 

*  scoiiferunl,'  See.  And  what  is  the  use  of  a 
conjtinclirin  copulative,  but  to  convey  the  force 
ot^  the  wonls  in  a  fornoer  sentence  to  the  sen- 
tence following-,  and  to  prevent  the  repetition 
of  every  woril  iu  the  suhsetjuent  sentence  that 
wa.s  in  the  precedent?  But  it  is  plain,  they  arc 
both  one  anti  Ihe  same  overt-act,  andth^se'sub- 
5e(|Ufnt  words  are  only  an  explanation^  more 
partictdarly  of  the  overt-act  ^^ct  forth  in  the 
piiet*etlent  wonls. 

H(r  B.  Shower.  In  answer  to  thaNtbat  has 
been  said,  if  they  shew  me  any  precedeni, 
where  aniudiclment  has  lieen  for  rdgh-ireason, 
settingf  Ibrth  several  overt -atts,  and  nut  the- 
word  *  proditone*  bet  to  every  ovt»rt-act,  then 
they  answer  my  ohj*5Ltioij.  11  lb c  word  •  Quod* 
bad  come  in,  that  would  have  made  Iheni  dis- 
tinct to  he  sure  ;  and  I  think  ihcy  are  as  dis- 
tinct aci5  now  *  suppoi^e  they  had  concluded  at 
the  end  of  tht!  word  *  Interficereut/  that  bad 
been  a  good  overt- ntt ;  1  am  sure  they  will 
arfri^e  to  that :  and  if  it  he  so,  then  the  oibcv  ]« 
a  good  oveit-act  too,  For  it  is  n  distinct  thin^ 
friim  that  which  was  a  pert ect sentence  before; 
and  it  either  rei^nires  a  *  likewise,'  or  the  word 

*  proditorie*  most  be  repeated.  They  have  not 
so  much  as  sai«)   *  similiter  Consenserunt/  or 

*  simili  modo  ;*  there  is  an  *  et^  inileed,  but  that 
does  not  ^o  cou[de  the  sentences  together,  as 
not  to  make  them  distinct  acts.  There  arc  se- 
veral '  els*  ibrough  the  vUjole  indi"iment,  hut 
that  does  not,  as  iMr.  Ci*wper  would  have  it, 
couple  all  tojifeiher  to  make  one  overt -act. 

Mr.  Phipps.  My  lord,  if  what  Mr.  Cowpcr 
say «  be  allowed,  (viz.)  that  the  *  et' makes  it 
one  intire  seott'Tice,  tbrn  there  is  no  ovtrl-act 
at  ail ;  for  after  the  treason  alle<;ed,  the  clauses 
are  coupled  to  one  another  by  an  'et,^  und  con- 
sr(|ue4itlv,  by  Mr.  Cuwper^H  way  ol"  orijuing, 
the  ivbole  inilictmcnt  is  but  one  entire  senteiice* 

L.  C  J.  f  do  not  utiderstaod  your  meuning' 
as  to  that;  they  tell  you  *  proditorie*  is  ai- 
leg'ed  to  the  consulting^,  conirivini;  and  ag^ree- 
iiig',  tlien  they  tell  }  on  what  was  the  subject 
matter  of  that  contrivance  and  agrt'ement,  to 
assassinate  the  king*,  at}d  in  order  to  tint  they 
agreed  there  shotdd  be  lorty  men ;  is  not  that 
ffood  enough,  without  *  Proditone*  to  every 
line  ? 

Sir  B.  Shoner,  No,  it  is  tiot  said  in  *  Ordine 
^  ad/  there  is  no  such  iUit^  v  ^^  ^^^"^^  ^^1  ^^ 


231] 


8  WILLIAM  IIL 


Ttial  (ifCharUt  Cranbume, 


[SSt 


\ 


cunBitlt  of  tiie  way*  aod  means,  and  did  agree 
tliat'40  hursemen  titioutd  do  it,  and  ailerwai-dii 
did  8ij:iee  in  provide  horses  and  in^truraenU  of 
^nii'«    Now  ihat  being-  with  a  *  QuodqueV  tlicy 

Kmnktflanew  overt-act;  but  1  caooot  un- 
Und  Hliy   ^  Uuodque'  is  not  as  much  a 

•  C(»j>uUuvt*  as  '  Et,*  and  the  one  should  not 
XiA'v^  Ihe  same  f  flfect  as  the  other. 

L.  C.  /.  Fir*it,  it  letls  you  there  was  a  cou- 
cuU  and  a(r^ri'(>uneat  to  assassinate  the  king;,  and 
for  the  acoompUshnient  of  Uie  said  assassiua- 
lioij ;  at ter wards  *  cisdetn  diect  Anno  Proditorie 
*'  Tractavcruat  et  ConsuJiavenint  de  viis  et  wo* 

•  dii»/  huw  iliey  shoo  hi  kill  the  king. 

Hit'  B,  Shtitfcr,  Thut  is  one  overt- act,  say 
ive,  and  thei  e  yon  should  hio\u 

L.  C  J.  *  tt  Consenserunt  et  Agpreaveruni 
'  qnod  quadra«^int:i  Homines,*  Ike,  it  is  att  at 
lbi»  snme  tirne^  and  must  be  intended  the  same 
consult  and  ronirivance^  that  lliey  consulted 
of  the  ^'£iys  and  nteansi  and  then  agroed  so 
many  men  shouhl  be  provided* 

BIr.  J^hippi,  No,  u»y  lurd,  we  say  that  is 
a&oiber  overt  act. 

L.  C.  J.  Trehy*  It  seems  to  me  to  be  a  spe- 
cifying and  [lariicniarisini;  the  ways  and  means, 
that  I  hey  Itud  consulted  of,  and  concluded  on. 

fcsir  B.  Shorter.  If  it  had  been  a  sjiecifyin:;, 
it  bad  Wen  much  better  to  put  in  either* then 
and  thei^>,  or  tliat  this  was  the  result  of  the 
consultation. 

L.  C  J.  Tr€hy.  It  docs  seern  to  me  so,  that 
U  was  the  nfsult  of  the  consultation,  and  tl  is 
\Yv\i  enough. 

L,  V,  J,  You  had  better  have  saved  these 
kind  of  extt»ptions  till  the  trial  was  over. 

Sir  ii.  Shower,  But,  my  lord,  if  there  W 
vcie  oveit-act  ill  laid^  1  sulnnitit  whether  they 
cflit  ifive  any  evidence  of  that  overt-act. 

L.  C.  J.  rrd>y.  No  doubt  of  Ihat,  they  can- 
not ;  but  we  think  it  is  as  well  laid  as  it  could 
bt!  laid. 

L.  C.  /.  Truly  I  am  not  well  satis^fied,  thot 
it  is  necessary  after  you  ha*e  laid  the  *  P;o- 

•  ditorip,'  as  to  the  jiarticu'ar  treason^  to  Jny  it 
iigain  to  the  overt*act.  For  (he  ovt-rl-aci  is 
but  evidence  of  the  treason  :  the  treason  its^elf 
lies  in  Ibo  compastiing',  which  is  an  act  of  the 

tiuind, 

L.  C  J.  Trihjf.  You  cannot  indict  a  man  of 
treason  for  aN«iiasi»ioating  or  killin^f  \he  kin^, 
but  you  nmst  in  every  such  case  frame  tlte  iii- 
diclmenl  upon  the  ait^cle  fur  cotnpa^^iuu^  unti 
iinaifinTnt^  the  de:nb  of  the  kinj^  ;  wliich  mu^i 
{\e  laul  tH  he  dnne  tniiiurously.  Tlien^  when 
afterMardii  you  say  the  penittn  aceuHtd  diil 
wound  him,  or  iinpri^iau  him,  or  consult  and 
a^rre  to  as>>uSKiuate  hiiu^  or  did  aetiially  assns- 
sinaie  biiUj  ihipse  are  hut  so  mitny  oven- acts  *»f 
c<nmw*sinutlif-  di'alh  ;  and  you  hav.ut;  fir^i  said 
that  Ur  did  ""  Prodiiorie'  cuuipa^s  ttnd  tmujj^iue 
the  kiuji's  death,  you  have  ihi'rehy  sheivn  that 
you  char|(p  him  hiiIi  a  yi eater  otS-ot-e  ihan  le- 
Jooy  (whici^  my  Jurd  Coke  says  is  the  use  td' the 
wiird  '  Pio<*it<»r*ef)  and  that  heujy^  thus  iUmv, 
I  do  nul  a^ip  eheud  it  to  be  nece&'sa.)  that  ton 
should  add  '  Prodttonta'  to  all  this  rest  4>f  the 


following  particulars;  for  they  are  only  ex- 
teroal  discovt  rit^s  of  the  inwurd  ireasuu  ;  and 
more  properly  deemed  to  be  evidence  of  lhe< 
treason,  than  to  he  the  treason  iiself, 

Z.  C.  X  Tiie  treason  ti  ooosuminate  in  th# 
intention  ;  besides  the  words  ol  th«  staial 
make  that  the  treason,  not  the  overt^act,  thai 
is  but  evidence,  and  su  it  uas  lield,  (not  u|iua' 
this  exception,  hut  ui^ui  the  reason  that  my 
lord  speaks  ot)  in  the  Cuse  of  the  Regicides  of 
king  Charles  the  First,  That  the  indict 
should  not  he  ft>r  killing  the  kin^,  but  lor  com 
passing  and  imagining  his  death,  and  the  kilt 
mg  was  alleged  as  an  overt^acL 

iSir  B,  Shtmer,  It  tnust  be  so  if  it  were  fnr 
levying  of  war, 

L^  C.  J.  Most  true;  for  levying  the  war  ii 
the  treason  ;  hut  in  this  case  we  think  tt  isnl 
exception. 

Ail,  Gen,    Then  let  us  have  the  Gfih. 

Sir  iJ.  ShofL^r.    Then,  my  lord,  here  m 
ther  thing.     It  is  a  question  wheiher  thert 
any  overt^act  prcsenteil  by  the  jury  at  alh 
indictment  says,  ^Jurauurspro  Uoinioo 

*  praeseniaut,*'  that  I  hey  as  false  trail 
ciimpftss  the  deatli  of  the  ktoii  aud  the  sk 
of  his  subjects,  and  they  did  meet,  and 
and  agree  how  to  do 'it,  *  Ht  iidem  Cii 

*  phor us  Kntghtley'  and  the  rest,  to  fnltit  liiflf 
said  traitorous  inlenltons  and  imaginations diiJi 
aflrr^i ard'^,  the  lOlh  of  February,  buy 
ami  horses.  Now  our  objection  is,  Tl 
does  not  appear,  that  any  one  of  th 
acts  are  the  presentment  of  the  jury  ;  h» 
niissiim  they  oug'ht  to  have  bi^f^uo  it 
eiiher  with  a  *  Uutwlque,'  or  somethi 
should  ba^e  rt^ferreil  it  to  the  first,  *  Jui 

*  praasentun!,*  or  else  ihey  must  have 
quite  again,  with  a  *JurHlore»  Uheri»is  pr»; 
»  sentant,*  and  not  have  coupkni  iheit*  as  thii-^ 
is  with  an  *  Et.*  The  mO!»t  lorins  begin  wttll 
an  *  ullertu!ii  prtesenitirt,'  but  here  we  find  00 
overt-act  is  so  introduced.  They  might  pre*, 
sent  part,  mud  not  pre^^ent  the  other  |mrt,  f 
any  thing  that  does  appear.  Every  i' 
ought  to  be  laid  positively,  11s  the  jury 'a  «hetii«h 
it  may  I)e  only  the  cleikS  saying,  and 
jury's,  lor  any  thing  that  does  appear. 
liirdslH|»  remetnberti  the  case  *>i  tlie  ki 
Troljrid!;t\  upon  a  Writ  of  Error  t#  reverse 
liulgmeut  lor  L't eiting  and  continuing  a  civti 
agftiuNLihe  hn  m  of  the  ststuie;  now  *  Coi>tii 

*  IriiiiiHni  SiatuiL^  uas  in  the  beginning  ol 
indicuiient,  bnt  not  in  the  couclusion  ;  to  thi 
erct'iing  but  not  the  t'ontmiiing.  And  ibotii|^ 
there  uas  there  '  Juraiorrs  idterius  dicunt/ 
Wds  not  *  iiUpf  r  Sut^ninieotum  sunm/  and  tli 
did  not  aaVt  he  did  continue  it  against  the 
tute  ;  and  there  being  no  hirmul  presenin 
ilial  he  maintaiued  tliL*  cottage  noLwhhstamtii 
the  act,  ^  Et'  did  lAUt  so  cou^ile  it  to  ibr 
l^art,  us  til  mnke  it  a  gooti  presentmvnt.  8^ 
we  Scjy  in  iUlh  case,  thi» is  a  tault,  aul  ilitlWeoli 
I  torn  nil  the  common  forms;  thiMe  ougut  •• 
be  a  diref  t  presentment  of  each  ovfitact, 
not  toupJMl  by  an  *  EC  For  *  Lt'  wdl  not  d^ 
It;  tor  It  is  a  distiact  overt* act  cf ery 


£3SJ 


for  High  Treason. 


sbAald  bare  bera  '  El  quod  Consul tavenint, 
•qiKKkfue  Ai;rem«eruut.'  that  a  certain  nil iiiber 
fbiHiId  do  so  and  iio ;  and  to  be  sure,  it  should 
bite  been  «o  at  the  last-overt  act,  which  is 
mIv  *  El  lidem  Christopborus  Kni^^htle)','  ^cc. 
did* buy  arms  and  horses.  Nutv  this  last  '  Et/ 
btug  a  hMMie  voojunctioii  copuative,  in  com- 
■oa  sense  oug'ht  to  refer  to  that  which  they 
bal  a^TPeil  upon,  tor  that  is  last  inentioneil 
ibere.  and  tbe  iiilural  sense  leads  thither,  and' 
Mktttbe  lieginningof  the  bill '  Juratores  pre- 
*iattiiquod.' 

Ik.tkippM,  I  shall  not  trouble  your  lord - 
^  farther ;  they  ought  to  hare  put  in  a 
•fMqae,*  or  an  •  Ulterius  piasentant.' 

Alt,  Gen.  Where  would  you  have  tbe 
'  Qasdaue,'  or  the  •  Ulterius  pnesentant  ?' 

Nr.  rhipp8»  Either  to  every  overt- act,  or 
tf  Inst  to  that  last. 

Ait,  Cen,  The  indictment  sets  forth,  that 
Ibr;  committed  such  and  such  a  treason :  their 
^^jnsB  is,  tbat  *  quodque'  is  not  put  into  every 
Sfiati;  and  our  answer  is,  that  the  first 

'fMrf*  fovems  all  that  relates  to  tbat  treason. 
kaof  be,  if  there  were  too  distinct  treasons  in 
AtUctnieDt,  when  von  come  to  set  forth  tbe 
-nand  trg—oPy  you  should  say  *  Juratores  ul- 
'Ins  pnesentant'  the  second  treason ;  but  the 
•Nil-Mts  to  proTe  the  same  treason,  are  all 
pvlisl'that  treason,  and  make  bat  one  species 
tf fenaan,  which  is  the  imagfiniog  tbe  death  of 
fclai^.    There  is  the  treason  ;  and  to  bring 
illi  fasi»  they  did  so  and  so :  this,  roy  lord, 
■■Hhe  part  of  the  finding  of  the  jury  as  well 
m  the  treaaon  itself,  of  whit;h  these  are  the 
yi  ilia.     Bot  then  if  yon  will  lay  the  levy- 
■C^w  in  tlie  same  imlictownt,  then  it  may 
li^  aost  say  *  Juratores  ulterius  prasen- 
*M  amd,'  &c.    But  it  bad  been  a  strange 
iiaM^  to  aay,  '  Juratores  ulterius  praesen- 
'^'sQch  and  such  overt-acts:  for  the  overt- 
Mis  aat  a  further  indictment,  but  only  a  set- 
laigftsth  tbat  which  is  evidence,  upon  which 
IhM  fcnod  the  indictment  for  treason. 

ML  Gen.  "What  the  indictment  says,  is  as 
4rci  affimuOioD  as  can  be  all  along  of  the 
pascataaent  of  tbe  jury,  that  tbe  orisonerand 
tfbers  did  compass  and  imagine  tne  death  of 
lbs  king ;  and  to  bring  it  about,  they  did  con- 
aritlngelher,  and  did  agree  to  make  use  of  such 
■d  auch  means,  and  were  to  have  a  party  of 
40  BeOv  and  they  bought  arms  and  horses. 
Kow  it  does  not  repeat '  quodque,'  or  '  ulterius 
'  pwsentant  quod,'  to  everv  one  of  those  sen- 
Ince*,  that  tbey  did  so  and  so,  and  tbat  tlicy 
Ai  so  and  so.  Now  I  would  fain  know  tlie 
tferrace  between  saying,  and  they  did  such  a 
Aiag,  and  saying,  and  that  they  did  such  a 
ttiof.  Tbat  is  all  the  difference  that  tbey 
thiBk  to  ovcrtanf  this  indictment  for.  The 
imiiting  of  a  '  Juratores  ulterius  pnesentant,' 
aartainly  is  notliing ;  for  tbe  first  presentment 
laas  through  the  whole  indictment,  and  there 
4ta  not  n«d  an  *  Ullerins.' 

Sir  B.  SkoKtr.  Certainly  there  ahould  have 
ban  a  '  dnodqueP  at  kaat. 

L.C.J.  No,  UHlaadi  I  thud^ it ii better aa 


A.  D.  169&  [834 

it  IS,  than  a^  you  would  have  it ;  because  the 

first  *  Qu(»d'  goes  tliro:i{{-h  tiie  whole.  That  in 

onler  thereunto  he  di'i  «<o  and  so ;  would  yon 

.  have  it  said  *  et  qno'l'  in  order  thereunto  he  <hd 

so  and  so ;  bii  though  that  may  be  good  sense, 

'  1  think  it  is  not  so  jGfood  as  the  other.    This  in- 

'  dictinent  is  lur  one  surt  of  treason,  and  ibat  is, 

i  for  conipaiwin^  the  death  of  the  kinif :  and  it 

,'  is,    1  think,    more  proper  to  have  but  one 

*  Uuod,'  than  to  have  murt' ;  for  it  makes  the 
whole  indictment  more  entire.  As  to  the  *  Ju- 
'  ratores  ulterius  preesentant,'  tbat  is  never 
proptr,  where  the  species  of  treason  is  the 
same:  fur,  indeed,  if  there  bad  lieen  two  dis« 
tiuct  treasons,  the  one  for  compassing  tbe  death 
of  tbe  king,  and  the  other  for  levying  of  war, 
in  that  ca^e  you  must  hx'iufr  it  in  by  *  ulterius 
*'  pnesentani :'  because  they  are  two  several 
offences,  though  comprised  in  one  bill,  and 
tlu'y  are  in  law  as  two  indictments.  And  so  it 
is  in  the  case  that  you  mentioned  of  cottages : 
it  is  one  offence  to  erect  a  cottage,  and  another 
ofFence  to  continue  a  cotta^^e,  and  tbey  are  to 
have  several  punishments ;  and  because  they 
there  jumbled  them  both  together  in  one  in- 
dictment, that  indictment  was  held  to  be 
nought :  for,  by  law,  the  indictment  for  erect- 
ing a  cottage,  ought  to  conclude  *  contra  for- 

*  mam  Statuti ;  and  then  the  jury  must  begin 
again,  *  et  ulterius  prseseotant  quod'  tbe  cottage 
was  continued  against  the  form  of  tbe  statute : 
because  they  are  several  offences.  But  here 
the  bigb-treason  is  but  one  and  tbe  same  of- 
fence, and  the  other  things  are  but  overt-acta 
to  manifest  this  tre&i»on,  the  compassing  tbe 
death  of  the  king;  and  truly,  1  think,  it  is  bet- 
ter as  it  is. 

Mr,  I^hipps,  I  have  seen  several  precedents 
of  indictments,  where  the  several  overt- acts 
were  to  the  same  bigh-treasou,  but  still  they 
had  each  an  *  ulterius  prseseutant.' 

Alt,  Gen,  I  believe  it  is  hard  to  find  many 
indictments  in  tbe  same  words:  I  am  sure  all 
are  not. 

X.  C.  Baron,  (sir  Edward  Ward).  Is  it  not 
as  great  an  affirmation  to  say,  and  they  did 
such  a  thing,  as  to  say,  and  tbat  tbey  did  such 
a  thing? 

L.  C.  J.  I  cannot  reconcile  it  to  my  reaaon, 
but  it  should  be  as  good  sense  without  *  that'  aa 
with  it. 

L.  C.  J.  Trebtf,  In  a  long  deed  it  begins, 
*This  indenture  witnesseth  tbat*  tbe  party 
granted  so  and  so,  and  the  party  covenants 
3ius  and  thus ;  and  so  it  goes  on  commonly, 
without  renewing  the  wonl  *  that'  to  tbe  sub- 
sequent clauses:  but  yet  the  first  expression 
(This  indenture  witnesseth  tliat^  governs  the 
whole  deed,  though  it  be  many  skins  ol'  parch- 
ment. 

L,  C.  J.  If  yon  begin  with  an  indentore,  yoo 
begin,  That  it  witnesseth  so  and  so;  without 
renewing,  unless  it  be  a  very  distinct  thing. 

Sir  B.  Shower.  My  loni,  we  think  that  simi- 
litude makes  for  us.  A.  B.  covenants  so  and 
so  in  a  oonfeyance,  and  then  further,  that  so 
and  80. 


I 


S  WILLI  A  \r  IIL 

'  L.  C  J.  But  there  you  fe«tritin  thai  in  ihe 
beginning'  of  tlie  covcuatjt  to  every  particular 
in  that  covenant. 

An,  Gen,  Will  your  lordship  please  to  cull 
ihciury  now? 

L.  C.  X  Have  you  a  mind  to  go  on  with  the 
trials  or  la  go  in  ilmner? 

Att,  Gen,  I  MitJfe  your  lordship  can  try 
but  oQe  more  to  uiy^lu^  km\  that  may  he  us  welt 
after  iliuuer  ns  before. 

L.  C.  J.  Well,  ilieot  adjourn  till  five  o'clock, 
and  in  tlie  mean  time,  you  keeper,  knock  off 
»U*r  prisoner's  fetters. 

Keeper,    They  shall,  my  lord* 

Then  the  Court  adjourned  till  five  o^clock  in 
the  atlernoon,  tt  betug  thea  about  three. 

Post  Meridiem,  the  2lst  of  April,  1696.  The 
Court  returned,  and  was  resumed  about 
SIX  in  Ihe  Eveuing* 

Ci  ofAr,  Keeper  of  N'ewi^nle,  hrin^  Charles 
Cranbiirnc  to  Iho  har,  (Whicli  was  done). 
Charles  Cranhttrue^  hold  up  thy  hand.  (Wliirh 
he  did).  Those  good  men  that  you  ah  all  hear 
called  and  persoually  appear,  are  to  pass  he- 
iween  our  ioveiet^n  luv*!  llie  kin^  and  you, 
upon  trial  of  your  hie  ajid  death  ;  and  there- 
lore  If  yon  will  chalU^jig^e  theni  or  any  oi'  theui> 
your  Utoe  is  to  %^isk  imt^i  them  as ihey  come 
10  Uit'  book  to  be  fiworu,  and  before  they  he 
sworn. 

Cranbmn>f,  IWy  lord,  I  hunitly  desire  I  m^y 
have  pen,  \i)k%  %nd  paper. 

CquH.    A)r»  five.     (Hehadlhem) 

€L  ff  Jr,    \\  here  i*  George  Ford  ? 

Cf*Siei\    Vous  avez. 
Vrntth,    1  challenge  hlrn. 
%ofAf\    William  Underhil. 
Cranh.    I  challenge  him, 
ffCl.ofAr.     Wilhaiu  Withers, 

[Jrfl«6.    I  challengii  him. 
Ir.  Phipps,    If  your  lordship  pleasesi,  those 
that  were  of  the  last  jury  I  hop*?  shall  noi  be 
called  of  this  jury ;  tjiis  prisoner  heia^  tried 
upon  the  same  indictment  the  lust  was. 

X,  C.  J.  If  thty  be  not,  it  shall  he  in  ease  to 
them,  but  U  Is  not  ui  favmu'  of  you. 

Mr.  F  hip  pi.  We  humbly  conceive,  having 
given  their  verdict  upon  the  same  indictment, 
they  are  not  such  indiftercn  t  persons  as  the  law 
intends  til e}^  filioiiUl  he,  mid  thiuk  it  is  good 
rcajon  they  should  not  serve  upan  this  jury. 

L,  C*JJ^  What  ihnugh  it  be  upon  ihc  same 
indictment  ?  The  evidence  is  not  the  same ;  for 
tbey  are  distinct  olfenc^^s. 

Mr.  Phippi.  I  do  nut  know  ulielhcr  it  he  a 
good  cause  of  challenge,  but  submit  it  to  your 
lordship. 

L,  C.  J,  Well,  you  may  doubt  of  it  if  you 
please,  and  try  tbeWceptiuu.* 

*  8ee  the  seventh  Resolution  lo  the  Case  of 
Ihe  Regicides,  ante;  and  Peter  Cook's  Case 
tn  die  same  year,  infra]  and  L#cach's  Haw* 
king's  Pleas  of  the  Crown,  hook  2,  chap*  43, 
seel.  29.  i 


T. 


Trial  qfChnri^s  CrSHhuitet 

CL  of  Ar.  Thomjiit  Tr'^nch. 

Cronb,    l  challenj^e  him. 

CLo/ylr.    John  Wolfe. 

CrttnL    i  challuni^e  him. 

CL  of  Ar,   James  Bodiugtoti* 

Crank    I  chaUenge  him. 

CI.  nf  Ai\   Jonathan  AadrewR.    {lle4lidtiQi 
appear.)     Jnhii  Rnymond. 

Crunk    I  chaHenge  him. 

C/.  of  Ar.    GefTTf^e  Hawes. 
'  Cranlt,    1  challenge  hiui. 

C/.  of  Ar,    Francis  Barry, 

Crunb,    1  challenge  him. 

CinfAr.    Arthur  Bailey, 

Crank    1  challenge  him ;  he  was  upon  ill 
last  jury. 

L.  C.  X  Tliat  is  no  reason  i  will  you  ch 
lenge  him  peremploiily  ? 

Cranh.    1  do  challenge  htm. 

CL  ofAr,   John  Caine, 

Crank    1  do  not  except  againU  hini* 

CL  of  Ar.    Hold  Mr.  Caine  the  hf>ok,  cary 

Crycr.    liOok  upon  the  prisoner.  Sir, 
shall  well  and  truly  try,  and  true  delir 
make  between  our  so?crcign  lord  the  king  i 
ihe  prisoner  at  the  bar,  whom  you  shall  hi 
iu  cliarg^c,  arid  a  tnii*  verdict  give,  accordingi 
your  evidence,  so  help  you  God. 

CLnfAr    Thomas  Glover. 

Crank    \  challenge  him. 

CL  of  A  r.  Doru I  er  Sheppard .  (  H  v  1 1  id  I 
ap(ie4ir.)  Ceoige  Tredway.  (He  did  noi  i 
peur.)  Matthew  Uateman.  (|{e  did  not  i 
|»ear.)    Timothy  Thornbury. 

Cranb.    J  challenge  him. 

(7.  iffAr,   Jarn^s  Part  he  rich- 

Crnnb,    I  challenge  him. 

CL  'ifAf^  Thtunas  Freeman,  (He  did  i 
appear.)     Ro licit  Biedou. 

Cnmb,  t  do  not  except  against  him.  (E 
WAS  sworn,) 

a.  ofAr.    Joseph  Blisset 

Crank    I  chalk'oge  him. 

CL  ofAr.     TimoUiy  Laimo,     (He  did 
appear  )    John  Harris.     (He  did  not  appeari 
John  Bil tiers. 

Crank  I  have  nothing  to  say  against  hill 
[He  was  sworn.] 

CL  nfAr*    Richard  Bourn. 

Cranb,  1  do  not  except  against  him,  [H 
was  sworn.] 

CL  ofAr.  George  Carti>r.  (He  did  not  ap 
pear.)     Franris  (.hap man. 

Crttnb.    1  challenge  him. 

CL  of  Ar,    AlexanikT  Forth. 

Cranb.    1  challenge  hi  in. 

CL  lifAr.    JNiicholas  lioherts. 

Cmtih.  I  have  nothing  to  say  agaiost  bifl 
[He  was  sworn.] 

CLof  Ar.    Ti  1 0  mas  PI  ay  stead . 

Crank    I  challenge  him. 
'  CL  o/At\    Wjlham  Atlee. 

CranA.    I  chiillenge  him. 

Cf,ofAr,  Johu  3larsh.  (He*  did  not  ap| 
pear.)    Anjre^v  C«j«ik. 

Cnmb.  I  do  not  except  against  him.  [I 
was  sworn,] 


k 


fol^  High  Treason. 

\r.   John  lUU. 

I  challenge  him. 
(r.    William  Partridge. 

I  challeoee  him. 
Ir.    Peter  Lerigne. 

I  cliailenge  him. 
\r.   Thomas  Moody. 

I  challenge  him. 
!r.    Richard  Belinge. 

I  challenge  him. 
Ir.    Thomnai^vaiLs. 

J  do  not  except  against  liin.    [He 

"•] 

(r.    Thomas  Ramage. 

I  have  nothing  to  say  agaiust  him. 
iwom.l 
[r.    Edward  Townseod. . 

I  challenge  him. 
Ir.   WilKam  Guoson. 

I  cliallenge  him. 
[r.    Philip  Wightman. 
i  say  nothing  against  him.  [He  was 

Ir.  John  Wyboamc. 
S&over.   I  hope  3'ou  take  an  account 
UengeSy  Mr.  Hardistey. 
.  Nay,  you  should  take  care  of  the 
I,  who  are  his  coousel :  if  he  had  no 
ra  would  take  care  of  him.* 
Here  is  Mr.  Wyboume,  what  say 

I  have  nothing  to  say.    [He  was 

Skowcr,    I  hope  your  lordship   will 

'coousel  for  him. 

'.  We  are  to  be  equal  and  indifferent 

the  king  and  the  prisoner:  but  you 

mr  his  counsel  by  |aw,  ought  to  take 

iW  lose  no  advantage. 

Jr,   William  Strode. 

I  bav^  nothing  to  say  against  hidi. 
iwom.] 

Ir.  Dauiel  Bv6e]d.  (He  did  not  ap- 
Icfwunin  Noble.  (He  did  not  appear.) 
labile. 

I  do  not  except  against  him.    [He 
■•1 
ar.  Cryer,  countez.    John  Caine. 

Ar.  Thomas  White. 

Twelve  good  men  and  true,  stand 
I  lod  bear  your  evidence, 
lanies  of  the  twelve  sworn  were  these : 
iiae,   Robert  Bredon,   John  Biltiers, 
Beam,  Nich.  Roberts,  Andiew  Cook, 

Evans,  Thomas  Ramage,  Philip 
an,  John  Wyboume,  William  Strode, 
■tt  White. 

dr.  Cr^er,  make  proclamation. 
•  Oyez.  If  any  one  can  inform  my 
tkiog'itjagtioesdf  Oyer  and  Terminer, 
'•Sdjeaot,  or  the  king's  attorney>ge- 
^  this  inquest  be  taken,  of  the  high- 
Hfereof  ibe  priooner  at  tlie  bar  stands. 

tKsictoIha  Cise  ofDonPantaleon 


A.D.  1696. 


[23» 


indicted,  let  them  come  forth  and  they  shall  be 
heacd ;  tor  now  the  prisoner  stands  at  the  bar 
upon  his  deliverance :  and  all  others  that  are 
bound  by  recognizance  to  give  evidence  agajnjit 
the  prisoner  at  the  bar,  let  them  come  forth, 
and  give  their  evidence,  or  else  they  forfuit 
their  recognizance. 

L.  C.  J.  Mr.  Attorney,  do  you  think  we 
shall  be  able  to  try  the  other  to  night  f 

Att,  Gen,  That  is  according  as  this  holds, 
my  lord. 

L.  C.  J.  T  speak  it  for  the  ease  of  the  jury, 
that  they  might  be  dispatched,  and  not  attend 
another  day. 

Alt,  Gen.  I  doubt  we  cannot  try  any  mora 
than  this  to  night. 

L.  C.  J'  Well,  it  is  no  great  matter,  it  will 
be  but  a  morning^s  work  ;  it  may  foe  too  ffreat 
a  stress  and  a  hurr)[  to  do  any  more  to  night ; 
and  therefore  we  will  discharge  the  jury  for  to 
night,  those  of  them  that  are  not  sworn;  but 
we  will  be  here  to-morrow  morning  by  seven 
o'clock ;  and  therefore,  pray,  gentlemen,  attend 
earlv. 

CL  of  Ar,  Charles  Cranbume,  hold  np.tliy 
hand,  (which  he  did).  You  that  are  sworn, 
lM)k  upon  the  prisoner,  and  hearken  to  his 
cause.  He  stands  ilidicted  by  the  name  of 
Charies  Cranburne,  late  of  the  parish  of  St. 
Paul  Covent-garden,  in  the  county  of  Middle* 
sex,  veoman ;  for  that  he,  with  Christopher 
Knightley ,  late  of  the  same  parish  and  county, 
genUeman,  and  Robert  Lowick,  late  of  the  same 
parish  and  county,  gentleman,  and  Ambrose 
Rookwood,  late  of  the  same  |)arish  and  county, 
gentleman,  the  fear  of  God  in  their  hearts  not 
having,  nor  weighing  the  duty  of  their  alle* 
fiance,  but  being  moved  and  seduced  by  the 
instigatrau  of  the  devil,  against  the  moat  se- 
rene, most  illustrious,  most  clement,  and  most 
excellent  prince,  our  sovereign  lord,  William 
tlie  Third,  by  the  grace  of  God,  of  England, 
Scotland,  Fjrance  and  Ireland,  king,  d^ender 
of  the  faith,  &c.  their  supreme,  true,  rightful, 
lawful,  and  undoubted  lord,  the  cordial  love, 
and  the  true  and  due  obedience,  fidelity  and 
allegiance  which  every  faithful  sul^ect  of  our 
said  lord  the  king  that  now  is,  towahls  liim 
our  said  lord  the  king  should  liear,  and  of  right 
ought  to  bear,  withdrawing,  and  wholly  to  ex- 
tinguish, intending  and  contriving,  and  with 
all  their  strength,  purposing,  desiguinc^  and 
conspiring  the  government  of  this  kin^oom  of 
England,  under  him  our  said  lord  the  king  that 
now  is  of  right,  duly,  happily,  and  very  well 
established,  altogether  to  subvert,  change  and 
alter ;  as  also  our  said  lord  the  king  to  death 
and  final  destruction  to  put  and  bring,  and  his 
faithful  subjects,  and  the  freemen  of  this  king- 
dom of  England  into  intolerable  and  most  mi- 
serable slavery  to  Lewis  the  French  king  to 
subjugate  and  enthral,  the  10th  day  of  Fe- 
bruary in  the  7th  year  of  the  reign  ot  otur  said 
lord  the  king  that  now  is,  and  divers  other 
days  and  times,  as  well  before  as  after,  at  the 
parish  of  St.  Paul  Covent-garden  aforesaid,  in 
the  county  aforesaid,  falselyi  maliciously,  de*v 


tSS]  8  WILLIAM  IIL 

X.  C.  J.  But  Ihere  you  reKtmiD  that  in  the 
heglnniiig'  i^f  ibe  covenaut  to  every  pmticuUr 
in  that  covenatit. 

Alt.  0 en.  Will  your  lordship  please  to  cult 
iJiejury  now  ? 

L.  C.  J.  Have  you  a  mind  to  gpo  on  with  the 
trial,  or  to  go  to  ilinuer  ? 

Att.  Gen,  I  belief  e  your  lordship  can  try 
but  one  more  to  night,  and  that  n\iiy  be  us  well 
After  dinner  as  be  fore. 

L.  C.  J,  Well,  then,  adjourn  till  fire o*ctock, 
and  in  the  mean  iiine,  you  keeper,  knock  oCT 
the  prisaner^s  fetti»rs. 

Ktcptr,    They  shall,  my  lord* 

Then  the  Court  adjourned  till  five  oVIock  in 
the  ifclVemoon,  it  bein^  then  about  three. 

Post  Meridiem.  Ibe  SUt  of  April,  1690.  Ttic 
Court  returneiJ,  and  was  resumed  about 
six  in  the  Eveuiun^* 

Cf.  ^f  Ar,  Keeper  ol  Ncwj^ale^brin^  Charlen 
Cratihurne  to  thi;  liar,  (>Vhich  \\i\K  ilunc). 
iJ  bar  lea  Crnnhurur,  hold  up  thy  hand-  (Which 
lie  did).  Those  good  mm  that  you  h\\\\\\  hear 
calletl  and  jiersouully  appear,  are  to  pas^  be- 
liveen  our  soveieit^n  hird  the  king  arid  yoUi 
upon  tritil  of  your  life  and  death ;  and  there^ 
lore  if  you  will  ihallt^ng^e  ihem  or  any  of  them, 
your  time  is  to  spe^k  unto  them  as  tliey  come 
to  the  book  to  lie  SMroni,  and  before  they  be 
sworn.  /, 

Crunlmrut,  My  lord,  I  humbly  desire  I  iii§Yi  i 
have  pen,  ink,  and  paper.  '  , 

Court,    Ayr.  n  ye,     (He  had  them) 

C/.  (fAr.    Where  is  George  Ford  ? 

Crr/er.    Vous  avez. 

Crnnh.    I  ebatleoge  him. 

Ct,  o/Ar.    William  Underhil. 
'    Crnnh.    I  choJIen^^c  him* 

CL  (yf  At\     Wiihum  Wilhent.  ^ '' 

Cranb,    1  challenge*  him. 

Mr.  Phipps.    If  your  lurdship  r 
(hat  were  of  the  la&t  jtiry  t  Is- 
i-alied  of  tins  jury  :  »!ti^  pri- 
wpon  the  same  '"' 

'x.c.j.  11  ;';; 

them,  built  k  ut^t  ii*  U\' 
Mr.  P  hip  pi.    We  hun»i 


Trmt  qftfi 

a.  qfA 

Ctvnk 

CL^fA 

Cranh, 

Crtmb* 
CL  ifji 

ftp|M!iir«) 
Cranb. 
CL  ^A 
'  Cranb, 
CL  of  A 
Cranb, 
CLqfA 
Crank 

last  jiirv. 
L   CJ 


pivcn  t^if  i( 
ijiey  are  ii 
intends  thtj  [ 
reflion  they  ah  < 


Not  liui 
upon  G( 
are  ;  yn 

i^'tiiltv  0 


%  of  the 

\mn\  the 

J,  «nd  murder. 


lordship, 

LC.J.   W 
please,  luul  If 
f 

•  H^  thf 
the  Re(;i' 
in  the  m 
klna'j/ 


(ir,     a^(ain«»t 
lAxI  tiid  caiivci  with     aod  cad 


eo^tte  the  nation  to  Ij^wIh  the  Frenoh 

f:  tnil  lb**  intlu^tment  set?  forth^  iUm  the 

nwr  nt  the  bar  <JiH  t(»r  ttiin  purpose  »n^t 

bdconAiiit  uiib  st'Tcral  fal^  Iraltons  to  the 

«ri4  g«>%'erii*ii€in»  ol'  the  v%ays,  mnoTier, 

rmeftftft  itow,  aii<i  iIip  time  atitl  place  wh^n 

inri  whf^re  to  tt»iissinal^   the  king';    md  at 

leoglh  tlt«*3r  ti|n*e«(l  that  iorxy  horse  men  shoitld 

|W  logrtb«r,  and  set  upon  the  king"  in  his  coach, 

ii  he  nftum^l  lr«Hfi  nuniini^ ;  some  to  attack 

■j^ccv^cb,  IV bile  others  set  upon  the  -(ifuiiriis. 

^R\)ff  mcitcttnent  rjoes  further  ulmrge  him  with 

^Ffeltoi^  hordes  and  amis,  and  pariicularly  witli 

B  Mrr?iiu»  a   list  ot  the  iissussm«lors  irom  one 

i     %ta»$iner*     These  are  the  particular  thiugfs 

I  in  tl)c  indictment,  and  to  this  indict- 

t  Ue  has  pleaded  not  i^njlty  ;  if  we  prove 

lit  &cl^  gvtiiletuen,  we  do  not  doubt  your 


Au.  Geft,  May  it  please  your  lordship,  and 
ym  ventlcm^n  oj't lie  jury ;  the  prisoner  at  the 
Wf  Charles  Cranbnme,  i«  indicted  for  hi^^h- 
ttWMi.  tn  cAnjpiMi!»iiig  and  iinsifriijHjg-  ibe  ileath 
rfA#  kinjjr,  Ointleoien,  the  overt  -  acts  JJiid 
•  id*  imiictment  to  prove  the  prisoner  guilty 
tn;  that  be  was  at  fieverul  meeting's  and  eou- 
MiHatioBaalKiiit  the  manner  of  puitinpr  thia  de* 
ifA  In  esyecoiion  ;  »t  which  ni«*eting7s  it  Has 
«frt€i1,  ih«t  there  «hotdd  b^  ahiMit  forty  UoiTse- 
■a  rr  ■       prepared,  and  armed  for  that 

fVjKt'  y  did  provide  hcii-fies  and  arms 

^thmx  very  iiiingf,  and  did  agree  to  put  it  in 

(fi«ll»nefi(.  the  endence  that  you  will  hear 

fndUfied  against  the  prie^ner  at  the  bar  wilt  be 

^  tUi  nature  :    You  wWl  henr  iroro  the  wit- 

liva^  tbat  about  Obristniaa  lust,  or  the  be- 

|Ma(  uf  Jafmarv,  sir  George  Barcley  did 

MM  ifw   fro*n   France  from  the  late  kin g^ 

^^Agpk  U>  ^  h<.io  be  was  an  officer  iu  hta  iruartlst, 

^^^^p  on  for  attacking-  the  prince  of 

^^H^p^  \  M)|r  wur  upon  bis  f»erson.     lie 

^^Eiroir«r  MU>nt  thnt  time^  and  several  troopers 

^Vlh«  lAte  kin*r  James's  piards,  to  assiBt  bim 

^BlKat  hartmruutf  conspiracy^  W  hen  sir  Geor^fe 

Bwcky  c«iiie  ovijr,  he  did  acijuaint  with  this 

^  iBMf  a  several   persons  in  £n|>land,    that  he 

itnil^t  proper  to  Ite  accompticei:  wtth  him  in 

k;  pinicaUrly  captain  INirtet,  Mr.  Charnock, 

K  WdJinni  Parky  OS,  and  s**ver?il  othcru  wlio*e 

Biiaai  you   wdi  liear  of,  and  they  had  several 

iMetiiilfv  ubout  it  the  he^iouinj^  of  February, 

ai  capt.   Porter'ft  lodginc^s,  at  the  Nag'ti-Head 

11  Covent- garden,   at  the  Sun  tivern  m  tlie 

luiiid.  at  \Ur  Globe  tavf-rn  in  Hatton  i^arden, 

iiidt^  r   ptsce^  where  tlvey  consulted 

^  wi  ,1    they  mi^,'hl  altenipt  and  ac- 

iJiA  Uoofly  desi^fn. 

en,  you  will   hear,    tliat  at  these 

C' f  ik£»4;.^  a  was  pro|K>»ed,  ihat  they  should  do 

iib^  »iid.ofcade  A*t  the  king^  caine  from  Rjch- 

\  If  hither  ho  used  to  go  upon 

'  rs  were  for  doint^  it  on  this 

"    A  ^  tlicir  opmrons  bcinqf 

:bt  necessary  to  find  out 

the  best  place;  and  in 

they  employed  cupiain  Porter, 


Mr.  Kntjyhtley,  and  Mr,  Kingf  (wIto  was  exe- 
cuted) to  view  the  L' round;  and  accordingly 
thpy  went,  and  pitched  upon  the  lane  betue^o 
Brentford  and  Turnham*^rer»n  for  this  pnr- 
|K»se.  as  the  moat  i-onvenieni  phice  r  nnd  bar- 
ing m\  dune,  they  came  back,  and  g^ave  an  ac- 
count to  those  that  had  appointed  to  niet^t  them| 
to  hear  the  success  of  their  expeililmfs,  t%i  the 
Nat(*»'Head  in  Co  vent- garden ;  and  iu  that 
jdace,  yoti  will  find  by  the  evidence,  tbat  thofe 
pcrsonx  who  \iere  the  beads  of  the  conRpiracyt 
undertook  to  tind  their  several  proportions  of 
lUfu,  for  whom  they  would  uudeilake  that 
would  gn  with  them,  and  he  concerned  in  this 
desij^n.  Sir  Georeje  Barcley  was  to  furnisli 
about  twenty.  He  had  the  command  of  the 
IrooperM  tliut  catue  Irom  France,  and  those 
other  oflTicers  that  came  thence  were  under  him. 
Captain  Porter  was  to  furnish  seven,  Charnock 
was  to  furnish  eig-ht,  .sir  William  Parkyns  iitt« 
lo  furnish  ftve  horses  and  three  men,  and^  I 
Ihiukf  Loivick  %vas  to  lurrush  some  njor<* :  in 
the  whole  niamber  they  i^eckoned  there  sJtoutd 
be  about  Coriy. 

It  will  appear,  ircntlemen,  that  the  prisoner 
at  the  bar,  Mr.  Crnnburnc,  was  one  of  the  men 
that  captain  Porter  untlertook  to  get,  and  en- 
jjai^e  Til  ibis  rlesijjn  ;  and  accortlingly  captain 
Porter  difl  acquaint  Mr.  Cr^nbnrne  with  it  j 
and  he  did  undertake  to  be  one,  and  lo  be  ready 
to  go  with  liim,  attd  be  concerned  in  this  as- 
sassination. Yon  will  find  lie  was  aeqnuinted 
with  it  nliout  the  I4t!i  of  Febmary,  the  day  be- 
fore the  first  time  tbat  they  intended  to  assault 
the  king  :  then  he  did  umleriake  aTuI  ffgree  to 
prepare  himself  against  the  next  day,  Thyf 
next  day.  winch  was  the  15th  of  February, 
they  had  severat  meetingrs,  and  they  were 
fiiakiu!^  )Freparatton  in  order  to  go  out.  It 
happened,  by  g-reat  providenoe.  his  majesty  did 
not  go  abroad  that  day,  and  thereupon  they  ttts- 
pcrsed  themselves  ; "  but  they  had  meeiin;f» 
afterwards,  at  which  meetings  the  prisoner  wus 

E resent  with  captaij^  Porter,  Mr.  Peodergrass, 
ia  Rue,  and  several  others  that  were  conecrrred 
in  the  conspiracy,  |inriicularly  the  *ilst  of  Fe* 
hruary,  the  day  before  the  second  lime  they 
were  to  have  put  this  in  execution.  Captafa 
Porter  being  at  the  Hun  tavern,  with  several 
other  gentlemen,  and  they  resolving  to  b*ve  it 
ex<;cuted  the  next  day,  if  the  king  wont  abroad  ; 
captaio  Porter  sent  tor  Cranhurue.  and  Kryei* 
that  was  executed,  and  Kendvick  and  8hfr- 
boro,  four  of  those  that'  he  had  undertaken  for, 
(of  whom,  I  say,  Cranburne,  the  prisoner  at 
I  he  bar,  was  one)  and  then  he  ucquainted  them 
that  ihey  were  resolved  to  go  on  with  it  iha 
next  day.  And  then  they  agreed  to  be  in  a 
reuiliness  accordingly.  The  next  duy  the  pri- 
soner, with  some  others,  met  at  Mr.  Porter's, 
where  they  were  preparing  l<*  go  out  and  at- 
tack the  king,  and  they  had  several  diseourses 
about  the  ways  and  means  of  floiuLf  U ;  and 
particularly  captain  Porter  at  that  time  snid, 
that  he  had  a  vi-ry  good  gun  that  held  about 
SIX  or  «igbt  bullets,  and  thai  Mr  Pendergra^s 
was  to  have,  who  was  tn  tlUfcltiUi&  ust^j^^Ms^ 


8  WILLIAM  HI. 


I 


I 


I 


i 


S4S] 

shoot  luto  tb«  ooadi ;  Mr.  Craiiburtie  was  there 
presettt  at  that  titiio,  aiid  Mr,  Cratiburne  wait 
employ eit  f^^ticitlarly  by  copl.  Porier  tu  carry 
a  lilt  that  IVirter  wrilot  the  names  of  fiettral 
tneo  that  were  to  act  iu  it  under  liim,  atid  tUh 
he  was  to  carry  to  Chttrm>ck ;  Porter  writ  it 
and  guve  it  hittii  and  he  carried  it^  with  dirt^c* 
tlou^  to  bnng  it  back  witli  the  list  of  the  names 
of  Mr.  Cliartiock^ii  men*  Cranburne  itjd  ac> 
cordin^ty  at  thai  tliue  carry  the  list  of  thtf 
tianies  to  cnpt^in  Charnock,  am)  brought  it 
kick,  nitU  at\  adilitluual  hst  irom  co{>t.  lJhar> 
90€k,  nl  hitimexi. 

At  t)>at  time,  you  will  hear  further,  when 
Craabutne  hroui^ht  tiie  hst,  he  biou^ht  an  ac 
count  thill  he  heard  the  king  did  nertaUily  go 
ajirond  :  for  Mr.  Charno^k  hail  intelltL^euce  so 
noni  i*hamber«,  who  lay  at  Kensington  to  get 
Hlteilij^^eace:  at  which  there  via»  lory  ^'eat 
i^joii'iu^  among  alt  that  wtre  pres^^nt  aX  that 
t|m(*f  hoj^io^  they  sliould  have  an  o|iportuoiiy 
to  put  thi«  execrable  desig-n  in  e^ecniioa  ;  and 
!|0  they  prt^jiared  all  of  tiicin  to  ga  out.  There 
were  sf.Teral  inns  in  Turn  barn- Green  and 
ilreiitford«  and  thereabouts,  and  tliey  i^ere  to 
Ve  placeil  two  or  three  m  an  inn,  that  Uiey 
might  be  ready  to  get  together  v,hen  time 
should  »f rvCt  It  hap^tcited  the  kijij^  did  not  ^o 
abroad  that  day  neither,  there  beiu^  some  dis- 
covery of  thit»  de»i^,  and  so  ihey  aid  dt«perse 
tlieinseh eif,  as  appretiending  it  waa  discovered. 

Gentlemen,  it  vt't[\  appear  by  levera)  wit* 
QessfMtt  that  tlie  prisoner  at  the  bar  waa 
engaged  tu  this  horrid  tieasonahle  defsigo^ 
and  IV aa  to  hare  acted  a  part  in  it.  We  will 
cail  our  wit^ies&es  that  will  make  ilie  particulars 
out  to  you,  and  we  do  not  qnei^ioQ  but  you  witl 
do  what  ia  right.     First,  ^aU  caiti^io  Porter. 

tWhowasawom] 
ea»e,eqpt.  Porter, 
gire  the  court  and  the  jury  an  account  what 
3rou  kuo^v  of  this  wicked  mlendett  as^as^ina- 
tion,  and  what  ahar«  Ifie  priaoner  al  the  bar 
had  in  h? 

Farter*  My  lord,  hehre  ihia  wicked  assas- 
«inaiioD  was  on  toot,  the  prisoner  at  ihts  bar, 
Hlf .  Cranburue,  was  employed  by  me  to  biiy 
irms ;  1  naeil  to  give  him  money  t«)  go  to  the 
Irokers  to  buy  arms  at  second-hand,  a»d  he 
brought  a  sword-culler  to  me,  of  whom  I 
bought  aibout  tvienty  s^Tords.  And  when  air 
Gaofge  Barcley  earue  into  England,  and  this 
bMMOCSs  vfm  reaolved  u(Hm,  I  acquitinteil  him 
with  the  deaign,  and  promised  to  tnount  him. 
He  newer  waa  at  any  of  Uie  meetings  with  cap- 
laio  Charoock,  ur  George  Barcley,  or  sir  Wui, 
Parky  na ;  hut  he  w  ent  to  look  for  a  horae,  and 
waa  ready  both  Saturday  a  to  so  along  with  me. 
Ou  Haturday  the  22d  1  aeot  nim  with  a  mea- 
■age  to  air  William  Parky  na,  for  the  note  for 
the  two  horses,  which  he  had  promised  me  lo 
furniiih  lue  with,  out  of  his  iive  that  he  was  to 
furnJsb  ;  be  came  back  again,  and  told  me  that 
there  was  a  messenger  came  and  said  that  iha 
king  did  go  out,  and  he  knew  where  to  have 
the  two  horises  ;  that  Mr.  Charnock  was  afraid 
w^  shoulii  not  liave  the  fuU  ouiuber  of  men, 


Trial  ofCharUM  Cranbume, 

aud  desired  me  to  tend  him  the  naiDCS  of  i 
men ;  I  did  write  a  hst  of  the  names 
men,  and  1  went  aflerwards  to  the  Bin 
I n  firing- garden »  whither  he  was  to 
nie  j  he  din  so,  an^h^  brout^ht  back  the  list  4 
my  men,  with  tbe iBt  of  Mr.  Chamock'i  mi 
written  uoderneoth  it,  and  at  the  aaicie  I 
news  was  brought  that  the  king  did 
abroad  that  day. 

X.  C.  J.    Vou  say,  that  before  th«  i 
tiau  wus  set  on  foot,  you  employed  hin  tol 
arms  and  horses  ? 

ForUr.    Mv  lord)  1  ac<|uaitilcd  hini  witbl 
the  Friday  before  tlie  first  aS^urday. 

L.  C.  J.    Vou  said  l»elore  the 
vou  employed  him  to  buy  arms: 
that  ? 

F&rter.    I  said  before  the  a^saastnati 
on  f'»ot  t  employed  him  tf>  buy  nrms. 
Itim  I  waa  to  be  a  captain  In  cobnel   Park 
regiment,  and  protntsed  to  make  him  my  i 
ter-tDasler. 

L,  C.  J,    Hew  loni;  ago  waa  thia  ?  Was  i 
week  before  the  assnssiutiUon  was  OB  fwif 

FsHfr,    He  has  known  of  my  I 
tain  in  coK  Parker^s  regiment  thia  two  j 

Ati,  Gen,  I  do  doubt,  toy  bird,  he  i 
distinguish  the  times  when  be  bou 
arm«,and  when  the  assasii^ation  was, 

L.  C  i-    Yes,  yes,  he  <)o€9  imiw  ;  I  mih 

Crebended  him  at  tirst,  and  thought  b«  tiii 
ad  employed  bim  to  buy  arma  a  w«ek  f 
the  assassination  was  on  loot ;  but  he 
wtui  a  Ion  gar  lime. 

AtL  Oen.    1   desii^  wy  l<Nrd,  He  HttJ 
aaked  what  lime  he  bought  arms  before  T 
sassioatiao  :  when  was  the  last  time  be  I 
arms  ? 

Ftftiir.     It  was  several  tnotUbs  bdbr«  i 
assaitsitiation. 

Ail.  Gen*  W'aa  it  within  a  yaar  before  ilT 

Forier^  Yes ;  1  btlieve  it  was  within  a  yc 
1  gave  him  several  tim^  money  for  tliat  pi 
pose,  tti  all  above  ten  pounds,  and  be  told  a 
one  with  anothut,  he  had  bought  ten  caiei 
pistols,  and  kept  tliem  in  the  liouae  till 
were  oocaaioii. 

A(i,  Gen.   How  long  ago  ia  it  P 

Forttr,    I  believe  about  a  year;  wilhhl 
year* 

AU.  Gen.  When  did  yau  first  acquaint  1 
with  the  ai»sassLi)atiau  ? 

Forter,    Presently  afW  sir  George  Bard< 
aci)uainte4l  me  with  it ;  t  sent  to  hin^  to  \ 
him  to  get  tlio  pistol<»  dean  aiu)  ready. 

Ait,  Gem.  Did  you  tell  htm  of  thedesignl 

Farter .     1  toUl  hitn  titere  was  a  demgu 
footf  and  I  would  t4.dl  him  more  when  1 1 
him  next ;  and  I  desired  bim  to  get  ibe  swo 
from  the  sword- cutlers,  and  the  pistols  t  " 
aod  ready.     And  1  met  him  al^rwardiy 
told  htm  of  the  design,  aud  that  we  i 
do  it  on  Saturday   the  J 6th;  and  be  i 
to  be  ready  and  make  oni^.     On  the  1 
fore  the  '^3d  he  went  with  me  to  the  Cock«i 
and  there  we  met  with  one  Mr.  Gunn,  ancl 
aaked  him  if  he  knew  where  any  good  1 


fif  High  Tire&sdn. 

nMit  ^  Irtrf  f  H«  Mid  be  }Mtft4  he 
M;  aailT  teiil  CraQboroe  with  htm,  nut!  he 
■■i  hmekj  mod  loYd  mtht  had  fecund  two  or 
HtfMOiM  m  Bloomshttrj. 

L.  CA  /•  I>K>li  ye,  eaptairi  Porter,  you  must 
101  ipMkti  Ito,  tt  is  inopossible  to  undertUod 
i»  viadi  Bftlter  ms  you  deliver  without  distin- 
rasluafl' of  times*  Yoti  iiaid,  that  some  lon|f 
mfe  bmre  the  issafisinatioo  wjis  on  foot  you 
•wt  him  lo  hiiy  anns ;  for  what  purpof^  were 

Aii.  Gen.    My  lord,  he  has  told  you 

L  C,  J,  Pray,  let  me  tiear  it  frntn  liim  a^ain. 
t^rt^r,    1  »y,  my  lord,  he  knew  ol'  my  be- 
ii|  i  Cftptttn  hi  colonel  Parker's  reg^lfDeat  iim 
tpo  years. 

L  C.  X  But  what  were  those  arms  for  that 
belmai^ht? 

Farter.  To  be  ready  Bfratnftt  kin^  J  u  noes 
knMm  which  n  as  desigtied  several  times. 

L  C*  J»  Why,  now  you  make  the  matter 
^ku  to  me. 

in,  C^^n*  My  k>rd,  that  is  not  the  tUinn;^  we 
fBipon*  that  is  but  introductory  to  the  btisi- 
MS  thnl  we  are  tMkw  trying^.  Therefore  we 
Me  to  liiii>w  f»f  him  :  captain  Poner,  when 
M  |«e  Unit  aequaint  Crodthuits^  of  the  asass- 
aniioii  o£the  kingf 

Verier.    As  soon  as  air  Georgfe  Bardey  ac- 
^Bled  me  with  it,  and  desired  me  to  ^et  #b»t 
Ofii  I  eotilr)  to  effeet  it.     I  sent  for  C:rai)biirne 
f  Mgfuga  in  Norfolk- street,  and  he  caoae 
y  mm  mw  nomijif ;  and  I  told  lijm  ili«re  wak 
lltaRgii  on  foot,  and  1  would  tell  him  more  of 
rwartl«, 

►  0€U*  When  was  il  that  sir  George  Bar* 
1  yod  with  itf 
About  the  Istt^nr  end  of  January. 
Ait  OtH.    And  H  hat  said  be  to  it  wbeu  you 
him  with  it  f 

He  did  agree  lo  go  with  me,  and  I 

I  to  furoisb  itioi  with  horse  and  aruis  i 

I  FrhHiy  before  tlie  15th  I  sent  hinj  with 

r  of  pistolt  to  sir  Wilhaiii  Parky ns,  to 

\  the  tnree  oaen  he  was  lo  mouui  with 

I  Knrses, 

,  C  J.    Who  waa  to  have  those  thiee  case 

ifmiolar 

Fort^.  Sir  Wllfiaro  Parky  ns  was ;  and  he 
einied  them  to  ^ir  VVilhuni  Parky  ns*s. 

dit.  Gen,    How  lung*  was  tUis,  do  you  say, 
Wibvt  Ike  assassioBCioit  was  to  have  been  f 
p9N€r*    H  waa  Friday  before  thL-  I5th. 
Mt.  Gtn,    That  was  before  the  tinst  time 
llal  M  waa  lo  hare  been  done  ? 

Farttr.  Ves  ;  and  Friday  before  the  last,  I 
mthifB  to  Inok  after  the  horstfS  th»t  Guun  said 
hi  behcreil  he  could  help  me  to,  and  he  came 
lkmt%o  the  Stra-tavero  in  the  8triind,  uud  tnld 
idJe0ery  Gunn  had  found  three  horses 
bury,  and  1  came  out  «jf  the  room 
I  woa  with  i*ir  Oeofge  BafCl**y  and 
,  and  there  was  kendrick,  and  K^eyes, 
and  f  toW  them  wc  werc're- 
I H  m  execution  the  next  *hiy. 
Well,  prsy  what  discourae  had 
19»  ivi^  hia  tiie  next  day  ? 


A.D.  t^. 


[SM 


PorteK  The  ocit  day,  the  f  2d,  he  came  to 
my  tod^iog  at  Maiden- lane,  and  I  sent  him  to 
sir  William  Parkyns  for  a  note  far  the  two 
horses,  that  I  was  to  mount  of  his :  he  came 
back  ai)d  told  me,  he  knew  where  to  haVe 
them,  and  that  captain  Chamock  was  afraid 
we  shoulil  tiot  have  our  complement  of  raerl, 
and  desired  me  lo  send  him  an  account  what 
men  I  could  brings,  which  I  did  by  Mr.  Crafi* 
burne,  aud  bein^f  to  gx»  to  the  Blue- Posts,  or- 
dered him  to  brmgf  it  me  thither,  and  he  did 
bring*  it  back  to  me  to  the  Blue- Foils,  with 
captain  Charuock^s  list  underneath. 

Soi,  Gen.  Pray,  eaptaiu  Porter,  was  there 
any  body  present  when  you  terrt  the  list,  and 
tlie  prisoner  brou|rht  it  back  to  you  f 

Porter.  Yes,  there  was  Mr,  De  la  Rue,  and 
captain  Pender^rstss,  and  Mr.  King,  I  know  of 
tjoue  else. 

Ati.  Gen,  Pray  do  you  remember  whit 
heajttis  were  drunk  iHer  yoti  heard  the  king 
was  not  to  go  abroad  ? 

Porter.  I  do  not  remember  u  hat  healths 
were  drunk  Ihatttay  particulSrly  ;  but  whether 
it  were  Thursday  or  Friday,  (I  catmot  tell  par* 
ticuUrly  the  day).  We  drank  a  health  to  the 
■qdeezuig  of  the  Kettes  Orange  upon  the  uext 
t$uturday. 

Att*  &Hh.  Who  w«^  present  that  day  when 
that  health  was  drunk  ? 

Part  er.  M  r.  Craubume  was  there  presettt  at 
that  time,  aud  did  djiuk  the  bentth. 

Mr,  Cowper,  Pray,  Sir,  did  he  m^s^t  you  by 
appoint  meat  oil  Saturday  the  15th,  or  was  ft 
by  accident  ? 

Porter,  By  appointment,  at  afl  the  rest  didt 
to  ret  ready,  as  all  the  rest  did,  to  go  upou  the 
design  ;  and  so  it  was  both  days. 

Sir  jB.  SAot»er.  If  they  have  done  with  Mr. 
Porter,  we  would  ask  htm  a  question  or  two  for 
the  prisojier :  we  desire  to  know  when  it  waf 
thai  thost;  arms  were  bought  that  he  talks  off 
For  we  moit  ackaowledge  that  Mr.  Cranburue 
heretnfDre  went  upon  iteveral  messages  for  cap* 
tain  Porter ;  when  was  that  huyhj;j  of  onus? 

Porter,  I  teU  you,  1  cannot  exactly  teil  the 
month. 

Crunbtttfte.    Do  you  remember  the  year? 

Porter.  I  lielirre  it  was  less  than  a  year  be* 
t^re  the  assassinuuoa  was  oti  toot. 

Crmi^urne.  Jfyou  remember,  Sir,  it  was  a 
vnotith  before  colonel  Parker  was  put  ia  the 
Tower. 

Porter.  It  was  several  timet ;  I  cannot  tell 
the  pHrticulur  times. 

8ir  M.  Shower.  My  lord,  f  ilesire  to  know, 
when  he  first  commuuicated  this  dcsigu  to  Mr. 
Crauburne  ?  and  who  was  by,  and  where  it 
was? 

Porter.  I  told  yon  I  sent  for  Mr.  Cranbume 
one  day  in  the  week  hettire  the  15Ch,  and  he 
came  to  me  at  mv  toderfiig  in  Nortblk- street, 
and  I  acquainted  ]iin>  thai  sir  George  Barcley 
was  cocRp,  and  there  was  such  a  design  on 
foot ;  and  I  desired  him  to  ^t  thome  pi!>»toli 
that  he  had  of  mine  ready,  and  cJeaued,  that 
they  ought  be  r«ftdy  for  thief  ex«cvLiv(^u« 


*t7] 


S  WILLIAM  UL 


Trial  of  Charles  Cranburne^ 


D 


I 
I 


Sir  B.  Shower,    Wlml  day  was  thai  ? 
Pprter,    Oiie  dav  in  tlie  week  liefore  the 

CrMtbvrne*  Did  yan  erer  oamc  sir  George 
Burdev  to  a)^  in  your  JiJe  ? 

Foricr,  Ves»  i  iliJ ;  I  told  you  he  wm«! 
ctitrie  lT«>ni  Franctv 

Cranbunu.    Wh#?re  waa  that,  at  Mr. ? 

I*mier.    In  Nnrtblk -street,  where  I  lay. 

Crunburne.    VVdu  i*aa  by  ? 

Pitfter,    Nobf»dy  hut  mysf^U* 

Sir  J3,  SkiUi^^rr.  Upou  vi'batuceajtioii  did  yoii 
Beet  there? 

Porter.    1  sent  for  him  lo  my  lodgtojf. 

8ir  B.  Shimir.  How  lonj^  hud  sir  George 
Barcley  been  in  towu,  Wlore  that  lime  ? 

Pvrur,  I  Ciinnot  tell  the  limt;  when  he  came 
to  town. 

Sir  h.  Sftower.  How  loog  was  it  after  he 
came  lo  toivu  before  yon  saw  hira  ?  Had  yciu 
P*'en  him  a  week  or  a  furtuight  before  ?  Pray 
recoilect  yourself* 

pQrter'  J  told  you  that  the  fii-st  time  I  heard 
of  him,  was  the  latter  end  of  January  ;  c»|)taiii 
Charooi'k  told  me  he  Has  come,  but  I  was  then 
fiick  of  ibe  gout 

8ir  B.  Shitmer^  Now  ih^n  I  would  desire  to 
know,  who  was  by,  upon  the  Friday  before  tlie 
S2d,  at  the  8uti*iavern  in  the  8traud,  whea 
you  and  Mr,  Cranburtie  were  there? 

ForUr.    1  did  tcU  you,  Sir. 

Sir  B.  Shower,  I  tiesire  to  know,  whether 
there  was  aoy  body  betides  Mr.  Cranburne, 
Keudriek,  and  Keyes  ? 

Porter^  Sir,  1  will  tell  you  all  I  can  re- 
mem  b^^r ;  I  was  in  one  roum  with  sir  Cieorg^e 
Ilardey,  and  there  was  sir  William  Piirkyos, 
caf^tain  Charnock,  and  myself;  ai:d  ajterwanls 
1  weot  into  another  room,  where  there  was 
Kendrfck,  and  Cranburne,  and  Keycs ;  and 
J«0cry  Guon  came  in  afterwards  j  I  remember 
nt»bDdy  else. 

Mr.  Phipps.  Was  not  Gi}t)U  there  when  you 
you  fif^t  ciime  in  ? 

Porter,  Tq  the  best  of  my  rcraicrobrance, 
be  came  in  aftet  wnrd«. 

8ir  B.  Shower,  IMy  lord,  thts  may  be  a  very 
roaterial  part  of  our  defence,  and  therefore  we 
must  entjuire  a  little  the  more  mio  it.  Mr. 
Purter  is  pleased  lo  a^y^  that  be  was  in  a  ronm 
with  sir  George  Barcley,  and  Ciiarnock,  and 
sir  William  Parkyos;  and  he  e^me  out  into 
another  room,  wberw  was  Mr.  Cranburne,  Ken- 
itrickf  and  Keyes ;  and  there  he  says,  at^er  he 
liad  bceci  there  s()nrie  ume,  Gunn  came  in;  I 
desire  to  know  whether  Guiiu  was  ibere  when 
lie  first  came  in? 

Porter,  Tr»  the  best  of  my  rememhrance,  be 
came  in  afterwards  ;  but  1  cannot  |iosiiively 
IC'IU  fftr  t  was  in  and  out  several  tiincH, 

Mr.  Phippi,  At  the  lime  tliat  ynu  coramu- 
picutcd  this  design  to  Mr.  CraBbyrne,  what  £>md 
be  to  you  ? 

Porter.  When  I  first  commimicated  the 
ib'mg-  to  bim,  1  told  bim  titers  was  a  thintr  on 
foot  Ibr  the  service  nf  kin^  J&ai4KS|  and  desired 
him  to  go  alQug  wiih  iii«. 


i 


L.  C.  J.    What  kiod  of  aerriee  did  you 

htm  it  was? 

Piirt€r,    He  asked  mr,  wh:it  kind  of  »e 
it  was?  I  told  him  sir  G«onje  Barclcy 
come  Of  pr,  and  1  told  the  whoie  d^t|;n  of 
assassin dtiou  u!   the  prince  of  Or  inge,  thai 
was  intpib^rd  to  tuke  bim  oH't  as  Ur  «:ame  In 
Ricbiiioiid  trom  buuiing'. 

Mr.  Phipps.  And  jHay  what  did  Mr,  Gn 
buruc  Siiy  to  you  r* 

Porter,  lie  said  he  would  be  ready  to 
aloni^  with  me. 

Mr.  P/tippa,  You  say,  yuu  eent  by  bim  thi 
ca^e  of  |ii^lids  iii  sir  VVili^am  Parky ns  i  at  ll 
time  did  you  tell   bim  tor  what  desijurn  tb4l 
pistols  y%  ei  e  f 

Porter,    I  told  him,  they  were  for  the  thn 
men  that  sir  William  Paikyns  was  lo  omm 
njion  three  of  hifi  tive  borse«. 

Crunburne,  Did  ytm  speak  to  me  to  cti 
ihoie  pistoU  to  sir  VVilliain  Parkyns.^ 

Porter,  t  think  so,  to  the  l>est  of  my 
menibraiice  1  ordered  you  myself  to  e 
til  em. 

Sir  B,  Shower,   Captain  Porter,  I  desire 
to  recollect  yourself,  aiK^l  tell  us  plainly, 
tber  the   desi|fn   was   coiinnunicated 
Cranburne  belure  the  l'»th? 

Porter,    Certaitdy,  Su-. 

Sir  B.  Shower,    Art-  ycm  sure  of  it  ? 

Porter     Yes,  Sir^  I  am  sure  of  it. 

Sir  B.  Shower i  I  %hk  you,  because  you 
what  has  been  said  upon  Uiis  occaaiou  in 
trials. 

Cranburne,  Wliere  did  you  write  the  nol 
that  you  say  you  sent  to  sir  Wiltinm  Parkyn 
Was  that  note  seHled,  or  was  it  not?  ^ 

Porter,  1  did  not  tell  yoa  that  J  wnHHt 
note. 

Cranburne.  You  fwore  that  yoti  wmlft 
note,  and  sent  it  by  me  to  sir  Wdhnrn  Pu^jj 
for  two  horses. 

Porter.    1  said  no  such  tbin^.  Sir. 

Sot,  Gen,   Look  ydu,  ca[itiiin  Porter,  let  hi 
ask  you  any  quewttons ;  and  if  they  be  prop 
answer  them,  and  let  not  bis  attirmations 
mistakes  provoke  yon  to  be  angry. 

PorUr,    I  said,   1  lent  bim  to  sir  Willi; 
Parkvn!i,  for  a  note  to  have  the  horsefr, 
Mr.  Lewis* 

Mr.  Phtpps,    Did  you  send  bim  witi 
ter,  or  was  it  a  messdge  by  word  <»f  mouth  f 

Porter.  ]  did  send  hira  by  word  of  moul 
for  a  nc»ie. 

L,  C,  J.  Pray,  gentlemen,  observe  tht 
deace  :  sir  \\  itham  Parky  us  was  to  irive  a 
JWr  two  horses,  and  captain  Porter  sent  C 
burne  for  the  note. 

^Ir.  Phipps.  I'he  (question  therefore  that 
ask,  is,  wbi'tber  he  trot  a  letter  fur  the  no 
or  whether  by  word  of  mouth  ? 

Portrr,    |  sent  by  word  ot  mouth. 

Cranburne.  Prjiy  will  you  tell  the  coi 
what  you  said  upoti  the *4^2d  to  Mr,  Peuderg^r^ 
and  toe,  alter  you  came  down  from  the  Bin 
Posts,  leaning  upon  the  rail. 

Porter,    i  do  not  remember  i  tvord  of  it, 


iiOj 


Jot  High  Treason* 


I  oAoitnt  rememl^er  etery  word  ihat  I  hare 

Sir  E,  Showtr,  If  you  can  remember  one 
particutsr,  sure  you  oui  reiiieniber  anotlit^r. 
if  ^tM  csniif^t  remember  tUb,  bow  came  you 
M  rrmeittlMfr  fttiy  pirt  of  tUe  tluicounMs  ibul 
iMten^  ot  the  Blue  Posls? 
JVlcr*  l^dkuse  itial  Has  material  to  tbia 
,  far  1  Un^l  very  soon  af^er  a  particular 
I  to  recoUect  U  upon  tbe  breaking  uul 
tf  IIm  |»b>t. 

CfttH^nuf.  Pray  what  hour  was  it  ibb  Ski- 
tiiiiiy  the  l^tb,  Uiat  you  conimunicittiMt  lliiii 
^oifD  Ui  me  t 

ftrt^r,  i  caiiDOt  teU  wbnl  hmir,  but  1  say 
t«a  mrt  at  ttie  Blue-iVsts  Satunlay  tbe  K'^ib. 

Crtm6i*nir.  Vou  say,  you  fommum^ateil  it 
tvinettie  t5th. 

Hi,  Gen.  lie  mys  be  communicated  it  to 
|0f,  bclofff  the  1  jtli. 

Cr^mhume.  1  desire  to  know  where  be  waa 
tblMb, 

fwi^r  I  say,  ooe  day  before  the  15tb  ;  m 
tbi  wwfk  1  sent  for  )i>u  to  c«me  lo  my  loiltf- 
iflfif  and  yon  did  cotue^  and  tli<:re  1  t?<Hiiniu- 
mmcA  it  to  you. 

Cr^mhmrni*  il^ir,  I  was  nut  at  your  b»%inga 
tbiweek, 

Hr  Fhiftpt,     VYhat  day  of  the  week  ? 

ftrritr,     1  cannot  be  positive  ultether  it  wa» 
UnivmiUy  or  Friday,  or  what  day  \  but  one 
plir  thai  ^et!k  it  was. 
\  llr.  Fk%ppu    You  ought  to  be  positive  wbeu 

I  Fortfr,     I  do  tell  you  as  nrar  as  I  eon. 
L  Mr.  Pkippi.    U'ltb  tuhmikSion,  niy  tord,  be 
i  lo  be  poeit&ve  one  way  or  other. 
.C^J,    ni&yt  1  do  nnt  aee  that  be  ou^ht  to 
ire  lo  a  day  ;  be  may  bo  mj  if  be  can* 
kime*    Pray  what  day  did  you  say  you 
I  tte  ti>  air  George  Barcley  ? 
I  fmter,     I  do  not  say  that  1  ever  sent  you  to 
^G^ense  Uiirclty, 

i  Mr.  Phippi*  Can  you  take  upon  you  to  say, 
A  lie  was  at  your  lod^iug^  ihui  week  before 
jlMh? 

Forter,  To  tbe  best  of  my  koowbdge  it  was 
DC  ilay  tbat  week. 
Mr.  Fhippi*  To  tbe  heal  of  your  knowledge  I 
Are  you  sure  of  it  ? 
L.'  C,  J.    Hpenk  as  certainly  as  yon  ean. 
Pwirr,    Indeed,   1  believe  sci^  it  was  In-fore 
Ibel4th.     i  aui  sure,  I  thiiik«  it  was  with  in 
t  fir  four  ibtys  after  sir  GLinf^e  Bare  ley  bad 
aifileil  me  wrtb  it,  I  sent  tu  ilie  prisoner  to 

-,-„•  i»  me  to  my  M)ilui;[%  at  Mrs.  ,  in 

Kor(u)k* street,  uikI  acijuiiinied  him  with  it, 

JL  C\  X  And  i^beo  you  :ic^uainteil  tiini  with 
it,  w hut  tbd  yau  tell  bim?  VVh^it  p^ut  uuti  he 
bactintt? 

Ftrrier.  1  told  him,  I  would  have  him  ^n 
lAan^  v»iih  me,  and  that  t  had  set  liiiii  down 
for  one  ul  my  p^rty.  ;&od  wnuM  provide  hitii 
Wie  atid  arm** ;  aiud  be  did  a^ree  to  gu  along 

ttilklM. 

Ir  a  Shattter.  Mr.  Webber,  Pray  let  me 
far  Cbintock*fl  ximL 


Sb.  Buckingham.  Why,  air  Barthofomew,  is 
Ibe  irinl  any  ewnlence  ? 

Sir  B.  Sitou'tr^  Wr.  Sheriff,  I  know  what 
use  I  can  make  of  it, 

Soi.  Gen.  Will  you  ask  him  any  more  ques- 
tions ? — Sir  B.  S/iow€r.     Nu»  Sir. 

SoL  Gen.  Then  swear  Mr.  De  la  Rue, 
[Which  was  dtme.]  Fray,  Sir*  ihve  the  cuuie 
and  the  jury,  an  account  what  you  know  of 
the  intended  ftHsassinutiun,  and  what  share  tim 
[ir4.<>oner  had  in  it. 

De  id  Hu^.  It  is  too  lon|f  a  story  to  tell 
you  all  that  I  know  ol  this  mailer  ;  but.  if  you 
please,  I  will  tell  yon  tvUni  cH>ncerut  the  pri- 
soner at  the  bar.  1  am  heartily  sorry  tbat  I 
have  oceasiiio  m  ap^K-ar  nt^aimit  bim,  as  I 
would  be  truly  at^aiiist  any  h<»ily  -  but  since  [ 
am  here  nptui  my  o.ith,  t  uinst  flt*cUr*»  th** 
truth,  and  uothin^  hut  the  truth;  und  I  hupe  { 
shall  nnt  deelart' uny  thiti^  but  what  is  truili. 
U|ri>n  Sut unlay  thi;  1 5th  ut  FebrnarVf  the  da r 
that  (he  detiiijrn  w^a  u*  have  been  put  in  eice* 
cution  a^aiost  biii  mujeMy,  and  all  that  Wf>re  in 
the  coach  with  htm,  ntM\  ni;njr»jtt  his  (fuards;  f 
irteut  to  i^lr.  Cbarnnik'si  iiwljjing-s  in  Norliiik- 
street,  to  inioroi  mvBelf  whether  they  re^cdveil 
on  that  day  to  ^a  out  upon  tbe  design;  and  I 
fbun<l  hy  ^Ir.  Charnmk  that  (hey  did  re«iolr« 
Jt.an<l  I  staye^l  there  nubile,  tdl  such  time  as 
>lr,  Chauil»*'rsuuHent ;  1  did  not  know  nhejico 
he  etiioe  then,  but,  an  I  uas  inlorrned  alter- 
waiHlji,  be  came  from  Kensintjton  to  Mr,  t'hnr* 
nock,  ami  his  boots  were  dirty  ;  and  Mr.  Char- 
nock  told  me  be  bail  sent  a  me^^Keuger  to  Mr« 
Porter  i  ami*  sayn  be,  *  If  you  will  wtay  a  tittle 
*  time,  I  shall  hhve  an  answi-r.'  1  he  rnessenifer 
came  hack,  and  told  him.  That  captain  Porter 
dined  at  the  Blue^  Vosih  iu  Spring -garden.  I 
did  not  4to  to  dine  wiib  him,  but  went  borne, 
where  1  saw  Mr.  Kin<j,  who  told  me,  that 
the  kin^  did  not  ^t^  cnit  that  day.  I  told  bim, 
1  beard  he  did  imt  c  E  Ibund  by  Mr.  Cbambers^s 
e^iniin:^  hack,  and  (hat  we  bad  no  notice  from 
Mr.  Cburnockj  tliat  ii  was  cuncludrd  tbe  kinnf 
did  not  go  out  as  itn3Sf;up|M>sed  he  should  have 
^nue.  When  I  bad  ilined  at  my  hnh^iritr^  J 
went  lo  tbe  Blue- Posts  m  Spring-garden  to 
Mr.  Porter,  and  there  were  four,  or  ttve,  or  six 
people  with  hiui ;  there  was  mie  Mr,  Slierlmrn, 
and  Mr.  Kendriek,  and  two  pi'opte  tbnt  I  never 
saw  ht'fure,  und  another  per^ni,  but  I  cannol 
t^ll  now  who  be  was,  \Vhen  ^^e  had  bten  there 
a  little  while,  in  cmnefi  (bi«  nnfor innate  man  at 
the  bar^  Mr.  €  ran  ho  roe  ;  i  i  hi  not  know  where 
be  had  hei  ii ;  hut  hy  hts  coinni|(  in  so  late,  1 
KuppiiAe  he  bad  not  dined,  and  he  onlered  (he 
dra%«er  to  ^ei  biru  some  costelct<(.  This  is  all  i 
can  say  an  to  tbnt  day,  l  hiol  seen  capt.  Porter 
twice  t>r  tbrice  bet  ween  (hat  and  the  '2til,  and 
he  dfsiretl  uie  to  be  at  home  on  Fridav  nig-bt 
betwec^u  eijiht  and  nine,  and  he  wouhl  send  to 
me:  be  ihd  send,  and  I  was  from  bonte.  Hui 
wlien  1  came  1  was  iiiii>rnied  his  serf^aot  had 
been  to  i^peuk  witb  me ;  and  in  (be  mornm(i^, 
about  eh^hi  or  lune  o'cloik,  Satnrdav  the  v»^d, 
be  sent  bis  fcerrnol  to  me  to  tell  me  Kis  mfLsicr 
wuuld  speak  witlk  rneai  hii  bdgin^.    I  wcui 


I 


I 

I 


t5I]  S  WILLlAAf  III, 

lo  his  todc^AQ^,  and  he  then  lay  in  Maiden- 
lane»  at  one  Brown's  a  surgeon ;  when  I  c^me 
iti,  He  Wis  in  bed  ;  anti  h^  told  me  in  Freoch, 
*  Toots  purttes  eotit  presls/  M\\  partieB  arc 
f«ody.  I  tinders tood  ftlk  alimc^  that  tiitre  were 
three  panics  to  be  engaged  ;  one  to  otuck  the 
king's  ctiach^  and  the  tWD  otht»rs  the  ^aftr(Js  : 
•if  Georife  Barcley  ^t»i  to  he4*l  the  first,  and 
FortfTftnd  Hinik^ood,  the  rest.  Mr.  Porter 
arfise  and  dre^jsf  d  hi m<ie[f,  «tnd  in  came  Mr, 
C  rati  burnt ;  and  Mr.  Portpr  tveni  out  to  him 
in  the  dtnin|f-nK)m^  and  what  he  said  I  camiot 
t«lt ;  but  mx^a  alter  eame  in  Pender|pNU9^  Mr. 
ICeyc9,  and  Mr.  King,  and  then  he  takes  pen» 
iJik,  and  pafier. 

Sir  B,  Shff&tr.     Who  took  that  ? 

J)t  In  Riu\  Captam  Porter  took  p<pn,  ink^ 
«ad  paper^  and  ^^^rites  dofrn  a  lisf  of  [its  paily, 
3Hid  put*  me  down  first,  Mr.  Pendtrii^^ 
aaked  me  ifl  was  tiie  captaifi  ?  And  1  made  him 
mme  answer,  but  what  in  particular  i  cannot 
tell ;  I  think  I  told  htrtt  I  knew  of  the  thing 
liefore  the  ruost  did.  But  I  can  renftember  par* 
ticularly  that  list  was^feii  to  Mr.  Craubm-oe^ 
to  carry  to  Mr,  Chamuck ;  iipon  whai  account 
it  wa»,  1  cannot  tell;  hut  I  conoliukd,  that 
Mr.  C  ha  mock  wahi  to  lie  ncf|t)atnted  with  ihoi!j« 
persons  thai  Mr.  Porter  wa»»  aure  of:  and  Mr, 
Porter  at  that  f  inie  totd  me  that  he  wa«  dbap- 
poioted  of  $ome  people,  and  desired  me  to  i?et 
liicn  some  other  men  in  their  roon»«i ;  and  be 
sent  panicnlarly  to  one  that  Mr,  Kinyr  pro- 

eiaed ;  am)  1  did  go,  und  hrou^bt  him  to  the 
lue-Po5ta,  where  captain  Porter  told  me  be 
wai  to  dine  ;  and  the  f«'enth'nf*an  I  went  to, 
told  me  he  wonlil  meet  me  at  the  Blue-Poicts 
in  SpriLi^-garilen.  When  I  came  hack  fn  Mr. 
Porter's  lodifiojpi,  Mr.  Porter  and  iMr.  Pendct* 
grass,  and  Mr.  Otdtield^  and  f ,  went  in  a  coa<!b 
lathe  Blue-Posts  in  Spring- jjardto ;  Jind  when 
we  had  b**en  there  a  little  while,  Mr.  Cran« 
bume  camt>  hnck  to  ^ive  an  account  of  the  er* 
rand  Mr.  Porter  had  sent  liim  upon,  and  he 
brings  this  lisit. 

J/r.  Grn,    Who  brouerbt  it  ? 

De  la  Rue.    Mr.  Cranburne. 

Cranbume.    I\  hither  did  I  bring  it  ? 

DelaHue^  To  the  Blue- Posts  in  Spring- 
garden. 

L.  C.  /.  Yon  must  not  ask  any  questions 
till  they  have  done  with  him.  But  Mr.  Dc  la 
Kur,  let  me  ask  vou  what  duy  wits  this  ? 

De  in  Hue.  1" his  waft  Hainirlay  the  2Sd  of 
February  ;  and  lie  told  .^Ir.  Porter  there  was  a 
tiiit  uf  VJr.  Charoock*!*  men  at  the  bottom  of 
that  list;  and  1  took  the  list  in  my  hand,  and 
there  was  1^1  r.  Chirnock^H  hst  of  six  or  »cvftn, 
or  thereaboots,  oC  bis  party^  and  M  the  bottom 
of  it  Wv8  R,  C.  I  ihintj  for  Kobcri  Chnrnock. 
Mr  Poner  takea  Mr.  Cranburo^  from  the  com- 
pany into  another  rootn,  and  I  went  *iftcf  them, 
and  he  told  captain  Porter,  in  my  hearing,  that 
the  kin^  did  not  ^o  ool  that  day.  There  is  one 
tbin|jr  1  furgot  winch  now  [  rceolWt,  and  I  am 
upon  my  oath  to  tell  the  truth,  and  the  %%Kcde 
trnlh.  When  I  was  at  Mr.  Po«tef*s  lodging, 
h«  la!i  me  the  kinf  was  to  g9  dut ;  aad  that 


TrM  ofCharUi  CrAnbume^ 


DW 


Mr.  Chambers^  the   OTderly  auM,  hsd 
word,  That  the  king  resiolrcd  to  go  oat 
len  and  eleven . 

L.C  J,    Who  said  so? 

De  la  Rtte,     Mr.  Cranbirme  fold  f 
Mr.  Porter's  lodgings:  I  say  I  bad  fofgut 
but  it  occum  to  my  metnory  now,  that  be 
me  there  before  be  went  lo  the  Bliie  P< 
that  th«  kmg  did  go  out  that  day  between 
and  eletcn;  for  Mr.  Chambers^  the  orderly 
limn,  had  been  with  Mr.  Charnock  or  air  W mi 
Parkyns,  to  let  them  know  so  mucb.     Am 
afterwards,   when  be  catne  back  with  ibc*  Ik 
of  ca|itain  Porter's  men,  to  captam  Porter 
the  Blue  Posts,  in  the  Spring-garden,  \\ 
was  at  the  foot  of  that  list^  a  liirl  of  Mr.  Cbi 
tiock*9  m«n  in  attotber  hand,  t  suppose  writ 
himself,  but  tliat  I  cauuot  swear  whose  hai 
it  was  I  and  Mr.  Porter  took  him  into  i»ft< 
room,  and  then  Mr.  Cranbnroe  tcdd  him 
king  did  not  go  oat,  and  I  belifva  it  waa  tlii 
between  oleveo   and  twelve  o'clock ;  and 
aUo  tohl  Mr.  Porter,  that  Mr.  CI)artiock  wi 
iipprflieusive  the  thing  was  discovered, 
ihereibre  desired  him  to  have  a  e«re  of 
self,  lor  he  himself  was  resolved  not   to 
home  that  night ;  I  think,  my  lord»  Mr.  Porii 
did  seud  biick  Mr.  Crnnburoe  to  Mr,  CbtH 
nock  I  I  cannot  be  potitire  whether  he  did  < 
fiot,  but  I  believe  ne  did ;  because  I  am  wn\ 
Mr.  IJranburue  did  tell   Mr.  Porter,  sir  Geotgl 
Barcley  would  speak  with  him ;  and  Mr.  "" 
lor  mnde  answer,  why  should  he  desira  m#  . 
go  to  him,  when  he  knows  1  am  under  fon 
ill  circumstai^cefi,  ami  he  can  better  e<iiii#  I 
iwe  f  And   I   believe  Mr.  Porter  did  send  Mi 
Cranburoe  ouue  again  to  Mr.  Charndck. 

X,  C.  X  Well,  pray  do  not  say  any  thiq 
of  any  matter,  but  what  you  can  bo  poiitiTt  11 

De  la  R$t£,  Bat  Mr?  Porter  did  not  g«»  i 
Mr.  Charnock,  nor  did  Mr.  Charnock  cuoiel 
him,  therefore  they  staid  there  and  dineil ;  an 
after  dinner,  or  a  little  before  dinner,  Key4 
the  tf umpeter  came  up  and  told  us,  that  mj 
lord  of  03tlnrd*s  rcgiuient  of  Cuards  wat 
inrned  from  Richmond,  t!>arning:  Keys 
down  stairs  again  to  learn  intelligence,  as 
thought,  and  C4ime  up  and  told  ub  be  aaw 
kin^'i  conches  newly  returned  to  the  Mc. 
»nd  Mr.  Craiibnriie  was  by  all  the  lime;  1  ihi 
this  was  before  dinner,  and  tbeti  we  went 
dinner. 

L.  C*  J.  ]  tell  you  agam,  do  not  s|>eali  mj 
tbifik  llml  it  material,  but  what  you  oati  be  |MI 
sttifc  in. 

De  la  Rue.  I  am  positive  as  to  the  tkiftg 
and  that  it  was  the  9Sd  of  Kebruury,  but  I  <»M 
wvt  be  positive  as  to  ill  the  circutni^tait«ec« 
After  dinner  there  was  the  usual  bt*alib<$,  t 
Jacobite  healths  lo  king  James,  and  the  priAtfl 
of  Wiiles,  ami  the  Restoration,  and  the  tike 
and  iift<>r  that  I  think  it  was  Mr.  Porter  ti 
an  Orangp  in  his  hand,  and  i»c]ucezed  it,  1  am 
sure  one  in  the  coui|iany  did,  and  drattk  some* 
thing  lo  (lie  Rotten  Orange,  I  cannot  vei 
Weil  ren^eu^r  j  u&t  now  w  hat  it  was ;  but 
would  be  cautious  of  spying  any  tbuig  but  fvki 


m  truth ;  ^Li1  if  ymir  lordship  will  ^ve  me 
I  Wte  to  rrci»IWct  ray  self,  I  will  tell  you  what 
il  was — Oil !  it  wfts  *  to  the  i<jtteeKiiitr  of  the 
liutten  Urani^e,^  aad  the  hcmlth  i\^iit  rottoit, 
'  9t\d  Mr.  CraolKim^  was  in  the  cuitipany,  sail 
I  ^mtk  tbtf  l)f tilth.  But  bejug ilisapi«viul4Mi  anri 
fuled  of  tkm  iletftgu  hy  the  king's  not  ^q- 
tJjat  (fcay,  aod  Mr.  Porttr  b*^ing 
9ped  by  Mr.Charaock  to  take  careof  htm- 
lieing  tolii  that  Mr.  Cbamt»ck  uoiild 
^Mlie  ftt  lioroe  that  mfiUx^  and  the  guards  re- 
in that  manner^  they  were  alt  appve- 
I  tK»l  the  thing  hnd  taken  ^ir,  atiil  t!»c 
I  of  Aaaaaainatin^  the  kui|^  was  discovered, 
lai  Hicref^  Mr.  Porter  coiicludt'd  of  ^oln^ 
Mfif  Ipwa ;  aeveral  heeltbt  wfre  drunk  rouud, 
lad  I  liitfik  about  tuo  o'clock  he  weot  out  of 
kitm^  wmd  tlMO  the  cotnpaQy  broke  up.  This 
k  vliai  I  €tm  my  as  to  the  prisoner,  and  1  hope 
IkftTe  aaid  nothing-  but  what  \s  trutlj. 

9tL  Gem*  Then,  i»y  \m-d,  we  dejire  to  know 
l4flb€r  they  will  ask  liiio  any  questions  i' 

Mk.  P^ippM.  At  the  time  yon  say  this  list 
Hf  gireo  by  captain  Porter  to  Mr.  Cranbiirn«| 
dUMr.  F^ffMr  declar€  to  what  purpose  the  li^it 
mmmmf 

Dt  la  Rue.  No,  Sir^  not  a  word  of  any  such 
Afi||^.  Mr.  King-  was  by,  and  Mr.  Pender* 
gnavwaui  by,  and  1  think  Mr.  Keyea  was  by, 
Mdbtt  irrii  a  list  of  his  party ,  putt ing^  me  down 
fall  #pil  Mr*  Pendergrasa  said  to  me,  You 
'o,  and  he  gasrc  it  lo  Mr.  Cmnburoc 
it  to  Mr.  Charnock  ;  what  ilie  partt- 
wa«,  1  cannot  ha  poaiti? e :  in- 
do  not  very  well  remend^er  the  tnes- 
tBe^km  the  list  waa  carried  to  Mr.  Chamork, 
iM lithe  best  of  my  memory  it  was  to  g^ive 
Hr.diarfiock  ao  account  what  men  bo  wof 
«it«f$  f<kr  Mr.  Porter  told  me  of  several  dis" 
appMoienls  he  bad  had,  of  persons  ikftt  had 
flMtocl  inWf  and  failed. 

Mr.  Phijps,    Can  you  remember  what  Mr. 
tattlnirfte  said  upon  Uiat? 
Dr  U  Ru^.    No,  I  do  not. 
Qrmmhmrne.    Wiiat  measag^e  wa«  thai»  you 
HI,  I  brought  from  air  Geor^re  Barcley  ? 

Dc  la  Huo  I  do  not  kuy  that  you  brought 
my  mcflsage  firom  i?ir  George  liardey^ 

Carji^rae.  You  said  that  I  brought  a  ines- 
nigv,  that  air  George  Borcley  would  i^ee  him. 

ht  la  Hur,  I  du  not  say  so  ;  hut  I  iay  that 
yan  ttdd  Hr.  Porter  that  Mr.  CljurnofJc  sent 
foia  with  a  message  to  let  bim  know  thai  sir 
&■•.  Bardey  was  desiroui  to  see  Mr,  Porter, 
10  ooofer  about  taking  care  of  Iheniselvc^. 

Cmmkumt,  Did  ynu  hear  me  name  sir 
George  Barcley**  nnme  ? 

Sh  l»  Rmu.  'Ye»,  1  *ay  you  lolrl  Mr.  Porter 
Ikat  Mr.  C  ha  mock  md  you  caution  him  to  take 
tan  0l'hiimm^il\  and  that  he  wvM  go  tUcit  way, 
ftf  air  George  Barcley,  and  he,  ilesirtNJ  to  see 
kin  ;  wd  Mr.  Porter  said  it  was  an  uureaion* 
iMtlbingfor  Mr.  Gharnock  to  desire  it,  be- 
fittm  iba J  knew  ho  waa  under  cirotjmstancesi 
llittlfna  not  proper  lor  him  to  go,  and  he 
Mttdijud  th^y  would  not  rather  come  to  bim< 
L  C\  /»    nhu  lime  a-day  was  this  f 


k 


De  la  Rue,  Il  was  about  twelve  o^clock,  i 
think. 

L,  C.  /.  Waf  it  aAer  sacb  lime  as  the  newt 
was  hrotight  thai  the  king  did  not  go  abroad 

that  day  ? 

Jh  ia  Rue.  Yes,  my  k>rdy  il  wtm  aAer  that 
lime. 

Mr.  Phtpps,  Were  you  with  sir  George  Bar- 
cley  when  he  was  here  in  England?  jDid  yoii 
see  htm  here? 

De  /a  Rue.  I  did  nol  aee  him  on  this  aide 
oftbe  water.  1  knew  him  abroad,  and  a  great 
many  other  unfortunate  persons,  that  were 
coDoerued  in  this  aii'^ir  ;  1  knew  son»e  of  them 
here^  and  thot  ihey  were  concerned  in  the  de- 
sign, but  1  did  not  converse  with  many,  inde€4 
with  hut  a  very  few  about  it ;  for  to  shew  that 
J  was  not  a  man  that  defiigncd  to  trepan  or  en» 
snare  any  man,  1  did  never  exchange  two 
words  about  this  matter  with  any  porsonfi  that 
f  knew  were  eonoerned  in  it,  but  sir  William 
Parky  ns%  (and  that  lint  in  a  small  measure) 
and  Mr,  Chiurnockt  and  Mr.  Porter,  and  Mr, 
King,  and  colonel  Pnrker;  except  what  passed 
u|Kjn  the  2 2d,  between  Mr.  Porter  and  Mr, 
Charnock,  when  Mr.  Porter  sent  Mr.  Crou- 
burnc  to  Mr.  Charuock.  Mr,  Cranbiirne  was 
one  wlio  Mr.  Porter  oalted  his  quarter- master: 
I  know  thiB  gentleman  was  coiiimonly  depend- 
ing upon  Mr.  Porter,  but  J  think  I  never  was 
much  in  hit  com  pan  v ;  1  did  not  know  what 
dchign  be  bad  upon  hfm,  hut  I  was  told  by  Mr. 
Porter,  that  he  intended  to  make  him  hi^ 
quarter- master,  and  I  understood  Mr.  Porter 
was  to  have  a  tvoop  of  hur:ie  in  colonel  Parker's 
regiment 

Mr.  Phipp$,  Yon  say  you  knew  a  great 
many  of  litem  that  were  eoucerued,  but  yoti 
discourbeii  and  conversed  hut  witli  &  few  P 

I>c  la  Rue.    I  do  so.  Sir, 

Mr.  Phippi,  How  do  you  know  that  Ihey 
were  concerned,  when  you  did  not  dtsoourae 
with  ttjem  ? 

De  la  Rue.  By  information  from  Mr.  Char- 
nock  and  Mr.  Porter. 

Mr.  Phippt.  Do  you  krK*w  any  thing  mor« 
of  Mr.  Cranburne,  than  the  list,  and  what  you 
have  said  already  ? 

De  la  Rue.  I  give  you  an  account  of  aU 
that  1  do  know. 

L.  C.  X  Answer  that  particular  question. 
Do  you  know  nothing  moi-c  than  what  you 
have  said  ? 

De  la  Rue,  No,  my  lord,  1  do  not  remember 
nor  know  any  inor<?  aa  to  Mr.  Cr&nbume  thsn 
what  I  have  decbred,  artd  I  am  sorry  1  bad 
occasion  to  decfure  so  much. 

dit.  Gen*    Then  call  Mr.  Pendergrass. 

[Who  was  sworn.  1 

Sol,  Gen,  Pray  will  you  give  my  lord  and 
the  jury  an  account  of  what  you  know  of  the 
intended  assussinittion,  and  how  fur  Mr,  Cran- 
hurne,  the  prisoner  at  the  bar,  was  concerned 
in  it. 

Pendergrais.  My  lord,  the  13th  of  February 
last,  I  came  out  of  fiaitipshire,  Mr.  Porter  ^nt 
ibr  me  to  come  to  town^  and  j  met  hitu  tK%t 


^ 


855] 


8  WILLIAM  IIL 


day  At  the  Blue-Posts  in  Sprfogf-f(irden,  and 
there  he  told  me  of  the  assassinatiou  that  was 
to  l»e  d«>ne  on  Setunlay  tbilowing:  the  next 
day  we  dined  at  the  Kose-taTern,  where  the 

Erisoner  dined  with  us,  and  we  talked  of  the 
usiiiess ;  that  was  Friday  the  14th,  and  we 
were  to  be  in  readiness  the  next  dav  to  assas- 
sinate the  kingf,  as  he  was  coming  from  Elich- 
mond ;  but  some  oom|Niny  comme  in  after- 
wards, we  lef^  oflT  the  discourse,  and  talked  no 
more  that  nt({^ht.  The  next  day  that  we  were 
to  do  tlie  business,  we  met  at  the  Blue-Posts 
in  Sprinf^- garden,  and  findings  the  kinji^  did  not 
go  abroad  that  Saturday,  we  dined  there  at  the 
Blue-Ptuits,  and  talked  over  a^n  of  assassi- 
nating the  king,  and  the  priiioner  was  by  at  the 
same  time ;  tliey  were  aJI  mightily  conoemed 
the  kinff  did  not  go  that  Satunlay  ;  but  when 
we  liad  dined  there,  we  had  no  further  dis- 
course am»ut  the  assassination  that  day,  but 
every  body  was  to  prepare  against  the  next 
Saturday. 

L.  C.  J.  Was  that  agreed  upon  then  ? 
Pendergran.  Yes,  it  was  by  all  the  com- 
pany ;  so  we  parted  that  dsy.  8ome  time  the 
next  week  I  met  1^1  r.  Porter,  and  Mr.  porter 
asked  roe,  if  I  had  a  horseman's  .sword  ?  I 
told  him,  No :  says  he  to  Mr.  Cranbome,  Let 
capt.  Pendergrass  have  one  of  the  horsemen's 
awords  that  you  have  got.  8ays  Mr.  Cran- 
burne  to  me.  If  you  will  come  to  my  honse 
you  shall  make  choice  of  one  yourself,  for  I 
liave  several  at  home.  Said  I,  Mr.  Cranbume, 
1  cannot  go  that  way,  but  I  will  Uke  one  of 
your  choesing,  if  so  be  you  will  leave  it  at  my 
lodgings :  he  said  he  would  do  it,  and  did ;  he 
left  it  at  my  lodgingi  in  Suffolk-street,  which 
sword  I  have  still.  The  day  following  I  met 
him,  and  he  asked  roe  if  1  had  received  the 
sword  P  1  said,  I  had  it ;  and  he  said  it  was 
▼ery  well.  AAer  tliis,  I  did  not  see  Mr.  Cran • 
bunie  till  Saturday  the  S9d,  at  which  time  f 
came  to  Mr.  Porter's  lodgings  between  nine  and 
ten  o'clock  in  the  morning,  and  the  prisoner  at 
the  bar  was  there,  and  1  heard  Mr.  Porter  give 
him  a  message  to  go  to  sir  William  Parky  us 
for  some  honti'S,  1  know  not  how  many,  l^hc 
prinouer  went,  and  in  some  time  after  came 
twck  again,  and  brought  an  account  that  the 
king  went  out  that  Saturday  the  33d  to  Rich- 
mond ;  so  every  ho«ly  was  to  get  ready :  and 
I'Ir.  Cranbume  said,  that  Mr.  Cbamock  de- 
sired that  Mr.  Porter  would  send  a  Int  of  his 
-meu ;  upon  which  Mr.  Porter  wrote  a  list  of 
his  men,  and  gave  it  to  the  prisoner  to  carry  to 
Mr.  Cbarnock,  and  bid  him  meet  him  at  the 
Blue- Posts ;  and  Mr.  Porter,  and  Mr.  De  la 
Rue,  and  I,  took  coach,  and  went  down  to 
Spring- garden,  and  when  we  came  to  the  Blue- 
Posts,  there  were  some  persons  that  1  think 

Mr  I>e  la  Kue  had  an^iointed  to  come  there :  say  on  behalf  of  the  prisoner  in  this  rest 
the  tirisoner  comes  tnither,  and  brought  the  j  this :  Here  are  but  tliree  witnesses  prod 
list  back,  with  a  list  of  Mr.  Chamock's  men  ;  and  as  to  one  of  them,  De  la  Rue,  there 
underneath.  1  know  not  who  the  men  were,  i  evidence  that  he  ^ives  your  lordship  ai 
for  I  saw  it  only  on  tlie  one  side  of  the  table  in  jury  that  affects  this  matter,  but  only  that 
Mr.  Porter's  hand ;  at  the  same  time  the  pri- 
coiicr  brought  an  aocouuti  that  the  |^og  did 


Trial  of  Charles  Cranbume^ 

not  go  abroad  that  day,  and  presently  aft 
had  the  same  accoimt:  from  other  hands 
captain  Porter  and  I  went  cot  of  town,  a 
heard  no  more  of  it. 

£.  C.  J.  Are  you  sure  that  ht  did  ag 
this  matter  before  the  15tli  P 

Pendergrass,  Yes,  I  am  sore  of  it 
agreed  to  it  Fri«lay  the  14tli,  at  the  i 
tavern,  in  Oovent-garden. 

L.  C.J.  C>n  the  15th,  it  seems  they 
disappomted ;  are  you  sure  there  was  ao  i 
ment  to  pursue  it  the  22d  ? 

Pendergrass,  Yes,  1  am  sure  there  wa 
lord. 

L,  C.  J.   Was  the  prisoner  there  ? 

Pendergrass.  Yes,  my  lord,  I  am  sor 
the  prisoner  at  the  bar  wins  there. 

Crunbume,  Pray,  Mr.  PendetgraM, 
there  any  discourse  about  thia  thiog  w 
was  there  P 

Pendergrass,  Yes,  Mr.  CranburiM,  yoi 
not  hot  remember  there  was. 

Cranbume,  What  hour  did  I  come  1 
pray.  Sir .? 

Pendergrass,  Truly,  1  cannot  be  potiti 
an  hour ;  but  you  were  there  while  thi 
course  was. 

Cranbume,  Whether  I  did  stay  thi 
the  while,  and  who  was  in  the  company! 

Pendergrahs,  All  ■  the  company  bnil 
about  six  o'clock ;  there  was  Mr.  King, 
Porter,  Mr.  Kendrtok,  Mr.  Cranbume, 
Keyes,  and  myself. 

Cranbume.  Was  Kendrick  there  wl 
was  there  ? 

Pendergrass.    Yes,  I  am  sure  of  it ; 
do  you  all  the  justice  in  the  world  that  I  • 

Sir  B,  Shower.  You  say.  Sir,  he  did 
upon  the  14th  to  this  desigti ;  pruy  what  ^ 
did  he  use  ? 

Pendergrass.  He  did  agree  that  we  s 
attack  the  king  the  next  day. 

Sir  B.  Shotcer.  Pray,  Sir,  if  yon  ca 
collect  yourself,  what  did  the  prisoner  as 
whether  you  took  him  to  agree  liy  being  si 

Pendergrass.  He  said,  he  hoped  we  s 
execute  our  business  the  next  day. 

L.  C  J.    What  day  was  that  r 

Pendergrass.  That  was  the  14th  of  F 
ary,  and  the  same  night  I  gave  account  c 
matter  to  my  lord  Purtlaud. 

Mr.  Phipps.  Did  he  agree  to  be  one  I 
execution  of  the  design  ? 

Pendergrass.  Yes,  he  did  ;  he  disoo 
the  matter  to  me  himself. 

Att.  Gen.  My  lord,  we  have  done  wit 
evidence. 

L.  C.  J.  Well,  then,  what  say  you  to 
the  prisoner  ? 

Sir  B.  Shower.    My  lord,  what  we  hi 


was  a  list  given  by  capt.  Porter,  and  o 
the  prisoner  to  Mr.  Charaock,  and  te  br 


for  High  Treason. 

b.    Bat  he  does  not  recollect,  nor 
oy  ineMage  that  was  sent  from  Purter 


A.  D.  1696. 


[S5S 


to  Mr.  'Chamock  :  now,  m  v 
bare  carrying  of  a  note  of  names  will 
idenoe  of  treason.  Mr.  De  la  Rue 
iwear  to  any  privity  of  the  prisoner, 
list  was  for,  nor  to  the  delivery  of  the 
h  is  the  overt-act  in  the  indictment ; 
what  account  this  list  was  written,  or 
coaght  hick  again,  or  any  word  that 
1  from  captain  Porter  to  him  upon 
e  list,  or  any  word  when  it  was  brought 
in.  So  that  as  to  De  la  Rue's  tasti- 
e  must  submit  it  to  the  memories  and 
un  of  your  lordship  and  the  juiy ;  we 
only  proves  a  plot  in  general,  of  which 
lo  peradventure,  every  body  is  satisfied 
re  was  such  a  hornble  conspiracy : 
It  have  been  condemned  and  executed 
sve  owned  it,  and  so  it  can  never  be 
;  but  he  does  not  say  any  thing  to  af- 

pnsoner  at  the  bar;   for  as  to  the 

of  healths,  and  being  presant  when 
alths  were  drunk,  though  it  be  an  evi- 
'  disaffection  to  the  government,  or  too 
kmI  manners  and  complaisance  to  the 
f  a  man  is  in ;  yet  that  disaffectk>n,  or 
iper,  or  complaisance,  we  hope  are  no 
s  of  treason.  It  is  plain  the  prisoner 
od  very  much  upon  captain  Porter ;  he 
rath  bis  servant  to  go  of  his  errands. 
Beted  an  office  from  him,  God  knows 
Mit  it  does  not  appear  by  any  particular 
hat  he  did  any  tbmg  that  can  be  treason, 
r.  De  la  Rue's  evidence.  Then,  as  to 
r.  Pendergrass  says,  I  must  confess  his 
t  comes  home :  for  he  says  there  was  a 
of  tlie  assassination,  and  some  agree- 
'ibe  prisoner  to  it ;  but  I  must  beg  your 
1^  favour  to  observe,  upon  Mr.  Pender- 
cvidence,  if  that  stand  akine,  it  will  be 

witness,  and  then  we  are  safe  by  the 
'  of  this  act  of  parliament. 

/.  Ay,  and  by  the  law,  before  the 
of  that  act. 

.  Shower.  Then,  as  to  capt.  Porter,  I 
pg  leave  to  say,  if  our  witnesses  are 
lat  were  absent  at  the  other  trial,  and 
>ve  what  is  in  my  instructions,  it  will 

much  questionable,  whether  theve  be 
idibiiity  due  to  his  testimony :  then  if 
£  off  nis  testimony,  there  is  only  the 
e  of  >lr.  Penderrrass ;  and  if  he  be  to 
fed,  to  which  I  nave  nothing^  to  say  at 

in  the  case  of  a  man's  life,  upon  an  in- 
t  of  treason,  where  the  law  requires  two 
witnesses,  his  single  testimony  is  not 
It  to  convict  the  prisoner.     We 

call  our  witnesses,  and  then  we  shi 
lo  your  lordship,  and  the  jury. 
Phipp*  A%  to  the  particular  overt- act 
he  in«lictnicnt,  ihe  carrying  about  the 
y  Mr.  De  la  Hue  speaks  to  it,  and  sir 
MDCW  Shower  has  gif  en  it  an  answer, 
laH  not  repeat  it. 

/.  Ijtok  y  e,  for  that,  if  any  one  overt- 
ovcd  by  2  witnefses,  it  is  well  enough. 

XIII. 


Sol.  Gen.  Besides,  they  mistake,  my  lord, 
extremely ;  for  captain  Porter  and  Mr.  Pen- 
dergrass  speak  both  of  them  to  that  particular 
as  tothe^ist. 

Sit  B.  Shower.  Wedonot  deny  it;  the  ques- 
tion is,  Whether  you  have  two  credible  wit- 
nesses ? 

Cranhurne.  Pray,  Mr.  Penderj^rass,  do  you 
remember  what  daptain  Porter  said  to  you,  and 
I,  when  we  came  down  to  the  Blue-Posts, 
leaning  upon  the  rail  ? 

Pendergrat$.    Indeed,  Sir,  1  do  not. 

Cranburne.  I  would  have  you  recollect 
yourself;  as  we  stood  against  the  rails  in 
Spring-garden,  when  we  came  down  from  the 
Blue-Posts,  after  the  design  miscarried,  Mr. 
Porter  said,  Mr.  Chamock  and  they  might 
thank  themselves  if  it  were  discovered;  *  For,' 
savs  he,  *  I  never  communicated  a  word  of  this 
*  thing  to  any  of  my  party.' 

Pendergrass.  indeed,  I  do  not  remember  a 
word  of  it.  Sir. 

Mr.  Phipps.  My  lord,  we  have  one  piece  of 
evidence  to  offer  against  the  testimony  of  cap- 
tain Porter:  he  says,  that  he  sent  Cranburne 
vrith  Gunn  from  the  Cock- pit  to  see  for  hackney 
horses,  and  that  Cranburne  came  to  him  to  the 
Sun  tavern,  and  there  they  had  some  discourse 
about  executing  the  design  the  next  day ;  and 
being  asked,  who  was  by,  when  he  communi- 
cated the  design  to  Cranburne?  and  partica- 
larly,  whether  Mr.  Gunn  was  by?  He  says  he 
came  in  afterwards,  hut  was  not  there  at  the 
time  of  the  communication  about  the  design. 
Now  we  shall  prove  that  Gunn  came  in  with 
the  prisoner,  and  was  with  him  all  the  time, 
and  there  was  no  such  discourse  happened. 

Sir  B.  Shower.  Call  Jeffery  Gunn,  and  Mary 
Gerrard.  [They  appeared/l  Your  lordship 
will  observe,  what  captain  Porter  swore,  that 
be  went  into  the  room  to  Cranburne,  and  Gunn 
was  not  there :  now,  if  we  falsify  him  in  that 
particular,  we  shall  submit  to  your  lonlship 
now  far  he  is  to  be  believed  iu  the  rest. 

Att.  Gen.  Pray,  sir  Bartholomew,  ask  your 
witnesses  what  you  will,  but  make  no  descants 
upon  their  evidence  till  you  have  heard  them. 

Then  the  two  Witnesses  were  sworn. 

L.  C.  J.  Well,  look  ye,  you  are  both  upon 
your  oaths,  consider  what  \ou  say,  speak  the 
truth,  and  tell  all  that  you  know,  and  nothing 
but  the  truth.    Which  do  you  begin  with  ? 

3Ir.  Phipps.  Jeffery  Gunn— Pray  Mr.  Gunn, 
did  you  go  to  the  Sun-tavern  at  any  time  with 
Mr.  Cranburne? — Gunn.  Yes,  I  did. 

Mr.  Phinps.  What  day  of  the  month  was  it? 

Gunn.  1  cannot  positively  tell  the  day,  it  was 
of  a  Friday. 

Sir  J5.  Shower.  Was  it  of  a  Friday,  in  Fe- 
brua»-y,  or  January  ? 

Gunn.    It  was  lu  February. 

Mr.  Phipps.  Was  it  before  the  plot  broke 
out? — Gunn.  Yes,  it  was. 

Mr.  Phipps.  How  long  was  it  before  the  plot 
broke  out  ? — Gunn.    I  cannot  tell  that,  truly. 

Mr.  Phippi.   Whence  did  you  go  ? 
8 


»55] 


8  WILLIAM  III. 


I 


I 


day  a  I  the  Blue- Pastil  in  Kpiing-^rden,  and 
thi^re  litf  toM  me  nf  the  HssFLs&itmlion  that  was 
III  he  iUn\f  on  JSnlnniay  ttil]n«vtu|^ :  tLj?  licxt 
tlav  we  i\\nei\  al  the  K<>«e-tiiveni,  wliere  the 
prisoiier  iHi*€tl  wiib  us,  ainl  we  talked  of  tt*e 
buiii liens ;  that  was  Friday  tUe  Htb,  and  we 
VtCFv  lo  be  iu  readioes^  the  iiext  dav  to  ausa^- 
ainale  the  king",  ai  he  was  comities  fit»ni  lUch- 
niotfd  ;  but  some  cniii|mTij  coming  m  after- 
wuntij«  we  left  utT  the  di^couiiKC,  and  latked  no 
more  that  nigliL  The  iiejtt  day  that  wc  were 
to  do  lire  husiness,  we  met  iit  the  Blue*PiJst?i 
in  Spring- £;iirden,  and  Hndirig  tltt^  kiu^  did  not 
(f  0  abroad  that  Salurduy,  \^e  dined  there  at  the 
Bloe*r«i»tii|  and  talked  over  aiTain  of  assas^i* 
Haling'  the  kioqr%  and  the  prisoner  was  hy  at  the 
liamc  tune;  they  were  uU  mightily  concerned 
the  kiog  did  not  i^o  thai  Satnnlav  ;  bnt  wh«r^n 
we  iiail  dined  there,  we  had  no  further  dis* 
loutse  uiniut  the  assassination  that  day,  but 
pvcry  bmly  was  lo  prepare  og^aitist  tJie  ntixt 
8atui^ay* 

L,  C'  /♦    Was  that  agreed  upon  then  ? 

Pendrrgniss.  Ye»,  it  was  hy  aU  the  coiti- 
fany  ;  so  we  parted  thai  day.  home  time  the 
next  week  I  met  Mr.  Porter,  and  Mr.  Poner 
asked  nie,  if  I  had  a  hortwman^s  iwmd  ?  1 
told  liim,  No:  says  he  to  Mr.  Cranhunie,  Let 
<"ajil.  Peridergrass  have  one  of  the  horhemen's 
KWonh  tliat  you  hin^e  §ot.  t^aya  Mr,  Cran- 
liinie  to  me.  If  you  will  cnme  to  my  honse 
V«>u  shulJ  umke  choice  of  one  yourself,  tnr  I 
haveaeveral  at  home.  Said  I,  iVlr.  Cranburne, 
i  caiHiot  go  that  way,  but  I  will  take  one  of 

?'Oiir  cb<Miaingr^  if  ao  be  you  will  leave  it  at  my 
wlgin^ :  he  said  he  would  ilo  it,  and  did ;  be 
left  it  at  my  lod^ng^  iii  Huflblk -street,  which 
aMord  I  have  stilL  The  day  fotUnvitig  I  met 
him,  and  he  asked  nie  if  I  had  received  the 
fword?  I  said,  I  had  it;  and  he  said  it  H-as 
Tery  welL  AlWriliis,  t  did  not  see  Mr.  Crau- 
hume  till  baturduy  the  3'Jd,  at  which  time  I 
came  to  Mr.  Porter's  lud^gings  between  nine  and 
ten  o'clock  in  the  mominjr,  and  the  prisoner  at 


Trial  of  Charles  Crmnbume^ 

not  ^  abroad  that  day,  and  presently  after  i 
had  the  same  account  from  other  bvida  ;  as 
captain  Porter  and  I  weat  out  of  town,  and^ 
heant  no  more  of  it, 

L.  C.  J.  Are  you  sure  that  he  did  agree 
thia  mailer  before  the  15th  ? 

Pendergrau,  Yes,  1  am  sore  of  it ;  I 
agreed  to  it  Friday  the  I4ih,  at  the  Rot 
tavern,  in  Co  vent -garden. 

L.  C.J.    (In  the  ISUi,  it  aeenid  they 
disap^ioinied  ;  are  you  sure  there  was  an  agif 
meat  to  pursue  it  the  22d  ? 

F4ndcrgrau,  Y  es,  1  atu  sure  there  waa^ 
lonl. 

X.  C.  J.    Was  the  prisoner  there  ? 

Fendergrati,    Yea,  my  lord,  I  an 
the  prta«nicr  at  the  bar  was  there. 

Crunlurne,     Pray,  Mr,   Pentlerirraas. 
there  any  discourse  about  this  thing 
was  there? 

Fender  grass*  Yes,  Mr.  Cranburtie,  y* 
not  bat  remember  there  was. 

Cran6urae>     What  hour  did  f  come  ll 
pmy,  Sir  f 

Fendergrau,  Truly,  1  cannot  be  posittre 
an  hour ;  but  you  were  there  while  ibe  <f 
course  was. 

Cranlmnte.  Whether  I  did  itay  there 
the  while,  and  whfi  was  in  the  company  ? 

Fender gra^i,     AH   the  company   broke 
about  hix  oVlock;  there  was  Mr.  King-,  cm 
Purler,   Mr.  Kendrtc^lc,    Mr.  Cranburne,   I 
Key es ,  a  n  d  m  )'feel  f . 

Cranburne.  Was  Kcodrick  there  when 
was  ihei-e? 

F aider grau.    Yea,  I  am  sure  of  it ;  1 
do  you  all  the  justice  in  the  world  that  1  cj 

J^ir  B.  Shmeer.    You  say,  8ir,  he  did 
upon  the  14lh  to  this  desigu  ;  pray  w 
did  he  use  f 

Fender  grass,     ITe  did  a^ree  that  we 
attack  the  kin**-  ilic  next  day. 

Sir  B.  Shower.     Pray,  Sir,   if  you 
c«dlect  yourself,  what  did  the  nriiioner 


the  bar  ssas  there,  and  1  hearil  Blr,  Porter  give    whether  you  touk  him  to  agree  by  being 


him  a  messat,'*?  tu  go  to  sir  Wilham  Parkvns 
for  some  hurbi%,  I  know  not  how  many.  "the. 
pritioner  went,  and  in  some  time  alter  came 
iMck  again,  and  bri^uj^bt  an  account  th^t  the 
kiug  went  out  I  hat  Saturday  the  Qad  i<j  Rich- 
mond ;  so  every  InHly  was  lo  gut  ready :  and 
^r.  Cranburne  i^aid,  that  Mr,  Cliarm>ck  de< 
Hired  thai  Mr.  Purler  w*nild  send  a  list  of  his 
ineu  ;  u|»on  which  Mr.  Porler  wrote  a  list  of  | 
htii  %x\e\\  Bud  gave  it  to  the  prisoner  to  carry  to 
Mr.  Charnock,  antt  bid  him  meet  hini  at  the  I 
Blue-Po«ts;  and  Mr,  Porter,  and  Mr.  De  la  ' 
Rue,  atid  I,  took  coach,  and  went  down  to 
{»priDg-gpirdeu,and  when  we  came  to  the  Blye- 
Posts,  tlieie  were  son^e  persons  that  1  think 
Mr  Dc  la  Rue  had  appointed  lo  come  itiere 


Fender gntu.     He  said,  he  hoped  we  si 
execute  our  hintiuL-s^  the  next  day. 

X.  C  X    What  day  was  that  ? 

Fendergraii.    Tliat  was  the  14th  of  Febr 
ary,  and  the  same  night  1  gave  account  of 
matter  to  my  lord  Purtland. 

Mr.  Fhippi    Did  he  agree  lo  he  one  io 
execution  ot  the  design  ? 

Fender  grass.    Yes,  he  did  j  he  disooti 
the  matter  to  me  himself. 

Ait,  Gen.    My  lord,  we  have  done  with^ 
evidence, 

L.  C.  J.    Well,  then,  what  say  you  to  it 
the  prisoner  ? 

Sir  B.  Sh oner.    My  lortl,  what  we  hare 
say  on  btdtalf  of  the  prisoner  in  this  respect 


the  [prisoner  corner  thither,  and  brought  the  j  this  :  Here  are  but  tiiree  witnesses  prodtii 


ha  back,  with  a  liiit  of  Mr.  Charnock  s  men 
underneath.     1  kuovv  nol  who  the  Dien  were,  i 
for  I  saw  it  only  on  the  one  «ide  of  the  table  in 


and  aa  lo  one  of  them,  De  la  Rue,  ibere  is 
evidence  that  he  gives  yuur  lordship  and  1 
ury  that  utfecis  this  matter,  but  only  that  tbi 


Mr,  Porter's  hand  ;  ^t  ijjc  saciie  time  the  pn*  1  was  a  list  given  by  capt«  Porter,  aud  carried 
foncr  brought  an  accouut,  thai  the  |^og  did  ,  the  prii^iner  to  Mr-  Charoock,  and  so  brat^ 


w 


Jur  High  Trtaion. 


bthit\ 


EiorQpon 


a^fn.  But  he  doe«  uot  recollect,  nor 
T  to  aoy  message  that  was  sent  from  Purler 
the  prtsooer  to  Mr.  'Chamock :  now,  my 
|fcrd,  tJie  ban  earning  of  a  note  of  names  will 
lie  ixi  evideoce  of  trt^sott.  Air.  De  la  Rue 
iMn  swesr  to  any  priyity  of  tiie  prisoner, 
the  lis»t  wnA  foi\  nor  to  ihe  delivery  of  tbe 
t,  which  is  the  overt-act  in  the  imiictment ; 
what  account  this  list  was  wrjittn,  or 
;,  or  brought  buck  aj^ptin,  or  any  wont  that 
'ed  from  captain  Porter  to  bini  upon 
the  list,  or  any  word  when  it  was  brought 
ftgain.  So  that  as  to  De  la  Uue^s  testi- 
1MDT,  we  tmiist  sn limit  it  to  the  roeftiones  and 
leooilectton  of  your  lordship  and  the  jury  ;  we 
tbiak  he  ooly  profesa  plot  in  general,  ot  wlitcb 
Ibffe  is  no  pcradienture,  every  body  is  salii^fied 
1^1  there  was  sncb  a  bornble  conspiracy  : 
thoK  that  hate  been  condemned  and  escectUed 
^il^  have  owneti  it«  and  so  it  can  never  be 
4ouiiUnl ;  but  he  does  not  ^ay  auv  thing  to  af- 
hX  ibe  prisoner  at  the  bar ;  for  as  to  the 
i^Amis  of  healths,  and  betn^  present  when 
tbMt])«alihswere  drunk,  ihough  it  be  an  evi- 
Iao0  of  disaffection  to  the  jrovemment,  or  ton 
tndi  good  manners  and  complaisance  to  tbe 
tmffV^y  a  man  is  in  ;  ^et  that  disatTecttoo,  or 
^fdimper,  or  coneiplaisance,  ue  hope  are  no 
tfiieooea  of  treason.  It  is  plain  the  prisoner 
44 Impend  very  much  upon  captain  Porter  j  he 
»u  in  truth  his  servant  to  go  of  his  erranils* 
ind  e3rpecie«i  an  office  from  him,  God  knows 
tbni;  but  it  does  not  appear  by  any  particular 
lavHuthai  he  did  any  thing  that  can  lie  treason, 
span  Mr.  De  la  Uue*s  evidence.  Then,  as  to 
WA  Hr,  Pender;; rass  says,  I  must  confess  his 
^bec  <?onies  home  :  tor  he  stivs  there  was  a 
^1^  of  the  assassination,  ami  some  agree- 
MHI«f  th4^  prisoner  to  it ;  but  I  must  beg  your 
MiUp's  favour  to  observe,  upon  Mr,  Pender- 
linrMli  eridcDce,  if  that  stand  alone^  it  will  he 
mime  witness,   and  then  we  are  safe  by  tbe 

Ifonifvr  of  this  act  of  parliament, 
L,  €.  X  Ay,  and  by  the  lavv^  before  the 
^ikiaof  of  that  act. 
Sit  U.  Shirmer,  Then,  as  to  ca|»t.  Porter,  ] 
lioat  beg^  leave  to  say,  if  our  witnesses  are 
cooie  that  were  absent  at  the  oihtr  trials  and 
Ik^  prove  what  is  in  my  instruclions,  it  will 
Ve  very  much  questionable,  whether  there  be 
lay  credibility  due  to  his  teitimony :  then  if 
jou  lake  off  his  testimony,  there  is  only  the 
tridcoc^  of  Mr,  Penderpass ;  and  if  lie  he  to 
be  beheyed,  to  which  I  have  nothing  to  say  at 
proent^  in  the  case  of  a  man*8  life,  upon  an  in- 

(ifltonent  of  treason,  where  the  law  requires  two 
Qiilble  witnesses,  hts  single  testimony  is  not 
■fieieot  til  convict  the  prisoner.  We  beg 
ktve  to  call  our  witnesses,  and  then  we  shall 
lave  '  •     r  lordship,  and  the  jury. 

II  As  to  tlie  particular  overt-act 

Wi**...v  ■' '  nt,  1  he  carrying  about  the 

bl«  only  t  [iue  speaks  to  it,  and  sir 

navtSioliiiu.  er  has  given  it  an  answer, 

lad  I  that]  not  repeat  it. 

L  C  J   bx>k  3  e,  for  that,  if  any  one  overt- 
tct  n  proved  by  2  mtueiiet,  it  ii  \vetl  enough. 
^OL.  XIII. 


f 


SoL  Oen.  Besides,  they  mistake,  ray  lord, 
extremely  ;  for  captain  Porter  and  Mr.  Pea- 
dergrass  speak  both  of  them  to  that  partlcoJar 
as  toihe^ist. 

Sir  B.5Aoarr.  We  do  not  deny  it;  the  ques- 
tion is,  Whether  you  have  two  credible  wit- 
nesses ? 

Cranhurne.  Pray,  Mr.  Pendergrass,  do  you 
remember  what  (Captain  Porter  said  to  you,  and 
I,  when  we  came  flown  to  the  IMue-Pofit9, 
leaning  upon  the  rail  ? 

Fcndergrau.    Indeed,  Sir,  1  do  not. 

Cranburne.  I  would  have  you  recollect 
yourself;  as  we  stood  against  the  rails  in 
Spring-garden,  when  wc  came  down  from  the 
Blue* Posts,  after  the  design  miscuriicd,  Mr. 
Porter  said,  Mr.  Charnntk  and  ihey  might 
thank  themselves  if  it  wire  discovered ;  *  For,* 
says  he»  *  I  never  communicated  a  word  of  Ihia 
*  thing  to  any  of  my  piirty.' 

Pendcrgrass.  Indeed,  I  do  not  remeniber  a 
word  of  it,  Sir. 

Mr.  Phipp$.  My  lord,  we  ha?«  one  piece  of 
evidetice  to  offer  against  the  testimony  of  itap» 
tain  Porter:  he  sa}%  that  he  sent  Cranlmrue 
with  Gnnn  from  the  Cock-pit  to  see  fur  hackney 
horses,  and  that  Cranburne  cnme  to  him  to  the 
8un  tavern,  and  there  they  had  some  discourse 
about  executing  the  design  the  next  day ;  and 
being  asked,  who  was  by,  when  he  Cjommuni- 
eated  the  design  to  Cranburne?  and  particu- 
larly, ivhether  Mr.  Gunn  was  by  ?  He  says  he 
came  in  afterwards,  hut  was  not  there  at  the 
time  of  the  communication  about  the  desj|fn. 
Now  we  shall  prove  that  Gunn  came  in  with 
the  [irisfmer,  and  was  with  him  all  tbe  time^ 
and  there  was  no  such  discourse  happened. 

Sir  B.  Sihower,  Call  Jeffery  Gunn,  and  Mary 
Gerrard,  [They  appeared."]  Your  lordship 
will  observe,  what  captain  Porter  swore,  that 
he  went  into  the  room  to  Cranburne,  and  Gunu 
was  not  there :  now,  if  we  falsify  him  iti  that 
particular,  we  shall  submit  to  your  iortlsbip 
liow  far  he  is  to  be  believed  lu  the  rest. 

Att.  Gen,  Pray,  sir  Bartholomew,  askyom* 
witnesses  what  you  will,  but  make  no  descants 
upon  their  evidence  till  you  have  heard  them. 

Then  the  two  Witnesses  were  sworn. 

X.  C.  X  Wetl,  look  ye,  you  are  both  upon 
your  oaths,  cousider  what  you  say «  speak  the 
irmh,  and  tell  all  that  you  Icnow,  and  Dothiug 
but  tike  truth.     Which  ito  you  begin  with  ? 

Mr.  Fhipps.  Jeffcry  Gunn — Pray  Mr  Gunn, 
did  you  go  to  the  Hun-lavprn  at  any  lime  with 
Mr.  Cranburne? — Gunn.  Yes,  I  did^ 

Mr,  Fkippi.  What  day  of  the  mouth  was  UP 
Gunn,  1  cannot  positively  tell  the  day»  it  was 
of  a  Friday- 
Sir  B,  Shower.    Was  it  of  a  Friday,  in  Fe- 
brua'-y,  or  January  ? 

GuHH.    It  was  m  February', 
3Ir,  Ffiipps.    Wan  it  before  the  plot  broke 
out? — Gunn,  Yi^s,  it  was, 

Mr,  Fhippi.  How  long  was  it  before  the  plot 
broke  out  ? — Gunn,    I  cannot  tell  ihat^  truly* 
Mr.  Phippt,   Whence  did  you  go  f 


859]  8  WILUAM  HI. 

Gunn,  I  WB9  at  the  Cock-pH,  and  I  went 
from  thence  to  the  Sun-tavern. 

Sir  B»  Shower.  Whom  did  joa  meet  there? 

Gunn,   I  saw  captain  Porter  there. 

Sir  JB.  Shower.    What  room  were  yon  in  ? 

Gunn.  We  went  mto  a  room  next  the  street. 

^^ir  B.  Shower.   Who  was  there  with  you  ? 

Gunn.  There  was  Mr.  Cranburne,  and  I, 
and  Mr.  Keyes. 

Sir  B.  Shower.  How  longp  was  it  belbre  BIr. 
Porter  came  in  to  you  ? 

Gunn.  He  came  in  about  half  a  qnartm-  of 
an  hour  after  I  was  there. 

Sir  B.  Shower.  Were  you  there  from  the  be- 
ginningr  till  Mr.  Cranbnmc  went  away? 

Gunn.  Mr.  Cranburne  and  I  went  from  the 
Cook -pit  together. 

Sir  J^.  Shower.  How  long  did  yon  stay  there  ? 

Gunn.    1  was  there  about  an  hour  and  a  half. 

Sir  B.  Shinocr.  Were  you  out  of  the  room 
at  all  in  that  time  ? 

Gunn.   Yes,  1  was  out  of  tlic  room  once. 

Sir  B,  Shower,  How  long  were  you  out  of 
the  room  ? 

Gunn.    1  went  home  to  my  lodging. 

Sir  jB.  Shower.  Were  you  ever  with  Mr. 
Cranburne  at  the  Sun -tavern  at  any,  time  be- 
sides tftis  ? — Gunn.  Never  in  my  life. 

^  Sir  Ik  Shower.  Whom  did  you  leave  with 
him  when  yon  went  out  ? 

Gunn,  Captain  Porter  and  Mr.  Keys,  aa  I 
remember. 

Sir  B.  Shower.  Were  you  there  before  cap- 
tain Porter  came  to  him  f 

Gunn.  I  was  with  Mr.  Cranburne,  and  cap- 
tain Porter  came  in  about  a  quarter  of  an  hour 
afler ;  we  came  from  the  Cock- pit  together. 

Sir  B.  Shower.  Vny  recollect  yourself,  and 
tell  us  upon  your  oath,  Were  you  there  when 
captain  Porter  came  in  ? 

Gunn.  Yes,  I  think  I  was  there  uLen  capt. 
Porter  caiue  in. 

Sir  B.  Shower.    Did  you  go  and  leave  him 
there  ? 
'  Gunn.    We  went  all  out  together.     I  was 
there  about  an  hour  and  a  half. 

L.  C.  J.  Nay,  but  you  said  you  were  absent 
some  time. 

Gunn.    I  went  home,  and  came  back  again. 

Sir  B.  Shower.  When  you  went  home,  did 
you  leave  Mr.  Cranburne  behind  you  ? 

Gunn.    Yes,  1  think  so. 

Mr.  Phipps.  Did  you  leave  captain  Porter 
with  him  ? 

Gunn.  I  think  captain  Porter  was  with  him 
then. 

Mr.  Phipps.  But,  upon  your  oath,  was  you 
in  company  with  Mr.  Cranburne  at  the  Sun- 
tavern,  wlien  captain  Porter  came  first  in  ? 

Gunn.  Captain  Porter  went  in  and  out  se- 
veral times. 

Sir  B.  Shower.  Did  you  see  captain  Porter 
before  you  went  to  your  own  house? 

Gunn.    Yes,  sure.  x 

Mr.  Phipps.  Then  it  cannot  be  true  what 
Mr.  Porter  says,  that  Gunn  did  not  come  la  till 
aflerwards. 


2'rial  of  Charles  Cranhume^ 

Att,  Gen.  Now,  Mr.  Gunn,  1 1 
a  question  or  two  first,.  Were  yov 
while  that  Mr.  Cranburne  was 
you  go  home  ? — Gt^iin.    I  went  I 

Att.  Gen.  Did  yon  come  ^k 

Gunn.  Yes,  1  went  home  and 
tuab. 

Att.  Gen,  How  long  were  you 

Gunn.  I  came  back  in  half  a 
hour. 

Att.  Gen.   How  far  is  it  to  yoi 

Gunn,   It  is  not  above  100  yar 

Sir  B.  iSAoiver.  Did  Mr.  Porte 
you  before  you  went  home,  w 
came  in  with  Cranburne  ? 

Gunn,  He  came  in  after  we 
room. 

Mr.  Phipps.  Captain  Porters 
came  into  the  room  Gunn  was  no 

L.  C,  J.  He  did  not  say  positi 
he  rcniembereil ;  now  I  would  asl 
tion  or  two. 

Sir  B.  Shower.  Pray,  mj  lord, 
from  this  evidence  is  this  :  Ct 
says,  that  upon  Friday  the  2tst  ol 
was  with  Cranbnme  at  the  Sun-ts 
of  one  room  into  another ;  he  < 
Cranburne,  and  talked  with  him  n 
ami  after  that  Gunn  came  into  th 
the  communication  was  over:  i 
swears  he  went  from  the  Cock- 
Cranburne,  he  was  with  him  in 
first  when  captain  Porter  came 
afterwards  he  went  to  his  own  he 
captain  Porter  with  Mr.  CraQ!)ur 
back  again,  and  they  came  aw; 
now,  we  Ktiy,  these  two  are  incc 
captain  Porter  swears  that  Gunn  i 
till  alter  the  cominuntcation  was  < 

L.  C.  J.   As  he  remembers. 

Mr.  Phipps.  Nay,  I  think  he 
he  came  in  afterwards. 

L.  C.  J,  As  I  remember,  he  \ 
tive ;  but  call  captain  Porter  yjjaii 

Mr.  Phipps,  When  you  cuir; 
year  house,  who  were  in  the  roon 

Gunn.  The  same  company  as 
as  I  remember. 

Mr.  Mountagiie.  Was  captain 
room*  when  you  came  back  ? 

Gunn.  Indeed  I  cannot  direct 
lieve  he  was. 

L.  C.  J.    Pray  observe  what 
snyaj  he  says,  captuin  Porter  can 
and  was  there  several  times  be: 
awav. 

Gunn.    Yes,  my  lord,  he  was 

L.  C.  J.  And  J  ou  were  absent 
bnt  were  you  there  some  time  I 
came  in  ? — Gunn.  Yes,  I  believe 

Tiien  Captain  Porter  cam 

Att.  Gen.  Look  \e,  captain  Pc 
that  man  there  ? — Porter.  Yes. 

Att.  Gen.  Pray  give  an  accoun 
know  of  that  man's  coming  in  tfl 
Sim-tavem. 


IBJ)  Jhr  High  Treusofu 

F^Ut,  I  came  several  times  out  of  m 
G«ofge  Barcley^s  room  into  UieirSf  and  to  tbe 
^of  my  retnembraoce,  Mr,  Cranl>ujne  wi» 
ilitn?  tyf^fore  HtuiD  came  in. 

'-.    D«  jau  rf?meo>ber  wljtnher 
:  ii4t  ^ou  went  out  of  sir  George 
^  riHitii  la  speaL  uiiti  ilr.  Cranhuroe, 
.    luj  was  tbere? 

/V*r/cr.  To  tUc  best  of  ray  remembrance  be 
*i*  not ;  to  the  k^it  of  my  remembrance,  Mr 
f-vtjm,  1  NHiv  Mr.  Cranburne  m  ibc  room  be- 
luic  yoii  V, -IS  iber*. 

hit  B.  Shnuer.  Did  yoo  not  order  Gutin  to 
fiome  Willi  bim  to  the  Sun-tavero  T 

Gorier.    Ve«,  8ir,  1  did. 

Sr  B.  Shof^cr,  Caouot  you  tell  whether  they 
«yM  logetiier  ? 

Fmi^r^  1  was  not  in  the  room  wheD  tbey 
WBtt  in  lifstf  but  to  tbc  best  of  my  ri^meni- 
bmctt  ba  itaiE  not  there  ivbeo  1  csme  in  the 
tatmw. 

LCmJ,  Now,  GuDD,  you  hear  h  hal  cap- 
Iti  Forter  iayi ;  before  you  went  awuy  lo 
fsirowti  boucc^did  Mr.  Porter  come  into  the 
mm  Id  you  P 

Oayrn.    Indeed,  my  lord,  (  am  not  poattjve,  I 

.Att.  Gen.  Neither  of  them  is  positive,  arwl 
iL  It  %  circumstaoce  not  very  material  ;** for  it 
Most  lia  waa  abseutt  imd  toen  the  diieouiae 
tiffbilMw 

JL  C  J.  No,  it  is  not  material,  but  you  see 
tfqtt  ft  itriet  est  a  mi  nation  what  it  comes  to, 

Sr  B.  Shower.    Th^y  ava  a^nrd  upon  it,  I 
,  tiO  b(!  positive  on  neither  side. 
9kippi*    Mr.  Ctacbtune,  pray  aak  Mrs. 
Itrtial  yoii  have  a  miud. 
'  Mrttc*    Pray  w  hat  do  you  kuow  of  ca^)- 
tib  Bof1er*fi  GTolng  out  in  disgui^«  and  wear- 
kfttlMm  \xmx  and  vixardii,  and  goiu^  upon  the 
b^toay,  ami  tuch  things  f 

Gtrrard.  I  kuow  not  what  Mr.  CrenUuroe 
Hftia      [41  which  tile  people  laughed,] 

Sir  B.  Skoucr.  It  is  no  laughing  matter, 
tkcn  a  loan  ii  upou  his  hte, 

X.  t-.  J,  No,  no,  lei  him  have  fair  play  ;  aa- 
mm  ikim  cjaesttun* 

C^^mk^me,  Bo  you  know  any  thing  of  your 
ttaitcr^a  go«Dg  abroud  in  ilbigiiiiiee  ? 

Q^rrmrd.  I  do  uoi  know  any  thing  of  my 
WnttfUt^B  foia^  upiin  the  highway. 

!LC,  J.    Did  hi*  go  uui  vinh  fizanh,  or  aiiy 

Cirrard.  1  never  saw  him  wear  a  vizard  or 
llbt  iMvrd  in  aiy  life,  but  he  had  «»uce  a  patdi 
IB  aftwn  l>e  waa  foi\;erl  lo  keep  out  ofrhe  way, 
11(011  tbe  account  of  the  Dog'taietn  liuMnej»& 
ia  Drury  ■  huie. 

Ilr.  Pkipf^$.  Bee  if  iMr.  Edward  Boucher  is 
hert.    [He  waii  caile«J,  but  did  not  appeun] 

%aB.SlwwtT,  CftU  Mra.  BurPm.  [Which 
tnadwittf  but  ibe  ^  uot  appear.] 

Hr.  FMppi.  la  William  Hardy  man  here  P 
(tfi^was  called,  but  did  not  ap|>ear.] 

Str  B,  Shauer,  Then  call  Simon  Dawfion, 
ltd  «e  bai c  done.    (WUkiU  waa  done.) 


A.  D.  lem. 


[1^69 


Cr^er.  They  are  all  called,  but  they  do  not 
appear. 

8ir  B.  Sko&cr.  My  lord,  we  rnunt  submit  it 
to  your  b>rdship^$  direct iotis,  upon  the  evidem;e 
thut  has  been  givi^n^  as  lo  the  croilibihty  of 
tliiiae  witiiai»!t^»and  whether  what  capt  Purler 
says,  and  wh^U  Gunu  says,  be  consistent;  so 
that  you  can  be  saii^tied  there  are  two  lawful 
credible  wituesaes  to  prove  any  overt- act, 

X.  C*  X  Yes,  aure ;  but  1  would  have  you 
debate  it,  il' you  believe  there  be  any  thioif 
in  it* 

8ir  B.  Shower*  I  subtoit  it  to  your  lordthip^a 
direclions. 

L.  Ci  /.  The  queaiioa  is,  Whether  1  should 
give  aoy  directions  at  all  ur  oo«  or  whether 
there  be  any  occasion  tor  it  ? 

Crajiburnc.  I  declare  thin  openly  l>efore  ihii 
honourable  court,  and  ao  muny  noblt^meo  aff 
are  here,  that  Mr.  IVrler  nrver  made  me  ac- 
quainted with  thU  design,  till  what  he  swore 
here. 

L.  C,J,  I  cannot  tell^  it  is  tworo  by  lire 
witnesses. 

Cranburnr,  I  do  declare,  though  capt.  Pea- 
dergraK«  says  he  dties  not  rememtier  il,  thai 
captain  Porter  did  decUre  iu  Bpring-gardee 
tbe  ^2d,  when  be  came  out  of  the  Blue-Po^ta 
by  the  rails,  If  this  <leiign  mi&carry,  sa^a  he, 
Mr.  Charnock  may  ihaok  himself:  for  T never 
oommunicated  this  secret  lo  any  of  my  friends. 

L,  C  J.  But  hark  ye,  do  you  conwder  what 
you  say,  If  this  drsigu  miscarry  ?  Pray  what 
design  wua  that? 

Cranburne,  He  never  oamtHl  any  thing  but 
the  design,  he  did  not  say  what  it  was. 

L.C.J.  But  why  were  yim  employ t*d  to 
carry  a  list  from  capiat u  Porter  to  Mr.  Cbar- 
uoclc,  and  lo  Uijig  a  \kt  back  again  froiu  bit|t 
to  captain  f^orter  r 

Cranhurnt.  I  did  carry  the  note,  but  tlieie 
was  nothing  mentioned  wfiai  the  list  was  for. 

L.  C.  J.  Then  you  wme  there  on  Friday 
the  Mlh,  and  thert  the  design  wait  propost^d  to 
assassinate  the  kiog  tbe  next  day,  and  you  en- 
gtiged  in  it. 

Crnnbume,    Not  a  word  of  it  true,  my  lord. 

X.  C\  J.  Ay,  but  Mr.  Peiidergm^  swt^rs 
it,  ami  that  you  were  hearty  in  the  matter,  and 
hoped  you  shoubl  do  your  bustnets  the  next 
day. 

Cranburne,  I  cannot  b^lp  it  if  he  does  swear 
it. 

L.  C.  X  Then  you  were  at  tbe  nieetiug  •! 
tbe  8uu- tavern,  the  'i  let. 

Crefi6ern«.  My  lord,  you  bear  what  Guoo 
aays. 

L.  C  J.  As  10  thai,  they  are  ueilher  of  i  hem 
posiitive;  but  you  did  iher«:  |iromise  uud  under- 
take tbe  matter,  that  captaui  Porter  is  pobitive 
in,  thai  it  wsis  ajriied  by  >  ou  all  to  do  it  tlie 
2£d;  and  Mr.  PetiderM-niss  Bays,  when  yiiti 
were  dUappointed  the  Ifiih,  you  all  agreed  to 
pursue  tbeiiume  deHitfu  tlie^aVimlay  following, 

Cran^em^.  My  l4»rd,  I  did  not  dine  at  tbrfS 
Bl ue- Posts  tbal  day. 

L.  C;.  J.    But  you  were  tbere  \  i  ibi&k^  Ukr 


S63] 


8  WILLIAM  m. 


Trial  of  CharUi  Cranhume^ 


deed,  Mr.  Penderpfrass  savi  you  came  in  after 
dinner,  and  ha\.d  some  steaks. 

Cranhume.  1  neVer  heard  directly  nor  in- 
directly of  this  design,  till  what  I  heard  them 
■wearliere. 

X.  C.  J.  Gentlemen  of  the  Jury,  You  do 
understand  tor  what  crime  this  prisoner  at  the 
bar  is  indicted :  it  is  for  higfh-treason,  in  de- 
siflpninc^  and  compassing  the  death  of  the  king, 
which  was  to  be  efft^ct^  by  an  assassination  in 
the  most  barbarous  and  wicked  manner,  that 
any  attempt  of  that  nature  can  possibly  be 
made,  being  to  surprise  the  king,  and  murder 
him  in  hia  coach. 

The  question,  gentlemen,  is.  Whether  this 
prisoner  be  gnilty  of  this  crime  or  no?  There 
nare  been  three  witnesses  produced  that  have 

B*?en  efidence  against  him,  captain  Porter, 
r.  De  la  Aue,  and  Mr.  Pendorgrass;  and 
tliey  do  all  tell  you  that  there  was  such  a  de- 
sign on  foot  to  assassinate  the  king,  as  he  came 
from  hunting  at  Richmond,  after  he  came  on 
this  side  the  water,  in  the  lane  between  Brent- 
ford and  Tumhatu -Green.  There  were  di?erse 
persons  engaged  in  this  design,  which  sir 
George  Raraley  was  come  from  France  to  pro- 
mote and  manage :  captain  Porter,  as  it  does 
appear  upon  his  evidence,  was  a  person  that 
was  principally  engaged,  and  at  that  time  was 
hearty  in  the  prosecution  of  it. 

As  to  Mr.  Cranhume,  captain  Porter  tells 
you  he  was  a  man  that  he  had  had  a  long  ac- 

Suaintauce  with,  and  hod  employed  him,  and 
esigncd  to  employ  him  as  an  oiRcer  under 
him,  in  case  a  revolution  happened,  which  it 
accms  about  that  time,  and  some  time  before 
it,  was  expected.    Captain  Porter  was  to  have 
been  a  captain,  and  1  think  he  designed  to  pro- 
mote Cranhume  to  be  his  quarter- master ;  and 
he  sent  him  to  buy  arms;  and  preparations 
were  made  for  that  business ;  but  that  is  not 
the  thing  that  we  are  now  upon ;  the  matter 
that  now  properly  falls  under  our  considera-  |  li 
tioD,  is  this :  the  coming  over  of  sir  George  j  i; 
Barclay,  the  latter  end  of  January,  or  the  l^- 
ginning  of  February  last ;  upon  which,   as  it 
seems,   Mr.  Porter  was  engaged ;  and  having 
an  interest  in  this  Cranhume,  and  there  being 
horses  to  be  furnished  to  attack  the  king  and 
his  guards  about  Turnliam-Green,  this  man, 
Cranburne,  was  a  person  thnt  was  engaged  to 
be  one  of  the  horsemen  that  were  to  make  the 
attack  \  and  he  tells  you  that  he  did  employ 
him  to  provide  horses* and  swords,  and  to  pre- 
pare tlie  pistuls;  and  that  he  did  engasfe  in  it, 
and  |>articularly  that  the  design  was  to  be  exe- 
cuted on  Satuitlay  the  15ili  of  February,  and 
that  he  was  then  ready  to  go  with  capt.  Porter ; 
but  on  that  Saturday  the  knig  did  not  go  abroad, 
whereby  the  design  was  disHppoinU*d  for  that 
time :  afterwards,  there  was  a  meeting  at  the 
Sun-tavera  in  the  Slraml,  where  he  met  with 
■ir  George  Barclcy,  and  others  of  them ;  and 
there  comes  to  that  tavern  Mr.  Cranhume  and 
otiiers,  and  they  were  in  anotlier  room,  and 
captain  Porter  says  he  came  to  them,  and  did 
discoune  sbout  pursuing  the  design  tbe  ^mty 


and  Cnabnmt 


next  day,  which  was  agreed, 

was  ready  to  go  the  next  day.  « 

Then  he  tells  you  further,  that  the  next  day 
being  Saturday  the  22d,  the  second  time  X\aX 
this  assassination  was  to  have  been  execoled, 
upon  the  desire  of  Mr.  Cbaraock,  who  war 
a  person  also  that  was  engaged  in  thii  de- 
sign, c*aptaiu  Porter  writes  a  list  of  the  mcD  ba 
could  bring,  and  sent  it  by  Cranburne  to  Char* 
nock ;  Cranhume  carries  the  list  to  Mr.  Chai^ 
nock,  and  brings  it  |tack  again  with  an  additioa 
of  tlie  oamcs  of  Mr.  Charaock's  men  nudm* 
neath. 

Mr.  De  la  Rue  is  called,  and  he  fweaia  W 
that  very  circumstance,  that  Mr.  Cranbont 
was  sent  by  captain  Porter  with  a  list  to  Mr. 
Chariiock,  and  brought  it  back  again  from  Mx: 
Charnock,  with  an  addition  of  other  namti. 

Then  Mr.  Pendergrass  telle  yon,  that  he  M 
with  this  Mr.  Cranburne,  the  prisoner  at  tkg 
bar,  the  14th  of  February,  and  Uiere  was  a  dii- 
oourse  of  going  in  pursuance  of  this  daaga  IIm 
next  day,  and  the  prisoner  agreed  to  it,  wbiob 
he  is  positive  in :  he  tells  you,  that  when  tbay 
were  disappointed  tbe  15th,  being  at  the  Dlw 
Posts,  they  then  agrreed  to  pursue  it  the.  aot 
Saturday ;  Cranburne  was  cue  of  them  Ihil 
agreed. 

Captain  Porter  and  De  la  Rue  inform  jm 
that  healths  were  drank  to  the  late  king,  aai 
the  late  queen,  and  the  prince  of  WaMs^  m 
they  calletl  him,  and  then  at  length,  ta  Jba 
concluding  health,  captain  Porter,  or  soma  tf 
them  in  the  company,  having  an  orange  iihil 
hand,  squeezed  it,  *and  drank  a  health  la  da 
squeezing  of  the  Rotten  Orange,  which  wH 

Idedged  by  all,  and  particularly  by  Mr.  Ciaa* 
Kirne,  as  is  proved  by  both  captain  Porter  aid 
De  la  Rue. 

So  that  now.  Gentlemen,  I  must  leave  it  li 
you,  whether  this  is  not  evidence  sufficieiitii 

1*»rove  this  man  guilty  of  the  treason  wheretf 
le  is  indicted,  that  is,  of  designing  and  in 


ing  the  assassination  of  the  king,  and  beidcO" 
gaged  as  a  party  to  execute  this  design,  inim- 
ever  there  was  an  opportunity. 

The  counsel  insist  upon  it,  on  the  behalf  of 
the  prisoner,  that  what  captain  Porter  myt  ii 
no  evidence :  in  the  first  place,  they  urge  thtf 
he  is  not  a  man  of  credit,  for  they  have  mm- 
tioncd  that  he  used  to  be  disguiseil.  and  wctr 
a  vizard  mask,  and  go  abroad  under  odd  cir* 
cumstauces,  and  therefore  his  reputation  tfaff 
hope  is  not  good  enough  to  make  liim  a  credible 
witness  aginst  the  prisoner :  now  the  prisoner^ 
witness  being  produced,  says  slie  uever  knew 
him  go  in  disguise,  or  wear  a  vizard  mask,  bil 


once  he  wore  a  patch,  because  he  was 
some  ill  circumstances  ationt  a  riot  in  Drury- 
lane ;  every  body  understands  what  the  mean- 
ing of  that  was,  his  drinkintr  of  healths  at  a  riotp 
ous  assembly,  upon  the  10th  of  June,  and  ha 
being  under  some  prosecution  for  that,  ooca" 
sioned  him  to  wear  that  disguise,  but  it  WM 
not  done  to  hinder  any  person,  or  do  any  mii* 
chief. 
But  then,  say  they,  he  ia  mistaktD  \m  Vk 


J&r  High  Treason, 

[iftdcfice,  of  the  meeting  at  the  Sun-taTern  the 

Sit  of  February,  the  day  before  the  last^  that 
•  de$i^  was  to  have  been  executeft^  for 
wtiarcas  he  says,  that  Gunn  Has  uot  tbere  u  hen 
hecune  lo  them,  yet  Gudii  was  iu  the  com- 
puiy  at  that  time,  and  whereas  he  swears  po- 
silivdy  that  tbey  discoursed  of  goin^  ii|>oti  the 
Mine  (iesi^  to  assassinate  the  kinj^  the  next 
daj,  as  was  agreed  the  Saturday  before;  Gunn 
beard  do  sach  discourse.  Gudd  is  called,  and 
be  teils  you  he  did  come  to  the  8uEi-taverii  at 
that  titue,  wiili  Cranbume  and  captain  Porter, 
bteame  inti)  tbe  room,  and  he  heard  no  sncb 
teourae.  They  did  open  it^  indeefl,  that  Gnnn 
Mbem  there  all  the  while,  and  if  so,  then  if 
tfase  bad  been  such  a  discourse,  he  must  have 
bard  it.  Gunn  has  been  examined,  and  does 
ten  you  be  was  not  there  all  the  while,  hut 
iicilool  aod  was  absent  for  some  time,  about 
klf  a  fjuarter  of  an  hour 

Tbey  have  made  a  question,  whether  captain 
forter  came  in  when  Gunn  was  there  ?  He 
mp  trtily  be  thinks  that  captain  Porter  did 
tmt  into  the  room  while  he  was  there,  before 
k  went  out,  bnt  he  cannot  tell  certainly  ;  he 
mi  there  some  time,  while  he  was  there.  Then 
eiplaia  Porter  was  called  a^in,  and  captain 
P&rter  does  say  be  knows  Gunn  ^as  there,  but 
tbetber  he  waji  there  at  that  time  he  came  in, 
l«  cannai  say  positirety  ;  but  Gunn  savs  cap- 
tua  Porter  was  going  in  and  out  several  times, 
H  Porter  says  himself;  and  Gunn  was  absent 
firwome  pari  of  the  time.  80  that  f  cannot 
^  lOfrt  of  contradiction  between  tbecFi- 
'that  PcirieT  gives,  and  the  evidence  that 
f  l^cs ;  the  one  is  uncertain,  and  so  is 
^er  tts  to  that  circumstance. 

Geoliemei),  they  would  infer,  thai  if 
i  was  any  such  dbcoorse  wliile  Gunn  was 
,  it  must  be  of  necessity  that  Gunn  must 
}  heard  it  ;  bnt  it  is  not  necessary  the  dis- 
»ahou)d  b*  when  Gunn  was  ihere :  cap- 
1Mb  Porter  swears  positively,  that  there  was 
•neb  ft  diaeoorse  of  goin§;  the  nejct  day  to  pur- 
M»  Ibe  detiiri^  atid  be  says  be  thinks  Gunn 
HIV  not  present  at  that  time  when  the  discourse 
itit,  and  Gunn  says  be  was  abcent  some  part 
if  the  time. 
Aad  10  I  must  1ea?e  it  to  you :  upon  the 
if  Mr.  Cranbume,  tbt  prisoner 


at  the  bar,  did  consent  and  agree  to  act  in  thia 
bloody  and  wicked  design,  thtn  you  are  to  find 
btm  guilty;  if  you  are  not  satisfied  ofihat  upon 
the  evidence  you  have  beard,  or  you  think  there 
is  any  inconitistency,  or  incohereuce  in  the  tea ^ 
timony  on  the  one  side,  and  the  other  ;  and 
that  there  is  good  reason  to  disbelieve  the  eri« 
dence  against  the  prisoner,  then  you  are  to  ac- 
quit him.  You  have  heard  your  evidence,  and 
you  had  t>est  consider  of  it. 

Cl.  of  the  Crown,    Who  keeps  the  jury  f 
Cryer.    There  is  an  officer  sworn. 

Then  the  Jury  withdrew  to  consider  of  their 
verdict,  and  about  a  quarter  of  an  hour  after 
returned. 

CL  of  Ar.     Gentlemen^  answer   to   your 

names,  John  Caine? 

Mr.  Caine,    Here.     (And  so  of  the  rest,) 

CL  of  Ar.  Are  you  all  agreed  of  your  ver- 
dict?—Jury.  Yes. 

CLqfAr,    Who  shall  say  for  you  ? 

Jury.    Foreman. 

C/.  ofAr.  Charles  Cranbume,  hold  up  thy 
hand,  (which  he  did).  Look  upon  the  priisoner; 
how  say  ye,  is  he  guilty  of  the  higii- treason 
whereof  he  stands  indicted,  or  not  guilty  ? 

Foreman.     Guilty. 

CL  of  Ar.  What  good*  or  chattels,  lands  or 
tenements,  had  he  at  the  time  of  tlie  treason 
committed,  or  at  any  time  since  ? 

F&rcman.     None,  to  our  knowledge. 

CL  of  Ar,  Then  hearken  lo  ymw  verdict  a» 
the  court  hath  recorded  it.  Yon  say  that 
Charles  Cranburne  is  tyuilty  of  the  high -treason 
whereof  he  stands  indicted,  but  that  he  had  n'^ 
goods,  chattels,  lands,  or  tenements,  at  the 
time  of  tbe  high -treason  committetl,  or  at  any 
time  since,  lo  your  knowledge,  and  so  you  say 
all— Jury.  Yes, 

Mr.  Caine.  My  lord,  tlie  jui^  humhly  de- 
sire«  they  may  be  discharg^  irom  their  at- 
tendance to-morrow. 

X.  C  J,  We  cannot  do  it,  unless  the  jury 
be  full  without  them  ;  if  you  come  early,  we 
shall  dispatch  you  presently. 

Then  the  Prisoner  was  taken  from  the  bar, 
and  tbe  Court  adjourned  till  aeven  oVtock  ttie 

next  morniDg, 


S  WILLIAM  IIL 


!  Trial  qf  Robert  Lm/alch^ 


588-  The  Trial  of  Robeht  Lowjck,  for  High  Treason :  S  Willuj 

IIL  A.  D.  1696/ 


April  ^t,  1696. 

1  HIS  day  ihe  justices  «f  Oyer  and  Terminer 
hotden  for  ttie  coiiniy  of  ^Itdille^ex,  mtt,  and 
tHe  court  was  resunud  by  pro c tarnation  in  usual 
form. 

Cltrk  of  the  Arrmgnments,  Keeper  of  Ne\v- 
fl[«le,  vet  Robert  Lowjck  to  the  bar,  (wbicli  was 
done).  You  the  pn«oner  at  tbr  bar,  R»bert  Txi- 
wick,  those  men  that  ^uu  shall  hear  ealied 
and  personi^lty  a|»pear,  are  to  jiass  between  our 
sovereiffD  lord  the  kintif  aud  vou,  upon  trial  of 
your  life  tind  death  ;  if  thtTeforc  you  will  chal* 
lengethetn,  or  any  of  them^  your  time  Is  to 
«|>ealc  nnto  thetn  as  they  Come  to  the  book  to 
be  sworn,  atid  before  they  be  sworn. 

'Mr.  Mompesson,  If  your  lordship  pleases  to 
favour  me  with  one  word  For  the  i^nsoner  at  the 
bar,  I  shall  not  trouble  your  lordship  with  any 
Uiin^  that  was  ut^ed  6y  the  qfenttenten  that 
were  of  counsel  j^esterday,  but  1  sliall  rely 
upon  fiomeihing  that  has  not  yet  been  s^xtkeii 
to.  My  lord,  they  have  not  laid  any  time  or 
place  whei'e  the  consent  or  a^eement  was,  for 
the  forty  men  that  were  to  set  upon  the  king 
and  his  guards:  there  is  a  time  laid  before 
where  they  met  and  discoursed  of  the  wayi 
and  means  how  to  assassinate  and  kill  the  king^ ; 
iHit  when  it  comet  to  the  '  Assenserunt,  eon- 
*  sfifiMrunt^  et  agreavenitit,*  with  submission, 
this  being*  another  act^  there  ought  (o  be  ano* 
tber  time  and  place  laid,  and  for  that  1  shall 
eite  your  lordship  two  or  three  cases  j  for  men 
may  meet  and  propose,  and  dt&course,  and  con- 
»ult  of  such  things  J  ihonj^h  they  he  very  ill 
things,  and  yet  that  may  not  be  treason.  It  is 
the  a^rreement  that  is  the  treason^  and  so  it  was 
hell  I  in  t^aotaiu  Bl  aqua's  Case  about  taking  the 
Tower.  They  may  meet  at  one  time  and  place, 
and  at  another  time  and  plflce  they  may  agree, 
in  Dyer,  6B  H.  nnd  09  PL  93.  i  man  was  in- 
dicted for  murder.  That  he  at  sucb  a  place  in 
and  upon  the  pers«jn  that  wa»  muj*dered,  ^  in- 
^  gnltum  fecit,  it  iphum,'  the  person  that  was 
murde«;d,  *  cum  qiiodrtm  cu!le!lo,' of  such  a 
price,  '  percussit ;'  and  be  does  not  shew  the 
place  where  he  struck  hini,  nor  had  the  indict- 
ment the  words » ^  ad  tunc  ei  ibidem/  and  there* 
fore  the  court  h^ld  it  void  :  so  it  is  likewise 
ruled  in  Goodi  ick*s  Cast-,  Hell.  35  el  1 19,  and 
therefore  in  indictments  for  murder,  since  they 
geoeraMy  set  (brth  not  only  the  time  and  place 
of  the  assault,  hot  likewise  of  the  blow  ;  so 
likewise  in  thmirs  of  a  more  interior  natures  as 
reacucs  returned  by  the  isherill',  ilirU  the  Capias 
waa  served,  but  does  not  shew  wfiere  the  rescue 
waa;  or  tbou^^h  be  j^hewg  where  the  arrest 
was,  and  an  *  et'  coupled  the  rescue  to  it.  yet  it 
was  adjudged  an  ill  return.  Dyer  69,  PI.  59, 


10  Edw.  4.  15Fit«.  Ret.  Vice.  3^'  Bro 
Det.  Bre.  97»  and  Error  193.     Palm  56 
ill  N'oy  IH,  there  are  tUe-e  words,   '' 
was  tnoveil  in  discharge  of  rescue,  ( 
was,  that  they,  vi^.  A.  B.  aforesaid,  i 
'  ad  tunc  et  ibidem  vulneravemnt,' 
the    aforesaid   George,   &c,     '  Iic^4-.*.^*«. 
without  *■  ad  tunc  et  ibidem,'  re^Serred 
tiie  ♦  rulneraveiiint/  and  not  to  tlie  *  n 
'  runt,*  and  theretoi-e  the  return  was  ailjo 
insnfficient;    for,  my  lord,  aUhon;;h   in 
Teyaticea.  a  clause  or  word  in  the  beginoj 
end  may  refer  to  the  whole,  yet  in  ind id 
every  sentence  must  he  certain,  plain,  and 
press,  and  have  its  own  time  and  niace : 
fore  in  Noy's  Rep.  122f  Uaymond  wasi 
for  slopping  a  cross- way  leading  from  a 
vilie  called  Stoake,  into  a  ville  cal'    '  ^' 
the  county  of  Dorset,  and  the  » 
quashed,  because  in  the  *  county  ui  L/«rsei 
refer  only  to  JMtflton,  and  not  to  both: 
indictment  of  forceable  entiy  into  a  mej 

*  existens  liberutn  lenementum*  of  J.  S. 
good  for  want  of  the  words  *  i^d  tunc,* 
the  participle  *  existens*  does  strongly 
that  it  was  his  hoti»e  at  that  time,  3  Cro. 
Het.  73.    Noy,  ISl.    Palm.  426.    Bridg.  sg 
3  Cro,  214,  et  610.    Sid.  10*2.    Lat.  109,  Ac- 
And  my  lord  Coke  tells  tis  in  Calvin's  C 
5  B,  that  indictments  of  treason,  of  all  othi 
are  the  most  curiously  and  certainly  iud 
and  penned;  and  all  those  that  I  have 

-and  obMTved,  have  contained  more  cei 
liian  the  indictment  now  before  your  Ui 
In  Reginald  Tucker^s  Case,   the  iudii 
wan,  That  he  and  Thomas  Place  a  pud 
water.  In  Com.  Somersett.  piiediet 
saver  nut,  to  kill  and  denose  the  king,  ^c, 
to  bring  their  treasouniole  purpos«!is  to 
tliey  the  said  Begin  aid  Tucker  ai»d  Tl 
Place,  the  same  day  aud  year,  at  Brid^ 
albresaid,  in  the  county  uforesaitl,  againi 
king,  with  a  great  multitude  of  peopk%  ar 
in  a  warUke  manner,  viz.  with  swords, 

*  seipsos  illicile  et  proditorie  insiund  ail  tunc 

*  ibidem  congregaverunt  et  astern blaverunt 

*  Ifuerram  puljlicam  conlru  dictum  Domini 

*  Begem  upud  Bridgwater  pried ict.   in  Cotn. 
^  prfedict.  dicto  vicesimo  Die  Junii  Anuo  pritoo 

*  supradiclo  proditorie  pamvprunt,  ordinaverunt 
*■  et  levaverunt.^  8o  in  the  indictment  of  Gati 
ns  it  is  set  forth  at  large  in  a  plea  in  t»ar  oj 
Dower,  brought  by  his  wife,  he  uith  force 
arms,  *■  apud  villam  de  Ware,'  ike.  assembleil 
with  a  great  many  pefNons,  •*  et  helium  cnrdele 
'  contra  dictam  Donniiaiu  Beginam  apuil  VVare^ 
*■  pnedict.  ad  tunc  fals^i  el  proditorie  puhlicavil 

*  et  levavit,  ac  insuper  ad  tunc  et  ibidem  falso  el 

*  proditorie,*  proclaifUfd  the  duke  of  Nnrthttm^ 
bertand,  to  be  lieutenant-general  of  thtir  forces} 

*  et  etiatM  fal&o  et  proditorie  apud  Ware  predict* 
4 


Jot  High  Treason* 

ir^'  proclaimed  the  lady  .^^an  Dudley 
Tbis  is  in  DiMidluwe*s  Reports,  piib- 
»y  Serjeant  Howe,  fol.  55,  placito91. 
p  ear!  of'Leic  filer's  Case,  PInwd.  Com. 
indidment  is  Inid  much  alu-r  the  same 
anti  many  otlicr  indictments,  which  at 
f  am  uiivrlllin^  to  trouble  jour  loniship 
111  this  bcin^  one  ot  a  new  fonn  and  of 
impression,  f  hope  j-our  lordship  will 
isufHcieiit.  And,  my  lonl,  when  they 
Ty  antI  say,  *  £t  quilibct  eoruni  prodi- 
per  se  suscepit  esse  unum,'  there  is  no 
time  alleged  where  th^it  was  done, 
necessity  should  be  mentioned  :  for  it 
taot  rule*in  our  books,  tliut  what  is  is- 
ught  to  have  a  jdaoc  where  it  may  be 
v^w,  this  is  issuable,  and  the  most  ma- 
\t^  in  the  indictment  is,  for  compassing 
*»  death.  The  overt-acts  are.  That 
ler  Koit^htley  the  prisoner,  and  two 
d  cousult  to  kill  the  king- ;  and  after- 
d  agree  how  to  do  it,  viz.  hy  forty 
,  (^iionim  these  should  be  four,  and 

*  at  thein  did  agree  to  be  one  ;  then 
>  other  overt-act  of  providing  arms  for 
lotr  suppose  they  should  not  prove 
Yiz.  the  providing  arms;  then,  my 
'  must  resort  to  one  of  the  other  overt- 
thej»e  four  did  consult  and  agree  to 
ing ;  or  that  these  four  did  agree  the 
ow  to  do  it,  as  is  laid  in  the  indict- 
ri  it  \ft  plain  they  must  foil  of  proof  of 
:hese  ;  for  by  the  not  prosecuting  any 
;  name  of  Christopher  Knightley,  but 
\  a  r.ew  inflictment  against  one  Alex- 
ishtlf-y,  it  appears  that  Christopher 
p  was  not  there ;  and  the  proving  thrse 
PTs  making  a  consult  ami  agreement, 
•riiijt'  (if  the  same  overt- act  tliat  is  laid 
Sctmenf,  as  it  ought  to  be  by  the  late 
as  tlicy  can  prove  that  a  consult  of 
consult  of  four:  and  if  it  be  answer- 

t  is  allfj^eil,  that  *  Quilibct  conim  su- 
Q^cepit,'  then  will  that  come  to  be  is- 
nd  tlie  most  material  part  uf  the  in- 
;  and  consequently  a  place  ought  to 
1  laid  where  it  should  be  tried  ;  tbis, 
is  a  distinct  sentence  of  itself,  it  is  in 
k>is.  and  though  you  take  it  away, 
of  what  remains  is  perfect  and  intirc ; 
pqnently  tbis  sentence  is  or  should  be 
tscif,  and  therefore  ought  certainly  to 
shI.  Besides,  if  your  loniship  pleases, 
losititely  laid,  what  these  persons  se- 
nd prtmik  to  be,  there  is  indeed  uien- 
le  before  of  forty  horsemen,  agreed 
!»et  u[»on  the  king,  thru  comes  the 
-i*,  '  Quorum  iidcm  Chnstophorus 
Icy,  Robertus  liOivick,  Ambrfjsiiis 
c«>d  et  Carolus  Cranburne  forciit  »jna- 
l  quililiet  eoruin  priMlitorie  ^siiper  se 
I  esse  ununi.*  It  is  perhaps  expressed 
o^'b  by  the  word  *  Quorum,'  that  it 
^rd  tbese  should  be  four  of  the  forty 
i;  b*it  there  wants  the  repetition  uf 

•  Quorum,'  to  express  what  they  se- 
Bg^g^  tu  be ;  and  the  word  *  ct*  cau- 


A.  D.  169G- 


[«70' 


not  join  and  connect  the  sentence! :  for « forent' 
anil  » suscepit'  differ  not  only  in  number,  bat 
also  in  mood  and  tense,  and  the  sense  is  not  ne* 
cessarily  coherent ;  lor  it  might  be  true,  that 
the  majority  of  the  company  might  agree  these 
should  be  four,  and  yet  they  themselves  might 
not  severally  engage  therein,  and  one  or  some 
of  them  might  undertake  it,  and  yet  the  com- 
pany not  agree  to  it ;  and  it  cannot  be  mended 
ny  intendment.  There  was  Vaux's  Case,  in 
the  4  Rop.  44 ;  he  was  indicted  for  murder,  for 

fiersuading  a  man  to  take  Cautharides ;  it  was 
aid.  That  he '  persuadebat  eundem  Nicholaum 
■  *  recipere  et  btbcre  qucndam  potum  raixtuni 
'  cum  quodam  veneno  vocat.  Cantbarides  ;* 
and  the  indictment  says,  *  Quod  pnsdictns  Ni- 
'  cholauf  nesciens  preedictum  potum  cun  Ve- 

*  neno  pncdicto  fore  intoxicatum,  sed  Mem  ad- 

*  hibens  dicta;  pcrsuasioni  Willieimi  rec epit  et 

*  bibit ;'  but  docs  not  say,  *  venenum  pricdic- 
'  turn,'  but  yet  it  adds,  *Per  quod  pnedictus  Ni~ 
'  cholaus  immediate  prist  rec^ptionem  veneai 
'  pnedicti'  Ianguishe<l  and  died;  here,  one 
would  think,  was  a  sufficient  implication,  that 
he  took  and  drank  the  |ioison  ;  but  it  was  ruled, 
that  none  of  these  words  were  sufficient  to 
maintain  the  indictment ;  for  the  matter  of  the 
indictment  ought  to  be  plain,  e^ess,  and  cer- 
tain, and  shall  not  be  maintained  by  argument 
or  implication,  and  therefore  for  want  of  those 
words  the  indictment  was  held  insufficient,  and 
the  man  again  indicted  for  that  offence;  and 
there  seems  much  more  incertainty  in  this  in- 
dictment, and  therefore  I  humbly  prayyonr 
lordship  that  it  may  lie  quashed. 

Sir  B.  ShoTcer.  ^Iy  lord,  we  think  the  ob- 
jection is  lully  put,  and  therefore  we  desire  to 
have  their  answer  to  it. 

.  Alt,  Gat.  (sir  Thomas  Trevor).  We  think, 
ray  lord,  this  objection  will  receive  a  vtry  plain 
answer.  The  indictment  sets  forth,  That  at 
such  a  pbre  the  prisoner  at  the  bar  did  ima- 
gine anil  compass  the  death  of  the  king :  there 
is  a  parliculur  case  \^  here  the  imagining  was, 
and  that  they,  to  accomplish  that  treason,  in 
compassim^  and  iin-«o|ining  the  d«*ath  of  the 
king,  did,  among  others,  *  po&tea  cisdem  <Ke  et 

*  anno  apud  parochiam  prtRdictam,'  meet  and 
consult,  &c.  so  there  is  the  same  place  set 
forth  again,  wherein  they  fljd  meet  and  consult 
of  the  ways  and  means,  und  time  and  place, 
when,  where,  and  how  to  assassinate  the  king: 
and  immediately  it  follows,  *  et  consenserunt  ef 

*  agreaverunt,'  &c.  that  forty  men,  whereof' 
they  were  to  be  four,  and  every  one  of  them 
undertook  to  be  one,  should  do  so  and  so.  Now, 
my  lord,  say  they,  it  is  not  said  that  the  agree- 
ment that  there  should  be  farty  men  to  do  if, 
was  at  the  same  time  and  place  where  they 
did  meet  and  consult  abo:it  the  ways  and  means : 
but,  my  lord,  with  submission,  '\{U  very  plain, 
that  the  agreement  for  forty  n»en,  and  the  par- 
ticular agreement  for  them  to  l>e  of  the  num- 
ber, is  but  the  effrct  of  the  coasuitation  that  is 
mentioned  just  before:  for  it  is  said,  they  con- 
sulted how  they  should  do  it,  and  they  agreed 
to  do  it  in  this  manner ;  tlie  particular  manner 


I 

I 


I 

I 


fri]  8  WILLIAM  in. 

h  set  farth  imme^liately  after  that,  it  b  said 
ihev  diU  consult  of  the  manner ;  so  that,  my 
lorJ^  It  IS  part  of  the  lormer  sentence  ;  a  parti- 
GutarrEioa^  of  what  thpy  did  a^-ee  upon  at  thai 
Consultatfon  ;  hut  it  h  no  distinct  overt-act:  if 
it  had  bi^n  a  distinct  overt-act,  then  the  cases 
that  hai-i?  Iieen  cited  by  »be  counsel,  do  *hewr, 
that  there  should  he  a  particular  time  and  place 
Ijieutioned  for  every  overt-act ;  but  this  is  only 
a  part  of  that  overtact  that  was  mentioned 
geni^rall y  before :  thin  tells  you  purticularly 
what  the  means  were  they  did  ajfree  upon,  and 
the  spDteiice  is  ool  compkte  till  yuu  have  gone 
o?er  this;  so  that,  my  lord,  with  suhoiission,  it 
had  h<jeD  very  improfier  when  they  agreetl  at 
such  a  time  and  place,  of  the  means  and  ways 
how  it  should  be  effectet!,  then  to  set  forth  that 
it  wan  at  the  same  time  and  place  where  they 
did  consult  of  the  way^t  and  means,  that  cannot 
be  proper  ;  for  it  in  not  laid  at  tirst,  that  there 
was  any  particular  way  ]>rofK>Bed,  hut  ordy  in 
^Oeral,  they  coiisulteff  of  the  ways  and  tneans; 
therefore,  my  lord,  all  this  that  Mr.  !\1ompesson 
has  said,  wilt  not  be  pertinent  to  this  case,  it  is 
impossible  to  htive  been  otherw  ise  ;  it  is  hut  a 
part  of  the  sentence  ;  and  it  is  not  complete  till 
you  have  gone  over  the  several  particulars:  as 
to  the  Case  of  a  *  Rescous/  that  is,  the  offence 
upon  which  the  matter  is  to  be  grounded  ;  the  i 
^  Verheravit*  and  *  Vulnerarit*  are  not  the  res- 
cuing^; but  where  there  is  not  one  sentence 
complete,  till  you  come  to  the  end  of  these 
wonls,  there  it  must  he  all  taken  together ;  so 
it  is  here,  they  consulted  nfth?  way,  and  agreed 
this  to  be  the  way,  which  they  set  forth  in  par- 
tjcubr :  it  is  joined  to  the  former  part  of  the 
sentence,  and  the  whole  is  aot  complete  with- 
out it< 

Sol.  Gen,  (sir  John  Hawles)  With  sub- 
missiou,  my  lord,  it  cannot  he  otherwise,  nor 
can  they  make  it  sense  otherwise. 

L,  C,  J.  (sir  John  Holt),  They  say  you 
might  and  should  have  put  in,  *  ad  tunc  et 
*  ihtdem.' 

tSaL  Gen^  With  suhnusaton^  my  kird,  f  say  it 
cannot  be  repeateil  aguiu :  indeed,  if  you  would 
make  it  like  the  case,  as  Mr.  Mompesson  would 
liare  it,  that  forty  men  did  agree  to  it,  and 
forty  men  did  it,  it  were  necestaiy  to  name 
time  and  pbce,  as  it  is  in  the  case  of  murder : 
that  he  did  agree  to  murder  htm,  and  after- 
wards knocked  him  on  the  head,  there  you 
tliall  lay  time  and  place  where  he  agreed,  and 
where  he  did  the  act,  for  there  is  an  act  done ; 
hut  in  this  ca^e  there  is  uo  act  done,  but  only 
an  agreement  that  forty  should  do  it,  whereof 
these  lour  were  to  be  part  of  the  namher.  Now, 
Ihey  cry,  you  do  not  say  what  these  fonr  were 
to  be  for.  Yea,  we  do:  the  forty  were  to  do 
Mitch  an  act,  and  these  were  to  be*  four  of  that 
forty,  and  every  one  of  them  undertook  to  be 
one ;  so  that  it  cannot  be  expressed  otherwise 
ihnn  it  is;  for  what  they  say  of  the  indicl- 
ment's  being  not  in  the  same  form  that  other 
indictments  are,  that  will  be  no  argument  at  all ; 
for  it  does  nut  follow,  that  there  must  i)e  one 
iacpressed  form  of  an  indictment  -,  of  right  there 


Trial  of  Robert  Lcmck, 


[ST 


are  divers  forms  of  indictnieiitt,  and  all  of 
good,  because  indictments  are  to  he  fi 
according  to  the  particulal*  cose,  and  they 
not  put  me  iin  instance  of  such  a  parttcuJ 
case  as  this.     As  to  that  of  the  mistake  of  tl 
name  of  Koightley,  that  UDCjuesiiunuhly  can 
no  oSJcctiou  at  all  i  for  how  does   it  appe^ 
the  court,  that  this  is  against  the  same  pena 
that  was  before  indicted  by  the  name  of  Cbrti 
topher?  there  may  be  another  Chnstopher,  f« 
aught  they  know  :  hut  1  will  sup|»o*ie,  tliat  th 
consult  Wits  prAvcd  not,  as  it  h  laid,  that  thef 
were  to  be  four  ;  but  only  that  they  ware  to  IH 
three  of  them,  it  would  be  well  enough  agaitu 
the  prisoner  ut  the  bar,   if  he  be  proved  t 
he  one, 

Mr.  Convert,  First,  we  have  here  laid  a  tiin 
and  place  for  the  treasoa  alleged  in  the  iodid 
ment,  and  als^i  for  the  two  overt- a<;ts,  hon 
when,  and  where  it  was  to  be  done, 
providing  of  arras  for  it ;  and  lor  this  pi 
of  the  forty  men,  that  they  would  have 
the  *•  ad  tunc  et  ibidem^  to  that^  is  but  part  oi 
overt-act,  which  was  before  allegetl ;  ti 
first  overt -act  mentioned,  is  the  mi 
r;ousultiog,  and  tliere  we  lay  both  ti 
place  ;  that  on  such  a  day,  and  at  such 
they  did  meet  and  consult  of  the  way 
ner  bow  to  do  such  an  act :  and  then  we 
tinue  on  the  sentence^  by  particularizing 
it  WHS  to  be  ejected ;  that  they  did  agre^f 
should  be  forty  horsemen  to  do  it,  whereof 
were  to  l>e  four:  this  is  but  a  part  of  the  or«i 
act,  which  is  the  consulting  and  agreeing  upfl 
tlie  ways  and  means;  this  particular  mea 
agreed  upon,  being  but  the  result  and  efieet 
the  consultation  before :  so  thai  wc  oon< 
there  is  no  want  of  time  or  place  upoti  wliioli 
take  issue  uv  tins  case. 

Mr,  Cowpcr.  My  lord,  I  think,  with  si 
mission^  there  is  nothing  in  their  objection,  j 
I  take  it  to  have  received  a  full  answer  alread  j 
yet  I  would  ask  one  thing  of  the  gentlemeo 
the  other  side,  had  the  sentence  run  wi  ' 
the  words  '  de  iis  modis  et  niediis/  Sec.  wbi 
follow  alter  the  word  *  consultavit,*  and  befoi 
the  words  *  et  agreavit;'  in  this  manner, 
they  did  then  and  there  traitorously  tn 
pose,  consttit,  aiid  agree,  that  forty  ho 
or  thereabouts^  with  guns,  and  so  forth, 
then  tbei%  had  been  any  ct^lour  to  think  it  m 
oessary,  that  it  should  be  laid  in  this  maai 
That  they  did  then  and  there  traitorously 
and  then  and  there  traitorously  pro^ 
then  and  there  traitorously  consult, 
then  and  there  traitorousl)'  agree :  and 
then  I  would  desire  them  to  tell  me  why  ' 
*•  and  there'  is  more  necessary  to  one  verb  * 
^ agree,*  than  it  is  to  all  the  rest,  in  sense 
common  speaking.  The  only  use  of  a 
junction  copulative,  is  to  derive  the  f<irce 
some  words,  in  a  seutenoe  foregoing,  down 
a  sentence  following,  to  avoid  repetition : 
here,  though  after  the  consultation  be 
many  word*  that  ivkte  to  that  mutter,  by  w 
of  parenthesis ;  yet  the  *  ad  tunc  et  ibidem*  ai 
dees  refer  to  all  the  verbs  following, 


High  Trea90tt4 

joined  by  the  cODJtniclimi  copulative ;  it  does 
fiOC  ?arj  Ibe  case  M  all,  the  uniting  in  that  pa- 
i«iillie«ifi ;  il  U  autiwithstantlmg  bui  as  one  sen- 
l(niQ^:  Mid  the  «upposuig  tlirit  the  parfirlhesis 
' ,  makrs  it  very  jtlala,  there  can  be  uo 
there  wanted  a  repcliuoii  of  the 
Jem*  t*j  every  tcHk 
ft.  Wiih  siibmissioo  to  your 
fl'^ment,  there  is  no  ftnsuer  ramie 
ihjeetioii,  I  do  a^ree,  if  tlii^rc  Isad  lietfi 
rtrbs,  and  no  other  vienls  had  inier- 
ttned,  Ihjl  an  '  el'  would  have  coupled  alt  to- 
mAt-v.  jTivi'  vuu  need  not  have  rej«eated  *  ad 
Bii  m*  to  every  otic:  but  here  is  a 

■t  rerbs,  that  makes  one  complete 

r  gsenlciice  ;  add  if  lht«  ut'  the  furty   men 
'  lel\  t>ut,  it  had  been  a  ^oud  ^seDteocei  that 
di4   propo^  and  treat  hour,  where  and 
th^t  is  a  sentence  of  itself,  the  cooSult- 
treatin;^  of  the  wuys  and  means : 
lltey  say«  *  and  they  did  at^ree  and  a«- 
il  forty  should  do  it?  now  there  is  nu 
ity  for  the  interpreting'  of  these  words, 
llliey  fthould  ron^ult  and  ;igree  at  the  saine 
riotl  lime;  there  is  no  nec^&sity  to  eon* 
t  agreement  for  the  forty  nicu  with  the 
>ttott ;  they  ini^Ut  propose  and  consult 
i  time  &od  place,  and  not  agrt^,  and  after- 
•^ree  at  another  time  and  place :  it  is 
«al«  i^ieoificiition^  or,  as  they  call  tt,  a  specific 
ml  of  tbe  consultation,  Dor  a  necessary 

I  «if  it,  !io  as  to  make  it  necessary  to  join 
|i>^ibor;  ihey  might  meet  and  consult 

ttooe  lime  and  plaee,  and  at  another  time  and 
fkofihey  inigbt  agree  that  forty  ^tioitld  do  it; 
'i  tkefefare  when  vou  ^y  at  one  lime  and 
)  thty  did  consult  and  propose,  ami  i\t\er- 
'  I  they  did  ag^ree ;  it  is  not  nt^cessarity  im- 
it  muDt  be  at  the  same  time  and 

I I  «iid  when  it  is  not  necessarily  implied, 
'  Ilk  it  necessary  iu  ijidictments,  for  cer- 

-sskc,   to  have  *  ad  tunc  et  ibidem'  in- 

Ir.  Miifnpcsson,  My  lord,  3Tr,  Solicitor  Rays, 
>  to  other  precedent^,  that  does  not  make 
ary  that  this  should  be  like  them  ;  and 
tl  k  *oo  argument  that  it  oujjlit  to  he  so 
My  lord  Coke,  in  Calvin^s  ease,  tells 
bat  Tl}*  precedents  the  law  is  known,  and 
'  nX3  of  treason  are  of  all  things  the 
ly  penned ;  and  it  is  comtnoti  to 
iJrr  the  bw  is  so,  because  usually  it  is  so  in 
Ibe  pTTcrd^-nts  of  indictments.  Mr,  Solicitor 
^p^  ■  '  %  That  there  may  be  a  Christopher 

^Ki  ^ides  an  Alexander  ;  but  I  cannot 

^p»  thai  Mir  an  answer  to  the  exoeptioti  I  urge, 
^■kb  b  the  want  gf  *  ad  tum^  et  ibidem^  at  the 
^^onitit  aod  the '  Quiltbet;  for  the '  Qruilibet' 
fmy  eocne  to  be  in  question  as  the  most  mate- 
ritlpart  of  the  indictment,  h«?cause  tbe  ag^ree- 
iDeatof  the  four  upon  the  meeting  of  the  four 
illfged  as  an  ort^rt-act.     Now,  with  snh- 
Mon,  they  iiui^t  [trove  the  assembly  of  tbe 
'  t  four,  or  they  do  uol  prove  ibe  overt- act 
'  '  laid ;  then  as  to  the  ^  Quilibet  sus-* 
^  which  is  the  iDoit'ra«Xerial  ptkit^  it  has 
^  tior  pUce. 
[>0^  Uil 


A.  D.  1696-  [97*'J 

Jtt*  Gen,  No  sure :  we  do  not  need  to  prove 
all  four,  for  it  is  a  distinct  offence  in  eat  h,  and  \ 
if  any  one  undertook,  it  is  well  enou;^h  aguinst 
him  :  and  fur  the  lime  and  pbt^  we  tell  you  ifr  d 
is  part  of  the  former  aenteuce,  and  makes  hul  j 
an  i  til  ire  one. 

3tr.  Momptsion^  As  for  the  residue  of  th^  \ 
vcrtxif  tf  ihey  had  Ireen  omitted,  it  had  been  < 
good  sHise  \  hut  this  is  a  perfect  intire  5^entenca| 
<dltself,  when  it  tells  you  what  they  coii'4idte4 
and  treated  of,  as  in  the  Ca^  of  the  Rescud4 
that  I  put;  if  il  had  stoppcfd  there,  il 
been  a  troud  sentence  without  the  *■  Vulnera- 

*  verunt/ 

Alt,  Gtn.    The  ^  Rescous*  is  the  offeuce 
that  ca^e^  the  other  is  diAiinct :  but  here,  lit  ■ 
this  case^  oiithiug  can  he  plainer  than  that  atlj 
IS  one  act»  as  we  have  laid  it,  That  at  such  ft)i 
time  and  place  tbey  did  consult  and  trtat  of  the  j 
ways  and  means;  but  then  there  i«  no  agree- 
ment mentioned  till  after  we  have  said  tbey  did 
cousult  of  the  ways  and  means,  and  did  agre 
that  this  »hoidd  W  the  way  :  thus  is  certainly] 
one  eutire  sentence  that  shews  what  the  i  _ 
ment  w  a^  upon  the  consultation  as  the  resoll 
of  it. 

Mr*  Cowper.    As  to  what  sir  Bartholome\r-^ 
Shower  says.  That  we  ought  to  repeat  the  '  ad  J 

*  tunc  et  ibidem,*  unless  the  seiiKe  ot  the  \TQrd#J 
implies  a  necessity  that  the  consultation  amiJ 
the  agreement  should  be  at  one  time  and  placesd 
My  lord,  there  can  be  nothing  in  that,  for  tt^ 
does  not  arise  from  the  necessity  of  the  thin|p* 
one  way  or  the  oilier  j  hut  we  take  it  as  a&  in- 
tire sentence ,  and  that  the  whole  matter  is  suffi«^ 
cicntly  cofinecied,  and  laid  to  one  time  andi 
place,  thou;rh  It  might  be  divided,  it  must  hmJ 
taken,  as  atlegedj  to  be  one  intire  fact,  or  elsaj 
it  recurs  to  the  same  objection,  that  *  ad  tunc 

*  et  ibideui'  most  as  wefi  be  put  to  every  verbj 
fnt  it  IS  possible  they  might  propose  at  one  tirai 
and  place,  and  consult  at  another,  and  deb 
at  another  as  well  as  agree  ut  another :  so  tha^  J 
noihiiig  is  to  be  argued  from  the  necesaity  ofi 
the  thing  more  in  one  case  than  tlie  other  ;  for  f 
one  man  tuighl  propose  it  in  one  place,  and  th#  ] 
rest  might , then  shake  their  heads  at  it;  andj 
then  they  might  again  meet  and  constdt  at  ] 
another  place,  and  afterwards  agree  at  a  third  1 1 
but  when  it  is  said   '  then  and  there'  they  didV 
meet,  consult,  and  agree,  it  cannot  l>e  under- 
stood but  tliat  the  Agreement  wtu  at  the  sam«^ 
lime  and  pbce  with  the  meeting  and  consult. 

Sir  B.  Shower,  But  this  can  be  no  answeff.  j 
that  Mr.  Cowper  gives  now,  for  proposing,  and^ 
I  consulting,  and  treating,  and  debating,  are  allJ 
of  the  same  signiticatioQ  ;  for  one  man^s  pro- 
posing to  another,  und  the  other*s  proposing  IqI 
him,  is  consulting,  treciting,  and  delmtii:ig  ;  bnl'j 
now  coQsultiag  and  agreeing  are  diHeren  ^ 
things. 

Mr.  Cowper.    So  is  proposing  and  consult- 
ing:  one  may   propose :  but  there  must  be  i 
least  two  to  consult ;  tliere  is  thai  nice  {Jiffer^ 
^  ence  between  them. 

Sir  B,  Shower.   Epery  ooc  roust  «|pnee  foj 
hbtiseU;  and  that  mu«t  be  certainly  l£d  wii' 


»T6J  S  WILLIAM  UU 

time  and  nface,  let  the  prb^^osul  and  consulta- 
tion  be  what  jt  wilf. 

/..  C.  J.  Mr.  IVfompessofi  [mis  that  Case  in 
Dyer  upon  an  indictment  of  murder.  That  oti 
auch  a  day,  and  at  such  a  place,*  the  party 
nnade  an  assautt  upon  the   persons  slain,  *  el 

*  percuisit;*  but  dnes  not  say,  *  Et  ad  tunc  et 

*  ihidem  percu^sit,*  and  for  not  aJJegmg  lUat, 
the  indicltnent' was  held  iiong^ht. 

Alt,  Oev.  My  lord,  that  is  a  different  case 
from  this,  because  '  insuhnm   fecit,'  and  the 

*  percuss  it,'  are  different  crimes ;  there  is«  a 
great  difference  between  an  aasault  and  a 
atruke ;  hut  here  it  is^  That  they  did  prop<j«e 
■nd  considt  of  the  ways  and  means,  and  agreed 
upn  this  particular  way  *,  that  is  the  same 
thinfj;  it  is  not  an  enlire  sentence  till  y<in  come 
to  the  end  of  it,  then  it  is  complete  wh^n  you 
ahew  tvf)ut  was  the  effect  of  the  consultation; 
whnt  I  hey  were  agree*!  Uj»ou,  and  not  tiU  then. 

Mr.  Miffnpeiioii^  A  roan's  hohKou  up  his 
hand  is  an  assault,  but  he  luuat  actiially  strike 
In  be  guilty  of  murder:  so  a  man  may  debate, 
and  yel  not  agree :  it  ti  the  agreement  that  ts 
the  Irc^i^on. 

L.  C.  J-     Bead  the  Indictment, 

Cf,  of  Ar.     *  Decimo  di*?  Fcbruarii  anno 

*  Regni  dicti  Donuni  He^is  nunc  septimo,  et 

*  diversis  uliis  diebus  et  vicibnt ,  tani  antea  qufem 

*  postCii,  apud  Faruchiam  Suncti  Panii  Covetit- 
•^  Garden,  prftnlict/  in  Comitotu  pra^dict',  fals^ 
'  waliti'-'      '    '    tiei^,  pfoditoii^,  compassare- 

*  runl,  iji  r  machinati  fuerunt,  e3cco|fi- 

*  tavcruijk.  *it:-i-iiaveruDtetintendebant  dictum 
'  Bomitmtn  Reg-era  nunc  occidere,  inter ticcre, 
*"  et  Tuurtlrarei  et  atra^em   miserablleni   inter 

*  fiiletcs  subililos  ipsius  Domini  Ilcgis  per  totntn 
'  hoc  Uegnum  Anjjlioe  facere,  et  causare,  et  ad 
*•  easdem  uefandigsimaa,  Deqaissimas  ct  diaho- 

*  licos  prtiditiones  at  proditorius  compassationfs, 

*  niachinAiioneiJ,  et  proposita  sua  pnedicta  f»e- 

*  rtuipleiit1*j  perficiend*,  et  ad  effectiim  redigend* 
'  ipsi  iidem  Christophorus  Knigbtley,  Roberlus 

*  No  inilictn^ent  (as  to  the  dirersity  in  im- 
peach mentis,  see  in  this  Collection  the  Cds«  of 
fold  IVinloiui,  a.  d.  1716)  can  be  good  with- 
out precisely  .shewing  a  certain  day  and  year 
of  Ine  facts  altr^cd  in  it,  8ee  Leach*i  Hawk, 
PL  Cr.  b,  2,  c,  25,  s,  77,  7$,  and  the  authu- 
rities  there  citeiL  See^  also,  lord  Kenyon^s 
judgement  in  the  King  against  fTollandp  5  Term, 
Rep.  624,  G?5.  But  it  is  sufficienl  in  an  in- 
dictment for  treason,  as  in  other  cases,  that  a 
lime  be  laid  before  the  finding'  of  the  bdi  under 
which  may  be  proved  any  acts  commilled  be- 
fore the  finding  of  the  bill:  and  as  to  place  in 
canes  of  treason  within  the  realm,  it  is  sufficient 
thatan  overt-act  be  proved  in  thccnuniy  where 
ttie  indictment  is  laid  und  the  trial  had.  See 
in  this  Collection  the  Casc^  of  Charnock,  vol. 
12,  p.  11*78;  anJofh»rd  riulraerino,  a.  D*  J745, 
East's  FNeas  of  the  Cn>un,  chap.  2,  sect,  60, 
6J,  and  the  authorities  there  cued;  and  for 
mure,  IIS  to  ihe  place  where  tteasons  com- 
Qittted  abroad  or  at  home,  sUull  be  tried|  see 
$ecU  iO,  41,  of  ihe&uuie  chapter. 


TfM  ofRoigrt  Lowic^t 


[J 


*  Lowick,  Ambrosius  Rookwood  ct  Car*  * 
^  burne,  et  quam  plurimi  alii  falsi  pr<Kbli 

*  (Jyraior'    prtedictis    ig^nof  i)    pottea, 

*  eodem  decmio  die  Februarii  anno  sup 

*  apud  Pan»chiam   unedictam   in  Com*  pr 
*■  dieto,  ac  div ersis  alii$i  diehus  et  vicibua^  tan 

*  an  tea  quam  postea,  ibidem  et  ahbi  io  ( 

*  Com\  fals^,  inatiiio^^,  adv  tsAt^,  clan 

*  proditorid,  ac  vi  et  armis  coii«eniebaiil, 
'  posuer*,  traciaver%  cnnsuUaver',  cons 

*  et  agreavei%  ad  ipsum   Dominiim    R«_ 

*  nunc  ex  insidtis  et  dolo  ptTcutiend*,  An^lit 
^  *  to  assassinate,'  interticiend^  et  tnurdrumi^  < 

'  ad  e^ecrabilera,   horrendam  et  detestabilem 

*  Aasas!ii nation',  AngUce  *■  Aasassinaiion,'  et  lo-i 

*  terfectionem  ill*  citius  exequentr   et  perpe*] 

*  Iramr  postea  scilicet  etsdem  die  et  anno, 

*  di%ersis  aliis  diebus  el  vicibtis,  npud  Paroeh 

'  pned*  in  Com'  pnedicto,  proditori^  tractav cr'l 

*  ptoposuer*  et  contiultaver*  de  ?iis«  modis  m 

*  mediis,  ac  tempore  et  loco  nbi,  quaudo,  qtmil 
'liter  et  quoroodo  dictum  Dominuiu  Re 
'  sic  ex  ini^idiis  tacilius  tnterticerent,  et 
'  senser*,  astrea^erunl  et  asseuser^  qu<id  qui 

'  dragint*   liumine^  E«juestrea  ant  m  drcitei 

*  (quor'  iidcm  Christophorus   K  Ho- 
'  bertns  Lowiek,  Ambrijsius  Rn                 i  Car* 

*  Cranburtie  forcnt  quatuor,  {vi  qiuiibct  eot' 

*  proditorie  super  se  suscepit  esse  unum)  cu 

*  bomhardiSf  aclopis  et  scJopetis,  ptikere  I 
'  bardico  el  globulis  plumbeis  onerat%  et  ( 

*  e  lad  lis  J  en  si  bus  et  aliis  armis  armat^  instdia 

*  forent,    et  cssent  in  subsessu,    Angiice  *  ia 

*  *  ambiuh,*  ad  eundein  Doroinura  Reg  em 

*  Rheda   sua,  An^licc    *  hb  coach,'   exislenF 

*  quando  foris  iret  invadeiid%     C^uodque  qu 
'  dam  et  competens  numerua  de  hominibus  dij 
'  sicarmat'  in  satellites,  Angiice  'the  guar 
'  ipsius  Domini  Regis  eum  tunc  attendend'  i 

*  secum  existen'  aggressi  forent,  et  eoi  i 
*■  uarent  et  devincerent,  dum  alii  eorundem  1 
^  minum  sic  armat'  ipsum  Dnmtmim  Re 

*  percuterenti  inierticerent,  occidereot  et  i 

*  drarent.' 

Mr,  Mompeison.  The  consnlt  is  like  the  ti 
sault,  and  the  a^eemcnt  is  Hke  the  Ktroke. 

L,  C.J.  Trcotf.     Jl  is  a  nice  ca&e 
would  have  itj  but  1  tliink  it  is  very  nutu 
the  king^s  counsel  put  it  at  iii^st ;  they  j 
c{insuhation  of  the  ways  and  meant 
fihoutd  be  done,  and  then  they  condod 
thii!>  it  sJiatl  be  done :  all  whicli  makes  I 
iiiUre  thitjg. 

L.  V,  J.  They  say  they  met  that  da 
Paul  Covent  "^arden,  that  is  in  ihe  in 
and  did  consult  how  to  kill  the  king ; 
consented  and  agreetl  among  themselv 
it  sliould  he  done  in  this  manner  :  doth  not  tiki 
refer  to  both  time  and  place  in  the  beginning  j 
It  is  a  coiitinuiug  on  of  (he  satne  sentence,  i 
makes  all  but  one  and  the  tame  act;  it  it  1 
result  of  the  consultation  at  that  tiiue 
place. 

8ir  B.  Shmt'^r,  But,  my  lord,  it  might  bei 
another  place :  they  might  considt  at  on 
place,  and  conclude  at  another. 

Mt,  Cont/crt.    But  it  is  laid  to  b«  al  the  i 


irf] 


ftxr  High  Trdoitm. 


pUoe,  for  no  otlier  |»lt€e  does  appear,  «nd  it  k 
•Bft  conttDueii  sentence. 

L^  C.  J^  Triffty.    You  would  make  the  repe- 
litidfi  e€i  frequeat  and  reiter^iud,  llitt  it  would 
became  ab«urd* 
Ait.  Gen,    Indeed  1  do  not  know  wbat  tdese 
I  would  bate* 
.  Slower.     We  wouM  ha?e  ihisindict- 
aJI  otbers  «i^,  the  precL-deitts  are  as 
,  and  we  hope  i\m  shall  pui-sue  them,  or 
i  <|i]ashed. 

L.  C,  J.  Look  ve  here,  m  Bartholome^v 
^ower  ;  suppose  this  part  ftbould  licit  he  right » 
that  will  DOt  viiiate  the  whole  indictment. 

^Mamputtm*    Bui  your  lonbhtp  will  not 
k  to  ^ife  evidence  of  that  part  that 


C.  /.  Vea.  yea ;  it  eomes  wUhiii  tiic  fi  rst 
( of  the  time  aotJ  place  laid  ;  Ihey  nay 
fift  evidence  of  it,  because  this  is  hiU  a  setting 
fMtb  for  the  maoDer  agreed  U{>on  for  the  exe- 
«BlMi  of  the  deai|f  0  that  wan  before  consulted 
iai  treated  of;  it  is  com preh ended  in  the 
ftmtr  ward»;  and  ii'  they  had  omitted  thia 
ait «f  the  iiidictfuentf  the  indictaient  had  never 
fceeo  the  worse;  there  had  been  a  t>uffieicnt 
onrt-act  alleg^  to  prore  the  eonapas<iiug  and 
iaa^iiito^  the  death  of  the  king^ ;  for  if  people 
at  such  a  place  and  tiKie  meet  and  propose 
tie  way  and  means  how  to  effect  it,  do  you 
think  the  indietmest  would  not  he  goo<l  enoutj^h 
%tfbout  lading  the  particular  means  a^reeti 
upon  f  Certainly  it  hid  been  well  enoug-I)  if 
ikia  had  l»een  omitted.  Do  you  think  they 
wmwA  gire  this  in  evidence  as  a  proof  of  the 
4nrt-act  f  Certainly  they  may. 
^  JL  Skofmer.  The  question  will  be,  my 
apou  the  whole.  Whether  the  con- 
I  of  the  indictment  *  contra  legiautrie  suae 
m,*  shall  be  taken  distribu lively  ta 
t  f  And  if  BO,  then  there  ought  to  be 
plac«  alleged  to  every  f»cl- 

tSiip|K>se  yoti  lay  several  overt- 
ada,  and  prove  but  one,  yet  he  is  lo  l>e  fonnd 
fiilQf  of  the  hi(^h- treason,  which  is  the  ima- 
gfiloff  ood  compiissin^  the  death  of  the  kiog^, 
Vik»  ia  the  crime  laid  in  the  iudieiment ;  theti 
I  thia  waalelt  out  of  :J^ndJctment,  they 
^♦e  it  in  evidentie  a.»  a  proof  of  the 
Sf«ft-act,  that  it  is  well  hid  for  time  and 
piaee ;  and  therefore  though  it  be  e^cprenKed, 
aad  uoC  ao  fully  and  [tarlicularlv  l^id,  we  cuo- 
DOt  qoash  the  mdictmeM  for  it,  Cjecau^  the  in- 
diattpest  would  b^ve  been  gfiod,  though  that 
kadtweii  omitted.  * 

L.  C.  J.  iVe/jy*  Tbnt  is  certainly  true,  it  is 
tocaase  tor  quufihiog  the  indictment. 

SoLGtn.  The  indicimenU  Jtirainst  the  Ue- 
pfidimf  were  fi^r  compaMitJX  the  deuth  of  the 
taugt  and  they  g^ve  in  evidence  that  he  was 
pyilodealht  iboctgh  ihey  churged  in  the  in- 
vetaacoi,  only  the  c^im passing  and  imagining 
Ika  death  of  the  king. 


*  liiee  East's  Fleaii  of  the  Crown,  chap.  ^» 
^46,  aad  Layer's  Case  as  there  cited, 
t  tiaefol5,  p.  ^7. 


A.  0.  lEm.  [JT8 

Z,  C*  X  Ay,  sure,  that  is  an  orert  act  with 
a  witness,  the  tndicUnent  was  not  laid  for  mor- 
dering  the  king,  but  ior^mpaselhg  bis  death, 
wliidh  is  the  treaaon  accordukg  to  the  act  of 
partiameot  of  Sd  £d^  d,  and  as  an  overt -act 
they  gare  the  cutting  o0*his  head  in  eridence. 

Att.  Gen*  The  indictnieni  says,  they  eom- 
pastied  and  trnxigined  the  king^s  dealh«  atid 
they  agreed  to  do  it  in  this  manner ;  if  thiji  he 
not  ail  one  inlire  seateitce,  I  know  not  wtiat  is. 

L.  €.  J.  As  to  your  case,  Mr.  Mompesson, 
which  you  quote  out  of  Dyer,  it  is  posaible  a 
man  way  make  an  assault  at  one  tune,  and  at 
another  time  make  an  assault  and  give  a  str<ike ; 
hut  this  is  all  one  aet,  it  does  hut  specify  what 
was  generally  consulted  of  and  proposed. 

L.  C,  J.  Treb^.  Pray,  do  yon  think  a  man 
may  demur  a  poo  a  eommon  action  of  battery, 
where  it  is  said  first,  at  such  a  time  and  p)ace, 

*  Insultum  fecit,  verberavit,  et  vulneravit,'  be* 
cause  there  is  nut  a  place  set  to  every  word. 

Mr.  M&fnp€*wn.  lodtetments  ought  to  be 
ret^  curiously  penned,  and  what  is  good  in  an 
action  will  not  be  good  in  an  indictment,  with 
submission. 

L.  C.  J.  Trehy,  But  suppose  you  shewed 
it  for  cause  ujion  special  demur. 

Mr.  Jifompesstm.  My  lord,  1  cannot  tell  what 
it  would  amount  unto. 

X.  C.  J.  Vou  <:annot  quash  the  iodtctment 
at  this  time ;  that  is  not  possible,  because  the 
indictment  is  good  as  to  the  rL*st,  snppo&bg  this 
was  not  so  well  as  it  might  he- 
Mr.  Momptuon.  Then,  my  lord,  1  am  in 
your  lordship's  judgment,  whether  they  shall 
be  admitted  to  give  evidence  in  this  particular 
thing? 

Xr.  C.  J.  They  may  certainly  give  in  ewU 
dence  the  agreement  to  have  forty  men  to  kill 
llie  king,  as  a  proof  of  the  consultation,  agree* 
ment,  and  couseot  to  kill  the  king ;  and  the 
consenting  to  have  forty  horsemen  is  in  evi- 
ilenee  of  tneir  treating,  proposing,  and  consult- 
ing to  kill  the  king,*  1  ben  for  yourobjeclion 
of  *  Uuilihet  suaoeiiit*  to  be  one;  that  is  well 
enough,  it  is  all  still  hut  one  sentence. 

Sir  B.  Shmver,  One  of  which  is  it  ?  for  they 
have  not  laid  in  the  indictment  what  in,  whe- 
tlier  it  be  one  of  the  four,  or  one  ot  ihc  forty. 

Z,  C  J.  Whether  it  Imj  one  of  the  four,  or 
the  forty,  is  not  material ;  for  cannot  one  be 
fduod  giulty,  and  the  rest  ttC4|uiited  ?  The  one 
is  not  charged  wi(h  the  act  of  the  other,  hut 
they  are  several  od'ences,  ar^  each  must  an- 
swer for  himself.  In  all  indictmem^,  oflences 
artj  several.  Suppose  an  indictment  of  con- 
spiracy,and  it  i»  laid  in  the  indictment  that  four 
did  conspire  ;  csnuot  you  profe  that  two  coo- 
spired?  no  question  you  may.  It  is  not  cer* 
tainly  necessary  that  every  one  should  be  proved 
lo  hare  conspired.  Suppose  it  were  alkged 
that  four  did   beat  a  man,  and  dues  not  say 

*  Unilihet  eornm^  beat  him,  you  may  give  in 
evidence  that  one  did  beat  liitii. 

*  See  East's  PleM  of  tlie  Crown,  c.  %  a,  57, 
53.  See»  abo^  in  tbjs  CoHecslJon,  Yot,  5^  ^.  911 . 


§79]  S  WILLIAM  HL 

Sir  B.  Shower.  No  qaeitioD  of  thai  in  caso  l 
of  a  battery,  but  in  the  case  of  a  conspiracj  j 
there  must  be  more  than  one. 

L  C.  J.  Nay,  I  will  ask  you  eren  in  an 
action  nf  conspiracy,  where  the  very  gist  of  the 
action  is  conspiring  together,  cannot  two  be 
found  guilty,  and  the  rest  acquitted  ?  In  riots 
there  must  be  three  or  more.  It  may  be  you 
wUI  lay  ten,  but  it  is  sufficient,  I  hope,  if  you 
prove  it  upon  anv  three  of  them. 

Att.  Gen.  The  difference  is  betwixt  con- 
tracts and  crimes ;  for  contracts  they  are  joint, 
but  crimes  thev  are  in  their  own  nature  several. 

Sol.  Gen,  Besides,  my  lord,  though  they  be 
out  of  time,  yet  this  is  not  to  tlie  abatement  of 
the  indictment,  but  to  the  evidence ;  how  oo 
they  know  but  we  will  give  it  in  evidence  that 
Christopher  Knightley  was  one  ? 

L.  C.  J.  Treby.  Mr.  Mompesson  moves  it  as 
a  caveat  against  your  ^ving  it  in  evidence. 

Sir  B.  Shower.  If  m  an  outlawry  against 
divers,  they  leave  ont  these  words,  *  l4ec  eorum 

*  aliquis  comparuit,'  that  is  every  day  held  to 
be  nought,  and  for  that  reason  we  say,  the 

*  Quili&t  eorum  suscepit'  is  necesmry  too,  and 
without  being  laid  cannot  be  given  in  evidence, 
and  if  it  be  laid,  it  ought  to  have  time  and 
place. 

L.  C.  J.  Treby.  The  default  of  appearance 
must  be  a  several  thing,  and  when  be  lays  it 
jointly  *  non  comparuerunt,'  it  may  be  true 
that  all  did  not  appear,  if  any  one  made  defaull ; 
but  when  you  charge  men  with  a  iact  done, 
though  in  the  plural  number,  yet  it  is  a  distinct 
separate  charge  upon  every  one. 

CL  ofAr,  Robert  Lowick,  those  men  that 
thou  shalt  hear  called,  and  personally  appear, 
are  to  pass  between  our  sovereign  lord  the  kinj; 
and  you,  upon  trial  of  your  life  and  death  ;  if 
therefore  you  will  challenge  them,  or  any  of 
them,  your  time  is  to  sneak  to  them  us  they 
come  to  the  book  to  he  sworn,  and  before 
they  be  sworn. — George  Ford. 

Lowick.     I  do  not  except  a&rainst  him. 

C/.  oJ'Ar,    Hold  the  book  to  Mr.  Ford. 

Cryer.  \jooV  upon  the  prisumer.  You  kIiqII 
well  and  truly  try,  and  true  deliverance  make 
between  our  sovereign  lord  the  kint;,  and  the 
prisoner  at  the  bar,  whom  you  shall  have  iu 
charge,  and  a  true  verdict  give  according  to 
your  evidence.     80  help  you  God. 

CL  ofAr.    Thomas  Trcuch.  . 

Lowick.  I  ha\e  nothing  to  say  against  him. 
(He  was  sworn.] 

CLrfAr.    John  Wolfe. 

Lowick.  i  do  not  except  against  him.  [He 
was  sworn.] 

CL  ofAr.    James  Bodington. 

Lowick.    I  challenge  him. 

CLofAr.    John  llaymoud. 

Lowick.  I  say  nothing  against  him.  [He 
was  sworn.] 

CL  ofAr,    George  Haw  cs. 

Lowick.  J  do  not  except  agaiust  him.  [He 
w^  sworn.] 

CL  ofAr.    Thomas  Glover. 

Lowick.    I  challenge  him. 


Trial  of  Robert  Lowick^ 


[290 


CI.  ofAr.    Blatthew  Bateman. 
Lowick.     I  do  not  except  against  him.    [He 
was  sworn.] 
CL  ofAr.    James  Partherith. 
Lowick.     i  challenge  him. 
CL  of  Ar.    Joseph  Blisset. 
Lowick.    I  challenge  him. 
CL  ofAr.    Alexander  Forth. 
Lowick.    I  challenge  him. 
CLofAr.     Francis  Chapman. 
Lowick.    I  challenge  him. 
CL  ofAr.     Nicholas  Roberts. 
Lojfick.    I  challenge  him. 
CL  OfAr.    Thomas  Playsted. 
Lowick.     1  ch&ilenge  him. 
.  CLofAr.    John  Hall. 
Lowick,     I  challenge  him. 
CL  of  Ar.    W  illiam  Partridge. 
Lowick.    I  challenge  him. 
CL  of'Ar.    Peter  llevigne. 
Lowick.     1  challenge  him. 
CL  tfAr.    Thomas  Moody. 
Lowick.     I  challenge  him. 
CL  ofAr.   Thomas  Ramage. 
Lowick.    I  do  not  except  against  bim.    [He 
was  sworn.] 

CLofAr.   Edward  Towneseod. 
Lowick.    1  challenge  him. 
CL  ofAr.    William  Gunson. 
Lowick.    1  challenge  him. 
CL  if  Ar.   John  Wyliome.  (He  did  not  ap- 
pear.)— William  Strode. 
Lowick,     1  challenge  him. 
CL  ofAr,     William  Wild. 
Ixtwick.     f  do  not  except  against  him.    [Ue 
was  sworn.] 

CLofAr.     William  Pitts. 
Lowick.     I  do  not  except  against  him.   [He 
was  suoru.] 

CL  if  Ar,     William  Smith. 
lA'u'ick.     I  do  not  except  against  him.    [He 
was  sworn.]  ^ 

CV.  if  Ar,     Moses  Cnok. 
Ixrwick.     I  challenge  him. 
CL  if  Ar.     Renjauiiu  lioltby. 
Ijowick.    1  do  nolAXcept  against  him.    [He 
was  sworn  ] 

CLifuir.     Elias  Ffctoher. 
Loukk.    I  have  notlif^g  to  say  against  bim. 
[He  w;js  sworn.] 

CLi^fAr.     Cii<'r,  countcz.    George  Ford. 
Cryrr.     One,  ^cc. 
CL  ffAr.     Elias  liiettlier. 
Crytr,    Twelve  j^'ood  men  and  true,  stand 
tou;ellicr,  aud  hear  y«Mirevi<lence. 

L.  C  J.    Now  tlic  rest  of  the  jury  that  bav«- 

j  a})pL':ii*e(l  are  dischur;;;;eii. 

I      CLofAr.     CruT,  make  proclamatiou. 

I      Crytr.     Ovtz,   If  any  one  can  inform  my 

lonls,  the  kiny's  justices  ot  Over  and  Terminer, 

the  king's  seinant,  or  ihe  king's   attorney- 

geiu-ral,  hefoir  this  inquest  be  taken,  of  the 

hiiih  Jioaou,   'hereof the  prisoner  at  the  bar 

blamis  in  licte  t,  let  thecn  ccue  forth,  and  they 

shall  b«^  iiea.il ;  for  now  the  prisoner  stands  at 

the  bar  u|M)n  his  deliverance,  and  all  others  tint 

are  bound  by  recognizauce  to  give  etidnce 


fw  High  Treason. 

m  prisoner  at  the  bar,  let  them  come 
I  give  their  evidence,  or  else  they  for- 
reco^izance. 

mes  of  the  tweWe  sworo  are  these : — 
Ford,  Thomas  Trench,  John  Wolfe, 
rmoDd,  Geo.  Hawes,  Matthew  Bate- 
lonas  Rammage,  William  Wild,  Wm. 
n.  South,  BcDJaminBoItby,  and  Elias 

Ar.  Robert  Lowick,  hold  up  thy 
hicb  he  did).  You  that  are  sworn, 
Q  the  prisoner,  and  hearken  to  his 
le  stands  indicted  by  the  name  of  Ro- 
ick,  late  of  the  parish  of  St  Paul  Co- 
len,  in  the  county  of  Middlesex,  gen- 
Ibr  that  he,  together  with  Christopher 
y,  late  of  the  same  parish  and  county, 
n;  Ambrose  Rookwood,  late  of  tne 
irish  and  county,  gentleman;  and 
i^ranburne,  late  ot  the  same  parish  and 
eoman,  not  harinff  the  fear  of  God  in 
rU  nor  weighing  tne  duty  of  their  al- 
but  being  moved  and  seduced  by  the 
u  of  the  devil,  as  false  traitors  against 
;  serene,  most  illustrious,  most  mild, 
.  excellent  prince,  our  sovereign  lord, 
the  Third,  by  the  grace  of  Gpd,  of 
,  Scotland,  France  and  Ireland,  king, 
of  the  faith,  &c.  their  supreme,  true 
tful,  lawful,  and  undoubted  lord,  the 
rve,  and  true  and  due  obedienccr  fide- 
illegiance  w  hicb  every  subject  of  our 
the  king  that  now  is,  towards  him 
lord  the  king  should  and  of  right 
bear,  withdrawing,  and  utterly  to  ez- 
,  intentling  and  contriving,  and  with 
strength,  purposing,  designing  and 
■^  the  government  of  this  kingdom  of 
I,  under  him  our  said  lord  the  kmg  that 
oyr Tight,  duly,  happily,  and  very  well 
ed,  altogether  to  subvert,  change  and 
also  the  same  our  lord  the  king  to  death 
1  destruction  to  put  and  brincf,  and  his 
Nihjects,  and  the  freemen  of  this  king- 
Bogland' into  intolerable  and  most  mi- 
lls very  to  Lewis  the  French  king  to 
te  and'  f'nthnil,  the  10th  da^  of  Fe- 
n  the  7th  year  of  the  reign  ot  our  said 
a  lonl  the  King  that  now  is,  and  divers 
ys  and  times,  as  well  before  as  after,  at 
lb  of  St.  Paul  Covent-garden  aforesaid, 
xmnty  aforesaid,  falsely,  maliciously, 
k,  and  traitorously,  did  compass,  ima- 
I  cootrive,  parpose,  design,  intend,  our 
I  the  king  tbat  now  is,  to  kill,  slay,  and 
;  and  a  miserable  slaughter  among  the 
subjects  of  our  said  lord  the  king, 
lOirt  this  whole  kio«;dom  of  England 
!  and  cause ;  and  the  same  their  most 
impioat,  and  devilish  treasons,  and 
m  compassiogs,  cuntnvances  and  pur- 
iwtnid,  to  fulfil,  perfect,  and  bring  tu 
(key  the  said  Christopher  Knightley, 
liawick^  Ambrose  Rookwood,  ami 
iCiaobame*  and  very  many  other  false 
It  Ike jarOTsankiiown ;  afterwasds,  to 
»  aae  lOdi  daj  of  February,  in  the 


A.  D.  1696.  [S8t 

year  abovesaid,  at  the  parish  aforesaid,  in  the 
county  aforesaid,  and  divers  other  days  and 
times!  as  well  before  as  after,  tliere  and  else* 
where  in  the  same  county,  falsely,  maliciously, 
advisedly,  secretly,  and  traitorously,  and  with 
force  and  arms,  did  meet  together,  propose, 
treat,  consult,  consent,  and  agree,  him  our  said 
sovereign  lord  the  king  that  now  is,  by  lying 
in  wait  and  wild,  to  assassinate,  kill  aira  mur- 
der :  and  that  execrable,  horrid,  and  detestable 
assassination  and  killing  the  sooner  to  execute 
and  perpetrate;  afterwards,  to  wit,  the  same 
day  and  year,  and  divers  other  days  and  times, 
at  the  parish  aforesaid,  in.  the  county  aforesaid, 
traitorously  did  treat,  propose,  and  consult,  of 
the  ways,  manner,  and  means,  and  the  time 
and  place,  where,  uhen,  how,  and  in  what 
manner,  our  said  lord  the  king,  so  by  lying  in 
wait,  the  more  easily  they  miirht  kill,  and  did 
consent,  as^ree,  and  assent,  that  forty  horsemen, 
or  thereabouts ;  of  whom  the  saitl  Christopher 
Knightly,  Roliert  Lowick,  Ambrofte  Rook- 
wood, and  Charles  Craiil»iirne,  should  be  four  ; 
and  every  one  of  them  traitorously  took  opon 
himself  to  be  one,  with  guns,  muskets,  and  pis- 
tols, loaden  with  gunpowder,  and  leaden  bul- 
lets, and  with  swords,  rapiers,  and  other  arms 
armed,  should  lie  in  wait,  and  be  in  ambush, 
the  same  our  lord  the  king  in  his  coach  being, 
when  he  should  go  abroad,  to  set  u|M)n,  and 
that  a  certain  auti  competent  number  of  those 
men,  so  armed,  should  set  upon  the  guards  of 
him  our  said  lord  the  king  then  attending  on 
him,  and  being  with  him,  and  should  tight  with 
them,  and  overcome  thf  m,  m  hilst  others  of  the 
same  rnen  so  armed,  him  our  said  lord  the  king 
to  assassinate,  kill,  slay,  and  murder ;  and  they 
the  said  Christoither  Knightley,  Robert  Lo- 
wick,  Ambrose  Rookwood,  and' Charles  Cran- 
hurne,  their  treasons,  and  all  their  traitorous 
intentions,  desi^^ns,  and  contrivances  aforesaid, 
to  execute,  perpetrate,  fulfil,  and  bring  to  ef- 
fect, afterwards,  to  wit,  the  aforesaid  ioth  day 
February,  in  the  7th  year  aforesaid,  at  the 
parish  aforesaid,  in  the  county  abi»vesaid,  divert 
norses,  and  very  many  arms,  guns,  pistols,  ra- 
piers, and  swords,  and  other  wea|)ons,  ammu- 
nition, and  trarlike  thint^s,  and  military  instru- 
ments, falsely,  maliciously,  secretly,  and  trai- 
torously did  obtain,  buy,  gather  together,  and 
procure,  ami  did  cause  to  be  bought,  obtained, 
gathered  together,  and  procured  with  that  in- 
tent them  in  and  about  the  detestable,  horrid, 
and  execrable  assassination,  killing,  and  murder 
of  our  said  lord  the  king  that  now  is,  att  afore- 
said, to  use,  employ,  and  bestow:  and  the 
same  premisses  the  more  safely  and  certainly 
to  execute,  do,  and  perpetrate,  be  the  aforesaid 
Christopher  Knightley,  with  one  Edward  King, 
late  of  high -treason,  in  contriving  and  con- 
spiring the  death  of  our  said  lonl  the  king 
that  now  is,  duly  convicted  and  attainted,  by 
the  consent  and  assent  of  divers  of  the  traitors 
and  conspirators  aforesaid,  the.  said  lOfh  dav 
of  February,  in  the  7th  year  abovesaid,  trai- 
torously did  go,  and  come  to  the  place  pro- 
posed, where  such  intended  atsatsinatkini  kill- 


I 
I 


I 


I 


ins'i  and  murder  of  our  bsuI  lord  ihe  Icings,  bjr 
lyma:  in  wait^  sbouUl  be  done,  pejpetnited  and 
committefi^  to  t iew,  &ee«  and  ooaefve  ihe  coq- 
Yeoiency  aad  Blncfs«  ai'ihe  same  place  for  Euch 
lying  in  wait,  assassination,  and  ktlling^,  thcrt? 
to  be  done,  perpetrat^^  and  conitniiteii  ;  and 
tliat  placet  being  m  vieweU  and  oUnerfed,  after- 
ward b«  to  wit,  the  isatDc  da^  and  \ear,  \m  ob- 
Starvations  thereof  tr>  several  of  tiie  »M  traitors 
and  couKpiratont  did  relate  and  impart,  to  wit, 
al  ilie  [»arish  aforepaid,  in  the  county  afnre- 
«aid  ;  and  the  aforesaid  Charle«  Cranburne  the 
came  day  and  year  there  in  order,  tba  isame 
execrable,  horrid,  and  detestable  asaa&iiuatmn 
fuitt  kilKnf^  of  our  sairi  lord  tlie  king-,  by 
the  traitors  and  conspirators  aforesaid,  the 
more  readdy  and  hohWy  to  execute,  perpetrat**, 
a.nd  conuDit,  advistjdly,  knowing^ly,  and  traitor- 
ousJy  did  bear  and  cflny  among  divers  of  thuse 
traitors  and  conspiratorci  forwards  and  back- 
wardi»|  from  some  Co  otbem  of  them,  a  list  of 
the  naroeji  of  divers  men  of  those  who  were  de- 
signed and  appointed  our  said  Inrd  the  king,  so 
ftft  aforesaid,  by  lying  in  wait,  to  kill  and 
nunnrler>  aptinst  ihc  duty  of  the  allegiaiii'e  nf 
ihein  the  »aid  ChiTstopber  Koigbttey,  Robert 
Loi^ick,  Anibruse  [tuakwood,  and  Ci»nrles 
CrAohurne  ;  and  against  the  peace  of  our  fiaid 
uovcrcigu  iord  the  kin^  thut  now  ts,  bis  crown 
and  Oignity«  iis  ii\m  against  the  form  of  the 
statute  ill  Hiicb  case  made  and  pruvided.  Upon 
this  indict ineui  hi;  has  been  arraigned ^  and 
tbereuiitij  balli  pleaded  Not  fiuilty,  and  for 
Ilia  triai  lintb  put  bituself  npc^n  Gird  and  the 
country  I  which  country  you  are  ;  your  charge 
is  to  inqtiire,  Mbeiher  he  be  guilty  ot  the 
high-trcn«on  whereof  he  stands  indicted,  or  not 
guilt)' :  if  yon  find  him  tcuiliVi  you  are  to  en- 
quirt*  what  goo<la  or  chatty b,  Undi4  or  tene- 
uientij,  he  had  iit  the  time  uf  the  high  tvea^on  i 
committed,  or  at  any  time  sinc^,  to  your  know-  ' 
ledjuft  ifyou  find  iiint  not  guilty^  you  are  to  I 
enquire  whether  he  fled  li>r  it ;  '»f  you  fmd  he  | 
fled  for  it,  ^ou  areta  in  if  n  ire  of  hi^  good<und 
chatteb,  as  if  yon  bad  lound  him  guilty :  if  yuu  i 
find  him  not  guilty,  and  thai  he  did  not  Hy  lor 
it»  yuu  are  to  say  ao,  and  no  more:  aud'hear 
your  evidciice. 

Mr  MoHtUoguc,  May  It  please  your  lord* 
ftbip,  and  yuu  geut)ein«o  of  the  jury  ;  this  is 
an  indictment  of  h»;;b  treason  a^iunst  Itofiert 
IfOwick,  jirisoner  at  the  bar  ;  and  ihe  Indict-  ' 
Dient  does  charge  him  with  oompaf-^og  and 
imaghiiog  ihetieulh  of  thf%  king,  and  eodea- 
vouruig  to  subvert  the  government,  and  iot>lave 
this  kingdom  of  EogUnd,  ami  brin^  it  under 
French  lyriinny  and  ulavery  j  and  toe  Indict- 
ment seia  forth  that  Roliert  .Lowiok,  the  pri- 
soner at  th«  bar,  tb«  lt>ih  of  February,  met 
several  f<tlae  traitor>i|  and  tht*re  consnlled  and 
treated  how  to  assagai oate  his  Majesty  i  and 
agreed,  that  forty  horsemen  do  get  together, 
some  to  utt3i4  the  fjfuards,  while  others  were  I 
to  a.ssassinute  the  king  iu  his  coach  ;  anti  the  I 
Indictment  charges  him  likewise  with  getting 
tog«;ther  horses  and  amis  for  this  pQrp4lc« ;  to 
tkia  be  bath  plesuled  Not  Guilty.    We  wtU  call 


our  evidence,  and  pruve  the  lact  ^;i 
and  we  do  not  doubt  but  you  will  db  yc 

Att.  Gen,  May  it  please  ytiur  lotdsliip,  ] 
you  gentletnen  that  are  sworn,  this  is  a» 
dictmeut  of  high  treason,  in 
compassing  tine  death  and  deslruclioa  ^ 
king ;  the  nature  of  our  evidence  m^k 
prifioner  at  the  bar  is  this. 

Ymi  will  hear,  gentlemen,  by  the  wi( 
that  about  Christmas  last  a  cou^spiracy  i 
aiga  was  set  oa  foot  to«9*ati&maie  tb 
aod  accordingly  to  accomplish  it,  th€ 
several  persons  sent  orer  from  Franc^l 
late  kiu^  Jauies,  who  were  purt  of  hiii  gua 
and  particularly  sir  George  tiarcley   w^a  toi 
thehe»d  of  them  ;  he  was  a  lieutenant  of 
guarils  ttierc,  uod  he  was  sent  over  in  i| 
Ust,  and  there  were  a  great  maoy  tri 
over,  who  were  to  be  under  hi^  directio 
ticutarly  Mr.  linrriB,  who  will  give  you  ^ 
count,  that  he  was  sent  over  by  ortler  of  J 
James,  und  he  waK  tntd  particularly  kin|^J~ 
had  a  sfrvice  far  him  to  do  in  England,|^ 
hoped  it  might  be  an  opportunity  to  t 
liHu.      He  was  to  observe  tlie  orders  i 
Gcwge  U  a  re  ley,  and  by  wl*at  lokeu  be  i 
know  hiai  \    be  was  to  meet  him  in 
garden,  and  he  was  told  he  might  find  I 
there  Awict^  a- week  in  the  square,  akmt 
o'clock^  alter  it  was  dark;  and  th^a  he  roij 
knnw  him,  he  told   him,   he  would   hats 
»hit^  huodkercbief  hanging  out  of  hi«  p( 
accordinj^ly  Mr.  Harris  came  over,  and 
Hare  came  with  bmi,  and  they  catne j 
meet  wjth  sir  George  Barcley  ;    and  (' 
getber  with  sir  George   Barcley,  and 
others  here  in  England,  Mr.  Porter,  Mr. 
nock,  and  sir  VVilliam  Perkins,  did  enter  i 
consultation  how  to  etfect  it :  Thert-  were  t 
ral  meotn>k:*i  about  it,  and  you  Mill  find  the  j 
soner  at  ihv  bar  was  at  several  meetiiigsj 
purpo«)e  :  ,'ind  tbey  thd  undertake  a'inoit& 
to  proviffe  &o  miiny  men  a*  mi>>ht  m:«ke! 
ttie  number  of  forty,  which  they  thoui^nt  sui 
cient  frirtlie  execution  of  this  dt^^ign. 

Gentlemen,  you  wdl  hear  th»t  the 
at  the  b;ir  did  trent  with  several  person 
engaged  in  it ;   particularly  about  the  i 
February!  he  Rent  tc»  one  Bertram,  3 
him  if  he  would  be  engaged  iti  a  de 
king  James *b  service^  that  woi  quicklj^ 
executed,  without  asking  of  que^^ions  | 
terwardii,  I  (hi&k,  he  undertook  be  weil 
about    the   Uth    of  February    Ue 
again,  and  tliat  was  the  day  bei«ire 
lime  they  intended  to  attack   the  kiu|p^" 
then  being  so  near  the  Uoie  when  it  w» 
be    executed,  he    thought    it  'firoper  t<i 
qii«kint  him  with  tite  thiug  be  btid  eogagtd  1 
in ;   and  l>e  ditl  acquaint  him,  that  the  i 
inort]ing  tbey   uere  to  be  ready  to  attack  ( 
king  and  bi^  guards,  and  bid  him  be  sure ^ 
get  bis  bofits  and  other  ihrnj^  ready  for  T 
purpove,  aikd  ho  gave  him  a  guinea  in  < 
it     Bertram,  it  iieems,  ou  the  15th  of  Fe 
did  not  cotue,  and  the  king  it  seems  did  | 
abroad  that  day,  so  t^j  were  disapp 


L  mcttr 


lltf  tioie ;  btit  the  8iiad«y  afler  Bettraiti  met 

tef  an^  IBr.  iiowtek  eomplfttiied  that  he  hud 

or  upen  the  Sblur^j  accordinjgr  as  he 

idertalceo  ^  ^ttA  he  lifhl  him  it  woiild  have 

anilte  ihin^,  he  would  Imve  disap* 

I  lliem  if  the  kint;^  had  been  in  the  field. 

....   ,  y(»u  shitll  6iid,  that  as  he  thus 

Mr.  Bertrani,  so  he  was  to  (irovide 

others ;   and  did  declare,  that  at  his 

0m  rharjre  be  liad  jjoi  two  or  three ;  he  com- 
of  it  as  a  hmrdship  put  upon  him,  thai 
l^tr.  Harris  had  6j.  a- day  sufatistence, 
md  »*»  only  to  take  care  of  himself,  he,  Mr. 
iMPick,  had  at  his  own  charges  engaged  and 
ITPYulet)  serenl. 

Yoa  viU  fiod»  gentlemen,  that  ^Ir,  Rook* 

wiiod^  who  was  tried  yesterday,   had  seversl 

Oicttrti^  about  it  with  Mr.  Lowick  and  Mr. 

Iltrris  ;    tbev  did  think  it  to  be  a  barbarous 

tint    ha w ever,  they  were  reaolveil    in 

id  the  {trjsoner  in  particulsip  snid 

V  orders,  thouj^h  he  lb  ought  it  a 

wvwickefi  tiling, 

(SciHlemer},  yoii  will  6nd  by  the  evtdeDce 
Wthe  matter  was  earned  on  ;  the  prisoner 
«ti  10  be  engaged  id  it,  and  did  not  only  em- 
l«rk  Kinu^lf  in  (lerson,  but  engagjed  others,  and 
id  trot  with  theiD  about  it.  We  8hall  cat! 
fvr  witiiessei,  who  will  ^ve  you  a  fiilJ  accoimt 
if  il,  aod  then  we  shalt  leave  it  wiih  you, 
vbv  we  question  not  will  do  jusliee.  First 
eyi  GtfOfgis  Harrfii*     [Who  appeared,  and  was 

SfL  wn.  Pray  will  you  g^ive  an  account  to 
ijlord  siui  the  jury,  whnt  you  know  of  the 
iMiDiM  aansMoalion,  and  what  part  the  pd- 
i^v  At  (ht^^  har  had  in  it? 

n  Begin  from  the  first,  and  tell 

mr  1 J  wlediye  as  y  o  u  d  i  d  y  e^terday . 

Hirrt^.  On  the  t4th  ol  January,  new  itile, 
I  vwtfrdered  to  wait  on  ktngf  Jatnea  at  din- 
orrj  alter  dinner  waa  over,  I  was  called  io, 
wfiere  waa  col.  Parker  and  Mr.  Hare  at  the 
ttone  lime,  and  king^  James  totd  tne  be  was 
tCTj  sensible  of  the  g^od  ser%nce  1  had  done 
I  ;  lod  now  he  had  an  opportuoity  fif  doing- 
hiog'  for  me  :  \  was  to  go  into  En  gland, 
'■  to  be  subsisted,  and  I  was  to  tbtlnw 
of  sir  f  Jeorge  liarrley  ;  the  king 
should  find  air  George  Barcley  iii 
^€ovait»gArden«  with  a  wbite  handkerchief 
"*  '  g-  out  of  his  pocket,  on  Moudays  and 
ay«  between  the  hours  of  six  and  seven 
evening-^  and  that  was  the  sif^n  I  was  to 
him  by  ;  and  he  ordered  me  to  jjo  to  Mr. 
Uiat  IB  secretary  to  the  late  <iueen,  and 
j-ker  went  along  with  me,  and  he  or- 
rtealewidores,  and  Mr,  Hare  as  much, 
\  Mr.  Caroll  srave  us ;  and  if  that  were 
ifficient,  or  if  we  were  wind -bound  at 
ii,  we  had  orders  to  a^jply  to  the  president 
if  Calais  to  im  fumi&ht^d  with  what  we  wanted  ; 
Mordingly  we  went,  and  the  wind  not  serv- 
tttf  wbrn  we  came  to  Calais,  we  were  forced 
lAitay  there,  and  our  charges  were  paid  to  our 
IttMUady  by  the  president  of  Calais,  according 

1l»tfaftoid«r  we  receired  at  St.  Garmaios ;  when 


the  wind  Rerveil  fair  we  went  on  hoard,  and 
oame  to  Rumney-marsh,  to  one  Mr.  Hunt'a 
bouse,  and  Irom  ihetice  be  tumished  us  with  a 
eoujdc  of  hones;  and  we  Game  the  sandy  way 
to  one  Mr.  Tucker*s«  and  from  thence  to  Mr, 
Cross's,  and  from  thence  to  Gravesend^  atid 
from  thence  to  London  t  we  came  up  in  tbt 
night- tide,  and  being  late  when  we  came  is 
town,  Sunday  night,  we  lay  at  an  inn  at  the 
lower  end  of  Gracechurch-street ;  the  nejcl  day 
we  went  to  look  for  sir  George  Barcley,  but 
not  finding'  him  in  Co  vent-garden,  according 
to  what  king  Jamea  told  us,  I  admired  at  it ; 
but  one  Mr.  Berkenhead  meeting  my  comrade 
ih?  next  day,  said,  sir  George  mrcley  desired 
to  see  us,  and  appointed  ui  to  meet  him,  which 
wc  did  that  uight;  where  sir  George  Barcley 
a^ked  us  how  the  king  and  queen,  prince  and 
princess  did  ;  he  told  us  at  that  time  he  had  no 
money  for  us,  but  in  a  few  days  we  should 
have  mone^;  ^^^^  accordingly  he  sent  uh 
money.  We  bad  five  guineas,  but  it  was  at 
twice  r  two  guineas  at  one  time,  and  three  at 
another,  and  this  was  for  a  month^s  subsistence 
at  fire  shillings  a -day,  guineas  going  tben  at 
thirty  shillings.  And  afterwards  when  major 
Holmes  delivered  «he  horse,  upon  Saturday  the 
16th,  we  had  another  guinea,  thai  made  up 
what  we  had  to  be  six  shillings  a<day  when 
we  had  horses,  and  five  shillings  a  day  when 
we  hud  none:  and  as  tor  Mr.  Lowick,  the  Qml 
^  turd  ay  which  was  designed  for  the  assassi- 
nation, 1  happened  to  he  at  Mr.  Counter*s 
lodgtn^^s  in  Holbouru,  a  confectioner^s  ;  and 
there  1  see  Mr.  Lowick  come  in. 

IHr.  Corny ert.  Who  l9dged  there,  pray^ 
Sir? 

Harrin.  Sir  George  Barcley  and  Mr.  Coun- 
ter  had  lo-ilgingfs  there  ^  and  Mi*.  Li>i«  ick  came 
in  there,  but  1  cannot  ny  be  staid  there  any 
time,  I  lliink  he  went  out  presently  at W wards, 
The  next  week  I  met  Mi .  f .owick  in  Red-Uon- 
fields,  and  discoursed  with  him  there  about 
this  matter,  and  1  told  him  what  a  harbarotis 
and  inhuman  thiuKf  it  was  that  we  should  be 
the  murderers  of  the  prince  of  Orange,  and 
that  it  would  render  us  odious  to  the  world, 
and  that  we  should  be  a  continual  reproach  to 
oursehtfs  ;  he  did  agfree  it  was  so:  but  in  con* 
elusion,  Mr,  Lowick  said  he  would  obey  orders, 
and  he  saiil  sir  Oe^irgc  Barcleyi  he  was  sure, 
would  not  do  it  without  ordci-s.  That  day 
when  we  were  walking  out,  we  met  sir  Geoi^ 
Barcley  aud  major  Holmcii  riding  in  the  high- 
way up  toivardii  Islington ^  and  we  spoke  Ut 
him,  f»r  Mr.  Lowick  told  me  the  thing  was 
dim^overed,  and  bis  name  was  given  up,  and 
other  genllemen^s,  and  J  think  another;  and 
BO  he  tokl  me  that  one  Harrison  told  him  i>f  it, 
and  forewarned  him  that  night  from  hiog  lo 
his  lodging  ',  and  he  tdd  him  that  he  believed 
it  would  uol  be  safe  for  tlit:  rest  tu  lie  in  their 
lodgings,  CM-  to  tl^t  <i:£^ect. 

Aft.  Gen,  When  he  said  be  would  obey 
orders,  what  was  the  discourse  about? 

Harrii,  We  were  talking  of  murdering  the 
prittce  of  Orange :  and  not  only  that,  but  I  da 


»73 


8  WILLIAM  m. 


Trial  qf Robert  Lamei, 


[888 


belieTe  that  Mr.  Lowid^  is  so  sensible  that  what 
I  say  is  true,  and  he  is  a  raan  of  so  mnch  oon- 
■cience  and  honour,  that  be  will  not  ooAtradict 
any  thingr  that  I  affirro  or  ha? e  said  here.  On 
Saturday  the  SSnd  we  dined  at  the  Castle,  a 
tavern  or  a  cook's  shop,  at  the  end  of  Red-lion 
fltreet.  I  was  much  in  a  sweat,  and  he  asked 
me  what  made  noe  so  ?   I  told  hini  1  bad  been 

fttinff  captain  Rookwood's  party  ready ;  and 
told  him  (laughing)  that  captain  Rookwood 
said  I  should  be  bis  aid  du  camp,  and  so  I  was 
getting  the  nteu  together :  savs  be  to  roe.  You 
may  very  well  do  it,  for  you  have  six  sbilliDgs 
a-day,  and  I  have  nothing.  Mr.  Lowick,  you 
know  what  I  say  to  be  true ;  I  know  not  why 
yon  lift  up  your  hands  ;  but  you  did  tell  me  1 
might  very  well  do  it,  having  six  shillings  a- 
day,  and  you  bad  nothing,  and  yet  brought  a 
couple  of  men  at  your  own  charge,  and  that 
their  horses  could  not  be  discharg^  unless  you 
went.  Thes(^  were  his  words,  my  lord,  or  to 
this  effect. 

Att.  Gen.  What  do  you  mean  by  being  dis- 
diarged? 

Harris,  1  mean  this,  that  I  believe  lie  paid 
for  them ;  and  they  were  waiting  at  a  house 
till  he  came. 

Mr.  Conyert.  Why  were  they  to  be  dis- 
charged that  day  ? 

Harrii.  The  reason  why  they  were  to  be 
discharged  that  day,  was,  because  captain 
Rookwoo«l  had  told  biro  before,  that  the  prince 
of  Orange  did  not  $ro  out  that  day ;  and  tben^ 
fore  we  went  together  to  walk  towards  Isling- 
ton. 

£.  C.  J.  What  day  was  that? 

Harris,  Tlie  second  Saturday  that  it  was  to 
have  been  executed.-  I  was  not  a  spy  upon 
any  matins  actions  :  J  cannot  tell  what  they  did 
any  more  than  1  tell  you  :  I  do  not  wrong 
yjo'u  any  way  in  the  world,  Sir,  I  am  sure 
on  it. 

L.  C.  J.  When  was  it  that  you  spoke  with 
Mr.  liowick  about  murdering  the  king  ? 

Harris,  It  was  Monday,  Tuesday,  Wednes- 
day, or  Thursday,  1  cannot  be  exact  to  the 
day,  but  it  was  one  of  these  days,  after  the. 
first  Saturday  ;  1  cannot  be  positive  what  the 
day  was. 

L.  C.  J.  Well,  it  was  between  i\\e>  two 
days  ? — Harris.  Yrs,  it  wa.s. 

L.  C,  J.  How  did  you  know  of  that  design 
of  murdering  the  kinjSf  '.' 

Harris.  1  was  informed  of  it  by  captain 
Hookwood  the  lirst  Saturday,  and  I  met  Mr. 
Lowick,  and  bad  this  discourse  about  it :  and 
afterwards  they  infiMined  me  that  Mr.  De  la 
Rue  did  not  lie  at  his  lodirinirs,  and  the  thin;;: 
was  discovered,  and  they  believed  that  Rue 
had  discovennl  it :  And  1  desire  you  will  call 
Mr.  De  la  Rue  as  to  this  matter;  for  1  believe 
be  will  own  it. 

Sol.  Gen.  How  came  you  to  trust  him  with 
such  u  discourse  ? 

Harris.  Because  we  met  there  at  Counter's 
lodgings,  and  we  had  several  times  discourses 
of  it  'y  there  was  miyor  Bernard  and  capt. 
3 


Rookwood  besides,  and  I  always  declared 
against  it  as  a  barbarous  and  inhuman  thing, 
not  to  be  answered  before  God  or  man,  and 
that  we  should  be  odious  to  all  the  world  if  the 
tiling  were  eiiectiid,  as  I  believed  it  would  not 
be.  1  would  never  shew  my  head  af^  such  a  • 
thing. 

SoL  Gen,  Do  you  remember  who  began  the 
discourse  of  this  matter  ? 

Harris.  I  cannot  tell  that.  I  cannot  come 
to  eveiT  particular. 

Sir  JB.  Shower.  You  said  just  now,  you  appre- 
hended Mr.  Lowick  to  be  a  man  of  conscieoce 
and  honour ;  pray  what  were  his  sentimeoti 
about  it  ? 

Harris.  His  sentiment  was,  that  he  would 
obey  sir  George  Barcley's  orders  ;  and  he  wai 
sure  sir  George  Barcley  would  not  do  it  wiUi- 
out  orders. 

Sir  B.  Shower.  Did  not  he  declare  it  to  be i 
barbarous  desigpa  f 

Harris.  I  cannot  remember  every  particohr 
thing  that  he  said  ;  for  I  am  not  a  spy  upon 
any  man's  actions. 

Loaick.  When  you  were  talking  of  that  de- 
sign  that  you  s|)eak  of,  pray,  did  I  consent  to 
aoY  such  thing? 

Harris.  I  tell  you  how  far  you  consented ; 
you  said  you  would  obey  sir  Creorge  Barcley's 
orders,  and  you  was  sure  he  would  not  du  it 
without  orders. 

Mr.  Mompcsion.  Diil  you  see  any  of  sir 
George  Barclay's  orders  ? 

Harris.  No,  1  did  not,  I  was  to  follow  hii 
orders  ;  but  what  orders  he  had  1  cannot  tell. 

Sol.  Gen.  What  did  sir  George  Barclay  tell 
you  you  were  to  do  ? 

Harris.  Sir  George  Barclay  declared,  oa 
the  first  Saturday,  that  we  were  his  Janizaries, 
and  talked  of  attackimr  and  bringing  awny  the 
garter:  I  cannot  say  this  gentleman  nas  by 
tlien  ;  and  afterwards  sir  George  Ban*]ay  went 
out  and  returned,  and  came  in  again  intn 
the  room,  and  tieolarcd  that  we  were  nienut' 
honour,  and  that  we  were  to  attack  the  prince 
of  Orange. 

Mr.  Alompeasoii,    Did  sir   George  Barcley 
give  the  prisonii*  at  the  bar  any  orders  ? 
j       Harris.  1  do  not  tell  you  he  did. 

Mr.  Mo?npcssy,n.  You'say  you  met  sir  Georpe 
\  Barcley   and   major  Holmes  upon    the    road 
going  to  Islington  :  How  do  you  know  the 
1  prisoner  was  there  ? 

Harris.  Why,  was  not  I  with  him  ?  I  am 

very  sorry  to  conie   upon  tliis  account  ;  bat 

;  you  ki»ow  it  is  trutli  all  that  1  saj'  ;  and  L 

.  am  sure  you  aie  sensible  1  do  you  no  wrong  : 

•  He  met  sir  George  Barcley  ajid  major  Holmes, 
,  and  be  went  down  and  .said  something  to  sir 
,  George  Barcley  iu  the  hiifbway,  what  it  was  I 
j  do  not  know  ;  hut  1  stood,  aud  captain  Rook- 

•  wood  and  Mr.  Bernard  said  something  to  him, 
■  which  you  very  well  know. 

I      Att.'Gen.  \Vhat  was  it  ? 

'       Harris,    1  cannot  tell,  Sir. 

I      Att.  Gen.  We  do  not  desire  you  to  tell  who! 

I  you  canuot  tell :  Is  this  all  you  know  ? 


^ 


Jor  High  Treaiwi* 

BmrrU^  It  is  ftit  «!  (irrsent  th&t  I  lecoltect. 
Sd,  Gtn,  TlicM  pm^  sureur  Mr.  Bertram. 

[Wliicb  was  done. 

Mr.  Confers,  Piny  will  yoo  (five  an  account 

t»uiy  turd  and  ihe  jury  what  you  koow  of  ibis 

intrtiLic<t   u^san^tDation,  and    bow    tliV  tbcf   pri- 

smiiT  wjii»  concerned  in  it« 

hrrtram.   ^\y    lord,  iibout  the  be^nnini;  of 
FcLrnmry  liLsl,  mujor  Lowjckeaiiie  to  tue,  and 
AikiMj  mt*  if  I  Wiiutd  c?3sp<Hii.ti  a  tbin^  with   huu 
ikit  inr^fhi  Ix:    tor  tny  advantage;  I   iold  hirn 
thti  1  thoui^Kl  J  mig^ht  espouse  any  ihiiig  that 
lM}llioiit:^hi  fil  loengMife  in. 
Mr   Mompessan.  Wiiom  did  yfvu  tell  so  P 
E^itam,    Major  I jo wick:  and   he  tolij   me 
k  iffS£   welL   and  desired  ine  lo  ask    nci  inure 
;  1  did  not  ;  btii  it  hl^ik  tm  to  the  I4th 
aary»  niiiu  he  desired  luc  to  Iw  at  tin 
At   IS  o'clock.     1  wus  so   iib'iut  tbtit 
Ke  was  »ol  within*  and  I  ^ta\  ed  till 
lit,  and  he  took  nw  up  into  his  chum- 
told  me  he  6thv'v#'d  tliey  should  ride 
•ottie  hi  lie  time  ;  and  he  told  me  lie  he- 
the  k*n;^  w*uj  to  b*?   seized  in  his  coach « 
g-ave  we  a  jt^uiiiea  to  buy  me  necessaries* 
X.  C.  J.  W  hat  nef.-esaanes  ? 
Bertram.  I  cannot  say  he  named  any* 
JH.  (Jen.  But  for  what  purpose  were  those 
liecesaaries  ? 

Bertram,  I  do  not  know  tliat  he  named  any 
tiuo^f  milr^cd. 

Ati.  Oen.  Well ;  did  he  letl  you  when  yoti 
mtrt  to  be  ready  ? 

Bertram.  It  you  please  to  give  me  leave,  I 
will  tell  you  :  lie  de«ired  me  not  to  be  out  of 
tke  way  ;  and  the  next  mornint,'  1  was  to  meet 
ktm  at  ilie  purl  house  iu  Hart  street.  1  did 
Ml  meet  biui  ;  ami  the  next  time  J  saw  him, 
1  am  not  positive  whether  it  was  the  ne\t  day 
the  fiflc^entli  when  1  was  to  meet  hint  iit 
reet,  but  did  not  8o  ;  but  the  next  time 
bim,  be  asked  me  why  1  did  not  meet 
cordtii;^  to  Ins  appointment  ^  1  told  him, 
some  reason  fibril;  aiid  he  noNwered  iiie 
p^Q^  that  be  iMitieved^  it'  tlie  king  had  been 
n  tbe  field,  I  would  have  done  the  same  ;  but 
1  have  not  aeen  biin^  sinee,  till  1  saw  him  at 
tiiebar. 

O^'ii.  Had  you  no  discourse  of  horses 
were  to  pr>vide  ? 
Ttram.  1  do  not  remember  any  particular 
thiik^  more  than  1  have  toUi  you. 
<  Au.  Gen.  Did  be  not  tell  you  what  the  de* 
-1^  wa^  you  were  to  go  about  ? 

Bertram,  lie  did  not  tell  me  of  any  other 
^angolhan  as  !  tell  you,  tor  he  believed  I  knew 
•fit;  I  thought  so  at  least:  The  tirsi  time  I 
loew  of  ii  wttN  fmni  IVlr.  Cliaruock, 

C,  X    What  did  he  tell  you  ivas  the  de* 
at  you  iiliould  engage  lu  for  your  advau- 
Upon  Friday  the  14th,  wheu  he  guve  yoii 
({uioea  f 

&riritm.  He  told  me,  he  believed  they 
ilMHild  nde  out  very  suddenly,  and  that  the 
■^  WM  to  be  seiseed  in  bis  coach. 

L,  C.  J,  Hid  he  tell  you  ivben  the  kiuj;  wa« 
»ob<  seized? 
VOL,  XiiL 


A.  D.  1696. 


[S 


the  I 


k    vo] 


Bertram.  No,  be  did  not  tell  me  >vheti }  but 
this  was  the  14th,  the  next  tuOrnin^  1  waa  to 
inef't  him  at  Hart- street,  but  did  iiot. 

Sot.  Gtn,    Who  did  he  tetl  you^tht;  Wmg  wnt 
to  be  steiz^d  by  ! 
-  Bertram.   Uc  did  not  nominate  atiy  otic  else, , 
for  he  t^bli^ed  me  not  to  ask  him  questions,  nor 
1  did  oot. 

Sol.  Gen.  Did  be  nami  himBelf  to  be  con- 
cern ei  I  ? 

Bertram.  He  named  himself  so  far  as  thai 
he  believe*!  he  should  ride  out  very  suddenly. 

S^L  Gett.  Was  it  tlie  tiitxi  iDOi-Ditig,  w  the 
next  day  P 

BertratN,    I  caDQOt  say  that  he  Ditmed  anj^ 
I  i^uriicularlime. 
i      All.  Gen,    Will  they  ask  him  &ny  (jiies- 

lioiis? 

Sir  U.  Shower.    No,  I  think  we  shall  not. 
Mr,  MiiUHtaguc.    Pray,  >Ir.  Bertram,  will 
you  answer  me  one  quoHtion,  UMiat  did  he  sav 
to  you  when  be  checked  you  lor  not  comin^f 
aecordinvf  to  his  appointu;ent? 

h*rtram.  I  took  it  as  a  kind  of  a  check  :  he 
told  ine,  that  if  thp  kmg  had  been  in  the  fields 
be  believed  I  would  have  done  ihe  same. 

SSir  B.  Shower.  There  is  one  thing  we  must 
a  little  ejcamine  this  gpnileii>ait  to  :  were  tvot 
you  under  a  necessity  before  that  tiu»e  tliut  he 
g;ave  you  the  gfuinea  ?  Pray  wljat  conditiou 
were  you  in  ? 

Bertram,  Under  necessity.  Sir  I  I  was  never 
very  plentiful  of  moirey  of  laie. 

Sir  B.  S/ttmer.     Did  he  never  give  you  m 
guinea  or  two  l^efore  iu  charity,  and  out  of 
I  Lomim-ssion  to  your  necessities? 

Bertram.  lie  has  i^veu  tfle  money  several 
I  times  befere :  and  I  believe  if  I  uottld  haie 
I  asked  bijn  for  any  money  ^  he  would  have 
I  giveu  it  me, 

Jtt.  Gen.  IV as  this  money  given  you  for 
charily,  or  for  any  other,  and  vv  hat  pur[H>se  f 
I       Bertrar/h    1  did  nut  ask  liim  for  uay  thing  ; 
but  he  gnve  it  me,  uud  said,  tiierc  is  a  y:uitiea  ta 
buy  yon  ueces«iiries. 
I      Att.  Gen.    What  was  the  discourse  before 
]  that  ? 

I      Bertram.    I  told  you,  he  said,  he  believ«d 
they  were  to  riile  out  f ery  sjiiddeuiy,  and  he 
believed  ihe  kioi;^  wtim  to  be  seized  in  hiscoach^ 
>  and  he  tlesired  me  not  to  He  out  of  the  way* 
I       Mr.  Coil  per.    And   A%hen  h«  gave  you   the 
'  guinea  to  buy   yt^u  necessaries,  was  it  Jiumo- 
I  diaiely  after  ihh  dis^coui'Se  / 
I       Bertram.  Sir,  it  was  at  the  same  time. 
!       iMuick.    Did  not  I  give  your  wife  a  guioeft 
two  months  helor^  this? 

Bert  rum.    Ves,  fciir;  1  acknowledge  I  was 
iutunned  you  did,  1  was  not  ni  town  theo, 
Lou.'ick\  Vmy  let  the  court  koow  that. 
L.  C  X  Did  be  tell  you  the  king  was  to  b« 
seized  in   his  coach,   beibre  he  told  you  they 
were  to  ride  out  very  suddenly  ? 

Bertruta.  No,  afterwards;  and  then  he  gave 
me  the  guinea, 

Sir  B:6hoaer.    His  words  are  not  coupled 
together,  thf)  h&\«  v}^  t^\ij)\^  Vi  ^\^^juqN^t% 
U 


I 


I 


I 


I 


29 1 J  S  WILLIAM  lU. 

X.  C.  X  K© ;  but  he  lold  biiti  tliey  wer«  to 
ridc!  out  very  ?iiiclileulyi  anil  Ihe  king  was  to  be 
seized  in  his  coach,  and  gpafe  him  a  guinea  to 
buy  him  neeessaries  nt  the  same  litue. 

1j.  C.  J.  Trebj/.  There  is  no  doubt  he  w«s 
engHged  in  ihe  design  v^ilb  ihi>»e  other  pei^onu. 
Mi%  C^nyers  Aod  altenvartb  h<?  itbuked 
him  because  ht-  had  not  met  htin  ;  nud  he^nid, 
it  vt  ould  have  been  the  same  thing  \i  ihe  kiiig^ 
bad  liecii  in  the  iiehL 

Mr.  Mount  ague.  What  day  in  the  week 
was  it  that  you  faited  him  ? 

Bertram,  It  w^a  on  a  Saturday. 
Juryman.     Pray,  my    hird,    we  desire  to 
know,  \vho  he  did  utide'rsttind  by  the  kin^  that 
was  to  he  seized,  i 

L,  C.  /.    What  did  he  call  ibi*  kin^  ? 

Bertram,  He  said  uothini^  Uui  the  king. 

/..  C.J.    Wbi  did  you  understand  by  that  ? 

Bertram.  I  leave  it  to  the  court,  I  urn  not  to 
interpret  ifiini^s. 

L.  C.  J.  Trtby,  Did  he  name  the  jirince  of 
Orange,  or  kiniJantes?  Did  you  think  ktn|i^ 
Jnmes  was  to  \w.  sclzeil  F 

Bertram,  My  lord,  1  tell  yon  w\\9X  be  said» 
1  am  not  to  interpret  his  words < 

Att.  Gen,  Do  yoa  believe  be  meant  kiu^ 
Jamefi,  or  thii  kin^,  that  wa^  to  he  seized  P 

Bertratn,  1  believe  it  mi^t  be  the  kittg^ 
bere, 

i.  C.  /.  Take  the  words  as  tboy  tre;  be 
ftfked  him  hetbre,  Whether  be  would  enijage 
in  ade>ipiihHt  niifjbt  be  fW  his  advantn^je? 
On  Friday  the  1  itb  of  February  he  metis  him 
at  bifi  lodging,  and  tells  bmi,  be  was  to  ride  nut 
suddenly,  and  that  tbe  king^  was  to  be  feizid  m 
bis  coach*  and  «ppftinted  him  to  meet  bini  the 
next  morning,  and  gAve  him  a  guinea  to  buy 
him  necessaries. 

Mr.  Mowpetjion,  Viiiy\  \iii%  not  Mr.  Lowick 
given  you  clothes,  linen  and  other  things  at  any 
other  time  f 

Bertram.  8ir,  you  hare  been  always  ready 
to  serve  me,  I  must  acknowledge,  and  you 
have  been  very  kiud  to  me* 

Lmkk.  i\  you  please  to  jsrive  an  account  of 
my  character^  whether  ever  1  was  guilty  of  any 
bloody  thing  ?^-- Bertram.  No,  Sir* 

Hir  B*  Shou'er,  How  long  have  yon  known 
Mr.  Lowick  f 

Bertram.  I  believe  1  have  kn«wn  him  tbj« 
SO  years. 

&T  B.  Shjimfr.  Wbat  behaviour  has  be  been 
of? 

Bertram,  He  has  always  had  very  good  be- 
haviuur,  and  the  best;  he  bas  had  tbe  best 
character  id' all  maokind. 

fi'ir  B.  Sh&rrer,  Did  yon  ever  know  him  in - 
cliood  to  do  a  rash  action  ? 

Bertram,  Never  in  my  lift. 

Sir  B.  Shtmer,  Did  yon  ever  kni»w  him  do  a 
m&ficiouB  action  ? 

Bertram.  No;  but  be  had  alwaya  the  eba* 
raeter  of  a  frood  man,  and  was  ali*nys  rpady  to 
StTve  Rny  man  in  his  neerssitres,  and  to  do 
^pood  ;  he  has  that  general  character  abrond. 

X,  V,  J.  Where  do*»s  be  live  f 


Trial  of  Robert  Londclt^ 


[29f 


Bertram,  He  lived  last  at  Brownlow-street, 
but  be  bas  no  wife  nor  family,  and  so  baa  di» 

fixed  being, 

L,  C  J,  What  was  bis  way  of  living? 
Bertram.    He  was  bi^  a  soldier,  and  bft^ 
been  abroad. 

L  C.  J.  Where?— ^frtroJM.  In  Ireland. 
L,  C.J.  In  wbo«e  service  ? 
Brrtram,  In  the  service  of  king  James. 
Limick,   He  knows  particularly,  that  oore  I 
was  n|xvn  a  party*  and  savwl  tive  officers  from 
being  killed  in  cold  blood. 

L.  C.  J,  W  bat  countryman  is  be?  i 

Bertram.  Yorkshire. 

Mr.  Motnpeixon.  Wat  be  aecounied  of  m 
cruel  or  a  bloody  nature  ? 

Bertram.  No;  of  n  quite  contrary. 
Jurtfttmn,    2^1  y  lovil  ;    I  de«ire  to  know  for 
wlmi  cause  be  gave  hiui  or  his  wife  a  gnineft. 

Bertram,  I  know  not  what  that  guinea  wa0 
for  that  be  gave  me  ihe  14tb  ot  February^  any 
oihervuse  than  as  I  have  told  you. 

Mr.  MumpeHon.  What  wus  the  guinea gt' 
to  your  wite  for  ? 

Bertram.  For  tlial  guinea  given  in  my  wife, 
it  was  out  of  hiii  own  kindness  and  goodness u^ 
my  raiiiily  and  me. 

'Ait.  it  en.  What  wii«  the  other  guinea  fbrf 
You  are  u|ion  your  oatb, 

Bertram,  Indeetl,  8ir,  I  cannot  tcU  ;  be 
it  me  to  buy  me  uecettaarit-s. 

yttt.  Gen,    Was  there   uotbing    ebe 
tioneil,  what  nece&iiaries  those  were  to  bo! 
Balram,  No,  Sir  ;  upon  my  oath  there 
not  any  particuUr  memioned* 

Att.  Oen,  What  made  bim  so  kind  to  yi 
pray  ? 

tier t mm.  We  were  both  born  in  a  tovrn, 
I  believe  we  are  near  relatetl. 

Sir  B.  Shimrr^    You   say  yott    are 
ppo|i1ef  nnd  have  l>een  long  acquainted, 
knew  him   in  irelatid;    prav,    did    yott 
know  thai  he  saved  any  oeople's  lives  ? 

Bcriram.  I  was  not  in  thut  activn  myscU 
hot  ntl  that  weir  in  it  gave  that  relation^  tliat  * 
was  very  fav  on  ruble,  and  dtd  wive  |^ople' 
lives,  parlicTiilarly  one  ca|ituin  Hartow, 
brouij^bt  liiui  and  other  prinooers,  and  I 
member  the  thing :  it  was  about  a  fortnigl 
before  the  buiines**  of  the  Boyne,  upon 
day  morning,  that  they  tnok  those  prisonfn^ 
and  be  did  persuade  sevenil  ftarties  tb:)t  I 
commanded,  to  decline  kiklin'4  as  inucb  i 
they  couhl :  J  was  not  in  this  actimi,  but  this 
heard  ol  all  that  were  in  it,  and  from  tbe  pri« 
aoner. 

^>/,  Gen.  When  be  gave  you  that  guii 
did  not  be  speak  any  thing  ot  a  hofse  that  wi 
to  be  provided  for  you  ? 

Bertram.  Not  a  word ;  i  never  did  see 
horse  upon  that  account,  nor  was  I  master 
a  horse,  nor  w&s  \  luld  I  should  hare  a  burse 
any  respect  wliotsoever, 

Jttriffltan.  How  could  you  ri«le  out,  a? 
say  they  were  to  do,  without  a  hoi^e,  or  will 
ont  kdoWiut^  any  tbing  of  a  borec  to  be  pro* 
vidcd  for  you  ? 


* 

1 


Bertrmn.  I  dW  not  know  of  a  bursf. 

L.  C  X  Bnt  be  said  you  were  lo  ride  out 

Bertram,  No  :  he  saidiQ  geoem),  we  should 
lide  out  suddenly. 

^If.  (xtfti,  VVtio  was  til  ere  besides  yourself? 

Btriram,  Nobody* 

Aii,  Gen.  Tbcn  that '  we'  must  mean  you  and 
litm.  And  how  were  you  to  riile  out  \i  ithoul 
«  borse  f  Fray  inind  whol  you  swear. 

Bertram,  I  wm  lo  meet  biiii  the  uejsft  moro- 
iBg,  but  did  not. 

Mi*  Gin.  Pr»y,  wbat  could  you  iiiider»tand 
tribal,  that  vou  were  to  ride  out  suddenly, 
iiid  bad  no  horse  ? 

Bertram*  Thai  was  understood,  Lbat  if  I  (lid 
ndie  out,  1  must  hate  a  horse. 

Mi*  Gen.  Who  should  you  have  it  from  ? 
Had  you  a  horse  of  your  own  ? 

Bertram,  No,  I  bad  not. 

Mi*  Oen,  Did  yoo  iutend  to  hire  a  faorae  ? 

Betiram,  No,  I  did  not. 

4il.  Gen,  Did  not  you  ask  where  you  were 
Ulnrtii  horse? 

BtHmm^  No,  I  did  not  ask  nor  Inquire,  nor 
iliit|irOiiiif>edme  I  khoutd  have  a  horse. 

Sit  Gen*  Did  be  lell  you  where  you  were 
Iftridef 

Biriritm,  The  next  morning'  I  was  to  meet 

Mt.  Gen,  For  what  ?  To  ride  out  was  it  ? 

Berlram,  1  cannot  rt-ally  tell  whether  it  was 
iipiQ  that  account  or  not. 

Att^Gen.  Whether  did  he  tell  you  where 
W  waa  to  ride  f — Btrtram.  Indeed,  he  did  not, 

Jmryman.  It  is  very  straoj^e  thiit  you  <Md 
iOtiik  him  where  be  was  to  ^,  nor  ask  him 
for  %  borse. 

Btrtram.  I  was  so  senseless,  thiit  I  neither 
lid  tak  him  about  a  horse,  nor  ever  knew  of 
■ntbai  was  to  be  provided  for  nie. 

Jarymfifi,  Did  you  understand  what  was 
Ooikt  by  the  riding  out  suildenl^  ? 

Bertram.  I  did  take  it  tu  be  about  the  husi- 
MK,  the  seiziDg  of  the  kin^. 

Juryfftonr  Did  he  compare  it  to  attacking 
him  ia  the  tieUJ  ? 

Bertram.  No,  he  did  ,not ;  hut  he  said^  he 
Wliered  the  king  would  be  ficized  in  his  coach  ; 
be  made  no  C4»mparii3ons. 

Mr,  Mttunttigue.  Pray,  Mr.  Bertram,  why 
did  you  not  meet  hiiu  ?  What  reasons  had  you 
for  Dot  doiu^  it  T 

Bertram.  I  thouglit  it  not  reriuisite  to  meet 
lufln. 

Ilr.  Mountague,  What !  had  you  do  mind 
t0  tbe  thiugf 

Bertram*  No,  I  had  not ;  because  t  thouglit 
the  t bio jf  very  unlawful. 

Att.  Geti.  Pray  what  was  that  thing"  you 
Ipeakof,  tbatjouthouurht  wasunluMfylf 

Bertram.  I  thought  it  was  about  seizing  and 
Hlliotf  the  king. 

L.  C.  /.  I'ray,  mind  ;  there  is  nohody  de- 
Brca  you  shimfd  Kjicak  more  than  the  trulh; 
W  on  the  other  side,  being  upon  your  oath, 
joa  ire  to  speak  the  whole  truth  ]  for  if  you 


t 


conceal  any  partof  the  truth,  though  you  have 
A  kind ti ess  U r  y ciu r  co u nt ry man ,  Mr.  Lu ^\  i ck, 
who  has  beeu  kind  to  you,  you  will  forswear 
yourself,  tor  you  ntakc  adilferentveprf^*iitattafi 
of  the  uiaticr,  and  make  it  appear  t^uite  other- 
wise then  it  is ;  pray  do  not  strain  one  tittle, 
hut  let  us  have  all  the  truth. 

Bertram.  1  do  nut  hrlieve  I  strain  one  bit. 
Mr.  Moufiiuguc.  TheuteUmy  liird  why  yoQ 
did  not  meet  hiai  ? 

Btrtram,  I  did  believe  It  was  about  sei^in^ 
and  kilhng  the  king,  and  I  did  think  it  to  be 
illeu'al. 

Mr.  Mountague.  Why  did  you  think  it  was 
ahout  that  ? 

ihrirum.  Because  Mr,  Charnock  had  told 
me  of  it  before. 

Att.  Gen.  How  did  you  know  that  was 
what  Lowick  suiike  to  yoit  about  ? 

Bertram.  1  did  suppuse  it  to  he  the  same, 
because  he  desired  me  at  first  to  ask  no  ques- 
tions, no  more  did  1  ;  but  I  look  it  always  to 
be  the  same  thin^. 

AtL  Gen.  What  did  he  say  to  yoo  ? 
Bertram.  He  told  me  he  had  a  business  to 
propose  to  me,  if  I  would  cu^ag^e  in,  that 
would  l»e  for  my  "advania^e,  but  I  iiivist  ask  no 
oua'^tious  ;  talked  of  riding  out  suddenly,  and 
that  the  king  was  to  he  seized  in  his  coach: 
and  having  heard  of  ii  from  Charnock,  J 
thought  it  was  the  same  husiot^s^. 

Att.  Gen.  Then,  my  lord,  we  have  one  wit- 
ness more.  Call  capl.  PiKher.  [He  did  not 
ap(»ear.]  If  he  does  not  appear,  we  shall  lei 
them  go  on  J  and  ivheu  he  comes  m,  we  cau 
ex  ami  lie  him  afterwards, 

L.  C.J*  Is  he  a  lu  uteri  ul  wiliiess  ? 
Sat.  Gen.  We  do  apprehend  he  is  a  very 
material  witness. 

L*  C*  J.  If  you  thiuk  hi  in  a  material  wit* 
tiess,  it  will  not  be  propter  for  iheui  to  enter 
ujmn  their  dett'nce,  till  they  have  h«iird  th« 
whole  aecu^tion. 

The  Court  staid  for  Mr.  FisherS  coming  for 
near  an  hour,  and  at  last  he  came  in  and  was 
sworn. 

L.  C.  J.  Who  is  Ibis  ? 

Alt.  Gen*  This  is  ooecaptnln  Fisher. 

SoL  Gen*  Pray»  catilam  Pi*^]itrr,  do  you 
know  Mr.  Lowick,  tlie  inisoncr  ut  the  bar? 

Fiihcr.  1  have  not  lalkt^d  vviJj  Mr.  Lowick 
since  the  8th  of  Februuty,  and  then  he  talked 
that  he  would  be  rearly  to  :3crve  his  master  to 
the  uttermost  of  his  power. 

Ait.  Gat.  What  master.^ 

FUher.  King  James. 

Att.  Gen.  VVhai  particular  aerfice?  ^ 

Fuller.  Henameu  uo  particular  service,  bat 
ouly  that  he  would  be  ready  lo  serve  hts  mas- 
ter to  the  uttermost  of  his  puwcr. 

Att.  Gen.  Where  vvas  this  T 

Fiihcr,  At  the  Cock  in  Bow  street. 

Att.  Gen.  Who  wasiu  company  f 

Fisher.  There  was  Mr.  Harrison, 

Att*  Gen.  Fray,  give  au  account  of  what 
you  kaow  Qf  ituf  barbaroui,  bloody  d«si|^a* 


I 


295J  S  WILLIAM  IIL 

F'uher,  I  h^Iifirc  ibere  waa  a  design  to  seize 
the  prince  of  Orange. 

Au.  Gen,  Wlial  do  you  know  of  tt?  You 
•ay  you  Iw^lieve  it, 

FUher,  I  believe  it  by  my  kiiowte<lge,  be- 
cause I  w«s  concerned  in  it. 

At(.  Gen.  By  wboin  was  lb  at  design  ear^ 
rjtid  on  ? 

Fiihcr.  By  sir  George  Barcley  and  Mr. 
Harrison. 

L.  C.  J.  T\'bat  ^a5  \\ie  desig-n  ? 

Fisher.  We  were  to  tall  iijioo  the  prince  of 
Orange, 

L.  C,  J.  Von  called  liim  so,  lUe  prince  of 
Oraiige? — Fisher.   Yes,  my  lord, 

Att.  Gen.  Well^  u*!l  us  whni  bappened. 

Fhher.  Jt  WHS  to  have  l>€en  dono  the  irith 
of  Febnmrv,  and  we  mei  accord ing:ly  the 
14th,  but  tlie  king  nut  g^ing  abroad,  it  was 
pwt  off. 

Z.  C.  X  IVho  met  on  the  14th  ? 

Fiihrr.  I  met  only  .Mr,  Harrison  and  sir 
George  Barcley,  then  it  was  put  oft'  till  the 
i2nd;  iiiH>ii  ihe  Slvl,  we  met  at  tbe  Thrfu- 
TitiiB  in  nolboro,  and  from  tbencewe  came  to 
the  SSim-tiifern  m  iho  Stmoil,  and  tbcre  was 
nnlnidy  but  Mr.  Hurrison  and  1  tojjelher,  and 
sir  George  Bnrcley  c«me  to  us;  I  believe  tbere 
were  about  14  or  16  in  the  house  ;  there  sir 
George  Barcley  tobl  me,  iVlr.  Lowick  was  to 
meet  me  and  two  more  at  an  inn  by  St.  GiUs't 
Poimd,  and  that  we  were  to  go  together  to 
fieize  tlie  prince  <d'  Orange  tbe  92ud. 

L,  C.  J,  Did  }'on  meet  bim  ? 

FUher.  I  did  not  meet  him,  it  beings  put  off 
by  tbe  king's  not  ^oing  abroad. 

L,  C.  J,  This  does  not  afl'ect  Mr.  Lowick 
at  alL 

Att.  Gm.  It  does  not,  we  acknoxrledfre  ♦ 
but  at  that  time  which  you  apeak  ol,  the  8lh  of 
February,  had  you  any  knowlcdg'e  uf  the  as- 
sassi nation  ? 

Fisher,  There  waf»  no  nssassination  at  that 
time,  at  least,  it  was  not  then  declared. 

Att,  Gen*  What  was  your  discourse  about 
then? 

FUher.  There  was  notice  of  the  king's  pre- 
parinj;  to  come  for  England. 

Ati.  Gen.  You  sny  Mr.  Harrisons a» Ibere? 

Fixher.  Yes,  and  talk t'd  verv  little  ab^ut  the 
matter,  but  ordy  that  there  uVre  preparations 
for  the  kinjjfV  cominjr, 

Att.  Gen.  What  did  Lowick  say  to  you  ? 

Fi%her.  1  have  told  you  all  tliat  Mr.  Lowick 
said  tome. 

Att*  Gen.  Rejteatit  af^in. 

Fhher.  He  aaid  he  would  he  ready  to  scrye 
bis  master  to  Uie  uttermost  of  his  p«^ver. 

Mr-  Cowper.  Had  you  no  discourse  about  an 
act  of  parliament  ? 

Fiiifi^.  Mr.  Lowick  said  it  waj3  not  conve- 
uient  to  talk  wilb  mnre  than  one  at  any  time,  tor 
there  wrt«  an  act  of  jmrliament  on  ibui,  lliat 
under  two  wtliie$s(^8  nolliing  should  atfect  a 
Oiau's  lite  in  treason. 

Att.  Gen.  The  act  of  pailiament  was  then 
a- makings 


Trial  of  Robert  lAmck^ 


t« 


X.  C.  X  When  Mr.  Lowick  sairl  he  woul 
Berre    hia    master,  what  discourse  had   y 

about  it  ? 

Fiiher.  Mr.  Lowick  said  uot  a  word  wifhtii 
bul  at  the  door  he  aaid  be  would  ser?e  hts 
ter  to  liis  power. 

Att.  Gen.  What  was  that  they  would  tw 
talk  with  above  one  at  a  timef 

Fisher.  N  othin^  that  was  Uinught  treasonaU 
practices  sboubl  bt^  discomsed  before  abo?e  01 
at  a  lime  ;  f-o  I  understood  Jt 

Sol.  Gen.  Tbcn^  my  lord,  we  hare  done. 

8ir  B.  Sh<fU€r.  May  it  please  ^  our  lord«bi|, 
avvft  you  gentlemen  of  the  jury  ;  1  am  oCcoutt 
sel  ill  itiiM  case  lor  tbe  jiriJioner  at  the  bar,  arii 
we  do  hope  here  is  not  evidence  sutftrifiit  tl 
conwict  him  i>f  hi|;h  treason ;  the  <pie>tian 
not,  Whether  there  wa**  a  plot  or  a  conspiracy 
to  assa^inate  (tie  kinj^,  or  to  prepnre  for  sn 
va^ioii ;  but  all  that  ^ou  are  to  consider,  (m 
tlemcn,  is^  whether  the  evidence  aj^^iiiist  Ml 
Lowick  be  suOieieut  U*  convince  you^  that 
did  desifjn  tu  seize  and  nsHjissinale  the  king 
ibere  are  three  wiinesjies  proituced  j  but 
think  til  is  la»t  witness,  Fibber,  his  testimoa| 
does  not  hurt  him  in  the  b  ast.  We  know  yot 
b»rdship  will  deelare  and  direct  the  jnry»  thi 
the  evidenc  e  in  a  case  of  treason  ou^ht  t»  I 
pl;iio,  not  only  willi  resfnE^'t  lo  ibe  fact,  that 
was  d<»ni*,  but  also  of  »ucb  fact*  as  are  the  e» 
dences  of  a  mun^s  intentiunK ;  and  those  ai 
not  to  be  const iiied  by  strainsj  and  tn1endiiM>0l 
or  implications,  unless  they  be  such  aa  ffi 
dently,  naturally,  and  to  common  undemlaiid 
\n*;^  express  tbe  intention,  it  cannot  he  gol 
evidence  in  tieanon  :  now  we  say,  that  mptal 
Fiabf'r  has  said  nothing  at  all  that  will  afl^ 
tbe  prisoner;  for  all  ihat  he  tn\ys  is  that  tf 
8th  of  Febniarv  be  said  he  was  ready  to  ser 
his  maxter  to  ibe  utmost  of  his  }>ower,  and  aiV 
words  as  well  as  these  may  be  om si  rued  I 
mnke  a  mati  g^uilly  of  treasonable  mtentionl 
fi>r  it  miebi  be  a  recollection  of  favours  recei' 
ed,  or  it  uiltf ht  lie  a  (rrateful  intent  to  seive  ht 
upon  particular  occasions ;  but  that  is  no  el 
dence  \\{yon  this  indictment.  Suppose  it  wai 
serve  bim  upon  the  su|>posed  intended  inrasioi 
yet,  Hitb  Rubmis^irtn,  that  is  not  evidence 
tbe  overt-act  laid  here;  here  is  no  overt-i 
mentioned  of  preymrinii  arms,  or  encouragii 
niein  or  seducinpf  tbe  king's  subjects,  in  ord4 
to  the  Utter  restoriugf  of  the  late  king^  J 
or  tbe  expected  iandinsf  of  Llie  French,  or  t| 
litve.  AH  that  is  laid  to  tbe  prisoner's  ch: 
IK,  the  compassing  the  kiny^^s  death,  and  a  d 
sign  to  assassinate  him  in  bis  coach ;  and 
order  to  the  assassination,  be  was  to  buy  an 
and  bok^es :  now  all  that  he  says  is  quite 
another  nature,  of  a  ouite  different  strain,  ai 
has  no  tendency  in  this  mutter;  and  nolhii 
be  says  Itiat  Lowick  should  say»  btit  m  app 
cable  the  other  wa\,  and  lends  more  natural^ 
to  the  iniasion,  Ihan  to  tbe  assa^isiniitiirii.  Yoi 
lonl^bip  olMierveR,  there  was  some  noltce  takf 
of  what  Mr.  Lowitk  should  say,  concernin 
tbe  art  of  parliament,  that  be  v>onld  not  Cal 
with  above  one  at  a  itnie  :  how  far,  wheD  If 


2)TJ 


Joy  High  Treasm* 

h  eoooernetl,  such  loo^e  discnurse  ought  lo  be 

infofced  before  a  jury,  I  must  leave  to  your 

for<Uhip;  thou^^h  n  man  miiy  he  iunocent^  yet 

lie  iiia\   be  cautiooi^  and  the  more  innocent, 

p«Hisp»  (lie  more  cautious;  but  that  ia  nppli- 

cMe  to  the  invasion  too,  and  has  no  rHalion  to 

tH«  treuoD  in  this  indict  ment  mi>re  thitu  any 

flilief*    It  sliewfi  he  %vhs  more  wnry  than  f^ther^ 

wifre,  but  it  is  not  appljeatile  to  I  he  fact  that  he 

mw  <taaJ$  char^ecl  vvilh.     Thi-n  the  whole  of 

the  evitience  dependB  ujjon  the  testimony  nf 

Mr.  Hai-ris  ftnd  Mr,  Bertram;  and  wetliink 

ihey  aje  not  two  wttnesse*  to  one  thm;»',  and 

wbjit  they  lay  must  be  strained,  and  intended, 

lad  pxetiimed,   to  make  evidence  ot^  treason  ; 

fbr  firbat  Mr.   Harris  ^ays  about  the  dtseourses 

Wtiviecn  bjm  and  the  bte  kin^  James,  about 

meiniig^  ordern  from  b\v  George  Bareley,  and 

_  t  over  trum  France,  and  the  several 

Tand  Mr.  Hare  travelled,  aud  the  dis- 

t  between  «ir  George  Barcley  and  Iiita  : 

'  yovtordship  will  acquaint  the  jury,  that  is  no 

fTidmce  to  aflect  Mr.  Lowick,  nor  \s  hat  Ber- 

Imbead  and  Hare  aifre*?d  upi>n  dwe>t  any  way 

I  l4eci  Mr.  Lowick  ;  for  those  thinjrs  may  he  nil 

,  and  yet  Mr.  Lowick  innocent  of  wlmt  he 

audi  charged  with   in  t1u!$  indictment ;    he 

riayi.  That  upon  the  first  Saturday  be  law  Mr. 

}^wick  at  llie  confectioner's,  hut  lie  cannot 

•ty  be  staid  thereat  all;  there  wa?$  not  a  word 

ipoJlvn  by  Mr.  Lowick  that  he  remembers  then ^ 

,  vnt  whitt  he  ^ys  that  !«eems  to  touch,  and  the 

I  Boly  ibmiT  that  touches  Mr,  Lowick  in  all  (his 

ce  is*  thai  ofvon  Monday,  Tuesday  *  WttU 

'  or  Tlnu'silay,  it  is  a  pretty  brge  lime, 

eft  the  1 3th  and  the  22iid,  he  wam  talking- 

I  Mr.  Lowick  about  the  barhnrity  of  this 

and  that  L^nvick   aAer  all   said  be 

\  «ou)d  obey  orders  :  now  with  wuhmission,  my 

Wd,  lo  make  that  to  have  retation  lo  the  as- 

■WtiatioD  must  be  by  a  forced » strained  intend- 

JMoi;    he  doea  noi  declare  what  the  orders 

J ;  nay,  be  does  not  affirm  there  were  any 

ri  for  the  aasaasuinlioni   but  only  that  he 

[  woald  obey  orders ;   here  is  no  order  by  writ- 

I  bf,  no  order  by  parole  that  i^Ir,  Lowick  c!e- 

dared  he  would  obey.     As  to  what  Lowick  de- 

cUred  about  hi!»   intention  of  ridiof^  out  and 

'  the  kini;  in  his  concht  that  cannot  he 

;  llie  order  lliai  he  was  to  obey  tu  as- 

!  the  kingf,  ihnt  order  dr^es  \wt  apjiear; 

there  are  no  footsteps  of  it  in  all  the  cv  itlence ;  wj 

lli»t  there  i*  nothinj;  in  testimony  that  wdl  hurt 

Mr.  Ix>M'ick;  then  upon  (be  *Hu*\,  when  they 

niiifd  toj^elher,  Mr.  Harm  says,  ihai  there  was 

*"        -se  of  two  men  ;  but  it  docK  not  appear, 

the  witness  give  any  ac^^onnt  vvhat 

» two  met!  were  to  be  f*»r  :  it  is  true,  two 

men  he  was  to  ^ct  clinchar^rod  ;  hot  that  h  not 

^  ttidence  that  tlieie  men  were  lo  make  a  part 

of  thoie  forty ;  neither  the  words  before  nor 

(Wcirds  ufter  ran  have  that  conf>iruc<ion  ; 

.it  does  not  uppear  it  ua«  for  any  pnrpo!?e 

now  in  the  case  of  life,  whi^re  a  man 

ndi  at  the  Uir,  we  hoj>e  f^uch  an  evidence 

dl  not  be  consti'ued  to  make  a  |>root*  of  a 

[imioiiable  intetition,  that  thc^  vere  to  as- 


D-  1696. 

sassinate  the  kinjr,  or  to  make  part  of  the  forty 
that  were  to  do  it ;  m  hen  it  does  not  ap}>ear  they 
were  Ibere,  nor  who  they  were,  nor  any  %ovt  of 
notice  taken  or  g^iven  upon  what  account  they 
were  pnivided.  And  then  as  to  Mr.  Liertram^g 
evidence,  it  is  palpable  that  bi*i  evidence,  and 
whatsoever  he  says,  cannot  amount  to  make  one 
witness  to  prove  an  overt-act  within  this  staiutei 
and  that  there  must  be  two  witnes^ses Jhe  law 
ret} ui res.  What  d<jes  Mr.  Bertram  say,  to 
prove  any  man  gruilty  of  treason,  but  only  by 
intend  me  lit,  tlioucrht  or  suspir  kin  ?  it  is  true, 
Mr.  Bertram^s  evidence  would  be^'Hwf  enoug-h 
to  commit  a  man  upon  sii*;picion  of  treason,  hut 
to  convict  him  it  eannoi  be.  He  sayK,  that  in 
the  beifinningf  of  February  he  spoke  to  him, 
and  told  him  he  would  employ  biin  in  a  busi- 
ness that  would  lie  for  hi^  a«lvunta*^e,  but  he 
must  ask  no  (questions:  Tlifs  is  very  dark,  for 
the  meaning^  of  it  does  not  appear  what  was  in- 
tended by  it ;  it  mij,4it  be  one  thing  as  well  as 
another;  it  might  be  to  employ  him  in  his 
Gimily,  or  it  mi^ht  be  to  send  bini  of  a  journey, 
or  it  nn'sfbt  be  the  taking  of  a  farm  ;  but  lo  ap- 
ply that  as  an  evidence  of  a  charge  of  high 
treason,  that  we  think  is  very  hard,  and  we 
hope  your  lordsbtp  wdl  think  so  loo :  but  then 
he  coines  and  tells  vou  further  of  a  discours* 
upon  the  14th,  of  bis  ridinjj  out  suddetdy,  and 
thai  the  king  was  to  be  seized  in  his  coadi ;  but 
he  does  notsay  that  he  was  to  seize  him,  nor  ttiat 
he  would  be  concerned  in  it,  nor  that  be  knew 
of  it,  nor  diit  declare  at  what  time  it  was  lo  \m 
done,  nor  any  thing' certain  whet  her  it  was  a 
prophecy,  or  a  dream,  or  a  story  that  he  re- 
lated a^Vin,  or  what  it  was  ;  there  is  no  con- 
nection between  the  riding-  out  suddenly  ^  and 
the  otiiej-  words  of  seizing"  the  king"  m  his 
coach  :  Then  be  ways  be  gave  him  a  jjuinea  to 
buy  him  necessaries  ;  the  man  acknoi%  ledges 
^Ir.  Lowick  several  time^  had  j^iven  him  in 
charity,  money,  cloaths,  and  other  thinijs,  and 
gave  his  wife  a  guinea,  as  you  idwwrvp,  in  cha- 
rity ;  but  he  gave  him  this  n^uioea  on  purpose 
to  buy  him  necessaries;  and  it  is  hard  thai  a 
man^s  charity  to  a  country luao,  to  a  townsman, 
lo  an  ancient  ac<juaintance  of  twenty  years 
standingf,  lo  a  persfin  that  be  bad  been  familiar 
with  formerly,  and  known  to  have  lived  well, 
should  he  misinterpreted  aufl  strained,  to  make 
it  a  jfiving:  him  money  as  subsistence,  and  are- 
'  ward  ftir  the  doin|rf  such  a  mtschievous  bloody 
I  act :  we  say,  his  chsrriLy  to  ihiji  man  formerly 
I  is  tnconsisient  with  the  supposition  (hat  he 
could  be  privy  to  such  a  baHj^irous  desig^n  now  ; 
and  we  hope  the  jury  will  consider  the  charac- 
ter ihat  that  very  man  has  ^ivrn  to  my  client ; 
fur  Uie  same  xviinpss  gi'res  you  an  account  of 
\m  l^eliaviotir  aU  al  ^n^i^  lhat  be  was  not  given 
10  raKh  atnl  barhju-ous  actions,  nor  guihy  i>f  any 
malicious  ihinjr  ;  nay,  that  he  prevcntpd  mis- 
chi^i',  and  the  kdliug  of  people  in  cohl  bh»od. 
We  must  leave  it  to  the  jtiry's  coosid  era  lion, 
and  your  lordship*s  direction*  All  these  I h inert 
thai  they  say  may  be  hue,  and  Lowick  be  not 
jjndty  ;"ftnd  the  acquitting  of  Mr,  L'mick  will 
be  no  rcflecttoa  upon  the  wiinvsteti  nor  any 


I 


I 


I 


299J  S  \V1LLIAM  ITL 

iliscreilit  lo  thi^  te?itmnniy  that  has  l>efeti  ^wen 
of  this  coi]8}Mrac^  ;  but  we  hope  it  is  iioing^ 
justice  to  this  iiiuu,  the  VFitne&ses  not  €ouuii|f 
up  to  the proiirui*  what  is  laid  in  th«  imtictment* 
We  niusl  bc^  vour  lonkhipN  paiietire  ;i  lillle 
long^er,  and  call  sinnv  Witnesses  tu  ^ivf  you  an 
sccou[ithowlon<^  ihey  have  knovvu  Me,  Ltiwick, 
and  what  lu^  real  character  i&  ;  they  uill  U'll 
you  he  Ls  a  peaceable^  gomi  niiiii,  and  shevi'  you 
that  his  temper  and  iiicltnatiim  wua  rather  to  u 
sober,  i|niet  lite,  than  lu  lead  him  to  sorb  ac- 
tion, aud  titat  tbey  cannot  thjnk  him  likely  to 
be  tempted  to  be  concerned  in  such  a  desii^n  ; 
and  th«u  we  mtxst  leave  it  to  the  jury.  Call 
Airs.  Yorke. 

Lowtck.  I  beheve  I  hero  is  noWdy  here  that 
knows  me,  but  uill  i^ive  tne  that  chiiractetv 
[Mrs.  Yorke  cacne  in,  and  was  sworn.] 

Sir  B,  Shower,  Pray,  Mrs.  Yorke,  how  long 
bave  you  knnwn  Mr.  L'nvick  ? 

Yorke.  About  a  d'tzen  or  Iburteen  years, 
t^r  B.  8/tower.    What  aort  of  du^poaitioo  is 
he  of? 

Yorke*    He  is  a  civil,  honest  mao  as  ever  I 

saw  in  my  Jife,  or  ever  knew  of ;    and  I  never 

heard  other wiiie  from  any  one  that  knew  him. 

air  B.  Shoa-er,  Wbal  was  he  in  his  actions? 

Was  hemahciouSf  org^ood-natured  i* 

Yorke.  As  ^od  a  natured  man  as  ever  f  saw. 
Mr.  Moinpesmm.  Hik^i  he  the  reputuiiuu  of  a 
erueU  bloody-minded  man? 

Yorke.  Uuile  the  contrary.  He  lodged  in 
my  bouse  half  a  year ;  it  is  not  quite  u  ye>ir  a|Jpo 
since  he  Jay  at  my  hou94.'«  He  was  the  most 
obliging  man  that  ever  hy  in  my  house.  He 
was  iO  civil  to  m)I  the  lodgers,  \hsit  they  ad- 
mired him  for  bii^i  goodness,  and  made  Ihem  in 
lore  with  him< 

X.  C,  J.  How  came  he  to  lodge  at  your 
bouse  ? 

Yorke.  He  came  from  his  other  laadlmly  j 
Uiey  could  not  agree  ;  his  other  lanillady  was 
a  sjort  of  a  kIitl-Wj  and  tli€rth>i'i'  lie  dii)  not  cure 
for  atajinj^  there  ;  and  I  dt»ircd  his  comjianyt 
becHUiie  I  knew  liim  to  be  so  obliging  and  ci\  ii 
a  man. 

i.  C.  J.  Where  is  your  bouse  T 
Yorke.  In  Bioomshury. 
X,  C.  X  What  in  his  way  of  liiriwg  ?  la  he  a 
man  of  an  estate  ? 

Yorke.  I  cannot  tell ;  I  did  not  enquire  into 
tbftt. 

L*  C,  J*  Had  he  no  employment  to  get  his 
living  by  f 

'  Yorke.  I  ih  not  know  any  tliing  of  that ;  I 
never  enciuired  into  it ;  he  paid  me  very  ho- 
nestly fiir  mv  lod|^ii);f,  and  he  is  a  very  good 
tuaOf  for  any  thin;;  I  know. 

8ir  B.  Shooter.  Then  call  Mr^.  Mosely.  [She 
came  in,  and  was  sworn.] 

L.  C.J.  Well,  what  do  you  ask  ibis  gentle- 
woman? 

Sir  B  Shau'cr.  Pray,  Mrs.  Mosely »  will  you 
toll  my  lord  nod  llie  jury,  do  vou  know  Jilr. 
Lowick  ? — AIohI^.  Yes,  Sir,  1  do. 

Itjir  B.  Shower.  How  long  have  you  known 
lum?*-«J£ofc/y*  Near  twenty  years. 


J  Trial  ofRoigft  Lowid, 


0 


Sir  B.  ShoTitr*    Pray  give  an  account,  u, 
your  knowledge,  wh.it  disposition  aad  teiu^^ 
he  is  of,  whether  he  is  rash,  tualicious,  bloody, 
and  ill-natured. 

Mo$eh/.  He  is  a  peaceable,  tirtuous, 
rnan,  and  a  n^an  that  I  never  heard  or  saw  tl 
creature  thftt  could  speak  any  ill  thing  of  hi 
in  my  life  ;  nor  1  never  heard  him  spt^ 
thing  irmliL'ionsly  of  any  creature  in  my  " 
di>  iJiL'ui  a  prejudice :  so  far  from  that^ 
is  a  man  has  a  character,  perhaps,  abo 
man  that  1  could  speak  or  bear  of  in  my  Iif« 
tipeak  it  even  above  my  own  relatimis  ; 
may  have  Nome  pas2iions ;    but  I  never 
gentleman  m  a  passion  in  my  life, 
lain  in  my  house  several  times,  and  h*r  has 
company  come  to  hiro,  but  never  any  that 
scandalous  one  way  or  other.       I   never  m 
htui  fudilled  ;  nor  ever  heard  him  swear,  ©< 
any  one  accuse  him  of  any  of  those  things. 

fllr.  Mompetwn.  Call  Dr.  William  HtWi 
(He  did  not  uppearl 

Sir  B.  Shouer,  Thft  prisoner  has  9ometbici| 
to  say  for  him-^elf,  my  lord;  hut  we  must  subi 
mlt  to  your  lordship^s  cont^ideration,  and  tb( 
jury's,  whtihifr  ilicre  ha  any  evidence  but  whi 
ts  dark,  ami  faxnirH  of  suspicion  only  ;  suspi' 
cious  it  is ;  but  whether  there  be  any  evidenoi 
that  is  plain  and  direct  as  the  law  requires  il 
cases  of  high-treason,  we  mu^t  leave  it  to  yoii| 
consideration,  tor  we  apprt*hend  there  is  n 

Lowick.  My  lord,  as  to  thLs  businesa,  tbl 
thing  that  1  bland  accused  of,  the  Assassina^ 
tion,  I  know  nothing  in  tlie  world  of  it,  a» 
never  did,  directly  or  indirectly  ;  and  if  1  ai 
cfiovicted»  and  could,  10  save  my  hfe,  be  tb| 
death  ul  llie  poorest  child  in  the  world,  |  wimiM 
not  save  iny  lite  tu  do  it. 

X.  C.  J*  Look  you,  I  would  put  you  to  makt 
answer  to  some  thinp  ;  you  were  at  sir  Geargi 
Barcley^sat  the  cootectioner's  in  HtdlMjrn  ;  ai 
it  is  sworn  he  came  over  upon  suth  a  desigq 
Then  you  were  with  Mr.  Harris  at  Rtd-UoDf 
Fields,  and  thfrc  he  was  speaking  to  you  oft 
horridness  of  the  de!«i<^n  that  was  to  1»e  rxecutei 
upon  the  king's  person  the  SalUfday^  tK*for«| 
and  he  told  you  he  did  mislike  it ;  and  there** 
upon  yi/u  answered  that  3'ou  would  obey  or* 
ders,  and  tliat  sir  George  Barcley  had  ordi 
for  it,  otherwise  he  would  not  do  it, 

Lou  irk.  Sir  Geo^j^e  Barcley  never  spokeoiM 
word  of  it  to  me, 

L.  C.  J.  Every  l»ody  knows  now  upon  whi 
design  he  came  over  from  France,  and  wb< 
]IIr.    UarriK   shcwt'd  dissatisfaetion   with   tbll 
thin^t  you  nnole  that  aiihwer  to  his  disctmrse. 

Loftttk.  He  never  said  one  tiyllflUle  to  me  of 
it.  1  trust  to  your  lordship's  judgment  and  tb^ 
jury^s  meri^y, 

L.  C.  J.  And  then  I  would  have  you  anaue^ 
to  another  thing  ;  when  you  dined  together 
the  *Suturday  the  ^2nd,  v^hat  were  those 
men  that  could  not  be  discharged  vvhhuut  yon  f 

LoiiJick.  My  lord,  I  kni»w  nothing  iu  the 
world  of  two  men. 

X.  C.  X  You  went  to  discharge  them,  for  ihf 
king  did  not  go  abroad  that  day. 


fof  High  Treas^, 

.  IknowDOthinff  ofit. 

He  swears  this,  and  that  is  as  to 
theo  aa  to  Bertram,  what  desigrn  was 
yon  were  to  engage  Bertram  in  for 
•ffe,  ami  be  was  to  ask  no  questions  ? 
.  My  lord,  be  is  a  poor  man,  and  my 
SB,  and  1  have  at  all  times,  from  time 
HT  this  seven  years,  helped  to  subsist 
Its  family,  that  he  will  not  deny ;  and 
vral  times  giren  him  both  clothes  and 

J.  Then  I  would  ask  you  again, 
came  to  your  lodging  on  Friday  the 
'ebniary,  and  you  told  him  the  king 
seized  m  his  coach,  and  said  that  we 
ide  out  very  sudd^ly,  and  you  ap- 
im  to  meet  the  next  morning;  and 
le  did  not  meet  vou  blamed  him,  and 
luld  have  been  the  same  thin^  if  the 
been  in  the  field.  Look  you,  1  would 
give  answer  to  this  if  you  can. 
.  I  remember  nothing  in  the  world 
I  word  1  assure  ^ou  }  and  to  the  best 
nenobrance,  I  did  not  see  him  in  two 
r. 

en.  'hly  lord,  I  must  beg  leave  to 
*  the  objection  that  the  counsel  for  the 
lave  made,  that  there  are  not  two  wit- 
nrove  the  overt-act  laid  in  the  indict- 
\9o  the  law  is  not  satisfied.  In  answer 
[  desire  jrour  lordship's  favour  to  ob- 
r  the  evidence  is,  and  then  we  shall 
ler  there  are  not  plainly  two  positive 
of  the  overt-act,  by  agreeing  to  assis- 
!  Idng.  The  first  witness  is  Mr.  Har- 
t  lordship  observes,  that  Mr.  Harris 
account  that  Mr.  Lowick  was  at  sir 
Itfcley's  lodging  the  first  day  that  it 
we  been  executed;  and  that  afterwards 
die  15th  and  the  82nd,  those  bein^  the 
second  days  that  this  was  to  be  done, 
I  and  Rook  wood,  and  the  prisoner 
were  walking  together  in  Red-Lion- 
■d  there  had  some  discourse  about  the 
assawiination,  and  the  barbarity  and 
■  of  it,  and  Mr.  Harris  and  Mr.  Rook- 
ers  averse  to  it.  Mr.  Lowick  said  he 
«y  orders,  and  he  was  sure  sir  George 
would  not  do  it  unless  he  had  direct 
r  it ;  that  was  twice  repeated  by  bim,  as 
wears:  and  afterwards  Mr.  Harris  tells 
tthe  9fd  he  dined  with  Mr.  Lowick,  and 
»ick  observed  that  Mr.  Harris  came  in 
M  sweat,  and  asked  him  how  it  hap|>en- 
taid  he  had  been  about  to  get  Hookwoud's 
at  were  to  seize  the  king  ;  for  he  was 
one  party.  Says  Mr.  Lou  irk  to  him, 
ed  not  grudge  to  du  it,  you  have  six 
I  a  day,  I  have  nothing;  and  yet  T,  at 
I  chaise,  am  to  provide  two.  This  is 
ifevvideoce  as  well  can  be  of  his  being 
»the  design  ;  and  his  engaging  people 
vwn  charge,  shews  a  gr«;at  deal  of  for- 
waail  z«il  in  the  prisoner  to  the  busi- 
My  lord,  I  think  this  is  positive  and 
*i4aoe,  and  not  only  made  out  by  in- 
>  aod  eonslractioQty  as  sir  B.  Shower 


A.  D.  1696«  [9QS 

says,  but  plain,  positive  proof.  The  first  day 
he  was  with  several  of  them,  and  when  they 
discoursed  of  the  thing  afterwards,  he  declared 
he  would  obey  orders ;  and  what  could  tluwe 
orders  be  but  for  what  they  were  discoursing 
of?  And  nothing  was  discoursed  of  but  this  de- 
sign they  were  engaged  in,  and  this  was  to 
justify  the  thing,  ami  take  offthr  apprehensioB 
of  the  barbarity  of  it :  This  is  Harris's  testi- 
mony. The  next  witness  is  Bertram,  and  be 
tells  you,  that  the  litb  of  February  the  prisoner 
sent  for  him,  and  when  became  to  him,  be 
asked  if  he  would  engage  in  a  business  that 
might  be  for  bis  advantage,  and  ask  no  ques- 
tions ;  so  at  that  time  he  did  not  acquaint  him 
what  the  thing  was,  but  that  shews  it  was  a 
thing  that  was  to  be  kept  secret  at  that  time,  ia 
regard  he  did  not  thina  fit  to  acquaint  him  at 
the  first  instance.  But  the  14th  of  February 
when  be  met  him  again,  the  day  before  the 
first  time  that  it  was  to  be  put  in  execution, 
Bertram  swears  be  told  him  that  they  were  to 
ride  out  the  next  morning :  that  must  be  Low- 
ick and  Bertram,  for  there  was  nobody  else 
there ;  and  that  the  prince  of  Oran^  was  to  be 
seized  in  bis  coach.  Was  it  possible  the  pri- 
soner could  be  Ignorant  of  it  P  when  he  en- 
gaged him  to  go  upon  a  design  without  asking 
qutstioas;  sent  for  him  the  day  before,  ac- 
quainted him  they  were  to  ride  out  the  next 
rooming,  and  that  the  king  was  to  be  seized  in 
his  coach,  and  bid  him  be  ready  against  next 
morning,  and  gave  him  a  guinea  at  that  time  ; 
the  witness  says  it  was  for  necessaries,  but  he 
does  not  pretend  that  it  was  for  charity,  as  for- 
merly. And  that  must  be  for  necessaries  fnr 
that  purpose  that  they  were  then  discoursittg 
of,  when  he  desired  him  to  be  ready  the  next 
day,  and  gives  him  money  to  buy  him  neces- 
saries :  what  can  that  be,  but  necessaries  fbr 
what  he  was  to  be  ready  for  ?  And  then  he  did 
not  come  the  next  day,  and  he  tells  vou  why, 
because  he  thought  it  a  very  wicked  and  on- 
lawful  thing,  and  so  he  disappointed  him  ; 
and  the  next  time  Lowick  chid  nim,  and  toM 
him,  he  would  have  served  hiid  so  if  the  king 
had  been  in  the  field.  This  is  plain,  though  I 
believe  Bertram  does  speak  as  tenderly  as  jbe. 
can,  being  his  friend  and  old  acquaintance, 
and  is  vrilling  to  say  as  little  as  he  can  of  hiaa : 
so  that  I  believe  nobody  thinks  but  what  Ber* 
tram  says  against  the  prisoner  is  true,  and 
what  he  swears  is  plain  and  positive.  To 
shew  that  Lowick  did  engage  in  tlie  design,  be 
acquainted  him  with  it  the  14th,  by  telling  him 
the  king  was  to  be  seized,  and  they  were  to 
ride  out,  and  he  was  to  be  ready  the  next  day. 

L.C.  J.  He  does  not  say  they  were  to  ride 
out  the  next  day. 

Sir  B.  Shoaer.  No,  the  words  were,  We  are 
to  ride  out  suddenly. 

Att.  Gen.    1  think  he  did  say  they  weie  to 
ride  out  the  next  momuig. 

L.  C.  J.    No,  call  him  in  again. 

Mr.  Ctnrpfr.  The  words  were,  We  shall  ride 
out  suddenly,  and  bid  him  meet  him  next  morn- 
ing ;    and  aflerwards  chid  him  fin*  not  meeting 
8 


I 


I 


8  ^vl^LIA^f  iii. 

•ocurdiug^ly,  anil  told  htm    it  houl  b&eh   Hre 

same  ihii}<^iritit'  kiii^^  Imd  Uctfa  in  the  firld. 

L.  C>  J.  if  y*iik  caunoi  a(;jrce  ujiou  ihe  evi- 
ileiict^,  you  must  call  in  iUp.  witne^iit, 

Mr.  j\Jaiintitpie.  My  lord,  we  are  agreed 
upon  the  evkWii'-e,  it  was  suddenly, 

L.  C.  X  Wfll  tUciit  liiere  is  no  uoc^ioa; 
hare  yuu  tloue  on  Imth  sides  P 

Coufuei.  Yesi,  uiy  lord,  «ve  submit  U  loyotur 
lordship. 

i.  C- 7.  Geullemenofthejun',  thisprb*mer 
at  Uie  bar,  liohen  Loivick,  ts  iodicted  lYf^high^ 
inAamk,  for  c(impas$ms^  ^^*^  tinHt^Q\n\^  tlie 
dMtb  nod  desiructiou  of' the  kint^  by  an  ai^Sia- 
•ifi&tion;  you  have  hi^ard  ivhtLt  endeDce  hus 
heen  ^-tven  upon  this  indictment.  And  in  the 
lirtil  place.  It  is  pruvi^d  to  you  thut  there  wait  a 
desi|^n  to  assassinate  the  Uui^,  uJiiiili  was  to  be 
earned  nn  under  the  conduct  ami  mana^^^e- 
ment  of  sir  George  Barcley,  The  *|uestion 
that  you  are  now  to  consider  of  is,  Whether  the 
prisoner  at  the  bar  was  concerned  or  en*;aged 
in  the  prosecution  of  that  desi^'^n  ?  There  have 
been  two  witnesses  produced,  who  have  ^twn 
ibeir  evidence,  and  huve  been  very  «irtctly  exa- 
jiiined,  and  observutious  h^ve  been  tnade  upon 
ihe  tesltitiouy  they  have  jfifeu. 

The  first  wltue^s  is  Mr.  Han  is;  and  he 
^vt9  you  some  account  ol  the  original  of  this 
3esig:ti'.  He  lells  you  how  he  was  at  ^t.  Ger- 
niainSf  and  introduced  to  the  late  kin^  James, 
who  ihil  express  a  ^reat  kindnesii  for  him,  aud 
told  hnu  that  be  hud  an  opportunity  of  doin^ 
«oaietUiti|^  for  hiui  that  would  be  for  bis  advau^ 
tag-e  :  and  that  he  and  one  Hare,  who  was  pre- 
•ent  at  that  time,  should  go  into  England,  (lor 
it  neems  they  w^re  both  together  iutroiiuced 
by  colonel  Parker)  and  should  be  subiiiiited  in 
England,  and  thereupon  direction!^  were  g^ivcn 
tbem  ^that  coursie  tliey  were  to  take; 
whieh  was  to  ^n  to  Calais,  nod  to  each 
of  them  ten  lewidorcis  were  ^^iven  Jbr  their 
charges;  and  they  u  ere  actjuaiitled,  that  if  it 
happened  (hut  if  they  sliould  lie  thete  s**  hm^ 
lor  want  of  a  *vind  to  brin^  theui  over  hither 
that  their  money  was  s|»ent,  proviision  should 
be  made  lor  llieir  supply  there.  They  had 
farther  directions,  that  when  they  caiiie  into 
England,  they  should  a|i|dy  themselves  to  sir 
Getjr^e  Barcley,  and  Jiiilow  bis  orders,  with 
instructions  how  in  tin4  him  ;  hcmyr  told  that 
Sir  Geoige  Darclcy  would  be  walking  in 
Coveni'garileo  t^vt^ry  Monday,  and  every 
Thursday  night,  <tbouMlie  hiiun>of  sixi^r  i»even 
o'clock,  aud  that  they  should  know  him  l>y  a 
white  hand  kerchief  that  wa^i  to  hang  out  of  liis 
pocket, 

Mr.  Harris  further  tellp*  you,  That  they  did 
come  to  CatdtH  in  ordtr  to  embark  tor  En;!^land, 
and  ttietethey  happeued  in  stay  a  eotii»iderable 
lime,  even  »o  lonj;  that  then-  money  wouhl  not 
defray  their  expences  there,  aud  iliey  found  it 
trueus  il  was  prouni^ed  tbeui ;  for  the  pret^idcnl 
of  Calais  [laid  the  reckoning  for  them  at-  the 
place  where  ilicy  hnl^etl  -  and  alter  wards  they 
isauie  into  EjjgUnd,  and  landed  in  Kent,  and 
iMUue  lo  Ko4;heit«r,  and  from  tbeuce  to  Euudou. 


Trial  ofRohcr-t  LcKnick^ 


P 


AtHiUt  the  latter  end  of  JaDuary^  ^  ^tite  fft 
it  should  iM^ni  it  was  the  14th  new 
is  the  41  h  old  j«lde,  Ihey  were  at  8t    ^  ), 

he  telU  you  that  he  did  i^o,  the  tii>i  m'..  hu: 
after  their  arrival,  into  Co\ cm- K:af den,  in  I. 
after  «.r  G^*or:;e  Barelf-y,  but  then  mi<i!>ed  bi 
But  aHer wards  his  ciaopaniuu,  Mr,  Hare. 
with  otie  Berkenhead,   aud   cotujdaiitntg  tl 
they  had  not  met  wiih  sir  Georije  Barch-y 
mil  ding  to   the   directioua  they    bad 
whereupon,  by  the  means  of  Berkenhej 
were  bn>ught  to  ihe  speech  of  »ir  Gooj  ^ 
eh  V,  who  gave  them  reception,  and  owned  tl 
heliad  auUiority  to  &uh:iist  th(^«n  :  hut  aaid 
had  not  then  mouey,  but  shortly  tchould, 
when  Ins  ttad,  they  should  be  bure  to  reeiit* 
their  stibsistence.     He  tells  you,  th:< 
sir  George   Barcley  gave    them 
money «  fm)  iug  theui  at  the  rate  of  uve 
ting^  a  day  wlitn  they  had  no  boraes, 
tliey   had,  iw  shitimgs  a  dsi^:    st^ 
themst'lves  altogether  under  his  co* 
rooducL     He  has*  given  you  an  act , 
discour».e  he  had  with  Mr.  Hookw 
whom  he  di^'o verted  what  the   design 
which  he  was  to  bbengugedt    And  Lhedi 
assassinate  the  king  was  tirstinlende*!  to" 
uxecutiou  on  Stiturday  the  15th  (»f  Fehriiary 
at  which  du'y  Mr»  Harris  and  others 
sir  Geoi^  Barclay's  lodgings,  air  Geoi 
they  were  his  Janisaries,  and  al\erw. 
reised  tliem,  and  said  they  ^vere  men 
nour,  and  told  tbem  that  they  were  to  ai 
the  prince  of  Orange  autl  his  guards  ;    but 
seems  the  king  nut  going  abroad  that  day,  thi 
lost  that  opportunity. 

Truly,  then  Mr/Harris  began  to  be  a 
troubletl,  when  lie  understo^  the  meaatng 
his  being  under  sir  George  Bnrcley*^  coDdi 
And  he  tiays  that  after  that  first  Saturday 
15tb,  and  fcetore  the  next  Saturday  the  SSd, 
met  with  Lowick,  Hook  wood,  and  Beruai 
he  was  complaining  of  his  being  eug: 
such  a  deiigti  as  thi,s  was.     He  called 
the  murder  of  tlie  prince  of  Orange,  and  0 
it  was  a  barbarous  tuitig,  aud  he  did  not  like 
nor  Rookwood  neitlier;    but   as  for  Lowia 
whether  he  ditihked  it,  or  uo,  J  know  oal» 
he  made  answer  to  him,   1   will  obey  oi 
ftays  he,  sir  George  Barcley  has  orders  for 
or  otherwise  be  would  not  do  it. 

Then  you  are  told  farther,  that  afWr  thtS| 
Saturday  the    2 2d,   Mr*    Harris    dined    w 
Lowick  Q.t  a  cook*s  at  the  end  ot    Hei1-lii 
street,  and  being  there  together,  Harris 
iu   a  sweal,    and    was   aiiked   the   rcasoii  I 
Lowick,  he  said  he  bad  been  giving  of  onh 
for  the  getting  home  men  Ifj^eiber  that  w< 
to  go  utidcr  iCookwood  ;    aud  Loivii;k  told  hi 
he  niii^ht  very  well  do  it,  for  he  liad  \\6ky  0^ 
day  ;  but  says  he,  I  am  to  subsirit  two  meu, 
have  nothing  at  all.     Mr.   Harris  wishe^d 
to  go  to  sir  Gdtrge  Barcley,  and  cuntplatfi 
it  to  him,  hut  he  f^uitt  he  wouhl   not:    Ult 
seems,  it  b«*ing  then  understood  liy  the  til  til 
tlm  king  did  not  go  ahruad  that  day,  Lowii 
sutd  he  u^ast  t^o  itud  dii^cUarge  the  tw9 


/ 


305  j  for  High  Treason: 

abant  it    Tbb  is  the  sum  and  sub- 

^f  1^1  J*,  ii arris's  eviJciice  agiinst  Mr. 

Lowkk* 

The  Deri  witness  is  Bertraiji,  and  he  tells 

on,  llifttsonie  time  be£nre  the  16th  of  February, 

»hjcb  i*a».  SI 5   I  l«M  you,  the  very  fir«l  iJay 

tliat  I  I  to  assassinate  the  kin^, 

Mr.  J  bim,  and  told  lum,  that  he 

voulii  |iui  hiw  (J|ii»u  a  business  th»t  should  be 

for   his  Ddrantag-ef  if  be  would   undertake  it 

lrilh«u(  unking*  any  questions  :  this  was  some 

llaie  beibr«ff   but  the  certain  day  Bertram  Joes 

^^^^^etnber  ;  but  he  tells  you  fiii  ther  that  on 

^^^Ipjthe  lltb  of  F«ebruarv,  he  was  iviih  Lo- 

^P^Kathis  iod^ngi,  and  lie  said  unto  hi m, 

Htbal  the  king,  be  did  believe,  was  to  be  seized 

In  btt  criacb)  and  we  are  to  ride  out  suddenly  ; 

tod  then  he  g^^e  him  a  guinea  to  buy  btm 

ries,  and  withal   bid  him   meet  bira  at 

srl  bouse  in  Hart  street  next  morning  ; 

ertram  tells  you,  be  had  undemood  what 

» desig:ii  wns,  tor  be  had  it  before  from  Char- 

atid  did  forbear  to  go  the  next  morning, 

:  he  did  diKiike  it.     Alter  this  Mr.  Lo> 

.  him  and  chid  him  for  disappointing 

Mbim,  in  not  meeting  liimas  he  directL'd,  for, 

|i«j«  he,  it  would  have  beea  the  same  thing  if 

kjn^  hail  been  in  the  field.    This  is  the 

liani  and  substance  of  the  evidence  that  Ber- 

|tmn  has  given  against  hint. 

Now  Bertram  being  crosS'Cxamined  on  Ibe 

Whalf  of  the  prisoner!   says,  he  haih  known 

_  kim  a  creat  while,  and  that  he  ib  a  mHn  ot  a 

kbie  and  fair  dii>posiiion,  very  charitable, 

,  he  has  given  him  money  before,  and 

ularly  a  gmnea  ti>  his  wife  in  liis  abiience. 

I  might  have  nientiuned  the  evidence 

^<f  Fifber  to  you,  but  that  is  but  circumstantial, 

\  not  come  home  to  the  case ;  but  being 

t  it  may  be  mentioned  ;  and  ibuL  is,  about 

i  of  February,  Fi^iher  had  some  discourse 

^ickf   auii  it  seenis  there  was  notice 

^the   intended  invasion,  and  Lowick 

_  Otild  serve  his  master  tailhfully  ;  and 

\  wtiuess  iliotighi  was  meant  of  the  lale 

and   he  said  at  another  time,  that  he 

\  not  discourse   with  above  one  ut  a  lime. 

E  of  Ibe  late  act  of  parliament  that  was 

tben  a  iiassing,  relating  tu  high  treason,  that 

nfuirto  two  witnesses.     Now,  I  say,  this  is 

HOI  toy  proof  against  the  prisontr,  hut  it  is  a 

circumstance  that  may  shew  his  inclinatiDn  to 

1  I  for  the  prisoner  hare  insisteil 

opou  ....  ..i    ,iliciency  of  the  evidence  that  has 

becQ  given  on  behalf  of  tbekiugt  and  have  said, 
(bat  the  late  act  of  parliament  requires  two  w  it* 
•Boea,  wUicb  is  true,  but  not  two  witnesses 
to  any  one  overt  act ;  hut  if  there  be  two 
witptmw,  one  to  one  aud  another  to  ano- 
ibtr  overt  act,  that  is  sutficient ;  but  they  say 
thu  it  is  not  so  in  this  case. 

Id  the  first  nlace,  they  object  against  the  eri- 

deiji  IV  en  by  Harris,  tbey  say  it  is  short, 

tbd-  It  to  your  consideration ;  whether 

ttv  fjut  IS  given  by  Harris  concero- 

k,  doei  prov«  to  your  sattnlac- 


don,  tbdt  be  consented  and  agreed  to  the  as^ 
BUfisination  of  the  king,  yoa  are  to  weigh  the 
evidence  ;  when  it  is  sworn  that  when  Harris, 
liookvvood,  and  the  prisoner  were  walking  in 
Hed  Lion  Fields,  and  talking  of  this  horrid  de- 
sign, and  Harris  c^mpbineil  that  it  wns  a  bar- 
barous tbin^  to  murder  the  prince  of  Orange, 
as  they  called  him.  you  must  consider  what 
answer  Lowick  did  make  about  obeying  uf 
orders  ;  then  his  subsisting  of  men  at  his  awn 
charge  without  pay*  and  complaining  of  his 
having  no  pay,  and  hia  discharging  iht;m  the 
last  day  that' the  assavsinafion  was  intended, 
that  I  must  leave  to  you,  whether  or  no  ting 
is  not  an  evidence,  if  you  believe  the  witneas, 
to  satisfy  you  that  be  was  engaged  in  this  de«  j 
sign. 

Then,  gentlemeD,  he  has  also  been  desired 
to  git^e  an  answer  to  ibis  question,  and  to  tell 
upon  what  desii4'n  he  w  as  to  employ  Bertram 
that  should  be  far  his  advantage  ;  but  he  was 
to  ask  no  questions;  and  afterwards  whether 
be  did  tell  him  the  king  w  as  to  be  seizrtl  in  hia 
coach,  and  they  were  to  ride  out  sudden)^  ,  and 
bid  him  meet  him  the  next  morning,  anu  ..bett 
he  did  not  meet  him,  he  said,  It  would  hare 
been  the  same  thing  if  the  king  had  been  in 
the  field.  If  this  he  an  evidence  of  Mr,  Ia>^ 
wick's  engaging  in,  and  agreeing  and  consent- 
ingto  the  design,  then  bens  will  be  another 
witness  against  the  prisoner  besides  Harris. 

Gentlemen,  you  art  to  judge  of  this  matter 
and  of  the  evidence.  It  Ls  true,  we  are  not  t» 
put  in  the  case  of  a  man's  life,  any  forced  and 
violent  constructions  upon  any  words  or  dis- 
courses ;  but  W  ihe  e\  i<lence  be  plain  and  clear, 
1  hough  he  did  not  say  in  express  words,  that 
he  did  design  to  assusiiinate  or  kill  the  king  - 
vet,  if  upon  the  whole  discourse  that  past  be-^ 
iween  them  it  apjiears  |dainly,  clearly,  aud  sa-^ 
tisfactorily  to  you  that  he  did  consunt  and 
agree  to  this  design,  or  waa  engaged  in  it«  , 
here  is  another  witness,  I  say,  lo  prove  bim 
guilty,  besides  Harris  ;  you  are  to  considee 
the  whole  evidence,  the  subject  matter  of  dis- 
course, and  if  you  are  satisfied,  I  say,  that  he 
was  engaged  in  such  a  design  by  the  proof  of 
Bertram,  as  well  as  of  Harris,  then  there  are 
two  witnesses,  which  jb  as  much  as  the  Jaw  re- 
quires. 

But,  indeed,  the  counsel  have  called  several 
witnesses  to  prove  thai  the  prisnner  has  liveti 
very  peaceably  aud  quietly  ;  one  woutan  says, 
she  has  know  n  him  twelve  years,  and  that  ha 
lodged  at  her  house,  arid  that  lie  was  a  man  of 
great  temper  and  candour,  anil  not  dii^ortlerly, 
but  had  a  general  good  esteem  ami  character  ; 
And  then  there  is  another,  Mrs.  Moseley,  tha^ 
prof es  the  like,  and  says,  she  has  known  him 
theae  twenty  years,  and  she  says  no  man  has  m 
better  character :  And  Mr.  Bertram  hath  said, 
that  he  was  not  of  a  rash  or  bloody  tem^ier,        ; 

Now,  genllenien,  I   must   leave  it  to  yoa,^ 
upon  the  evidence  that  you  have  heard,   there 
are  these  witnesses  that  have  been  produced ^' 
and  there  are  Utese  circumstances  Oiat  ap|iear 
iu  the  case;  il^juu  are  aax»^i»d  u^^u  Axv^  ^\- 


307}  8  WILLIAM  JR. 

dcDce  that  Kubeen  given.  tbAtthc  prisoner  Hr. 
^wick  did  consent  to,  aDd  engaj^e  himself  in 
that  design  of  assasvinatiog  the  king,  then  von 
are  to  find  him  gnilty ;  if  you  are  not  satisfied, 
vou  are  to  find  him  not  ffuilty  ;  you  have 
heard  your  eridence,  and  had  nest  consider 
ofit. 

Then  an  officer  was  sworn  to  keep  the  Jury, 
who  withdrew,  and  staid  out  about  half  an  hour, 
and  then  returned. 

CL  ofAr.  Gentlemen  of  the  jury,  answer 
to  your  names.    George  Ford. 

Mr.  Ford.    Here.    (And  so  of  the  rest.) 

CL  of  At.  Are  yo^  all  agreed  of  your  Ter- 
dktP— Jury.    Yes. 

CL  ofAr.    Who  shall  say  for  you  ? 

Jury,    Foremau. 

CL  of  At,  Robert  Lowick,  bold  up  thy  hand, 
(which  he  did).  Look  upon  the  prisoner ;  how 
MV  you,  Is  he  guilty  of  the  high-treason 
wnereof  he  stands  indicted,  or  not  guilty  ? 

Foreman,    Guilty,  my  lord. 

CL  of  At,  What  goods  or  chattels,  lands  or 
tenements  had  he  at  the  time  of  the  treason 
committed,  or  at  any  time  since  P 

Fortman.  None* to  our  knowledge,  we  do 
not  find  any. 

CL  of  At,  Then  hearken  to  your  verdict, 
«s  the  court  hath  recorded  it.  You  say  that 
Robert  Lowick  is  guilty  of  the  high-treason 
whereof  he  stands  indicted,  but  that  he  bad  no 
goods,  chattels,  lands  or  tenements  at  the  time 
of  the  high-treason  committed,  or  at  any  time 
since  to  your  knowledge,  and  so  you  say  all  ? 

Jury,     Yes. 

X.  C.  /.    Discharge  tbe^ury. 

CL  of  Ar,  Gentlemen  of  the  jury,  the  court 
discharges  you,  and  thanks  you  for  your  ser- 
vice. 

L,  C,  J,  Mr.  Attorney,  will  you  hare  the 
prisoners  set  to  the  bar  ? 

Att,  Gen,   Yes,  if  your  lordship  please. 

Then  the  keeper  of  New^a'e  brought  Rook- 
wood  and  Cranburuc,  and  ail  tL«ee  were  set  to 
the  bar. 

Att.  Gen,  If  your  lordship  please  to  give 
judgnkent  against  the  prisoners  that  are  con- 
victed. 

L,  C.  J.  Ask  them  what  they  have  to  say 
for  themselves  in  arrest  of  jud{ifment. 

CL  of  Ar,  Robert  Lowick,  hold  up  thy 
hand;  you  stantl  convicted  of  high -treason,  in 
conspinng  the  death  of  the  king  by  assassina- 
tion, what  can  you  say  for  yourself  why  the 
court  should  not  give  judgment  against  you, 
to  die  according  to  law  ? 

Then  the  Keeper  bid  him  kneel. 

L.  C,  J.  No,  no,  he  need  not  kneel ;  if  you 
have  any  thing  to  say,  Mr.  Lowick,  we  will 
hear  you. 

Lotoick,    I  throw  myself  upon  tlie  king's 
■lercy. 
*  CL  (fAr.  Ambrose  Rookwood,  hold  a(  thy 
haad,  (which  he  did).    You  stand  oouvicted 


[m 


of  the  same  high-treason,  fhir  oanspMng  tho 
death  of  th^  king  hy  assassination,  what  «an 
you  say  for  yourseli;  why  the  court  shoiikl  not 
give  you  judgment  to  die  aceording  lo  kw  f 

Rookwood,  All  that  can  be  said  haabosn 
said  already,  and  so  I  shall  say  no  mora. 

CL  cfAr,  Charles  Granbnme,  hold  up  thj 
hand.  Then  standest  oonvicted  of high-trasMnt 
in  conspinng  the  deaUi  of  tlie  kine  hy  aasiMi- 
nation,  what  canst  thou  say  for  Ayoelf,  wfew 
the  court  should  not  give  thee  judgment  to  dio 
according  to  law  7 

Cranbume,  I  have  nothing  to  say  bnt  whil 
I  have  said  already. 

CLqfAr,  Then,  cry»r,  make  prochmaliin. 

Cryer,  O  yes,  all  manner  of  peraoon  atf- 
oommanded  to  keep  silence  whilo  jodgniCHtil 
in  giving,  upon  pain  of  imprisonment. 

L.  C.  J.  You,  the  prisoners  at  the  bar,  llo-= 
bert  Lowick,  Ambrose  Rookwood,  and  CimAm 
Cranbume,  you  have  been  indicted,  «nd  nMr 
full  and  clear  evidence  have  been  oonvielMif 
high-treason ;  a  treason  that  was  advnnoed  to  . 
the  highest  degree  both  of  malice  and  miioMrf 
against  the  king  and  king[dom ;  yon  dosignei 
to  assassinate  the  king  with  an  mtent  to  sn^' 
vert  the  state,  and  by  the  introdncinr  of  a  lb*' 
reign  power  to  destroy  tho  ancient  libor^flll 
constitution  of  England. 

Our  French  and  Popish  enomies,  hj  wkvft 

Jou  were  employed  in  this  bloody  enterari|^| 
id  very  well  Know,  that  the  wisdom  nndhtaK 
rage  of  his  present  majesty  has  rescued  Mr 
kingdom  from  that  slavery  aud  oppr^nfm' 
which  they  oi\eu  threatened  to  bring  uponm; 
they  knew  that  under  his  govemmeiit  we  bvfi 
been  protected  in  the  enjoyment  of  our  reKgilOi 
laws  and  liberty  for  several  years,  and  that  kM 
majesty  is  the  head  of  the  Protestant  intera^ 
and  tlie  protector  and  preserver  of  the  libcM 
of  Europe;  and  that  upon  the  preservation  Or 
his  Itle,  and  the  safety  of  his  person,  tho  goodf 
and  happiness  of  multitudes  of  people  do  de- 
pend, winch  the  French  king's  pride  and  am* 
oition  has  been  ready  to  take  hold  of  any  op*, 
portunity  to  eu:)lavc  and  oppress. 

Your  being  engaged  in  such  a  horrid  < 
against  so  precious  a  life,  and  to  be  the  bloflii 
instruments  tu  give  that  dismal  stroke,  whk 
would  have  bi-ought  misery  and  desolation  i 
so  many  men,  renders  you  worthy  to  nnd 
a  greater  and  more  severe  punishment  than  I 
the  law  of  England  can  be  inflicted ;  but  tl 
there  is  no  greater  provided  for  such  crimini 
is  to  be  imputed  to  the  ancient  honesty  and  i 
teij^ity  of  Englishmen,  who,  when  they  firaM 
this  constitution  of  government,  never  f^ 
gined  England  should  produce  such  deg 
wretches,  as  would  endeavour  by  pk 
contrivances  to  betray  their  country  to  af 
yoke,  and  subject  themselves  and  their  f 
subjects  to  the  slavish  dominion  of  atrai^ 

Your  crime  being  so  great,  it  is  now  H 
time  for  you  seriously  to  reflect  upon  it;  ■ 
though  you  deserve  to  suffer  the  g      '^* 
punishments,  yet  I  have  that  comp 
your  persons,  that  I  wish  heartily  yoir } 


^  me  of  tbif  i>p}3<irtii9iiy  h  bieh  ui  now  ptit 
r  liMMi*^  lo  repeal.  Anci  since  you  are 
1  by  the  Uw  unworthy  to  live  here^  lb«4 
^^^  I  mftlw  |irep«raLion  lo  appear  jit  &uother 
HH^ftlv  mhtre  yoo  must  hafe  another  trial, 
nit  intiiatil«a  Ibearty  ant]  sincete  repentance, 
l»0«it#  ft  msre  severe  S€nleoc«.  I  hope  this 
•ilMBily,«idtbeju%iDeiit  that  is  to  M\  upon 
|wa,  ml  be  tn  atltnuniuon  to  you  to  tak«  bet* 
tif  iiiTioe  in  tbe  )a«t  paH  nf  your  time  which 
bblijftiit  ^ban  you  have  itoms  Jn  the  whole 
mmnt  of  ronr  tivi^a,  and  I  hat  you  wilt  be  wistr 
IbMl  M  u^Wqw  the  Ju'eotioo  of  th^se  guid^ 
vbMQ  prineipks  anil  doctrtoea  Imto  so  fttr  p«r- 
Vifleil  iiHl  cxrrftpied  yau«  aa  te  eng^t  you  iu 
noli  ft  bloody  drti^;ii,  I  ihall  IraTe  you  to 
iMllEe  Ibat  pr«pai-aiion  for  a  not  her  worUV,  which 
il  pftt^  for  men  in  your  condition,  and  pro- 
iiiM9  tilt  judgement  ol'  the  comt,  ^hicb  the 
Imp  iMili  Uppointet}  and  tbe  court  does  Award: 
*11ift4  all  ui  you  b«  oonv^yed  frorn  henc<;  to 
*te^ifteii  Iroin  whence  you  cvtme^  and  from 
I  'iMct  every  6ne  of  you  is  Uy  be  drawn  upou 
r  mnrdl«  1o  ibe  place  of  ejiecutioo,  wbare  you 
! HI  to  be  Uaitged  by  your  necks,  and  lo  be* cut 
'dawn  vrbile  you  arc  alire,  your  privy- ntetn- 
'  hfn  ate  to  be  cut  o^,  and  your  bowels  are  to 

*  ba  cut  out  of  your  bodies,  and  burnt  in  your 

*  tiew  I  ycitlr  beads  are  to  be  tut  off',  ami  your 

*  bodies  to  be  divided  into  lour  pftrla^  ami  your 

*  heidt  end  quarters  are  to  be  disposed  where 

*  bii  mjeay  shall  appoint.    And  I  pray  God 

*  te  hftre  tnercy  on  alt  your  bouIk.^ 

Cranhufnc,  i  bimibly  dessire  the  hberly  of 
iiy  wife  and  relations  to  cmne  to  me,  and  such 
^fioes  fts  1  shall  desire  may  bare  free  recourse 
ieme. 

LLC.  /.  Vou  aliall  have  that  liberty  that  is 
LtlWed  to  all  persons  in  your  condition. 
]    JUokmood.  1  roust  beg-  the  same  favour  to 
I  lilt  eofsa  few  friends  and  relations  come  to 
I  lee  nie  without  a  keeper. 

L  C,  X  Vou  abftll  bftve  a  warrant  for  your 
ibBdelecomeioyou. 

Kooht^Qod*  I  beg  your  lordship  that  you 
would  please  to  specUy  it  in  the  warrant,  be^ 
nuK  they  would  not  grant  it  hitherto  without 
I  keeper  being  by. 

L,  C,  J*  You  mean,  you  would  have  your 
bother  periti  Hied  to  come  to  you. 
Rocheiwd,  VeSf  and  some  few  relations. 
L  C>  X  What  ie  usually  done  in  such  cases, 
bt  It  lie  done. 
Lamick,  BIy  lord,  1  dcfikire  the  Same  thing*, 

tl  my  sister  may  come  to  me,  and  that  the 
^  time  1  have^  i  m^iy  be  ia  private  with  my 
\  friends. 

Ait.  Gen.  If  your  lordship  please,  they  may 
[  five  the  names  of'  those  they  would  have  ad- 
lliittcd  to  them,  and  then  the  Iceepci*  will  attend 
Jjfotir  lordfihip  for  your  direction. 

iL  C-  J.  That  tlie  keeper  must  take  care  of, 
r  allow  such  a  liberty  as  may  endanger 
« \  for  their  being  aloue  may  prove  a 
as  thing, 
f.  Gen.  It  ii  reasonable  they  should  tell 
tbi  Ibej  ftre,  before  iUey  Im  ftdmitM. 


[^ 


X.  C.  X  Yoti  allow  them,  ^  stippoie,  lo  have 
piirate  discourse  w  the  same  rounii  if  a  keepar 
be  by. 

Cranhurnt,  No,  my  lord,  we  never  bad, 

AU,  Gen.  8uch  as  your  lordship  ihinfai 
proper  to  fa«  AAimitted  to  them  may  have  dU* 
course  with  them  in  private,  if  the  keeper  be 
in  the  room,  but  oo  others  byt  such  fts  your 
lordships  shah  allotv  ;  fur  we  know  whut  hss 
been  the  ef^t  ef  a  liberty  of  acoese  iu  some 
prisoners. 

L,  C.  J.  Let  US  have  a  note  of  those  names 
that  you  would  have  come  to  you,  and  we  will 
g]?e  directiatis  that  shall  be  proper  iu  it. 

Vi.iff'Ar,  Sheriff  of  Middk^t.v,  you  most 
take  them  into  your  custoJy  till  ejcecution  ie  ' 
done. 

Then  the  Keeper  look  away  the  Prisoner!* 


mibeyi 


L 


On  Wednesday,  April  29,  Ambrose  Hook- 
wood,  Robert  Lovvjck,  and  Charles  Cranburnf , 
were  drawn  to  Tyburn,  where  the  two  formet 
delivered  the  following  Papers  to  the  aheiifff* 

MaJOS   LoWICK'S  PAPtR. 

la  the  name  of  the  Holy  Trinity,  Father^ 
Son,  and  Holy  Ghost,  Amen.  Iu  the  first 
place,  I  die  iu  the  religion  1  was  baptized,  vix. 
Roman  Calholic,  and  humbly  beg  the  prayere 
of  all  good  people  for  a  happy  resurrection, 
and  of  alt  Catholics  for  the  good  of  my  souL 

As  for  being  engaged  iu  this  for  which  f 
die,  it  was  never  so  posilive  that  1  had  w  horse  j 
irom  the  beginning  to  the  very  last,  nor  never 
see  any  allowed  me,  or  the  two  men  I  was  to 
provide,  as  was  sworn  against  me  at  my  trial ; 
nor  had  1  any  on  that  accouai ,  nor  whs  I  at 
any  of  their  meetings  when  they  settled  any 
such  tiling.  And  as  for  any  order  or  com- 
mission from  ting  James,  I  ne^er  see  an/ 
since  I  came  last  into  England,  whicli  is  R0\r 
aJiOut  liA'e  yeavs ;  and  I  am  con  gdent  none  that 
knows  king  James  will  believe  he  would  give 
any  such  order. 

Indeed,  1  must  confess,  t  beUeve  king  James 
was  a- coming  to  assert  his  o^vn  right;  and  £ 
should,  if  ou  shore,  har^  done  aoy  thing  ia 
my  power  to  have  assisted  him ;  and,  in  order 
to  that,  I  should  have  been  very  glad  to  have 
had  a  horse,  but  never  had  any« 

And  as  for  being  concerned  in  any  b!ooily 
aifair,  I  never  was  in  my  life,  but  lisivc  dune 
my  endeavour  to  prevent,  as  much  as  I  could, 
on  all  occasions  ;  and  if  the  kdliug  ihe  most  \ 
miserable  creature  in  the  world,  or  greatest 
enemy,  would  now  save  my  life,  restore  th« 
kingj'and  make  me  one  of  the  greatest  men  in 
England,  i  first  would  choose  to  die,  because 
against  the  Law  of  God. 

Jf  ony  who  are  now  sufferers  on  thts  eccoimt, 
think  r  have  been  too  forwtird,  and  a  promoter 
to  this  design,  1  do  now  declare  tt  was  never 
my  inclination  to  do  iiny  rash  thing.  How- 
ever, 1  beg  their  pardons,  and  of  all  tbe  world 
I  hftTf  ftfieiKleU,  eitb€r  in  Uiou^Ui^  vr^d^  ^ 


811]  8  WILLIAM  III. 

any  action  whatsoeyer,  and  do  freely  forg^TO 
my  enemies,  and  hope,  through  the  mercy  of 
mv  Saviour  Jesus  Christ,  to  have  remission  of 
all  my  sins.  Good  God  preserve  the  king*, 
queen,  prince,  and  princess,  and  all  that  royal 
blood  of  Stuarts ;  and  may  England  never 
want  one  of  that  direct  line  to  govern  them, 
and  make  them  once  more  happy !  I  have  had 
the  honour  to  serve  my  royal  master  in  several 
commissions,  and  tlie  lost  as  major,  and  strove 
ever  to  serve  him  to  the  best  of  my  power, 
and  ever  to  be  just  to  those  whom  I  had  the 
honour  til  commanil.  Lord  Jesus,  into  thy 
hands  f  recommend  my  spirit !  O  Jesus,  re* 
ceivc  my  soul !  IIobert  Lowick. 

Brigadier  Rookwood's  Paper. 

Having  committed  the  justice  of  my  cause, 
and  recommended  my  soul  to  Goil,  on  who^e 
mercies,  through  the  merits  of  Jesus  Christ,  I 
wholly  cast  myself,  1  had  once  resolved  to  die 
in  silence  ;  but  second  thoughts  of  my  dut^r  to 
others,  chiefly  to  uiy  true  and  liege  sovereign 
king  James,  moved  me  to  leave  this  l>chiud  me. 

I  do  thcrefoi-e,  with  all  truth  and  sincerity, 
declare  and  avow,  that  I  never  knew,  saw,  or 
heard  of  any  order  or  commission  from  king 
James  for  the  assassinatiuf;  the  prince  of 
Orange,  and  attacking  his  Guards;  but  1  am 


Trial  of  Peter  Cook, 


[SIS 


certainly  informed  that  he,  the  best  of  kingi, 
had  often  rejected  proposals  of  that  nature  wmb 
made  unto  him. 

Nor  do  1  think  he  knew  the  least  of  the  par« 
ticular  design  of  the  attacking  the  Guards  at 
his  landing,  so  much  talked  ot,  in  which  I  wm 
engaged  as  a  soldier,  by  my  immediate  com- 
mander,  much  against  mv  judgement ;  but  bis 
soldier  I  was,  and  as  such  I  was  to  obey  and 
act  according  to  command. 

These  twelve  years  I  have  served  my  true 
king  and  master,  king  James,  and  freel  v  now 
lay  down  my  life  in  bis  cause.  1  ever  abhorred 
treachery,  even  to  an  enemy  ;  if  it  be  a  guih 
to  have  complied  with  what  I  thought,  and 
still  think,  to  have  been  my  duty,  I  am  guilty. 
No  other  guilt  do  J  own. 

As  I  beg  all  to  forgive  me,  so  I  forgive  all 
from  my  heart,  even  the  prince  of  Orange, 
who,  as  a  soldier,  ought  to  have  considered  my 
case  before  he  signed  the  warrant  for  my  death. 
I  pray  God  may  open  his  eyes,  and  render  him 
sensible  of  the  much  blood,  from  all  parts, 
crying  out  aj^nst  him,  so  to  prevent  an 
heavier  execution  hanging  over  his  bead,  tbao 
what  he  inflicts  on  me. 

Abibrose  Rookwood. 

AAer  which  they  were  executed  as  tnitoi^ 
according  to  their  sentence. 


389.  The  Trial  of  Peter  Cook,  at  the  Old-Baile}^  for  High  Treason : 
8  William  III.  a.  d.  I696. 


Saturday,  May  9,  1(396. 

This  day  being  appointed  for  the  trial  of  Mr. 
Peter  Cook,  upon  an  indictment  of  lii^fli- treason 
found  against  him  by  the  graii«l  jury  for  the 
city  of  London,  upon  the  commission  of  gaol- 
delivcr^'  of  Newgritc,  lioldcn  for  the  saiti  city, 
upon  which  iodictmeiit  he  had  been  arraigned, 
aiid  upon  pleading  not  guilty,  issue  had  been 
joined  ;  and  the  court  having  been  adjourned 
unto  this  day  for  the  trial  by~public  proclama- 
tion in  usual  manner,  the  court  was  resumed, 
and  the  names  of  the  men  returned  to  serve  on 
the  jury  havin&f  been  called  over,  according  to 
the  pannel,  and  the  defaulters  recorded  ;  the 
court  proceeded  as  follows : 

C7.  oJ'Arr,  Set  Peter  Cook  the  prisoner  to 
the  bar.  [Which  was  done.]  You  prisoner  at 
tiie  bar,  those  men  that  you  shall  hear  called, 
and  personally  appear,  are  to  pass  between  our 
sovcrei<Tn  lord  the  king  and  you,  upon  trial  of 
your  life  and  death ;  if  thereibre  you  will  chal- 
lenji^e  tlicm,  or  any  of  lliem,  your  time  is  to 
speak  to  them  as  tliey  come  to  the  book  to  be 
sworn,  and  before  they  be  sworn. 

Cook.  Sir,  I  desire  you  would  not  namethem 
too  fast,  i'or  my  eyes  are  very  bad. 
CI.  ofArr.  John  Ewer. 
Cook,  Who  must  I  apply  myself  to,  8ur  ?    I 


desire  to  know  whether  he  is  a  freeholder  in 
London  ? 

CL  qf'Arr,  I  know  nothing  to  the  contrary, 
Sir,  he  is  returned  as  such  by  the  sheriff;  yoa 
had  best  ask  him  himself,  he  can  best  tell. 

Cook.  Are  you  a  freeholder  in  Tendon,  Sir? 

Kwcr,  Yes,  sir,  f  am  a  ireeholder. 

C<>ok.  Sir,  1  challenge  you. 

Ci.  of  Arr.  Henry  SheVbrook. 

Cook.    Sir,  are  yon  a  freeholder  in  London? 

iS/ierbnH>k.  Yes,  Sir,  I  am. 

Cook.  1  challenfi^e  you. — No,  Sir,  1  beg  your 
panlon,  I  do  not  challenge  you. 

CI.  of  Arr.  Then  hold  Sir.  Sherbrook  the 
hook:  [Which  was  done.]  Look  u|>on  the 
prisoner :  you  shall  well  and  truly  try,  and 
true  deliverance  make  between  our  sovereign 
lord  the  king  and  the  prisoner  at  the  bar,  whom 
you  shall  have  in  chary^e  ar.cordiug  to  your  evi- 
dence.    So  help  you  (lod. 

CI.  (jf'Arr.  Joseph  iJillers. 

Cook.  Are  you  a  freehohler,  sir,  in  London  ? 

Biliers.  Yes,  I  am.   [Challenged.] 

CI.  of  Air.  John  Brand. 

Cook.  Pray,  sir,  don't  go  too  fast  ?  Are  you 
a  freeholder  m  London.  Sir? 

Brand.  \  am  no  Ireeholder  in  London. 

L.  C.  J.  Treby.  What  say  yoa,  Mr.  At- 
toraey  ? 

Att.  Gen,  (Sir  Tbonas  Trefor.)  Mj  \aiyt 


JorHi^  TreoMu 

i  bftve  any  body  that  if  not  a  Iree- 

f«.     So  he  waijMt  by. 

Irr.  William  Hull. 

Mylord,  I  am  no  freeholder  in  London. 

r.  2Vel|v.  Wb^.whateitatebaTeyoar 

What  1  haTe,  ii  in  leases. 

L  TVeiy.^   What,  leases  for  years,  or 

lives? — HulL   Leases  for  years,  Sir. 

f.    Then,  he  cannot  serre  upon  the 

Arr,  Edward  Leeds. 

Hold,  sir,  let  me  see;  are  yon  a 
rin  London,  Sir? 

Yes,  Sir.    [Challenged.] 
Arr,  Thomas  Clark. 

Hold,  Sir,  I  pray  let  me  look  upon 
r.    I  challenge  bim. 
tder-by.  He  does  not  appear. 
Arr.  Nathan  Green. 

Where  b  he,  Sir  f   Are  yon  a  free- 

!.  Yes,  f  am,  Sir.    [Challenged.] 
Arr.  Thomas  Ernes. 

Are  yon  a  freeholder,  Sir  ? 

Yes,  I  am. 

Were  yon  one  of  sir  John  Freind's 
•Ernes.  Ves,  I  was. 

Then  I  challeoge  yon  for  canse,  and 
on  my  reason. 

Dmrnall.   I  pray,  let  ns  hear  yonr  rea- 
rs yonr  reason  ror  joor  cballeiif^. 

It  is  for  being  of  sir  John  Freind's 

ThmalL  Then  you  challenge  him  for 

Yes,  that  he  was  of  sir  John  Freind's 

J.  Trehy.  Well,  brother  Damall,  how 
I  eaiise  of  challenge  ?  You  are  the  pri* 
Donosel,  let  ns  hear  what  you  say  to  it? 
UamaU.  My  lord,  what  we  haye  to  say 
Ibis ;  here  are  some  persons  fetumed 
b  pannel,  that  were  formerly  jurors  in 
diat  was  tryed  for  the  same  species  of 
that  this  gentleman,  the  prisoner,  is 
1  with  in  this  indictment ;  and  I  think 
icsKS  at  that  trial  did  mention  in  their 
t  my  client,  as  beinff  present  at  those 
nsulu,  about  whid  they  me  their 
t ;  these  gemlemen  gave  credit  to  those 
n,  and  fuund  the  verdict  against  the 
iieo  accused.  We  hunrtbly  8ur>mit  it  to 
tddiip  and  the  court,  whether  we  may 
thb  canse  challenge  this  person  as  not 
nt,  it  being  for  the  same  cause  and  con- 
t  the  other  was  tried  for. 
Gea.  Sore  Bf  r.  Serjeant  i«  not  in  earnest 
objection. 

VBmaiL  My  client  thinks  it  a  Tery 
section,  that  be  is  not  indifferent,  and! 
c  sbonlfl  be  satisfied  in  it. 
Gm.  If  Jie  thinks  so,  he  may  except 
bin ;  bat  if  he  insist  upon  it  as  a  cause 
Isge,  we  desire  you  would  put  the 
4  my  lords  the  judges  determine  it 
Dsnia//,   I  h»Ta  trid  yon  what  the 


A.I>.  1096. 


[SI* 


L.  C.  J.  Treby.  Bnt  yoo  hear  the  king^ 
counsel  insist  upon  it,  to  bafe  yon  make  it  oul 
in  point  of  law. 

Seij.  Damall.  My  lord,  1  have  stated  tb# 
case  as  my  client  desired,  and  we  submit  it  to 
yon. 

L.  C.  J.  Treby.  Well,  there  is  nothing  in  it.* 

Serj.  Damall  Then  my  client,  if  he  will 
not  hare  him  serre,  must  challenge  him  pe- 
remotorily ;  which  he  did. 

CI.  of  Arr.  Francis  Byer. 

Cook.   Sir,  are  you  a  freeholder  ? 

Byer.  Yes,  I  am.    [Challenged.] 

CI.  (fArr.  James  Denew. 

Denew.  I  am  no  freeholder. 

CI.  of  Arr.  Henry  Hunter. 

Cook.  Hold,  hold,  my  lord,  I  challenge  hinii 
as  being  one  of  sir  John  Freind's  Jury. 

Mr.  Baker.  Nay,  that  was  not  allowed  in 
Mr.  Emes*s  case;  but  you  challenged  him- 
perenDptorily,  and  so  you  must  now,  if  yoa 
hare  a  mind  to  it 

Cook.  I  challenge  him. 

CL  of  Arr.  John  HaU. 

Cook.  Are  you  a  freeholder  in  London,  Sir? 

Hall.  Yes,  I  am.  Sir.    [Challenged.] 

CI.  of  Arr.  JohnCullum. 

Cook.   Sir,  are  yon  a  freeholder  in  London? 

Ctf(/ttiR.  Yes,  Sir.     [Challenged.] 

C/.  e^iliT.  John  Cox.        ^^     •" 

Cox.  My  lord,  I  am  no  freeholder  in  Lon«i 
don. 

CI.  of  Arr.  John  Hedges. 

^k.  Hold,  I  phiy,  JSir,  let  me  look  npoa 
my  paper,  Sir :  are  you  a  freeholder  in  Lon- 
don? 

Hedges.  Yen,  Sir,  I  am.    [Challenged.] 

CI.  of  Arr.  Thomas  James. 

James.  My  lord,  my  name  is  not  Thomas. 

Sher.  Buckingham.  He  is  returned,  it  seems, 
by  a  wrong  name ;  we  did  not  know  it. 

Seij.  Damall.  Then  you  cannot  swear  him. 

CI.  of  Arr.  Thomas  Poole. 

Cook.  Are  yon  a  freeholder  in  London,  Sir  ? 

Poole.  Yes,  Sir.    . 

Cook.  I  challenge  him,  as  being  of  sir  John 
Freind's  jury. 

Att.  Gen.  That  has  been  orer-ruled  already. 

Cttok.  I  challenge  him. 

CL  of  Arr.  Peter  Parker. 

Cook.  Are  you  a  freeholder  in  London? 

Parker.  Yes,  Sir,  I  am. 

Cook.  I  challenfife  you,  Sir,  as  being  one  of 
sir  John  Freind's  jury. 

Mr.  Baker.    Nay,  you  cannot  offer  it  again. 

Cook.  I  challenge  him. 

CL  of  Arr.  George  Grove. 

Cook.  Where  is  heP  Are  you  a  freeholder  in 
London,  Sir? 

Grooe.  Yes,  Sir.     [Challenged.] 

CL  of  Arr.  Nathaniel  Wyersdell. 

Cook.  Are  you  a  freeholder  in  l/)ndon  ? 

WyeridelL  Yes,  Sir,  I  am.     [Challenjrwl.] 

*  See  the  seventh  Resolution  iu  the  Cai*c  of 
the  Rc0cides,  Vol.  6,  p.  985,  and  the  Casa 
of  Charles  Cjmbume,  p.  %%l  of  this  Voloma. 


S153 


ft  WILLIASf  m. 


Trial  nfPaer  CwA^ 


CL  if  Art.  Sainiiel  Blswit 

Cctk,  Hold,  pray,  ara  you  a  ireehoUcr, 
Sr?— B^nriY.  Yet/lam.    [ChalleBged.] 

CI.  ^Arr.  John  Wolie.    [CbaUeaf  cd.] 

CL  ^'Arr.  Josepb  Wolfe.  (Ha  did  not 
appear,  and  was  said  to  be  no  freetiolder.] 

CLi^Arr.  WiUiam  Smith. 

Cook.  Are  >'ou  a  freeholder.  Sir  f 

Smith.  Yes,  I  am.     [Challenged.] 

CL  of  Art,  £dw-ard  Fen  wick. 

Cook,  Are  vou  a  freeholder,  Sir  T 

^tnxick.  Ves,  Sir,  I  am. 

Cook*  1  do  not  challenge  him. 

67.  oj'Arr.  Then  swear  Mr.  Pcnwiok. 

J  [Which  was  done.] 
ooper. 

CooJT.  Slay,  Sir^Vay  stay  a  little,  where  is 
he?— C/.  id^Arr,  There  he'is.  Sir. 

Cook,  Which  is  the  gentleman  ?  Areyeoa 
fivehoMer  in  London,  Sir  ?— Hwipsr.  Yes,  Sir. 

Cook.  I  challenge  you. 

Hooper,  I  thank  you,  Sir. 

CL  of'Arr.  Nathaniel  Long. 

Cook,  ArejouafreehoUer,8irf 

Xsnjf.  Yes,  Sir. 

Cook.  I  challenge  hin  aa  being  ane  of  sir 
John  Preind*s  jury. 

CLofArr,  The  court  haa  adjudged  that  no 
cause  of  challenge;  therefeiv  I  take  no  notice 
of  it,  but  as  to  a  peremptory  cballeage. 

a.  of'Arr.  Richaid  Chiswell. 

Cook.  Are  you  a  freeholder  in  London,  Sir  ? 

Ckit^iL  Ves^Sir.    [Cballaiged.] 

CL  ofArr.  John  Child. 

Cook.  Hold,  pray,  a  moment ;  I  have  not 
crossed  these  last  in  my  psper,  but  I  challenge 
this  BMi  Si  being  oua  of  sir  J<4m  Pleiad's 
jurv. 

Ur.  BMker.  Yoa  have  had  that  answered 
over  and  ewer  again,  as  no  obpectien  ;  it  is  no- 
thing but  a  peremptory  chsllengu. 

CL  ^'Arr.  WiUiam  Walker. 

Walker.  I  was  one  of  sir  John  FivJud*s  jury. 

Cook.    I  chalifuge  him  for  the  same  rsaaab. 

Att.  Gen.  Bui  that  is  nn  reason  at  alL 

Cook.  Then  I  challenge  him. 

CL  Pf^^p^.  John  Wills. 

Cook.  Sir.  are  \ou  a  freeholder? 

1IV//5.  Yes,  S'r.  I  !ini.    [Challenge.!.) 

CLvfArr,  John  llibbeit. 

Cooi.  Whirh  is  h««  Sirf 

C/.  or'  Arr.  Ho  siaiHk  upea  your  left  hand  : 
the  man  in  the  black  peruki*. 

CV*»fr.   Are  \  oil  w  trcelitiMer.  Sir  ;* 

JiM>€tt.  \\*s.  I  am.Sr.     [t  Ualleiig«>d.l 

C4.  of'  Arr    1  >anii"l  \l  ra v . 

l'!ivJb.  May.  Nk.  aw  you  Mr.  \lra\? 

U'nijr.  Yes,  Sir,  my  lis  me  w  >l  ray. 

i  4V^-.  Ate  YOU  a  frvehokkr  ui  ld«ad\^a.  Sir  * 

irr,:^.  Y.V.  Sir, 

i\x*v.  I  chalhmgv  y\iH.  • 

1t''>ar«  I  Ihauk  y«m  Hir« 

CL^Arr.  J%ihnlNMN. 

VoJt.  Whi«ihialief 

fH%i.  I  aw  the  msB.  ^^ 


CLfArr*  Johnl 

Cook.  I  challenga  him,  as  heii 
John  Freind's  jury. 

Mr.  Baker.  But  yoa  have  hear 
to  be  an  ezceptico  over  and  over. 

Cook.  I  challenge  him. 

CL  of  Arr.  Stephen  BkckwelL 

Cook.  Are  yon  a  freeheUer,  Sir 

BlackmelL  Yes,  I  am.    [ChaM 

CL  fArr.  TVilUam  Hatch. 

Cooii  Pray  give  me  time  to  : 
pray,  who  is  this  man  yen  now  cs 

a.  of  Arr.   WiUiam  Hatch. 

Cook.  Sir,  are  you  a  freeholder! 

Hatch.  Yes,  I  am.    [Ghalleng 

CL  of  Arr.  Henij  Beadle. 

Cook.  Are  you  a  mefaolder.  Sir 

Beodit,  Yes  I  «»• 

Cook.  I  do  not  ezo^t  against  I 
sworn.] 

CL  ^At.  John  Stredwick. 

StredMick.  My  k»rd,  as  1  appp 
no  freeholder. 

L.  C.  J.  IMy.  Why  do  you  a| 

Stredwick.    It  is  my  wifeVi  esta 

CL  of'Ar.  Then  your  wife  has ; 
seems.— iSfreiartcA-.  Y'es^shehas. 

L.  C.  J.  Trefy.  That  is  fteehc 
lur  you  liave  an  estate  for  your  wii 

Mr.  Bakor,  And  after  that  too : 
given  over  to  any  body  else,  ami 
give  it  from  him. 

Cook.  Sir,  are  you  a  freeholdei 
or  no? 

Strtdvick.  I  apprehend.  Sir,  I  8 

Mr.  Baiter.   He  says  he  has  an 
wife*s  life. 

CL  of'Ar.  Then  be  is  a  freehokj 
you  say  to  him  ? 

'   Cooi.  Are  you  posiiire  yeu  are 
in  London,  upon  your  word  ? 

Stredrick.  1  tfiink  nut. 

Mr.  Buker,  Why,  your  wife's  es 
for  your  lite. 

Cock.  My  Lord  Chief  Justice,  i 
ship  pleases,  here  is  a  man  that  sa, 
he  thinks  he  is  no  freehoMer  ;  I ' 
lordship's  judgment,  whether  he 
hohler  or  not  ? 

L.  C.  J.  JiYn-,  Why,  kt  him  j 
if  he  make  a  doubt  uf  vL 

:^:rrdrh:k.   I  am  not  possessed 
mjksrlf. 

1..  C  J.  Trrfv.  Bu:  is  not  y^our 
heiitrix  T 
.^'•rix.ci.    Y'cs,  my  lord,  she 
L.  t\  J.  TnrS.    Tlien  you  are 
fitvhoUl  in  her  riiiht ;   and,  Mr. 
«mn  counsel %i iH  leU  vou,  and  satis 
that »  a  tWehelJ  su^em  for  this 
Mr.  x^c^.  His  wile's  faikcrsci 
her  and  h«r  heir«. 

U  C.  J.  Xreist.  No  fBertial^  it  if 
fwehoM  ii  the  wile  be  Sviay, 
Mr.  Bb&ir,  Ye««  she  ia. 

aif^KWluSaPkaei. 


$ir] 


Jhf  High  Tttasm. 


(Mt*   1  ehalttfife  btm,  is  being  one  of  sir 
Ma  Fiiind^ii j«ry*— Frinctf.  I  Itiank  you,  8ir* 
C/'  *f  Mr*  John  Simmons. 
JUU  0«ii*  We  chftllencfe  him  for  th«  king. 
a.  fAr.  Biobert  White, 
Oew«-  Aw  y©tt  a  freeholder, -Sir  ? 
rililir.  Yet,  I  Uiink  so. 
Ca»4.  Pnjr  tell  me  whether  yoti  ar«,  or  not? 
R'Ailr.  lolevfi  I  think  so,  Sir  [Chftlleng^d.] 
£L^ Ar.  £ilwBrd  Brewster. 
Coof*    WkereisMr.  Brewster?  Are  you  a 
N^older,  Sift  id  London  ? 
Btmtier.  Yea.  Sir. 

CsoJt.  I  chmUengc  Kim.    Pray,  Sir.  I  destre 
likao«r  How  tnatiy  I  have  challeiig|>ed  f 
Mr.  Baker,  Yoii  have  challenged  33, 
C^k.  How  many  besides  those  thai  are  of 
lir  Jtibn  Freiad'&  ju^  ? 

Mr,  B&kfr.  You  hare  but  tvro  more  to  cbal- 
MB^e^  oir. 

9er)*  JhrrmlL    I  thougtit  you  bad  heard  the 
QipiBMaof  the  court,  Mr.  Cook,  thai  it  will  not 
boM  as  a  esase  of  challenge  thai  be  was  of  sir 
ioba  FVeiniPa  jury ;    therefore  thoie  are  all 
ttinoug  the  perernptory  chaMenges, 
I  ye«  can  chaflen^e  but  two  more  in  all. 
.  C  J.  Trtby.    Not  without  cause,  hut  as 
jm^nre  as  vou  can  have  good  cause  against, 
^Ct^fAr.  JaUu  Reynolds. 
CWf.    1  except  Bot  against  htm,      [Was 
p^wii- J 
CI  ^Ar,  Joseph  Brookbauk. 
C«l.    f  have  nothing  to  say  to  hiait      [He 
fiitworii,] 
CI  9fAr,  Adara  Bellamy* 
Mdhmy.  Mv  lord,  I  am  no  freeholder. 
L.  C.  JT  Treht;.  U  hy,  what  estate  hare  yon  ? 
Mr.  Baker,    He  has  estate  enough,  i  know, 
fcrnkic. 
Btiimw,  I  bare  only  a  lease. 
L  e  X  Tt^by.  A  lease  for  years  f 
BtUmnV'  Yes,  my  lord, 
mfkr,  David  Grill 
[  V^ia^  I  am  no  freeholder,  niy  lord* 

fAr,  Willinm  Rawlins. 
^_       1  accept  of  him,     [He  was  sworn.] 
^Ar,  Samuel  RoycroiV, 
Are  TOu  a  freeholder,  Sir? 
%frf^.  Yes,  Sir.     [Challenged] 
Ci,  if  At,  Thomas  Parker. 
Coo£   How  many  have  1  to  challenge,  do 
p««y? 

Q*^  Ar,  But  one,  Sir;  What  say  you  to 
fe  Arkerf 
^Smk.    I  do  not  except  against  him.     [Re 

^  Ar.  James  Robinson. 
I  HaTe  Qotbiug  to  say  to  him.     [^e 

Joseph  More  wood.  [Challenged.] 
Ifrr.    Yo«  have  challenged  all  your 
b%«r  DOW. 
-  ^  At.  My  lord,  we  have  gone  t  ♦rou^jh 
paooifl,  we  must  now  call  Uie  delimiters 
lin.     Thomas  Clark.-— C/or^.  Here. 
fir  B.  Shamtr*    Wm  be  here  wheo  be  was 
I  OfCf  } 


A.  D.  1696.  [SI« 

AU,  Gen,  That  is  nothing,  be  is  here  now. 

Sir  B.  ShoKcr.  But  if  there  be  a  default  of 
the  jury,  and  the  king's  eonnsel  hare  chal-- 
lenged  any  one,  they  ought  lo  shew  their 
cause ;  therefore  we  desire  that  they  may  shew 
iheir  cause  why  they  chsUeoged  Mr.  Simnjons  ? 
*  L.  C.  J.  Trcby,  The  king  hiis  power  to  chal- 
lenge without  shewing  cause  till  the  pannel  be 
gone  through  ;  but  if  there  be  a  default  of  ju« 
rors  when  the  king  challenges,  the  king^s  coun* 
sel  must  shew  cause.* 

8ir  B,  IShowcr.  Here  U  a  dafault  of  jurors, 
my  lord. 

L,  C.  J.  Trebjf^  N<»body  is  recorded  aksp^ 
lutely  a  defaulter}  if  he  c«me&  in  time  enough 
to  he  sworn. 

a.  qfAr.  Swear  Mr.  Clark,  [Which  way 
done.] 

L.  €.  J.  Trehy.  When  there  is  an  apparenl 
default  of  juroi-s,  then  they  must  shew  iheit 
cause  :  bul  here  his  appearance^  it  seem*,  was 
recoi-ded,  and  so  he  was  no  defaulter ;  and  yoa 
might  have  challenged  him  for  cause  still. 

Ct,  of  At,  James  Day. 

Jyfy.  My  name  is  not  James. 

Serj.  DttrnaiL  Then  you  cannot  swear  bim  t 
here  are  three  mistaken  in  their  names. 

L.  C.  J.  Treby.  That  is  in  the  copy  iu  your 
brief,  brother,  it  may  be. 

Serj.  J^amaU,  N0|  my  lord,  the  officers  ad- 
mit it. 

iff e.  Gen,  My  lord,  we  desire  those  gentle- 
men, that  say  they  are  no  freeholders,  may  b^ 
twom  to  that  matter.  [W  hich  was  accord* 
ingly  done.  And  several  of  them  that  had 
Blaj  ed,  did  deny  the  liaving  of  any  freehold 
upon  oath,  and  some  were  gone  away.] 

L.  C.  J.  Trrby.  Pray  take  care  to  estreat 
the  issues,  and  return  greater  issues  the  next 
time. 

Just.  Rokeby.  Truly,  the  court  must  pnl 
some  great  penalty  upon  them  for  trifiiog  with 
the  court  in  respect  of  their  duty  that  they  ow# 
to  the  king  acid  country,  in  "regard  of  their 
estates. 

CI,  of  Ar.  Pray  let  the  officers  be  called  who 
summoned  this  jury,  Mr.  Sherilf.  [Which  wa» 

tj_   nil  !■ 

•  See  the  Case  of  Home  Tooke,  a.  d.  1794^ 
and  of  O'Connor  and  others,  a.  n.  1799* 
Leach*s  Hawkins's  Pleas  of  the  Crown,  b.  J, 
c.  43,  s.  5,  and  the  authorities  there  cited.  Tbtt 
words  of  the  Onlinatio  de  inquisitionibus  (3S 
Edw.  1.)  are,  **  Of  inquests  to  be  taken  befori 
any  of  the  justices,  and  wherein  our  loni  the 
king  is  party,  howsoever  it  be,  it  is  agreed  and 
ordained  by  the  king  and  all  his  council,  that 
from  henceforth,  notWTtJist^^n ding  it  be  alledge^ 
by  them  that  sue  for  the  k^n^,  that  the  jurors  of 
those  inquests,  or  some  of  mem,  be  not  indif- 
ferent for  the  king,  yet  such  inquests  shall  not 
remain  untakeu  for  ttat  cause;  but  if  they  that 
sue  for  the  king  will  challenge  any  of  those 
jurors,  they  shaU  assign  of  their  challenge  a 
cause  certain*  and  the  truth  of  the  same  chal- 
lenge shall  be  inquired  of  according  to  fb« 
cQstom  of  the  cout\** 


819] 


8  WILLIAM  m. 


done.  And  they  examined  concerning^  their 
sunimonin(f  those  who  made  default,  and  the 
issues  of  those,  who  were  recorded  as  defaulters 
were  ordered  to  be  estreated.] 

Then  the  Court  not  hein$(  able  to  proceed  for 
want  of  a  Jury,  Uipa'  ordered  another  paonel 
to  be  reatly  against  Wednesday  next,  to  which 
time,  at  seven  in  the  morning,  the  court  was  by 
proclamation  adjourned. 

Wednesday,  May  13,  1696. 

The  Court  Iwing  met  acconling  to  the  ad  • 
journment,  the  panncl  was  called  over,  and  the 
d^an Iters  recorded,  and  several  excused  for 
absence  upon  sickness,  and  bein^r  out  of  town 
before  the  summons.  Then  Mr.  Serjeant  Dar- 
iiaH  desired,  before  the  Jury  was  called,  to 
move  something  against  the  pannel ;  and  made 
his  motion  thbs : 

Seg.  DamalL  If  yonr  lordship  pleases,  I 
have  somewhat  to  oner  to  you  before  you  gi> 
upon  this  new  pannel,  and  I  confess  I  tiiink  it 
u  my  duty  to  the  court,  as  well^  as  to  the  pri- 
soner, to  state  the  case  as  it  is, '  and  submit  it 
upon  the  reason  of  law,  and  the  authorities 
that  I  shall  offer,  whether  the  procecd'mgs 
upon  this  new  pannel  will  not  be  erroneous  ? 
My  lord,  the  question  is,  Whether,  as  this 
c^ase  is,  the  prisoner  has  had  a  copy  of  the 
pannel  of  his  jury  by  which  he  is  to  be  tried, 
acconling  as  the  late  law  requires  ?  He  had  a 
copy  of  the  former  pannel,  and  upon  that 
pannel  nine  were  sworn,  and  their  names  all 
••ntered  upon  record,  and  made  parcel  of  the 
record.  Thererorc  now  the  question  is.  Whe- 
ther he  can  be  tried  upon  a  new  panned  ?  We 
are  in  a  case  that  rarely  happens ;  and  in  a 
case  of  life  and  death,  i  know  your  lordship 
will  be  careful  not  to  vary  from  the  ancient 
practice,  or  to  make  a  new  precedent,  because 
of  the  consequences.  It  must  be  agreed  in 
this  case,  that  the  old  pannel  upon  which  tiie 
prisoner  took  his  challenges,  and  of  which 
nine  were  sworn,  is  parcel  of  the  record.  Now, 
my  loi*d,  to  add  a  new  pannel,  upon  which 
twelve  more  shall  be  sworn,  aud  all  this  appear 
upon  record,  and  tho  prisoner  tried  upon  the 
last  pannel,  will  not  this  be  error  ?  I  oiler  this 
before  the  jury  bu  called  and  sworn,  because 
we  desire  to  be  fairly  tried ;  aud  we  design  to 
rest  upon  the  fact  in  this  case.  If  it  should 
appear.  That  he  is  tried  upon  a  pannel  that 
is  unduly  made  and  returned,  that  will  be  of 
evil  consequence  one  way  or  other.  And  can 
this  be  duly  made,  if  another  aopear  upon 
record  before  it  ?  And  can  any  body  say  it  is 
quashed  or  abated  ?  Or  can  it  be  so  i*  31  y  lord, 
in  Stamford's  Pleas  of  the  Crown,  p.  155,  it  is 
said,  **  If  any  of  the  pannel  die  after  the  return, 
and  before  tlieir  appearance,  so  that  there  ai-e 
not  enough  left  to  make  the  jury,  yet  the 
sannel  shall  not  be  quashed  nor  is  it  abated, 
but  it  is  cause  to  grant  a  tales."  And  cer- 
tainly, my  lord,  it  is  a  stronger  caae,  when  by 
reason  of  challengef,  which  the  law  givea  the 
priflOiMr  liberty  to  maki^  that  tit  not  taougfa 


Trial  of  Peter  Cook, 

left,  that  there  shall  not  be  a  new  pi 
that  a  Tales  shall  be  granted ;  for 
pannel  might  be  made,  it  cannot  ap| 
were  challenged,  or  wlio  were  admitt 
if  your  lonlship  pleases  to  consider,  I 
tion  of  the  law  in  giving  the  prisonei 
challenge,  is,  that  he  may  have  an  i 
jury  ;  but  that  would  be  prevented  I; 
practice  as  this  ;  for  when  it  has  hi 
vered  upon  the  old  pannel  whom  th< 
chose,  and  whom  he  challenged  upoi 
pannel,  the  persons  challenged  m; 
first,  and  those  that  were  chosen 
omitted,  or  so  postponed,  that  none 
whom  he  thouglit  equal  to  try  him, 
upon  the  jury.*  And  truly,  my  Ion 
rightly  informed,  that  is  the  case 
new  pannel ;  some  of  those  that 
mitteu  and  sworn  are  lefl  out,  am 
them,  1  think,  are  put  last  in  the  pan 
he  thought  equal  men  to  try  him,  an 
whom  he  challenged  peremptorily  ai 
men  in  the  pannel.  This,  my  lo 
case  before  you ;  and  if  this  be  adi 
use  and  end  of  challcnj^es,  which  are 
and  favour  of  life,  woiild  be  defeated, 
authorities  in  this  case,  besides  the  i 
ground  of  the  law,  many  cannot  be 
because  it  is  a  fact  that  rarely  happi 
none  of  the  ancient  practisers  evei 
but  I  find  that  a  Tales  ought  to  be 
so  it  is  said  in  several  liooks,  as  in 
155, 156.  whenever  upon  the  princi 
all  the  jury  does  not  appear,  or  s< 
them  do  not,  that  there  arc  not  enoi 
make  a  jury,  which  is  our  very  cas 
such  case  the  pannel  shall  not  be  q 
abated,  but  a  Tales  granted ;  so  i&  1 
there  the  question  was,  Wht'ther  th 
be  a  greater  number  returned  upon 
than  were  in  the  principal  pannel  ? 
the  difl'erence  was  insisted  upon,  ar 
That  where  it  is  between  paity 
where  lifie  is  nut  concerned,  it  shal 
where  life  is  concerned,  and  the  pi 
power  to  challenge  35  peremptorily 
judge  may  aviura  as  many  upon  tli< 
he  pleases,  that  there  may  beenougb 
after  the  challenges ;  so  that  if  this 
be  not  abated,  and  could  not  be  qu 
a  Tales  might  be  granted  to  coni 
number,  I  conceive  the  prisoner 
tried  upon  this  new  pannel,  but  it  w 
ucous  :  and  1  humbly  submit  to  yoi 
whether  you  will  proceed  upon  it. 

8ir  B,  Sfiou^er,  If  your  lordwhip 
spare  me  a  word  of  the  same  side, 
mission.  We  think  there  ought  to 
an  Habeas  Corpora,  with  a  Tales,  s 
been  before  swoni  being  to  be  p 
jury  now,  and  that  is  tlie  proper  wi 

'^  In  the  Case  of  Perry  and  ail 
1793,  in  this  Collection,  it  was  dci 
whei«  a  special  jury  is  onlered»  th 
cial  jury  struck  and  reduced  teonl 
must  try  the  issut  jointd  btHrltlf 
4 


for  High  Treason. 

1kifriiM€f  10  hk  trittl  iothitciue  ;  the  king's 
1  tfsaunot  expect  we  shoo  Id  prwlace  tnanT 
for  I  believe  thi^  i-^  the  n^coniJ  ul" 
knt4  that  ever  liapi^enrd^  at  least  within 
ONIDary,  th»t  R  U-i^i  tn  treason  ivas  put  (iJT 
*  JW©  il«4^u  Jiir&torum/  ihoufarh  I  have  a  pre- 
«M6fit  th«t  t  thttik  i»  exprPBs  iti  th«  rmBe\ 
hm  we  imist,  in  the  tii^t  pi  ice,  Thai  a  Tal««i 
dMi  lie  ftt  cofntnon-law  in  the  case  of  lifn  ; 
ani  so  the  boi^k  that  Mr.  Serjeant  ctte«l  in 
SUntlbnl  U  express ;  and  then  we  say,  that 
tbitliiwer  which  we  expert,  that  we  are  now 
Mire  justices  of  grao1«l« livery,  is  nolsutfi- 
ckit,  becaitae  the  jiKtices  «t  gaol- <leh very ^ 
gh.  they  do  not  usually  awartl  procesii  hy 
\  of  writ,  but  Wfore  r  heir  con[iing^»  tliey 
nd  the  sheriff  to  have  his  county  ready 
»  and  80  in  tact  it  is  a  parol  pref  vpt  ;  yet 
9thtm  it  is  returned,  then  it  is  entered  upon 
either  *  Prsceptuoi  evi  Vice  Comiti 
*faod  ireoire  faceret;*  or,  *  Ideo  veniat  Ju- 
*nila;*  aud  the  jury  are  entered  upon  record  : 
Ss  that  take  it  to  be  before  Justices   of  gaol- 


Mifery^  yet  the  sheriff  havincr  rcturneil  a 
in 

yoar  eyes,  in  obedience  to  yom*  coro- 


Mtmel 
atniFe 


H,  and  that  being  upon  the  file,  as  appears 


r 


!,  and  that  copy  of  the  }>anne1  being  deli 
to  us  two  days  before  Saturday  lost,  we 
luibly  fiuhuitt  it  to  your  lordships  whether  by 
imsaof  the  common- taw,  and  of  the  late  act 
«f  pariiament,  we  ou^ht  not  to  be  tried  by  that 
^tttsel :  weiosist  upon  it,  that  the  act  intends, 
lad  axpreaslv  designed^  that  not  only  the  pri- 
Utter  ahoulif  have  a  copy  of  the  pannel  that 
4lieiiicriflr  relumed  at  atiy  time  after,  but  that 
WilMitld  be  tried  by  the  panuel  that  wa  bad  a 
espy  of  at  firnl ;  for  it  is  not  said  a  copy  ivties 
fmttm  the  court  shsll  think  fit  to  awaril  a 
|not|Mfor  a  new  pan  net,  but  the  words  of  the 
•eiirc^  a  copy  of  the  jury  duly  returned  bv 
tWahertflT;  now  this  we  had,  and  your  1  orcT- 
ibjp  koows  it  is  DOt  a  returned  ponoel  idl  it 
beta  court,  and  then  it  becomes  part  of  the  re- 
Conl:  my  lord,  1  do  agree,  tbejuitices  in  some 
iMea  bare  quashed  aiid  set  asitle  punnel!i^  and 
I  aod  ordered  new  ones ;  and  I  confei>s 
wm»  an  e^ctraordioary  case  in  the  titue  of 
dHUtlea  the  second^  which  was  upon  the 
IniOt  against  Whitebread,  whi^re,  after 
iW)tiry  chai^fed,  and  evidence  gi re n,  the  jury 
Via  disobarf  ed,  and  a  new  pannel  made  the 
upon  which  Mr.  Whitebiead^ 
corniced;  how  just  or  reguUr 
T  will  Dd  insist  upon  itow,  but  1  am 
Mm  thtr^  were  |fPeat  complaints  of  that  prac- 
tef  ^d  few  preeedaots  can  be  shewn  of  the 
Jilto;  but  be«>ides,  the  parties  ihemvelves  waved 
too  objeetiao  being  takett  against  it; 
wo  iosial  upon  it  in  this  case,  that  this 
upou  record,  is  part  of  the  record,  and  so 
to  Ibe  court:  if  tiie  record  indeed 
to  be  inaile  up  upon  a  Writ  of  Error, 
peritapa  it  would  be  no  Error,  because  it  may 

«  See  in  Ibis  Collection^  tbeCaaa  of  White- 
Ivfad,  fol  7,  pp  79.  120.  dll.  And  the  Note 
a»v«Lr»  |U497* 

\0U  XII J. 


be  they  wouhi  leave  if  ool ;  but  here  itnppears 
tbeie  was  a  pannel  of  record  before  yuu,  ntul 
this  must  cither  be  quashed,  or  altered^  or  coo-' 
tinued  on  by  prooei^s ;  you  have  power  to 
quiL«ih  ill  if  It  he  unduly  returned  by  the  ^he- 
riff.  If  there  be  any  evil  practices  for  pro- 
curing the  pannel^  eiiilier  by  the  ^vrosecutor  or 
tfoe  prisotier ;  if  there  be  no  lreebuldcre»  re- 
turned, or  the  same  Impprn  in  any  other  re- 
fipect  not  tn  be  legally  d««ne  according  to  ihe 
command  or  precept  of  the  court ;  but  becauj^e 
there  is  a  default  of  .<ippea ranee  of  jurors,  no 
panuel  was  ever  quajshed  upon  that  uccount> 
Then  say  we,  if  it  be  nut  quashed,  this  paunei 
must  continue  ;  for,  what  shall  become  of  it  ^ 
Why  should  it  not  continiie  ?  It  is  not  witbia 
the  act  of  parliament  that  gives  the  justices 
power  to  make  a  new  pannel,  as  in  the  case  of 
a  grand  jury  when  they  ^^  guilty  of  con- 
eealments,  or  refuse  to  tind  bilb  upon  great 
evidence,  but  we  have  no  such  caae  betbro 
yoo«  nor  do  I  know  any  such  rule  as  can  reacb 
ttib  I  BO  that,  we  take  it,  there  is  no  diflvreneo 
between  this  case,  as  before  justices  of  gaol* 
delivery,  and  other  justices;  that  process  does 
lie  against  the  jury  ibat  does  not  appear  even 
io  treason  and  felony,  there  is  no  dispute  ;  and 
it  is  very  properly  so,  if  it  be  before  commis- 
sinners  o(  Oyer  and  Terminer  ;  first,  a  Venire 
Faf^ias,  and  than  upon  default,  a  Habeas  Cor- 
pora, that  b  tlie  proper  way;  then  take  it 
before  justices  of  gaol-delivery,  there  it  is  en- 
teretl  upon  record,  <  Praeceptum  est  Vtce  Co- 
*  miti,'  Sec.  and  here  is  a  pannel  returned  by 
virtue  of  this  precept,  atid  some  of  the  jury  tlo 
not  appear,  and  so  there  ace  not  enough  to  try 
the  prisoner  after  a  great  many  sworn  aud 
challeug^cd,  and  this  entered  upon  recorit 
WhatsTiall  become  of  that  patmel,  it  cauii^ 
be  quashed  nor  aliated  ?  My  lord,  there  ia 
case  that  does  warrant  that  opinion  of  a  Tales 
in  a  case  of  felony ;  and  if  there  may  be  a 
Tales,  then  tbere  may  be  a  Habeas  Corpora, 
and  there  aj-e  directions  how  the  jurors  shall 
be  sworn  again,  upon  their  appearance  on  tlie 
Habeas  Corpora,  and  that  is  W barton's  case  in 
Yelverton  S3. 

Juit  Powell^  jun.  Do  not  dispute  thai ;  it  ts 
plain f  tliat  a  Tales  does  lie  in  felony,  upon 
a  commission  of  Oyer  and  Terminer  ;  but  eaci 
you  shew  me,  sir  Bartholomew,  any  where 
tfiat  upou  a  commission  uf  gaol-delivery  a  Tales 
does  lie  f 

Sir  B.  Shifwer.  ISir,  I  can  only  shew  the  rea- 
son of  the  law,  and  1  cannot  find  that  does  coo* 
tradict  what  we  now  contend  for. 
.  Ju9i,P0welL  I  tell  you,  sir  Bartholomew, 
there  is  no  Tales  but  with  a  Habeas  Corpora 
to  bring  in  tbe  first  jurors,  and  lliat  cannot  be 
upon  a  parol  precept  on  a  commission  of  Oyer 
and  Terminer,  there  goes  a  Venire  Facias,  which 
ia  a  writ  upon  which  the  Habeas  Corpora  may 
be  grounded,  but  theie  is  no  Venire  Facias  upon 
a  oommission  of  gaol- delivery* 

Sir  B.  Sh<mer.  Why  should  there  not  be  m 
precept  in  nature  of  an  Habeas  Corpora  for  a 
jury  tcturoed,  on  a  precept  as  well  as  on  a  wiit  f 

Y 


323]  S  WILLIAM  UL 

Just. Pore//.  No,  it  uever  was  done;  the 
commission  of  gaol-delivery  is  a  general  com- 
mission  that  d<^  authorize  the  ilicriff'  to  im- 
pannel,  and  hare  a  jury  read  v  at  the  day  ap  • 
pointed  fur  the  delivery  of  tne  gaol  to  try  the 
prisoners  ;  it  dolh  import  in  itself  a  g^eueral 
precept  for  thai  purpose,  before  issue  joined, 
which  the  sheriff  cannot  do  in  the  case  of  a 
commission  of  Oyer  and  Terminer,  but  must 
ha?e  a  writ  of  Venu«  Facias,  atler  issue  joined. 

Sol,  Gen,  (Sir  John  Hawles.)  1u  all  cases 
that  they  cite,  there  is  a  writ  of  Venire  Facias, 
upon  which  the  after- process,  by  writ,  may  be 
grounded ;  but  here  is  no  ibundation  for  any 
future  process  by  writ,  because  it  is  only  by 
parol  precept. 

An,  Gen,  Sure  these  gentlemen  dou\  think 
what  they  say  ;  the  paniicl  is  not  part  of  the 
record,  and  there  is  no  record  of  it ;  nothing  but 
the  clerk's  entry  in  a  paper,  or  note,  fur  bis  own 
memorandum. 

Just.  Rokeby.  brother  Damall,  have  you 
any  book  that  says,  justices  of  gaol- delivery 
must  awani  a  talcs  U|K)n  default  of  the  jurors*? 

Serj.  DtirnaU,  No,  my  lord,  I  cannot  say  so. 

L.  C.  J.  I'rehi^,  Suppose  all  the  jury  had 
been  challenged,  or  died. 

Just.  FoatlL  Hiere  could  be  no  quashing  of 
it,  but  it  would  fall  of  itself,  for  want  of  a  jury. 

Just  Rokeby,  If,  according  to  your  doctrine, 
we  must  keeii  to  the  first  pannel,  the  conse- 
quence would  be,  there  wouki  be  no  trial  at  all. 

Sir  B,  Shower,  Stamford  makes  no  difference 
that  I  can  see. 

Att»  Gen,  But  these  gentlemen  have  been 
told  the  difference  upon  whicli  this  matter  is 

grounded  ;  a  Tales  cannot  be  without  a  Hal>eas 
orpora,  and  a  Habeas  Corpora  cannot  l»e 
without  a  Venire  Facias  ;  but  a  commission  of 
Caol-delivery  cannot  award  a  Venire  Facias, 
because  that  is  not  to  be  awarded  till  issue 
joined. 

Baron  PouU.  The  rrtiirn  of  thiis  pannel  be- 
fore justices  of  gaol  •delivery,  is  an  act  of  the 
aherifl*,  by  virtue  oi'  tiio  commission,  and  nn- 
thing  apjiears  of  re«'ord  till  the  jury  are  sworn. 

Just.  Rokthy.  They  object  that  it  is  upon 
record. 

L.  C.  J.  Trcly.  By  tlie  record,  they  mean 
the  clerk's  note. 

Att.  Gen,  If  you  please  to  look  upon  the 
indictment,  there  is  no  entry  at  all,  and  that  is 
all  the  record  hcfure  you. 

Just.  PoneU.  Does  it  appear  upon  record, 
that  nine  were  swoni  ? 

Mr.  Baker.  No,  there  is  nothing  upon  the 
record. 

CI,  ttfAr,  It  does  not  appear  till  the  record 
is  made  up,  and  nothing  is  entered  till  Vi  are 
sworn. 

Serj.  Darnall,  There  will  be  a  great  incon- 
venience, if  a  pannel  may  be  changed  at  any 
time. 

Just.  Powell,  This  is  a  case  that  never  hap- 
pened before,  and  may  be  never  may  again. 

Sir  B,  Shower,  The  law  will  hold  the  same, 
in  case  it  docs  appear  upon  record,  w  well  as 


Trial  of  Peter  Cook, 

where  it  does  not :  but  we  tay,  a  punc 
ed  in  court  is  a  record. 

Just.  Powell,  No,  it  will  not;  liecau 
a  jury  does  appear,  and  the  twelve  ar 
then  it  lieeomes  parcel  of  the  recoi 
therefore  Whitebread's  case  was  quite 
case,  and  was  indeed  held  to  be  an  extra 
case  ;  but  that  comes  not  up  to  us,  fo 
full  jury  was  sworn,  and  evidence  give 

Serj.  Datnall,  It  may  be  the  same 
not  be  returned. 

Just.  Porccll.  But  if  you  have  a  coj 
jury,  you  are  ut  no  mischief. 

Kerj.  Durnall.  Some  that  were  in  tl 
pannel  arc*  quite  left  out. 

Sher.  Buckingham,  There  arc  none 
but  what  were  not  freeholderB,  that  I 

Baron  Poais.  He  says  the  fiict  is 
as  you  have  alle<lged  it. 

hilier.  Buckingham,  And  Mr.  Serjei 
nail  has  been  pleawd  to  reflect  upon 
we  had  packed  this  iury,  by  altering  t 
of  the  names,  which,  my  lord,  we  d 
deny,  and  we  only  let\  out  those  that 
freeholders. 

Baron  Powis,   The  sheriff  says  he 
postponed  any  of  them,  and  only  lef^ 
that  were  not  freeholders. 

Serj.  Darrall,  If  the  law  were  as  ] 
us  as  the  fact  in  that  case,  we  shoul 
very  good  case  of  it. 

^hcT.  Buckingham.  Mr.  Serjeant 
both  the  pannels  here ;  they  may  bee 

Serj.  Varna  It.  I  said  no  harm,  M 
nor  meant  any  reflection  upon  you. 

Slier.  Buckinfiham.  Mr.  Serjeant  w: 
to  sa}',  the  excepted  men  were  put  in 
and  those  that  were  sworn  were  put  I 

L.  C.  J.  Trtby,  There  is  nothing 
the  ohjection. 

Just.  Powell.  Really  because  it  w: 
as  ii  reflection,  it  will  Le  proper  for  i 
to  clear  it. 

Sher.  Buckingham,  My  lord,  the 
give  to  it,  iM,  That  particularly  one 
sworn  Ia.st  time,  is  now  at  the  very  I 
of  tlie  pannel ;  and,  in  general,  they  ) 
promiscuously,  without  any  design  o: 
the  \eii9t.  He  says  we  have  lefi  out 
served  before :  I  solemnly  protest,  I 
one  man  returned  upon  the  last  pan 
left  out,  unless  it  appeared  that  he  u 
holder  ;  and  we  had  no  reason  to  pnl 
that  we  know  could  not  serve. 

Seri.  Darnall,  That  cannot  appi 
that  they  are  not  freehoklers, 

Just,  liokehy.  But  it  appears  to 
thei-etore  he  did  well  to  leave  them  oi 

Sher.  Buckingham,  Whati  say,  I 
to  give  upon  my  oath. 

Serj.  Durnall,    I  say  there  is  oi 
Beadle  left  out,  and  he  vtaa  one 
sworn. 

Sher.  Buckingham,  I  will  not  say 
ticular  man  ;  I  protest  thai  I  dkl  nol 
was  letl  out ;  if  it  b«  so,  it  was  bj 
for  I  know  Mr.  Beadle  f ery  well,  i 


3J5] 


Jbr  High  Treason. 


A.  D.  1696. 


[3S6 


bim  to  be  an  honest  man,  and  very  well  aflected 
til  the  gnvernment  as  any  man. 

Serj.  Darnall.  We  desire  to  be  tried  by  men 
that  are  honest  and  well  affected  in  the  go - 
verament. 

Sher.  Buciungkam,  There  you  hare  orthem. 
Sir. 

Sen.  Dariuil/.  Those  that  were  sworn  are  put 
bit  of  all,  and  there  is  not  abore  one  of  them 
tbtt  is  within  possibility  of  coming  on  again. 

Sher.  Buckingham,  It  will  appear  by  Mr. 
Cook's  challenges,  and  the  other  pannel,  that 
tbey  stood  late  before;  and  Thomas  Clark, 
who  was  sworn  the  last  time,  stands  tenth 
mm  upon  the  pannel. 

Serj.  DamalL  He  was  sworn  after  we  had 
Sooe  through  the  pannel,  and  took  all  our 
challenges^  not  appearing  at  first. 

Sber.  Buckingham,  I  tell  you,  tbey  stand  for 
the  most  part  as  they  did,  for  ought  I  know. 

Seq.  UamaU,  There  is  but  one  in  threescore 
aad  ten,  that  can  be  sworn  now,  of  them  that 
were  sworn  before ;  and  there  were  nine  of 
Ihtm  then  sworn. 

Att.  Gen.  That  is  a  mistake.  Indeed  there 
are  a  great  many  added  to  the  pannel,  because 
there  was  a  defect  the  last  time,  and  therefore 
DOW  they  may  perhaps  stand  later. 

Seq.  DamalL  1  do  not  speak  to  reflect  upon 
tbesberiffii:  I  go  according  to  my  instmc- 

tiODS. 

Just  P&weil,  if  it  had  been  so,  it  had  been 
well  enough  ;  for  yon  must  be  contented,  thn 
court  musl  tike  it  as  the  sheriff  returns  it,  and 
yoo  have  a  copy  of  it. 

Att.  Gen.  Here  are  four  of  them  that  ^rere 
sworn  before,  that  stood  above  sixty  off  in  the 
oUjpannel. 

Sher.  Buckingham.  The  first  man  that  was 
sworn,  Mr.  8herbrook,  stands  within  the  first 
twdve  now,  as  well  as  before. 

Jost.  Pcwell.  If  they  had  been  all  new, 
there  had  been  nothing  in  that. 

JnsL  Rokebv.  Truly,  I  cannot  see  hut  that 
Ihe  sheriff  hatn  done  like  an  equal,  just,  fair, 
ttd  honest  officer. 

Att,  Gen,  Th«y  may  challenge  as  they  will. 

'LC.  J.  Tre6y.You  are  to  consider,  that  this 
ha{fpeiis  because  you  run  out  as  far  as  yonr  nt- 
■oil  number,  that  time  vou  challenged  35 
peremptorily,  and  divers  others  for  cause,  so  as 
Mt  lo  leave  enough  for  a  jury  ;  and  from  that 
time  arose  a  necessity  of  increasing  the  num- 
ber of  the  pannel. 

Seij.  DamalL  It  was  our  client  that  chal- 
lenged them,  we  do  not  advise  him  whom  to 
chdienge. 

Just.  Rokeby.  But  you  mus^t  take  the  con- 
Hqoehce  of  it,  which  causes  this  addition  to 
the  pannel. 

L.  C.  J.  Treby,  What  do  ynu  complain  of  ? 
Tbey  that  are  returned,  are  put  in  the  same 
wier  u  they  were  before  ;  they  that  were 
sworn,  were  (for  the  most  part)  late  in  the 
pnOel  then,  and  so  they  are  now.  I  do  not 
"Qd  any  thing  done  to  the  prejudice  of  the  pri- 


"Od  any  thing  d< 


Serj.  DamalL  If  the  christian  names  had  not 
been  mistaken,  there  had  l»een  perhaps  enough 
to  have  l>een  sworn. 

L.  C.  J.  Trelh/.  That  is  a  good  ar^ment  for 
a  new  pannel,  because  the  christian  names 
were  mistaken  before. 

Just.  Powell.  It  was  bv  defect  of  jurors,  and 
therefore  there  was  an  absolute  necessity  of  a 
new  pannel. 

L.  C.  J.  Trebif.  I  am  of  the  same  opinion. 
Wharton's  case  is  well  known  :  It  was  much 
cited  as  to  another  point  in  Bushel's  case.  It 
was  a  trial  at  the  King's-bench  bar  at  West- 
minster by  a  jury  of  Kent,  upon  an  indictment 
of  a  mnnfer.  And  I  think  you  say  the  case  of 
H.  7.  was  between  party  and  party  in  appeal. 
And  I  believe  Stamford's  discourse,  in  the  pkct 
cited,  relates  chiefly  to  appeals. 

I  shall  not  deny  that  a  Tales  may  possibly 
be  upon  an  indictment  before  justices  of  OyPT 
and  Terminer;  though  it  is  not  usual,  nor  d# 
you  shew,  or  our  experienced  clerks  know  any 
such  precedent.  I  agree,  that  in  the  men- 
tioned cases  a  Tales  was  proper ;  for  in  both 
cases  (viz.  of  Appeal  and  Indictment  removed 
into  the  King's- bench),  the  process  for  the 
jury,  was  as  it  ought  to  be,  by  writs  of  Venire 
Facias,  &c.  upon  which  a  full  jur^  not  appear- 
ing, there  must  be  a  Tales.  But  m  proceeding 
to  trial  before  justices  of  Oyer  and  Terminer  on 
such  indictment  as  is  here,  though  I  will  not 
say  but  they  may  proceed  by  writ  of  Venire 
Facias :  and  the  usage  is,  that  after  (and  never 
before)  the  prisoner  hath  pleaded  not  guilty, 
there  goes  a  precept  to  the  sherifl,  under  tjie 
seals  of  the  said  justices  of  Oyer  and  Terminer, 
returnable  at  such  da}*^  as  the}'  shall  adjourn 
to,  for  returning  a  jury  to  try  it ;  (as  was 
done  lately,  upon  ailvice,  in  the  Case  ot  Rook- 
wood,  Jkc.)  and  upon  the  return  of  that,  if, 
after  challenges,  there  are  not  enough  left  to 
make  a  jury,  whether  those*  justices  shall  issue 
a  precept  in  nature  of  a  Habeas  Corpora,  or 
Destring»<i,  with  a  Tales,  or  another  preceut  in 
the  same  form  ns  before,  and  without  taking 
.notice  of  the  former,  is  a  question  not  in  judg- 
ment before  us.  For  we  are  about  proceeding 
to  a  trinl  on  an  indictment  in  this  court  of  gaoH 
delivery,  (which  is  the  court  wherein  generally 
all  capital  crimes  are  tried,  as  well  at  this  place 
as  at  the  assizes)  and,  I  think,  here  cannot  be 
a  Tales  ;  I  am  sure  it  is  not  necessary.  For, 
first,  Here  is  never  any  writ  of  Venire  Facias, 
'^f.  Secondly,  Nor  ever  a  precept  for  return- 
iMgajuryto  try  a  particular  issue:  but  this 
cuiu-t  taCes  the'pannels  of  juries  returned  by 
the  s'.icnlf,  wiiljout  any  particular  precept  to 
him. 

The  course  (»f  proceeding  by  virtueof  a  com- 
mission uf  gaol-delivery,  which  is  the  law  in 
this  case,  is  this,  viz.  There  is,  aiifeoedent  to 
th(!  coming  of  the  justices,  a  bitneral  command- 
m«-nt  or  precept  inai'o,  in  writing  to  theslieriiT 
bv  the  paid  justice?:,  to  rvturn  juries  against 
tfceir  comings,  for  the  tryini^f  '.fall  and  srogular 
prisoners  in  their  paol,  whether  they  have 
pleaded  before,  or  ihall  after.     And  tor  that 


I 

I 


I 


»WltLIAM  m. 


|iiirDO0c  it  re<)uires  the  sberifT  to  summon,  out 

of  Jl  parts  oi  liis  country  whence  the  |>risoneWi 
oocne,  a  ^'tat  miTiibcr  of  tV^ehoItlers  not  a^kin 
to  the  priioiieni,  ta  be  at  the  time  mid  pUye  ap- 
^obtrd  for  biiliJmi;  the  court.  The  sheriff,  hy 
rirtue  af  this  g^cneral  previous  precept,  suin- 
moiifcth  riinnj  for  jurors,  and  prepares  divers 
screm]  pan  Dels  of  their  natne«,  either  at  first, 
or  afiervvanlsj  as  appears  necessary,  and  re- 
turoeili  iint\  dehvert^h  io  one  or  more  of  these 
jMUUids,  tram  titno  to  time,  as  the  courl  does 
need,  and  enW  for  any  :  this,  we  kaovv,  in  fact, 
h  rreqi)«mliy  d^ne  wheie  the  ae^bions  of  gaol- 
deliverr  huta  aevenl  days,  and  there  is  occa- 
Bjon*  Tboug'h,  lu  siippositMHi  of  law,  all  these 
oannels  are  returneilj  and  the  triali*  thereupon 
liad  the  farKt  day  of  the  sessions  -,  and,  to  1»vf , 
it  is  intLndcJ  to' be  but  ihat  oue  day  only.  The 
return  of  this  precept  la  thus,  rii.  *  ^xecoiu) 

*  iitiua  Piiecepti  patct  in  qiiibu^dam  Paneliis 

*  huic  prteceuio  annexi^,'  and  the  panoels  are 
ftuauxud.  and  there  are  ofku  filed  here  divers 
paoivek  upon  the  same  (reneml  precept, 
til 00 ^h  ^omvUmea  but  one.  ThcKe  imoncU  are 
ihu^  delivered  into  court,  and  a  jury  taken  out 
of  them  as  4ht^re  is  occasion,  oaly  upon  a  Parol 
Ai«'ard,  ihat  i^,  barely  the  court's  calliog  for  the 
^Atuey  >viihotil  writ  or  prcoept  in  writip^*'^  or 
giving  any  day  for  the  ooing  it*  For  this  pr«>- 
^^ediugis  h/mtediate,  for  ibespeedy  delifery  of 
lirtsotMfrs;  and  tlie  entry^  after  seitiug  forth 
that  the  phioner  beiafr*  arraigned  pleads  not 
Ipoihy,  i9»  *  Ideo  immedtaio  veniat  iwle  Jurata/ 
or  *  fiat  inde  Jurata/  Ami  lliis  court's  being 
instituted  for  the  spee«1y  deliver^'^  of  prisoners, 
W)d  warnings  beiog  given  loog  before,  of  their 
coming,  are  the  causes  why  it  has  been  always 
hdd  wittiout  daubt^  that  justioea  of  ifaoNeii* 
very  inigiit  inquire  and  try  tlie  same  day. 

If  it  fall  out,  that  by  reason  of  defaults, 
deaths,  or  cliaUeoge?,  there  <:annol  be  a  full 
jury  had  out  uf  a  pannel,  (ns  here  there  ^vanted 
three)  which  is  an  accident  that  the  court  can- 
not kn'»w,  till  they  haire  gone  through  the  pan^ 
oel ;  I  think  in  this  case,  that  pannel  goes  for 
nothing,  is  utterly  tost  and  void,  and  to  be  ca.4t 
•way  i»r  cancelled  :  for  it  does  not  answer  the 
award  of  the  court,  which  was  to  have  a  jury 
to  try  the  prisoner  presently.  It  is  meant  an 
efiectual  pannel  that  shuum  afford  a  full  jury 
ol*  twelve  unexceptionable  men ;  ami  every 
paoni'l  that  comes  short  in  this,  is  to  be  laid 
aside  as  a  void  thing  ;  and  then  the  court  tak^ 
and  makes  use  of  another  immediately,  which 
may  not  be  defxcient^  whereby  the  award  is  ob- 
aerved,  and  the  present  servioe  dispatched, 

Ohjecti&n.  It  is  objected,  That  I  he  old  pan- 
nel is  (larcel  of  the  record  i»  court,  and,  upon 
that,  nine  were  swuro,  nnd  their  names  are  dll 
entered  upi>n  record  j  and  now  to  add  a  new 
psoDCt,  U]ion  which  iweKe  shall  be  sworn  and 
try  the  prisoii^-r ;  all  ilim  appearing  upon  re- 
cord, it  will  he  error. 

An$9etr.  Thi.4  Objection  starnls  upmi  two 
mwiftkfls,  both  aris*oM  from  not  obNerving  the 
^liitrtthco^Mftwieu  preccpu  and  paooeU,  in  a 


court  of  Gaol -delivery  and  Ventre  Ftottf,  or 
precepts  and  pannels  in  other  couils. 

1.  It  supposes  that  here  wdl  he  two  MOBili^ 
which  will  appear  to  relate  to  the  trtlu  of  ihto 
prisoner,  Mr.  Conk, 

3.  It  supposes  U^at  both  ibeM  wUI 
records,  nr  parcel  of  tbo  record  ici  court. 

[f  either  of  these  supp^ioliB  tMnore  to  hm 
misrtake,  it  will  destroy  the  «l{|eotioii.     1 
botli  are  mistakes. 

1,  Hire  is  not,  nor  will  be,  nay,  thcrt 
ought  not  to  be  any  punnel  purportiu't;  to  \m 
retririied  for  the  trying  ^i  hit.  Cook,  or  waf 
pBrticular  prboner  or  prinoners.  For  the  pre* 
cepi  in  this  case  is  (not  like  a  Venipe  FaniM^ 
which  always  reapects  a  partioolar  isMM'ke* 
tween  parties  tberehi  oaniedi  but)  g«nenl«  fo« 
quiring  the  shenfTto  retuiu  juinrs  eoOQ^  !» 
try  all  the  prisoners,  not  immicig  any. 
the  relnrn,  which  k  the  ansvver  ui  it  by  a  ^ 
ne)  or  pannets,  is  a&  general ;  the  title  of  ow|d 
pannel  Untig  *'  Nomina  juralor*  ad  triaodoA 
pro  domino  rege,'  and  no  more^  or  *  nooMM 
joraiorum  ad  triandum  inter  ilom.  Pi^ggta  it 
prisiOniir' ad  harram/  without  nntuing  am  of 
the  prisoners,  and  it  were  absurd  if  itwcuJme 
other  wee :  for  the  precept  ^(MA  to  tbe^ 
before  the  sessions,  and  bis  retuni  is 
to  be  made  ot  the  beginning  of  the 
when  it  is  not  known  who  of  the  prtvuneri 
be  indicted  ;  or,  if  indicted,  who  will  fieii 
not  guilty,  or  guilty,  or  a  [HirdcMi,  or  «lfatr 
plea. 

When,  for  the  trial  of  a  .pttrticalar  prinoMi 
(or  divers  prisoners  that  are  tliottght  fit  lo  km 
put  iipon  trial  by  the  same  juoy),  a  jury  ia 
about  to  be  taken  out  of  any  pannel,  the< 
as  he  goes  along,  may  take  a  note  ui  ^  ^ 
of  the  name  of  every  one  that  is  sworn  ;  nr  bt 
mvkj  (and  usually  doth)  write  rur.  on  the 
nannel,  against  the  name  of  every  one 
but  Ihb  note  or  mark  is  no  part  ol*  the 
it  is  not  €x  instituiion€  kgit,  it  is  but  a 
tary  menriorandum  for  the  hdp  of  bia  ni«BH 
If  he  could  safely  trust  to  the  strength  «lf 
memory,  he  neeil  not  write  at  all  ou  ihiaotf 
sioD  ;  I  mean,  not  till  a  full  jury  i%  f worn,  i 
try  the  prisoner.     But  then,  indeed,  the  t 

must  (from  bis  notes  or  memory)   write 

name  of  all  the  twelve,  entering  ibem  omlb* 
record  of  the  indictment,  in  this  maimnr,  ytti 
just  alter  the  *  Ideo  ioMne^liat^  veniat  i 
'rata  coram  prufatifi  justic*  ^.  nctdtiiff,  * 
•juratores  juratae  illius,  Sec,  acih  A.  B.  Ai 
*  dicunt.  Sec*    And  it  is  by  thisonly,  that 
names  of  tboAe  that  are  ewom,  isoroe  i 
record  ;  and  it  is  this  entry  upon  the 
the  indictment  ak»ne,  that  is  tne  reoQ 
shews  who  were  jurors  aworn,  to  try  thn, 
that,  or  other  pri«ioner  or  prisoners* 

So  that  if  the  okl  pannel  were  filtit^ 
were  a  record,  ss  the  |!riaoner's  eeunati 
•ttppfj«e^  yet  it  w<Krtd  not  thereby  be  made  i 
pear,  that  the  said  paaoel  was  relumedt 
used  for,  or  m  order  to  tbe  thalof  ibii 
tuner. 

'X.  The  old  pannel  is  not  filed  among  tiM  Ji* 


;in40ji^ 


329} 


for  High  Treatun. 


» 


of  the  court,  nor  ouglit  to  be.     VVittfQ 

I  pannet  docs  not  produce  «  jury»  the 

may  and  lue  to  throw  it  by  «i  a  useless 

Baty  how  jer  they  use  ir,  we  cvnuot 

low  it  to  be  » record.     It  was  received  de  l^ne 

ft  is  abortive  and  comes  to  nothing',     Aod 

ia  not  every  thing  that  passeth  in  court  in 

lo  a  record,  that  comes  to  be  so.     A  fri' 

that  is  rejected,   13  not  reoorded. 

'nt  or  biU  of  Indictment,  before  it  is 

i,  ia  not  a  record  :  And  if  an  ignoramus  be 

netunied  upon  m  bill  of  indictment,  it  never  can 

ke  m  iv^rd  ;   and  thereupon,  the  clerks  do 

■oumlimga  Ihruw  it  away^  though  sonietiines 

ijaev  ^"^^  '*  -nd  put  it  on  the  tile,  mi\y  taking 

carv  ;    but  it'  they  do  forget  to  cross 

il»  yt;  *. .. .- . .  ^  j"€coriK 

By  ail  this  it  is  apparent  how  graat  the  di fie- 
rence  is  between  a  precept  and  pan  nets  in  tbta 
muU  >&d  a  Venire  Facias  and  a  pantiel  re- 
tnrned  thereupon,  which  is  ever  issued  a1\er 
iMie joiotid,  and  doth  always  naention  tlie  par- 
ikalar  pnflies  and  matter  it  relates  to^  and  is  a 
Tvcsrd,  ami  a  gmund  for  an  If  iibeas  Corpora 
With  a  Tales,  to  be  returnable  at  a  certain  fa- 
tore  day.  Buti  in  this  case,  tn  this  court,  it  iK 
qjttte^thevwioie. 

Hir  B.  Hk^imer,  Tbpo,  my  lord,  since  there 

iisnew  paimet,  we  hope  we  stand  in  the  same 

upon  I'm-  art  of  jjerhameut,  to  take 

IS  la  t  ii«?nt  before  this  jury 

as  we  til  Tjie  other  jury  sworn, 

«iiee  ill  that  ia  quite  aet  estde. 

LC.  J*  Treby.    Yetj  ttu^y,  I  think  th&t 

in.  Oen,  But  thflie  gaoltefnen  would  have 
illi0Wtll  ta  have  given  notice  of  their  excep- 

8ir  B.  Shower.  My  lord,  1  shall  not  staud 
^^m^ao  €9Bo«filion  wliieh  1  think  1  might  take 
rword  *  Turmai^'  in  tlie indictment,  which, 
'  it  be  truop^  of  meUf  or  horsaa,  or  what 
iti%doe»not  Hppear  ;  but,  I  think,  wc  have 
li  exception  to  the  chief  overt-act  laid  in  the 
Adk^ment,  and  that,  we  preanme,  il'my  brief 
kavigiit,  will  be  sufficient  to  set  aside  this  in* 
dictmeiit  i  that  Mr.  Cook  did  agree  with  other 
trsiiam  to  send  Mr,  Charnoc'ic  into  France  to  the 
laid  late  king  Janics,  and  kin<^  James  is  never 
ttHMlDiMd  before  in  all  ilie  iudictntent ;  that  is 
ilMaifption  that  we  have,  tliat  there  is  no 
bit  Iduiff  «lam«e  mentioned  in  the  indictment 
Itfti^lEia.  if  my  copy  be  right ,  if  it  be  other- 
wiBfr,  I  suppose  they  will  tiiid  it :  it  is  laid,  That 
Mr.  Cook  di<l  agree  tn  send  Cliartioclc  as  a 
maiacnger  into  France,  *  Eidem  mi  per  r^i 
'  JacotfO/  and  no  *  Rex  Jseohub'  la  nientioned 
Nibre.  Then  there  is  another  exception,  and 
that  ia  this:  they  come  and  say,  That  wheraaa 
k  a  war  with  France,  which  is  only  in 
ueut  by  way  of  recital  or  rehearsal 
iry,  *•  Qoad  cum  jter  magnum  teuipus 
bit  M  modo  sit,'  &c,  Mr.  Cook,  the  pre- 
(knowings  did  compass  and  i murine  the 
i4l«Ath|  and  did  ail  he  re  to  the  said  king's 
wmtim  flueb  a  day.  Now,  my  lord,  1  do 
ttektel  lliif  tm  never  be  maintainetJ,  for 


A.  D.  1696.  [S90 

that  '  Gum  quoddam  bellum/  (Sec.  being  an 
historical  narrative,  is  ikfI  positive  enough: 
for  adhi*ring  to  tbe  king^s  enemies  being  one 
of  the  treasons  laid  in  the  charge,  there  ought 
to  be  a  war  at  the  time  of  the  adbe^iion,  and 
of  neoessity  then  that  ought  to  be  presented  by 
the  jury  ;  for  though  your  lordships  can  judi- 
cially take  notice  of  war  or  peace,  yet  you 
cannot  take  notice  of  it  at  such  a  particular 
time,  and  the  reason  is  from  the  notion  that  is 
in  my  lord  Coke  in  his  third  Institutes,  cap. 
Treason )  That  adhesioos  to  rebels  is  not  ad- 
hesion to  the  king's  enemies,  for  a  rchel  is  not 
said  to  be  an  enemy  ;  but  tt  must  be  adhering^ 
to  such  an  enemy,  as  between  whom  and  the 
king  there  was  war  at  that  time ;  and  ccoae^ 
queotly  it  ought  to  be  more  positively  averred 
in  the  inrlii^ment  than  it  here  is ;  but  as  to  the 
overt-act  of  Mr.  Cook^s  consulting  and  agree^ 
ing  to  send  Charnock  over  to  the  said  late lun^ 
James,  to  give  him  notice  of  what  was  ap-m 
upon  between  them,  when  king  James  is  not 
teamed  betbre,  that  can  never  be  got  over,  wHti 
submisvioo. 

Mr.  Baker.  Jt  is  a  mistake  of  your  oopy^ 
sir  Barthobroew  Shower. 

Att,  Gen*  I  liave  looked  intothe  record,  and 
it  is  *"  Jacobo  secundo  nuper  regi,'  not  *  dicto.' 

8ir  jB.  Shower,  Then,  ^vith  submission,  my 
lord,  they  cannot  try  us  now,  for  we  ought  to 
have  a  true  copy  of  the  indictment. 

Mr.  Baker*  Upon  daomnd.  Btrt  you  oaver 
demanded  it* 

Sir  B,  Sfumer,  *Vea,  it  waa  demaoded. 

Mr.  Baker.  Who  demanded  it? 

8ir  B,  Shower.  Our  solicitor  Burleigh. 

Mr»  Baker,  No,  he  did  not  ^  I  gave  it  hSm 
ofiiciouBly* 

Ait,  Utn,  With  submission,  my  lord,  it  u 
no  objection  at  all,  tliet  their  cofjy  t»  wrong. 
That  should  have  been  before  tbe  prisoner  had 
pleaded;  for  the  words  of  the  act  are,  That  he 
sliall  have  it  so  many  days  before,  to  enable 
liim  to  pleuilp  and  he  cannot  be  pat  to  plead  un* 
less  he  have  a  copy  of  the  indictment  so  long 
before  ;  and  at  Uook wood's  trial  it  was  said  by 
the  court,  it  could  not  be  alledged  afWr  plea 
pleaded. 

Mr,  Burleigh.  The  copy  was  gif ea  to  m# 
publicly  in  court. 

SoL  Gen.  Why  did  not  your  solicitor  coio* 
pare  it  with  the  iudi«:iment? 

Att,  Gen,  They  might  have  compared  it  by 
the  clerks  reading  it  to  them  ,  but  they  will  not 
admit  the  prisoner's  solicitor  to  »ee  the  original, 
beciiuse  the  act  expressly  says  they  shall  not 
have  a  copy  of  the  witnesses  names, 

8ir  B,  Shower.  The  officer  is  10  deliver  a  true 
copy  of  the  indictment, 

Att.  Gen.  No  :  the  parly  is  to  demand  it  by 
himself  or  bis  agent,  and  then  be  is  to  have  it  ; 
and  if  he  be  denied,  he  ought  to  apply  himself 
to  the  court,  who  will  order  I  be  delivery  of  it  ; 
but  we  stand  upon  it,  that  they  cannot  take 
this  exception  now  after  they  have  pleaded,  for 
the  intent  of  the  copy  is  to  enable  him  to  plead. 

L  C.  J.  Trehy.  Th^oupy^  bytheiclofpar- 


SSI] 


8  WILUAM  m. 


TrvdofPettrCoolt, 


[332 


liament,  is  to  be  delivertrd  to  the  prisoner,  his 
attorney,  agent,  or  solicitor,  if  they  require 
the  same  ;  ajicl  here  it  seems  there  ivas  no  re- 
quiring- of  it,  hut  it  was  voluntarily  given  ;  ami 
now  \  on  have  lapsed  your  time  of  making  tlie 
exception  of  wanting  a  copy,  by  having  pleaded 
to  the  indictment,  whereby  you  have  in  effect 
admitted  and  declared,  either  that  vou  had  a 
true  copy  of  it,  or  that  you  did  not  tliink  fit  to 
require  one  ;  for  the  use  of  the  copy  is  to  better 
enable  the  prisoner  to  plead.  But  when  you 
did  plead,  you  took  upon  yourself  to  be  welt 
able  to  plead  without  the  help  of  a  copy,  which 
you  might  have  had  upon  the  asking  lor. 

Sir  S.  Shower,  Then,  my  lord,  there  is  ano- 
ther thing  in  the  indictment,  that  in  thb  overt- 
met  there  is  a  new  time,  and  a  new  place, 
and  a  new  verb,  and  a  new  fact  alledgeil,  and 
no  nominative  case :  it  is  alledged.  That  Peter 
Cook,  at  first,  with  others,  did  so  and  so  :  and 
then  the  first  of  July  to  bring  the  treasons 
aforesaid  to  effect*  there  et  alibi  4rc.  (which  is 
▼ery  loose,  for  I  know  not  whence  the  venue 
must  come)  did  truiterously  with  Cbarnock, 
Freind,  &c.  consult  to  procure  <  Diversas  Tur- 
mas  et  Lemones,  kc'  to  join  with  them  in  En- 
gland, ana  then  it  comes  et  uUeriia  such  a  day, 
year,  and  place,  did  traiterously  ag^ree  so  and 
■o,  and  not  say  who :  Now  this  is  neither  by 
express  words,  nor  rule  of  grammar  to  be  re- 
fenred  to  the  prisoner  at  the  luir ;  it  does  not  say 
*  ipse  idem  Pctrus  Cook  ;'  now,  my  lord,  that 
the  king's  counsel  thought  it  necessary  in  every 
overt-act  is  plain,  because  those  words  are  put 
in  every  other  clause  of  the  indictment,  in  those 
clauses  that  go  before,  and  those  clauses  that 
come  after ;  then  if  they  will  take  it,  that  this 
clkuse  must  refer  to  the  next  antecedent,  that 
will  not  do,  for  the  next  precedent  nominative 
case  is  either  Freind  or  Chamock  :  So  that 
this  is  without  a  nominative  case,  and  the  pre- 
cedents in  my  lord  Coke's  entries  361,  and  all 
the  other  books  have  the  nominative  case  repeat- 
ed, where  there  i$  a  new  time,  and  a  new  place, 
and  a  newfai-t  ailedi^ed:  Now  it  nii^^hi  be  true, 
that  the  prisoner  at  the  bar  might  Ih;  present,  and 
this  same  treason  might  he  tliscoursed  ofand  agi- 
tated, and  there  niifrht  be  a  consult  ahtiut  this 
business ;  and  yet  it  is  not  necessaiily  implied 
that  he  must  consent  and  agree  to  send  Char- 
nock  into  France,  upon  which  the  great  stress 
of  the  indictment  lies  :  therefore  we  say,  these 
words  having  no  nominative  case,  the  indict- 
ment cannot  tiold. 

Att.  Gen.  3Iy  lord,  as  to  this  objection,  it 
will  receive  a  very  plain  answer.  Our  indict- 
ment begins  and  sets  forth,  that  Peter  Cook, 
the  prisoner  nt  the  bar,  did  imagine  and  cum- 

EBss  the  kingN  death,  and  did  adhere  to  the 
ing's  enemies,  and  these  are  the  treasons  : 
and  then  it  sets  forth  the  overt  act,  that  in  ex- 
ecution of  the  traiterous  com  passings,  imagina- 
tions, and  adhesions  aforesaid,  *  Ipse  idem  Pc- 
trus Cook,  together  with  sir  William  Parkyns, 
Mr.  Cbarnock,  sir  John  Freind,  and  others, 
did  propose  and  contnlt  to  procure  from  the 
Frencb  king  fbroet  toiDTadt  this  land  ;  €t  uU 


terius,  he  and  they  did  agree  to  lend  Cbar- 
nock to  tiie  late  king  Jatiies. 

Just.  Rokebjf.  There  is  the  fint  naming  of 
James  the  second,  late  kinf  ^of  England^  and 
there  is  no  eidem  Jacohot  1  promiaeyou. 

L.  C.  J.  Treby,  Well,  that  mistake  is  over. 
Prtiv  go  on,  Mr.  Attorney  General. 

Ati.  Gen.  Mv  lord,  as  to  this  objection  of  ar 
Bartholomew  S»hower,  be  would  have  ipu  Hem 
Peirui  rei»eated  over  again  ;  and  he  says,  thM 
we  lay  a  distinct  overt  act  with  a  diflmnt  time 
and  place :  now  that  is  a  mistake  too ;  it  is  aol 
a  different  time  and  place,  but  the  ssne  tisH 
and  place ;  and  it  mentions  thai '  cnm  R.  Chw- 
nock,  J.  Frvind,  <!^c.  et  com  aliis  Preditoribai 
conveniehat,  consultabat,  &c.'  which  be  ism 
may  refer  to  sir  John  Freind  or  CbaraseK: 
but  if  you  look  into  the  frame  of  the  i 
that  can  never  be. 

Just.  Roktbjf.  Petrus  Cook  is  the 
tive  case  that  coverns  all  the  verbs. 

Att.  Gen.  And  there  is  no  other 
case  in  all  the  indictments,  but  Petms  Csil^ 
except  it  be  in  a  parenthesis,  and  that  saraillM 
rule  of  grammar,  if  there  were  any  tbhigiiil^ 
that  it  must  refer  to  the  last  antecedent 

Sir  B.  Shou-er.  When  it  comes  to  the  dHW 
that  he  did  procure  horse  and  arms,  tboellit. 
nominative  case  is  repeated. 

L.  C.  J.  Treby,  It  would  not  have  madtil 
worse,  if  they  had  made  it  so  here  ;  bat  Iht 
question  is,  whether  it  be  necessary  ? 

Su:  £.  Shower,  Indictments  ought  to  be  |i^ 
cisely  certain ;  but  this  we  say  is  not  so. 

Att.  Gen,  But  hens  is  as  much  ceffsiiityii 
to  the  person,  as  can  be,  that  be  did  coasok 
with  such  and  such  about  such  things ;  aai 
further,  the  same  day  did  agree  with  UiewM 
traitors  to  do  so  and  so. 

AusX.  Pouell.  Indictments,  it  is  true,  ooglil 
to  be  plain  and  clear ;  but  I  do  not  see  but  hen 
is  as  much  certainty  as  can  he,  that  be  did  iMk 
a  day  consult,  and  further,  the  same  day  dii 
agree  with  the  same  persons. 

Sir  B.  Shower,  Who  did  agree,  my  lord? 

Just.  Pou'ili.  He  that  did  consult  with  tbm 
before,  and  that  is  Peter  Cook. 

Atl.  Gen.  You  would  have  had  us  to  pot  H 
to  every  verb,  1  believe. 

Sir  B.  Shuwer.  In  indictments  no  presomp- 
tion  ought  to  be  usi>d,  hut  the  faots  ought  to  be 
directly  and  |>o»itivcly  alledged. 

Just.  Pouell.  It  is  true,  there  should  be  ao 
presumption  ;  and  there  is  none  here,  for  on-- 
tainly  this  is  a  plain  usscrtiun  of  fact. 

L.  C.  J.  Trcby.  Here  are  two  tilings thatsit 
set  forth:  First,  That  Petur  Cook  did  oMCl 
with  sir  John  Freind,  sir  William  l^irkyns,  and 
others,  and  then  and  there  did  consult  wilb 
them,  and  consent  to  procure  an  invasion,  and 
join  an  insurrection  thereto.  And  secnndlyt, 
further  with  the  said  traitors  did  agree  to  acH 
tniarnuck  into  Franee.  Now,  what  is  thena* 
niinative  case  to  this  agitxnicnt  1'*  Is  it  air  Jote 
Freind,  and  sir  William  Parkyns?  Thatisitt* 
possible :  for  they  could  not  be  said  propo^li 
meet  and  consult  witb  themaelveiy  vnrj  iM 


Jhr  High  Treason. 

ith  his  own  self  and  the  rest.  And 
larober,  if  it  bad  referred  to  tbem, 
re  been  ploni:  bot  here  it  is  tin- 
VBAvh]  and  the  seote  is    do  more 

that  then  and  there  Mr.  Cook  did 
such  perKms,  and  did  coosult  with 
i  racb  and  such  matters ;  and  fur- 
Tee  with  them  to  do  thos. 
kowtr.  The  meaning  is  not  to  be 
strained  by  inference  or  presumption, 
It  to  be  express  and  plain. 

Trcby,  Nay,  yon  cannot  express  it 
INI  may  male  a  tautology  of  it,  if 

kmetr.  The  fwragraph  is  long,  my 
therefore  requires  the  more  care  to 
repetitions  that  are  necessary. 
IVeby.  Yonr  objection  to  this  para- 
bat  it  is  too  long ;  bat  repeating  the 
linative  case  to  every  verb  would 
neb  longer. 

{AdSMT.  It  cannot  be  understood  to 
T  Ck>ok  without  presumption,  which 
lobe  in  an  indictment, 
n.  And  as  to  sir  Bartholomew  Show- 
lifection,  his  copy  is  right  too,  and  be 
le  place. 

IkoKtr.  You  should  have  given  me 
answer. 

n.  Nay,  you  should  have  taken  more 
Id  have  made  the  objection. 
Treby.    Trul^,  I  think  it  is  hardly 
have  made  this  better,  if  it  had  been 
than  it  is. 

tmalL  My  lord,  we  think  we  have  a 
of  if,  whicn  we  rely  upon,  and  there- 
somuch  insist  upon  these  exceptions ; 
I  duly  to  our  client,  we  mention  that 
think  is  necessary,  and  we  submit  to 
hip. 

Ar.  Set  PMer  Cook  to  the  bar. 
as  done.)  You,  the  prisoner  at  the 
e  good  men  which  you  shall  hear 
d  personally  appear,  are  to  pass  be- 
r  sovereign  lord  the  kin|[  and  you, 
of  your  life  and  death ;  if  therefore 
I  challenge  them,  or  any-  of  them, 
:  is  to  spcsk  unto  them  as  they  come 
9k  to  be  sworn,  aid  before  they  be 

Call  nr  John  Bweetapple. 

iSmeelapple.  Here. 

Ify  lord  chief  justice,  if  your  lord^iip 


I.  jfVel^.  Pray,  Sir,  speak  out,  that 
lear  what  yon  aay :  and  let  the  Cryer 
tdamatioo  for  sdence.    (Which  was 

Ny  U>nl,  before  the  jury  is  called,  I 
Ml,  that  if  any  of  the  jury  have  said 
Ml  i  am  guilty,  or  they  will  find  me 
'  1  shaH  sofler,  or  be  handed,  or  the 
•re  not  fit  or  proper  men  to  be  of  the 

henhifrtinBto  Mr.  Raikes  in  the  Case 


A.  D.  1096.  [3S4 

L.  C.  J.  Treby.  Yoa  say  right.  Sir,  it  is  a 
good  cause  of  challenge. 

Just.  Rokeby,  That  will  be  a  sufficient  cause, 
if  when  they  come  to  the  book,  you  object  that, 
and  be  reaiiy  to  prove  it. 

Cook.  Which  IS  sir  John  SweeUpple  P  (He 
was  shewn  to  him.) 

C/.  ofAr.  There  he  is. 

Cook.  I  challenge  him. 

CI.  o/Ar.  William  Walker. 

Cook.  Sir,  have  yon  said  any  such  thii^, 
tbatyou  believe  me  guilty  ? — Walker.  No,  Sir. 

Mr.  Baker,  My  lord,  he  is  asking  of  the 
juryman  the  question. 

Just.  Rokeiy.  That  is  a  fact  the  prisoner 
should  prove  upon  him. 

Alt.  Geti.  My  lord,  he  must  not  ask  the  jury 
that  question,  whether  they  have  declared  be* 
fore,  that  they  will  find  him  guilty ;  that  is  to 
make  them  guilty  of  a  misdemeanor. 

Serj.  DamalL  Is  it  any  misdemeanor  fbr 
roe  to  say,  I  thiuk  or  believe  such  a  man  is 
guilty  ? 

Att.Gen.  If  he  be  summoned  to  be  of  a  jury, 
and  declare  his  opinion  before- hand,  it  is  a  mis- 
demeanor. 

Serj.  Darnall.  But  suppose  it  be  before  he 
was  summoned  ? 

Att.  Gen,  If  you  make  any  such  objectioD, 
you  must  prove  it,  and  not  out  of  the  juryman's 
own  mouth. 

Serj.  Darnall.  I  think  any  man,  my  lord, 
that  comes  to  serve  upon  the  jiuy,  may  be 
asked  any  question  that  does  not  make  him 
guilty  of  any  offence  or  crime,  or  liable  to  any 
punishment :  Now  if  any  of  these  gentlemen 
that  are  returned  upon  tliis  pannel,  uefore  the 
summons  have  declared  their  opinion  tliat  the 
prisoner  is  guilty,  or  ought  to  suffer ;  with 
submission,  Uie  prisoner  may  abk  such  a  ques- 
tion, whether  he  have  said  so,  yea  or  no  f 

Just.  Powtli.  lie  cannot  upon  a  Voyer  Dire 
be  asked  any  such  question. 

Just.  Rokebv.  It  is  not  denied  to  be  a  mate- 
rial objection,  but  it  must  be  made  out  by  proof. 

L.  C.J.  Treby.  You  put  it  too  large,  bro- 
ther Darnall;  you  may  ask  upon  a  Voyer 
Dire,  whether  he  have  any  intf'rest  in  tlie 
cause ;  nor  shall  we  deny  you  liberty  to  ask 
whether  he  be  fitly  qualihed,  acconling  to  law, 
by  having  a  freehold  of  sufficient  value  ;  but 
that  you  can  ask  a  juror  or  a  witness  every 
question  that  will  not  make  him  criminous,  that 
is  too  large :  men  have  been  asked,  whether 
they  have  been  convicted  and  pardoned  for  fe- 
lony, or  whether  they  lia\e  been  whipped  for 
petty  larceny :  but  they  have  not  been  obliged 
to  answer  ;  for,  though 'their  auswer  in  the  af- 
finnative  will  not  make  theui  criminal,  or  i 


len  at  Maidstone,  a.  d.  1798,  in  this  Collection. 
See  too.  Leach's  Hawkins's  Pleas  of  theCrowD, 

b.  S,  c  43,  s.  28 ;  and  the  objection  to  the  earl 
Mareschal,  earl  of  Dumfries,  kird  Blantyre 
and  lord  Johnstoun,  vol.  3,  np.  690,  691  of  this 
Collection .    See  too  Peake^s  Law  of  Evidence, 

c.  3.  8.  2.  art  Witnesses  disoreditiiig  them. 


S89J 


SWULIAM  m. 


jact  them  to  puvishcneoty  ^et  ibey  are  matim 
of  infainv ;  and  if  it  be  an  iB&moua  thiiHTrlbat 
H  enoufi^  to  yreserve  &  roan  froia  beio^  bound 
to  answer.  A  pardoned  man  is  not  guiky ,  iiM 
crime  is  purged ;  but  merely  for  tha  re|Mpaacb 
of  it,  it  sball  not  be  put  upon  him  lo  anawer  a 
question  wbereon  he  will  be  forced  to  ibmwcar 
or  disgrace  himself.  So  persona  hare  been  ex- 
cused finom  answering  whether  they  have  been 
committed  to  Bridewell  as  pilferers  or  ragraats, 
or  to  Newgate  for  clipping  or  coining,  &c.  yet 
to  be  suspected  or  committed  is  only  a  mistor- 
lane  and  shame,  no  crime.  Tlie  like  has  been 
observed  in  other  cases  of  odious  and  infamous 
matters  which  were  not  crimes  indictable.'* 
But  to  keep  to  our  case,  it  is  true,  a  juror  may 
be  challeoged  being  an  alien,  or  being  a  villain ; 
but  where  the  matter  apparently  carries  crime 
or  shame,  it  should  be  proved  ;  the  outlawry 
should  be  proved,  and  so  should  the  being  a 
vilhun.  Yet  that  is  no  crime,  though  it  be  an 
ignominy. 

Serj.  Darnall.  But,  my  lord,  I  take  this  to 
he  no  manner  of  infamy  at  all ;  theie  is  nothing 
of  crime,  nor  nothing  of  reproach,  hot  only  a 
declaring  of  a  man's  opinion. 

L.  C.  J.  TYeby.  Truly,  i  think  otherwise ; 
I  take  it  to  be  at  least  a  scandalous  misbeha- 
viour, and  deservedly  ill-spoken  of,  for  any 
man  to  prejudge,  especially  in  such  a  heinous 
matter.  I  think  it  is  a  very  shameful  disco- 
very of  a  roan's  weakness  and  rashness,  if  not 
malice,  to  judge  before  he  hears  the  cause,  and 
before  the  party  that  is  accused  could  be  tried. 
But  it  seems,  by  what  the  prisoner  says,  that 
he  would  ask  all  the  jurors,  whether  they  have 
not  said  that  he  was  tfuilty,  or  that  they  would 
find  him  guilty,  or  that  be  should  be  *hanged, 
or  the  like :  which  (presuming  liim  inuocent) 
is  to  asL,  wbetiier  they  have  not  defamed  anil 
slaiidereti  him  in  the  highest  di-gree  ;  and  to 
forcu  tlieiii  to  discover  that  they  havo  a  mortal 
hatred  to  hiui,  and  come  with  a  malicious  reso- 
lution to  con\irt  him  :  whicli,  atimittiug  tbey 
are  not  punishable  by  our  luw,  yet  are  things 
so  detestably  wicked*  and  so  scandalous,  as  are 
not  fit  to  be  required  to  be  disclosed  by  and 
against  themselves. 

Serj.  DaruaiL  Pray,  my  lord,  what  is  more 
common  than  for  a  man  to  say,  before  he  is 
summoned  to  be  u|ion  a  jury,  when  he  hears  a 
fact  reported  concemin<r  such  a  one,  to  say,  1 
beUeve  he  is  guilty,  or,  1  am  of  o|iinion  he  is, 
and  I  am  sure  he  will  be  hanged  ?  and  yet  there 
is  no  crime  in  this. 

L.  C.  J.  Trtby.  Truly,  brother  Darnall,  I 
know  not  how  you  may  approvenf  such  a  man, 
but  ril  assture  you  I  do  not.  i  take  the  ques- 
tion not  to  be  concerning  a  man's  discoursing 
suppositively  ;  afi,  if  u|ion  hearing  news,  or  a 
report  of  clear  evidence,  a  man  should  say. 
Supposing  this  to  be  true,  such  a  man  is  guilty, 
anri  1  shoubl  find  him  so  if  I  were  of  his  jury. 
This  mii^ht  not  be  sufficient  to  set  aside  a  juror : 

*  As  to  this  matter,  see  Peake*8  Law  of  Evi- 
dence, chap.  3,  s.  t. 


Tnal  of  Pder  Cook, 

For  this  has  been  a  general 
the  subjects  upon  oooaskm  of  this  oonar 
and  U  imports,  that  if  evidence  alioiiU 
true  and  olrar,  he  wouM  ecoaii  him. 
he  is,  as  he  should  be,  indifttenL  Bi 
man  qualified  fur  a  juror,  affirm  positive 
sueh  a  prisoner  is  guiliy,  and  that  he  w 
him  so,  whatever  evideooe  or  proef  beg 
made  to  the  contrary ;  1  think  Ikat  ma 
ousdemeaBor  punishable  aa  ao  owaiuff  s 
coiuraging  of  falshood,  peijury,  ami  mj 
and  a  contempt  and  scandal  to  the  jns 
the  kiagdom :  though  I  hope  and  bdie 
no  man  hath  so  demeaned  himself. 

Just.  Powell.  In  a  civil  case  it  won 
good  cause  of  challenge.  If  a  man  haw 
nis  opinion  about  the  right  one  wayoi 
may  you  not  upon  a  Voyer  Dire  ask  hia 
ther  he  hath  given  his  opmion  one  i 
other?  I  believe  it  may  be  aaked  in 
cause,  because  he  may  have  be«i  a  n 
but  if  you  make  it  criminal,  it  camwt  be 
because  a  man  is  not  bound  to  accuse  bi 
now  the  difference  lies  in  the  nature 
cause ;  it  ia  not  criminal  in  a  civil  cai 
roan  to  say  he  was  an  arbitrator  in  such 
and,  upon  what  appeared  before  him,  1 
of  such  an  opinion. 

Att,  Gen.  But,  my  lord,  it  is  a  differei 
to  give  an  opinion  about  the  right  b 
mirty  and  perty,  where  a  num  haa  been 
nitrator  and  ao  in  the  nature  of  a  jud| 
where  a  man  is  to  go  upoe  a  jury  m  U 
of  life  and  death,  and  before  the  ei 
given,  he  declares  his  opinion  without  li 
the  cause. 

Sir  B.  Skauer,  My  lord,  we  know  sei 
the  trials  have  been  printe<l,  and  the  oa 
several  persiins  mentioned,  and  upon  reai 
the  trials,  or  conversing  about  them,  a 
a|«t  to  give  their  opinions  one  way  or  oth 

Serj.  Da t  nail.  It  is  only  an  objeotkiu 
he  has  done  it. 

Just.  Rokebj/,  But,  brother,  how  ca 
ask  him  the  question  ? 

Serj.  Darnull.  If  the  court  are  of  i 
that  it  is  such  a  crime  that  it  cannot  be 
as  tending  to  make  a  man  accmie  himsel 
infamous  crime,  then  we  submit  it  to  yo 
1  confess  we  must  not  ask  it ;  but  we 
apprehend  that  thera  is  either  crime  or  i 
in  It,  though  we  think  it  is  an  ol^^iun, 
good  cause  of  challenge. 

Baron  Pouf^s.  I  think,  thoupfh  ithe  nc 
a  crime  as  infamous  uj^n  whieh  a  man 
to  be  credited,  for  that  la  iufiimy  in  the 
the  luw,  whereby  a  man  is  pre^odiecd 
credit ;  yet  however,  it  is  a  shamdul  th 
a  roan  to  give  his  judcrment  beihie  h 
heard  the  evidence ;  and  therefore  I  Ihu 
ought  not  to  ask  him  it,  to  make  ^ ' 
himself,  if  it  be  an  opprobrious 
him. 

Serj.  Darnall.   Truly,  my  kwd, 
took  it  to  be  the  rule,  if*  the  thing  i 
person  returned  be  not  criaunel  nor  mi 
the  party  that  is  asked  ought  to  wwmr  i 
8 


JBf} 


Jbw  High  Treason* 


L.  C.  J*  Trthy,  I  would  Ma  kuow^  if  you 
SMilii  ask  uiy  of  the  jurymeQ  this  i^iieslwn^ 
bciW  he  be  g'ailty  ui  all  the  ovioMft  that  n^ 
dooed  hy  ilie  kst  uct  of  graise,  he  b*  b*ond 

tey,  i>ar«fffil  Undoiibtedty  im  cftonot  isk 
Dj  tttch  question  ;  ao,  not  to  any  one  of  the  i 
f  Hiiilg^  thcftHa  iDentiooed. 

1*  C-  X  TMfjf.  Bat  3?€t  you  will  force  bim 
t»  discover  m  ettino  (il^  it  be  one)  ilmt  i»  uu  par- 


lust.  Fcmdl*  Certtanly  y0u  fotoo  f»r,  Wo* 
thn^  for  no  isan  ia  obliged  to  ohax^  bntelf 
with  whiit  is  criminal ;  bat  irlMtkir  iNs  be 
erimintl  to  «ay,  <  t  believe  soch  a  one  wUI  be 
'IvnitfTii^'  isof  aootber  eonsiO«ratiost. 

Juftt.  Heke^^  But  I  think  it  mosl  be  {MPored 
ipoN  hi«i,  if  any  objection  be  miiclp, 

ftr  iIl  ^^tfver.  My  lord,  it  will  be  n«  easy 
Ifel^  la  hno^  wvliie«c»  to  prove  this  matter, 
^riwuafore  we  wmM  have  it  fram  his  own 

Riykehy.  And  il  ia  a  very  ha  id  matter 
jui  to  be  put  upoo  pro?iu|;'  every  dts- 
\  that  he  has  had  about  the  public  a^aira 
I  liioe. 
rtler.  Tlie  rcsson  of  your  exc«|*tian  is« 
has  ileehired  his  opiaion  before-han J, 
I  pafty  would  be  JMiiffed  or  would  ftiAirer» 
i  reproach  and  a  redaction  upou  a  wise 
» to  00 ;  and  if  thej  can  pfo?e  it  upon 
el  thetn  do  it :  but  whether  you  should 
bim  sucli  a  i|OQstioii,  whether  he  bo  a  fuoi 
ort  knave  for  the  giving  an  opinion  one  way 
ir«htr,  that  is  the  quttsiioo  before  ua. 

8crj«  DurnalL  My  lord,  we  do  not  offer  it 
to  tJie  court  at  an  objection  thai  be  is  not  a  wise 

dtt.  Gen.  But  what  a  man  does  utter  im* 
indciitlv.  may  oc«  asinn  a  prcjodica  against 
hm^  antf  theretbre  oiigrhtto  be  proved,  and  not 
be  tu  prove  it  himvelf, 

L,  C  J.  Trehy,  BsiieciaHy  being  a  free- 
/lelder  of  London,  ana  taking  notice  of  what 
%ioqe  in  Londeo ;  and  if  he  does  take  notice 
r  fact,  9ind  does  previously  give  hii  opt- 
I  of  a  mnttrr  which  he  may*  be  called  upon 
yla  ''  nn  mdiscnstion  and  a  re- 

ah  to  I  J    ihiok^  a  niiftdemeanon 

Uarnall.  My  lotnl^  J  ackiiowle^lj^t;  it 
ae  ol  htm,  that  in,  indiftcreeUy  and  not 
a4  we  arould  hate  discreet  and  wise 
i|ien  our  jtiry. 

.  Comper,  lly  lord,  Mr,  8erj.  DaroaU  will 

litaa  Utile  a  thing  at  hs%,  that  it  will 

to  no  cmnse  of  challenge,  if  it  w^rc 

I  proved  igainst  him,   whidi   we  insiiit  it 

]  III  hf.  ii  lieitig  thnr  objection^  and  the 

t^  bound  to  prove  it  agaiiut  him* 

rj  1  we  think  there  is  wore  in  it 

» so,  because  it  is  an  unjust  prejudging  of  a 

» beibm  he  is  tiied  and  beard  ;  and  if  so, 

I  a  t^iiiff  tliat  he  ought  not  to  accuse  biui- 

ftf,  and  ibarefore  \¥t  oppose  the  asking  any 

I^itrmmiL  Oor  aljaattep  is  not  beontwe 
I  m  nfl^Qce  to  dedait  a  man^iopiiuMi  vpoti 
VOL.  Xlll. 


a  fad  retried,  but  because  it  ehews  he  ba 
a  settled  opinion  against  the  person  of  bis  {, 
and  so  he  is  not  so  ei|ual  a  man  lo  try  him  1 

L»G.J.  IVsfl^.  And  is  that  like  an  hoi 
man  and  a  freeholder  of  London^  (nho  ou 
to  be  indBihrent)  to  come  with  a  settled  om* 
nion  against  a  man,  when  he  is  to  be  one  of  I 
jtiryf 

Seq.  Damnll,  Well,  my  lord,  wo  have  1 
beard,  and  submit  it  to  tlu)  judgment  of  ih4 
court*  ' 

L.  C.  J.  Tmby.   TndT,  I  think  il  tfctlMrlt] 
both  dishonesty  and  dishonour  upon  him, 
there  tore  these  <|uestions  ouc^ht  not  to  be  at' 
'Fba  qoestian  i»  not,  Wliethur  a  man  (if  ere 
such  a  man  there  were)  that  hatli  so  resolv 
aod  declared  shtdl  be  sworn?  No  ;  he  is  not  I 
to  serve  upon  a  jurj^.     But  the  qtieiliQii  if 
How  thiK  shall  be  discovered,  hy  hia  own  i 
or  by  other  proof?  I  think  it  ought  to  be  ma 
appear  by  other  pmof,  if  true.    A  man 
tainted  of  fekiny,  lorgeiy,  false  verrlict,  orp 
jury,  ought  not  to  s^rve  on  a  jury,  yet  he  sha 
not  he  examined  concerutng  the  same  on 
Voire  Dire.    And  if  theris  be  in  a  court  a  ctipy 
of  siioh  judgment  carelully  exaoiined  and  I 
by  bimseU;  bu  shall  not  be  ftvced  to  aniwtrl 
whether  it  be  a  true  copy  ;  though   his 
swer  could  not  subject  him  to  any  turtliec  ^  J 
najiy. 

8ierj*  DamgU.  My  lord,  I  h<*pe  no  \ 
man  of  the  jury  has  done^  ii. 

L.  C.  J.  Treby.  I  hope  no  freeholder  of 
London  is  so  indiscreet  or  so  unjust.  Bifl  if 
any  man  in  this  pauiiel  ham  any  puriicubrdis* 
pleasure  to  lbs  prisoner,  or  he  uuiniiitiereuti 
or  have  declared  b'mistilf  ao,  1  do  udiuonii^li  utvff 
desire  him  to  discover  so  much  in  i^euerul  \ 
for  it  h  not  fit,  nor  for  the  boooiir  of  tiie  klng'j 
justice,  that  such  a  man  sbottld  serre  ou 
jury, 

Serj.  DarnalL  We  hope  f»o  too,  IVe  bop 
that  aJl  that  are  returned  upon  the  jury  nr 
discreet  and  impartial  men. 

Ci.ofAr.  Well,  Sir,  what  siy  you  to  thb 
grntleman,  Mr.  Walker. 

Cook.  1  challenge  you,  Sir. 

f,L  of  Ar,  Natfiarnel  l^rig. 

8ir  J^.  Shifwer,  My  hml,  we  tbiuk  he  cna^ 
ask  if  they  have  a  freeliold  or  no  \  because  the 
law  re([uireg  that  qutiUficaiioD,  and  the  prisoner 
not  being  able  to  prove  the  negative,  it  puts 
the  proof  of  the  affirmative  upon  the  person 
himself, 

Alt.  Gen.  Whatdoes  sir  Bartholomew  maanf 
Would  be  have  tlie  jury -men  bring  their  evi- 
dences with  them  te  prove  their  freehold  f 

L  C,  J.   Trcby.   No,  i^ui-e,  Mr.  Attorney  t. 
but  to  a&k  the  liuestion  was  allowt'd  him  the 
last  time,  and  we  will  not  deny  him  the  ^me 
just  lavournew. 

Cook.  Are  you  a  freeholder,  Sir,  in  Loodou 
of  tJie  valiie  of  10/.  a-yesr  ?^Ij)n'.  Ye 

Cook.  Were  you  oV  the  grand-jury  wl 
the  bill  was  found  ogainst  me  f — Long*  Ff  o>  ^ 

Cook.  1  ehaUongto  yoa,  Sir. 

U  ^Ar,  Yfmm  CarbonelL 
Z 


S99] 


SWILUAMin. 


CarbonelL  My  lord,  I  am  no  freehoMar. 

L.  C.  J.  Trehy,  If  bat,  doci  he  say  be  bas 
DO  freehold  ?—C/.e!*-^-  Yet,  my  lord. 

L.  C.  J.  Treby.  Then  he  muit  be  let  aside. 

CI  cf  Ar.  Jothiia  Foater. 

Fmter.  My  lord,  I  am  no  freeholder  in 
London  neither. 

JU,  Gen,  My  lord,  we  desire  they  may  be 
•worn,  whether  they  bare  a  freehold  or  not 

Cl.o/Ar.  Hold  Mr.  Carbondl  and  Mr. 
Foster  the  book.  [Which  was  done  severally.] 
You  shall  trae  answer  make  to  all  siich  qnes- 
tioos  asshall  be  aaked  yon  by  the  Coart  So 
help  you  God. 

Att.  Gen.  Ask  him  if  he  hath  not  a  free- 
hold in  London  ? 

CaHnnulL  No,  I  hare  not. 

CI.  ffAr.  Have  ^ou,  or  any  body  in  trust 
Ibr  you,  a  ireebold  m  London  of  the  Tslue  of 
10/.  a-year  ?— Car6oiif//.  No,  Sir. 

CL  SfAr.  Joshua  Foster,  have  you,  or  any 
in  trust  foi;  yon,  any  estate  of  freehold  in  Lob- 
don  of  the  value  of  10/.  a-year  P 

Fattr.  No,  Sir. 

CL  cf  Ar.  Joseph  Billers. 

Coo/c.  I  desire  they  may  be  called  in  the 
order  as  they  are  m  the  pannel ;  you  have  not 
called  JobnEwen,  who  is  next. 

CL  cf  Ar,  I  do  call  them  in  order:  as  for 
Mr.  Ewen,  one  hath  made  oath  that  he  is  sick, 
and  is  not  able  to  come  hither.  What  say  you 
to  Mr.  Billers  ?  There  he  stands. 

Cook,  Sir,  are  you  a  freeholder  of  10/. 
••year  within  the  city  of  London  ^ 

Billers.  Yes,  Sir. 

Cook.  Was  you  of  the  grand -jury,  Sir,  when 
the  bill  was  found  against  m<  P 

BilUn   No,  Sir. 

Cook.  1  challenge  you. 

CL  ofAr,  John  Child. 

Cook.  Sir,  are  you  a  frrtholder  within  the 
city  of  London  ?^Child.  Yes,  Sir. 

Cook,  or  10/.  a-ycar  ?— Child.   Yes.  Sir. 

Cfwk.  Were  you  of  the  grand-jury  when  the 
bill  was  found  against  nie  f^^Child,  No,  Sir. 

Cook.  I  challenge  yon. 

67.  of'Arr.  Kdwanl  Leeds.  - 

Cook.  Sir,  are  you  a  freeholder  within  the 
city  of  London  of  10/.  a  year  f 

Leedt.  Yes,  Sir. 

Cook.  Were  ]rou  of  the  grand  jury  that 
found  tlie  bill  ac^ainst  me  ? — Leedi.  No,  Sir. 

Cook,  i  challenge  you. 

L.  C.  J.  Treby.  What  question  was  that  he 
asked  him  P 

CL  of  Arr.  Whether  he  were  one  of  the 
grand  jury  that  found  the  bill. 

L.  C.  J.  Trtby,  A  verv  proper  question :  fur 
an  indicter  ought  not  to  be  a  trier*. 


*  This  exception  was  allowed  by  Jeflferies 
C.  J.  in  Titus  Oates*s  Case  in  this  Collection 
(vol.  10,  p.  1081.  See  too  Hawk.  PI.  Cr.  and 
Collcd)j;e*s  Case  as  referred  to  in  the  Note  in 
that  page).  In  that  Case  two  indictmento  hav- 
ing been  found  against  Gates,  when  he  chal- 
lenged one  tor  bariiig  beca  of  the  graad  jury 


Trial  of  Peter  Cadi    ' 

CL  ofAr.  Tlioroas  Clark. 

Cook.  Sir,  are  you  a  freeholder  witi 
city  of  London  of  10/.  a  year? 

Clark.  Yes,  Sir. 

Cook.  Were  you  of  the  mnd  jar 
found  the  bill  against  me  P^^CmtA.  No, 

Cook.   I  challenge  you. 

CL  ofAr.  Nathan  Green. 

Cook.  Arc  you  a  freeholder,  Sir,  witl 
city  of  London  of  the  Talue  of  10/.  a  yeai 

Green.  Yes,  Sir. 

Cook.  Were  yOu  of  the  grand  jor 
found  the  bill  against  me  P— Green.  No, 

Cook.  1  challieiige  you. 

CL  ofAr.  Henry  Sherbrake. 

Cook.   1  have  nothing  to  say  i 

CL  ofAr.  Then  boid  Mr.  I 
book.  [Which  was  done.]  Look  up 
prisoner.  You  shall  well  and  truly  tr 
true  deliverance  make  between  onr  si 
lord  the  king  and  the  prisoner  at  the  bar, 
you  shall  have  in  charge)  according  t 
evidence.    So  help  you  Gm. 

[Then  Mr.  Sherbroke  wus  put  into  tb 
appointed  for  the  jury.] 

CL  qfAr.  Henry  Dnr. 

Cook.  Sir,  areyouaireebolderinthe 
London  of  the  value  of  10/.  a  year  P 

Dry.  Yes,  Sir. 

Cook.  Were  ^ou  of  the  grand  jur 
found  the  bill  against  meP — JDry.  No^  > 

Cook.  Sir,  1  chaHense  you. 

CL  of  Ar.  Joseph  Morewood. 

Cook.  Sir,  have  you  a  freehold  in  ] 
of  the  value  of  10/.  a  yearP 

Moreniood.  Yes,  Sir. 

Cook,  Were  you  of  the  grand  jtfi 
found  the  bill  against  me  P 

Morewood,  No,  Sir. 

Cook.  Sir,  I  challenge  you. 

Cl.ofAr.  Rirhard  Greenway. 

Cook.  Are  you  a  freeltolder  of  10/. 
in  London  P — Greenway.  Yes,  Sir. 

Cook.  Were  you  of  the  grand  jai 
found  the  bill  against  me  P 


that  found  the  bill,  the  attorney -gene 
swered  **  i  believe  he  was  upon  one  of 
dictments,  but  I  think  it  was  not  tbii 
wliich  the  Chief  Justice  replied,  '«  Bi 
were  in  either  of  them  he  cannot  be  so 
tial."  Upon  the  Trial  of  Fitsharris /» 
this  Collection,  vol.  8,  p.  SSO.)  Major  vl 
objected  to  serve  on  tne  jury,  on  the 
that  he  had  in  parliament  voted  the  in 
ment  of  Fitzharris  for  the  same  cri 
which  he  was  then  to  be  tried ;  but  y 
this  would  have  been  a  sufficient  exee 
his  serving  was  not  decided.  It  seems 
was  set  aside  for  want  of  freehold  in 
right.  In  19  Blod.  305,  it  is  said,  tha 
Case  of  the  King  against  Kirk  and  jC 
was  grouted  that  some  of  the  grand  ji 
found  the  bill  myhtbe  of  thepettyjvi] 
too,  the  Case  ot  Hendley  wbA  oCBcn 
Collection,  a.  d.  1719. 


fit  tiifpi  7Vi0aioN« 

«|y.  No,  Sir. 

IVy  I  ehtUeiife  you. 

Ir.  Joha  Sherbrook. 

lir,  are  you  a  fireehoider  of  the  dcy  of 

'  10/.  a  year  f^Sherbrook.  Yet,  Sir. 

Were  yoa  of  the  grand  jary  that 

bill  against  me  ? 

ok.    No,  Sir. 

Mr,  I  challenge  yoa. 

Ir.  Thomas  Emmet. 

Are  you  a  freeholder,  Sir,  within  the 

ndoo  of  10/.  a  year  ? 

Yes,  Sir. 
Were  yoa  of  the  grand  jury  that 
hilt  agunst  me  ?— fmrnoi.  No,  Sir. 
i  challenge  you. 
(r.  Samuel  Jackson, 
iiir,  are  you  a  freeholder  within  the 
ndon  of  10/.  a  year  ? 
.  Yes,  Sir. 

Were  j|oa  of  the  grand  jnrv  that 
bill  against  me  ?— /ocAiofi.   Mo,  Sir. 
lir,  1  challenge  you. 
[r.  Henry  Hunter. 
Lre  you  a  freeholder.  Sir,  in  Lomlon, 
eof  10/.  a  year?— Hanr^.  Yes,  Sir. 
Were  you  of  the  grand  jury  that 
bill  against  me  ? — Hunter,  No,  Sir. 
chal&nge  you. 
Ir.  John  Deade. 

^,  are  you  a  freeholder  within  the 
ndoo  of  tne  value  of  10/.  a  year  f 

Yes,  Sir. 
Were  you  of  the  grand  jury  that 
bill  against  me  ?—Dmc/^.  No,  Sir. 
challenge  you. 
(r.  John  Cullum. 
accept  of  him.    [He  was  sworn.] 
r.  Thomas  SfaAW. 
accept  of  him.    [He  was  sworn.] 
Ir.  Geoige  Joyce. 
Sir,  are  you  a  freeholder  within  the 
idon  of  10/.  a  year? 
irei,Str. 

Were  you  of  tlie  grand  jary  that 
bill  against  me  ?—Juyce.  No,  Sir. 
challenge  vou. 
!r.  Ricnanl  Young, 
hate  nothing  to  say  against  him. 

[He  was  sworn.] 
r.  John  Hedges. 

Sir,  are  you  a  freeholder  within  the 
idooof  10/.ayear? 

Yea,  Sir. 

i¥cre  you  of  the  grand  jury  that 
bill  aniast  me  t^mdget.    No,  Sir. 
cbaUenge  yon. 
r.  John  James. 

iiry  Are  yon  a  freeholder  within  the 
■doo  of  10/.  a  year? 
Yea,  Sir. 

Wen  you  of  the  grandnury  that 
biB  against  me  ?-^(sme«.  No^Sir. 
I«bidloogeyoa. 
Ir.    ThMDisFoole. 
Sr,  .An  yoq  a  freeholder  within 


A.D.  M86. 


[M» 


»  yoa  a  irael 
arioLayetr 


FooU.    Yes,  Sir. 

CMt.    Were  you  of  the  grand-jary  tl 
found  the  bill  against  me  ?^Pse/r.  No,  Sir. 


that 


Cook.    I  chidlenge  you. 
TAr.    Peter  Parker. 


a/i_       

Cook.  Sir,  Are  yoa  a  freeholder  in  the  city 
of  London  of  10/.  a  year  ?— P/irAer.  Yes,  Sir.  .- 

Cook,  Were  yo'S  of  the  grand-jury  that 
found  the  bill  agamst  me?-^ParAer.  No,  Sir. 

Cook.    I  chulengeyou.. 

CL  of  At.    William  Wilkhison. 

Wimnnn.  Bfy  kird,  1  am  no  freeholder 
in  London.    [To  which  he  waa  sworn.] 

CLofAr.    Henry  MHchel. 

Cook.  Hold,  Sir,  here  Thomas  Man  in  lAy 
pannel  is  next. 

CL  (fAr.  There  is  oath  made  diat  he  is 
nek  in  bed.    What  say  yoo  to  Mr.  Mitcfael  f 

Cook.  Sir,  Hare  yon  a  freehokl  of  10/.  a 
year  Hi  the  city  of  London  ?    - 

MUcheL  No,  Sir.  [To  which  he  was  swon.l 

CLfAr.  Rkbaid  Ryder. 

Cook.  Sir,  Have  yon  a  freehokl  of  10/.  a 
year  in  the  city  of  London  ? 

Ryder.  Yes,  i  have,  Sir ;  but  I  live  in  a 
parish  that  never  served  upon  any  juries,  nor 
ever  did  in  the  memory  of^any  man. 

CI.  ofAr.  But  have  you  a  freebohl  of  10/. 
a  year? — B^der.  Yes,  Sir. 

Cook.  Were  you  of  the  grand-ipry  that 
found  the  bill  aeatnst  me  ? — Ryder,  No,  Sir. 

Cook.    Sir,  i  challenge  you. 

CLofAr.   Richard l^mple. 

Temple.  My  lord,  I  am  no  freeholder.  [To 
which  ne  was  sworn.] 

UfAr.    Peter  Walker. 

Cook.  Sir,  Are  you  a  freeholder  of  the  city 
of  London  of  10/.  a  year?— TTo/ilrer.  Yes,  Sir. 

Cook.  Were  you  of  the  grand-jury  that 
found  the  bill  against  me  ?-^Walker.  No,  Sir. 

Cook.    I  chiulenge  you. 

CL  ofAr.    Thomas  Pistol. 

PittoL  I  am  no  freehdder.  [To  which  ha 
was  sworn.] 

CLofAr.    John  Hunt. 

Hunt.  My  lord,  my  name  is  mistaken  ; 
my  name  is  William  Hunt. 

L.  C.  J.  Treby.  Then  you  must  go  on  to 
another. 

CL  ofAr.    John  Hardret. 

Hardret.  I  am  nO  freeholder  of  10/.  a  year. 
[To  which  he  was  sworn.] 

CL  cfAr.    John  Hammond. 

Cook,  Are  you  a  freehokier,  Sir,  of  10/.  a 
year  in  London? — Hammond.  Yes,  Sir. 

Cook.  Were  you  of  the  grand-jurv  that 
found  the  bill  agamst  me? — Hammond.  No,  Sir. 

Cook.    1  challenge  you. 

CL  ofAr.    John  Cooper. 

Cook.   I  accept  of  him.  [He  was  sworn.] 

CLofAr.    Josselin  Roberts. 

Cook.  Sir,  Are  you  a  freeholder  within  the 
city  of  London  of  10/.  a  year  ? 

Roberti.    Yes,  Sir. 

Cook.  Were  you  of  the  grand-junr  that 
found  the  bill  against  me  f  ^Roberts,  No,  Sir« 

Cook,    I  cbulenge  you.    . 


343J  8  WnUAM  lU. 

CL^Ar.    Jonathan  MifskfethWMit. 
Cook,    I  have  nothiii|r  to  lay  agftiDsi  bam. 
[He  was  svrorn.l 
CLofAr.    Richard  ChisweU. 
Cook,    Sir,  Are  you  a  freehoMer  wifhin  tke 
city  of  Loudon  of  10/.  a  year  P 
Ck'uweiL    Yea,  Sir. 

Cook.    Were  you  of  thejrrand-jury  that 
found  the  bill  agfamat  me  ? — CkiswelL  No,  Sir. 
Cuok.    I  challenge  you. 
C/.  ^Ar.    Jose^  Thompson. 
Cooic,  Sir,  Are  you  a  freeholder  of  the  city  of 
London  of  10/.  a  year  ? — Thompton.  Yea,  Sir. 
CooAe.    Were  ^fou  of  the  grand-jury  that 
ibiMd  the  bill  asainrt  me  ? 

Thompson,    1  was  returned  upon  the  grand- 
jnry,  but  did  not  serve. 
Cook,    1  challenge  you. 
C/.  ofAr.    Ediwd  Brewiter. 
Cook,    Sir,  Are  you  a  freeholder  of  the  eity 
of  London  of  10/.  a  year?— Bremiter.  Yes,  Sir. 
Cook:    Were  you  of  the  grand-jury  that 
found  the  bill  against  me  ? — Brewtter.  No,  Sir. 
Cook,    1  challenge  yon. 
Cl.qfAr.    George  Gooday. 
Gooday.   My  lord,  I  am  no  freeholder.   [To 
which  he  was  sworn.] 
CI,  ofAr,    Abraham  Hickman. 
Cook,    Sir,  Are  you  a  freeholder  of  the  city 
of  London  of  1 0/.  a  year  ? — Hickman .  Yes,  Sir. 
Cook,    Were  you  of  the  f^nd-jury  that 
found  the  bill  uaainst  me  ? — Hitkmun.  No,  Sir. 
Cook,    1  challenge  you. 
CI,  of  A  r.    Geoi^  Grove. 
Cook,    Sir,  Are  you  a  frcehnlder-of  the  city 
of  Loudon  of  10/.  a  year  ?— Grorc.  Yes,  Sir. 

Cook,    Were   you  of  the  c^rand-jiiry  that 
found  tiic  bill  against  me  P — Groroe,  No,  Sir. 
Cink,     1  clmilenge  you. 
CI,  of  Ar,    Nallianael  Wyersden. 
Cook.    Sir,   Are  you  a  freeholder   of  the 
city  of  Loudon  of  10/.  a  year  P 
Wyersiien.     Yes,  Sir. 

Cook,    Were  you  of  the  {jrand-jury  that 
found  the  bill  against  me? — Wi/ersden.  No,  Sir. 
6'oo/v'.     I  challenge  3'ou.     My  lord,  1  desire 
to  know  how  many  1  have  excepted  against. 
CI.  cf  Ar.    One- and -thirty. 
I^lr,^ Bark in/t.     Uij^ht,  iJMrht. 
CI.  t'f  Ai\     SSaniuel  Bkwiit. 
CoaA;.    Are  vou  a  freeholder  of  the  city  of 
London  of  10/.  a  year  ? — lUewitL  Yes,  Sfr. 

Cook.     Were  you  of  the  cfraud-jnry  tliat 
found  the  bill  against  nie? — BCtmtt,    No,  Sir. 
Cook.  I  challenge  you. 
CLof'Ar.    John  Wolfe. 
Cook.  1  accept  of  him.    [lie  was  sworn.] 
CI.  of  Ar.  William  Smith. 
Coolc.  Sir,  are  you  a  freelioldor  of  tlic  city 
of  London  of  lOl,  a  year  J—SmUk.  Yes,  Sir. 

Cook.    Were  you   of  the  grand -jury  that 
found  the  Rill  against  ine  ?— Smif  A.  No,  Sir. 
Cook.  I  challenge  you. 
CI.  vfAr.  John  IJickley. 
Bickiey,  My  lord,  1  don't  look  u)ion  myself 
as  a  freeliohler. 
L.  C.  J.  Trtby.  Why  lO^SirP 


TrM^POerCook. 


\m 


Bickley  1  have  a  lease  for  SI  yem^  my 
lord,  of  my  house,  and  Uiere  ia  a  Ttry  ^mt 
piece  of  ground  acyoining  to  it  tliat  wm  very 
convenient  for -nie  to  lay  to  uiy  lease ;  there  is 
no  way  to  it  but  through  my  bouae ;  it  is  alluBg 
that  never  was  lelt  for  any  thing,  and  it  is  not 
worth  the  building. 

L.  C.  J.  Treby.  What  estate  have  yim  in  it  ? 
Do  you  pay  a  ground-rent  lor  it  P 

Bickley.  M v  lord,  1  bought  that  little  piece 
of  ground  for  the  conveniency  of  my  leaae. 

L.  C.  J.  Treby.  But  did  yon  {Mirehaas  it  kt 
a  term  of  years,  or  to  you,  and  to  your  behsP 

Bickley,  Nay,  1  bought  it  for  ever,  my  loid. 

L.C.  J.  Treby.  Then  you  have  a  frecbsid 
in  it.    What  is  the  value  of  it  P 

Bickley,  Truly  very  little,  my  lord. 

L.  G.  J.  Trehy,  I  do  not  know  any  Mr 
can  judge  of  the  value  of  it  but  youmtf.  M 
worth  10/.  a  j'ear  ? 

Bickley,  My  k>rd,  I  cannot  value  it  at  lOLa 
year,  it  never  coat  me  40/. 

L.  C.  J.  Treby.  Then  for  estate  yo«  ait«dl 
enough,  but  for  value  you  are  a  little  under. 

CLofAr.  Thomas  Gollins. 

Cook,  I  accept  of  him.    [He  waa  swan.] 

CL  <fAr,  John  Watson. 

Cook.  I  do  not  challenge  biro.  [He  m 
sworn.] 

CI,  of  Ar.  Benjamin  Hooper. 

OmJL  1  accept  of  him.    [He  waa  awon.} 

CI.  ofAr.  John  Wells.  ^ 

Cook.  Sir,  are  you  a  freeholder  of  dieeiljif 
London  of  10/.  a  year  P--  Welh.  Yes,  Sir. 

Cook,  Were'  you  of  the  grand -jiirir  liMl 
founrl  the  bill  a«rainst  meP  WeiU,  No,ar. 

Cook.  I  cliallen^^e  you. 

CI.  ofAr,  John  Ilii>burt. 

Cook.  Sir,  atu  y uu  a  fr(.*eholder  of  the  city  flf 
London  of  10/.  a  year  ? — Iltbbari,  Yeii,  Sir. 

Cook.  Were  you  of  the  ^rund-jury  thatlbaid 
the  Bill  against  me  ? — Hibbart,  No,  Sir. 

Ccok.  I  challenge  you. 

CLofAr.  Mr.  Cook,  you  have  chattoMNd 
your  full  number.  Call  Daniel  Wray.  pk 
was  sworn.] 

CL  of  Ar.  John  Pettit.  [He  waa  aiiMi.] 
Cner,Countez. 

Henry  Sherbrook. 

Crier,  One,  6cc. 

CL  ifAr.  John  Pettit. 

CrieV.  Twelve  good  men  and  true,  standl»- 
gctlier,  and  hear  your  evidence. 

The  names  of  the  twelve  arc  as  follevi: 
Henry  Sherbrook,  John  Cullum,  ThottM 
Shaw"^  Richard  Young,  John  Cooper,  Jonatktf 
Mickli'thwait,  John  Wolf,  Thomas  CoillHb 
John  Waison,  Benjamin  Hooper,  Daniel  WiNt 
and  John  Pettit. 

CLof  Ar.  i  Irirr,  make  proclamation. 

Crier.    O  Yes,  If  any  one  can  into 
lord   the  king's  jusiii*es,  the  king's 

the  king's  atiorniy  general,  or  this  inq 

to  be  taken  of  the  high-treason  whereof  i 
Cook,  the  prisoner  at  t!ie  bar,  atandla  iiF 
let  them  come  forth  and  tliey  shall  he  Uttik 
for  the  prisoner  now  stands  at  the  har  I 


/&r  Hi^  Treason* 

k  t  mn)  tM  olben  Ui«t  are  bounil  b^ 

^  td  Ipve  eviJeooe  agniust  tUe  jin- 

al  Uk!  iiar,  lict  Uiem  coine  fbrlb*  and 

gi9«  tUctr  evklcQoe,  or  Ibej  fod'eit  their  recog- 

.J.  Trtby.    You  Haust  make  room  far 
twelve  ^nll«B>eti  tbat  are  sworn,  ihat 
llcjf  m^  be  at  case  ;    sod   tor  lliose  tlial  are 
QOttworti,  their  aitenclnoue  niav  be  tjuured^ 

Ci.  vfAr.  PeU-r  Co*ik,     UM  up  iby  liquid- 

[WhWb  Ue  did.]      Getil^ftK^Qi  >'ou   that  are 

twom,  look  nuMk  ihe  f^riaaner,  iuhI  hearken  to 

b»  onwe.    He  standA  iudictixl  in  London,  by 

ibe  MBe  of  Peler  i'mikt  laic  of  Loudou,  geu- 

tbam ;    fo^  thai  w  bereas  an  open  and  iioto- 

nim\f  public  and  mo«t  hlmt^  anil  cruel  war, 

Ira  4<re]it  ifrhlle  balk  Ueu,  aud  it  is  by  land 

Uil  1  . 1  ^1  OQ  and  nrosecukMl,  by  Lewis 

1*^,  ag^iiioKt  Ibe  mosi  sefcneymost 

;     t  excelleut  prioce»  our  sove- 

the  Third,  by  the  grace  of 

1,..^..-..,,,  :icotU)»d,  France,  and  ire- 

^  kiof «  dettn^r  of  Ui«  laith,  6£c.  All  which 

.  ibtr  i^iil  Lewis  ihc  French  king,  and  his 

I L'  foes  and  enemies  of 

,i(  now  is,  William  Xh/e 

Wii,  A4id  hih   Aubji'cU ;    he  ike  said  Peter 

Cook^  a  subject  of  the  said  lord  the  king  tlial 

now  iii,  of  this  bis  kiagdom  of  England,  weJl 

bowinit  the  premiiei,  not  having  the  fear  of 

<2«d  in  his  heart,  nor  wttgfaing  the  duty  oi'  hiB 

All^^ttiiioe,  but  being  moved  and  (;eduoed  by 

iW  maiigalion  of  tile  deTtI,  as  a  false  traitor 

IgjUost  llie  said  most  serene,  most  itnld,  and 

texc'»il**r't  fir!'»f>e,  our  sovereign  loril  Wil* 

I  tlie  'l  '•   king  of  England,  his  su- 

tui  ,    ^^lulj  lavirful,  and  uodoubled 

te  oordial  love,  and  true  and  due  obe- 

Mflily;  and  aileg^iaoce,  winch  every 

^cct  of  the«aid  lord  tbe  kins'  that  now  i^  to- 

iSfl  him  oiir  said  lord  tbe  king  should  bear, 

*  iioundiobear,  withdrawiu|^;  ami 

t  '^tJiiiih,  intiinding,  and  contriving', 

vyith  uli  hisstreiigtb  purnoeiinir,  aud  de- 

DiDg   the  goverDmeot  of  this  kingdum  oi 

'and,  under  him  our  said  lord  the  king  that 

I  o4*  rigiit  duly,  happily,  and  very  well 

Utwhed,  altogether  to  subvert,  cbouge,  and 

T,  and  hts  faithful  subjects,  and  tiie  freemen 

loT  this  kingdom  of  England,  into  iotolerable 

1  mtserable  servitude  to  tbe  aibresaid  Freiich 

to  subdue  and  enthral ;   the  iir$t  day  of 

'  I  the  seventh  year  of  tbe  vei^n  of  our 

ord  the  king  that  novr  is,  and  divem  days 

ime%^  ts  well  before  as  after,  at  Londou, 

\  parish  of8t.  P^tet,Cornblll,iiQ  the  ward 

^lysely,  maliciously,  deviljihiy, 

ilid  couipoiES,  inline,  and 

niispoae  and  intend,  onr  said  sofe- 
tfie  king  that  ninv  is,  then  bis  so- , 
V,  rtgklfuf,  and  lawful  brd,  of  attd 
bmn  tbe  regal  state,  title,  honour^  power, 
^msikf  enifiire^  and  govenintent  of  this  kiiig- 
ilimi 41^' fingland  to  depoiie^  cast  down,  and  ut- 
ialjr  de|irfTS,  and  ibe  s^ate  onr  lord  the  king  U» 
4mih  and  tinal  deslniotion  to  bring*  uiul  the 
^^tm^^ijewm  die  Freiiob  kiogt  «y  ortDi^? 


lllfil  oil 


iol&rB,legi«ns,  and  his  sut^ots,  tlms  klngdooi 
of  Engknd  to  inva<ie,  fi|;ht  \i  itk,  coauuer  and 
subdue,  to  move,  incite,  procuie  autl  assisL 
and  a  miserable  slaughter  cunoii^  iJie  foilhtlu 
subjectsof  our  said  lord  kin"[  William,  thrm^b- 
out  this  whole  ktu^<lam  o?  Eii^^land,  toJsak« 
and  cause.  And  iurtber^  that  tbe  said  Peter 
Cook,  during  tbe  war  atbresaid,  to  nit,  the 
aforesaid  first  day  of*  July,  iu  tbe  seveuth  year 
abovesaid,  and  dirers  other  4lays  and  times  be* 
fore  and  ailer,  at  London  atiiresaid,  in  ib^ 
parish  and  ^^ard  afciresaidf  to  Uie  said  foc^s  ajid 
enemies  of  tbe  same  our  lord  tbe  king,  did  ad* 
liere  and  was  aasisliog ;  Aad  his  aibresaid  most 
wicked  and  devilish  treasoas»  and  tnutormis 
comjiossings,  contrivances,  intentions,  and  pur» 
|io$cs  afoiesaid,  to  fulfil,  perfect,  and  bring  la 
etTect,  and  in  prosecutiou,  purformancej  and 
execution  ol'  that  traitorous  udbenug,  he  the 
said  l*eter  Cook,  us  su  b  a  Jalse  tmlior,  durk^ 
the  tvar  afurcsaid,  to  wit,  (he  same  first  day  •!' 
July,  in  tlie  year  abovesaid,  at  London  a^re- 
said,  in  tbe  uarisb  and  ward  oibresaid,  and  di- 
vers other  days  and  times,  as  well  before  ay 
after,  tliere  amlekewhere  in  Loudun  albresaid, 
falsely,  maliciously,  xidvisedly,  secretly,  and 
traitorously,  and  by  ibree  auif  arms,  with  one 
Jlobert  Chamock,  sir  John  Freind,  and  sir  Wil- 
liam Parky  US,  knights,  (which  iiaid  Roheft 
Ckamock,  sir  John  Freind,  and  sir  William 
Parkyns,  were  Jately  severally  daly  convicted 
and  ^altainlad  of  high  treason,  in  contriving  and 
conspiring  tbe  dcalb  of  our  said  lord  the  king 
that  DOW  iii)  and  with  divers  other  fidse  Irajtnc* 
to  the  jurors  unkuowrn,  did  ineet,|>copoae,  treat, 
coni.ult,  consent,  and  agree  to  procure  from  the 
afore.*5aid  Lewis  the  French  iaug,  of  \u»  sub- 
jects, forces  and  soldiers,  theu,  and  yet,  the* 
and  enemiesof  our  said  sovereign  lord  William, 
now  king  of  England,  ^c.  great  uumbera  #t' 
soldiers  and  armed  men,  this  kingdom  of  £i|g- 
land  to  juvnde  and  tight  with,  and  to  levy,  pnt- 
cure,  and  prepare  great  numbers  of  armed 
men,  and  troops,  and  legions  againat  our  said 
lord  the  king  that  <iow  is,  to  rise  up  and  be 
formed,  and  with  those  Ibes  and  eneiuiea,  at 
and  upon  such  their  invasion  and  entry  within 
this  kingdom  of  England,  to  join  and  unite,  rB- 
bellion  and  war  against  our  &aid  lord  the  loMf 
that  now  is,  within  this  king^dom  of  Eugland, 
to  make,  levy,  and  carry  on ;  the  same  our  lord 
the  king  so,  as  aforesaid,  to  depose,  and  bim  to 
kill  and  murder:  And  further,  with  the  said 
false  traitors,  Ibe  same  firHt  day  of  July,  in  the 
year  abovesaid,  at  London  aforesaid,  in  tbe 
parish  and  ward  alo/tesajil,  traitorously  did  con* 
jiult,  consent,  and  agree  to  send  the  afosesaid 
Hubert  Cbamook  m  ameaaengerfrom  him4he 
said  Peter  Cook,  and  Ibe  aa»ie  other  tr&itnv^ 
as  far  as,  and  into  the  kingdom  of  Franoe,  m 
ports  beyond  the  sens,  unto  James  the  Jiooiuid, 
late  king  of  Eugkmd,  to  pro|iost'  t»«  biiu^ audio 
reijuest  him  to  obtain  Jjom  tbe  utt>re«uul  Ff«n(ih 
king,  the»alafaaBid«dklienifmd  armed  men  tor 
the  invastfin  aiaaasaidiio  be  made,  and  lutelli- 
gence  and  notice  of  sudi  their  traitorous  inteo- 
iiioMi  attd4ulheriupsto  tbu>nid kleking  James 


347] 


8  WILLIAM  m. 


Trial  qfPeler  Cook, 


[S* 


the  Second,  and  the  said  other  foes  and  ene- 
mies, and  their  adherents,  to  give  and  shew, 
mnd  them  to  inform  of  other  things,  particulars 
and  circumstances  thereunto  referring,  for  the 
assistance,  animating,  comforting,  and  aid  of 
the  said  foes  and  enemies  of  the  said  lord  the 
long  that  now  is,  in  the  war  aforesaid :  and  to 
stir  up  and  procure  those  foes  and  enemies  the 
readilier,  ano  more  holdly  this  kingdom  of  Eng- 
land to  invade;  the  treasons,  and  traitorous 
contrivances,  compassings,  imaginings,  and 
purposes  of  the  said  Peter  Coolc  aforesaid  to 
perfect  and  fulfil ;  also  the  same  first  day  of 
July,  in  the  seventh  year  abovesaid,  at  London 
aforesaid,  in  tlie  parish  and  ward  aforesaid,  he 
the  said  Peter  Cook,  divers  horses,  and  very 
many  arms,  guns,  muskets,  pistols,  rapiers, 
and  swords,  and  other  weapons,  ammunition, 
and  warlike  matters,  and  military  instruments, 
folsely,  maliciously,  seCVetly,  and  traitorously, 
did  obtain,  buy,  gather  together,  and  procure ; 
and  to  be  bought,  gatheretl  together,  obtained 
and  procured,  did  cause,  and  in  his  castoily  had 
and  detained  to  that  intent,  to  use  the  same  in 
the  said  invasion,  war,  and  rebellion  against 
our  said  lord  the  king  that  now  b,  him  our 
said  lord  the  king,  of  and  from  the  regal  state, 
crown  and  government  of  this  kingdom  of 
England  to  depose,  cast  down,  and  deprive,  and 
him  to  kill  and  murder ;  and  the  designs,  in- 
tentions, and  all  the  purposes  of  him  the  said 
Peter  Cook  aforesaid  to  fulfil,  perfect,  and  ful!y 
to  bring  to  effect,  against  the  duty  of  his  alle- 
giance, and  against  the  peace  of  our  said  sove- 
reign lord  that  now  is,  nis  crown  and  dignity, 
as  also  against  the  form  of  the  statute  in  such 
case  made  and  provided. 

Upon  this  Indictment  he  has  been  arraigned, 
and  thereunto  has  pleaded  Not  Guilty,  and  for 
his  trial  hath  put  himself  upon  God  and  his 
country,  which  country  vou  are ;  your  charge 
is  to  inquire  whether  he  be  guilty  of  the  high 
treason  whereof  he  stands  indicted,  or  not 
guilty  ;  if  you  find  him  guilty,  vou  are  to  en- 
quire what  goods  or  chattels,  lands  or  tene- 
ments, he  had  at  the  time  of  the  hip^h  treason 
committf'd,  or  at  any  time  since  ;  it  yon  find 
him  not  guilty,  you  are  to  enquire  whether  he 
fled  for  it ;  if  you  find  that  he  fl<*d  for  it,  you 
are  to  enquire  of  his  ^004ls  and  chattels  as  if 
you  had  found  him  guilty ;  if  you  find  him  not 
guilty,  nor  that  lie  did  fly  for  it,  you  are  to  say 
so,  and  no  more ;  and  hear  your  evirience. 

Blr.  Mmnpesson.  May  it  please  your  lord- 
ship, and  yon  gentlemen  that  arc  sworn,  this  is 
an  indictment  for  high  treason  ot^iust  Peter 
Cook,  the  prisoner  at  the  bar,  and  the  indict- 
ment sets  forth,  that  whereas  there  lias  been  an 
open  and  cruel  war  for  a  long  time,  and  still  is 
between  his  majesty  king  William  and  the 
French  king ;  Uie  prisoner  at  the  bar  not 
weighing  the  duty  of  his  allegiance,  the  first  of 
July  in  the  rth  year  of  the  king's  reign,  did 
compass  and  intend  to  depose  and  deprive  the 
king  of  the  title,  honour,  and  dignity  of  the 
imperial  crown  of  this  realm,  and  likewise  to 
put  the  king  to  death,  and  did  adhere  to  the 


king's  enemies ;  and  to  fulfil  these  treaMHia.  b 
did  consult  with  Chamock,  and  several  oihe 
traitors  who  were  mentioned  there,  and  some  o 
whom  have  been  found  guilty  of  treason,  ani 
executed  for  it^  to  send  over  to  the  late  kioj 
James,  to  persuade  the  French  kin?  to  seo( 
over  soldiers  and  arms  to  invade  this  kingdom 
and  to  raise  an  insun^ection  and  rebellioo  in  il 
and  to  deprive  and  put  the  king  to  death ;  ani 
to  complete  these  treasons,  it  further  sets  fortb, 
that  the  prisoner  at  the  bar  did  provide  several 
arms  and  horses,  and  this  is  lain  to  be  agaioH 
the  duty  of  his  allegiance,  against  the  king*! 
peace,  crown  and  dignity,  and  against  the  fona 
of  the  statute  in  that  case  made  and  iirovidfd; 
to  this  he  has  pleaded  not  guilty,  and  lor  UM 
put  himself  upon  the  country  ;  and,  gealle- 
men,  if  we  prove  these  facta  laid  in  tbeiodlet- 
ment,  it  is  your  duty  to  find  him  guilty. 

Att.  Gen.  May  it  please  your  lordsliip,  sid 
vou  gentlemen  ot  the  jury,  the  prisoner  aldw 
bar  stanils  indicted  for  high  treason. 

Cook.  My  Lord  Chief  Justice,  ifyourlorf- 
ship  pleases,  before  the  witnesses  are  eisnin- 
ed  agamst  me,  I  intreat  you  that  they  msysil 
be  both  in  court  together,  that  one  may  not  bar 
what  the  other  swears,  though  I  suppose  it  ii 
the  same  thing  ;  for  they  have  been  tsgeibff 
both  now  and  the  last  day. 

L.  C.  J.  Trebi/.  Mr.  Cook,  I  roust  tdl  ym, 
it  is  not  necessary  to  be  granted  for  asking ;  lir 
we  are  not  to  discourage,  or  cast  any  i 


upon  the  witnesses,  when  there  is  notkiif 
made  out  against  them  ;  but  it  is  a  fovoar  tksi 
the  court  may  j^rant,  and  does  gram  sometioMi^ 
and  now  does  it  to  you  ;  though  it  be  net  «f 
necessity  ?*  They  shall  be  examined  apart,  btf 
at  present  this  is  not  the  time  of  examinslioa: 
for  the  king's  counsel  arc  now  to  open  the  evi- 
dence before  they  examine  the  witnesses;  bat 
when  the  time  comes  for  the  witnesses  to  k 

*  It  is  noticed  bv  Mr.  Peake,  Compendial 
of  the  Law  of  Evidence,  ch.  3,  s.  6,  in  a  Nslc^ 
that  it  appears  that  the  present  practice  of  «- 
deriug  witnesses  out  of  court  during  the  mo- 
gress  of  a  cause,  so  as  to  prevent  them  mm 
hearing  the  testimony  of  others,  is  very  aocint; 
and  he  cites  from  Forlescue  de  Laudibus  Le« 
gum  Anglis,  c.  2G,  the  following  passage: 
*'  Et  bi  necessitas  exegerit  dividantur  tesM 
hujusmodi  donee  ipsi  de|)osuerint  quicquid  fe- 
lint  ita  quod  dictum  unius  non  doceoit  autooa" 
citabit  eorum  aliuiu  ad  cousimiliter  teatificu* 
dum." 

Sec,  also,  1  Siderfin,  131. 

In  the  Case  of  captain  Thomas  Vaughan,  ■ 
this  same  year  169G,  in  this  Collection,  il  a 
said,  that  a  prisoner  cannot  insist  as  on  a  rigkl 
on  the  removal  out  of  court  of  the  witM 
for  the  crown  during  the  examination  of  i 
other. 

Mr.  Peake  (ch.  3,  s.  C),  omita  not  to  i 

the  advantages  of  examming  witnesseaifttkl 
absence  of  each  other:  which,  indeed,  is.iMi 
illustrated  by  the  ancient  narrative  in  ^  Afft 
cry pha,  of  Susaonali  and  the  EUen. 


^«9] 


for  High  Treasdn. 


|Sl«d  and  examined,  the  court  will,  in  favour 
I],  take  care  lUat  your  request  becomi^ietl 

f.  Gen.  May  it  please  your  lordship^  the 

OCT  stands  indicted  for  hi^h  treason,  id 

'd^  and  imagining'  tlie  death  and  de- 

of  bis  majesty,  and  likewise  in  ad- 

J  to  bit  majesty's  enemies  ;  tiiese  are  the 

oni  specified  in  the  indictment  :  the  overt 

that  are  laid  to  prore  these  trea^ns  are, 

ribtt  he,  with   several  other  traitors  named  in 

.  fbe  indictment,  did  meet  and  consult  and  agree 

I  ti  send  oirer  Charnock  into   France,  tu  invite 

Ibe  French  king-  to  make  an  invasion  upon  the 

hiflgdom,  and  did  provide  arms  fur  that  pur- 

jam. 

Gentlemen,  the  nature  of  the  evidence  that 
jttH  will  have  prviducetl  to  prove  the  prisoner 
giilty  of  tbe^  treasons  lies  thus :  It  will  ap- 
p(tr  UiyoQ,  that  there  has  heeo  fur  some  time 
iMQSptrscy  carried  on  by  several  traitors,  and 
wicked  peiiions,  to  subvert  the  estAblicihed  go- 
Hmtient  of  this  kingdom,  and  destroy  the 
I  cooitjtution  of  England,  by  a  foreijtn^  invafiion 
ofthe  French.  You  will  hear  that  this  con- 
ipincy  was  laid  wide,  and  consisted  of  several 
]«rti ;  on<!  part  was  that  of  assa&sinating  hia 
Q^^y's  royal  person,  and  that  was  to  be  done 
fim,  ss  a  preparation  and  encouragement  to 
4fce French  to  invade  the  kingdom:  the  other 
fVt  was  the  inviting  the  French  king  to  invade 
1  tlie  prisoner  at  the  bar  is  accused  of  be- 
Doerneii  in  thtt  part  that  relates  to  the 
I  of  thrti  kingdom  by  a  French  power ; 
ngb  it  may  be  the  other  part,  that  of 
naihig  the  Kin^,  he  the  blackest  part  of 
iincy»  yet  if  the  prisoner  at  the  bar 
,  engaged  in  the  inviting  a  foreign 
to  inva^le  the  kingdom,  my  lords  the 
I  will  tell  you,  in  pomt  of  law,  that  is  as 
I  overt-act  of  the  compassing  the  de- 
I  oflbe  king  and  the  people  of  England, 
i  flubvennon  of  our  ancient  good  consti- 
lifllMi,  as  if  he  had  been  concerned  immediately 
ttike  other  part,  the  assassination. 

hut  now,  gentJ«;men,  that  the  prisoner  was 
eij^ged  in  inviting  the  French  to  invade  us, 
?0Q  irtll  bear  proved  by  several  witnesses,  that 
tbcie  baving  been  a  design  last  year,  just  be- 
ft«t  bii  majesty  went  to  Flanders,  to  eicpoae 
^OVQ  pevaon  for  our  protection,  and  the  pro - 
ttetion  of  tbe  liberties  of  Europe,  there  was  a 
CQQlpiinicy  to  murdar  him  betbre  he  went  to 
Flmdem,  which,  it  seems,  they  were  not  ripe 
for  then;  hut  immediately  after  he  was  gone 
laFbadeim,  you  will  bear  there  were  forma) 
tenittl^  of  several  gentlemen  and  persons  of 
ftali^,  among  ivhom  the  priiioncr  at  the  bar 
iru  one:  there  was  a  meeting  in  May,  last 
.  mUer  the  king  was  gone  to  Flanders ;  and 
(at  the  Old  Ring^s-Head  in  Leaden- 
and  there  were  present  my  lord  ot 
ary,  mr  lord  Montgomery,  sir 'William 
a,  sir  John  Freind,  Mr.  Charnock,  (all 
I  three  last  have  suftered  the  punishment 
i  law  for  their  treason  already)  and  there 
^ftlM  Ml*  Cook,  the  prisontr  at  th^  bar, 
4 


jlilgiav 


A.  D*  1696.  [350 

Mr.  Porter  and  Mr.  Goodman  ;  these  men  did  ^ 
meet  together,  to  consider  of  the  best  ways  aaj 
means  of  encouraging  and  inviting  the  Frendt ' 
king  with  an  armed  force  to  invade  this  kiag- 
dom  ;  they  considered  that  that  wa^  a  propei; 
opportunity,  and  did  treat  of  several  arguments 
that  might  persuade  to  it :  First,  That  the  king 
was  gone  to  Flanders,  and  so  was  not  in  persoi| 
here  to  defend  us  ^  and  that  the  troops,  to  maktt>. 
good   such  defence,  were  in  a  groat  measure  ' 
drawn  thither,  to  assist  the  allies  againit  the 
French  power;  they  did  think  likewise  that 
at  that  time  there  was  a  great  discontent  and 
dissatisfactioQ  in  the  nation,  though  T  think  ia  * 
that  they  were  greatly  mistiiken  ',  and  I  believe  , 
and  hope  they  will  always  find  themselves  so^ 
to  think  that  the  people  of  England  are  so  liUl^  J 
sensible  of  that  which  is  the  meauH  of  their  pre*^ 
serration,  as  to  hearken  to  any  disconteuls  to  ] 
encourage  a  French  power  to  come  into  Eug^  i 
land  to  destroy  oor  religion  and  liberties  ;  tba|  ] 
indeed  they  did  apprehend,  though  tliey  werf  ^ 
mistaken,  and  I  believe  they  always  will,  wbea  , 
they  go  upon  thot  ground, 

fientlemen,  These  persons  thinking  tbta  ft  { 
proper  opportunity,  did  a^pree  to  send  a  messeiir  J 
ger  into  France  upon  tins  message,  To  go  t^^ 
the  late  king  James,  and  persuade  him  X»  . 
desire  and  prevail  with  the  French  king  to 
assist  him  with  ten  thousand  men,  8,000  foot,-] 
1,000  horse,  and  1,000  dragoons;  and  to  en*  f 
courage  him,  they  promised  their  assisiaoctl 
here,  as  soon  as  lie  came  over  ;  and  under* 
took,  that  between  them  they  could  furnish |  \ 
and  would  raise  2,000  horae  to  meet  him  it 
hia  landing,  and  join  upon  aucb  an  invasion. 

Genllenien,  At  this  meeting  this  was  agreed 
upon  by  all  iJiat  were  there,  whereof  the  pn« 
soner  was  one  ;  and  they  did  agree  to  send ' 
Mr.  Charnock  ;  (who  has  since  been  ejcecuted,  i 
and  a  principal  encourager  of  the  design,  and  ^ 
actor  in  it)  he  was  the  messenger  that  was  ap- 
pointed to  go  ujMiii  this  errand,  and  Mr.  Chat- 
nock  was  resolrefl  to  go  ;  hut  desired  another  I 
rotating  of  these  gentlemen,  to  kuow  if  they  ^ 
continued  ia  their  former  resolution,  that  ht  J 
might  have  all  the  assurance  that  was  rea;-^] 
son  able  to  give  the  French  king  encourage-T 
m en t to  make  the  invasion:  accordingly  ano*^ 
Iher   meetiog  was  bad  af  moat  of  the  s 
persons  that  were  at  the  meeting  before  ;  par-  ^ 
ticularly  the  prisoner  at  the  bar  was  at  tbatl 
second  meeting,   which  was  in  Covent'Gac>i 
den    at  one   Mrs.    Mountjoy's,    who    ke^paj 
a  tavern    nei[t    door    to  sir  John  Fenwick'f  ] 
locrgii^s  ;    there    they  met  upon    the   same^ 
design,  and   upon  consultation  had,  and  the] 

auestion  asked,  they  did  agree  to  contiuue  inj 
le  former    resolution  ^    and    upon   that  im^i 
mediately   Mr.   rharnock  went  into   FrancetJ 
to  aohcit  forces  from    thence  to  invade  us  j 
but  it  happened,  as  it  seems,  that  the  Frenc 
king^a  forces   were   otherwise    employed, 
that  he    could  not    spare  so    many  at    th^ 
time ;  and  this  return   wa^  brougiit  by  Char- 
nock  to  the   gentlemen  that  employed  himj 
that  be  bad  8pok«  with  tbt  Iat«  king,  vvbo  gavr  * 


»l} 


8  WILLIAM  111. 


[SSi 


him  tbtt  iDSwer,  That  the  French  king  could 
not  tnre  so  miiny  men  at  that  time,  but  he 
IbanKed  them  for  their  kindness. 

Gendemen,  this  will  be  the  nature  of  our 
efidence,  to  slicw,  that  the  prisoner  at  the  bar 
was  eoneemed  in  that  part  of  the  conspiracy 
irhich  relates  to  the  French  iiirasion  ;  and  if 
he  be  guilty  of  that,  in  point  of  law,  be  is  as 
much  guilty  of  the  conspiracy  to  depose  and 
murder  the  king,  as  if  he  had  been  concerned 
in  the  other  part  of  assassinating  his  royal 
person  ;  and  1  believe  nobody  can  think,  that 
those  that  were  to  act  in  tne  assassination, 
would  have  attempted  to  engage  in  such  a  des- 
perate design,  if  it  had  not  been  for  the  encon- 
ngement  of  the  French  invasion  that  was  to 
second  them  afterwards,  if  they  suct*eeded  ;  so 
that  nobody  can  extenuate  the  crime  of  the 
iavaaion,  because  as  to  the  horridness  of  the 
attempt,  it  is  less  black  than  the  other ;  they 
■re  both  crimes  of  a  very  high  nature,  and 
equally  hi^h-treason ;  and  if  we  prove  the 
— i J.  gruilty  of  this  part,  we  hope  you  will 


ind  him  guilty. 

Oen.  My  lord,  we  will  call  our  mt- 


Sol. 


and  prove  the  matter,  as  it  has  been 
opened.    Call  captain  Porter  and  Mr.  Good- 


Serj.  Darnall.  Now,  my  lord,  we  must  de- 
wln  that  that  may  be  done  which  our  client 
desired  before,  and  whidi  yonr  lordship  was 
fiivourably  pleased  to  promise,  that  the  wit- 
nesses may  be  examined  apart. 

L.  C.  J.  Treby.  Let  it  be  so  :  who  do  you 
beffin  with  ? 

Sol.  Oen.  We  begin  with  captain  Porter, 
ray  lord. 

L.C.  J.  Treby,  Then  let  Mr.  Goodman  witli- 
draw. 

Mr.  Baker.  T^etMr.  Goodman  go  up  stairs^ 
and  we  will  call  him  presently. 

Sol.  Gen.  Swear  captain  Porter :  [wliicli 
was  don*e.]  Captain  Porter,  Do  you  know  Mr. 
Cook,  the  prisoner  at  the  bar  ? 

Cant.  Porter.  Yes,  my  lord. 

Sot.  Gen,  Do  you  remember  a  meeting  of 
some  gentlemen  at  the  King's-Head-tavern  in 
Leaden-hall-street  ?'^Porter.  Yes,  I  do,  Sir. 

Sol.  Gen.  Then  pray,  give  an  account  of  the 
company  that  were  there,  the  time  when,  and 
what  passed  ? 

Porter.  My  lonl,  the  last  year  we  had  two 
meetings  ;  the  first  was  in  May,  the  other  was 
the  latter  end  of  May,  or  the  beginning  of 
June;  the  first  was  at  the  Ring*s-Head  in 
Leadeiihall -street ;  there  were  my  lord  of 
Aylesbury,  my  lord  Montgomery,  sir  John  Fen- 
wick,  sir  John  Frcind,  sir  WfUiam  Parky ns, 
Mr.  Chamock,  Mr.  Cook,  and  myself;  Mr. 
Goodman  came  in  after  dinner  ;  at  this  meet- 
ing it  was  consulted  which  was  the  best  tvay 
and  the  quickest  to  restore  king  James,  ami 
hasten  his  return  into  England;  several  dis- 
courses  and  proposals  there  were;  at  last  it 
was  agreed  to  send  Mr.  Chamock  to  the  late 
king,  to  borrow  of  the  French  king  10,000 
men,  8,000  fcot,  i,000  hm^t  aod  1,000  dra- 


TridofPaerCookt 

goons,  to  he  sent  over  into  England  ta  aaisttbi 
ling's  restoratMMi.  Says  Mr.  Charaaek  there- 
upon, This  the  king  can  do  without  your  vend- 
ing,  and  I  would  not  go  upon  a  ibohsh  emsd. 
Wiiat  will  you  do  to  assist  in  this  matter?  Hie 
com))any  desired  him  to  promise  king  Jamo^ 
that  if  lie  would  send  word  when  he  hioM 
and  where,  they  would  be  sure  to  meet  him  at 
his  landing  with  a  body  of  2,000  horse. 

Att.  Gen.  Was  the  prisoner  at  tlie  bar  ii 
the  company,  and  present  at  this  icsolulioo  F 

Porter.  Ves,  he  was. 

Att.  Gen.  Did  all  the  company  agree  la  it  f 

Porter.  Yes,  they  dki. 

Att.  Gen.  What  signs  were  there  ef  Ibdr 
agreement  ?  Did  they  stand  up  severally  sad 
declare  their  agreement,  or  liow  ? 

Purter.  Mjr  lord  of  Aylesbury  and  ar  Jskt 
Fenwick  did  rise  up,  and  deairedcaptaia  Cbv^ 
nock,  that  he  would  go  upon  this  etrand :  m4 
when  the  question  was  asked  severalWsf  il 
there  present  by  Mr.  Chamoek,  wheuflr  lis 
might  assure  the  king  of  what  they  bad  M 
him?  every  one  said,  Ysa,  you  may;  mI 
Mr.  Cook  kneeled  indeed,  upon  a  chair,  mk 
said.  Yes,  you  may. 

Att.  Gen.  Did  lie  give  his  eonaeattoitF 

Porter.  Yes,  he  answered  14  tboaa  wiy 
words. 

Sol.  Gen,  Do  you  remember  any  1 
of  any  company  at  Mrs.  Mount|oy's  * 

Porter.  Yes,  that  was  a  aeoonif  BMete. 

Sol.  Gen,  I^y  tell  my  tord  and  the  jay 
how  you  came  to  meet  there  then,  what  wth 
pany  were  tlicre,  and  what  passed  ? 

Porter.  Mr.  Chamock  ilesircd  another  nett- 
ing, to  see  if  the  gentlemen  kept  to  their  feraMr 
resolution  ;  and  we  met  at  Mrs.  Mooatjiy^ 
eight  or  tea  days  after,  and  there  were  rasit  tf 
the  company  that  was  at  the  first  meeting,  sii 
there  all  that  were  present  did  assure  Hr. 
Chnmock  that  they  kept  to  their  first  vas> 
lution,  and  would  abide  to  what  was  agitti 
upon  at  the  ft>rmer  meeting. 

Att.  Gen.  Who  were  present  at  the  ssflsal 
meeting  P 

Porter.  The  prisoner  at  the  bar  was  theiaik 
that  second  meeting. 

Att.  Gen.  What  was  that  second  meeli|[ 
for,  do  you  say  ? 

Porter.  It  was  to  give  Mr.  Chamock  &h 
surancp,  that  we  were  agreed  to  stand  bytbi 
resolution  taken  at  the  first  mcethig. 

Att.  Gen.  What  did  Mr.  Chamock  do  sA«- 
wards? 

Porter.  I  went  away  from  them;  thcieaii 
sir  William  Parkyns,  sir  John  Kreind  tA 
captain  Chamock  went  to  the  QueenVH«l* 
tavern  in  Fleet-street,  and  captain  ChanNdk 
teld  me  he  would  go  in  two  or  three  days,  flii 
I  believe  did  so. 

Att.  Gen.  When  did  you  see  hfm  ttHth 
wanis  ? 

Porter.  When  I  was  a  prisoner  upoa  #i 
account  of  the  riot  in  Drury-Lane  ;  abaal  i0f 
or  three  days  after  I  came  to  Newnftl  ii 
came  to  see  me^  and  said  he  liad  Mili 


Jbr  High  Treason* 

aadthat  kin^  James  tlianked  us  for  our 
T,  bal  ibe  French  kiii||^  could  not  spare 
r  men  that  year ;  and  he  toid  me  he 
I  with  my  lord  of  Aylesbury,  and  the 
le  gentlemen  that  had  employed  him 
nr*  and  had  delirered  them  the  several 
I  thai  he  was  ordered  to  from  the 

J.  Treby.  Captain  Porter,  who  were 
U  the  second  meetins^,  do  you  say  P 
f.  M^  lord  of  Aylc»bury,  sir  John 
sir  William  Parkyns,  captain  Char- 
[r.  Cook,  and  myself;  I  cannot  tell 
my  lord  Mont^mery  or  Mr.  Good- 
ie at  that  second  meeting,  or  no. 
wen.  Captain  l^irter,  1  would  ask  you 
qnestioQ  :  you  were  concemc<l  in  the 
ition  with  those  other  persons  tl^at  en- 
I  it ;  Pray,  what  safety  did  you  pro- 
^'ouraelres  after  the  assassination  was 

r.  My  lord,  1  asked  sir  George  Bar- 
a  wc  should  do  afW  the  fact  was  com- 
says  he.  You  need  fear  nothing,  I 
iway  that  nifi^ht,  I  have  a  ship  ready, . 
king  will  be  landed  in  five  or  six  days 
ds ;  if  you  will  but  keep  yourselves 
so  many  days,  all  will  do  well. 
en.  If  the  prisoner  or  the  counsel  will 
any  questions,  my  lord,  they  may 

Shower,  Pray,  Sir,  can  you  recollect 
le  of  day  this  was  that  this  debate  and 
D  were  had  at  the  Old  King's- Head 
nhall-street  ? 
*.  Truly,  sir  Bartholomew,  I  cannot 

SkoKcr,  Pray,  by  what  means  do  you 
that  this  was  in  the  month  of  Nay  ? 
'.  Because  capt.  Charuock  was  ah- 
ihe  Dog-tavern  riot,  which  was  the 
fune. 

Shower.  Was  it  not  in  April  ? 
'.  No,  Sir,  to  the  best  of  my  remem- 
was  in  May. 

Shower.    What  makes  you  think  it 
[ay  rather  tlian  April  P 
-.  I  have  told  vou.  Sir,  because  both 
I  were  hetbre  tne  Dog-tarern  riot,  the 
luiie,  and  Blr.  Charuock  was  not  there 
me ;  but  he  told  me  afterwards  he  had 
?rance,  and  there  were  eight  or  ten 
urence  between  the  two  meetings. 
len.  My  lord,  if  they  have  done  with 
rouM  ask  him  one  question,  to  settle 
ter  in  point  of  time.    Capt.  Porter, 
!  king  gone  to  FUmders  when  you  had 
ctino^sP 
-.  The  king  was  gone,  Sir,  before  the 

(Big. 

rca.  The  king  did  not  go  till  several 
llaT ;  was  Mr.  Goodman  there  P 
\  Ha  was  at  the  first  meeting,  but  I 
nil  whether  he  was  at  the  second 

DtsnMl/.  Prmy,  what  time  was  Mr. 
■  ihare  si  tlw  first  DIM 


A.  D.  1696. 


[S54 


UII. 


tmMtingP 


Porter.  He  came  up  after  dinner  at  the  first 
meeting. 

Mr.  Baker.  Then  call  down  Mf.  Goodman. 
[Who  came  in  and  was  swoni.l 

1S0/.  Gen,  Mr.  Goodman,  Pray  will  you 
gfive  ray  lord  and  the  jury  an  account  what 
vou  know  of  an  intended  invasion  upon  this 
Kingdom  ^  what  were  tlie  circumstances  of  it, 
and  who  were  concerned  in  it. 

Goodman,  My  lord,  about  the  middle  of 
May  last,  or  thereabouts,  captain  Porter  sent  to 
me,  and  toid  me  there  was  a  meeting  of  some 
gentlemen  of  our  acquaintance  at  the  King's- 
bead  in  Leaden  hall-street;  and  he  desired  ma 
that  I  would  be  there,  because  it  was  about  bu- 
siness :  i  told  him  I  did  not  know  whether  1 
could  be  there  at  dinner ;  but  however  I  would 
not  fail  of  coming  thither  after  dinnrr ;  and 
accordingly  I  came.  When  I  came  into  the 
house,  I  sent  up  my  name  to  captain  Porter, 
and  he  came  down  and  brought  me  up  stairs, 
and  there  I  saw  my  lord  Mont^mery,  my  lord 
of  Aylesbury,  sir  John  Fenwick,  sir  William 
Parkyns,  sir  John  Freiud,  Mr.  Charnock,  and 
that  gentleman  at  the  bar,  Mr.  Cook  :  when  we 
were  there,  the  discourse  was,  that  wc  did 
think  king  James's  coming  was  retarded,  and 
we  would  do  any  thing  to  facilitate  his  rcsto* 
ration. 

Cook.  My  lord  chief  justice. 

L.  C.  J.  Trc^jf.  What  say  you,  Mr.  Cook? 

Co(ik.  My  lord,  if  your  lordship  pleases,  I 
desire  the  jury  may  not  be  talked  to  by  any 
body  ;  and  I  understand  there  are  some  talking 
with  the  jury. 

L. C.  J.  iWln/.  Vy  upon  it!  we  will  lay 
any  body  by  the  heels  that  do  so;  they  must 
neither  be  disturbed,  nor  instructed  by  any  bf>dy. 

Cook.  My  lord,  I  am  informed  there  was 
somebody  talking  to  them,  and  telling  them 
this  was  the  same  case  with  sir  John  Freind. 

L.  C.  J.  JVehi/.  Do  you  but  shew  us  the 
man,  and  we  will  find  another  place  for  him  ; 
we  will  send  him  to  the  gaol,  I  will  assure  you. 

Mr.  Burleigh.  This  gentleman,  my  lord, 
did  hear  such  a  discourse  to  the  jury  (pointing 
to  a  gentleman  there)  who  stood  up. 

My  lord,  I  cannot  |>ositive1y  swear  to  tlie 
man,  but  I  did  hear  some  discourse  that  it  was 
the  same  evidence  as  in  the  former  trial. 

L.  C.  J.  Trebi/.  If  you  can  shew  us  who  it 
was,  we  will  take  care  to  punish  him :  I  sup- 
pose he  stands  corrected  ;  and  if  we  knew  who 
he  was;  he  should  stanil  committed.  ' 

Att.  Gen.  Pray,  Mr.  Goodman,  begin  again, 
and  tell  what  passed  at  that  meeting,  bemuse 
the  jury  were  interrupted  from  hearing  by  peo- 
ple's buzzing  about  them. 

Goodman.  My  lord,  when  captain  Porter 
brought  me  u^)  into  the  room,  I  told  you  wliat 
gentlemen  I  tound  there  ;  after  we  were  set 
down,  there  was  a  consultation,  that  consider- 
ing the  Freneh  king's  wars  rcurded  the  affair 
of  sending  back  king  James,  and  the  means  of 
restoring  him  to  the  crown,  it  was  fit  we  should 
find  out  some  way  or  method  to  facilitate  'his  . 
restoration,  and  it  was  thought  convenient  to 


?55]  8  WILLIAM  IIL 

bave  a  messenger  to  send  orer  to  kio^  James 
witli  proposals  for  that  purpose ;  to  this  effect, 
as  near  as  1  renoember,  That  if  king  James 
could  prevail  with  the  French  kiog^  to  fumisii 
]0,000  men,  whereof  8,000  to  be  foot,  1,000 
horse,  and  1,000  dragoons,  we  would  endeavour 
10  meet  him  at  the  head  of  as  many  horse  as  we 
could  raise,  to  sustain  those  forces  at  their  land- 
iu,:; :  this  was  debated  in  order  to  come  to  a  re- 
solution ;  and  much  difficulty  there  was  how 
many  the  number  should  be ;  the  man  pitched 
upon  to  be  sent,  was  Mr.  Chamock ;  and  ailer 
some  debate,  how  many  thousand  horse  could 
be  raised  :  says  Mr.  Charnock,  do  not  let  me 
go  over  upon  a  foolish  errand,  but  let  mc  know 
what  I  have  to  say  exactly :  thereupon  it  was 
concluded  by  all,  that  2,000  horse  should  be 
the  number  we  could  promise,  and  the  king 
might  de|>end  upon  them  ;  and  if  we  brou^t 
more,  so  much  the  better ;  and  sir  John  Fremd 
said,  I  believe  he  has  so  many  friends  here, 
that  if  he  came  himself,  he  might  be  welcome ; 
but  that  wo  did  not  think  fit  to  trust  to  ;  and 
nobody  would  advise  any  such  thing.  When 
the  resolution  of  the  thing  and  the  number  was 
thus  fixed,  Blr.  Clinrnock  asked,  whether  it 
were  with  all  our  consents  P  and  that  he  might 
assure  the  king,  tliat  this  was  our  resolution 
thereupon  ?  We  all  rose  up,  and  said  to  htm, 
Ves,  you  may,  yes,  you  may,  every  one  par- 
ticularly ;  an(l  I  remember  one  thing  particu- 
larly concerning  the  prisoner  Mr.  Cook,  that 
•  he  Kneeled  upon  the  chair  when  he  said.  Yes, 
you  ma}' ;  and  his  elbows  were  upon  the  table: 
this  is  a^l  that  I  know  of  that  meeting.  There 
was  to  be  another  meeting,  as  captain  Porter 
told  mc ;  but  I  had  business  in  the  city  ;  but 
whatsoever  he  ]>roniised  on  my  behalf,  as  to 
the  quota  of  men,  I  would  be  sure  to  make  it 
^'ood  ;  and  I  was  not  at  the  second  meeting. 

Att.  Gen.  Did  you  see  Mr.  Chaniock  af- 
tcrwanls  ? 

Gcodman.  \es^  I  did,  when  he  came  back  ; 
;:nd  he  told  luo  the  thing  was  not  acccptetl,  for 
ihc  French  king  could  not  spare  men,  and  that 
lie  had  he«".i  xsllh  the  several  gentlemen  to  carry 
them  tilt'  compliineiits  that  ho  had  in  charge 
from  king  James,  \*horeturnid  tlicin  thanks 
fur  their  j;ood  aflcciion  ;  and,  ainon'^f  the  rest, 
U6  did  M)t>  tiie  honour  to  return  me  thanks  too. 

Sir  B.  SfMU'cr.  Pray,  Mr.  Goodman,  let  me 
ask  you  a  question :  \vhen  was  it  that  you  saw- 
Mr.  tharnock  after  thiai* 

Goodman.  It  was  in  Arundel-street,  at  his 
lodgings. 

8ir  h.  Shoticr.  But  I  ask  you.  Sir,  when 
It  was?  was  it  before  or  after  the  10th  of 
June? 

Gootlman.  It  was  after  the  10th  of  June,  Sir. 

Sir  B.  Shtncer.  How  long  after,  pray  ? 

Gaodman.  I  believe  it  was  a  month  after  tlie 
10th  of  June. 

Sir  B.  Shotrer,  Did  you  see  him  here  in 
England  bttbre  Mr.  Porter  was  discharged 
from  the  riot,  and  came  out  of  Newgate  ? 

Goodman.  I  believe  I  did  eee  him  before 
•aptftin  Porter  waa  diicbacged,  long. 


Trial  of  Peter  Cook, 


[SSS 


Serj.  DarnalL  Who  were  the  peisous  tint 
were  present  at  that  meeting  ? 

Goodman.  My  lord  Blontgomery,  my  lofdtf 
Aylesbnry,  sir  John  Fenwidc,  air  John  Frdod, 
sir  William  Parkyus,  Mr.  Chaniock»  captiia 
Porter,  and  the  prisoner  at  the  bar,  Mr.  Cook. 

Serj.  DarnalL  Were  you  at  dinner  with 
them.  Sir  ? 

Goodman.  No,  I  came  in  after  dinner. 

Serj.  DarnalL  Pray,  what  house  was  it,  4k 
you  say,  this  meeting  was  at? 

Goodman.  It  was  at  the  KJng*8-heMi  ii 
Leailen  hall-street. 

Sir  B.  ShoRyer.  Can  you  tell  what  day  of  die 
week  it  was  ? 

Goodman.  No,  nor  the  day  of  the  month. 

Sir  B.  Skomer.  Was  you  erer  in  the  com* 
pany  of  these  gentlemen  at  any  other  time? 

Goodwin,  No,  this  was  the  only  time  that  1 
heard  of  this  consultation :  I  was  not  at  lilt 
second  meeting. 

Cook.  If  your  lordship  j^eases,  may  1  uk 
Mr.  Goodman  any  questions  ? 

L.  C.  J.  Trcby.  Yes,  by  all  means  ask  Ini 
what  you  will. 

Cook,  Mr.  Goodman,  you  are  upon  yov 
oath:  but  did  yon  ever  bear  me  speak" ta 
woixls  in  your  life  P  Was  you  ever  in  my  cauh 
imny  in  any  house,  before  or  since  ? 

Goodman.  Yes,  Sir ;  I  was  in  your  ooB- 
pany  at  the  Cock  m  Bow-street,  where  yaa 
came  in  accidentally. 

Cook.  Did  you  ever  hear  me  talk  of  the  |t- 
vernmenty  or  any  thing  of  that  nature  ? 

Goodtnan.  What  the  discourse  was  of,  I 
cannot  particularly  say,  but  I  am  certain  yoa 
was  there:  and  as  to  the  consultation  thtt  I 
now  speak  of,  I  remember  very  well  yon  save 
your  consent  in  thatlnaiiner  as  I  hare  told  tkt 
court. 

Au,  Gen.  My  lord,  we  have  done  at  tha 
present. 

L.  C.  J.  Trcby.  Then,  brother  DanaD, 
what  say  you  for  the  prisoner  ? 

Serj.  ^DarnalL  May  it  please  vourlordihipi 
and  you  gentlemen  of  thejurv  :  I  am  of  coon- 
sel,  in  tKis  cose,  iur  the  prisoner  at  the  bar, 
Mr.  Cook,  who  stands  indictiMl  of  a  very  gnat 
offence,  no  less, gentlemen,  than  high- treafoa^ 
and  if  he  be  guilty,  his  punishment  will  be  aa 
great;  but  because  the  puuishment  and  Ikt 
ofletice  are  both  very  great,  the  law  reqmNi 
exact  positive  proof,  and  that  by  two  credikl» 
witnesses.  There  have  been  two  indeed  that 
have  been  produced  to  >ou ;  and  if  you  believt 
hotli  of  them,  after  what  we  shall  otfer  to  yM 
against  them,  and  if  what  they  swear  be  trM^ 
the  prisoner  is  guilty  ;  hut  it  we  satisfy  jMj 
that  either  of  them  is  not  to  be  credited,  ao  thil 
you  do  not  believe  both  of  them,  be  most  IM 
acquitted. 

There  is  no  doubt.  Gentlemen,  but  there  h0 
been  a  villainous  horrid  plot ;  there  is  do  qM»* 
tion  of  it;    and  it  was,  as  it  has  been  op( 
basely  to  assassinate  one  of  the  bravest  I 
living ;  antl  to  make  the  happiest  people  ka  I 
world,  if  they  know  when  tliey  utm  eo^  I 


57] 


Jbr  High  Treason, 


A.  D.  iGae. 


[358 


ml  miwrable  people  upon  eartbi  by  briDgingf 
wm  ttDder  French  tyranny  and  elarery. 
liny  oftbetraitori  have  been  brouj^ht  tojust 
aniihinent  for  tbia  treason ;  nay,  they  have 
vaed  the  Tact  at  their  deaths,  ao  that  there 
I  no  qurstioii  of  the  trutli  of  it ;  and  therc- 
'ore,  gentlemen,  every  honest  man  will  en- 
ieavoiir  to  brin**'  such  as  are  plainly  guilty 
)f  sach  an  abominable  conspiracy,  to  just  pu- 
hidinient;  hut  yet  they  will  be  as  careful 
iMt  to  let  an  innocent  man  suffer;  that, 
^eQilemen,  every  honest  man  will  take  care 
ot'.  ind  especially  such  as  are  upon  their  oaths : 
it  concerns  a  jury  highly  to  he  satisfied  that 
lie  li  Dot  innocent,  whom  they  bring  in  guilty ; 
tor  It  is  belter  that  twenty  guilty  men  should 
oeape,  than  one  innocent  man  suffer. 

kilt,  Gentlemen,  if  my  brief  be  true,  we 
•bili  tfive  yuii  such  an  account  of  one  of  these 
vitnenes;  fn-st,  as  to  the  man  himself;  that 
be  is  Dot  a  man  to  be  credited  as  a  witness ; 
asd  then  besides  that,  as  to  the  evidence  he 
fiva  ID  tliiii  case,  (I  say,  if  my  brief  be  true) 
tt  u  fai.4p,  and  we  slmll  prove  it  so ;  and  when 
JOS  have  heard  our  evidence,  if  you  are  satis- 
oid  that  one  of  these  witnesses  is  not  to  be  ere- 
Alid,  or  that  what  be  sweara  is  not  true,  you 
m  to  actfuit  the  prisoner. 

Gf'ottemcn,  here  has  been  one  Mr.  Goodman 
pradoced  as  a  witness,  one  that  never  was  pro- 
d'jceil  before  at  the  trial  of  any  of  those  that 
bf  e  suffered,  so  that  the  truth  of  their  guilt 
iocs  not  at  all  depend  u|ion  bis  evidence,  nor 
iocs  it  give  any  credit  to  it.  This  is  thb  gen- 
ticBao*s  first  entry  upon  this  atage;  and  yet 
(dmj  brief  be  true)  this  is  not  the  firet  bloody 
V  cnid  part  that  he  has  acted ;  for  we  have  a 
naord  of  conviction  against  him,  whereby  it 
•ifl  appear  to  you,  that  he  was  indicted  (for 
adeivouring  to  poison  two  ^reat  dukes)  for 

D40  guineas  to  an*ltahaii  empiric,  one 
,  ei,  and  promising  200/.  more  when  it  was 
Wtod,  to  poison  the  me  dnke  of  Grafton,  and 
■Wsivsent  duke  of  North uml»erland ;  and  we 
Ml  sbew  yoa,  that  he  was  convicted  of  it,  and 
M  a  thousand  pound  for  the  offence ;  which, 
wadcring  the  meanness  of  hit  circumstances 
Nftat  time,  was  aa  mncb  as  twenty  thousand 
^■aida;  for  he  could  as  well  have  paid  twenty 
■  ooe  then ;  and  it  appears  too,  tiiat  Mv, 
Bndnan  (nay,  it  will  not  be  denied  by  him 
Nnsetf)  WM  in  this  horrid  plot ;  and  he  that 
■isU  be  cuiiccmed  lo  poison  two  dukes  in  a 
Wy,  to  which  he  had  so  many  obligations — 

Qmidmmm.  Ny  lord,  1  desire  leave  to  speak 
lilkis  matter  that  the  scrjeant  mentions. 

9m}.  DmmuU.  Pray,  fir,  let  me  go  on ;  you 
■ij  lUk  anoQ ;  1  have  aeen  the  copy  of  the 
Mimd  of  couvictioD,*  and  have  it  ready  to  pro- 

Imt. 

iff.  Gea.  Mr.  Goodnwn,  be  quiet,  and  stay 
ilky  and  byr;  you  will  be  defended,  no 
WlOB  it;  but  in  the  mean  time  let  them  go 
iMaido  »ol  interrupt  them, 
J«>  Benui/I.  I  aay,;my  lord,  he  that  would 
■•■■MiBtd  in  ao  Yile  aa  ad,  at  a  contrivance 
^^iMMBv  tim  Ham  of  two  gmu  dukct, 


^who  were,  in  effect,  his  young  masters^  that 
he  should  go  to  poison  them  in  a  family  to 
which  he  had  been  so  much  obliged ;  and  then, 
he  that  would  be  concerned  in  so  horrid  a  plot 
as  this  was,  to  destroy  his  country,  and  take 
away  the  life  of  the  kin^ ;  sure  it  will  be  no 
difficult  thing  to  think  Uiat  this  man  will  not 
stick  little  at  the  prisouer's  lite  at  the  bar,  espe- 
cially when  he  has  s')  great  a  temptation  to  it, 
as  to  save  his  own  lite  by  it. 

But  perhaps  some  of  you  may  doubt  whether 
it  is  to  save  his  own  hfe  or  no :  but  I  believe 
there  are  none  of  you  would  give  any  credit  to 
^  him,  if  you  thought  so :  therel'ure,  to  satisfy 
'  you  of  that  fact,  we  shall  produce  you  evidence 
of  his  own  opinion  of  that  matter,  beside  the 
general  known  circumstances  he  lay  under: 
as,  that  he  was  long  in  prison  before  he  charged 
the  prisoner  with  any  thing,  and  the  prisoner 
was  at  liberty,  went  every  day  abroad  foe  a 
a  week  after  Mr.  Chamock's  trial,  and  never 
absconded  one  minute,  but  lived  publicly,  open- 
ly, and  visibly  to  all  his  friends,  and  all  strait- 
gers :  but  besideff,  gentlemen,  that  Mr.  Good- 
roan  knew  he  must  die,  and  justly  and  desery*- 
edly  tor  this  horrid  plot  and  treason  himself; 
and  had  no  other  way  leil  to  save  his  life,  but 
to  come  in  thus  as  an  evidence  and  accuser, 
which  we  think  will  shake  his  credit  with  you. 

I  say,  besides  all  tliis,  (if  my  brief  be  true) 
we  shall  prove  that  he  has  said  himsdf,  That 
either  he  must  hang  Peter  Cook,  or  he  most 
be  hanged  himself.  Thus,  gentlemen,  he 
swears  to  save  his  owa  life,  by  takuig  away 
another's. 

This,  Gentlemen,  is  as  to  the  man  him* 
self,  that  he  is  not  to  be  credited.  But  now 
further,  as  to  the  evidence  that  he  has  giveu: 
he  tells  you  that  he  came  into  the  tavern  ia 
Leadenhall- street,  and  that  tlierc  he  found 
such  company ;  he  owns  he  came  in  at\er  din- 
ner; and  that  the  other  gentleman,  Mr.  Por- 
ter, owns  too ;  he  says  there  were  present  at 
this  meeting,  my  lord  Montgomery,  my  lord 
of  Aylesbury,  Mr.  Cook,  and  several  other 
gentlemen  ; '  but  (if  my  brief  he  true)  we  shall 
prove  by  three  wilnesses,  that  he  was  nut 
there  till  they  were  gone ;  and  that  will  make 
an  end  of  all  the  pretence  of  his  evidence. 

Att.  Gen,  Nay,  then  we  shall  never  have 
done. 

Heij  Darnall.  V\\  assure  you.  Sir,  I  have 
the  names  of  three  witnetises  in  iii\  brief,  to 
prove  that  my  lord  of  Aylesbury,"  my  lord 
Montgomery,  and  Mr.  Cook,  vtrc  g^me  be- 
fore he  came  in,  thoun^h  if  any,  or  either  of 
them  were  gone,  it  destroys  his  testimi>ny  ; 
and  if  we  prove  this  to  you,  1  would  be  loth  to 
he  one  of  the  jury  that  should  take  away  the 
prisoner's  life  upon  this  evidence ;  iiu,  if  he 
were  the  vilest  man  alive,  and  much  less  the 
life  of  the  prisoner  at  the  bar ;  for  we  shall 
prove '(if  ray  brief  be  true)  he  is  a  man  of  mo- 
rals, a  man  of  virtue,  one  that  has  a  great  love 
for  his  country ;  and  this  we  shall  prove  by 
evidence  undeniable,  persons  of  quality  in  their 
eouatry,  t%ch  u  senra  their  country  m  parlia* 


359]  8  WILLIAM  lU. 

mcDt,  as  their  represeDtatiTes ;  we  shall  shew 
it  bv  such  evidence,  that  there  will  be  no  mom 
to  doubt  of  it :  he  is  a  man  without  any  stain 
or  blut  upon  him,  till  this  accusation  ;  he  is  the 
eldest  son  of  his  father,  and  heir  to  a  ercat  es- 
tate ;  his  father  is  a  great  officer,  and  a  great 
^ti'r  under  this  government ;  and  con  it  be 
imagine<l  or  believed,  that  such  a  man  would 
be  guilty  of  the  worst  of  treasons,  to  destroy 
the  religion  he  professes,  to  overturn  the  state, 
to  ruin  his  own  estate,  himself  and  his  poste- 
rity, which  must  be  the  consequence  of  it  ? 
Nay,  if  two  good  witnesses  could  be  produced 
to  testily  it,  and  if  we  had  not  had  so  much  to 
take  oflT  the  credit  of  Good  man,  1  could  hardly 
believe  it  of  any  man  that  was  in  his  right 
■euses ;  he  must  have  been  a  madman  if  he 
had  done  it,  one  that  stood  so  well  with  the 
present  government,  and  of  a  family  never 
tainted  with  disloyalty. 

Certainly,  gentlemen,  when  we  make  out 
this  to  you  against  Mr.  Goodman,  the  prisoner 
can  Le  m  no  danger  of  his  life  from  Mr.  Good- 
man's evidence,  tliough  he  is  an  unfortunate 
man  to  come  under  such  an  accusation  ;  but  I 
cannot  lielieve  that  any  jury,  upon  such  a 
inan*s  evidence,  will  brand  an  honest  family 
with  the  foulest,  vilest,  blackest  treason  that 
c\er  was  hatched;  no,  gentlemen,  you  are 
meu  of  ability  and  understanding,  and  that  is  it 
we  rely  upon  ;  we  doubt  not  but  that  you  will 
consider  the  evidence,  and  consider  your  oaths, 
and  not  let  the  prisoner's  blood  lie  at  your 
doors ;  therefore  we  shall  go  on  and  call  our 
witiiLSses  to  make  out  what  1  have  cjiened. 

^iir  jB.  Shoucr.  My  lord,  we  desire  to  call 
our  witnesses,  and  I  shall  reserve  myself  to 
ijiakc  somo  observations  after  we  have  given 
our  evidence :  Mr.  Srijeant  has  opened  as  much 
as  we  can  prove,  and  we  will  now  proilucc  our 
evidence  ;  First,  we  will  shew  the  conviction 
of  Goodman  :  Mr.  Jiurleigh,  where  is  the  con- 
viction ?— Ml".  Burleigh.  Here  it  is.  Sir. 

Sir  B.  ShuKcr.  Where  haclyou  it,  Sir? 

Mr.  Burleigh.  Outof  thclVeasury  at  West- 
minster. 

Sir  B.  Shojccr,  Is  it  a  true  coj»y,  did  you 
examine  it  there  ? 

3Ir.  Bfirkivih.  Yes,  it  is  a  true  copy,  I  did 
examine  it  with  the  record. 

Sir  B.  Shotecr.  Then  read  it,  Mr.  Tanner. 

CI.  of  Ar.  [Reads] — *  Michaelmas  Tenn: 
'  Tricesimo  sccundo  Caroli  Sccuudi.' 

L.  C.  J.  Trcby,  Read  the  record  in  English 
to  the  jury. 

C7.  of'  Ar.   [Reads.]    *  Be  it  remembered, 

*  that  sir  Roliert  Sawyer,  kni;4lit,  Attorney  Ge- 

*  neral  of  our  lord  the  king  that  now  is,  who 

*  lor  the  same  our  lonl  the  king  in  this  part 

*  sueth,  camu  herein  the  court  of  our  .said  lord 

*  the  king,  before  the  king  himself  at  U'est- 

*  minster,  on  Thursday  ne.\t  alter  three  weeks 
'  of  St.  Alirhael,  the  same  term  ;    and  f^snthe 

*  same  our  lord  the  king,  brought  hei-e  into  the 

*  court  of  our  said  lord  the  king,  before  the  said 

*  king,  then  and  there,  a  certain  information 
'  against  Cardell  Goofliuap,  late  of  the  parish  of 


Trial  of  PeierCookf 


[Sfi 


St.  Martin  in  the  Fields,  in  the  cmmty  of  Mid 
diesex,  gentleman,  which  infomatioB  folkm 
in  these  words,  scilicet ^  Middlesex  iciUeet^  B 
it  remembered  that  sir  Robert  Sawyer,  kaifl[hi 
Attorney  General  of  oar  said  lord  the  kai| 
that  now  is,  who  for  the  same  onr  lord  tb 
king,  in  this  behalf  sueth,  in  his  own  propc 
person  came  here  into  the  coart  of  oar  tsi 
lord  the  king,  before  the  king  himself  i 
^  Vest  minster,  on  Thursday  next  afker  tbre 
weeks  of  St.  31ichael  that  same  term,  and  fb 
the  same  our  lord  the  king  ^vea  the  coer 
here  to  understand  and  w  mformed,  Tbi 
Cardell  Goodman,  late  of  the  pariah  of  St 
Martin  in  the  Fields,  in  the  county  of  Middk- 
sex,  gentleman,  being  a  person  of  a  wiekd 
mind,  and  of  an  ungodly  and  deviludi  diipe- 
sition  and  conversation,  and  contriTing,  piae- 
tising,  and  falsely,  maliciously  Snd  devilnfalf 
intending  death,  and  poisoning  and  final  d»- 
stniction  unto  the  right  noble  Henry  duke  if 
GraiU)n,  and  George  duke  of  Nortbunbv- 
land,  and  that  the  aforesaid  Cardell  OoodnHB, 
his  roost  wicked,  most  impioue,  anddenljih 
intentions,  contrivances  and  practices  alwe- 
said,  to  falfil,  perfect,  and  bring  to  effect,  tk 
30th  day  of  September,  in  the  six-and-thiitiflh 
year  of  the  reign  of  our  lord  Charles  the  Se- 
cond, now  king  of  England,  &c.  and  divn 
other  days  and  times,  as  well  before  as  aftr, 
at  the  parish  of  St.  Martin  intheFicUi^ii 
the  county  of  Middlesex,  with  force  and  aia% 
&c.  falsely,  unlawfully,  unjustly,  wickd^, 
and  devilishly,  by  unlawful  ways  and  nMMi 
did  solicit,  nerbuaile,  and  endeavour  to  pm- 
cure  one  Alexander  Amydei  to  prepare  lod 
procure  two  flasks  of  j^iorence  wine,  to  k 
mixed  with  deadly  poison,  for  the  peisooiig 
of  the  aforesaid  right  noble  Henry  duke  of 
Grafton,  and  George  duke  of  Northumber* 
land ;  and  his  most  wicked,  most  impioaf^ 
and  devilish  contrivances,  practices  and  uln- 
tions  aforesaid,  to  fulfil,  perfect,  and  the  mon 
to  bring  to  effect,  the  aforesaid  Cardell  Gooi- 
man,  the  day  and  year  abovesaid,  at  tbo 
parish  aforesaid,  in  the  county^  aforeoiii 
falsely,  unlawfully,  unjustly,  maliciously  aiA 
devilishly,  did  promise  and  agree  to  give  laii 
the  aforesaid  Alexander  Amydei  forty  pieeM 
of  guinea  gold,  of  the  value  of  forty  pomidii 
of  lawful  money  of  England,  if  he  the  nil 
Alexander  Amydei  would  pre|iare,  prooaie 
and  provide  two  flasks  of  Florence  wine,  It 
be  mi.xed  with  deadly  poison,  for  the  poiMi^ 
ing  of  the  aforesaid  right  nuhlc  Henry  dakefli 
Grafton,  and  George  duke  of  Northumber- 
land ;  and  if  the  aforesaid  poison  with  Ihl 
wine  aforesaid  to  lie  mixed,  shoukl  efleel  Al 
death  of  the  aforesaid  Henry  duke  of  GiaflMb 
anTI  George  duke  of  Northumberland ;  tkil 
then  he  the  said  Cardell  Goodman  would  gifl 
unto  the  said  Alexander  Amydei  the^j^d 
J 00/.  and  that  beyond  sea  he  would  nrWr* 
the  said  Alexander,  all  the  days  of  Um 
the  said  Alexander,  to  the  evil  and  meit  fth 
nicious  example  of  all  others  in  the  libejflMl 
offending,  and  against  tlie  peace  of  ow  vU 


fur  High  Treason. 

\  Ihe  king  that  now  His,  bis  crown  and  di^- 
Hiitj,  he* — Then  here  is  process  prayed  by 
M9  Attorney  Geoeral  ajQ^inst  Mr.  (loodrunD, 
aod  by  bis  Attorney  pleads  not 

Uty,  Rad  liere  is  issue  joined. 

air  B.  Shomer,  Well,  see  for  the  rerdict. 

CL  of  Ar,  There  was  a  trial  at  Nisi  Hrius, 
Bit  the  jury  lind  that  the  sahl  Cardell  Good- 
nan  is  guilty  ol'  the  premises  in  the  InH^rma- 
apectfietl,  as  by  the  tnformation  is  sup- 
fawd  againtft  HitD. 

Sir  B.  Shower.  Now  read  the  Jitd|fnieDt. 

a.  Iff  Ar^  *  Thereupon  it  ig  eonsiileret!^  that 
*tbe  said  Cartletl  Goodman  do  pny  to  the 
'kiojETthe  sura  of  1,000/.  for  his  fine,  imposed 
*apon  him  for  tlie  oeca«ion  aforesaid^  and  that 
♦the  nf'^r*  v»i  I  Cardell  CJowhuaii  he  rommilted 
*\n  1 1  I  sea  of  this  court,  iu  execution 

*fofii      !  toresaid,  that  he  be  safely  kept 

'  there,  ttN  he  pay  his  tine  aforesaid ;  and  before 
*t^jat  the  said  Cardell  Goodnian  is  delivered  out 

*  of  the  prison  aforesaid,  he  shall  grtTe  aecurity 
^  to  behave  himself  well,   during-  his  life,  and 

*  i(m> shall  1^1  ve  security  for  the  peace  to  be  kepi 

*  towards  the  said  lord  the  kmCf  and  all  his 

*  pftple»  and  particularly  tow ard«  liie  right  noble 
'Ikury  duke  of  Grallon,  and  George  duke  of 

*  North utnhcrbnd.' 

S*TJ,  Darnall.  8o,  yoo  hear  the  recorti  of 
the  infomTAtion,  conviction  and  judgement,  for 
A  very  horrid  aboniinable  crime. 

Att.  Oen.  But  I  desire  tbey  may  now  go  on, 
nd  read  the  whole  of  the  record, 

CLofAr.  [Reads.]  *  And  afUrwards,towit^ 

*  su  Pnday  next  at)er  eig-ht  davs  of  8t.  Hilary^ 
^  b  th«>  5(Vih  aod  37th  years  of  tfre  reign  of  our 

*  wid  lord  the  king  thai  now  is,  bet'gre  our  said 

*  lord  the  kin^  at  VVestminster  came  the  atbre- 
sir   R«i|>ert  Sawyer^   knig-ht^   Attorney* 

riful  of  our  said  lord  tlte  king  that  now  is^ 
^«ihI  aeknowledj^ed  that  the  suid  Oardell  Good- 
*iiiia   has  »atistied  to  our  said  lord  the  kin^ 

*  litit  now  is,  of  the  judirnictit  aforesaid  a^iost 
*fcilD,  m  form  aforesaid  given,  iherefore  the 
*ttid  Cardell  Goodman  is  thereof  acquitted  ;' 
M  BO  forth. 

8erj.  DarnolL  Call  Mr.  Charles  Edwards^ 
William  Cock,  Christopher  Crawford,  Mary 
Cnwford.and  Mr.  lluolley. 

[E4lwards  appeared  upon  a  Habeas  Corpus, 
directed  to  the  keeper  of  Newgale,  where  be 
tfts  a  prisoner.] 

Mr*  Baker.    Whero  is  the  warrant  of  his 

itmenl  ?  What  is  hecomimtted  for  ? 
Takififld.  He  ia  committed  for  suspicion  of 

on,  and  treEtaooable  practices. 
Mr,  Baktr.  Is  be  not  committed  for  higb- 

mm  f^^TokefieU,  No,  Sir,  he  is  not» 

Jen.  DamatL  What  discourse  had  you  with 

Ir.  GcKxlman  concemmg:  the  prisoner  at  the 

ir  ?  What  did  you  hear  him  say  P 

Mr.  Baker,  He  i«  not  sworn  yet;  it  seems 

'i  gpcnUetuao  was  Dundee's  chaplain  in  8cot* 

AiL  Gtn*  if  be  be  ool  § wom^  he  can  gtf  e 


Serj.  DarnalL  My  lord,  we  desiro  he  may 
be  sworn. 

L.  C.  J.  2V%.  Swear  him.  [Which  was 
done.] 

Serj.  DarnalL  Pray,  Sir,  will  you  tell  th^ 
court  and  the  jury,  what  you  know  of  any 
dmcourse  of  Mr*  Goodman's  concerniugr  th^ 
prisoner  at  the  bar. 

Edwards.  My  lord,  1  desire  to  know,  betnfir 
ig-norant  <»f  the  ta%v,  whether  I  atn  broughi 
here  by  the  common  course  of  justice  or  not  ? 

Ser^.  Darnali.  81  r,  we  lisve  subpceuned 
you  ior  the  prisoner  at  the  bar,  to  gfive  evi- 
dence of  the  truth  of  your  knowledge  here 
u|ion  oath, 

L.  C.  J.  Treby.  Would  you  have  us  tell  you 
how  you  came  here  ?  We  suppose  you  came 
by^  due  process^  ol'  law,  as  a  witness. 

Edumrth,  Then,  ray  lord^  1  desire  to  speok 
but  one  word  ;  that  it  is  a  strange  thing  lit  me 
to  consider,  how  words  ^jhould  be  carried  awsy 
that  were  privately  spoken ;  as  if  it  were  to 
expose  me  to  the  reproaches  of  all  my  friends; 
it  is  a  thing  that  1  did  never  expect  to  hear  of 
again :  however,  seeing  I  am  called  bere^  and 
obliged  upon  my  oath  to  declare  what  I  know, 
1  by  God^s  grace  will*  to  ihe  uttermost  of  my 
power,  tell  what  ban  passed  in  this  matter. 

L.  C.  J.  Treby.  Do  not  make  any  afio logy 
for  telling  the  truth  :  you  are  obliged  by  your 
oath  to  do  it,  and  the  court  expects  it  from  you. 

Edwards.  Among  otiier  discourses  thai 
passed  betwixt  Mr.  Goodman  and  me,  f  asked 
iiim  when  Mr.  Cook  was  to  be  armignett^  and 
when  he  was  to  be  tried  :  Says  he«  he  is  to  be 
arraigned  upon  Monday,  and  be  is  to  be  tried 
upon  Thursday.  I  asked  him,  whether  it  waa 
tor  the  .4s8a«si nation- Plot,  and  he  told  me  No. 
For  what  then  ?  said  i  :  as  being  concerned  in 
sending  Mr.  Charnock  into  France  P  Who  are 
the  evidences  against  him?  said  I.  Said  he, 
captain  Porter  and  myself.  Said  I,  1  believe 
t  AO  witnesses  will  he  tound  good,  or  by  way  of 
demonstration  in  taw  ;  and  1  pity  the  poor 
gentleman's  case.  Says  he,  He  swore  against 
me.  How  conieti  it  then,  said  I,  thai  he  is  not 
come  otf,  and  has  not  a  pardon,  and  wouki 
divulge  nobody  else? 

L.  C.  J.  Trcb^.  Who  had  not  a  pardon  da 
you  mean  ? 

Edwards.  Mr.  Cook.  I  asked,  how  he  bad 
not  a  pardon?  Says  he,  He  wouhl  irive  an 
accoimt  of  nobody  else  but  me,  an<l  that  wns 
the  reason  ha  bad  no  pardon.  8a id  !  lo  him, 
Who  are  the  evidences  a|;iunst  him?  Saya 
he^  captain  Porter  and  mynelf.  Aod  al^er  this, 
aays  he,  Uc  or  I  must  perish;  or^  He  um\  I 
must  sutfer  ;  1  believe  the  word  wun  suffer. 
But,  says  he,  it  is  a  foolish  thing  to  he  hanged. 
All  that  is  said  of  a  man  that  is  hanged,  is. 
That  he  banged  handsomely,  or  bedieil  bruvidy, 
That^s  all  the  discourse  that  I  can  remember. 

8erjt  DarnalL  He  said  it  was  a  foolish 
thing  to  he  hanged  ;  and  Mr.  Goo^lmau,  it 
■eema,  had  no  mind  to  be  hanged  ;  and  i  be- 
lieve so  too :  hut  he  must  not  bang  my  client^ 
to  aave  his  own  liJe. 


3591  8Wn-LIAM  lU. 

menlf  as  ihelr  represeDlalives ;   we  alioll  she\r 
it  by  such  evidence,  that  il»«  n  will  \u^  rm  room 
10  (litubl  of  it  r    he  ir  a  tr 
or  biut  n|mn  liiin,  Ull  thi»  :i< 
eldest  son  of  hin  fatber,  and  hrir  tu  a  t^rrni  e^t- 
taie;  bb  ThOrt  k  tigrrat  oHicer^  fttnl  a  ^Te*t 
gcttf^r  under  this  (foverninent ;    and  can  it  be 
imag^ined  or  l>elieved|  tbat  such  ii  mun  would 
be  (^ui)t^  of  (be  wurnt  of  freHSOfis^  to  tlestroy 
the  rebgion  lie  piofe^es,  to  ovrriurn  ibe  state, 
tu  rum  btii  own  estate,  biniMlf       '  '      ;      • 
riiy,  which  inuHl  be  lbt%  can 
Nay,  if  two  good  witnesses  coi...i  ^ 
to  lesiify  ii,  und  if  we  had  not  bad 
tnke  off  the  credit  of  GfHxbiiat^  I  cd     i   ._u    ^ 
htfiere  it  of  any  man  thot  wii!«  in  \m  n^bt 
aenft««;    be  mti«t  have  been  a  mudiiian  if  iw 
liad  done  it,  one  (li;4t  silood  so  wrU  wtth  tire 
present  government,   and  of  a  family  ntwtr 
lainttd  wiib  disloyalty. 

Ceriiiinly,  f;en*le»»t«^?»  when  we  m^k^  not 
4hi»  loyop  '^       -M,  ^"  ,    ,:_  ^i 

em  Lcni 

man  to  c(M 

cannot  IneiiT^i::   iii.ii   ,111  f 

inan^s  evidence,  will  br:' 

**jih  ibe  likti'*^'*r  liU'fcf    ! 

c\er  w»v 

men  of  al 

we  rely  umm  ;  we  d<Hibi 

consider  tnc  evidetiec,  an  i 

and  not  Irt  the   pri>  i    ^ 

ri  oo  IS  ;    1 1  i^^fr»re  wr     , ,  J 

hi: 


^     ^^j.Jmy 


Mr.  Ji<^ 
tfiinii  u*r. 

AXarii 
Sir  J»        '^ 

a  f 


'*^**"i!^  ii»«  w'*^'*^ 


I  man,   OTr. 


•^■fi!*'-^ 


remember  or 
laat. 


^ilsSier"''"""^ 


i,v»an  bour, 

,«re  ail  thti  tiGQc,  &O10 

'  i^L*;  I  w;iitiot  ID 


^O^U^Uu  *7  ^^*-  Ooodnwn  did 


you  lifjoiv  :' 

ibcsir  names. 

Mr.  Conyen, 
come  in  al  any  }) 

Cr.J/W:     I  di 

:\; 

for  ill 

the  ruoiit^  and 

on(  of  tbc  room^ 

sage  ufi  to  the  roal 

Cramt}  No,  I  if| 

Mr.  Coupcr,  ik 

wilbout  your  aee&d 

CravJ\    I   iho« 

stairs  when  I  cam 

or  i  e; 

names. 

Mr.   Camper. 
then  ^ 

CVoir/:  No,  su 
down. 

Sir  D.  SAiMr. 
in  be(ur«   noy  lof 
Ibat  tK  viv  biui 

tbo.    • 

s 
in;; 
kn< 

was  nobody  i 


1  cam 


3e7j 


8  WILLIAM  in. 


Tritd  of  Peter  Cooky 


[« 


Huntley,  That  was  Mr.  Cliarnock. 

Just.  Kokeby.  Aud  yet  you  cannot  tell  ^  he- 
ther  there  was  any  body  elac  that  you  did  not 
know,  how  then  can  you  tell  that  Goodman  was 
not  there  f 

Sir  B.  Shower,  He  did  not  know  hiod  at  that 
time,  but  he  might  rememl)er  him  aiYerwards. 

3Ir.  Coni/crt.  Diil  not  the  same  company  use 
to  meet  at  other  times,  at  your  house  ? 

Huntley,  Not  to  my  remembrance. 

Mr.  Conyers.  How  then  came  you,  if  they 
Be?er  had  used  to  meet  there,  to  know  all  these 
people's  names  ? 

Huntley.  I  have  seen  sir  John  Freind  there, 
and  sir  William  Parkyns. 

Mr.  Conyers,  Was  sir  John  Freind  there, 
or  DO  ? —  Huntley.   Yes,  he  was. 

Mr.  Conyers.  My  lord,  he  was  the  only  man 
that  was  not  named  before :  you  did  not  name  sir 
John  Freind  before,  as  I  heard  :  but  pray,  did 
yoa  e?er  see  Mr.  Chamock  there  but  at  that 
time  ? — Huntley.  No,  I  did  not. 

Mr.  Conyers.  How  came  you  to  know  it  was 
Mr.  Charnock  ? 

Huntley.  ]  knew  rery  few  of  them  liefore 
that  time ;  and  I  asked  their  servants  the  names 
of  all  those  persons  that  were  there. 

Mr.  Conyers.  Did  you  know  Mr.  Porter,  pray? 

Huntley.  Not  before  that  time:  I  did  see 
Mr.  Porter,  and  I  knew  him  again  when  I  saw 
him  :  his  black  told  me  his  name  that  day. 

Sir  B.  Shower.  You,  Huntley,  I  would  ask 
you  one  question  more :  was  the  door  shut,  or 
no  f^Huntley.  No,  it  was  not. 

Sir  B.  Shower.  Did  the  servants  go  up  and 
down  as  they  used  to  do  ?-- Hunt  ley.  Yes,  Sir. 

Ati.  Gen.  Sir  Bartholomew  would  make  it 
(hat  there  was  no  consultation  at  all. 

Sir  B.  Shower.  They  were  mad  folks  if  they 
would  consult  at  that  rate  with  the  door 
open.  Pray  call  Mr.  William  Cock.  [Who 
was  8 worn. 5 

Att.  Gen.  Sir  John  Freind  has  owned  it, 
that's  dead. 

Sir  B.  Shozcer.  Sir  John  Freind's  confession 
b  uothinsf  tu  the  prisoner. 

Att.  'Gen.  Mr.  Serieant  Damall  did  optn, 
that  the  confession  of  those  that  died  was  an  un- 
deniable proof  of  the  conspiracy :  but  go  on 
with  your  evidence. 

Serj.  Dartiall.  Pray,  Mr.  Cock,  will  you  re- 
collect yourself  about  the  time  when  captain 
Porter  and  some  other  gentlemen  dined  at  your 
house.— Coc A;.  Yes,  very  well. 

Serj.  Damall.  Pray.  Sir,  can  you  tell  who 
dined  there  at  that  time  ? 

Cof  ft.  There  were  my  lord  of  Aylesbury,  my 
lord  Montgomery,  sir  William  *Parkyns,  sir 
John  Fenwick,  sir  John  Freind,  Mr.  Charnock, 
captain  Porter  and  Mr.  Cook. 

Just.  Rekiby.  Was  that  all  the  company  ? 

Cock.  Yes,  it  was. 

Just.  Rokeby,  Que  of  them  said  there  were 
eight. 

X.  C.  J.  Trthy,  And  h«  baa  named  eight, 
lirother. 

Serj.  DurnalL    Can  you  remember  when 


any  of  the  company  went  awayi  and  who  wei 
away  first  P 

£ock.  My  lord  of  Aylesbury  and  my  kn 
Montgomery  went  away  in  a  hackney-coach 
and  their  servants  were  frequently  in  the  rooa 
and  waited  aflerwanls  in  another  room,  afti 
that  they  had  waited  at  table  at  dinner ;  ar 
though  the  <loor  was  shut,  as  it  used  to  b 
when  any  company  is  there,  yet  nobody  wa 
forbid  to  come  there  at  all. 

Att.  Gen.  Do  you  remember  when  Mr 
Goodman  came  there  ? 

Cvck.  I  never  saw  tlr,  Goodman  in  my  Ijfi 
before  to-day. 

Serj.  Damall.  Did  any  bo<Iy  come  to  tbii 
company  before  my  lord  of  Aylesbury  vtnl 
away  that  did  not  dme  there  ? 

Cock.  I  did  not  see  any  body  there  at  ill: 
and  my  lord  of  Aylesbury  was  about  boying  t 
hogshead  of  wiiite-wioe,  but  we  oouM  not 
agree  about  the  price :  and  when  my  lord  «f 
Aylesbury  went  away,  1  went  down  with  ny 
lord,  and  waited  upon  him  to  the  coach ;  aadl 
told  my  lord,  I  hoped  he  would  buy  the  viae 
still.  But  he  answered,  he  could  not  tdl  wb^ 
ther  he  should  or  no. 

Serj.  Damall.  IV ho  else  went  with  my  M 
of  Aylesbury  ? 

Cock,  Aly  lord  Montgomery.  I  do  nat  re- 
member any  body  else. 

Just.  Bokeby.'D'xd  all  the  rest  of  the  coa- 
pany  go  away  at  once  ? 

Cock.  Truly,  my  lord,  I  cannot  say  theydii 

Just.  Rokeby.  by  what  time  did  the  rest  go 
away  ? 

Cock,  I  believe  it  might  lie  eight  or  nioe 
o'clock. 

Serj.  Damall.  You  saw  my  lord  df  A)l»- 
bury  when  he  parted :  was  Mr.  Goodman  thm 
then  ? — Cock.    I  did  not  see  him. 

Baron  Pouis.  Did  Mr.  ('uok  stay  till  the  lait? 

Cock.  That  I  cannot  tell  truly. 

Ikiron  Pouis.  1  find  they  all  swear  to  four 
o'clock  of  my  lord  Ayle.^buVy's  going,  audga 
no  further. 

Att.  Gen.  Pray,  Sir,  let  mc  askyon  aaucf 
tion  or  two  :  did  you  ever  sec  Mr.  Goodmii 
before  now  ? 

Cock.  No,  I  do  not  rcmembtr  I  did. 

Att,  Gen.  V/ lieu  you  went  into  the  rooE 
after  dinner,  di.l  you  look  about  the  room  It 
see  whether  iliero  were  any  new  company? 

Cock.  I  did  look  about  tlic  room  sefoa 
times,  and  so  did  luy  servants,  to  see  if  thv 
were  any  iWiiipf  %vaiitin^. 

Att.  ucn.  Can  you  take  it  upon  your  oath 
that  he  uas  not  there  vvhiUt  my  lord  of  Aylat 
bury  staid  i;* 

Cuck.  1  do :  and  can  take  it  upon  my  oath 
he  was  not. 

Att.  Gen.  Tiien,  ifyou can,  pray  di<tingari 
the  time  when  he  came  in. 

Cock.  I  do  not  remember  that  ever  iM 
him  in  my  life  before  to  day. 

Att.  Gen.  Why  arc  you  not  as  pontifl  ihi 
he  was  not  theic  at  all,  as  that  he  waa Delta 
before  my  lord  of  A}  le^bury  went  awny  f 
i 


969]  for  High  Treason. 

Cock.  He  might  come  in,  and  I  not  see 
bim. 

AU,  Gen.  Might  he  not  as  well  come  in  be- 
fore they  went  away,  as  after,  to  cooie  in  and 
you  not  see  him  ? 

Cock,  No,  I  do  not  think  he  could. 
jiii.  Gnu  Why  do  you  think  so  ? 
Cock,  iiecause  the  serranta  were  all  about, 
and  they  did  not  gp  to  dinner  till  Q  o'clock  : 
and  I  helieve  those  gentleineo  that  I  named, 
came  in  a  quarter  of  an  hour's  time  to  dinner. 

Ati.  Gen.  We  do  not  say  he'came  there  be- 
fore dinner :  but  could  he  not  come  in  aflsr 
dinuer,  before  my  lord  of  Aylesbarv  and  my 
loni  BIoDt<^oniery  went  away,  witnout  yopr 
ieeinor  him  ? — CV/c.  Yes,  Sir. 

Sir  jB.  Skover.  Then,  hark  ye,  Sir,  I  would 
ask  you  one  question :  did  you  see  him,  u}K»n 
your  oath,  or  not  ?— Coc/c.  I^o,  I  did  not. 

Sir  B,  Shotccr.  Might  not  Mr.  Goodman 
cume  in  to  them  without  vour  seeing  him  f 

Cock.  It  is  possible;  but  I  do  not  think  it 
was  so. 

Just.  Rnkehy.  How  tlien  can  you  be  posi- 
tive that  he  was  not  there  till  my  lord  of  Ayles- 
bury went  ? 

&/.  Gen.  YoQ  say  yp«  may  be  positive  he 
*ai  not  there  before  my  lord  of  Aylaabury 
vent :  can  you  be  as  positive  now,  that  he  was 
not  there  lietbre  Mr.  Co<dL  went  P 
Cock.  I  do  not  know  when  Mr.  Cook  weat. 
Sol.  Gen.  How  can  you  be  then  positive  he 
*M  not  there  before  my  lord  of  Aylesbury 
vent? 

Cock.  Tlicre  were  no  more  than  what  dined 

there  when  my  lord  of  Aylesbury  w^nt  away. 

iMr.  Canuerf.  Pray,  Sir,  let  me  ask  you  a 

question  :  Were  you  in  the  room  at  any  time 

after  dinner  f-^Cock.  Yes. 

Mr.  Confers.  Pray,  Sir,  how  many  times 
^Aer  diaoer,  were  you  there  ? 
Cock.  I  believe  balf  a  dozen  limee. 
Sol.  Gen.  And  yet  you  do  confess  that  Mr. 
Coodmao  might  come  in  aAer  dinner  before 
niy  k>rd  of  Aylesbury  went,  and  you  not  see 
iuniP 

Sir  B.  Skoaser.  Ay,  but  be  could  not  stay 
tbere  without  his  seeing  him,  if  he  was  so  often 
in  the  room  :  you  do  not  take  Mr.  Cock's  evi- 
4snoe  riicht. 

4tt.  G€H.  You  named  eight  persons  that 

4ined  at  your  house  :  did  you  know  them  all 

fSHaeaJly  before  that  day  ; 

Cock.  Yes,  my  lord,  the  most  of  tiiem  at  least. 

4tt.  Gen,  Did  tliey  use  to  meet  at  your 

biMMe  ? 

Cock.  Commonly  iir  John  Fceiml  did  once  a 
week.  Mr.  Chamock  I  knew  when  I  was 
draw«r,  and  so  1  did  sir  William  Parky  ns :  The 
rest  I  knew  by  hearing  their  names. 

An.  Gtsn.  bid  you  know  them  before  that 
day,  £lir,  1  ask  you  ? 

Coek.  I  had  seen  captain  Porter  several 
tioMS  before  that  day  ;  but  I  cannot  say  at  my 
OM  house. 

Sir  B.  Skower.  Do  you  raroemberthe  treaty 
about  the  hogshead  ot  white  wine  f 
VOL.  XIII. 


A.  D.  1696.  [870 

Cor*.  Yea,  Sir,  rery  tvell. 

Sir  B.  Shower.  Were  you  by  when  my  k>rd 
of  Aylesbury  went  away,  and  spoke  with  him 
about  it  ? 

Cock.  Yes,  I  was  ;  and  told  him,  I  hoped 
he  would  buy  the  wioc  still. 

Sir  B.  Sknrcer.  Can  you  be  positive  that  any 
body  was  there  before  my  Innl  of  Aylesbury 
went  away,  that  could  stay*there  any  time,  and 
did  not  dine  there  ? 

Cock.  I  believe  not,  Sir;  for  I  came  in  half 
a  dozen  times  after  dinner,  and  I  bdieve  ifl 
had  heard  Mr.  Goodman'.s  name,  or  seen  him 
tliere,  1  should  have  remembered  it ;  hot  I  did 
not  see  any  body  but  those  that  dined  there. 

Mr.  Cozpper.  Where  was  you,  when  my 
lord  of  Aylesbury  went  away  ?  Where  did  yo« 
meet' him  sfoing  away  ? 

Cock.  Upon  the  stairs :  seeing  my  lord  of 
Aylesbury,  and  my  lord  Montgomery  coming 
down,  I  met  them. 

Mr.  Cowper.  Where  did  you  meet  them  f 
At  the  middle,  or  the  top  of  the  stairs  P 

Cock.  My  lord  of  .4yles1»nry  was  at  the  top 
of  the  stairs. 

Mr.  Cowper,  Did  you  meet  him  just  coming 
out  of  the  room  P 

Cock.  Yes,  Sir,  I  saw  the  coach  that  was 
called  for  my  lord  ;  and  so  I  went  up  stairs, 
and  met  my  lord  at  the  top  of  the  stairs  coming 
down. 

Sol.  Gen,  Now,  how  can  yon  be  positiye 
who  was  in  the  room  when  he  came  oat  of  the 
roomP 

Cock.  T  wont  up  in  the  room  afler  my  lord 
of  Aylesbury  went  away. 

Sol.  Gen^  How  long 'after  my  lord  of  Ayles- 
bury went  away  P 

Cock.  It  was  presently  after. 

Sol.  Gen.  How  lonif  licfore  my  lord  of 
Aylesbury  went  away  had  you  been  in  the 
roomP 

Cock.  I  had  been  there  just  before. 

Serj.  Darnall.  Call  Tliomas  Peachy. 

[Who  appeared,  and  wasswom.J 

Sir  B.  Shoteer.  My  lord,  we  shall  prove  tbat 
after  the  plot  broke  out,  and  after  Mr.  Porter 
had  made  his  discovery,  there  was  no  disturb- 
ance of  Mr.  Cook  till  a  ^od  while  after  Char- 
nock's  trial ;  and  Mr.  Cook  was  so  far  from 
being  sensible,  or  conscious  of  any  guilt,  that 
he  never  aliscondod,  but  continued  for  three 
weeks  in  his  father's  house,  where  he  was 
taken  by  a  messenger.  Pray,  31  r.  Peachy, 
will  you  tell  my  lonl  and  the  jury,  where  Mr. 
Cook  was  taken,  and  when,  and  by  whom  P 

Peachy.  He  was  taken  at  his  father's  house 
by  a  messenger,  about  7  o'clock  in  the  mom- 
ing. 

Sir  B.  Sltozcer.  What  day  of  the  week  was 
it  he  was  taken? 

Peaohy.  Upon  a  Sunday  morning,  in  his  own 
room,  in  his  father's  house,  at  7  o'cU)ck  in  the 
morning. 

fSir  B.  SUmer.  Did  people  come  to  him  as 
they  vs^d  to  doP 

Peachy,    Yes;    tad   h#  went  freqaently 
29 


371]  8  WILLIAM  III. 

mbrond  u  lie  used  to  do,  and  did  never  abscond 
from  his  fathcr'i  bouse. 

Herj.  Darnall.  Pray  tweai;^r.  Treganna. 
[Which  was  done.] 

Sir  B,  Shower,  Mr.  Treg^na,  pray  do  you 
remember  how  Ion?  after  the  plot  broke  out 
didyou  see  Mr.  Cook ? 

Treganna.  AfW  BIr.  Chamock's  trial,  a 
week,  he  was  at  my  chamber ;  ailer  the  plot 
broke  ont,  he  was  concerned  in  a  trial  at  Win- 
chester assises,  upon  an  issue  ont  of  Chancery, 
Mr.  Nichoills  was  the  cleric  in  court,  and  went 
down  40  manage  it  at  the  assizes ;  and  Mr. 
Cook«ame  to  me  a  day  or  two  after  Winchester 
assises  was  <nmr,  and  asked  me  if  I  had  any 
news  from  the  assizes?  This  was  long  after 
the  plot  broke  out:  and  I  remember  particu- 
larly, that  I  saw  him  twice  after  the  plot  was 
discovered,  a|  my  chamber. 

8ir  B.  Shower.  Swear  Mr.  Nicliolls.  [Which 
was  done.]  Sir,  pray  will  you  tell  m v  lord 
and  the  jury,  what  you  know  of  Mr.  Cook's  ap- 
pearing abroad  alter  the  plot  was  discovered  ? 

NichoUs,  I  was  sent  down  to  the  trial:  I 
was  present,  and  did  attend  at  two  trials  indeed, 
and  I  suppose  baron  Powis  may  remember 
that  I  attended  at  two  trials  at  Winchester 


Trial  of  Peter  CooJt, 


[378 


Baron  Powit.  Possibly  yon  might,  Sir :  I 
ouinot  tell  all  the  attendance  at  the  assizes. 

IficholU.  AufI  after  my  return  from  Win- 
chester assizes,  Mr.  Cook  was  with  me  several 
days,  both  at  my  office  and  chamber,  and  at 
his  father's  office :  and  I  roroerobor  particu- 
larly, that  he  threatencil  me  that  I  was  in 
trouMc  when  I  was  at  WinchcMtcr,  and  there- 
fore I  riMncuilicr  it  very  wf*ll. 

Sir  il.  ShoTin-.  Mr.  NiobolU,  you  know  Mr. 
Conk  verv  well ;  pray  what  areliis  morals  ? 

Sicholh,  U|Mm  occasion  of  the  cause  in 
olianrcry  that  went  to  trial,  I  have  had  the 
knowU*«l{ve  of  Mr.  (^ook  (i\e  or  six  years;  I 
alwa}s  MievtHl  him  to  he  as  temperate  a  man 
as  «^  IT  I  met  with  :  I  thiuk  iu  live  years  time 
I  waMiiot  aUivoouet*  with  liim  in  a  taveni. 

Sir  li.  ^hoiifi\  Did  you  over  hoar  him 
swear  ? 

Kii-hoth.  No,  never ;  nor  vent  a  curse :  I 
ln^liete  he  dnuik  an  little  a»  any  man,  and  was 
a^giMlly  a  mail.  I  niMcr  heard  him  v^vcak  a 
liiul  Wiiinl. 

Kir  II.  ^i>;.(''*.  I  low  do  you  know  that.  Sir, 
thai  he  was  kh  t;tHlly  a  niuii  .-* 

SiihoK'f.  l'|Hni oivaMoii  ot'ilii;!  cause*  I  wa<« 
urieral  Iiihcn  at  Mr  i^lileii  fookV,  ami  at  Mr. 
i  'iHik'ii  loilt^iiic*  there,  and  we  wt*re  to  :^i  alHHit 
huMUe.Ns.  iiiitl  alU'r  he  wa*^  ilrcNSinl.  lie  has 
luade  me  %iuy  white  he  went  into  \\i%  cli^scl 
.mil  \Mt\  [\\s  pi-AverN.  Aiul  he  told  ino  I'lirtlier, 
llml  lie  never  went  out  of  hi*  lather^  »Iihm> 
tntliooi  sA^iiijf  his  pra\ei\;  iuul  1  ««.ns  foretM 
III  mUw  M  ilie  diHir  «%hile  he  |h*i  t'oriiuHl  \\\s  iK-. 
%oliuii«.  ti«lir  loUl  uie.  .ind  I  Inflieie  he  Uul. 

Sim  I  l\.'s!i  \ow.i«\  IoiaI,  we  will  call 
Hoitie  oili«M  niine«««'«  to  puw«>  hiw  |i>Hiil  alTtv- 
liOK  loliKroitiiiM  ,  hoM  he  t^Nitiuuiul}  desired 
vueevM  to ilie  tliHt,  and  itf  ihiiarmv. 


Sir  B.  Shower.  So  that  really  he  had  an 
aversion  to  it.    Swear  Mr.  Hamond. 

-   [Which  wtt  done.] 

Seij.  Darnall.    Pray,  Sir,  will  you  give  an 

account  what  yon  know  of  tlie  prisoner,  ooo- 

ceming  his  (judgment,  and  concerning  h^  bm^ 

rals  ? 

Haraond.  I  have  been  for  some  time  ac- 
quainted with  Mr.  Cook  the  prisoner  at  the 
bar,  and  to  the  best  of  my  observation,  I  alvaji 
took  him  to  be  aoonseientions  man,  and  I  hais 
heard  him  declare  great  detestation  of  a  Frank 
Ibrce :  and  three  or  ibur  days  before  be  WM 
takeu  into  custody,  1  asked  him  what  hehsHd 
of  intelligence?  He  said  he  heard  what  wis  ■ 
the  pubhc  prints,  and  heard  no  more,  and  koiv 
no  more ;  and  he  had  a  great  abhorrence  of  the 
conspuracy,  and  thought  it  a  very  monstitQi 
thing.  I  never  beard  him  speak  a  disreepssl- 
fiil  word  of  the  Sing's  person  or  govemBMH 
in  my  life.  And  1  say  a|g;ain,  I  have  hmi 
him  several  times  declare,  in  common  csnnri 
sation,  that  he  had  an  aversion  to  ftmk 
power,  and  he  had  a  dread  of  it 

Sen.  Darnall,  What  have  you  bctrd  hia 
say  about  our  fleet,  or  army  *  ? 

Hamond.   My  lord,  I  have  heard  him  ve^ 

much  wish  prosperity  and  suooeis  to  our  fleet 

Jnst  Rokeby.  What  fleet,  pray,  Sir? 

Hamond.  li>  our  fleet,  king  William's  fet 

against  tfie  French.    Things  to  thispnrpeie 

he  frequently  said. 

Scrj.  Darnall.  /Then  swear  Mrs.  Hnt 
[Which  was  done ;  but  she  was  not  ezanuDsd.] 
Sir  B.  Shower.  My  Icrd,  we  leave  it  beif. 
Bnt  I  must  beg  the  favour,  thkt  if  they  give 
any  new  evidence,  and  there  be  occasioo,  we 
may  have  liberty  to  answer  it.  And  I  hafc  aa 
uhservatiou  or  two  to  make  when  the  erideaee 
is  over. 

At  I.  Gen.  My  lord,  if  they  have  done  with 

their  evidence,  I  beg  leave  to  observe,  thsl 

there  is  something  arises  upon  tliat  evidewe 

that  will  give  us  occasion  to  call  a  witnces  sr 

two  more.    My  lord,  the  first  witness  wkicb 

they  called  was  Edwards,  and  he  is  ui  ciulidy 

uiMui  sus|>icion  of  high -treason  in  Newgiie^ 

and  he  gives  an  account  of  some  diaoonrse  theft 

he  had  with  Mr.  Goodman ;   and  for  ths!,  H 

will  be  necessary  for  us  to  call  Mr.  POrter  aj^ 

and  Mr.  He  la  Rue,  to  shewthattbis  EdwMb 

the  witness,  as  he  is  committed  for  anB||jfliM 

of  high-treason,  so  he  was  in  the  cuuepiMy 

for  the  assassination  ;   he  was  'one  in  toe  H 

.  that  was  brouglit  back  by  Cranbanie  flea 

I  >lr.  Chamoek  to  captain  Ptorter,  as  OBt  rf 

,  i'hamock's  men.  and  he  is  in  custody  ftrit 

Then  as  to  the  other  matter,  thev  have  oM 

three  witnesses  to  prove,  that  Mr. 

«« u>  not  iu  this  place  at  this  time.    The  i 

indiH'd  opened  it,  that  he  was  not  at  the  t— ^_^ 

till  atler  my  lord  of  Aylesbury  and  Vf  M 

>lvmt{^imery  were  gone  away ;   InH  thor  ^ 

•  ^  _     '  '  -        — 

*  S(v  in  this  volume,  p.  1,  sir  Jdin  fMrfll 

'  Case,  and  the  other  caaea  refeRvd  to  ■  iii 

Note  there. 


'31 


Jbr  High  Treason. 


A.D.  1696. 


[37* 


nee  goes  further.  That  he  was  not  there  at 
:  ami  the  master  of  the  house  says,  he  was 
t  there  to  his  koowletlge  at  any  time.  So 
a  if  their  evidence  prore  any  tbing",  they 
ore  that  he  was  not  there  at  all ;  they  (io 
A,  remember  that  tliey  saw  him- there :  so  that 
e  qnestion  will  he,  whether  Mr.  Goodman 
u  there  at  that  time?  And  it  will  he  neces- 
\ry  to  call  31r.  Goodman  a^ain,  and  Mr.  For- 
T,  to  confront  these  witnesses,  who  will  tell- 
tni  when  be  came  in :  and  particularly  as  to 
IT  lord  of  Aylesbury,  that  he  went  with  him 
Tihe  stairs -bead,  and  my  lord  would  not  let 
jm  q;o  further,  but  he  went  back  again  when 
ay  £rd  of  Aylesbury  wont  down  stairs.  We 
iill  begin  with  the  witnesses,  as  to  this  Ed- 
vtrds.    Swear  Mr.  De  la  Rue. 

[Which  was  done.] 

Mr.  C*myer$.  Mr.  De  la  Rue,  Pray  do  you 
Mw  Mr.  kdwards  that  was  here? 

2>t  la  Rue.  He  goes  by  several  names ;  I 
now  bim  by  the  name  of  Douglas :  and  last 
Maoilav  I  came  into  the  Press-yard,  and  sa- 
bted  him  by  the  name  of  Douglas,  and  he  said 
ke  bad  taken  his  own  name  again,  by  which 
ke  was  known  at  St.  Gerroains,  and  that  was 
Edwards  or  Richards,  as  I  remember,  or  some 
■Kb  name. 

Mr.  Omyers,  When  was  be  at  St.  Germains  ? 

De  /a  Rut.   About  three  or  four  years  ago. 

Mr.  Conytn,  Pray  look  upon  him,  see  if  you 
kiow  bim. 

De  la  Rue.  I  know  him  very  well,  there  he 
rtMds,  tliat  is  the  person  in  the  black  wig ;  he 
m  reputed  at  St.  Germains  to  be  my  lat^  lord 
DHodee*s  chaplain. 

Att.  Gen.  What  name  did  he  go  by  at  St. 
Germains? 

Dela  Rue.  I  cannot  very  well  tell:  but 
kaid  he  bad  taJcen  his  own  name  a^ain ;  and 
Ithiak  he  said  it  was  £dwards  or  Richants. 

Mr.  Conyers.  Did  he  go  formerly  by  the 
■ne  of  DfHiglas  ? 

De  la  Rue.  Yes,  here  in  England:  Mr. 
IWter  knew  him  to  go  by  that  name. 

Alt,  Gen.    VV  hat  else  do  you  kno'i^'  of  him  ? 

IkU  Rue.  The  list  that  Mr.  Craubume 
fitrried  from  Mr.  Porter  to  Mr.  Charnock,  and 
^hicb  be  brought  back  again  from  Mr.  Char- 
Nek  to  Mr.  Porter,  had  in  it,  among  the  other 
tisMs,  the  name  of  Douglas,  which  I  under- 
Kasd  t«)  be  that  {gentleman. 

Alt.  Gen,  Did  he  go  by  that  name  at  that 
ine  ?— De  la  Rue.    Yes,  be  did. 

Lb  C.  J.  IVebjf.  Pray  repeat  that  again,  Sir, 
bst  we  may  understand  it,  and  see  whether  it 
«  evidence. 

De  la  Rue.  Why,  Sir,  the  list  that  Mr.  Cran- 
WDe  brooght  from  Mr.  Charnock  to  Mr.  Por- 
V,  at  the  toot  of  the  list  which  Mr.  Porter  had 
■otto  him,  there  were  other  names  written, 
■  I  believe,  in  Mr.  Chaninck's  hand;  and 
laang  those  names  there  was  the  name  of 
[^Bogns,  which  I  understood  to  be  this  Mr. 
Edwards,  as  he  calls  himself.  And  moreover, 
vhcD  Mr.  Porter  went  out  of  tewn,  going  to 
loctort  Commooa  1  called  at  Mr.  Charagok's, 


and  he  had  a  great  deal  of  company  with  him, 
four  or  five  troopers,  and  among  ihe  rest  this 
Edwards  or  Douglas  was  there  sitting  by  him. 
Here  is  a  gentleman  that  1  see  upon  the  oeocii, 
I  think  he  is  a  Scotubman,  that  knew  him  at 
St.  Germains  as  well  as  i.  I  think  his  name 
is  Macdonnel. 

Just.  Rokebjf.  What  country mon  did  you 
take  this  Edwards  to  be  ? 

De  la  Rue.  A  Scotchman,  an.l  chaplain  to 
my  lord  Dundee  tliat  was  killed  in  Scotland. 

Seij.  Darnall.  Did  you  see  Uiis  gentlemaa 
in  France,  Sir? 

Macdonnel.  I-  never  was  in  France  in  my 
life. 

Alt.  Gen.  You  cannot  ask  him  the  ques* 
tion :  you  know  it  tends  to  make  him  eithei^ 
accuse  or  excuse  himself  of  a  crime.  Pray, 
call  Mr.  Porter  again.  But  in  the  mean  time^ 
till  he  comet,  we  will  examine  Mr.  Goodman, 
because  he  is  here.  Mr.  Goodman,  you  were 
by,  and  heard  what  these  drawers  said  con- 
cerning your  being  at  the  Old- King's- Head  in 
Leadenhall- street  that  day.  Pray,  give  an  ac- 
count  when  you  came  in,  whether  you  saw  my 
lord  of  Aylesbury,  and  what  passed  between 
you  at  my  lord  of  Aylesbury's  going  away  ? 

Goodman.  Mr.  Porter  bniujEiflit  me  up ;  and 
when  I  came  in  tliey  were  all  sitting ;  and  after 
salutation  I  sat  down :  and  when  they  had 
consulted  some  time,  they  came  to  a  resoTutiony 
as  I  have  told  you  already.  The  fellows  are  so 
far  m  the  riffht  of  it,  that  my  lord  of  Aylesbury 
and  my  lord  Montgomery  went  away  first ;  for 
I  took  my  leave  of  them  at  the  head  of  the 
stairs.  Says  my  lord  of  Aylesbury  to  me.  Pray 
avoid  ceremony,  we  will  go  away  privately  as 
we  came,  in  a  hackney-coach.  And  as  to  the 
master  of  the  house,  who  says,  he  does  not 
know  me,  1  have  dined  several  times  there; 
four  or  five  times  with  sir  John  Freind ;  and 
one  particular  day  above  all  the  rest,  I  remem- 
ber I  was  not  well,  and  I  went  down  stairs  to 
the  bar,  and  said,  1  pray,  can  you  get  me  a 
little  brandy  ?  He  said.  Yes ;  he  would  help 
me  to  some  of  tlic  best  in  England.  And  he 
brought  me  up  some  which  1  liked  very  well  \ 
and  tliinking  he  had  a  ((iiantity  of  it,  1  asked 
him  what  1  sbould  give  him  a  gallon  for  a 
parcel.  But  he  said,  he  had  but  alittle:  and  I 
am  sure  he  has  seen  me  there  five  or  six  times, 

Att.  Gen.  Then  set  up  that  muster  of  the 
house,  Cock,  ag^in,  (which  was  done).  Come, 
Sir,  you  hear  what  Mr.  Goodman  has  sworn, 
and  mind  it ;  you  are  upon  your  oath.  You 
said  just  now,  that  you  never  saw  Mr.  Good- 
man before. 

Cock.  No,  upon  my  word,  Sir,  I  do  not 
know  that  ever  I  saw  him  befoi-c. 

Alt.  Gen.  Do  you  remember  nothing  of  his 
being  with  sir  John  Freind  at  your  house? 

CSck.     No,  upon  my  word,  Sir. 

Att,  Gen.  Nay,  you  are  upon  your  oath. 
Nor  do  you  know  nothing  of  your  giving  of 
him  brantly  ? 

Cock.  No,  upon  my  oath,  1  do  not  rtmem* 
ber  any  such  thing. 


375] 


8  WILLIAM  IIL 


Trial  of  P0fer  Cook, 


[37» 


AU.  Gen.  That  is  a  very  safe  way  ofsweai^- 
in^,  I  profess. 

Mr.  Confers,  He  remembers  the  particnlar 
time  when  he  was  sick,  and  yoa  offered  to  sell 
him  some  brandy. 

AH.  Gen,  No,  he  asked  bim  what  he  should 
give  liiin  for  it  a  gallon.     But,  Mr.  Cock,  did 

J^ou  ever  see  GoMtcnan  in  your  house  since  my 
ord  of  Aylesbury  and  they  were  there  P 

Cock.  No,  ii|)on  my  word,  Sir,  I  did  not : 
and  I  never  had  but  two  ^lk>ns  of  braiidy  in 
my  life  at  a  time :  and  1  never  had  any  cask, 
or  any  things  of  that  nature,  to  s^l  any  out  of. 

An.  Gen.  Who  used  to  be  with  sir  John 
Freind  at  vour  bouse  ? 

Caek.  There  used  to  be  Mr.  Rirlifardson, 
and  justice  Cash,  and  c<doiie1  Cash. 

Goodman.  Mr.  Ridiardson  was  there  that 
day :  1  eouki  almost  have  remembered  the  par^ 
lieokir  day,  but  I  cannot  be  positive ;  only  we 
were  in  tlie  same  room  where  (be  consultatiott 
was,  at  the  further  part  of  the  room. 

Just.  Rokeby.  Yon  friend,  the  master  of 
tbe  house,  yon  hear  what  Mr.  Goodman  says: 
he  says  be  was  with  sir  John  Freind  at  your 
bouse,  and  being  not  well,  he  asked  for  some 
brandy,  and  yon  told  him,  you  would  p^e  bim 
•ome*of  tbe  best  in  En^and.  And  he  nro- 
DOunded  to  you  then  to  sell  him  some  of  it ; 
But  it  seems  there  was  no  bargain  niatle.  Do 
yoa  remember  an^  such  thing  df  one  that  was 
with  sir  John  Freind,  that  spoke  of  buying  of 
brandy  when  he  was  sick  P 

Cock.    No,  upon  my  won!,  I  do  riot. 

Att.  Gen.  Tiicn  set  np  Mr.  Porter,  (who 
stood  np).  Pray,  3Ir.  Porter,  look  upon  that 
man  in  the  block  |ieruke ;  what  name  did  he 
use  to  go  by  f 

Porter.  'He  used  to  go  by  the  name  of  Ed- 
wards. 

Att.  Gen.     Had  he  any  other  name  ? 

Porter.     Yes,  Douglas. 

Att.  Gen.  He  has  so  many  names,  lliat  we 
do  not  know  wliicli  is  bis  true  name.  Mr. 
Porter,  pray  what  else  do  you  know  of  bim 
touching  his  lH.'ing  concerired  in  the  conspi- 
racy? 

Porter.  1  know  not  any  thini;  of  my  own 
knowledge;  but  his  name  was  put  down'in  the 
List  that  Mr.  CMiarnock  sent  uu?  of  his  men, 
and  Mr.  De  la  Kiie  read  his  name  there. 

Sol.  Gen.  Mr.  Porter,  you  were  a  witness 
upon  tlie  trials  of  sir  John  Freind,  and  sir  Wm. 
Parkyns  ;  did  you  give  evidence  that  Mr. 
Goodman  was  in  the  room  at  the  same  time 
when  the  consultation  was?— /V/rr.  Yes,  Sir. 

Att.  Ccn.  Well,  you  hear  that  these  peoptf^ 
have  sworn,  that  Mr.  Gomlman  did  not  come 
till  my  lord  of  Aylesbury  went  away;  nuy,  in- 
deed,'that  he  was  not  there  at  all.  ' 

Porter.  My  hud,  upon  my  oiith  lie  was 
there  l.rfore  my  lord  Avlesbury  went  away, 
and  Mr.  Gotnlman  howecl,  and  toek  leave  of  ray 
lord  as  he  went  out  of  doors. 

Att.  Gen.  What  time  did  my  lord  of  Ayles- 
bury go  away  ? 

Porter,    It  was  about  an  hour  and  a  half, 


or  two  hours  after  dinner,  and  be  wa«  in  the 
room  when  my  lord  went  away,  for  be  took 
his  leave  of  him  at  the  door. 

Mr.  Coofper.  Do  you  rMnember  tbe  man- 
ner of  Mr.  Goodraan*8  coming  in  ? 

Porter.  Mr.  Goodman  sent  up  bis  milbefo 
me,  and  1  told  the  company,  and  promised  fiir 
him,  that  be  was  a  very  honest  man,  and  much 
in  king  James's  interest ;  aad  then  with  Ihnr 
consent  I  went  down  and  brought  bim  up. 

Just.  PoweU.  How  long  time  do  you  tbmk 
tlie^e  was  between  Mr.  Goodman's  coming  in, 
and  my  lord  of  Aylesbury's  going  away  ? 

Porter.  I  cannot  tell  that,  I  do  not  remem- 
ber exactly  bow  long  it  was. 

Just.  PtmwlL  Was  it  a  quarter  of  an  hour, 
or  half  an  hour? 

Porter,  A  great  deal  longer,  fur  we  bad 
discoursed  of  tbe  whole  business  after  Mr. 
Goodman  came  into  tbe  room. 

Mr.  Confers.  How  long  were  they  Ibere 
after  Mr.  Goodman  came  in  ? 

Porter,  It  was  very  near  two  hours  after 
he  came  in,  before  thev  went  away ;  the^r  did 
not  go  away  till,  six  o'clock,  and  he  came  in  it 
four,  as  bear  as  I  can  remember. 

Att.  Gen.    Then,  my  lord,  we  have  done. 

Sir  h.  Shotcer.  Then  1  beg  the  favour  of  t 
word  or  two,  my  lord.    May  it  please  your 
lordship,  and  you  gentlemen  of  the  jory,  1  am 
of  counsel  in  titis  case  for  the  prisoner  at  tbe 
bar,  and  1  must  beg  your  lordship's  patienof, 
and  ybnr  favour,  gentlemeii,  to  naske  a  few 
observations  upon  the  evidence  that  has  been 
given  ;  for  we  humbly  insist  upon  it  in  point  of 
law,  that  here  is  uot  sufficient  e\ideHce  before 
you  to  convict  the 'prisoner.     You  are,  geu- 
tleuieu,  to  liave  res[)ect  and  regard  to  your  con- 
sciences and  the  oaths  which  you   have  noir 
taken,  to  give  a  verdict,  and  make  true  deli- 
verance between  the  king  and  the  prisoner; 
3'ou  are  not  to  go  according  to  your  own  pri- 
vate ofiinions,  nor  according  to  public  facns, 
nor  accordinir  to  common  report,   nor  accord- 
ing; to  the  verdicts  iu  other  cases,  nor  accord- 
ing to  t!'j  confessions  or  dvTng  speeches  of 
criiuiuals  uho  have  heen  executed,   whether 
made  by  themselves,  or  by  others  for  them,  but 
you  are  to  go  hy  the  testimony  of  credible  wit- 
nesses, and  if  \ou  have  not  the  evidence  of  two 
i  credible   witnesses  before  you,  wiv  lords  the 
jud^^is  will  inform  you  how  the  law  stands. 
[That  liy  tl  e  statute  of  Edward  the  6th,  and  the 
i  neu  stiitntf  for  trials  of  treasons,  there  must  bft 
two  witnessef!  to  prove  the  prisoner  guilty  of  the 
'  oi  crT  net  of  the  treason  that   is  laid  in  the  in- 
I  (lietiuent  ;  and    whether  there  have  been  t«r6 
;  ereilible  witnesses  produced  before  yoo«  is  tbe 
'  question  that  you  are  to  consider  upon  yofit 
I  oath  and  conscience ;  that  is,  whether  you  are 
!  satisHed  here  be  two  such  as  the  law  required. 
The  question  is  not  merely  wliethi  r  Mr.  Cook 
be  guilty,  but  whether  in  your  conscience^  he 
be  legally  piovetl  guilty  ;  whether  there  be 
evidence  to  satisfy  your  consciences,  accotll- 
ing  to  the  laws  ot'  the  land,  that  be  is  guilty  ; 
aud  we  insist  there  is  not ;  and  tbefefora  1  bij^ 


7J 


for  High  Treaioru 


ire  to  ffcspitiflate  what  hat  beeo  sworn 
ainst  hiro,  that  \tc  may  see  how  far  it 
ichc«,  and  wherera  it  is  deiecttre. 
Geotlemea,  Mr.  Porter  he  twean,  that  abont 
e  beginoitigf  or  middle  of  May,  he  cannot  tell 
hich,  there  was  this  meetini^  at  the  Old 
in^s  Head  Tarem  in  Leadeuhall  street ;  in 
bich,  1  would  observe  to  3*ou,  that  he  con- 
lift  himself  to  a  certain  month  ;  the  reason  is 
!ry  plain,  and  therefore  I  a^kccl  him  whether 

was  not  in  Aprif ;  for  if  he  had  said  it  had 
■eo  thru,  thera  had  been  no  dangler  to  the  pri- 
mer, because  of  the  uct  of  indemnity,  therc- 
>re  he  was  careful  to  i)^  it  in  May  ;  and  he 
•fitrid  not  by  it  in  June,  for  the  tenth  of  June 
I  sfamouH  day  ;  and  then,  or  soon  aAer,  Xew- 
ite  had  him  ;  he  was  confined  there  for  u  riot 
a  tbat  (Uy ,  and  so  they  have  rc^tniinc4.t  it  to  a 
nrth,  ami  the  only  mouth  that  he  is  capable 
f^vrcirin^  to,  as  to  any  act  done  the  last  3-car 
i1  thfy  came  in  January  to  the  nKsasiiiiiatlon 
*hK,  n'hirti  the  prisoner  fs  not  accused  to  have 
ad  any  concern  in ;  but  it  should  seem  lie 
looot  tell  what  day  of  the  week,  or  of  the 
amrtb,  but  about  the  beginning  or  the  middle 
f  May  f-ight  persons  dined  at  this  place,  and 
hen  a'fter  ihntier  >lr.  Goodman  came  in,  and 
bey  discoursed  about  this  matter. 

Fiist,  gentleineo,  we  insist  upon  it,  that  it  is 
«j  improbable  that  English  Protestants  of 
Bots  conversation  and  good  morals  sliould 
iltree,  as  be  says,  to  send  such  a  message  to 
it  late  king,  to  invite  ovex  a  French  Popish 
irrce  ;  we  may  easily  see  the  horrid  and  mis- 
iievmis  consequences  that  Wf 'uM  have  followed, 
Qch  as  must  aifect  every  Englishman  with  a 
:ooa-m,  so  that  it  is  improbable  a  man  of  vir- 
ae  and  piety  could  engage  iu  such  an  enter- 
inxc ;  and  if  it  be  improbable,  you  will  never 
idieve  it,  unless  the  conv  iction  or  proof  be  ir- 
emtiblc :  and  if  you  have  any  other  reasons  to 
iiktrustthis  man's  truth,  then  we  hope  you 
till  ;ro  unun  the  siile  of  probability  ;  oud  not 
tt  popniar  prejuilice,  common  fame,  or  auy 
lung  else  but  legal  and  undeniable  evidence 
a?e  the  ascendant  over  you.  If  you  are  not 
iilitlied  that  Mr.  Cook  did  assent  (as  from  the 
iaracter  of  the  man  it  is  not  probable  he 
ibiuldl  to  send  Charuock  into  Franco,  to  per- 
mk  king  Lewis  and  kini;  James  to  send  ten 
lottsand  men  to  invade  our  country,  then  he 
ihotffuiUy. 

In  the  next  place,  genllfmeu,  he  is  not  guilty 
•etty  in  the  eye  of  the  law,  if  they  have  not 
»o  witnesses  ;  ami  for  t!iat  we  say  you  have 
HI  one  that  is  to  be  believed  ;  and  if  you  have 
Mane  that  is  to  be  believed,  that  in  law  is  but 
He,  and  consequently  my  client  is  not  guilty  ; 
•  die  king's  counsel  agrr^e,  that  if  there  be  but 
m  tritoess,  be  cannot  be  convicted,  the  law  is 
jknili  the  case.  Now  to  make  it  out  that 
Mrc  ii  but  one  witness  at  most,  we  have  offered 
yvativcnl  objections,  and  made  Ihem  out  by 
nUoMe,  against  the  testimony  of  Mr.  Good- 
>Mi ;  tliat  be  it  boI  a  person  fit  to  be  believed ; 
Jiif  he  bt  out  of  toe  case,  then  does  Mr. 
ran  Hiftd  ilone,  and  ill  will  amount  but  to 


A.  D.  1«M.  [378 

one  witness,  suppose  it  should  be  granted  that 
his  testimony  were  trde. 

First,  we  have  read  a  record  of  crinviction 
against  him,  of  a  crime,  one  of  the  greatest 
next  unto  treason,  that  is  known  in  our  or  any 
other  taw.  That  he  hired  a  man  to  |M>isou  two 
dukes,  branches  of  a  noble  family,  to  which  he 
had  such  great  obligations,  as  all  mankind  do 
know,  ami  he  himsctf  cannot  but  acknowledge ; 
and  if  there  were  not  that  aggravation  in  it,  of 
his  obligations  to  that  family,  vet  to  lie  in  wait 
to  mupffcr  and  (Mison,  is  such  an  offence  as 
any  asj^e  can  seldom  shew  the  like.  And  the 
olijccf  ion  U  not  so  very  easily  answered  as  they 
wouki  have  it ;  nor  can  it  be  so  soon  passed 
over  as  thc}'  think,  by  saying  be  is  a  whness 
uf  a  confederacy  with  which  the  urisnner  is  ac- 
cused, a  rriinc  greater  than  the  thing  objected. 
It  is  true,  none  can  bear  testimony  in  such  a 
business  but  he  that  is  a  party  :  fSut,  we  say, 
if  these  persons  who  come  and  set  up  them- 
selves for  witn^ses,  were  not  probi  HonnmtM^ 
and  did  not  appear  to  be  persons  of  indifferent 
credit  between  man  and  man,  and  did  not  stand 
impartial  in  tlie  eye  of  the  world  in  other  re- 
spects before,  then  they  are  not  to  be  believed, 
as  to  what  they  charge  themselves  and  others 
to  be  guihy  of:  Now,  if  Mr.  Goodman  stand 
convicted  of  such  an  offence  as  this  that  is  al- 
ledged  against  him,  though  he  is  jpardoned  by 
the  act  df  parfiament,  or  satisfaction  acknow- 
ledged upon  the  record,  though  it  be  even  the 
very  next  term,  yet  that  does  not  purge  him 
from  the  infamy  and  disgrace,  or  from  the  im- 
putation of  being  concerned  in  so  villainous  a 
design.  It  is  ini|K>ssible  that  he  should  be  a 
good  witness  that  would  be  engaged  in  such  a 
matter,  es|}ecially  when  we  hare  those  various 
witnesses,  and  such  a  concurring  testimony, 
that  what  he  has  sworn  is  absolutely  talse. 

Gentlemen,  if  there  were  nothing  but  his  own 
testimony  in  the  case,  there  would  In;  no  ques* 
tion  at  all  in  it :  And  as  to  capt.  Porter'a 
testimony  about  his  being  there,  we  have  pro- 
duced three  witnesses,  who,  if  tbey  l>e  of  credit, 
then  Mr.  Goodman  is  not  to  be  believed,  but  is 
fals»itied  throutrhout ;  for  it  is  not  the  question, 
whether  Mr.  Cook  went  a** ay  b«fun*  the  con- 
sultation and  the  resolution ;  for  if  my  lord 
of  Aylesliury  or  my  lord  Montgomery  went 
away,  Mr.  Goodman  is  falsiiied  in  that,  and 
consequently  3  ou  ought  not  to  belies  e  him  in 
the  rest;  for  he  actually  s\%  ears,  that  uiy  lord 
of  Aylesbury,  my  lord  .Monti;oiiiery,  and,those 
other  gentlemen,  were  all  presM'ot,  and  at  the 
consult,  and  did  coiiseut  and  agree  ti>  the  Ue- 
solution,  by  using  these  wunls;  Yes,  you 
may;  Yes,  you  may.  Now,  we  say.  there 
are  three  wunesscs  that  swear.  That  my  lord 
of  Aylesbury  was  <4one  liefoie  he  cam**  there. 
I  do  not  care  whether  he  came  tlu're  or  not  ; 
that  is  not  material  :  For  if  tiier*;  wi  n*  uob«Miy 
there  when  my  bird  of  Aylesbury  was  there 
but  those  that  Mere  at  dinner,  then  Mr.  Good* 
man  was  not  there  at  auy  such  consultation, 
as  they  would  insinuate  was  at  that  time,  ia 
that  place,  and  that  company. 


My  lord»  we  have  proved  to  you  Mr.  CookV 
4bbarrence  aod  declaration,  which  we  thiok; 
nugb(  to  go  a  grcut  wuy  ia  iaiisfaction  of  his 
iono^encv,  at  least  to  induce  you  to  the  favour- 
able «ide;  for,  geotlemeD,  you  are  not  broui^ht 
Itiibrr  to  codvict  a  man  only,  tut  to  try  and 
exaniinei  him  and  it  is  jour  dut^*  to  acijuit,  as 
well  as  convict,  according  as  the  evidence 
stands:  Jt  is  your  duty  to  go  aceording^  to 
your  coriBciencc*,  and  to  declare  nheilier  he 
he  guilty  or  not  jgfuiltv,  upon  lUe  evidence  you 
hive  bt'fore  you  :  Vou  are  to  ej^nmine  the 
truth  of  the  fikct  in  all  ita  drcunistanci'S,  and 
ttpon  your  own  eooscieneea  to  de<*Kire  wbe* 
the  I  he  U  guilty  or  not  guilty  ;  now  we  pro- 
pose it  10  yoUj  and  suhmtt  it  to  your  coa- 
scteuce^^  thdt  here  are  three  witnesses  that 
sneak  upon  their  outh»,  a^inst  whom  there  h  no 
ehjection  thai  crer  they  were  guilty  of  lyi^Jf 
in  wait  to  j^Hiisoo  any  body,  nor  in  any  plot  for 
an  asiassioation,  uor  any  conspiracy  for  in- 
viting an  invasion  from  Fraoee,  nor  any  other 
«i»ieetioD  a^nat  them  hut  tbey  stftud  upjrj^ht 
in  tbe  face  of  the  world,  and  they  tbrte  swear. 
That  be  waa  not  there  at  that  time.  The  an- 
swer, that  we  expect,  h^  That  be  tniig^ht  be 
there,  aad  they  not  see  bim:  aod  because 
it  was  poNibte  he  mi^ht  be  there,  and  they 
not  see  bim,  tlierefore  it  is  no  cridence  that 
it  19  su  :  that's  no  objection  ;  for  vou  will 
take  it  as  the  nature  of  the  thing  will  aiford, 
be  no  better  evidence  than  this;  that  they 
mod  the  matter  itself  allow.  Now  there  can 
went  in  and  out  continually ;  the  drawers,  and 
the  CMiBter  of  the  house  nve  or  six  times  hira- 
ielf,  were  in  the  room,  and  tliey  say^  there  was 
no  fiuch  [lerson  there.  Wljy  then  it  is  very 
improbable,  if  not  impossibttv  that  any  sucli 
man  should  be  there.  Tlie  one  swears,  he 
eame  doi%n  from  my  lord  of  Aylesbury  just  be- 
fore he  west  away  ;  and  aootJier  aays,  be  fol- 
lowed bira  out  of  the  room  ;  and  the  master 
says^  that  he  met  my  lord  of  Aylesbury  at  the 
stairs  bead.  Alt  which  falsifies  Mr.  Goodman 
in  that  [larticuhr,  that  he  was  with  mv  Imd  of 
Aylesburyl  at  tlie  siairs-head,  when  lie  went 
^way.  These  are  incompatible ;  and  if  we 
falsify  him  in  any  one  thiag,  he  is  not  to  be  be 
Uevcd  in  any  other. 

Then,  g-eutleraen,  we  offer  to  your  conside- 
ration an  answer  to  another  objection:  They 
aay  these  witnesses  seem  to  swear,  that  he  was 
out  there  at  all.  We  are  not  concerned  whether 
he  was  there  afterwards,  or  not:  If  you  are 
satisfied,  thai  he  was  not  there,  as  our  wit- 
ii«gMfl  swear,  while  my  lord  of  Aylesbury  was 
there,  that's  enough.  But  then  they  make 
an  objection,  How  corner  the  muster  of  the 
bouse  to  remember  my  lonl  of  Aylesbury's 
ICoing^  away,  more  than  any  Innly  tlse  ?  Gen- 
llemen,  you  kuow  the  nature  of  the  thing 
shews^  not  only  that  it  was  more  probable  the 
master  of  the  house  should  make  hts  observa- 
tions near  the  time  of  dinner,  rather  than  after- 
wards at  nig-hl,  when  there  is  more  hurry: 
But  it  is  more  probable  he  should  take  notice 
af  it  frOiQ  the  quality  of  the  person,  firom  the 


creoii^ 

m 


Trial  afPHer  Cook, 

discourse  he  had  with  Inm     *      i     '        bit^^ 
wiue,  which  was  a  good   >.  e»b%j 

Tintner^s  bietnory,  it  bcin;^  ^  maur  r  m  int<i\y% 
trade^  aa<l  that  nii|^bt  ruitke  him  call  it  to  mind. 
Therefore,  gentlemen,  we  think  these  thre^ 
witnesses  stand  tVee  aud  clear  in  their  credit  ;. 
and  l»eiui;  so,  are  iaconsLrtent  with  Mr 
man's  testimony  ;  and  we  ho|ie  in  ^av 
hfe,  the  credit  inchncs  on  their  sJde,c»p4  ^ 
when  the  tjuustion  i*,  whether  a  man  siiaii~S 
executed  i'or  ueaswm  who  never  Btjd  for  a,  ythm, 
was  never  charged  with  any  treason  or  trc4<^ 
sonable  practices  before  ;  n»y  not  »u  much  m 
with  any  particular  crffue  or  immomlity  :  Am 
whether  three  wilneiises  sbaii  l>e  t>elievi( 
against  whom  there  is  no  objection,  raihc 
than  two,  against  one  of  which  there  are 
objectioos. 

My  lord,  we  are  not  now  debating  or  ati 
theeridencfl  of  the  plot,  orarraigiinig  iheforoie! 
judgments  against  the  conspirators  that  haf« 
suffered  ;  but,  gentlemen ^  we  are  putting  yott 
upon  a  serious  enquiry,  (as  God  and  your  owl 
consciences  shall  iodine  you)  whether  oui 
client  be  guilty  or  not  guilty  upon  thi»evideciee| 
that  is,  whether  Mr.  Goudman  swears  true,  of 
not.  We  hope  tlmt  we  have  giren  yuu  suffiw 
cieut  satisfaction,  that  upon  Mr.  Goodmaoll 
part  the  evidence  is  insufficient ;  aud  w© 
you  will  accordingly  tiud  our  cUeut  not 

Alt.  Gen.  Jf  Mr   Cook  have  any 
say  himseli,  I  desire  be  may  say   it  oow,^ 
fore  »ve  begin. 
Sir  Ik  Shouer.  No,  pray  go  on.  Sir. 
X,  C  J.  2>cAy.  Mr*  Cook,  would  yod  up 
any  thing  your»e1f,  before  the  kmg'a 
sum  up  ? 

OkfL  The  liltle  I  have  to  say,  nay  lord,  f  wit 
speak  now,  or  by  and  bye  which  yo*  please. 
L.  C  J.  7reAy.  You   most  do  it  nitw,  U 
cause  aller  thev  have  summed  up,  there  is  IM 
thing  more  to  be  said  by  you. 

Cook.  My  lord,  I  thank  God,  t  have  lived 
life,  1  hope,  as  good  as  any  man,  and  htfl 
often  receifed  the  blessed  sue  mm  en  t ;  I  hat| 
done  it  constautlv,  and  shall  do  it  speedUy^  bl 
the  grace  of  Gon,  as  soon  as  I  tiau  nave  a  ml 
nister  couieto  adiiii»i:>ter  it  to  me.  I  did  uflfer 
to  my  own  father,  when  he  came  to  me«  ai 
told  nte.  If  I  would  confess  this  thing  I  eboflli 
not  come  to  trial :  !  told  my  father,  I  hoc* 
not  for  ten  thousand  worlds  take  away  l\ 
blood  of  an  innocent  man  to  save  mine.  1  ibiflk 
God,  1  am  in  a  very  good  way  to  die ;  I  hm 
for  at  least  this  last  year,  frequently  rcceivi 
the  blessed  sacrament ;  and  how  I  have  liv( 
every  body  in  the  court  tliat  knows  me  can  ^ 
my  fife  and  conversation  has  been  aa  r^gtilir 
any  man^s,  aud  L  am  as  ready  to  die  to 
if  occasion  was  fbr  it,  (I  thank  God) 
one  ;  1  will  receive  the  blessed  SacratDeciti 
it  I  and  it  is  not  for  life  that  1  would  do 
thing  that  is  wrong  or  unjust :  I  do  love 
nation,  and  I  love  the  quiet  of  the  nation  ; 
never  was  for  disturbing  the  government 
now  is  ;  and  I  ever  waa  against  foreign  ~ 
or  au  invasion,  for  I  never  thought  of  on^ 


5lj 


Jor  High  Treason  > 


A.  D.  1696. 


[382 


ard  of  it,  btit  with  abhorrence  and  detesta- 
« :  and  I  do  assure  faithfully,  I  should  be 
rry  to  disparage  Mr.  Porter's  evidence,  be- 
luse  1  would  have  every  body  that  was  con- 
TDed  in  that  horrid  and  barbarous  crime  to 
ifier ;  in  God's  name,  let  them  all  suffer.  I 
obk  God,  I  never  knew  any  thinif  of  it,  nor 
r  a  French  ioTasion :  and  I  wonfd  say  more 
r  it,  but  that  I  would  not  hurt  Mr.  Porter's 
ridtnce,  whose  discovery  of  that  bloody  busi- 
em  has  dune  so  much  service.  As  tor  Mr. 
ioodmaii,  as  I  hope  to  receive  the  blessed  sa- 
rament,  and  may  I  perish,  when  I  do  it,  if  1 
peak  an  untruth ;  1  would  not  for  any  thing, 
»,  not  tor  the  good  of  my  country,  have  inno- 
tat  Mood  spilt;  I  wouM  lay  down  my  life  to 
unt  my  country,  hut  I  would  not  have  my 
iood  be  lightly  lost ;  and  how  little  a  man 
•oerer  I  am,  my  blood  will  lie  as  heavy  upon 
lie  nation  as  any  the  weightiest  man's  can  do. 
do  not  (^  ^ubt  your  lordsnip's  justice,  nor  tlie 
ury's ;  hut  1  pray,  my  lonl,  observe,  though  it 
i  liflual  not  to  own  things  at  the  bar,  yet  do  not 
iiike  thn  denial  as  of  course,  but  out  of  truth  ; 
lad  1  do  assure  you,  in  the  presence  of  the 
rbole  court,  if  I  should  suflW  for  this,  I  must 
a  my  bst  moments  either  confess  or  deny 
•WKthing :  and,  I  say,  I  do  assure,  in  the  pre- 
nce  of  the  whole  couit,  and  1  will  take  the 
ikMed  sacament  upon  it,  that  I  must,  at  my 
littdi,  deny  this  whole  matter,  and  that  ever  1 
ii]  see  Mr.  Goodman  at  all  there ;  1  do  not 
ikiak  I  saw  him :  I  do  not  remember  I  saw 
Mr.  Goodman  at  all,  except  once  in  Germain - 
iicei,  when  the  coach  broke,  and  that  must  be 
bst  in  passing  by  neither,  and  he  woulil  have 
ksrt  or  killed  the  coachman,  and  we  kept  him 
fisia  it ;  and  I  walked  with  him  half  the 
Iciftfa  oif  Germain -street,  before  I  knew  who 
Ir.  Goodman  was.  If  ever  a  one  of  those 
Ifademen,  that  are  men  of  credit  and  honour, 
cia  say  1  was  any  ways  so  inclined,  or  that 
1^  ever  saw  me,  or  'knew  roe,  that  I  ever 
m^%  a  pistol  or  a  blunderbuss,  or  the  like, 
■17  God  sink  and  strike  me  ch*ad ;  and  the 
Med  ncrament  which  I  intend  to  receive  lie 
wij  corse  and  damnation,  if  1  knew  of  king 
AuMsTs  eoiningr,  till  after  the  whole  town  rang 
tfit:  I  bail  so liand  in  the  invasion  ;  and,  be- 
fiki  my  abhorrence  of  introducing  foreign 
fase,  1  desire  yonr  lordship  and  the  jury  to 
tttider  the  drcumstanoes  of  my  case,  that  I 
Mhtta  very  snail  allowance  from  my  father, 
«i  tberefbre  it  is  not  probable  I  should  take 
tyiB  mt  10  join  with  my  lord  of  Aylesbury, 
<id  By  lord  Montgomery,  and  those  other 
VMkmea  to  send  Mr.  Chamock  into  France 
ti  ivrile  over  a  foreign  force :  and  I  call  God  to 
*ilM»  I  bad  no  band  in  it  1  beg  your  lord- 
jNpPs pardon  for  all  this  trouble;  1  would  not 
||R  Mr.  Porter's  evklence,  for  the  reasons 
^  1  have  told  you ;  but  this  is  for  my  life, 
*>i  I  4o  Mt  so  much  value  that  as  I  do  truth 
|li«ocstity  ;  and  I  shall  receive  the  blessed 
fMwnl,  if  I  die,  that  I  never  did  do  so. 
Md  1  mntr  did  take  the  oaths,  nor  did  I 
tbey  were  never 


offered  mc ;  but  I  would  take  the  oaths  now  if 
they  were  offered  me.  My  lord,  I  beg  your 
paraon  for  this  tnmlfle. 

L.  C  J.  Trebi/.  Hare  you  done,  Sir  ?  Have 
you  said  all  you  would  say  ? 

Cook.  Yes,  my  lord. 

L.  C.  J.  Trebit-  Then,  you  gentlemen  of 
the  king's  couuHel,  will  you  conclude  ? 

Sol.  Gen,  May  it  please  your  lordship,  and 
you  gentlemen  of  the  jury,  I  am  of  counsel  in 
this  case  for  the  king,  and  1  could  liavc  been  very 
elad  this  gentleman's  defence  that  he  has  made 
bad  been  stronger  than  in  truth  it  has  been : 
and  I  should  have  been  very  glad  too,  that  hit 
counsel  had  been  able  to  have  niade  it  better  for 
him ;  but  that  he  and  they  may  be  satisfied,  as 
much  is  done  as  the  case  will  bear ;  they  have 
had  all  the  liberty  in  the  world  to  make  uis  de- 
fence they  could  desire,  nay,  more  than  in 
strictness  could  be  allowed  them. 

Gentlemen,  our  evidence  is  very  positive 
a^fainst  the  prisoner  at  the  bar,  and  for  tlie 
highest  crime  that  the  king's  subjects  can  be 
guilty  of,  by  the  confession  of  the  gentlenuin 
himself  and  of  his  counsel.  We  have,,!  say, 
two  positive  witnesses  against  him ;  they  say 
they  are  not  legal  ones :  I  must  own,  if  we 
have  nut  two  witnesses-,  we  have  never  an  one ; 
for  whatsoever  falsifies  Mr.  Goodman's  testi- 
mony, falsities  whatsoever  Mr.  Porter  has 
sworn.  Now,  the  evidence  that  Mr.  Portur 
has  given  against  him  is  this:  he  says, 
there  was  to  be  a  meeting  at  the  King's- head- 
tavern  in  leaden -hall -street,  and  there  they 
coilsulted  of  the  methods  to  bring  back  king 
James  hither ;  and  it  was  thought  the  best  way 
to  send  to  king  James  to  invite  the  Frencn 
king  to  send  1,000  horse,  1,000  dragoons,  and 
8,000  foot,  to  land  here  in  this  kingdom,  where 
they  would  meet  him  with  '2,000  horse.  They 
pitched  uiMMi  a  verynroiier  messenger,  Mr. 
Charnock,  a  person  that  has  been  attainted, 
and  has  suffered  for  higli-treason ;  he  was  to 
be  sent  into  France  upon  this  errand ;  Mr. 
Cook,  the  prisoner  at  the  bar,  was  one  of  the 
persous  that  were  there  at  that  time,  and  he 
was  consenting  to  this  message ;  and  Mr.  Por- 
ter gives  you  a  |iarticular  token  relating  to  the 
prisoner,  for  he  remembers  the  prisoner  did 
Kneel  upon  the  chair,  and  leaned  his  elbows 
upon  the  table  when  he  conscntetl. 

Mr.  Porter  goes  further,  and  tells  you,  That 
Mr.  Chamock  would  have  another  meeting,  to 
know  and  see  whether  all  the  company  were 
of  the  same  mind  they  had  been :  and,  that 
aOcrwards  they  met  at  Mrs.  Mountjoy's  house, 
and  there  the  prisoner  at  the  bar  whs  present, 
and  consenting  to  the  same  thing :  thereupon 
Mr.  CharnocK  went  into  France,  and  came 
back  again,  and  said,  the  French  king  could 
not  spare  so  much  force.  Mr.  Goodman  ^ves 
the  same  evidence  that  Mr.  Porter  had  given : 
It's  true,  he  was  not  at  Mrs.  Mountjoy's  tavern, 
but  be  tells  you  withal,  he  spoke  with  Mr. 
Charnock  when  he  came  back  from  France, 
and  Charnock  returned  him  the  same  answer 
he  did  to  Mr.  P^er,  that  the  French  king 


S87J 


8  MILLIAM  III. 


Trial  ofPder  Cook, 


[W 


and  theii  Ibey  pursued  tliii  consultation,  and 
came  to  a  resi»ltitioii  to  send  Mr.  Chamock 
into  France,  and  the  loessa^  was  agfreed  upon 
niiicli  he  i^outd  carry  ;  and  he  was  to  |^u  to 
the  late  kio^,  and  solicit  liiiu  to  obtain  10,000 
soldiers  from  the  French  kin;^,  whereof  8,000 
ahould  be  loot,  1,000  hoi-se,  and  1,000  dragoons. 
These  ivere  to  make  up  tlie  10,000  men  to  ui- 
vade  this  kingdom.  And  they  resolved  also, 
when  this  force  should  land,  they  should  meet 
and  assist  this  invasion  with  a  jomt  force,  that 
should  consist  of  'i.OOO  horse.  And  to  ac- 
quaint and  assure  him  of  this,  was  the  message. 
But,  be  says,  that  Mr.  Charaock  was  very 
cautious  in  it,  and  woukl  not  presently  go  upuu 
this  errand,  but  he  would  have  further  assur- 
ance that  they  were  in  earnest,  and  would  make 
ffood  what  they  did  send  him  to  propose,  there- 
K>rc  be  would  have  a  secoud  meeting ;  and  a 
second  meeting  was  had,  and  that  was  at  Mrs. 
Mountjoy's  taverui  and  there  they  did  renew 
the  same  rerolution;  and  thei*e  were  present 
my  lord  of  Aylesbury,  sir  William  Parkyns, 
air  John  Fen  wick,  sir  John  Freiiul,  Mr.  Char- 
nock,  the  prisoner  at  the  bar,  and  himself;  lie 
does  not  know  or  rfnieinljer  whether  my  lord 
Montgomery,  or  Mr.  Goodman  was  there.  Uc 
■ays,  Mr.  Chamock  did  accordingly  go  into 


igly 


France,  and  liv  did  rriurn  and  bring  Wk  king 
James's  thanks  to  them,  hut  their  desire  conld 
not  be  complied  with ;  and  he  had  his  share  of 
the  compliments. 

Now  comes  Mr.  Goodman,  and  he  says, 
That  about  the  same  time,  viss.  Mid-May,  Mr. 
Poller  acquainted  him,  there  would  he  a  mceU 
ing  of  sonic  of  king  Jamcs*s  friends,  at  this 
tavern  in  lieadcnhall-street.  He  says.  That  he 
did  tell  Ml'.  Porter,  he  duubteil  he  should  not 
be  there  at  dinner,  but  he  would  come  as  soon 
as  he  could  utWr  dinner ;  and  according  to  ap- 
pointment, he  did  cHinie  after  diiiner,  and  there 
was  this  consultation  an  J  rcsolulion  that  Mr. 
Porter  speuks  of,  and  says,  that  Mr.  Charnock 
aflerwards  told  htui,  he  had  be^Mi  hi  France 
with  the  late  king,  and  broiiL^^ht  back  tiie  same 
answer  that  Mr.  Potter  sjieriks  of;  and  he  had 
the  honour  of  thanks  from  the  late  king  too. 

Cieutlenien,  1  must  observe  one  thing  to  you, 
which  does  ^'•o  very  much  towards  the  con - 
lirniinq;'  wliut  these;  ivitni'sses  say,  and  that  is 
the  agreeuHMit  in  tlieir  testimonies,  though  tlicy 
were  examined  apart  at  the  desiie  of  the  pri- 
soner: You  will  iiiid  they  ai-roc  in  lliesc seve- 
ral circuni^iaii<'(  s,  in  llnrtime,  llia«  it  was  this 
time  l\vel\ v.- months  ;  in  the  plae«',  that  it  was 
at  this  lu\ein  ;  in  tljc  number  ot  pci'sons  that 
werellitie,  wliicli  v.as  ei;,ht  btloie  Tilr.  tjnod- 
inan  cinu  in  ;  in  the  nunilior  ui'  hnr.sc,  fool, 
and  drairoons  tint  v. ere  to  Ite  liiOiiL;hl  ihm\ 
France,  and  in  tlifsc  horse  tlidt  \\l\\:  Ki  mtei 
Ihcm  here  :  f-iid  besides,  in  those  v/ordi  of  dis- 
course upon  the  consult«iti'jn  and  the  resolu- 
tion. And  tlicre  is  one  ciieuinstance  more  in 
which  they  do  agree,  and  which  is  ver}-  parti- 
cular :  'I'hat  \\\\Qn  they  came  to  deliver  tlicir 
consent  to  this  message  that  Mr.  Charnock  was 
to  carry,  Uic  rest  ii»at,  aud  3k.  Cook  the  pri- 


soner did  kneel  upon  the  chair,  and  leaned  apoi 
the  table.  And  tliis  botli  of  them  do  apee  ia 
And  after  all  the  many  queations  aiked  mthcii 
separate  examination,  I  do  not  find  tliey  iyi< 
agi:ee  in  any  part  of  their  evidence.  So  thit 
gentlemen,  there  can  remain  no  qneatMn  nw, 
but  whether  these  two  witnesMa  are  um  li 
credit  ?  or,  whether  there  has  been  opptndk 
them  any  such  evidence  ai  will  make  yo«  k» 
lieve,  that  (if  not  both)  at  least  one  of  them  kai 
forsworn  himself?  Tney  do  prodoce  nothiq 
against  Mr.  Porter,  whataoever  may  have  bw 

r reduced  at  former  trials  against  his  crait; 
*erha|is  what  has  been  before  has  satisfied  Ik 
objectors,  and  there  is  nothing  appears  sgsiHl 
his  ci-cdit ;  but  he  is  not  onlv  a  competent,  hri 
a  very  clear,  good,  credible,  and  tmdwifcid 
witness. 

But  against  Mr.  Goodman  they  off 
things,  wliich  they  say  amount  to  a  vii 


presnmption  that  he  is  not  to  be  looked  upoafl 
a  credible  witness:  And  first,  they  proanoi  I 
recoitl  of  a  conviction  upon  an  infbranlin 
against  him,  for  attempting  to  poison  l«l 
noMe  dukes :  This  he  was  conricted  of,  ai 
fined  1,000/.  and  ordered  to  find  snielies  h 
his  good  behaviour  daring  his  life.  But  to  thi 
it  is  answered,  that  it  appears  in  the  same  i* 
coifl,  that  satisfaction  was  acknowledged  of  di 
1,000/.  and  all  the  rest  of  the  judgnMOt  tki 
very  next  term,  and  he  was  forthwith  db 
charsred,  and  that  without  paying  the 
which  (it  was  observed)  the  prisoner's 
said  Mr.  Goodman  was  not  able  to  pay  at  thi 
time,  no  more  than  he  could  S0,000/.  iM 
thereupon  the  king's  counsel  say,  that  the  gt 
vernment  was  convinceil  that  he  was  wroage 
by  a  causeless  prosecution,  and  the  evidene 
against  him  was  found  not  to  be  credible.  An 
besides,  ]^Ir.  Goodman  stands  panloned  by  se 
veral  aets  of  pardons,  as  well  as  other  snbfeoh 
Then  they  produce  one  Edwards,  who  if' 
prisoner  here,  and  committed  for  suspictoo  i 
high -treason,  and  for  treasonable  practioa 
he  is,  no  doubt  of  it,  a  witness  for  all  that:  ft 
thai  is  but  wn  accusation  upon  him,  and  doe 
not  take  away  his  credit.  He  tells  you  of 
di&TOurse  that  he  had  with  Mr.  Goodman,  sd 
that  Goodtnun  asked  him  when  the  prisooi 
was  to  be  tried ;  and  he  told  him  he  wouM  b 
tried  such  a  dcLV ;  and  when  it  was  asked  will 
it  was  for,  it  was  a*is\vercd,  Notfortheasiua 
nation,  but  for  sending  Mr.  Charnock  ial 
France.  He  asked  then  who  were  the  wit 
nessfs  ar^aiiist  him?  31t.  Goodman  said,  Hi 
Piirter  and  hiin&elf.  And  further  said,  tW 
he  unili.i^Dod  that  Mr.  Cook  had  sworn  agaisi 
him  (thougl.  lie  would  give  an  account  ofat 
i  h«(ly  else)  and  had  no  panlon,  and  eithcrbj 
I  must  hauj^,  or  himself.  Aud  then  he  taW 
ii£;hi]y  oi'  the  business  of  hanging,  andssiil 
was  a  foolish  thing  to  lie  hanged,  tor  all  ^ 
people  would  say,  was,  that  such  an  <i 
hanged  handsomely,  or  died  bniTety.  lij 
itideed  is  a  sort  of  discourse  as  if  Mr.  Gasdaij 
did  apprehend  himself  in  danger  fioialij 
Cook'$  evidence  9  and  yet  I  caoMtaaa  tMi 


d85j 


JfiiT  High  Treiuohi 


heowni  (hiid  cflnnotbutown)  tliat  Mr.  Good- 
man migbt  go  ioto  the  room,  and  lie  not  see 
faiiu:  BO  that  he  has  made  a  strain  in  his  evi- 
dence that  it  is  mry  little  to  be  credited,  which 
was  not  designed  so  much  tor  the  advantage  of 
Mr.  Cook  as  for  the  adranta^e  of  souieuudy 
else :  and,  in  itself,  it  is  almost  an  impossible 
thing  that  it  should  be  true,  by  what  he  offers 
as  the  reason  of  his  eridence. 

But  then.  Gentlemen,  you  are  to  consider, 
that  all  these  three  witnesses,  if  they  swear 
true,  do  falsify  not  only  Mr.  Goodman,  who 
iweara  that  he  was  there ;  but  they  likewise 
falsify  the  evidence  of  Mr.  Porter ;  and  for  that 
1 1  asked  Mr.  Porter  the  question,  Whe* 


ther  be  did  not  give  the  same  evidence  against 
drvJobn  Freind?  And  if  what  he  sweara  now 
be  iiot  true,  neither  was  it  true  when  sir  John 
Freind  was  tried,  tor  he  was  the  only  witness 
at  that  time  against  sir  John  Freind,  for  this 
meeting ;  and  therefore  these  men's  testimony 
tends  to  overthrow  both  %iitoesses  as  well  is 
one :  and  I  must  tell  you,  that  if  Mr.  Goi.Jnian 
be  not  a  1e^  witness,  because  he  has  sworn  a 
thing  that  is  not  true,  then  Mr.  Porter  is  not  a 
good  witness,  wlio  has  sworn  the  same  thing, 
Tix.  That  Mr.  Goodman  was  there;  and  then 
\oa  ought  to  acquit  the  prisoner,  because  there 
li  no  witness  against  him  at  law ;  for  there  is 
the  same  evidence  acainst  Mr.  Porter,  that  there 
is  jV^inst  Mr.  Goodman  as  to  this  matter. 

'nieo.  Gentlemen,  as  for  the  character  of 
Mr.  Cook,  they  say  he  is  a  good  English  Pro- 
testant, I  hope  he  is  so ;  but  it  is  plain,  that 
nligion  does  not  vary  the  case :  it  is  within  the 
reach  of  every  man's  memory  that  is  here,  that 
the  same  things  have  fallen  upon  other  gen- 
tlemen that  have  had  the  same  character,  par- 
ticolariy  sir  John  Freind,  and  sir  William  Par- 
kyns,  who  both  said  the  same  things,  in  the 
same  olace,  that  they  were  true  Prote^itants  of 
the  Church  of  England.  But  that  is  no  man- 
ner of  evidence  that  will  be  weight  against 
poiitive  oaths. 

Kow,  Gentlemen,  it  is  fit  likewise  you  sh'juld 

reflect  upon  another  thing:    what  is  it  that 

ihould  eut^age  Mr.  Porter,  and  Mr.  Goodmun, 

er  invite  either  of  those  two  ^ntlemen  to  gi\e 

a  false  eiidence  against  the  pns()uer  at  the  iKir? 

It  does  not  appear  that  there  was  any  injury  done 

hy  him  to  them,  to  provoke  them  to  it ;  so  that 

itoonld  be  for  notbhig  but  for  the  sake  of  truth. 

It  has  been  further  said  on  the  behalf  of  Mr. 

Cook,  that  he  abhorred  the  Frencli,  and  any 

invasion  upon  his  country,  and  tliv  like :  it  is  a 

matter  that  is  easily  said ;  and  it  has  heitii  said 

b^  others  that  have  been  in  tho  same  ]>!ace 

where  he  now  stands,  that  they  hated  all  plots, 

and  they  might  punish  them  if  ever  they  c;ji!p!it 

tliem.  But  these  are  only  sayings,  and*  notliing 

dse.     If  there  can  be  any  constructions  made 

•fUic  evidence  given  by  these  two  witnesses, 

that  does  not  directly  pnive  the  indictment, 

Aea  the  prisoner  ought  to  be  acquitted :  but  if 

there  can  be  uo  other  construction  made,  hut 

iNily,  that  there  was  a  plain  design  to  send 

Cbamock  into  France  to  king  Jameii  to  per- 

VOL,  XIIL 


A.  D.  1696.  [380 

made  him  to  prevail  with  the  French  king,  to 
come  and  invade  us  with  a  foreign  force :  and 
if  our  witnesses  are  legal  witnesses,  (as,  I  doubt 
not,  my  lords  the  judges  will  tell  you  they  are  ; 
if  there  be  no  exception  to  the  credit  of  Good- 
man, but  only  that  he  was  in  such  a  design  of 
poisoning  the  two  dukes,  which  is  really  no 
objection  of  discredit  to  his  testimony) ;  tlien, 
with  submission,  1  think  there  is  no  room  left 
for  you,  gentlemen  of  the  jury,  to  donbt,  but 
that  the  prisoner  is  as  guilty  of  this  crime 
laid  to  his  charge,  as  any  others  that  have  been 
tried  and  condemned  for  the  same:  and  so, 
gentlemen,  I  leave  it  to  you. 

L.  C.  J.  Treb^,  Mr.  Conyers,  and  Mr.  Cow- 
pcr,  will  you  say  an  v  thing  to  this  matter  ? 

Mr.  Conyers  and  Ivfr.  Cotcper.  No,  my  lord, 
we  submit  it  entirely  to  your  lordship's  direc* 
tion  ;  we  have  done  on  all  sides,  we  think. 

L.  C.  J.  Trfhi/.   Gentlemen  of  the  Jury,  the 

{irisoner  at  the* bar,  Mr.  Cook,  stands  indicted 
lore  for  high  treason  ;  there  are  laid  in  the  in- 
dictment two  sorts  of  treason  ;  tb.e  one  is  com- 
passing and  imagining  the  death  of  the  king^ 
the  other  is  adhering  to  the  king^s  enemies. 
U'he  evidence  to  prove  these  treasons  seems  to 
lie  joint;  for,  as  to  that  of  compassing  and 
imagining  the  king's  death,  as  well  as  to  the 
other,  the  overt  acts  are  meeting  and  consult- 
ing alMmt  the  treason,  and  then  agreeing  and 
resolving  to  invite  and  procure  an  invasion  from 
France,  and  to  meet  tiiat  invasion  with  an  in- 
surrection here.  And  the  evidence  is  applied 
entirely  to  prove  these  acts. 

Gentlemen,  that  these  are  proper  overt- acts 
of  compassing  the  king's  deatn,  I  need  not  in- 
form you,  the  law  is  very  well  known ;  and  the 
prisoner's  own  counsel  do  acknowledge,  that 
these  are  sufficient  overt-acts  of  compassing 
and  imagining  the  kind's  doath :  so  that  all 
which  thejr  defend  him  by  is,  the  improbability 
of  the  testimony  given  against  him. 

Now,  gentlemen,  you  arc  to  consider  and 
weigh  well  the  evidence  that  has  been  given. 
By  law,  it  is  true,  as  tJiey  observe,  there  must 
be  two  witnesses.  Here' is  no  defect  of  num- 
ber ;  that  is  acknowlcdgrd  ton,  here  aid 
two  wilnef.scs  ;  hut  the  qn^'Jition  is  whether 
hero  be  two  witnesses  that  desci've  credit,  ami 
upon  whose  testimony  you  can  find  that  the 
prisoner  is  guihy '.'  Tne*  witnesses,  gentlemen,; 
are  ]\lr.  Porter  and  Mr.  Goodman. 

Fiiit,  for  tho  matter  of  their  li'stimony,  it  is 
positive  from  them  both;  that  you'll  dd  well  to 
uliserve.  I^fr.  Portr.r  tells  ycni,  That  in  i^Iuy 
lust,  (uhich  is  now  just  a  t\^'cl\cnionth)  Iheie 
was  a  meetinjj:  «d'  tiirht  pn -joim,  tint  is,  my 
lord  of  Aylesbury,  my  h>id  ?»lt.:i!i;:onicry,  ^ir 
John  Fenwick,  sir  AViliiam  l^arkyn?,  sir  Jidui 
Freind,  Mr.  Charnock,  Mv.  Conk'  the  prisoner 
at  the  l)ar,  and  the  witness  himself,  Mr.  Porter; 
and  this  was  at  the  JvinjT's-Hiad  tavern  in 
Iicadcnhall  street,  and  there  lli^se  eight  dinedj 
and  this  was  in  order  to  consult  about  an  inva- 
sion, together  with  an  iii^jurrection  intended  to 
be  maii'e  for  the  restoring  of  tl:e  late  king. 
After  dinner  comet  ad  Mr.  Goodman,  he  ny^ 


387J 


8  WILLIAM  III. 


Tiial  t^ Peter  Coot, 


[888 


and  theii  Ihcy  pursued  tliif  consiiltaiioii,  and 
came  to  a  res4»liitioii  to  send  Mr.  Chariim:k 
into  France,  and  the  inesisa<rc  was  agreed  upou 
which  he  should  carry  ;  and  he  was  to  m*  to 
the  late  kin&r,  and  solirit  tiiin  to  oljtuin  10,000 
soldiers  from  the  Tr^noh  kiui;^,  whcreiif  8,000 
should  be  ttiot,  1,000  hor^!,  and  1,000  dragoons. 
These  were  to  make  up  the  10,000  men  to  in- 
vade this  kingdom.  And  they  resolved  also, 
wlien  this  force  should  land,  they  should  meet 
and  assist  this  invasion  with  a  jomt  force,  that 
should  consist  of  'i.lKX)  horse.  And  to  ac- 
quaint and  assure  him  of  this,  was  the  messafi^c. 
lUit,  be  say^,  that  Mr.  Charnock  was  very 
cautious  in  it,  and  woukl  not  lu-esently  ^o  upon 
tliis  errand,  but  lio  would  have  further  assur- 
ance that  they  were  in  earnest,  and  would  make 
good  what  they  did  send  him  to  propose,  there- 
fore be  wutdd  huvc  a  second  meeting ;  and  a 
second  meeting  was  had,  and  that  was  at  Mrs. 
jVIounljoy's  tavenii  and  there  they  did  renew 
the  same  resiolution;  and  there  were  present 
my  lord  of  Aylesbury,  sir  William  l^irkyns, 
wr  John  Feniiiek,  sir  John  Frcind,  Mr.  Cliar- 
nock,  the  prisoner  at  the  bar,  and  himself;  he 
floes  iiot  know  or  rfmrinher  whether  my  lord 
Montgomery,  or  Mr.  Cloodman  was  there,  iiv. 
says,  Mr.  Chaniock  did  aceoi-din^ly  go  into 
France,  and  he  did  return  and  brine'  tmck  king 
Jamc8*8  tlianks  to  them,  hut  their  desire  could 
not  he  complied  with  j  and  he  had  his  share  of 
the  compliments. 

Now  comes  Mr.  Goodman,  and  he  says, 
That  about  the  same  lime,  yiz.  Mid- May,  Air. 
I'oiter  acqnaintetl  him,  there  would  lie  a  meet- 
ing of  some  uf  king  James\  friends,  at  this 
ta\erii  in  [.eadeitliill-strcet.  lie  sn\b,  That  he 
did  tell  ]>rr.  r>ii-tcr,  he  duuhteil  lnrshuuld  not 
be  there  at  dinner.  Lut  hi;  would  cmiie  as  soon 
as  he  could  ufur  dinm*r ;  :iud  accortVuig  to  ap- 
poinin'eiit,  he  did  enme  a!"ier  diinier,  and  tlunx* 
vasihis  eonviiitatiufi  mul  ii!>ulntion  that  >1r. 
Porter  Hjiouks  of,  uii'l  snvj,  llinl  :^Jr.  Clnn-nuek 
aOrrwards  t(dd  iiun,  U'.  Im-l  h.  .u  in  IVaiii.: 
i^'klh  the  lat({  king,  and  broi]>;lit  baek  the  same 
answer  that  Mr.  Puiter  sptrikb  of;  and  he  had 
the  honour  of  tluuLs  frouk  the  late  king  too. 

Ciontlemcn,  I  must  observe  one  thing  to  vou, 
which  dops  go  \rry  niuih  towards  thecun- 
iiriniii!;-  uhui  thcs*;  wilnrsses  .say,  and  that  i.'> 
the  agrri'iniMit  in  tiieir  tt-'ti monies,  tlnaigh  llicy 
were  i  xrjnined  aiiart  ai  t!it:  desire  of  the  pri- 
fconer:  You  will  fi'id  tliey  a;;rco  \:\  lli.  ^i- seve- 
ral ei.ee.nistanet-,  in  llii'linic,  lilt'  itv.ii^;this 
tiir.e  t.vi'I-.c  nioii'lis  ;  in  the  plar.-.  thit  ii  was 
iit  this  ta\ci:i ;  in  tli.?  nnndiir  ol  pt.rson.s  that 
Wire  til.  IV,  \\U\]i  Vi.j^  ei;^lit  biiws.-  !Mr.  J.i'-o(l- 
iii.in  eiiiik'.  in;  in  tlienuiu'Kr  m"  h.-u'Si.,  ImiJ, 
and  dru^nior.s  l!iu  v.  "re  to  Ih;  lj,iMr,;ln  iii>.ii 
I'lancL-,  uiul  in  lli"se  \w:>r  that  wc.,-  v>  lO'.ei 
tliiMn  here  :  :.iul  be^iik**,  in  tlio^e  \,,jrd>  r»i'f'.is- 
course  upon  the  eunsnltati-jn  an- 1  tlie  nsolu- 
tion.  \\u\  tlic.e  i»»  one  riicn!ii^iaiieu  lucre  in 
virch  thty  du  agree,  and  wl'.ieh  is  vcr}  jiaiii- 
culai  :  Tiiat  ^lion  tiiey  eanic  to  ;it!i\er  tiioir 
consent  to  this  mrs^agc'lhat  Mr.  C.liarnock  was 
to  carry.  Uiu  rest  sal,  uud  I'li*.  Cook  the  pri- 


soner did  kneel  upon  the  chair,  and  levied  upoa 
the  table.  And  this  botli  of  them  do  agree  in. 
And  after  all  the  many  quettioos  asked  in  their 
sr|)anite  examination,  1  do  not  6nd  they  dis- 
agree in  any  iiart  of  their  evidence.  So  tkat, 
gentlemen,  there  can  remain  no  questioo  now« 
but  whether  these  two  witnesses  are  men  of 
credit  ?  or,  whether  there  has  beeo  oiipeeed  to 
them  any  such  evidence  as  will  make  yoa  be* 
litive,  that  (if  not  both^  at  least  one  of  them  has 
forsworn  himself?  Tney  do  produce  DcAbing 
against  Mr.  Porter,  whatsocTer  may  have  been 

rroduced  at  former  trials  against  his  credit: 
*erlia|is  what  has  been  before  has  satisfied  the 
objectors,  and  there  is  nothing  appears  against 


his  credit ;  but  he  is  not  only  a  competent,  but 
a  very  clear,  good,  credible,  and  imdoubtc4 
witness. 

nut  against  Mr,  Goodman  they  offer  several 
things,  wliicli  they  say  amount  to  a  videDl 
presumption  that  he  is  not  to  be  looked  upon  as 
a  credible  witness :  And  first,  they  prodnoe  a 
recfinl  of  a  conviction  upon  an  informatiott 
against  him,  for  attemptmg  to  poison  two 
iioMe  dukes :  This  he  was  convicted  of,  and 
fmed  1,000/.  and  ordered  to  find  sureties  fbr 
his  good  behaviour  dnring  his  life.  But  to  this 
it  is  ansucred,  that  it  apiicars  in  the  same  re- 
cord, that  hat isfact ion  was  acknowledged  of  ths 
1,000/.  and  all  the  rest  of  the  judgment  tbs 
very  next  term,  and  he  was  forthwith  dis- 
chargeil,  and  that  without  paying  the  money, 
which  (ii  was  observed)  the  prisoner's  counsH 
said  Mr.  (loodman  was  not  able  to  pa}*  at  thai 
time,  nu  more  than  he  could  20,000/.  and 
thereupon  the  king's  couunoI  say,  that  the  go- 
vernment WIS  con%inced  that  he  was  wronged 
by  a  eauseh'ss  proscrniion,  and  the  evidence 
agaiii^-t  him  was  found  not  to  be  credible.  And 
bv'sitk.s,  Mr.  (ioodman  stands  pardoned  by  se- 
veral acts  of  pardons,  :is  well  as  other  subjects. 

Tlirn  they  produce  one  Kdwards,  who  is  a 
prisoner  here,  and  c->inmitted  for  sus])ieion  oi' 
I  liigli'ti'tasoii,  aii.l  tor  trt-asnnahle  practices: 
he  is,  no  tloubt  of  it,  a  witness  for  all  that:  lor 
thai  is  but  :.u  ar<'iisatiun  upon  him,  and  does 
not  take  a\. ay  iii«  cri'dit.  lie  tells  you  of  a 
diyroui-;^e  that  he  iiad  with  Mr.  Goodman,  and 
that  C»ooJ;i!  ia  ;t'>ked  him  when  the  prisoner 
wabto  bf.>  U'wi]  ;  a::d  he  told  him  he  would  lie 
triid  such  :i '!:  y  ;  miu  when  it  was  asked  what 
it  was  fur,  it  was  a  .-.wered.  Not  for  the  assassi- 
nation, bi;t  for  stuiding  Mr.  ('harnoek  into 
Trance.  Hi;  nrkcd  then  who  were  the  wit- 
nessi  s  aif a'.ii^  t  Liui  ?  i\lr.  (lOodman  said,  Mr. 
I\irti.-r  aii'i  li>::i.'>elf.  And  further  said,  that 
lieur.'lt  in!.':k1  il.at  Mr.  Cook  had  swoni  against 
liiiii  :i;»;nf^;.  i;..-  uoiild  i;iv«'  an  aceouni  of  no- 
ii:  ily  i-!io)  ai:.i  iiad  n'>  parilon,  and  cither  he 
inu>>'.  liiA.^y  or  iiimself.  And  then  he  talked 
iiL;lji!y  ui'  ih;:  iMKJness  of  hani^iug,  and  said  it 
ua.<>  a  lU'iiirli  tiling  to  he  hanged,  tor  all  that 
people  \v«i';u»  say,  was,  that  such  an  one 
haig'Ml  iru.i'i.MuIy,  nr  died  bravely.  This 
indt  td  !<) u  ^'.'.t  i.i't.ihcourscas  it'Mr.  OKidman 
ui'l  ailiircliuiul  l.iaibelt'  in  danger  from  3lr. 
Cook'b  evidence  \  uud  yet  i  cannot  see  that  it 


3S9j 


Jor  High  Treason. 


A.D.  1696. 


[SflO 


does  at  all  falsify  tlie  eridenca  of  Mr.  Guod- 

man :  be  may  lie  a  true  witness,  and  yet  ho 

Uii^ht  say  lie  ivas  to  ffive  evidence  against  Mr. 

Cook,  and  it  was  in  Mr.  Cook's  power  to  qive 

erideooe  a^nst  liim,  and  that  tnUy ;  and  if 

botb  were  in  the  guilt,  thny  were  in 'danger  of 

<ine  another.     Rat  for  a  fiirtlipr  answer,  the 

king's  counsel  have  jiroduced  Mr.  De  la  Rue, 

who  says,  that  he  knew  Air.  Edwards,  and 

that  he  was  a  Hcotchnian,  and  reputc«l  chap- 

lain  to  the  viscount  of  Dundee ;  that  he  went 

formerly  by  the  name  of  Douglas,  and  by  that 

name  he  was  set  down  and  described  in  the  list 

tliat  Air.  Chamock  sent  to  captain  Porter;  and 

to  that  name  he  answered  in  the  Press- Yard 

lately.     Now  it  is  certain,  that  Mr.  Chamock *s 

puttfng  of  his  name  in  that  list,  is  no  evidence 

of  his  bein^  g^iilty  in  Air.  Charnuck's  treason. 

But  bis  going  by  two  names  doth  justly  lay 

him  under  some  siuipicion.     But  tlie  evidence 

that  the  prisoner  seems  to  rely  upon  most,  is 

what  evidence  has  been  produced  against  Mr. 

Goodman  in  that  point  of  fact,  hv  the  master 

and  the  two  drawers ;  the  first  ot  the  drawers 

name  wasCrawfonl,  and  he  does  tell  you,  that 

aboQt  twelve  months  ago  there  was  this  com* 

pany  at  dinner  there:  my  lord  of  .Aylesbury, 

my  lord  Montgnmrry,  sir  John    Fieind,  sir 

Jonn  Fenwick,  sir  U'iJliam  Parkyns,  caplain 

Pofter,  Alr.Cbarnock,  and  the  prisoner,  though 

be  did  not  then  know  his  name,  or  the  name  of 

sue  or  two  more  of  them.  1  oliserve,  by  the  way, 

that  bis  testimony  so  far  does  verify  theirs, 

that  there  were  cigfht  of  them  there,  but  he 

ays  he  did  not  see  Mr.  CSoodman  there,  nor 

uy  but  those  that  dined  there.    And  my  lord 

St  Aylesbury  went  away,  as  he  thinks  about 

ANir  o'ckick.    He  cannot  say  that  the  prisoner 

vu  there,  or  was  gone  at  that  time  before  Mr. 

G<H)dman  came  iu ;  for  he  did  not  see  Air. 

Goodman  there  at  all,  he  was  not  in  the  room 

lit  the  time,  but  he  was  to  and  fro  attending  till 

ny  lord  of  Aylesbury  and  my  lord  Alontgomcry 

*ent  away  iu  a  coach  that  was  called,  r.nd 

when  iliey  were  gone,  the  rest  of  the  company 

•tiid  there  a  good  while  ;  being  ui-ged  to  tell 

how  long,  at  last  he  said  it  was  dark ;  and  that 

•prees  ivitb  Air.  Porter,  who  snys,  it  was  at>uut 

oineo^clock  when  they  went  away.    He  says 

he  was  there  once  or  twice  atler  my  loni  oi' 

Aylesbury  went  away,  but  he  never  saw  Air. 

uoodman  that  he  rememliers  at  all,  till  last 

&iturday,  in  all  his  life.    As  to  this,  the  king's 

counsel  say,  that  it  is  only  a  negative  evidence, 

and  in  which  a  man  cannot  be  absolutely  [losi- 

live,  but  can  only  speak  according  to  his  obser- 

vatioD  and  memory,  which  might  not  be  [)er- 

fecti  and  Mr.  Gocdman  might  l»c  there  in  the 

mean  time  of  bis  goinff  in  and  out :  that  is 

possible  ;  and  so  it  musibe  left  to  you  to  con- 

Mderof  it. 

Then  there  is  Huntley  the  other  drawer, 
•nd  he  says  my  lord  of  Aylesbury  went  away 
about  that  time,  and  tliat  he  did  not  sec  Air. 
Goodman  there  at  all,  nor  ever  in  his  life  till 
r ;  neither  does  he  remember  that  any  body 
to  them  alter  diimer,  and  if  any  fresh 


man  had  then  come  in,  he  thinks  he  should 
(going  often  into  them)  have  known  iiim  ;  am! 
says,  that  he  attended  this  company  only :  and 
he  had  seen  sir  John  Freind  uudsir  VVilliam 
Parky  ns  there  before. 

Then  Air.  Cock,  the  master  of  the  house, 
%vas  produced,  and  lie  names  all  the  eight 
persons  that  did  dine  there ;  and  so  far  he  con- 
lirms  the  king's  evidence :  he  thinks  that  my 
lord  of  Aylesbury  and  my  lord  Alontgomery 
went  away  privately  (as  it  seems  they  had 
comb)  in  a  hackney-coach,  and  that  it  was 
about  four  o'clock  ;  and  he  snys,  he  did  not  see 
Air.  Goodman  there,  and  he  docs  not  know 
that  he  ever  saw  him  till  now :  but  when  he 
was  cross-examined  by  the  king's  counsel,  he 
does  acknowledge  that  he  miglit  |)0ssibly  come 
in  after  dinner,  and  before  my  lord  of  Ayles- 
bury went  away,  and  he  not  see  him,  because 
he  was  not  there  all  the  time  ;  he  says,  sir 
John  Freind  used  to  dine  at  his  house,  anil 
came  to  his  house  once  a-week ;  and  he  had 
seen  some  of  the  rest,  but  they  did  not  fre- 
quent his  house  as  sir  John  Freind  did :  he 
says,  the  company  dined  altout  two  o'clock, 
and  the  last  of  them  staid  till  about  eight  or 
nine,  and  that  the  door  was  shut  as  is  usual 
when  company  is  in  a  room,  but  nobody  was 
forbid  to  come  there. 

But  to  establish  the  credit  of  the  evidence 
on  the  king's  part,  they  did  produce  Air. 
Goodman  and  Air.  Porter  again :  Air.  Good- 
man does  acknowledge  so  far  to  be  true,  that 
my  lord  of  Aylesbury  went  away  first ;  but 
says,  that  himself  was  not  wholly  a  stranger  to 
this  house,  for  he  had  dined  there  four  or  five 
times  with  sir  John  Freind ;  and  particularly 
one  time,  he  being  sick,  and  asking  for  some 
brandy,  the  master  of  the  house  said  he  would 
help  him  to  some  of  the  best  in  England,  and 
Air.  Goodman  would  have  bought  some  of  him. 
But  the  master  seems  not  to  own  that,  and 
says,  he  does  not  remember  any  thing  of  it. 

But  then  comes  Air.  Porter  again,  and  he 
says  positively,  that  Air.  Gooilman  was  there, 
and  that  he  did  speak  with  the  company,  and 
onmplimentcd  my  lord  of  Aylesbury  when  he 
went  away,  and  went  part  of  the  way  towards 
the  stairs  with  him  ;  and  he  does  well  remem- 
ber it  by  this  token,  that  when  Air.  Porter  was 
told  Air.  Goodman  was  below,  he  mentioned 
him  ill  the  company  as  a  trusty  man,  that  was 
fit  for  the  conversation,  and  then  Air.  Porter 
went  and  fetclied  him  up  ;  and  Air.  Goodman 
was  there  near  two  hours,  and  they  discoursed 
all  tliis  matter  in  that  time,  in  the  presence  of 
the  prisoner  and  the  rest ;  and  he  says  it  was 
about  six  o'clock  before  my  lord  of  Aylesbury 
and  my  lord  Alontgomery  went  away,  and 
then  there  was  opportunity  enough  tor  this 
discourse  and  consult  that  they  s:|M!uk  of. 

The  prisoner  has  ollVrtd  amaher  sort  of 
evidence :  first,  the  confidence  of  his  own  in- 
nocence, that  he  was  abroad  thiee  weeks  after 
this  conspiracy  was  discovered ;  and  they  have 

Sroducecl   Air.  Treganna,  Air.   Peachy,  and 
Ir,  Nichollsi  who  prove  that  be  never  ab« 


S91]  8  WILLIAM  IIL 

BcoDd«4l,  but  was  abroad,  and  appeared  openly 
(for  tbree  weeks  after)  till  aucb  time  as  be 
was  taken.  Tbis  the  icing's  counsel  say  is  no 
proof  that  be  is  not  guilty,  and  their  evidence 
untrue.  They  sav  he  might  have  a  oonA- 
denoe,  and  the  rather  because  he  is  not  charged 
with  tlie  assassination ;  tor  at  that  time  these 
witnesses  speak  of,  nothing  was  discovered 
and  public  out  the  assassination  ;  for  it  was 
before  sir  John  Freind's  trial;  and  then  was 
the  great  discovery  of  the  secret  of  the  in- 
▼asion. 

Then  he  shews  farther  as  to  his  conversation, 
tliat  be  is  a  man  of  a  very  sober  life,  never  was 
known  to  swear,  that  Jie  drinks  but  little,  and 
is  a  godly  man,  amrofien  says  his  prayers. 
As  to  that,  the  king's  counsel  on  the  other  side 
tell  you,  that  has  oeen  pretended  to  by  other 
people  too ;  and  the  question  is  not  about 
religion,  but  this  fact  ttiat  you  are  now  to  try. 
'Whether  he  be  so  religious,  or  no,  as  he  pre- 
tends, or  whether  he  be  sincere  in  his  devotion, 
that  is  not  so  u\uch  the  matter  now  ;  but  the 
i|ucstiou  is.  Whether  he  has  offended  iu  tliis 
lliiid  as  he  stands  accused  ?  They  produce  a 
gentleman,  one  3Ir.  Hamond,  and  he  says  that 
.be  is  a  very  conscientious  nuin,  and  particu- 
larly is  a  great  lover  of  his  country ;  and  he 
has  oAen  heard  him  declare  a  detestation  of 
an  invasion  by  a  French  force,  and  wish  suc- 
cess to  the  fleet ;  but  that  which  be  remem- 
bers chiefly,  was  about  the  time  of  the  dis- 
covery of  ttiis  Plot.  The  king's  counsel  an- 
swer to  tbis,  that  a  man  may  use  such  kind  of 
expressions,  perhaps,  to  cover  his  guilt ;  and  in 
the  rep!)r  to  sir  Harthulomew  Shower's  obser- 
vations, it  was  taken  notice  ut'by  Mr.  Solicitor, 
(what  we  all  cannot  but  remeiiibcr)  that  the 
like  evidence  was  given  as  to  sir  John  Freind, 
that  he  did  detect  an  invasion,  and  was  present 
at  the  common -prayer  when  king  William 
was  prayed  for,  and  declared  against  Plots ; 
and  toat  if  they  catched  him  in  the  corn  they 
might  put  him  in  the  pound.  These  tliin^vs  a 
man  might  say,  and  it  is  the  lightest  evidence 
tliat  can  be  given,  being  discourses  out  of 
men's  own  mouths,  who  will  never  proclaim 
their  own  guilt ;  and  therefore  it  is  the  weak- 
est defeuco  that  can  be  otfered.  But,  gentle- 
men, you  are  to  consider  the  other  evidence 
that  has  been  produced  by  the  prisoner,  given 
by  several  witnesses,  and  who  are  upon  their 
oaths  now  as  well  as  the  king's  witnesses. 
And  his  counsel  say  their  witnesses,  but  par- 
ticularly the  three  upon  whom  they  chiefly 
i-ely,  have  no  objeition  made  out  against 
them  ;  and  no  niao*s  testimony  ought  to  be 
presume«l  to  be  false.  And  it  must  be  taken 
notice  of,  that  they  lan  speak  only  according 
to  their  belief,  grounded  on  their  observation 
and  memory,  that  liiey  did  not,  so  far  as  they 
observed,  or  remember,  see  Mr.  Goodman 
there,  as  it  was  most  probable  they  should  if 
be  had  been.  But  it  is  possible  they  might 
overlook,  or  forget ;  the  rather  for  that  tliey 
Mere  uot  of  the  company,  but  in  and  out,  up 
aod  down ;  and  Mr,  (joodmau  was  not  there  at 


Trial  of  Peter  Cook,  {8!B 

dinner,  when  their  attendance  fh»  fixed  wd 
constant. 

It  ought  to  be  considered  also,  that  bcre  m 
several  circumstances,  some  of  which  seem 
very  pregnant.  ^  It  it  agreed  on  all  hands,  tkil 
the  prisoner  dined  there  with  thoae  odw 
seven  persons,  concerning  four  of  whoin  ws 
roust  conclude  nothing ;  but  conoemmg  thm 
of  them  we  in  this  court  may  take  notiee,  thvf 
are  attainted  of  high -treason,  and  to  it  ii  ern 
dent  that  the  prisoner  was  for  a  long  tioe  i 
companion  of  three  traitors,  and  had  a  conver- 
sation with  them.  I  do  not  find  that  be  U 
any  occasion  to  be  there  ;  nor  any  of  the  mt 
of  the  company.  Concerning  my  lord  of  Aylfs- 
bury,  indeed,  it  is  said  lie  proposed  to  n«it 
about  a  hogbhead  of  \s  bite  wine.  Bqt  thl 
seems  to  be  casual,  and  not  the  end  of  kii 
coming,  and  dining  with  this  company  tbm. 
But  bo  that  how  it  will,  that  relates  to  Ui 
lunlship  alone.  But  for  the  others  1  do  Ml 
Hud  they  do  pretend  any  occasion  of  nml* 
ing  there  ;  and  therefore  it  leaves  it  the  mm 
suspicious :  and  it  is  the  more  so,  beoaottil 
was  managed  so  privately  and  cautioaii|w 
They  were  not  attended  according  to  tbos 
(pialities.  The  loi-ds  went  away  together  in  a 
hackney-coach  that  was  called,  as  they  U 
come  thither  in  another.  The  rest  thought fi 
to  stay  there  till  it  was  dark :  and  as  soon  mM 
was  so,  went  away.  There  was  some  d^ 
traonlinary  cause  for  all  this.  It  did  iiepnl 
tho  prisoner  to  shew  tliat  it  was  for  somegoil 
cause  anil  purjiose. 

And  further,  it  is  observable  that  tbis  home 
was  a  place  which,  as  the  master  says,  nooesf 
this  company  did  use  to  resort  to  except  ar 
John  Freinu:  vihicli  makes  it  probable  (this 
being  a  house  that  sir  John  Freind  frequenledy 
Mnd  none  of  the  others)  that  he  bespoke  thifl 
place,  and  brought  the  rest  thither :  and  if  it 
were  so,  that  makes  it  more  probable  that  then 
was  such  a  treason  there  to  be  hatched,  is  is 
evidenced  by  the  king's  witnesses ;  for  y<n 
may  remember,  and  it  appears  by  the  recorail 
this  court,  that  sir  John  Freind  was  indictedaod 
attainted  (not  for  the  assassination,  but)  for  tht 
treason  for  which  the  prisoner  is  nov«-!a-tryiog,il 
invasion  that  was  to  Xie  supported  with  an  imar- 
rection.  Now  if  sir  John  Frond  was  cladf 
acquainted  with  this  house,  and  brought  tta 
compan^^  together,  it  is  very  probable  it  wv 
about  this  business  which  sir 'John  Freiod  wil 
so  concerned  in.  And  that  he  is  attainlolfir 
it,  a j) pears  upon  the  record  before  us ;  whiA 
should  be  read  :  but  that  the  prisoner's  oo«- 
SL-1  admit  it,  and  are  so  far  satisfied  in  it,  tM 
they  won't  arraign  the  \«rdict ;  nay  tb^M 
ackuovi  ledge  that  there  was  a  plot ;  aod  thai 
was  uo  doubt  of  it,  there  was  such  a  pkM. 

Now  then.  Gentlemen,  here  it  is  certsiiif 
proved  by  these  two  witnebscH,  (and  not  pS^ 
said  by  the  prisoner's  own  w  iinesscs)  thattMl  ^ 
was  such  a  meeting,  and  that  the  priaoncr  nV 
there ;  and  they  both  have  positively  t9MB 
that  this  treason  was  committed  tbera.  Tif ' 
have  beard  what  has  been  objeded  lO.tMk 


m 


Jhr  High  Treasfm^ 


erdit;  Uicy  have  deliTered  their  Untimony 
iijMn  their  oalhs,  and  so,  geiitlemrn,  you  are 
cpon  your  oalhs  ;  if  you  are  satisfie<l  and  can 
Uike  il  upon  your  couacietices,  that  these  two 
wtUi«99esare,  or  u.ny  one  oftlieiu  is,  (it* such  flis- 
Jjnctioa  can  po$sibiy  be  aiade  in  tliis  case)  then 
}m  dm  to  acquit  the  iirisoiier ;  but  if  you  are 
satisfied,  and  tliink  they  have  sworn  true,  you 
ve  to  And  hiai  guilty 

Just,  Rokeby.  Say  if  one  be  forsworn,  ])oth 
arc ;  for  the  evidence  is  intirrly  in  all  parts  tlie 
Mfnc;  and  if  Mr.  (joodman  oe  perjured,  Mr. 
Porter  is  so  too. 

Sir  B.  Shoaer.  Forsworn  ami  perjured  are 
iia*-!!  wonis ;  we  only  say  mistaken. 

Jufi.  Rokihf/.  Well,  tiiat  objection  goes  to 
one  as  well  as  the  other. 

L.C.  J.  Trcbif.    h  must  be  so,  since  they 

ipcak  of  the  same  joint  matter,  viz.  their  bciiij;- 

\  -jeiher  in  company.     If  Mr.   l\»rlcr  says 

true,  whi  D  he  swears  that  3Ir.  Goodman  was 

there  with  him  and  the  rest,  >lr.  Goodman  nuist 

say  true  when  he  swears  that  !ie  was  there  with 

MV.  Porter  and  the  rest.    There  wa«  one  thing 

that  I  furf^ot :    sir  B.  Shower  oliservm^  that  it  \ 

uii^'htbean  invention  of  captain  Porter,  because  j 

lietixeth  it  in  point  of  time  to  the  moiUh  iif  { 

Niy  tttat  he  Aoea  not  sav  it  was  iii  April  ;  tor  I 

lliitthea  it  would  be  wiihln  the  pardon,  which 

exicBiU  to  April  29,  last  yeai      nor  would  Jie 

l-y  il  ia  June,  for  then  hi:  wtslfi  Nfwprotc^  mn\ 

otben  of  them  were  dispersed  b^-  reason  of  a 

rifltcommitletl  in  Dniry-lane :    and  this  sir  H. 

Shower  alle«ljjos,  was  a  piece  of  skill  and  con- 

tmance :  but,  really,  this  is  a  piece  of  inj^e- 

nyity  in  himself:    tor,  besides  that  tbe  king's 

«ita*sieg  aliirin  positiii-ly  that  it  was  in  May, 

lud  rememl»<^r  it  by  a  certain  token,  viz.  That 

it  nas  within  a  very  few  days  after  the  kin;"^ 

^entbeyoml  sea ^  one  or  two  of  the  prisoner's 

^ttCKsci  (Crawfijrd  I  am  suit)  did  sriv  that 

this  meeting  was  this  time  twetre-month,  and 

)"u  know  wG  are  now  near  mid-May. 

Seij.  DarnalL  IT  you  Wlleve  our  drawers 
fcruart,you  must  heliieYc  them  for  all. 

Alt,  Gen,  No,  uot  so     my  lord  sptakr?  only 
where  ihty  concut  with  our  cviilcnce.    ft  were 
tliiiijje  tu*csfpect  we  shouhl  diNhelievc  or  doulit 
ViiJt  ihe  witnesses  on  botli  sidcM  aHirm  to  be 
true:  but  I  do  uot  think  it  would  be  to  the  ad- 
^anta^^e  of  the  prisoner,  if  what  his  counsel 
pnojiOKCth  were  anrrced  to,  \\f.,  Thsit  ilie  Jr^iw- 
PTs  (and  thei    miitc    ton)  should  Ik?  believed 
for  all  they  say,  |)rovi(le4l  e<|ualiy  the  kin^'x  i 
witnesses  shouid,  in  like  manner*  be  belieied 
tor  what  they  say.     Tor  the  main  ihin^  c<»n- 
troverted,  is,  Whetlier  1^1    CiooduiQu  were  at 
this  mcetint^?  These  witnesses  lur  tlii!  prisoner 
lay, -they  did  not  see  hi  in  there    at  least  they 
do'  not   remeetber  it.    Mr.  Porter,  and   Mr. 
OtwHlman  himself  says,  he  was  there.     Now, 
these  tbifi|ips  aifreed,  an   admitted  wniild  make 
1  tery  contiilentdearef  idence,  that  Mr.  Good- 
loan  wni  Ui ere,  though  the  master  an rl  drawers 
did  not  obiier\e,  or  &  uot  remember  his  being 
Ihert, 


A.  D.  1696.  [394 

[Then  an  officer  was  sworn  to  keep  the  Jury, 
who  witliilrcw  to  consider  of  their  Verdict,  ami 
about  three  quarters  of  an' hour  after  returned 
into  court.] 

CI.  of  Ar.  Gentlemen,  answer  to  your 
names.     Henry  Nherbrook. 

Mr.  Sherbrook.  Here.  And  so  of  the  rest, 
&c. 

C7.  (f  Ar.  Arc  you  all  ag^reed  of  your  ver- 
dict ? — Jury,  Yes. 

C7.  oJ'Ar.  Who  shall  say  for  you? 

Jurtf,  Our  Foreman. 

CLofAr.  Set  Peter  Cook  to  the  bar. 
[Whicii  was  done.]  Peter  Cook,  hold  up  thy 
hand.  [Whicli  he  did.]  Ix>ok  upon  the  pri- 
soner ;  how  say  you,  is  he  guilty  of  the  high- 
trensim  whereof' he  stands  indicted,  or  not 
guilty  ? — Foreman,-  Guilty. 

Ct.  vf  Ar,  VVlmt  goods  or  chattels,  lands  or 
tenements  bad  lie  atihe  time  of  llie  treason 
commi  ted,  or  at  any  time  since  ? 

Fora/tttn.  None  to  ou   knowledge. 

Ci,  ofAr,  T'hen  hearken  to  your  venlict  as 
the  court  has  rei:orde(l  it :  you  siiy  that  Peter 
Cook  isgiuhy  oi'the  h igh-t reason  wliereof  he 
stands  indiGted,  but  Umtt  he  had  no  goods  or 
f  battf  Js,  ktids  or  ti^ncments  at  the  time  of  the 
htgh  trf:a!<^ojt  committed,  or  at  any  time  since 
to  your  knowledge ;  and  so  you  say  all  ? 

Jurif,  Yes. 

CI.  nj  Ar,  Gentlemen,  the  court  dismisses 
you,  and  thanks  ycu  for  your  service.  [Then 
the  court  adjourned  till  5  o*clock  in  the  even- 

Post  Meridiem. 

About  ft  o'clock,  the  Court  being  by  procla- 
mation rcsumcf!,  ilie  prifroner  cotivicttd  was 
brought  to  the  bur  in  order  to  judgment. 

Cf.  of  Ar,  Peier  Cook,  hoki  up  thy  hand. 
[IV  hich  he  did.]  Tliou  stand^st  convicted  of 
btirii.  reason,  tor  coiupassioji^  an(  magiaing 
the  death  o  his  majesty  kio{^  William  the  3nl, 
aud  tor  adhering-  to  the  king's  enoiuies :  what 
can\t  thou  say  Ibr  ihyseir,  why  the  court 
sjiould  not  givc'thee  judgmeut  to  die  according 
to  tlic  law  f 

Cook,  My  lord  ninyor,  njy  eyes  are  Tery 
had,  therefore  1  desire'your  lordship  would  be 
phase d  to  take  this  paper,  and  that  it  may  he 
read. 

C/.  of  Ar.  Have  you  anything  to  say  in 
arrest  (»1  judgment.' 

C*'ok.    I  desire  my  Paper  may  be  read. 

[[t  was  haudtd  up  lo  tlip  nmrt,  and  then  de- 
livered down  to  Mr.  Attorney  General,  and 
the  king^i  coun&eU  but  not  niKuly  read.] 

Rccortkr,  [BtrSalaibieil^ovell.]  Mr.  Cook, 
the  court  have  read  your  |»aper  you  sent  up, 
aud  have  communicated  it  to  the  kind's  connx 
sel ;  if  you  bare  any  thing  to  move  m  an  ar- 
rest of  judgment,  this  is  youi  time,  and  we 
will  hear  you  ;  hut  as  for  any  representation 
of  your  case  to  any  other.s,  that  must  be  con- 
sidered of  afterwards;  you  arc  now  called  to 
your  judgment. 


395] 


8  WILLIAM  IIL 


Cook.  I  dill  not  know  that  I  might  offer  any 
things  a(\erwanls;  but  ifyour  lordships  thinic 
fit  to  coniinunicate  that  to  my  lord  justices,  I 
submit  it  to  you. 

Recorder.  Mr.  Cook,  there  is  nothing  ap- 
pears upon  this  paper  that  is  matter  of  law, 
and  so  not  sci'viceable  to  you  now,  and  there- 
fore what  you  desire  in  it  the  court  will  consider 
of  afterwards. 

Cook.  I  do  not  understand  the  law,  my 
lord,  but  1  have  heard  the  court  ought  to  be  of 
counsel  for  the  prisoner,  and  I  desire  1  may 
not  suffer  by  my  ignorance. 

Recorder.  I  declare  it,  for  my  part,  1  know 
nothing  that  you  can  have  any  advantage  of  in 
arrest  of  judgment ;  if  I  did,'  you  should  not 
lose  the  benefit  of  it,  and  vou  have  hml  your 
counsel  assigned,  who  have  plt^mlcd  for'yoii 
without  restraint ;  and  if  there  had  been  atiy 
matter  of  law  that  would  have  availed  yon  in 
the  arrest  of  judgment,  no  doubt  they'll  ouh! 
have  laid  hold  of  that  advantage  for  you. 

Cook.  I  cannot  tell,  my  lord,  nhat  is  matter 
of  law. 

Att.  Gen.  Your  lordidiip  observes,  they  took 
all  ibe  objections  that  they  ctuitd  to  the  indict- 
ment,  but  there  was  none  that  they  could  fix. 

CI.  ofAr.  Then,  crier,  make  proclamation. 
[Which  was  done  on  both  sidesof  the  court.] 

Crier.  O  yes.  All  manner  of  persons  arc 
commanded  to  keep  silence  while  judgment  ia 
in  giving,  upon  pain  of  impri-sonnic-nt. 

Cook.  My  lord,  may  1  have  my  paper 
again? 

Recorder,  If  you  think  it  m;iy  be  any  ser- 
vice to  you  to  h»a»c  it  witli  the  numt,  you  may 
do  so  ;  or  if  you  dc&ire  it,  you  shafl  have  it 
again. 

Cook.  I  desire  your  lordship  to  ktrcp  it. 

Recorder.  I  will  leccive  it,  and  it  bliull  not 
be  buried,  I  assure  you. 

Cook.  I  lio  not  bear  what  the  court  bays. 

Recorder.  You  say  you  did  not.  iicar  what 
was  said  to  you :  if  you  di'sirc  to  lia*«  yoni* 
paper  again,  you  sliail  ha\e  it;  but  if  you 
ilibire  to  have  it  conununicatod  al)ovc>,  the 
court  VI  ill  consider  it,  and  take  care  of  lirit 
too. 

Cook.  1  desire  your  lordship  would  ilo  it. 

Then  the  Recorder  proceeded  to  give  judg-- 
mcnt. 

Recorder.  Mr.  t'ook,  I  think  it  useful  to 
the  public,  and  also  at  this  time  to  you,  to  ob- 
serve. That  the  reign  of  the  late  king  Jaines 
wa«>-,  throughout,  one  entire  design  and  project 
termed,  in  conjunction  with  the  French  king, 
totally  to  subvert  our  religion,  laws,  and  liber- 
ties; which  grew  so  appai-eni  to  the  sul»jects  of 
these  nations,  in  so  many  instances  of  fatal  con- 
fu?(pience,  managed  in  such  a  method,  and  ad- 
vanced so  far,  that  the  people  of  ihc»se  king- 
doms, of  all  qualities,  ranks  and  degiccs,  did 
find  it  absolutely  necessary  for  the  preserva- 
tion of  themselves  and  the  neighbouring  na- 
tions now  in  alliance  with  us,  tu  pray  in  aid  of 
the  then  prince  of  OnngC)  as  a  ^ler^uu  not 


Trial  of  PcierCaolc:  \% 

only  nearly  allied  to  this  crown,  bnt  alt 
inttrely  in  the  interost  of  these  kingdoms,  am 
those  neighbouring  princes  and  countries  tlis 
lay  exposed  to  the  violeiice  and  ambitious  in 
suits  of  France.    Antl  the  love  which  that  nobl 

Crince  did  bear,  not  only  to  us  but  to  our  neiifii 
uurs  also,  disposed  bim  to  embrace  that  itivi 
tation ;  u|K>n  whose  arrival  here,  that  nrttic' 
cesser,  from  motives  that  were  invisible,  ile< 
dined  the  kingilom  and  the  government,  Mk 
letl  the  people  to  themselves ;  whereupon  hii 
present  majesty  was  necessarily  and  rightfullj 
placed  upon  that  throne  he  so  well  deserved : 
And  this  is  now  that  king,  for  whose  presern* 
tion  all  good  jicoplc  have  associateil,  and  s|nn 
neither  lives  nor  treasure  to  support  anu  U 
routiuiic  ill  the  government;  and  this  is  tlu 
king  whom  you  have  traitorously  conspired 
not  only  to  dpthrone,  but  also  to  doslroy ;  ao( 
this  is  tliat  people  that  you  would  have  to  swiu 
in  blood,  and  lose  their  religion,  liberty,  am 
proprtty.  These  mattei'S  need  a  history  n 
relate  at  large  ;  T  only  touch  them  shoi tly,  ti 
move  good  men  to  rejoice  in  their  dclivcnince 
and  to  move  you  seriously  to  reflect  u|Mm  thi 
hL'in«)usiioss  of  your  crime. 

Mr.  Cook,  you  arc  an  Englishinaii,  an 
must  needs  kuow,  that  in  this  place  we  fre 
qucnily  conilemn  to  di?afh  clippers,  coiiiera 
thieves,  and  robbors,  and  other  such  like  crimi 
nal<,  a!i«i  that  justly  and  necessarily  too,  fii 
the  prescr\ation  of  the  innocent,  anci  fur  tb 
common  good.     Of  what  condemnation  aiua 

Jt}\\.  and  such  ai  yoii,  be  woNhythcii,  wb 
lavc  80  horridly  (Midoavoured  and  dcsi:/!ied  tli 
f;ital  ruin  and  dt>.4rtiriion  of  your  own  natir 
country,  and  to  r.r.'id.  r  your  follow -subjects 
niiscnible  priy,  and  at  the  best  to  becun) 
slaves  and  vassals  to  a  ioruii^n  prince  ? 

Let  me  also  mind  you,  that  nothing  Ls  inoi 
sun»,  than  lijat  alkr  tliifj,  you  must  rctciw 
judirmcnt  in  anoilur  world;  and  if  that  pa*, 
against  yon  loo,  that  sentence  will  be  mo 
t».rrible,  ami  your  siitioilnys  without  eud:  An 
therefore  ]  do  advise  \i>\\  to  employ  the  fc 
days  \ou  have  yrt  to  live  in  preparation  ti 
your  future  happiness,  whitdi  cannot  bo  did 
done  without  a  full  iM)nfi-:isii»n  of  this,  as  we 
as  other  crimes  you  have  hi'tn  guilty  of : 
iluvetbre  rliarge  it  to  you  as  your  duly,  an 
leave  it  with  you  at  your  ntiiiost  peril,  that  yo 
honestly  and  fuithftilly  diseover  all  you  knff 
of  this  inhuman  and  traitoi*ous  conspiracy,  an 
all  the  persons  that  you  do  know  to  be  guih 
of  it :  This  will  he  the  grK'aiest  service  youei 
do  in  this  world,  and  will  he  the  best  prcpan 
tory  step  that  you  can  take  towards  a  bettd 
And,  Sir,  there  now  riMuains  no  more  for  m 
to  say,  but  to  pronounce  that  Sentence  00  yo 
which  the  law  directs:  and  that  is  this : 

«  That  you,  Peter  Cook,  be  taken  hence  I 

*  the  place  from  whence  you  came,  and  tbeac 

*  be  drawn  upon  a  liurdle*^to  the  pbce  of  efl 

*  cution,  where  you  arcr  to  be  hanged  by  tk 

*  neck, and  cut  down  before  you  be  dead;  tb 
'  yutir  bowels  be  taken  out,  aud  your  pR*J 


Trial  of  Alexander  knightlci/. 


A.  D.  1€96« 


[S9S 


n  cat  from  your  body,  and  both  burnt 
■  siglit ;  tbat  your  beaul  be  cut  ttiXy  and 
idy  divided  into  four  quarters,  which 
nd  quarters  are  to  be  at  Uie  kin{^*s  dis- 
aud  God  Almiffhty  ha?e  lucrcy  uuon 
>uL' 

I  beg*,  if  your  lordship  please,  that  I 
e  my  relations  and  friends  coine  to  see 
some  dirines,  the  better  to  prqiare  me 
ler  world. 

ier.  Mr.  Cook,  if  you  will  give  the 
'  those  tbat  you  would  have  come  to 
the  officer,  care  shall  be  taken  in 
rou  will  not  be  dented  auy  reasonable 
it  may  be  had  for  your  preparation  for 

ten.  It  is  not  fit  he  should  be  denied 
onable  help;  but  in  the  mean  time 
reason  for  the  go? ernment  to  be  can- 
on the  account  of  what  bos  uo(oriou«- 
I  the  case  of  some  others. 

hr,  '  If  be  give  in  the  names,  it  will 
lercd  of,  and  care  taken  that  uotbing 
»ut  what  is  reasonable  and  safe. 

the  Prisoner  was  taken  from  the  bar, 
Cuiirt  proceeded  to  what  was  i-emuiu- 
e  business  of  tlie  sessions. 

a  afterwanis  pardoneil,  upon  condition 
iorlinti  himself,  and  never  returning 
i  to  England. 


)llowin<3r  Article  (undated)  is  publLsbcd 
uplte's  Memoirs,  Ap|iendi\  to  part  2, 


Extract  of  the  Examinatioru  and  Confessions 
of  Fcter  Cook,  son  to  sir  Miles  Cook.  He 
was  condemned  for  the  Assassination  Plot^ 
but  af  Uncords  pardoned, 

"  lie  gives  an  account  of  bis  having  been  in 
France,  several  years  ago ;  that  lie  went  on 
my  lady  Philips  her  business,  but  being  there, 
was  introilucc<i  to  king  James,  and  earned  over 
the'complimcnis  of  several  persons  to  the  king ; 
particularly  from  archbishop  Saiidcroft,  lord 
Ailesbury,  loni  Montgomery,  sir  John  Fen- 
wif^k,  lord  Clarendon,  lord  Litch6eld,  lord 
Huntingdon,  lord  Weymouth,  sir  Edward 
Seymour,  and  others ;  be  brouf'bt  back  mes- 
saij^s  to  some  of  them,  and  was  uid  to  see  the 
man|uis  of  Halifax,  as  being  a  man  of  honour, 
who  received  him  very  civilly;  he  brought 
over  instructions  fi-om  king  James  for  the  l)or- 
rowing  6,000/.  they  were  directed  to  lord  Ailes* 
bury,  lord  Litchfield,  and  lord  BrudeneU,  but 
they  nil  excused  it. 

'*  Mrs.  Iron  sent  him  advice  of  the  La  Hogae 
business,  which  he  communicated  to  lord  Ha- 
lifiix,  whereupon  he  found  him  uneasy  at  his 
staying  longer  with  him,  and  told  him  be  knew 
what  he  bail  to  do. 

**  lie  says  at  that  time,  there  was  a  meeting 
at  a  tavern  in  Holborn,  where  were  the  lord 
Brudeiiell,  sirTlieophilus  Ogeltliorpe,  sir  Fran- 
cis IVindham,  mnjor  George  Mathews,  Mr. 
Bruce,  colonel  Fountaine,  one  Holmes,  and 
several  otliers :  thoy  advised  with  one  another 
what  tliey  shouhl  do  upon  that  hivasiou ;  it 
was  resolved  those  who  bad  horses  should  ren- 
dezvous towards  Cane  wood,  nud  those  who 
had  none  should  get  near  the  Tower,  to  join 
with  sir  John  Freind*s  |»arty.  There  wa.s  a 
re^riraent  lined  witli  yelluw/w  hich  they  were 
tuld  tliey  might  depend  u|>ou.'' 


The  Trial  of  Alexander  Knightley,  at  the  Kings-Bench, 
for  Iligh-Ticason  :  8  William  III.  a.  d.  I696. 

moved  and  seduced  by  the  instigation  of  tlie 
di'vil,  as  a  false  traitor  against  tiie  most  serene, 
most  illustrious,  and  most  rxnellent  prince,  our 
sovereign  lord  William  the  thini,  by  the  grace 
of  God  of  Knffland,  Scotland,  France  and  Irc*- 
land  king,  deteuder  of  the  faitli,  &c.  your  su- 
preme, true,  rijsfhtful,  lawful  and  untloubted 
sovereign  lord,  the  cordial  love  ami  true  and 
due  obfdieiu.*e,  lideiity  and  allegiance,  which 
every  subject  of  our  said  lord  the  king,  that 
now  is,  tu wards  him  our  said  loni  the  king 
should  bear,  and  of  right  ought  to  bear,  with- 
drawing, and  utterly  to  extinguish,  intending 
and  contriving,  and  with  all  your  force  pur- 
uosing  and  designing  the  government  of  this 
kinrfilom  of  England,  under  hiui  our  said  lord 
the  king  tliat  now  is,  of  riftiU,  duly,  happily, 
and  very  well  rstablisihed,  altogether  to  subvert, 
c-liiiiige,  and  alter,  as  also  the  ,same  our  lord 
the  king  to  death  aud  tinal  dcstniction  to  put 


TiiLRSOAV,  April  SO  J 169G. 

lay  the  Keeper  of  Newgate  brought 
r  of  the  court  of  Riug^s-I»enrl)  Ale.\- 
ii:;lit!cy  by  virtue  ofa  \\  rit  uf  Habeas 
is&uin;^  cMit  of  that  couit  fir  that  pur- 
le  arraigned  \i\tim  an  indictment  of 
son  fouiid  ag'^insi  him  at  the  sessions 
and  Tci miner,  huUlen  fur  the  county 
psex;  which  iurlirtment  by  writ  of 
i  wa.s  remo^rd  into  tiie  King's-bench. 
m  of  the  Habeas  Corpus  was  deliver- 
.fHi  till:  prisoner  was  arraigned  thus. 
Ar.  Ale.\Lfciider  knightley,  hold  up 
.  (Which  he  did),  'i'hou  standest  in- 
.  tiiC;  name  of  Alexander  Kniijrhtiey, 
ep%rii»li  of  St.  Paul  Cnvcnt-Ganlen, 
.uufy  of  Miililltscv,  i^cuX,  for  that  you 
ig  tlic  fear  ol'  (;.»il  in  your  heart,Vior 
r liifc doty  ot* juur  aJli-giance.  but  Uing 


399] 


8  V/ILLIAM  Hi. 


and  brinjif,  and  liis  faithful  hubjects,  and  (lie 
freeiiicu  of  this  kiiij^dom  uf  England,  iutu  in- 
tulerablii  and  tnost  miserable  slavery  to  Leuiti 
the  French  kin«r  to  subdue  and  inthral ;  the 
tenth  day  of  February,  in  the  strventh  \ear  of 
tue  reiy^ii  of  our  said  sorcrcign  lord  the  king 
that  now  is,  and  dirers  otlier  days  and  times 
as  well  before  as  after,  at  the  parish  of  St. 
Paul  C'Ovent  Garden  aforesaid,  in  the  comity 
aforesaid,  falsely,  tnaliciously,  devilishly,  and 
traitorously  you  did  compjss,  imagine,  and 
contrive,  purpose,  design,  and  iulc-nd  (uir  said 
sovcrcig^n  lord  the  king  that  no\T  is  to  kUv, 
kill,  aim  murder,  and  a  niiserable  slaughter 
among  the  faithful  suhjeclA  of  our  said  lord  the 
king,  throughout  this  whole  kingdom  of  Eng- 
land, to  make  and  cause  ;  and  your  said  most 
wicked,  most  impious,  and  devilish  treasouH, 


Trial  of  Alexander  Knightl^/p  [400 

muskcta,  rapiers  and  awords,  and  other  wea- 


fions,  ammuuiiion,  and  warlike  things,  and  uii- 
itary  instruments,  fulsly,  maliciously,  secrrt- 
ly,a*nd  trailorou!»ly  you  did  obtain,  buy,  gather 
tocher,  and  procure,  and  to  be  bouglit,  oli- 
taiiied,  gathered  together,  and  procured,  did 
cause,  with  that  intent  to  use,  employ,  aud  be- 
stow them  ill  aud  alM)ut  the  detestalile,  horrid, 
and  execTable  assaftsiiiation,  killing,  and  murder 
of  our  said  lord  the  kiug  that  now  ia,  as  afore- 
said ;  and  the  same  premisses  the  more  satelf 
end  suroly  l(»  execute,  do,  aud  perform,  you 
the  said  Aloxandc-r  Kiughtley,  with  one  Ed- 
ward Kiii(f,  lute  for  high  treason,  in  contriving 
and  conspiring  the  death  of  onr  saifl  lord  tha 
king  that  n<)w  i^,  duly  convicted  and  attainted, 
by  the  consent  and  assent  of  divers  of  the  trai- 
tors and  conspirators  aibresaid,  in  the  said  tenth 


and  traitorous  oom passings  contrivances  and  I  day  of  February,  in  the  seventh  3  ear  abovesaid, 
purposes  aforesaid  to  fulfil,  perfect,  and  brin^  traitorously  did  go  and  come  to  the  place  pro- 
to  effect,  you  the  said  Alexander  Kriightley  at-  !  posed,  \^hirc  such  intended  assa38ination,  kili- 
terwards,  to  viit,  the  same  tcnili  day  of  Fe-  ;  ing,  and  murder  of  our  said  lord  the  king,  by 
bruary,  in  the  year  abovcsaid,  at  tiie  parish  j  lying  in  \iuit,  should  be  tloiie,  performed^  and 
afoi'esaid,  in  the  county  aforesaid,  and  divers  committed,  to  view,  search,  and  obsfrve  the 
other  da^s  and  times,  as  well  More  iis  after,  |  conveniency  and  fitness  of  the  Kame  place  i'm 

such  lyiiig*^  in  wait,  assassination,  and  killiog 
there  to  bt-  made,  prrlormed,  and  committed : 
ami  that  pluct>  so  lioiiig  seen  nnu  observed,  ji\' 
ter»\urds,  to  v. it,  the  k:aid  iiuy  and  year,  yum 
observations  tlureul.to  s«inic*  of  the  said  trai* 
toisaud  eoi:s;iiraiors  \oti  d:d  relate,  anil  im- 
part, to  wit,  :il  the  naiish  olorcsnid,  in  tin; 
murder  ;  and  that  exerraldo,  horrid,  and  do-  !  county  aforr:«iid.  atrui'isi  the  duty  ot  ymir  al- 
testablc  assassiiiMion  and  killing  the  sooner  to  ;  legiance,  aii.l  ugaiu'"!  ihc'  |ii-.ii*e  nf  otir  saiil  sri- 
execute  and  perpttrAte,  after\^ard.s,  to  wit,  the  '  vriviiiii  hmlllu  kii;:;  ;Ii:'.l  ii»»vv  is,  hiv;  cruwh 
same  day  and  year,  and  divt'is  other  ('uys  aind  ;  and  iifjr.it)  ,  ;»iid  agaiiist  ili.^  l.irni  ;>t  ih.  >m 
limes,  at  the  ];arlbii  aforrsai*),  in  ih*-  ooiMity  j  tuie  in  this  i^iuf  nian«.'  auf  |.ri»vidtMl.  Ih'.. 
aforcsaiil,  traitnniMsIy  yoa  d.d  tual,  pro-  '  s:L\fSi  ihoH.  Alrx:Mukr  Kv.:  ^iiiley,  sirt  tl.oti 
pose,    and    ruiivult    with    tliost*    trait»)rs',    of  I  i:*I»!iv    »d    t!ie    hii^h-tioaMMi    whereof     llioi' 


there  ana  elsewhere  in  the  same  coi:nty,  falsly, 
maliciously,  advisedly,  secretly,  traitorously, 
and  with  force  and  arms,  with  very  many 
other  traitors  to  the  jumrs  unknown,  did  meet, 
jiropose,  treat,  consult,  consent,  and  agree  him 
uur  said  lord  the  king  that  now  is,  b\  lying  in 
wait    and   deceit,    to    assassinate,    kiil,    and 


btais.Uvt  inilii-tcl,  « ;'  Not  (JjJty  ? 


the  ways,  m:iii»"r,  nnd  r.iratw.  and  the  titiii: 

and  place   uIicit,   ulitii,   Imw,  and  in    uhal 

manner,  our  said  sovc.vl^'.i  lord  iln-  Kiii*^",  .-  » 

by  lying   in  wail,    nii^ln   I  r  siaiu  aial   hilliil  ; 

and  that  you  did   fMii-,(:it,  n-in  c,   and   assini 

whU  the  same  traiitirs,  i*.  it  ioit)  iii.-.Hni  l»oi  .• 

back,  or  thcr'abMiits,  oi"  wlmiii    yon   tl'O  **:mI 

Alexander  Kui;»htli  y  \mt<  to  iji  oii.^,  wiilj  ^i»»;n, 

muskets,  and  pistols,  chanvil  ^^i«h  gisni'owijrr 

and  leaden    bulUts,  and    with  swords,   v;\u\,  is, 

and  otlier  arms  ariut-d,  sht)nid  lie  in  wall  and 

be  in  ainlinsh,  tin-  same  our  lonl  the  king  in 

his  coach  beinif  whan  he  bhnuld  gn  ai»ro:id  lo 

attack  ;  and  that  a  ci/.iain  and  couipottMU  niini- 

ber  of  those  men  so  armed,  ii|).).'i  tlic  ^Mards 

of  our  said  lord  the  king,  him  tia^n  allt  ijdin"-, 

and  b<Miig  with  him  shouhl  set  uixm.  and  Fhimld  I  reason  to  tind  laidt  ;  fur  win  n  I  ua.s  u.  ijiiainted 

fight  with  tluMii  aud  subdin.' tlifin,  whilst  oilh-rs  j  you   xure  ill,   a!td   dt.-.irrd  a    ^dly^ic^u•!,  1  or- 

oi'the  same  iiku  so  arim-d,  hlin  our  said  loid     tiered  one  tn  Ix.-  si  nt  to  yiu  ;  and  \tht<  iday  in 

the  king   should   ast>u^sinate,   kiil,  slay,    and  .  the  ai'iri noon  m>>:  sent  \*(Md  ^du  vi>ir so  sick, 

murder;  and  you  the  said  Alexander  Kni:rht-  ;tlia!>ou  roniii  nut  t)e   t>ro\!^b    liitln  r  to  day; 

ley,  \  our  treasons  and  all  your  traitorous  in- 

tenti</ns,   tlesigns,  and   contrivanci-S  a  ton  said 

toexi'Ciite,  perform,  fulfil,  and  biinglo  friect. 


I       ('/.  of  .h  .    (nliiri!.  How  wdl  you  be  tried* 

I       ./v/;;-';//;    .    r.\  tiodandiiij  country. 

,      (\'.if'.u.    <i'od  '•(  nd   }iiu  a  good  «lfli\cr- 

I  ai!.-'  ! 

A- '.'//'iV  .  \\  lili  M.limission  to  your  lonKlii;». 
i  did  tint  I :.]•(<..  Ill  lots  weak  condition  that  i 
am  in,  too..  I>it  :ii;i)t  al  (ins  iltiu*  lo  the  Itar : 
ih.il  iiaxiii'V  t;  ki  I!  r...*  nd'  t.Mreiiudy  from  tin: 
a|>|dl('ari(iM  iliai  I  :.lioiild  liavc  oiheiuise  maii-j 
oi"  my  self  to  my  ti.  ll  nrt*  ;  but  se«  iiig  therein 
no  i>n-i'ey  to  bo  had  l:r:rc,  1  will  1  iidcavour  to 
li  j\c  pJiiiijn'i.',  and  iniiKi;;Oiny  fate  as  well  a> 
1  <  ;.ii. 
L.  C.J.  (Iln/f,)  "Vir.  Kpi;.htIpy,\ou  have  110 


afterwards  to  wit,  the  ufurc-haid  tenth  tUy  of 
February,  in  the  seienth  year  aboviisaiil,  at 
the  parish  aforesaid ,  in  the  county  albn-said, 
divert   horai-*,  aiid    very  luany  arms,  guns, 


hilt  your  doctor  wa>  with  i:»»-  lasi  m^ht,  and 
upon  distiiiir>i(.' with  him,  I  I'jd  a  ip'-il^-ud  you 
wtTc  niUso  ill,  but  that,  csiHMLi.i^  .  iiMiieriiig 
the  w»  ;tth«.r,  ytiii  rniglil  vc\y  batidy  l>e  brought 
to  the  bar  t(»duy. 

Kjiighihy.  The  f;«!itlonnn  that  brought  inf 
tlic  copy  of  iho  i:iji:.iniuit  foui.d  r.ic  very  illf 


401] 


J^T  High  Tnasoiu 
iUerer  sanoe  tUis  ilavsereii 


I 

L.C.J,  WeU>  ni>w  (et  us  see  what  time  we 
bail  apfiomt  for  the  trial. 

AtU    Gen,    {Sir    Thomas  Treror.)    When 
|rour  lardsIiiLi  plen&es  to  nppoiot. 
X.  C.  J.  1  think  you  canuottry  ti  till  Wcd- 
mlay  fortnights 

Atr«  dark.  That  day  \&  free,  my  tonl. 
L,C,J,  It  beirtf^    upon  a    Certhrari,  the 
ri»i>e^mf  must  be  leturoable  upon  a  cous- 
in tftay  i  aiii]  there  must  he  16  duys  between 
t  teste  and  the  return. 

Aii*  Gen.  May  it  not   he  Tuesday,  then, 

tlhejitry  appear  ? 

Z,  Cr  /»    You  cannot  ho  re  it  before  Wed- 

.    .ay»  for  that  is  the  return  day* 

Mr.  Cfark.  Tuesday  fortnigrlit  \»  appoiott:*! 

,|lie   trial  between  Pride  and  th^  rurl  of 

,  Gm.  Then  it  must  he  upon  Wedncaday. 

rifaere  cnuft be  BAeeo days  between  the  t€ate 
and  the  return. ' 

h.  Cr  X  Well,  take  hack  your  prisoueff  and 
WtJQ^  him  here  Bguinoo  Wednesday  fortnight ; 
yooahalt  hate  a  rule  for  tt  (Then  the  pn> 
toner  was  carrieil  back  ) 

WKOitesDXY)  Mu%f  20,  16Q6. 

This  day  beinff  nppomred  for  the  trial  of  the 
priioner,  lie  was  hroiiL:ht  to  VV*fs1rninstFr  fluU, 
iBd  the  jury  were  caHed  over  a»  aoon  as  the 
niiPtappearefl  in  the  ball,  and  the  defaulters 
Itcorded  ;  and  about  eleven  of  the  clock  the 
'  wai  brought  to  the  bar. 


Cl  qfihe  Crmim,  Alexander  Kni^rhtley,  hold 

apthv'haod,     (Which   he  did.)    'Those  good 

Qianfiiat  thou  shalt  hear caHfd^  and  ptr.soually 

•ppcar,  are  to  |*ass  belwtFu  our  lavereigfu  lord 

the  king  and  lliee^  u|Hin  tlie  trial  of  tliy  Itte  and 

death :    If  therefore  thou  wouUlst  chaUenge 

9,  or  any  oi'  theni,  ihy  liuie  it  to  speak 

I  them  as  tht^y  coine  to  the  look  to  b« 

m,  before  they  he  sworn* 

L.  C.J,   (HtAl.)  Mr.  Kr»ij^hUey»  1  perceive 

Von  tia? e  a  desire  to  u^vak  something  ;  let  us 

D^r  «>bat  you  have  lo  sav. 

Knif^htii^,  1  liumbly  "br^  your  lordshlp^s 
Icare,  thai  I  may  speak  before  the  jujy  be 
callfi.  What  t  have  lo  say,  1  beg  I  may  hare 
jour  leave  to  read,  Inicause  I  hiive  a  bad  me- 

(lle&dfi.)     3ly  lord,  1  hope  to  save  the  jury 

and  the  witoe4«ies  againa  me  a  great  deal  of 

feraubte,  ai}d  design  to  lake  up  very  fittte  of 

your  lordship's  lime  :  but  in  the  first  pUce,  1 

^^i|Mk  oiyseJl  obliged  to  thank  your  lorikhip  for 

^^^^vyreat  indulgence,  in  granting  me  so  much 

^^^Hil  uetweeo  my  arraignment  Miid  iriul  *,    the 

^^^Klest  part  of  which  I  have  employed  to  ap- 

^P|K before  the  great  tribunal  of  heaven* 

^^^1  apeak  in  the  face  of  the  w^rld  here,  that  I 

B     am  CQUvinced  I  cannot  hojie  to  be  happy  bere- 

"     after,  without  a  just  abhorrence  of,  and  a  sin  • 

eere  refientance  fur  that  crime  for  which  1  here 

taad  iudtrtrvf 

VOL  : 


And  since  confession  is  ao  essential  part  of 
repentance,  I  do  acknowledge  1  was  to  hare 
been  concerned  in  some  part  of  the  harbaroua 
assassin ation,  and  was  unhappily  surprised 
into  a  consent  to  act  in  it,  though  in  my  heart  I 
did  abominate  the  lact  as  much  as  any  man 
living;  hut  under  some  honourable  and  foir 
pretences  1  was  drawn  in  at  first,  and  then  ef  a 
sudden  became  ao  far  engaged,  that  by  a  miii- 
taken  notiun  of  honour,  I  thought  I  could  not 
retreat  without  the  infamy  of  cowardice. 

3Iy  lord»  I  humbly  crave  your  lordship's 
permission  to  acquaint  you,  how  that  some 
time  since  1  was  brought  before  some  of  the 
lords  ef  \m  majesty's  most  honourable  priry 
council,  where  1  do  assure  your  lordship,  I  did 
freely  own  and  fuUv  discover  my  henig  con- 
cerned in  that  horrid  design  :  and  I  here  openly 
confess  the  same,  with  that  Rorrow  and  \i* 
[^ntance  as  becomes  a  man  of  hoDour  and 
conscience. 

My  lord,  there  is  one  eircnm stance  parti- 
cular in  ray  case,  I  most  humbly  beg  leave  to 
insist  upon,  and  urge  to  your  lordshiji  in  my 
hthalf »  VI  hich  is,  that  it  wn<;  upon  my  con- 
fession ^as  I  conceive)  thut  5In  Harris,  now  a 
principal  evidence  u^aitist  me,  was  first  di^cn- 
vered ;  so  that  njy  own  confVssiou  has  betin  a 
great  muans  to  take  away  my  lift!. 

I  expect  after  a  tew  words  now  in  this  lo- 
kmn  court  to  receive  from  your  lordship  the 
Sentence  due  upon  tlics  conviction,  from  my 
own  mouthy  of  a  crime  for  which  I  cannot  in 
modesty  hope,  ko  much  above  my  deserts,  the 
king's  most  gracious  pardon  ;  yet  the  greatness 
of  my  olfence  dues  nut  rob  me  of  all  tlioughts 
of  mercy,  whilst  I  throw  myself  absohuefy  and 
eniuely  at  his  majesty's  lect  for  it ;  and  I  hum- 
bty  beg  of  your  lordship  as  a^rivy-counsellor, 
that  you  would  icpreKcni  my  unfortunate  caso 
to  llieir  excellencies  the  lords  justices  of  £ng* 
laml,  as  an  object  of  his  majesty's  favour. 

And  naWf  my  lord,  1  shall  not  detain  your 
lqrd$h»p  and  the  court  any  longer,  but  my  neit 
words  convict  and  lay  me  under  the  just  sen- 
tence of  denth  :  so  to  my  indictment  I  beg 
leave  to  plead  Guilty,  and  throw  myself  eu- 
lirely  upon  tlie  king's  mercy,  aud  do  desire  my 
former  ptea  to  my  indictuicut  may  be  with- 
drawn. 

CL  of  the  Cr.  Thou  hast  been  indicted  and 
arraigned  oi'  Ingh-trea^von  in  compassing  and 
imagining  the  deatli  and  deslruciion  of  the 
king  ;  how  sayest  thou,  Alexander  Knightley, 
art  thou  guilty  of  tlic  hit{h-trea$ion  wbereol* 
thou  standest  indicted,  or  not  guilty  f 
Knight ie^.  Q nitty,  my  lord, 
a,  of  the  Cr.  Art  thou  content  to  withdraw 
thy  plea  NotGuiltvi'^ — Knigkiiey,  Yes,  Sir. 

CI.  oftheCr,     Do  you  pleatf  to  tlie  indict- 
ment Guilty  or  Not  Guilty  r 
KnighiUy*    I  am  Guilty. 
Alt.  Gen.    Then,  my  lord,  we  desire,  since 
he  relinquishes  his  plea  of  not  guilty,  that  you 
will  record  his  eontiesfiion ;  and  since  he  has 
confest  the  indictment,  mc  have  nothing  more 
to  ilo  but  wait  the  iudgmt»!U  of  ih'j  rpiii  t 
C  O 


il9] 


8  WILLIAM  m. 


Trial  of  Alexander  Knightley. 


[404 


L.  C.  J.   We  sbmll  not  give  juds^meiit  now. 

Alt.  Gen.  If  the  prisoner  hare  any  things 
to  say  for  biinielf,  your  lonlihips,  I  luppose, 
will  hear  bim  to  it. 

X.  C.  J.  But  I  say,  we  cannot  by  tbe  course 
of  tbe  court  give  judgment  now ;  for  after  a 
person  iscon?  icte<l  here,  wbether  by  confession 
or  rerdtct,  be  ought  to  have  four  days  from  the 
time  of  such  confession  or  Terdict,  to  mo?e  in 
arrest  of  judgment,  if  there  be  so  many  days 
of  tbe  term  remaining^  if  not,  then  tbe  longrest 
time  that  can  be  bad  in  tbe  term  is  allowed. 
In  Stay  ley 's  Case  *  it  was  otherwise  practised, 
udgmeiit  was  gi^en  tbe  same  day ;  that  was 
n  the  time  of  the  Popisb-Plot,  and  is  a  case 
not  to  be  imitated,  because  not  justified  by  any 
precedent  before  that  time  or  since ;  bnt  it  has 
been  always  obserrcd  to  bare  four  juridical 
days  for  moring  in  arrest  ctf  judgment,  if  so 
many  remain  of  the  term. 

Monday f  JUtfy  25,  1606. 

This  being  the  last  day  of  the  Term,  the  pri- 
soner was  brought  from  Newgate  to  tbe  King's 
Bench  bar. 

Att.  Gen,  If  your  lordship  please,  I  desire 
the  judgment  of  the  court  to  be  jironounccd 
upon  Mr.  Knightley  upon  his  conviction. 

CL  oftke  Cr,  Alexander  Knightley,  bold 
up  thy  band,  (which  he  did).  Thou  hast  been 
indicted  and  arrai^ed  for  high- treason  in  com* 
passing  and  imaguiing  the  death  of  the  king, 
and  adhering  to  the  king's  enemies;  what 
cati'st  thou  say  for  thyself,  \vhy  judgment 
should  not  be  given  against  thee  to  die  accord- 
ing to  the  law? 

Knightley.  I  have  nothing  more  to  say,  my 
lord,  than  what  I  have  said. 

CL  of  the  Cr.  Crier,  make  proclamation  for 
silence.  (Which  was  done  on  both  sides  the 
court.) 

Crycr.  Oyez :  Our  sovcreiffn  lord  tlic  king 
straiily  charges  and  commands  all  manner  of 
persons  to  keep  silence  while  judgment  is  in 
giving,  upon  pain  of  imprisonment. 

L.  C.  J.  Mr.  Kniglitlev,  you  are  by  your 
own  confession  convicted  of' high -treason  in  de- 
siscning  the  munier  uf  the  kins',  and  the  sub- 
version of  the  whole  state  of  hngland,  in  pro- 
moting an  invasion  from  the  French,  its  most 
ancient  and  inveterate  enemies. 

It  hath  appeared  before  your  arraignment, 
not  only  hy  the  evidence  that  hath  Ijeen  given 
at  foniier  trials,  but  even  by  the  signs  of  the 
times  and  the  manner  of  some  men's  actings, 
that  there  hath  been  for  some  years  last  past  a 
train  of  plots  and  conspiracies  against  this  tro- 
vcrnment ;  and  when  the  various  means  which 
the  conspiratoi*s  did  project  among  themselves 
for  its  ruin  proved  ineffectual,  it  was  at  last  re- 
solved among  some  of  the  conspirators  to  as- 
sassinate the  Icing,  as  the  most  certain  way  of 
accon) pushing  their  end. 

In  which  dt^hign  you  were  deeply  engaged, 

*  «€e  vol.  (i,  p.  1501,  of  this  Collection. 


and  was  an  active  instrument  in  the  carrying 
it  on,  being  sent  to  view  the  ground  on  boCb 
sides  tbe  water,  and  with  others  that  were 
sent  with  you  reported  your  opinion,  which  was 
the  moat  couTcnient  place  to  attack  the  king 
and  bis  guards. 

And  though  you  did,  the  hist  time  yon  wens 
at  the  bar,  urge  by  way  of  extenuation  of  your 
crime,  that  you  beinnr  engai^ed  in  the  interest 
of  tiie  late  king,  and  th^eby  supported,  you 
was  surprised  into  this  barbarous  design,  which 
being  proposed  to  you,  you  thought  yonrself 
obb^d  in  honour  to  engage  in  it ;  which  is  so 
far  from  an  extenuation,  Uiat  it  is  an  high  ag* 
gravation:  for  men  of  honoinrable  principles, 
tnoiigfa  moat  zealously  disposed  to  the  advance- 
ment of  any  particular  interest,  yet  alwa\'s  de- 
test the  use  of  base  and  vile  means.  There- 
fore when  the  assassmation  of  the  king  waf 
proposed,  you  had  an  opportunity  to  have  re- 
treated with  honour,  and  might  have  refuted 
to  be  further  concerned :  but  you  rather  pur- 
sued this  wicked  enterprise  with  great  zeal. 

And  though  you  are  by  your  profession  i 
Roman  Cauiobc,  and  may  for  that  reaaoa 
think  that  your  crime  is  mitigated,  beeanst 
you  acted  in  tbe  behalf  of  a  prince  of  your  own 
religion,  which  you  hoped  thereby  to  intro- 
duce: nutwithstanding  all  which,  your  of- 
fence is  highly  aggravated  in  respect  of  the 
ingratitude  and  folly  with  which  it  is  attended. 
For  there  is  no  £uffiish  I^iplst  that  is  master  of 
any  property«  but  ue  is  interested  in  the  pre- 
servation of  this  government,  to  which  the 
whole  party  of  them  hath  been,  and  still  are 
continually  oMi^ed  for  its  moderation  and  jus- 
tice ;  for  instead  cf  hc'ivrr  cx|K)sc<I  to  the  seve- 
rity of  those  laws  to  which  they  are  obnoxious, 
they  have  had  the  same  induigeneu  in  the  eiijoy- 
mcnt  of  their  religion,  and  the  same  protection, 
and  as  much  benefit  in  the  distribution  of  tbe 
commonjusticeof  the  realm,  as  any  other  of  the 
king's  suhjccls  ;  therefore  none  uVthem  could 
ever  ex|)ect  to  mend  their  condition  under  a 
French  domination.  Dut  the  contrary  is  fore- 
seen by  all  considering  men  ;  for  the  English 
Papist,  as  well  as  Protestant,  would  have  been 
reduced  to  a  most  dismal  state,  if  you  bad  ob- 
tained your  end. 

For  It  is  against  all  the  rules  of  reason,  and 
the  experience  of  all  ages,  to  imagine,  that  the 
French  king  would  spare  English  Ripists 
more  than  Protestants  ;  for  it  is  not  zeal  to  re> 
ligion,  or  affection  to  the  interest  of  the  late 
king,  that  hath  excited  him  to  invade  England, 
but  it  is  his  pride  and  ambition  to  con(|uer  the 
three  kingdoms,  and  to  reduce  this  to  be  a  pro- 
vince to  France :  indeed  the  pretence  of  restor- 
ins^  the  late  king,  and  introducing  the  Popisb 
religion,  may  serve  to  delude  some  warm  and 
unwary  zeafots  to  engage  in  his  assistance, 
who  do  not  consider,  that  if  they  should  be 
successful,  they  would  be  ?s  certainly  destroyed 
as  others,  but  with  more  disadvantage  to  them- 
selves. For  after  they  shall  have  survived  the 
liberty  of  their  country,  have  embrued  their 
own  hands  in  tiielr  country meirs  blood,  they 


5]       Procctdingi  against  Thrt^  Nenptrmg 

iU  be  at  the  merey  of  th^r  co»»qiieror»  wba  can    of  the  Almiqfhty,  which,  lu  the  riTeri  of  watef , 

think  it  hb  mteresi  to  trust  theiu»  but  will    he  tumeth  \Tliiihersaeier  he  will.'*   Live  tliere- 

ise  tiiem  lar  Wiu(^  such  viUainous  traitors    ihn  for  tite  titno  to  come  in  er{i«ctatioo  of  « 

their  owo  country*      N»y*  ralh«r,  these    speedj  death,  jiinJ  prepare  yourself  lo  »ppoQr 

lishmmi,  who  by  tbeir  courage  and  resolu-  |  before  anoUier  judgmeiit-Skeat ;    to  U»e  making 


■ball  endeavoor  lo  defend  iheir  country, 

f  h  they  «brt»»ld  lie  unfortunately  vanqnisfi- 

will  meet  with  a  mucli  better  reception,  for 

bey  will  have  giveo  assumnoes  that  they  may 

icunfideil  in,  when  the  otlien  have  by  sueli 

|;wieked  treason  given  a  demonstratian  'to  the 

re  beingf  then  nothinis:  to  be  aaid  that  can 
i  such  a  crime  as  that  of  which  yoti  are 
icted  J  but  you  havin|r  taken  a  ditftrent 
'  the  la»t  time  you  were  al  the  bar  front 
ihat  you  took  at  tirst,  you  have  reHn«)uished 
iir  plea  of  not  guilty,  and  have  confessed 
be  mdictflieol;  1  wish  out  of  charity  to  your 
it  was  as  sincere  a^  (I  think  it)  it  was 
in  you ;  for  after  several  convictions 
others  that  were  your  arcomp!i<refl,  you 
oald  not  be  a  btranger  to  the  evidence  upon 
phi<^b  tliey  were  gi-ounded  :  you  must  there- 
'Mre  in  all  nrobabitity  ha?e  expected  to  have 
June  the  same  fate.  If  your  coofession 
s  a  real  effect  of  your  renen lance,  you  will 
►  the  ad  vantage  of  it  in  ine  next  world  ;  but 
Fi^hitcoiittequeQce  it  will  have  in  tliis,  I  cannot 
Mf  i  «*  For^he  hewrt  of  the  king  it  in  the  hand 


of  which  important  prepantlion  j  shall  dismiss 
you,  first  di^bargiu^  the  court  of  the  duty 
now  incumbent  upun  it,  in  giving^  that  jod^- 
ment  which  the  law  hath  appointed.  And  the 
court  doth  award, 

'  That  you  be  conveyed  fronj  henco  to  New- 

*  ^e,  the  prison  from  whence  you  came,  nnd 

*  from  thence  vf^o  are  to  be  draivu  upon  m 

*  hurdle  lo  Tyburn  ;    where  vou   are  lo  be 

*  hanjjed  by  the  neck,  and  whfle  yon  are  alivo 

*  to  be  cut  down,  your  privy -meiabera  are  to  be 

*  cut  off,  and  your  bowels  to  be  ctitout  of  your 

*  body,  and  burnt  in  your  viexr ;  your  head  i^ 

*  to  l»  cut  off,  and  your  body  is  to  be  divided 

*  into  four  parts,  and  your  head  and  your  quarv 

*  ters  are  to  be  disposed  where  his  majesty  hhaU 

*  apjmint.     Ant  I  I  pray  God  to  have  mercy 

*  upon  your  soul.' 

Knight  ley.  My  lord,  I  am  truly  sorry  for 
wimt  1  have  done,  and  I  humbly  thank  yoof 
lordship  and  the  rest  of  the  judges  for  your  fa* 
vour  to  me. 

Then  the  prisoner  was  carried  back  to  New* 
gate,  and  alWwards  was  graciously  pa^rdoned. 


'89K  The  Proceedings  against  the  Three  Nonjuring  Clergymen, 
Mr,  Collier,  Mr,  Cook,  and  Mr.  Snatt,  for  publicly  ab- 
solving Sir  William  Paikyns  and  Sir  John  Freind  at  Tyburn: 
8  William  III.  a.  n.  iGgS.* 


I 


The  publicly  absolving  sir  William  Perkins 
tud  *ir  John  Friend  at  the  place  of  execution 
made  a  grt-at  noise  at  that  time.  Burnet  smyt, 
"  A  very  umisual  instance  of  the  boldness  of 
lh«  Jacobites  appeared  upon  that  oecasion  : 
these  two  had  not  chani^l  tbeir  religion,  but 
will  C3il)eil  ihomselve^  Protestants  ;  so  three  of 
the  Donjuring^  clerjjymen  waited  on  them  to 
I'jrbiim  ;  twti  of  them  bft«l  been  oft  with  Friend, 
•wloiie  of  them  with  Perkin«> ;  and  all  three, 
It 'the  place  of  execution,  joined  to  fj^ve  ihem 
'  "n  abaolution,  with  an  imposition  of  bands, 
I  view  of^L  the  people  ;  a  strain  of  irapu- 
'  kit  wis  as  new  as  it  %vas  wicked  !  since 
^  ■Mos  died  owning  the  ill  designs  they 
liiA  wta  riMfig^d  in,  and  expressing  no  sort  of 
tyBliUit  w  tliem.  lb  these  clergymen,  in 
tm  mpIciiui  ibsolatioo,  made  an  open  declam- 
IMB  of  thdr  allowing  and  juirtifyin^'  these  per- 
•an*  in  «ll  they  bad  been  coucenied  Jn.  Two 
«f  ItuMD  were  taken  up,  and  censored  for  tbis 
10   tlie    Ming's  bench,  the  third   made    his 


*  See  II.  140,  of  the  preaenl  voluaie. 


Also 


esGipe/'    The  Account  published  al  that  time, 
by  permission  of  the  Sherifits  ^s  a&  follows : 

An  Acconntof  what  passed  al  the  Execution  of 
Sir  William  PcaKif«i,  and  8ir  SmiH 
FaiENDp  at  Tyburn,  on  Friday,  April  3, 
169tJ. 

The  prisoners  being  drawn  in  a  sletlge  front 
Newgate  lo  the  place  of  execution,  were  per- 
tnitled  to  have  the  assistance  of  three  noojuriDg 
niiaUters  of  their  own  chusiag>  viz.  Mr,  Collier^ 
Mr.  Cook,  and  Mr.  Snatt.  8tr  Uilh4m  Per* 
kins  came  first  up  into  the  cart,  and  liad  some 
prirate  discoune  with  or*e  of  the  ministers. 

Sir  W.  Ferkim.  When  niU5t  1  delirer  my 
paper  ? — MinuUr,  When  all  is  over. 

Then  the  Execution ei  went  to  put  the  rope 
about  sir  William  Perkms't*  neck- 

Hir  W.  Pa-hint,  May  not  I  pray  before  it 
be  put  on  ? 

Executioner.  Yei,  sir,  if  you  please.  4 

Then  sir  John  Friend  came  into  the  cart } 
and  tlie  three  uuiristera  and  priaoDersstl  kneel* 
ing  down,  Mr.  Cook  read  some  prayers  out  of 
the  iiiomiiig-prmy«f|  lad  the  Oi£ce  tor  risita* 


^.d^ 


407]  8  WILLIAM  III.  l^roceedhgi  against  Three  Nonjunng  Ciergymen,  [40S 


lion  of  the  sick :  and  then  the  miDUten  staud- 
ing  up,  asked  them,  Whether  they  were  in 
charity  with  all  the  world  ?  and  if  they  had 
offeDded  any,  whether  they  did  ask  them 
forgireneis  P  And  whether  they  did  desire  the 
abMlution  of  the  Chnrch  P  Upon  their  answer, 
that  they  did,  they  all  laid  their  hands  upon 
their  hrads,  and  Mr.  Cook  pronounced  the 
absolution,  which  ended  in  these  words :  "  And 
by  his  authority  committed  to  me,  I  absoWe 
tliee  from  all  thy  sins,  in  the  name  of  the 
Fatber,"&c. 

Sir  W,  Perkins,  When  are  we  to  deliver 
our  papers  P — Minister,  Now,  if  you  please. 

Sktriffl  Take  what  time  you  please,  Sir,  for 
your  devotions,  we  will  wait  your  leisure. 

Then  the  two  prisoners  continued  in  their 
priTiite  prayers,  sir  W.  Perkins  making  use  of 
the  prayers  in  the  Whole  Duty  of  Man,  and  sir 
John  Friend  read  some  praver  out  of  a  written 
paper ;  and  afterwards,  sir  W.  Perkins  deii- 
Tered  to  the  sheriffs  a  paper. 

Sheriffi  If  you  require  any  more  time,  you 
shall  have  it.    You  say  this  is  your  l»aper  P 

Sir  W.  Perkins,  Yes,  Sir ;  and  I  desire  you 
to  dispose  of  it  as  you  think  fit. 

Sherif,  Have  vou  any  thing  to  say,  by  way 
of  coni&siou  or  denial,  of  the  nict  for  which  ye 
conu  hither  to  suffer  ? 

Sir  R^.  Perkins.  What  1  think  fit  to  say,  is 
csontainul  in  that  paper. 

Sheriff,  if  you  desire  any  more  time,  yoh 
may  have  it ;  you  shall  have  your  liberty. 
Then  sir  John  Friend  held  a  paper  up. 
Shcriffl  What  do  you  sa^j ,  sir  John  P 
Sir  J.  Friend.  Sir,  here  Ls  a  paper,  I  desire 
it  may  be  printed  ;  for  1  came  here  to  die,  and 
not  to  make  a  speech  ;  but  to  dio,  and  to  resign 
myself  to  God ;  and  I  desire  it  mny  be  nrintol, 
for  all   people    to   see    it.    (For   both   their 
Speeches,  see  p.  136  of  this  volume.)  And  I 
have  no  more  to  say,  but  to  beg  of  God  to  re- 
ceive niy  soul ;   1  rcsiifn  my  soullo  him. 
Sheriff',  The  Lord  have  mercy  upon  you. 
Sir  J.  Frcind,    I  hope  the  Lonl  will  have 
mercy  on  nic. 

Sheriff,  Sir  John,  if  you  desire  any  more 
time,  you  shall  have  it;  we  will  wait  on  you 
with  great  %\illingnes8. 

Sir  J.    Freind.    1  thank   you,   Sir.     Mr. 
Sheriff,  1  desire  the  cart  may  not  be  too  hasty 
to  go  away,  till  we  give  a  sign. 
-  iShci'iff,  You  shall    have  your  own  time ; 
talOe  your  time,  communicate  your  own  sign, 
and  the  cart  shall  not  go  before. 
Then  !ht*  ro|»os  were  tied  about  them. 
Sir  J.  Freind.  I  have  no  animosity  against 
any  man  ;  I  freely  ionriva  all,  and  I  liopc  God, 
forChriht's  sake,  will  forgire  me. 
Then  their  caps  were  put  on. 
Sir  /   Freind.  My  Saviour  had  a  crown  of 
tlionis  for  me ;  the  Lord  recei\eniy  soul !    the 
Lord  have  mercy  on  me4 

Then  the  Executioner  asked* them  both 
IbrfiriveneKB ;  and  they  answered.  We  freely 
foiffivt*  you. 

Sir  J.  Freind.  Will  not  the  things  lie  in  my 
way? 


Executioner,  I  will  remove  them.  If  yon 
please,  tell  me  when  1  may  pull  your  caps  over 
your  eyes. — Prisoners.  When  ypu  will. 

Sir  \V,  Perkins.  The  Lord  receive  my  spi- 
rit! Executioner,  had  I  best  hoM  up  my  legs, 
or  stand  in  the  cart  when  it  goes  away  r 

Executioner,  It  is  best  to  stand,  Mr,  I  think. 

Sir  W.  Perkins.  Bntthenmy  teet  will  hang 
in  the  cart. 

Executioner.  If  you  please,  give  me  notice 
when  you  will  have  the  carl  go  away. 

Sir  J,  Freind,  Stretch  forth  thy  anns,  O 
Lord,  and  receive  my  soul,  and  carry  it  into 
heaven,  I  beseech  thee!  Ezecutioner»  when 
we  knock,  go  away. 

And  alter  a  few  ^aculations,  they  gave  the 
sign,  and  the  cart  drew  away. — ^They  both  of 
tlMm  gave  money  to  the  Executioner;  and 
having  hnug  above  half  an  hour,  being  a  ooa- 
sideraUe  time  after  they  were  dead,  th^ 
cut  down  and  quartered,  according  to  the 
tence. 


For  this  act  of  theirs,  Mr.  Cook  and  Mr. 
Snatt  were  committed  to  Newgate,  and  ordered 
to  be  prosecuted  by  the  Attorney  General ;  but 
Mr.  Collier  kept  out  of  the  way,  and  was  not 
taken.  On  this  occasion,  Mr.  Collier  published 
the  following  Defence  of  himself: 

A  Defence  of  the  Absolution  given  to  Sot 
William  Perkixs  at  the  place  or  Execu- 
tion, April  S,  1696. 

My  being  present,  and  in  some  measure  offi- 
ciating, at  the  place  of  execution  on  Friday  last, 
has  been  extremely  misunderstood.  The 
Weekly  Intelligence,  together  with  the  Re- 
marker,  have  7:f^nsurc<l  this  action  with  a 
great  deal  of  liberty  and  heat.  I  thank  God  I 
am  not  easily  disturbed  with  intemperate  lan- 
guage, especially  when  it  is  given  without  oc^ 
casion.  So  that  if  mattei-s  had  g6ne  no  farther, 
I  could  have  passed  -over  the  ill  usage,  and  said 
nothing.  1  confess,  having  received  nottet 
that  some  persons  of  tigure  threatened  roe  with 
imprison  men  t,  I  took  u  little  care  of  onysclf  | 
ami  as  it  hap|)ened,  not  without  reason :  ForoB 
Monday  about  twelve  at  night,  six  or  e^^ 
|>ersons  rushed  into  my  loilgingH,  broke  open  • 
trunk,  and  seized  some  pa|»ers  of  value,  thougk 
perfectly  inoflTensive  and  foreign  to  their  pur- 
pose. And  since,  f  undersund  thero  is  a  Bill 
I'ound  against  me  for  Uij^h  MisderaeMMMi. 
And  now  one  would  think  1  had  done  i 


thing  very  extraonlinary. 

I  shall  therefore  make  a  brief  report  of  nit* 
tcrs  of  fact,  and  leave  the  world  to  judge,  wbt* 
tlier  all  these  censures  and  severities  are  de> 
served  or  not. 

Sir  William  Perkins  (whom  I  had  not  aetl 
for  four  or  five  ytma  last  past)  after  his.trii^ 
desired  me  to  come  to  him,  in  order  to  his  pm» 
Juration  fi)r  another  worid.  1  acconUaghr 
visited  him  in  New|p&te,  as  I  thought  m^-seir  ■ 
oblfge«i  by  my  character.  1  was  pulio  thefiH 
of  those  who  had  leave  to  tee  him  bnffiMb 


Jitr  ahuivm^  Sir  W.  Parkyns  and  Sir  J,  Freind.    A«  D.  1696'. 


[410 


wsief,  and  bftd  the  6rst  two  dnys  tbe  liberty  of 
eODfcnting  iritb  him  m  private.  After^'ards  I 
iv«!»  DOC  fierinittet)  to  s|H;ok  ar  firay  wttb  biun 
^one,  A  keeper  bein^  alwttys  present.  At  last 
ereo  tbis  jicrmisstoti  was  recalled,  Insomttch 
that  I  coiikl  uever  see  him  from  WedDesday 
aMTBiii^,  April  the  l^t,  tdl  Friday  ot  the  place 
of  taieiilun].  8ir  William,  being  under  an  ex- 
peotaliof]  of  deaili  from  the  (ime  of  hifi  Hen- 
leoce,  bofl  pfiven  iih*  tbe  stJile  of  hifi  conscience, 
•nil ' '  *  desired  Ihe  solemn  Absolution  of 
ibc  u\^\\\  be  prosoiiDCcd  to  him  by 

,  viay.  And  luideiHtaDcling'  1  was  re* 
■iltftoce  Oil  Friday  mornings,  he  sent 

lb:&t  lie  would  gladly  see  me  at  the 
place  of  execution,  1  went  tJnther,  and  ^ve 
mm  the  Ab^olnlion  he  requested,  il  being-  tm* 
HbttcabU  for  me  to  da  it  elsewhere.  This 
B^  I  jierforiiied  word  for  word  in  form, 
it  it  standi  in  ihe  Visitation  of  the  8ick. 
And  now  where  lies  the  g^at  crime  of  all 
this?  when  n  man  has  declared  his  sorrow 
tor  all  tbe  faultt  and  misL'4irriages  of  Ids  life, 

t(fua1ified  himself  ttjr  the  pii%ile£^e  of  ab- 
tkon,  with   what  ju!«tice  could   it    be  de^ 
bini?    Ought   not  dyiny^  persons  to  be 
toried  iu  their  last  ai^onies^  and  pass  into 
olber  woHd  with  all   ihe  advantage  the 
eliureb  eao  gfive  them?    I   am  surprized  so 
alar  a  proceeding  as  this  sbonid  fpve  so 
ich  utfcnce,  and  make  so  much  noise  ai^t  I 
HVe  it  ban  dot»e.      Some  people^  1  under- 
are  displeased  at  the  otBce  being  per- 
nrd  with  Imposition  of  Hands,      Now  this 
bot  only  an  imioceut,  but  an  ancient  cere- 
Ay  of  aoaolutlon.     It  was  the  g^eneral  prac- 
}  of  tbe  primitive  church  in  tuch  cases,  loog 
Wow  there  were  any  exceptions  to  tbe  Roman 
CnDmunion.      It  is,  in  the  opinion  of  several 
Mifn  and  good  modern  expositors,  referred  to 
i>y  tbe  Apostle,  l  Tim.  v.  $$.     It  is  likewise 
MMiibed  the  Assisting  Presbyters  in  our  own 
iNiMliOD  Form*     But  I  suppose  I  need  say 
m  mare  in  defeoce  of  this  circumstance.     To 
proceed  :    others  seem  very  much  shocked  at 
tbf  thing  itself '»   and  think  it  a  strange  pre- 
tumpcioii  to  admit  a  person  charged  with  so 
l%b  A  crinae,  to  tlic  benelit  of  absolution.  With 
omianofi,  this  is  concluding  a  great  deal  too 
fait.     Are  all  people  damned  that  are  cast  in  a 
C^litd  indictment/    if  so,  to  what  purpose  are 
tl^y  Tititeil  by  divines,  why  are  ihey  exhorted 
la  fvytnlttoce^  and  have  tfme  allowed  them  to 
fltthcia  lor  deitb?    Dot  if  they  may  be  ac- 
iMlid  licreatter,  notwithstandiog  their  con- 
faftttmlton  here  ;  if  they  may  be  recoTered  by 
reeotlttetioii,  by  repentance,  ajid  rcsi^^nation, 
irby  ahoold  the  church  refuse  tbem  her  pardon 
m  mrtht  when  lihe  lieUeves  it  is  passed   in 
boiwm  f  The  power  of  the  keys  was  given  for 
Ibis  |>orpo«e,  lh:a  the  ministers  of  God  might 
lied  or  loose,  as  tbe  disposition  of  the  pennon 
ltn«d«     'file  latter  I  sincerely  believed  to  be 
l^illiam*s  case :  I  judged  him  to  have  a  full 
L  to  aU  the  nrivtlegies  of  communion  :    and 
Imd   I  deoiefi  bim  abaoluiioa  upon 
I    bad  failed  in   my   duty^  and 


gone  against  tbe  aatliorily  both  of  the  an- 
cient and  Enghsh  cburcli.  If  it  is  said 
that  the  nature  of  ibis  gentleman's  charge  re- 
4}uired  bU  being  abftolv^  in  private  ;  to  this  I 
answer,  so  he  bad  been,  had  1  been  prrmitted 
to  visit  him  tlie  last  morning  :  but  this  liberty 
was  refused  me  more  than  once ;  aud  1  hope 
I  shall  not  he  blamed  for  impossibilities  of  otht;r 
men's  making.  In  short,  be  seemed  very 
desirous  of  absolution  at  my  hands,  as  lieing 
the  only  person  acquainted  with  tiis  condition, 
Privatdy  it  was  not  in  my  pijwcr  to  give  it 
him  ;  so  ibat  he  muj^t  either  receive  it  pubHcly 
from  me,  or  not  at  all.  But  sir  Wdliam  con- 
fessed himself  acquainted  with  the  intended 
Assassi nation «  Pray,  did  he  confeii:^  it  to  me. 
and  have  I  revealed  any  part  of  hi^  cotifesaion? 
Then  I  ba«l  been  gudty  of  High  Misdemeanor 
indeed ;  I  bad  broke  the  1 13tb  canon,  and  been 
pronounced  irregular  by  tlie  diurch  ;  and  he 
that  falls  under  irregularity,  is  for  ever  after 
inculpable  of  executing  the  office  of  a  priest. 
(Dr.  Hevliu's  Inlro<htclion  to  Cyprian,  Aug!. 
p.  6.)  I  confeas  there  is  an  except  ton  in  the 
canon,  but  that  does  fiot  reach  the  case  in  hand« 
even  upon  the  largest  supposition.  Well ! 
But  sir  William  owned  thi«*  charge  before  the 
Committee.  How  coukl  I  know  that  ?  I  oei- 
ther  saw  t^v  William  after  bis  examination,  till 
Friday  noon,  nor  the  Votes  which  meotloned 
it  till  after  that  time.  But  he  contest  it  in 
his  Paper.  What  then?  Which  way  doen  tbe 
Paper  concern  me  ?  It  is  well  known  sir  Wil- 
liam Perkins  was  a  man  of  sanse^  and  bred  lo 
law  and  letters^  and  needed  no  help  to  assist 
bim  in  ^vriting  a  few  lines^  Besides,  I  was 
not  permitted  to  come  near  him  tor  more  than 
two  days  before  be  suffered:  neither  vias  he. 
allow€(i  so  much  as  pen  and  ink  till  the  last 
morning.  Then  it  was  that  be  pennetl  his 
Speech,  as  I  am  told  by  tboso  who  were  pre- 
sent;  and  having  read  it  before  the  Keej»er« 
delivered  a  copy  of  it  to  a  friend,  which  was 
not  shewt^d  to  me  till  after  the  execution.  In« 
deed,  I  did  believe  he  would  leave  some  paper 
behind  bim,  both  because  it  is  customary  uport 
such  sad  occasions,  and  because  on  Tuesday 
night,  when  be  expected  death  on  Wedoesrlay, 
be  desired  pen,  ink  and  paper,  for  that  par* 
pose. 

And  now,  afler  all,  I  desire  to  knoir  in  what 
single  circumstance  I  have  misbehaved  my- 
self, or  done  any  thing  unbecoming  my  pro* 
fession  ?  It  is  very  hard  a  man  must  be  perse- 
cuted for  performing  tbe  obligations  of  bis  of- 
t^ce,  and  tbe  duties  of  common  friendship  and 
bumanitv.  As  for  any  methods  of  murder,  I 
diblike  them  tiu  less  than  tbo^  who  rail  loud*' 
est ;  and  nothing  but  a  mercenaiy  malice  could 
suggest  the  contrary  :  but  if  the  functions  of 
Ihe  priesthood,  and  tbe  assistances  of  retigioa, 
and  the  leading  the  public  Liturgy,  are  gfrow* 
a  crime,  I  am  not  concerned  at  the  imputation. 
I  hope  tbe  complying  clergy  wilt  take  some 
care  to  check  the  diiordei's,  aud  inform  the 
ignorance  of  their  people  a  little  better.  If 
tbcy  are  unrvproved  for  iheaa  slanderods  «i- 


411]  S  WILLIAM  III.  Proeeeditigs  against  Three  Novjurin^  Clergymen^  [4  lie 

ccssefl,  their  pastors  must  ooe  day  expect  to  :  tion  \titb  an  army  of  French  Prnpista,  fur  the 
account  for  it.  ;  ruin  of  their  country,  and  the  exUrpaiiou  of 

As  for  those  io  power,  it  is  possible  they  |  that  religion  which  liiey  themsdres  do  pro- 
may  bs^ve  been  governed  by  mis-reports,  and  i  fess. 

sumleii  resentment:  if  so,  second  thoughts  and  2.  As  for  sir  William  Perkins,  nho  also  pro- 
the  reason  of  the  case,  will  put  a  stop  to  their  j  ft^sseil  to  die  in  the  communion  of  the  church 
severities,  and  that  this  may  be  the  issue  of  the  ;  of  £ngland,  we  cannot  think  hp  meant  any 
business  I  thmk  myself  obliged  to  wish,  as    thing  else  by  it,  tlian  that  he  adhered  to  the 


well  for  their  sakes  as  my  own. 
April  9th,  1696.  Jer.  Colueji. 


On  this  occasion  the  following  Declaration 
of  the  Archbishops,  &c.  appeared : 

A  Declaration  of  the  Sense  of  the  Archbishops 
and  Bishops,  now  in  and  about  London, 
upon  the  Occasion  of  their  Attendance  in 
Parliament,  concerning  the  irregular  and 
scandalous  Proceedings  of  certain  Clergy- 
men, at  the  Execntion  of  sir  John  Freind 
and  sir  William  Perkins. 

We  the  Archbishops  and  Bishops  now  in  and 
about  London,  upon  occasion  of  our  attendance 
in  pai'liament,  having  seen  a  printed  paper, 
intituled, '  A  true  Copy  of  the  Papers  delivered 

<  by  sir  John  Freind  and  sir  William  Perkins 

<  to  the  sheriffs  of  London  and  Middlesex,  at 
'T^bnm,  the  [ilace  of  Execution,  April  S, 
^  1696 :'  and  beinff  also  certainly  informed  of 
tlie  most  irregular  oebaviour  of  Mr.  Cook,  Mr. 
Collier*,  and  Mr  Snatt,  in  pretending  to  ab- 
solve the  said  criminals  at  tneir  execution,  to 
the  groat  scandal  of  the  church,  and  of  our 
holy  religion,  have  therefore  thought  ourselves 
obliy;e4l  to  declare  our  sense  of  the  same,  as 
here  followcth : 

1.  As  to  the  Paper  before  mentioned,  we 
cannot  but  observe,  that  in  that  part  to  whicii 
sir  John  Friend  is  intituled,  among  mauy  other 
things  there  delivered  as  his  private  opinion, 
(for  which  we  must  leave  him  to  Goil)  there 
are  niinglcil  some  things  conccining  the 
church  of  England,  to  the  great  dishonour  and 
reproncii  of  it.  That  venerable  name  is,  hy 
the  author  of  that  paper,  appropriated  to  tiiat 
part  of  our  church  which  hath  srparaliMl  its(*lf 
Irom  the  body ;  and  more  particularly,  to  a 
faotion  of  them  who  are  so  furiously  bent 
upon  the  restoring  of  the  late  kiu!;-,  -that 
they  seem  not  to  regard  by  what  means 
it  is  to  be  elfccted.  We  have  a  sad  insUmce 
of  it  in  this  very  person,  who  (as  was  deposed 
at  his  trial)  was  privy  to  the  horrid  desi^fo  of 
Assat«ination,  aud   yit  neither  discovered  it. 


same  violent  faction  ;  being  assured  (as  we  arc 
by  very  good  inlbrmation),  that  both  he  and 
sir  John  Friend  had  withdrawn  themselves 
from  our  pidilic  assemblies  some  time  belbrs 
their  death :  w  hich  makes  tis  the  less  wonder 
to  find  in  both  their  papers  so  light,  and  even 
favourable,  a  mention  of  that  most  inhumau 
design  of  assassuiatin^  his  sacred  majesty :  and 
especially  in  that  of  sir  William  Perkins  who, 
though  be  was  publicly  convicted  of  his  having 
engaged  so  many  in  that  horrible  sin,  yet  after 
all,  could  think  to  clear  himself  of  it  with  this 
wretehed  excuse :  <  It  is  true  f  was  privy  to 
'  the  design  upon  the  prince,  but  was  not  to 
'  act  in  it.'  BlesMd  lie  God,  there  never  vu 
any  of  our  church,  that  in  any  change  of 
times  could  have  this  laid  to  his  charge,  that 
he  was  so  much  as  privy  to  a  denga  m  assas- 
sination. 

Lastly ;  For  those  clergymen  that  took  apra 
them  to  absolve  these  criminals  at  the  place  of 
execution,  by  laying  all  three  tog«?tber  their 
hands  upon  their  heads,  and  publicly  pro* 
nouncing  a  form  of  absolution ;  as  their  man- 
ner of  doing  this  was  extremely  insolent,  and 
without  preceilent,  either  in  our  church,  or  any 
other  that  we  know  of ;  so  the  thing  itself  was 
altogether  irre^^ular. 

The  rubric  in  our  office  of  the  Visitation  of 
the  iSick,  from  whence  they  look  the  words 
they  then  used,  and  upon  which,  if  ujxin  any 
thing  in  our  Liturgy,  they  must  ground  this 
their  proceeding,  gave  them  no  authority  uor 
no  pretence  for  the  absolving  these  persons; 
nay,  as  they  managed  the  aHair,  they  acted  in 
tiiis  absolution  far  otherwise  than  is  there  di- 
rected. 

That  rubric  is  concerning  sick  persons ;  and 
it  is  there  required,  **  first,  That  the  sick  |ierson 
shall  be  moved  to  make  a  s|>ecial  confession  of 
his  sins,  if  he  feel  his  conscience  troubled  with 
any  weighty  matter:  and  then,  alW  such  con- 
fession, the  priest  shall  absolve  him,  if  he  hum- 
bly and  heartily  desire  it.*'  Hut  here  they 
absolved,  and  that  publicly,  persons condemneil 
by  law  for  cA'ccrable  crimes,  without  so  much 
as  once  moving  them  at  that  time  to  make  a 


nor  shewed  any  dislike  of  it,  but  as  he  was    special  confession  of  their  sins,  at  least  for  those 


afiraid  it  might  ruin  king  James  and  his  afiairs ; 
and  was  ready  also,  together  with  others  of 
the  same  Christian  principle  (as  the  author  of 
his  paper  is  bold  to  call  it)  to  act  in  conjunc- 

*  "  This  Mr.  Collier  was  a  very  learned 
and  ingenious  man,  audthe  author  of  the  (ireat 
Historical  Dictionary,  in  folio ;  of  the  Eccle- 
siastical History,  jn  folio ;  of  the  View  of  the 
Stage;  and  aumy  other  pieces,''— Former 
Edition. 


sins  for  which  they  were  condemned.  And  oil 
the  other  side,  here  were  ])ersons  absolved  that 
did  not  humbly  desire  absolution,  as  feeling 
any  such  weighty  matter  to  trouble  their  con- 
science ;  but  on  tiie  contrary,  in  sir  John 
Friend's  Paper  it  is  declared,  that  he  had  i 
great  deal  of  satisfaction  in  suflering  for  thai 
cause,  whicli  he  firmly  believed  to  be  the  cause 
of  God,  and  true  relision. 

If  these  ministers  knew  not  tlie  stato  of  these 
men's  souls,  before  they  gave  them  absolatioa 


r  absolving  Sir  n\  Parkt/ns  and  Sir  J.  Freind,    A.  D.  1696. 


E414 


nifest  tvro  of  them,  Mr.  Snatt  and 
did  not  as  to  sir  William  Perkins 
is;  since  declared  that  they  had  not 
I  sir  William  till  they  wore  at  the 
eciition),  how  could  they,  without 
an<:gres8ion  of  the  church's  order, 
the  prophane  abuse  of  the  power 
h  left  with  his  ministers,  absolve 
all  their  sins? 

were  acquainted  with  these  men's 
declared  in  their  papers,  then  they 
ipon  them,  either  as  hardened  impe- 
ls martyrs. 

so  charitable  to  bcliere  that  they 
absolve  them  under  the  former  no- 
at  had  been,  in  effect,  sealing  them 
:>n  :  But  if  they  held  these  men  to 
c,  then  their  absolvin^if  them  in  that 
IS  a  justification  of  those  grievous 
which  these  men  suffered,  and  an 
It  to  the  laws  both  of  church  and 

e  consideration  of  these  things,  and 
'.:\^  of  riprht  to  cur  church,  which 
wise    suffer,  among   such  as  are 

0  our  constitution,  by  the  evil  prln- 
practires  bi>th  of  the  aforesaid  cri- 
J  the  three  clergymen  that  assisted 

all  pretended  to  lie  members  of  the 
Eci4(land  ;  we  do  declare,  That  we 

1  detest  all  such  principles  and  prac  • 
ng  upon  them  as  hit^nly  schismati- 
iT:ous,dan<;crous  both  to  tho  church 
md  contrary  to  the  true  doctrine  and 
ic  christian  religion.  And  we  also 
pension  to  \tarn  and  exhort  ail  the 
omitted  to  our  charge,  to  beware  of 
:ers,  and  to  avoid  them ;  lest  (as  the 

Peter  sueaks)  *  they  be  led  away 
■ror  of  the  wicked,'  and  fall  from 
ist  adherence  tu  the  principles  of  the 
:li  of  England,  as  it  was  established 
sed  reformation  of  religion,  and  as  by 
Eci*;il  providence  it  continues  to  this 
il  lOtb,  1696. 


iDtuar. 

Sy.  Eliens. 

r. 

Gil.  Hereford. 

Jon. 

Jo.  Norwich. 

esme. 

Ric.  Peterb. 

rliester. 

Ed.  Gloacester. 

.  and  Lich. 

Rob.  Chioherter. 

iffen. 

£.  Asapb. 

Defetice  of  the  Absolution  given  to 
lliaro  Perkins,  occasioned  by  a  Paper, 
id,  «'  A  Declaration  of  the  Archbi- 
ind  Bishops,"  &c. 

fortniglit  since  I  published  the  fore- 
fence  of  the  Absolution  given  to  sir 
Perkins.  It  is  true  the  vindication 
-awn  out  into  any  great  length,  nei- 
imagine  it  iicce»5ary.  That  which 
was  in  mjr  opinion  sufficient  to  sa- 
candid  and  impartial  reader.  If  the 
was  any  where  over -contracted,  it 


was  in  that  part  which  mentions  imposition  of 
hands.  Here  I  confess  the  proofs  were  hut  ge- 
nerally named,  and  the  force  and  improvement 
of  them  \ei\  \\i  some  measure  to  collection. 
My  desire  to  undeceive  the  people,  and  to  si- 
lence their  clamours  as  soon  as  might  be,  the 
disadvantage  of  my  retirement,  and  the  plain- 
ness of  the  case,  were  the  reasons  why  I  was 
no  fuller  u|)on  that  head :  But  now  I  have  a 
fresh  opportunity  to  treat  the  point  more  at 
larj^e,  tne  late  Declaration,  &c.  of  the  bishops 
having  given  me  a  just  occasion  to  resume  the 
argument.  1  must  own  the  perusal  of  this 
Declaration  surprized  me  very  much.  I  could 
not  imagine  these  reverend  prelutes  would 
have  published  se  unsu|iported  a  censure;  nor 
cngai^ed  their  character  so  far  in  this  affair,  f 
am  almost  amazed  an  iimoceut  conduct  should 
be  thus  misconstrued,  and  the  charj^^c  run  so 
high  without  proof,  or  provocation  to  defend  it. 

The  Declaration  begins  with  some  remarks 
upon  the  Papers  of  sir  William  Perkins  and  sir 
John  Friena  :  These  exceptions  I  shall  pass 
over,  as  being  unconcerned  in  their  defence.  In- 
deed, my  resolution  upon  ihc  whole  is,  to  en- 
gage no  farther  than  the  justification  of  my 
own  conduct ;  as  bciu;;  unwilling  to  have  any 
unnecessary  disputes  with  these  it^vercnd  pre- 
lates. 

The  pretended  irregularity  objected  against 
Mr.  Snatt,  Mr.  Cook,  and  myself,  relates 
wholly  to  the  Absolution  given  to  thoso  two 
gentlemen  at  the  phcc  of  execution.  The 
performance  of  this  office,  the  bishops  are 
pleased  to  say, "  was  extremely  insolent  and 
without  precedent  in  the  manner,  and  altoge- 
ther irrcj'iilar  in  the  thing." 

I  shall  endeavour  tu  justify  my  practice 
against  every  point  of  the  accusation,  and  prove 
the  Absolution  defensible,  both  with  respect  to 
manner  and  form,  to  persons  and  occasion. 
And,  1st  with  respect  to  the  maimer.  And 
here  I  sliall  make  good  three  things. 

1st,  That  giving  Absolution  with  imposition 
of  hands  was  the  general  practice  of  the  an- 
cient church. 

Sdly,  That  the  performance  of  this  cere- 
mony was  allowed  to  priests,  and  sometimes 
to  deacons,  as  well  as  bishops. 

3dly,  That  imposition  of  hands  is  enjoined 
the  araisting  Presojrters  by  our  own  church  ia 
the  office  of  ordination,  and  by  parity  of  reasoa 
is  fairly  applicable  to  the  present  case. 

First,  That  giving  of  Absolution  with  impo- 
sition of  hands,  was  the  general  practice  of  the 
ancient  church. 

To  begin  with  Tertullian,  who  lived  in  the 
beinuning  of  the  third  century.    This  father 


understands  that  place  of  the  apostle,  **  l^ay 
hands  suddenly  on  no  man,'*  (1  Tim.  v.  22.)  of 
the  offices  of  penance  and  abdolution.  (L.  de 
Pildic.  cap.  18.)  And  fcap.  'i^i.)  he  alludes  to 
the  same  custom  in  tliese  words,  "  Carnem 
lanaitam  prosterncns,"  as  AlbaspiniuusobserveSf 
(Albasp.  Obser.  I.  X  p.  97.  not.  in  Tertull.  p. 
181).  Indeed  the  de^iign  of  his  book,  De  Pu* 
didtb.  plainly  determines  the  author. to  this 


415]  WILLIAM  IIL  Proceedings  against  Three  Nonjuring  Clergymen^  [416 

sense.  Here  he  treats  proFesseclly  of  those  who  testiinunies  ruD  much  in  the  words  of  tbc 
were  to  be  finall;^  excluded  froiu  church  com-  i  former,  I  shall  wave  the  recital. 
uiunioD,  and  denied  the  discipline  of  penance.  |  This  father,  in  his  18lh  Ep.  tclts  his  priesU 
He  disputes  nothing  about  Coofirmatiun,  or  i  and  deacons,  Tiiat ''  they  need  nut  expect  liis 
Orders ;  ko  that  it  is  evident  the  imposition  of '  coming  hume,  to  reconcile  the  lapsed  ;  but  it' 
hands,  mentioned  bv  him,  must  relate  to  peui-  ;  anv  ol  the  laity  were  in  danger  of  death,  a 
tential  absolution.    '  |  priest,  and  if  a  priest  could  not  be  had,  and  ibe 

St.  Cyprian's  council  of  Carthage  is  express  |  necessity  was  extreme,  a  deacon  was  a  suili- 
to  the  same  purpose.  Here  Ncmesianus,  '  cient  authority  to  hear  their  confession,  to  lay 
Crescens,  Secuudinus,  andVicentius,bishoiMof !  hands  upon  them,  andjc<msign  them  to  tb'e 
Thubuni,  Cirta,  Carpi,  and  TiberiH,  all  of  tliem  ^ 
ag^ree,  that  the  church's  peace,  and  the  expe- 
dients of  reconciliation,  were  to  puss  through 
this  f<irm  of  imposition  nf  hands. 

The  80th  canon  of  the  fourth  Council  of 
Carthage  enjoins,  That  during  the  whole  time 
of  abstinence,  (1  suppose  either  stated  or  occa- 
sional) the  priests  (Sacerdotes)  should  lay  their 
hands  upon  the  (lenitcnts. 

The  11th  Canon  of  the  third  conncil  of 
Toledo,  in  the  direction!  for  the  methods  of  |ic- 
nance,  is  positive  for  the  frequent  use  of  this 
ceremony ;  ^^  hich  made  Albaspinseus  conclude. 
That  absolution- prayers  and  imposition  of 
bands  were  repeated  and  customary  in  such 
cases  (Atbasp.  ObserF.  1.  S.  p.  86.) 

To  conchide  this  point.  The  learned  Dr. 
Hammond,  in  his  Annotations  on  the  text 
above-mentioned,  (1  Tim.  r.  22j  refers  the 
layini;^  on  hands  to  ubsuhition.  *'  The  Aftostle" 
says  he,  **  exhorts  Timothy  that  he  should  not 
make  too  much  haste  tr)  receive  those  who 
were  under  censures,  to  alisolution.  For  that 
was  the  thing  which  would  most  probably 
make  him  partaker,  or  guilty  of  their  sins, 
which  the  censures  were  designed  to  reform  in 
them  ;  but  would  not  do  so,  if,  before  they  had 
approved  their  repentance  and  reformation, 
they  wtflTc  received  to  the  peace  of  the  church.'' 
This  learned  divine  cites  a  great  man\'  autho- 
rities in  (letcnce  of  his  opinion,  which  tlie  reader 
may  consult  at  his  leisure. 


peace  of  the  church."  The  same  advice,  upon 
the  same  occasion,  is  repeated,  £p.  19.  p.  41. 
From  whence  it  is  evident,  that  impositi^iHi  nf 
hands  was  no  resertetl  incommunicable  priil- 
lege  of  the  bishops,  but  delegated  as  low  as  the 
deacons  upon  emergent  necessity,  and  visible 
approaches  oi  death.  These  authorities  of  St. 
Cyprian  are  all  double  charged,  and  prove  two 
points  at  once.  They  prove,  that  inipositioa 
of  hands  was  a  genera]  appendix  to  absolution, 
and  that  it  was  within  the  commission  of  tb« 
priest  to  officiate  in  the  ceremony.  To  pro- 
ceed: 

In  the  13th  canon  of  the  first  council  of  Nice, 
the  Viaticum  is  ordered  to  be  given  to  thow: 
who  are  at  the  point  of  death.  And  by  the 
Viaticum,  Albaspinsus  proves,  that  absolntioa 
with  imposition  of  bands  was  meant,  and  uoC 
the  Eucharist :  and  that  an  absolution  miebt 
be  given  by  those  who  were  no  more  t&a 
priests.  (Albasp.  Not.  in  quesdam  Can.  p.  1S1.) 
1  could  amass  a  great  many  more  testimoiiirt, 
were  it  necessary ;  but  I  con(*rire,  what  has 
been  said  already,  may  be  sufficient  to  vioili- 
cate  my  practice  from  the  charge  of  encroach- 
ment and  singularity. 

Thirdly,  Imposition  of  hands  is  enjoined  the 
assisting  Presbyters  by  our  own  church  iu  the 
ofKce  of  Ordination,  and  by  parity  of  reason  i» 
fairly  applicable  to  the  present  case. 

ft  our  church  had  thought  the  imposition  of 

hands  too  ranch  for  the  character  of  priests, 

ISecondh',  The  pronouncing  the  absoliuiou    she  would  not  have  prescribed  them  a  share  in 


with  imposition  of  hands,  is  no  encroach inent 
upon  the  i  piscopal  authoritVt  but  pbiiilv  al- 
lowed to  the  order  of  Pi-esbyters. 

This  point  1  shall  make  good  from  stjvcrul 
plain  tcsiiuionies  of  St.  Cyprian,  whose  au- 
thority must  be  granted  to  be  unexceptionable, 
both  with  respect  to  the  antiquity  and  character 


it  at  her  ordinations.  But  since  bhe  has  allowed 
them  this  liberty  in  the  most  solemn  exercbei 
of  authority,  why  should  she  deny  it  in  inferior 
cases  I*  To  assist  in  the  conveyance  of  an  au- 
thority seems  a  greater  mark  of  power,  thin 
the  executing  any  branch  of  the  authority  con- 
veyed.    If  the  Presbyters  are  permitted  to  lay 


of  the  person.  Indeeil  it  is  to  this  father  that  '  iheiihandsunontheclergy,  why  not,  a/iwiori^ 
we  are  principally  obliged  for  the  remains  we  >  upon  the  Laity  ^  St.  Hierom  affirms  plainly 
have  oi  the  discipline  and  government  of  the  (Kp.  ad  ]<>agr.)  that  the  powers  of  a  priest 
primitive  church.  '  comprehend  those  uf  a  bishop,  excepting  m  the 

Now  St.  Cyprian  is  categorical  in  the  case,  !  point  of  Ordination.  Our  church  has  never 
and  affirms  roundly,  that  '*  in  lesser  crimes  ,  condemned  this  father's  assertion  ;  why  then 
than  thosttofthe  lapsed,  tlie  penitent  could  not  ,  may  not  the  6rst  absolve  with  imposition  of 
be  admitted  to  full  communion,  unless  the  hi-  |  hands  no  less  than  the  other? 
shops  and  clergy  had  laid  their  hands  upon  [  But  there  is  no  apponitmeut  of  this  ceremony 
him."  '  Nisi   prius  illi  ub  Kpiscopo  et  Clero  :  in  the  Absolution  Kubiick.    True:    neither  it 

there  any  prohibition.  The  Rubrick  is  per- 
ieclly  silent  Inith  as  to  posture  and  gesture,  and 
yet  some  circumstances  of  this  nature  must  of 
necessity  be  used. 

Now  since  our  church  allows  the  priest  im- 
position of  hands  in  another  case,  and  does  oot 
Torbid  it  iu  this,  is  it  any  harm  if  our  liberty 


*  manus  fuerit  imposita.'  (Hp.  17,  p.  ^9. 
Ed.  Oxon.)  Now  where  the  bishops  and 
clercT)  are  thus  contradistinguished,  the  order 
of  prie-.ts  must  be  comprehended  in  th<i  lat- 
ter, in  the  mo.«it  restrained  construction.  J 
rni^ht  produce  his  15th  and  ICth  Ep.  (p.  34. 
37  )  for  the  same  purpose  ;  but  l)ecauso  these  ■ 


417]    for  ahsoivlng  Sir  IP'.  Parlc^ni  and  Sir  J.  Freind.    A*  D.  1696. 

moves  apward,  and  detenninen  it«?elf  by  ge- 
neral usage  and  primitive  practice  ?  Our  church 
has  always  professed  a  re^^ard  tor  the  patterns 
of  antinnity  :  we  cannot  ^o  her  a  greater  ho- 
nour, tbaa  by  conformin;;^  to  the  sotenmitieA  of 
the  purest  ages,  than  by^making  the  dLsciphne 
of  fathers  and  couociUthe  ru*e  of  otir  br^!i:i- 
fiour:*  especially  iiheu  we  are  not  bound  np 
by  national  law  and  particular  constitution. 
Tims  much  for  the  manner. 

I  oome  now  to  justify  the  thing  and  the  oc- 
casion. 

It  is  objected  bjr  these  reverend  prelates,  that 
the  three  *^  assisting  clergymen  ]>i*on(>uiK'c>d  a 
form  of  absolution,"  cSec.  With  <iubniission,  1 
ho|ie  a  form  is  better  tlian  no  tbrin ;  rspcrially 
when  it  was  a  form  rubrically  ap|v»intcd  ;  a 
fiirm  drawn  up  by  the  public  autliority  of  the 
rhurch,  confirmed  by  <.-anon,  and  act  of  par- 
liament ;  a  form  the  most  pertinent  and  prfiper 
to  the  occasion  of  any  in  the  Liturgv.  1  am 
sorry  to  bee  the  solemn  oiHces  of  religroii  men- 
tioned with  such  seeming  coidn(?ss,  uuil  ahate- 
ments  of  expression.  V\'ereit  not  that  1  am 
na willing  to  give  these  reverend  prelates  the 
trouble  of  a  question,  1  would  gladly  under- 
stand, what  ibrm  they  could  have  'fixed  on 
more  suitable  to  so  sad  an  occasion  ?  I  am  sure 
that  form  of  absolution  is  the  most  solemn  and 
authoritative  of  any  in  the  Service- book.  Now 
if  ever  the  chnrch 'exerts  herself,  oupfht  it  not 
to  be  in  cases  of  the  greatest  necessity?  Can 
ber  most  comfortable  administrations,  and  the 
bigbcNSt  acts  of  her  anthority,  be  better  em- 
ployed than  for  the  relief  of  dying  {icrsons, 
who  are  combating  the  king  of  terrors,  and 
Stand  just  upon  the  brink  of  eternity  ?  IJpon 
the  whole,  1  am  surprized  they  should  say  the 
"  Rubrick  gave  us  no  pretence  of  authority  to 
absolve  those  persons."  Does  not  the  Rubrick 
eive  the  priest  a  power  to  nronoimce  the  abso- 
lation,  and  to  judge  of  the  condition  of  the 
penitent  ?  This  cannot  be  denied.  And  why 
thai  had  we  no  pretence  of  authority  ?  *'  De- 
ctuse  the  Rubrick  relates  to  the  sick."  To 
tbis  I  answer  ;  had  the  church  lell  us  a  stated 
office  for  persons  condemned,  and  we  had 
refused  to  make  use  of  it,  there  had  been  some 
force  in  the  objection ;  but  as  the  matter  standn, 
I  humbly  conceive  there  is  none  at  all.  The 
church,  without  question,  would  have  con- 
<)emne<l  persons  taken  care  of,  as  well  as  others, 
and  their  spiritual  necessities  supplie<l.  And  if 
so,  is  it  not  more  respect  to  the  church  to  ofii- 
riate  in  forms  of  her  own  setting  forth,  than  in 
private  and  unauthorizeil  compositions :'  And  if 
the  function  was  to  be  nerformed  in  the  public 
devotions,  I  desire  to  Know  what  part  of  them 
could  have  been  more  proper  than  tlic  Office  of 

*  **  Bishop  Sanderson,  that  eminent  casuist, 
about  a  day  before  his  death,  desired  his  chap- 
lain, Mr.  Pullen,  to  give  him  altsolution  ;  and 
at  bis  performing  that  office,  he  pulled  off  his 
cap,  that  Mr.  Pullen  might  lay  his  hand  u|>on 
his  bare  head."  Walton's  Life  of  bishop  San- 
drrson,  p.  91t    Former  £ditJ0B. 

VOL.  MIL 


[418 

Visitation  of  the  Sick?  If  we  consider  tlie 
design  of  the  church,  and  especial] v  the 
Rubrick  before  the  absolution,  we  shull  find 
that  she  intended  this  office  to  prepare  jteople 
for  the  other  world,  and  considcrtHi  them  raiher 
as  dying,  than  likely  to  recover.  This  appears 
evidently  from  the*  questions  and  advict^  or- 
dered to' be  asked  and  given ;  so  that  wherever 
death  is  in  view,  the  office  cannot  be  ur.sea- 
sonable,  nor  misapplied.  And  can  any  per- 
sons be  more  certani  of  death  than  those  A>ho 
arc  publicly  condemned,  who  lie  under  fatal 
senlence,  and  irrcfsistilde  po\vcr:  who  have 
the  force  of  the  county  to  dispatch  them,  and 
are  just  ready  to  receive  the  stmke?  As  to  the 
previuns  qircstions,  they  were  put  und  an- 
suertsl,  tlic  absolution  was  dc^i^t^l,  and  the 
confession  rcceivetl  in  prison  ;  afd  in  shnrt,  the 
church's  directions  wi  le  ob-scrvci'  iu  «'\ery  par- 
ticular. But  we  *'  <iid  not  move  iht^iu  to* make 
a  special  confession  of  tliiir  sins  at  that  time." 
With  submission,  whciv  lies  tlio  nerossity,  or 
even  the  c.vpwiiencv  of  si.ch  a  practice  ?  Does 
our  church  oblige  dying  persons  to  public  con- 
fession i*  Does  she  require  theiu  to  tii row  open 
the  retirements  of  conscience,  riud  tV.e  secrets 
of  private  life,  to  the  \  iew  \)\'  the  world  ?  I  am 
at  a  loss  to  understand  why  we  should  be 
charged  with  omissions  on  such  accounts  as 
these. 

The  Declaration,  &c.  proceeds  with  great 
vehemence,  and  charges  us  with  <*  manifest 
transgression  of  the  cnurch's  order,  and  pro- 
phane  abuse  of  the  authority  of  Christ." 
These  are  hanl  words,  but  I  hope  altogether 
undeserved.  It  is  true,  they  instance  only  in 
Mr.  Snatt,  and  Mr.  Cook,  biit  1  must  own  the 
objection  lies  equally  against  myself;  for  I 
never  saw  sir  John  Freind  during  bis  whola 
imprisonment.  But  in  assisting  at  his  abso- 
lution, so  fur  as  laying  on  my  hand  amounts  to, 
1  did  no  more  than  what  is  easily  defensible.  I 
grant  I  had  no  immediate  and  particular  know-  . 
iedge  of  his  condition,  neither  was  it  neces- 
saiy.  Our  church,  in  conformity  to  antiquity, 
has  made  the  priest  the  proper  judge  of  the 
qualifications  of  the  penitents,  and  supposes 
him  fit  to  be  trusted,  and  believed  in  that  affair. 
Now  Mr.  Snatt  ancl  Mr.  Cook  (upon  whose 
judgment  and  integrity  I  can  very  well  depend) 
held  given  me  a  general  account  of  sir  John's 
pious  dis))Osition,  and  that  he  was  well  pre- 
pared tor  all  the  assistance  the  church  could 
give  him.  The  having  so  good  iuformatiou 
from  first  hands,  from  jiroprr  and  authorized 
judges,  is  sufiicicnt  to  warrant  my  part  in  sir 
.lohn*s  absolution.  This,  bt-sitles  what  has 
been  saiil,  I  shall  make  good  from  two  parallel 
instances. 

First,  It  is  well  known  that  bishops  of  the 
ancient  church  used  to  give  a  sort  oi'  certifi- 
cates to  those  that  travelled  ;  l»y  virtue  of 
which,  they  were  not  only  entertained  and  ac- 
commodated, but  admitted  to  full  commimion 
all  over  Christendom.  (Albasp.  Not.  in  Con. 
p.  115.)  From  whence  we  may  observe,  that 
personal  acquaintance,  and  |«rticular  exami- 

3£ 


419]  S  WILLIAM  III.  Ptoceedings  against  Three  Nonjuring  Cletg^meMf  [4S0 

nation,  are  not  necessary  to  ffire  a  rigbt  to  the 
privileges  of  Christianity.  Where  the  creden- 
tials are  good,  the  church  is  to  enquire  no  far- 
ther ;  she  is  to  presume  upon  the  probity  of 
the  person  recbmniended,  and  to  treat  him  ac- 
cordingly. 

Secondly,  Our  o\Tn  church,  in  some  of  the 
highest  acfministrations,  acts  upon  principles 
ortrust  and  confidence.  She  conveys  her  pri- 
vileges, and  exercises  her  authority,  without 
always  insisting  on  personal  inquiry  and  imme- 
diate proof.  At  the  giving  of  holy  orders, 
neither  the  bishops,  nor  the  assisting  pres- 
byters, are  always  peraonally  acquainted  with 
those  they  ordain.  The  prudence  of  our 
church  docs  not  tic  us  up  to  such  unreasonable 
rigours.  Both  practice,  and  the  onlinatiou 
form,  suppose  the  contrary.  And  why  tlicn 
may  not  the  priest  assist  in  absolution  as  well 
as  orders,  without  any  previous  ex|)criment  of 
the  state  of  the  person  ?  Why  may  not  he  in 
the  first,  as  well  as  the  latter  branch  of  his 
authority,  act  upon  the  warrant  of  unexcep- 
tionaMe  testimony  P  By  all  jiarity  of  reason 
and  force  of  couse(|uenco,  the  practice  is  no  less 
defensible  in  one  c^ise,  than  in  the  other. 

If  it  is  objected,  that  the  joining  of  all  the 
three  clergymen  in  the  imposition  of  hands 
is  unprece<lentcd,  and  exceptionable  ;  to  tliis  1 
answer,  that  if  the  action  was  lawful,  singly 
performed,  I  «»nnot  imagine  how  a  concur- 
rence of  more  authorised  {lersons  should  make 
it  otherwise  ?  Is  there  any  hami  in  union  and 
solemnity  ?  Or  can  rclifri^n  be  treated  with  too 
many  circumstances  of  advantage  ?  What 
Canon  is  there  that  btiuts  the  assistance  to  one, 
and  forbids  a  plurality  of  persons  ?  Timothy 
had  the  **  hands  of  the  Presbytery  laid  upon 
him,"  (1  Tim.  iv.  14.)  which  without  doubt, 
exceeded  the  number  now  objected.  Our 
church,  at  her  ordination,  allo^vs  this  cere- 
mony to  all  tlio  Prcs!>\ ters  presrnt.  And  in 
the  very  rase  of  absciliition,  the  Penitent  was 
to  receive  ini{M)sition  of  hands  from  the  bishop 
and  oleriry  ;  as  iiiiftears  from  the  testimony  ot 
8t.  Cy  priiin  above- mentioned.     Farther, 

Thi'sc  Iteverend  Prelates  argue,  that  '*  we 
must  either  luck  nn  the  persons  absolved  as 
Jmpeuiients,  oi  Martyrs;"  and  they  make 
their  advaului^c  ^i'  eAch  branch  of  the  suppo- 
sition. ]>iir,  n  ii'i  .submission,  1  see  no  neces- 
sity of  jr:".t'tii»'.»:  til.?  disjunction.  For  there 
may  be  atiiiul  way  m'  considcrintrtlic  niaitn*. 
'1*0  speak  to  io\'  own  case  :  1  absolved  sir  WiU 
liani  Pt-rkiiis  nfi  a  Penitent ;  and  i  snpiiose 
every  buily  uiust  lie  alisolved  utuler  that  consi- 
deration :  f(»r  ubsolution  siip|»oiies  both  sin  and 
repentanv'C,  in  I'le  noti«it)  ui'it.  Hut  as  for  thi3 
tnaUcr  of  sir  Wiillain's  rppentance,  tiiat  is 
iiewi*  l.kcly  t(i  !)o  knuttn  from  nit*.  Neither 
am  X  in  xUr*  K-uht  aii'ectetl  uitu  ibc  liishops'  in- 
fi'jfnui.'.  Tor  si:|iposh)g  I  iviti^vd  a  dcirotivc 
ccinfession,  am  i  uccouiitable  tor  that  i  How- 
ever, 1  neither  do  nor  um  obliged  to  declare 
uiy  opinion  iu  this  matter.  But  thus  tar  J  am 
]iosaive,  that  there  %vas  nothing  confessed  to 
me,  which  the  cauou  obligcii  me  to  rereul :  and 


what  the  canon  does  not  eqjoin  rae  to  diaooreri 
it  enjoins  me  not  to  discover.  (Can.  115. 
Vid.  first  defence.)  And  so  there  is  an  end  of 
this  dispute. 

I  hope  by  this  time  it  may  appear,  tliat  I  an 
neither  untumished  with  reason,  or  preMdealv 
to  justify  what  1  ha?e  done.  However,  I 
shall  give  one  late  instance  for  the  whole  cue, 
and  so  conclude. 

At  the  execution  of  Mr.  Ashton,  Jan.  1690^ 
absolution  was  given  him  in  the  nme  ftni, 
with  imposition  of  hands,  at  the  tame  plm^ 
and  upon  the  same  occasion ;  and  a  jiiilifvifl|f 
Paper  lefl  by  the  person  thai  raffered.  Kov 
at  that  time  there  were  no  ezceptioM  mida 
either  to  manner  or  tliin^f .  •  The  performanei 
was  80  far  from  displeasing,  that  the  shcrif 
gave  his  thanks  for  the  soleinnity  of  the  idkit. 
There  were  no  comphunts  either  at  Lambeth, 
or  Whitehall,  no  public  invectives,  no  sdrag 
of  body  and  goods ;  in  short,  no  rigns  fd  A 
least  dissatisfaction.  And  who  could  imagktti 
that  the  hare  repeating  of  an  actinn  smli 
raise  such  a  storm  npon  us  now,  which  WH 
so  perfectly  inoffensive  before  P  To  puoidiia 
this  manner,  without  warning  or  pif«edailt 
without  canon  or  law,  is  (with  subminN) 
somewhat  unintelligible. 

And  now  having  defended  myself,  I  iM 
reply  notliing  to  all  the  unkind  reflertJMii^ 
and  tragical  language  of  the  Declaration.  It 
is  probably  within  my  power  to  turn  aomeif 
these  reverend  prelates  artillery  upon  tbok 
But  my  regard  to  their  character,  and  incli- 
nation not  to  displease,  makes  me  wave  As 
advantage.  However,  tlieir  extraordinary  nafs 
has  done  me  the  honour  of  an  opportunity  is 
forgive  tliem,  which  I  thank  God  I  heartily  4i. 
April  21,  1696.  J.C. 

P.  S.  I  have  just  now  received  a  sbeel, 
called  "  An  Answer  to  my  Defence,"  &c.  Al 
for  that  little  which  is  material  in  this  Paper, 
it  is  already  satisfied,  and  I  do  not  love  needk« 
re)ietitions.  And  therefore  to  begin  and  end  ia 
a  word  with  this  answerer;  If  he  has  any 
thing  remarkable,  it  is,  in  my  opinion,  bis  ul 
language  ;  and  that  I  can  both  pity  and  de- 
spise.    April  35. 

There  were  several  pamphlets  published  on 
this  occasion,  against  and  in  defence  of  thil 
proceeding,  but  these  are  sufficient  to  shew  the 
nature  of  the  controversy. 

In  July  fuUn\vin<r,  Mr.  Cook  and  BIr.  Snitt 
wtfio  broil !jrht  to  the  court  of  King*s-beiich| 
and  the  Procccdini>s  against  them  are  tbitt 
hricny  related  in  CoiuberlKich^s  Reports,  p.  383, 

Sitting  iu  Middlesex,  coram  Holt,  chief  justice, 
July  2, 1096. 

U£XTc;i.  SiiADRAru  Cook  et  Wnx.  SnuXtf 

Clcricot, 

Indictment  for  absolving  Traiton. 

IJpcn  an  Indictment  setting  forth,  Thatil 
John  Freind  and  air  Wiliiam  Fetkioi  MV 


Ai^ 

Pro  Rfg^, 

8tf  Witimm  Willifttns, 

in?nil, 

(Jowper, 

Mouma^iK 

Hit  VrA,  Winniijgtou, 
Bfr.  Brfwlenck, 
Mr,  Pliipps, 
Mr.  Mom[>e%son. 

IJ  J!^r  aiiolviHg  Sir  fV,  Parkj/ns  and  Sir  J\  Freind.    A.  D*  169^ 

Ifr  and  aiiotit  to  be  eieciile<1  at  Tyhiirti, 
traasoOf  ^c.  the  tleleiidsitits  conj»piring 
iintetidifig  (fts  much  A'a  in  them  Uv)  to  juni- 
or mi  [east  to  exti  ivuate  tind  l(^!«€n  tlieir 
•ail  I*'  s  invjt'siv^B  fcul>ie<.is  i*> 

Ibat  til  latbcr  fts*  martvi^  Ihiui 

m,  ami  lo  incUe  the  kirig^^s  suhjects  in 
the  hke  lrc:isoD«,  they  «lnl  tulie  upon 
to  iib»4»|\  e«  aiifl  dill  pronoimcc  a  form  of 
ylifm  ofthetn  the  SitHl  str  William  Perkins 
■ir  Joba  Fmnd,  without  any  r<!'i>enlancet 
\y  ligiii  of  repentance  by  Uiem  g-iven, 

provedt  thai  the  defeDtfanls  asked  ttie 
la  the  several  quc'stions  directed  by  the 
Bafaricdc  id  the  office  ol'  Visitation  of  ttie  '8ick» 
W4  Mr,  Cook  iironoQuced  the  words  of  absoht- 
IJB  «»f  one  of  tkie  traitors  ;  Mr.  Snails  and  one 
^^C^ltter,  (nbo  is  not  now  indicted)  laying^ 
^^r  bAods  upon  his  head,  and  after  (he  words 
fvonouncedf  iaytng*  Ameo ;  and  Mr,  Col  her 
ouneed  the' words  as  to  the  other  traitor, 
>  laying^on  their  bands,  i^c.  It  was 
ihe  defendanis  were  e*rnegtly  re- 
ity  sir  VVilliam  l*c.Tkins  ami  sir  John 
If  to  assist  them  at  the  place  of  execution ; 
therefore  tJit' jury  were  directed  to  acquit 
of  ronspirar;y  (thongh  the  attorney*ge- 
said  the  indictment  wa9  not  for  conspi- 
,  acd  ^  cotjb  pi  rallies^  wai  put  adjectively 
to  introduce  the  other  matter,  and  ihtre- 
was  not  material) :  and  Holt  directed  the 
,  that  this  proceeding  of  the  defendants 
certainly  scandalous  and  irregular  ;  for  if 
cniiiinals  hud  before  made  a  prirate  con- 
lotit  ^*^  uUolutJOo  shouhl  have  been  private 
bkcwbe  ;  but  if  they  would  give  a  public  ab* 
!D>  they  on^ht  to  have  required  as  ]»uHUc 
and  particularly  with  res^pfot  to 
crimes  for  which  they  were  atiaiuteil, 
beta^  so  notoriouji,  Sec.     However,  if  the  jury 


[4Sf 


•ere  of  opininn  ^ihey'  did  it  only  i^noi-autly, 
md  by  niistakei  (in  which  ease  it  is  properly 
COfmuiiahle  ui  the  spiritual  cnurl>  then  to  acquit 
fbetn  ;  hut  if  they  did  it  with  a  desisru  to 
iffrcm  the  trovernuient  and  to  idify  the  justice 
«l  '  I,  then  to  tiud  thero  guilty  :  hut  at 

tbc  c>f  the  defendants  counsel,  it  waa 

directed  to  be  found  specially,  that  Stiatt  laid 
llii  ImiKi  on  the  head,  and  was  ausistautf  wliile 
Ib^  olb«r  pronouured  the  words  of  absolution, 
md  afkirwirds  Snatt  said,  Amen  (i(  faeingf  bid 
jood  pronuncittverunt).  And  accord iu^fly  the 
jixry  iiCfpiitU'd  them  of  (he  oof»piracy«  and 
fimad  Cook  guilty  of  the  rest|  and  as  to  Hnatt, 
«1  »ttprfl.* 


*  S  Modem,  p«  3a3|  reports  the  Caae  thus : 

T«B  Midi.  9  W.  3,  B,  R,  1697.     Rex  vers. 
Cookj  ijuatt  and  Collier. 

•*  They  were  found  Guilty  upon  an  Indict- 
meot  for  the  following  crime,  $*,  Hir  John 
Freind  and  sir  Wilham  Perkins  were  convicled 
Ibr  hi^h  treasou,  in  conhpirinir  the  detith  of  the 

lung;  aiui  the  dr '      '  r^     T    r  t  present  with 
llhtm  aft  the  plao.  'I.allof  tht'tu, 

Jty  dicif  hiBd^oupii  ^vuu  ;  »^^ud|  who  shewed 


When  this  Special  Verdict  was  argued^  or 
how  this  matter  ended,  doc«  not  unpear  .  but 
at  the  sale  of  the  earl  of  t '^  Manu* 

scripts,  in  Corent-Gar*ien,  A  the  Ibl- 

lowing  Argument  was  puvciiaM.>ii   m    3tanu- 
script. 

The  King  against  Cook andHsATT, 

It  is  an  indictment  for  a  mi^deuieanor  on 
which  a  Special  Verdict  is  found.  I  am,  hy 
your  lordship's  appqhitment,  counsel  for  llie 
dplendants. 

The  indictmctit  sets  forth,  That  whereat 
sir  John  Freind  Jind  sir  William  Perkins  were 
severally  convictetl  and  attain tcil  ot  hijjh  (rea- 
son, in  conspiring  the  death  of  the  king,  and 
ailheriitg  to  his  enemies,  and  according  to  due 
course  of  law,  and  judgment  thereon  severally 
given,  were  drawn  to  Tvburn,  to  he  there  put 
to  death  ;  Jeremy  Collier,  and  these  two  de- 
fcndaots,  well  knowin^f  the  pretnisi^s,  but  in- 
tending to  withdraw  the  kingS  subjects  from 
their  allegiance,  and  to  -'ncite  them  to  commit 
the  like  ir^iisons,  at  tlie  gallowK,  being  in  the 
c^rt  with  sir  John  Fremd  and  sir  WilUam 
Perkins,  and  immediately  before  their  exef!u- 
lion,  conspiring,  designing,  and  intending  that 
execrable,  horrible,  and  detestable  hi^h  treason, 
fur  which  sir  John  Freind  and  sir  William 
Perkins  were  attainted,  and  then  iusLantly  to 
die,  according  to  the  course  of  law,  to  justify, 
or  at  least  to  extenuate,  diminish,  or  set  al 
nought ;  and  to  insinuate  into  the  king^s  sub- 
jects, and  persuade  them,  that  sir  John  Fiviud 
aud  sir  William  Perkins  were  about  to  die  io- 
nocent  and  undeser? edly,  and  rather  as  mar- 
tyrs than  traitors  ;  and  to  incite  theking*s  sub- 
jects to  coniiint  the  like  treasons,  and  unlaw- 
fully and  contumaciously,  as  priests  of  the 
church  of  England,  in  the  presence  and  sight 
of  a  great  concourse  of  people,  and  in  the  hear* 
lug  of  a  gieat  many  of  them,  laying  their 
hands  on  the  heads  of  sir  John  Freind  and  sir 
W^illiam  Perkins  in  the  said  cart,  then  and 

no  repentance  for  tlie  rrima  for  which  he  was 

about  to  die  ;  and  Cook  pronounced  the  Abso* 
lution,  aud  8natt  atid  Collier  said,  Amen. 

''  That  they  all  throe  likewise  laid  their 
imnds  on  sir  William  Perkins,  who  was  like-  . 
w  ise  impenitent  of  (his  crime ;  and  CoUter 
pronounced  the  Absolution,  and  Cook  and 
Snatl  said,  Amen  ;  aud  that  they  all  assisted 
and  assented  to  the  said  Absolution. 

**  The  jury  mada  a  specisl  conclusion  in 
their  verdtct,  Whether  the  !tiyiagon  the  hands 
of  three,  and  but  one  at  a  time  pmnouncing 
the  Ab^lution,  makes  them  all  guilty  of  tba 
whole  matter?'*    Adjourn** 


433J         8  WILLIAM  III.  Proeeedingt  against  Three  Nonjuring  derggmm,  [4S4 

absolution.  Therefore,  to  rediicie  it  all  to  i 
case  oil  this  indictment,  I  take  it,  thcie  gen- 
ticmen  (cftpeciully  Air.  Cook,  for  Mr.  Snalt'i 
case  fioth  Fomeuhat  differ^  did  publicly  ab^ 
solve  sir  Joiin  Freind  and  sir  VVilbam  Perkini 
as  they  were  about  to  be  executed  for  higl 
treason,  without  their  particular  repentano 
publicly  declaretl  for  the  crime  for  which  the] 
suffered.  And  I  shall  buoibly  aubmit  it  ti 
your  lordship,  whether  tliis  be  any  ofience  n 
these  gentlemen,  or  in  either  of  tuem.  Thq 
were  persons,  that  by  order,  at  least  by  lean 
of  the  court  when  sir  John  Freind  and  n 
William  Perkins  were  attainted,  were  permiltei 
and  appointed  to  officiate  with  the  eoodenuMd 
criminals  to  prepare  them  for  aoother  wary, 
when  they  were  about  to  leave  thia  by  the 
judgment  of  our  law.  Accordingly  they  off- 
ciatetl,  and  were  several  times  with  the  ooo« 
demncd  criminals  in  the  prison ;  where  m 
ina^  very  well  presume,  that  th^  braogbl 
their  penitents  to  a  particular  coDleasioa  M 
repentance,  though  we  could  not  prove  it  M 
the  trial ;  because  the  |>enitent  was  dead,  ui 
the  absolver  the  nerson  indicted. 

And  besides,  the  absolver  was  not  obUgadta 
discover  the  confession  ;  nay,  it  is  expresriy 
forbidden  by  the  113th  canonof  our  diurobi 
made  by  the  convocation  in  the  year  160S| 
which  was  called  by  the  king's  writ,  and  ooa* 
firmed  under  the  great  seal,  according  to  ths 
form  of  the  statute  35  II.  8,  c.  19,  as  toy  M 
Vaufifhan  tells  us  in  his  reports,  fol.  329.  And 
the  kin«f  or  convocation,  but  certainly  both  of 
them  with  their  joint  power,  may  makeonloi 
and  ordinances,  whicli  shall  bind  all  the  kiog^ 
subjects,  but  more  especially  the  clergy,  is 
may  plainly  be  iuferred  from  the  statute  25  H. 
U.  c.  ID.  Ami  so  are  our  l>ouks,  Ql  E.  4,45, 
Hro.  Abr.  ordinary,  pi.  1.  Moor  765,  783.  3 
Cro.  37.  Xoy  100.  aiid'2  Ventr.  44.  And  10 
hath  been  the  practice,  in  the  first  volume  of 
the  History  of  ihe  Itelbrmation,  fbl.  935.  and 
the  .second\olumc,  fol.  CO,  69,  and  70.  lut 
case  cif  this  nature,  I  must  lu.-g  leave  of  jrooT 
lordship  to  make  use  of  the  writinf«s  of  diTiaci 
and  other  authors,  and  not  strictly  confine  my- 
sell' to  our  books  of  common  law  :  for  our  law 
book  ft  ai-e  silent  in  this  case  ;  and  imleed  I  do 
nut  find  any  other  authors  sjieaking  directly  io 
the  point.  *  I'herefore,  1  must  lie  forced  to  look 
into  the  nature  of  absolution,  the  power  of  tbi 
clerjuy,  the  practice  of  ditines,  and  other  ool* 
lateral  matters,  for  some  li«>:ht  herein  ;  wbick 
inakt's  me  dread  {[vrowin;;;  te<Iinus,  and  becooip 
ii)(r  very  tiresome  to  your  lordship's  patience. 

And,*  my  lord,  as*  to  this  particular  tam% 
thes<>  canons  are  in  some  manner  confirmed  h| 
actorpai-jiaiiieiit :  for  the  statute  1^  Car.  3.t 
I'i.soct.  the  last,  which  seems  to  set  aside  the 
canons  of  IG-iO,  doth  establish  the  church  9sil 
was  in  the  }  rar  IciUO  *,  and  then  these  caiMI 
were  in  ti»roe  ami  practised.  For  tlie  king  wbl 
then  reioned,  at  his  c<ironation,  (tiNs  firrttM 


there  took  upon  themselves  to  absolve  them, 
and  did  pronounce  them  to  be  absolved  from 
all  their  sins,  without  any'  repentance,  by  the 
said  sir  John  Freind  and'sir  William  Perkins, 
or  either  of  them,  for  the  high  treason  afore- 
said first  dc<!lared. 
To  this  indiiimcnt  these   two    defendants 

K leaded  not  i;ni>ty  :  And  the  issue  being  tried 
efbre  your  lordship,  the  jury  find  this  special 
verdict :  That  C'ook,  8nott,  and  Collier  laid  their 
hands  on  sir  John  Freind,  and  Cook  pro- 
nounced the  alisohition,  and  C!oIlier  and  8natt 
said,  Amen :  That  Collier  and  these  two  de- 
fendants laid  their  hands  on  sir  U'illiam  Per- 
kins, and  Collier  pronounced  the  absolution, 
and  CrOok  and  Snatt  said  Amen:  xVnd  that 
Cook  and  Snatt  assisted,  and  assented  to  the 
said  al»solution. 

As  to  the  conspiracy,  they  find  the  defendants 
not  guilty  ;  and  as  to  all  the  rest  of  the  in- 
dictment, they  find  the  defendants  gnihy  :  But 
whether,  on  the  whole  matter,  the  defendants, 
c»r  either  of  them,  be  gniity  of  the  matters  and 
things  charged  on  them  in  the  indictment  (be- 
sides the  conspiracy)  or  no,  the  jury  pray  the 
advice  of  the  court.  And  thereupon  it  now 
comes  belbrc  your  lordship.    And 

I  hope  witii  submission  to  your  lordship, 
as  this  indictment  is,  these  defendants  shall  be 
dischan2;ed.  And  to  that  end  I  shall  crave 
leave  humbly  to  lay  before  your  lordship 
some  considerations  on  these  three  points : 

First,  Whether  what  is  laid  in  this  indict- 
ment will  amount  to  an  offence  ? 

Secondly,  If  it  be  an  ofleiice,  1  shall  hum- 
bly submit  it  to  ynnr  lordship,  Whether  the 
examination  of  it  doth  not  belong  to  another 
jurisdiction  ?  And, 

Thirdly,  If  it  should  be  an  offence,  and  pti- 
iiishable  in  this  court,  yet  there  can  be  no 
judgment  given  against  them  on  this  indict- 
ment. 

But  before  I  come  to  these  point<i,  1  must 
crave  leave  to  explain  what  I  take  to  be  the 
meaning  of  one  expression  in  the  indictment, 
and  that  is,  *  AliMjue  aliqna  pcenitentia  per  eos 

*  pro  alia  pn>ditionc  pnedicta  priiis  deelarata.' 
'^y  pamitiilia^  1liou<^li  it  usually  amongst  the 
IranonistN  si;; ni lies  |)enaocp,  and  sometimes 
repentance,  nhsiilution  and  penance,  yet  hi  this 
place  I  take  it  for  repentance  only.  And  by 
the  words  *  pro  alta  pro<litione  prudicta  priiis 

*  dcclarata,'  is  meant  publicly  declared  for 
that  particidar  offence.  For  on  the  evidence 
it  appeared,  there  was  a  general  repentance 
of  all  their  sins  ;  and  there  might  have  Ucn\  u 
private,  particular  repentauct.'of  this  ^ery  trta. 
son  to  the  priests,  whilst  they  were  in  the 
prison,  act^ording  to  the  rule  of  the  Ca- 
nonists, *  Posse  in  una  die  confessionem  uu- 

*  din,  et  in  altera  itijtiiigi  iiu'nitentiain  :*  As  I 
find  iteiied  In  the  gieu!est  casuist  a'ul  best  an- 
thisr  1  have  met  wiih  on  llii>  occasion.  *■  \  ale- 
<  rins  Ueuinuldiistle  requisitis  in  coufi*ssione,* 
I.  8.  n.  11.  fol.  <!30.  Hut  when  this  was  ob- 
jected at  the  trial,  the  king^s  counsel  answered, 
The  repentance  ought  to  be  as  public  as  the 


was  al\er  making  of  these  canons)  did  uot  o^jj 
swear  to  maintain  to  the  church  the  lawaof  K 
Edward,  but  likewise  to  preserve  to  the 


t 


48S]   ^  absolving  Sir  W,  Parkt/ns  and  Sir  J.  Frttnd.    A.  D»  1696-  [456 

in  p^ril  or  imminent  dan^r^  or  llje  tike,  as  to 
be  f isiled  with  sickness;  whicU  likewise  an- 
swers the  canonists  ikscription  or  denomi nation 
of  thifl  sort  of  absolution  ;  todistinguisli  it  frorn 


t'jiiirchcj  €ommilte<l  to  their  charge^  aU 
ranonicAl  pri%  iltf^es,  I  [Cushworth's  Collection, 
fcl.  901,  And  the  power  of  secrecy  seems  to 
me  a  nrif  ileqfe  ;  and  thetc  canons  are  now  re- 
ceived and  oWrvetl  as  laws  oraonvit  the  clergy. 
And,  my  Ion],  neither  the  indictment  nor  eri- 
dill  deny  I  bat  there  was  a  private  repen^ 
Now  *  that  a  private  confession  and  re- 
pentance had  been  sofficient,  appears  from  the 
fuk  of*  the  canonintSf  *  Non  tenetur  pcenitens 
audient«  confiteri,  quia  conte^io  cum 
fiit  io  persona  Dei  omnia  exploralis- 
"'"^'^-ntw,  excliulit  omoem  teslem,* 
a.  n,  78,  fol  182.  *  DcSacra- 
*  -ione,*     Nay,  the  confession  to 

only  is   held  sufficient  :  *  Ex- 
[►rcces  nostras,  ct  eaniitentiam 
tilii.    <  ,  utqnosconflcietitiiereatus 

iCG«)v  luu*  misrrationk  abgolrat,' 

ht,  a&  (#  iHt  Uowii  in  the  *  Ordo  Romanus  de 
^U^cils  iJivinis/  in  the  trnth  tome  of  the  Bi- 
1.  30.  und  is  vprUatira  reo- 
ii  our  liturgy,  in  the  com- 
forin  of  jii-ayer  appointed 
li  of  January,  and  in  that 
.1  gctK'rul  fa»L  And  J  shall 
ne  to  otTer  to  your  lordship^s  considertition 
I  reasons  why  such  a  private  confession 
to  God  Almif^^hty/ or  to  \\\a  minister  hereon 
Oftb^  tB  fruf^cjent  for  alisoliititin.  One  is 
iu  from  the  narnre  of  I  he  thing  ilself.  No 
tw  oiiliged  by  law  to  do  any  art  to  any 
■  peryon,  from  whom  he  can  receive  no  be- 
itfit  by  so  ilointr.  And  the  people  cannot  ah- 
«ibe,  it  is  only  the  priest  can  ilo  it }  oml  there- 
t<3fe  4o  him  alune  must  he  made  the  confession 
ind  repentnnee.  Atid  so  is  I/mwood,  the  last 
impression,  UA  3G7.  on  the  uoidtf,  *  Duhiio 
.  frnctu,'  says  he,  *  Fructiw  i^itiu'  sivc 
pi!i9( I i (entile  est  absulniio  u  pe^-calrs, 
quis  non  conseqiirtur  ab  eo  rjui  nou  est 
jydieJf»  uec  habet  iKiteslfttem  com  hiu^andi 
ftfrendi-*  And  tliesame  auttior,  spfaking 
ifession,  fol.  327.  *  VerboConfes- 
i^e  words,  *  Confessio  iripliriter 
|4i>H>  anmi£  ioteriu^ coram  Deo,  aut  in 
••ntiiP  e^tenus  cumm  Uei  vicario,  ant 
rr4ii  i  tjce.'     And  I  hen 

lie  iddft,  iia  cornm  s;iict:r- 

'\    pert  WIN  mn    utiLiui.u  ii>.       And   iliei**?    is 
•4    \  vM\   Hnd,  the  least  hint  of  makliH^ 
^    eonte<<iion  or  repentance  to   ilie  people, 
but  only  to  the    {iriest,  and  that  may    l»e  in 
iirli.iii       Hut  in  this  caj»e  tliiie  wn^  likewise 
repenl»nce    declared ;    u  liich    iht- 
'^\\t   w»'lt   take  for   a  repentance  of 
I  ^vell  as  tor  any  other.  That  rC' 

1  wn **  ^e  Tir ral :  fo  r  tra  ito  rs  be i n  % 
'U\f>)o»imi,  and  ni>  par- 
ked, Iht^e  geiiljemen 
111  »hr  tonu  Itiere  set  down 
the  Sick,  which  may  very 
s'  been  dc?iignfd  tW  a! I  that 
;  li ;  and  so  our  j^Tcatest  di- 
.,  ■;  ...    The  learned  Dr.  Du[K)rt, 
Greek  version  of  our  liiury^y,  renders 
I  itiat  fjgnifics  aV  wcU  to  be 


the  common  and  sacra  men  taJ  absolution  ^  they 
call  ii*absolutio  in  articul*  mortis,*  without 
distinguishing  between  a  natural  and  Tioleiil 
death,  or  between  tlie  innocent  and  malefactors. 
And  if  our  law  bad  designed  to  have  excluded 
malefactors  fnmi  the  benefit  of  this  office,  it 
would  h»ve  iiseil  the  same  caution  ns  it  dotb 
against  others  in  the  office  for  burial  of  the 
dead,  where  it  says,  it  shall  not  be  used  to  those 
that  die  un baptized,  excommunicated,  or  are 
fdo  de  If.  And  I  do  not  find  malefactors  ill  at 
suffer  by  the  band  of  justice  excluded  that 
office,  and  I  think  It  is  oHen  performed  for 
them  ;  why  then  must  this  of  Visitation  of  the 
Sick  be  denietl  them  ?  There  is  no  other  oflice 
or  form  appointed  for  these  sort  of  persons. 
And  then,  where  there  is  no  law  there  is  no 
transgression  ;  they  arc  left  to  their  own  me- 
thod and  form,  and  therefore  may  use  that  set 
down  in  the  common-prayer  as  well  as  atiy 
other.  And  here  the  priests  askeil  sir  John 
Freind  and  sir  William  Perkins,  if  they  re- 
pented Iriily  of  all  tluir  sins,  and  were  in  cha- 
rity w  itli  all  the  world  ?  The  penitents  answer- 
ing in  the  affirmative,  the  aOMdvcrs  ad  rising 
fori^'iveness,  did^  at  the  request  of  the  penitenU, 
in  the  form  set  down  in  the  liturgy,  pronounce 
the  absnlulion,  neither  of  the  criminals  signi- 
fying that  be  felt  his  conscience  troubled  with 
any  weighty  matter-  Aud»  with  submission  to 
your  lords liip,  such  signification  ought  to  be 
pi'evious  to  the  motion  for  a  special  coufessioD, 
lor  the  words  are,  *^  If  he  feel  his  conscience 
^  troubled  j'  which  I  think  is  tully  explained 
by  the  second  homily  of  repentance,  whicli 
conilemns  auricular  contession,  and  then  adils, 
'  J  do  not  say  but  tliut,  if  any  do  find  them- 

*  sehes  troubled  in  conscience,  they  may  re- 

*  pair  to  ihL'ir  learned  curate  or  pastor,  or  to 

*  some  other  godly,  learned  man,  and  tiheiv 

*  ihdr  Irmible  and  doubt  of  their  consciences  to 
*'  I  hem,  that  ihey  may  receive  at  their  hands 
^  the  comfortable  salve  of  God's  word/  But  it 
no  ^>he^e  enjoins  such  confession  and  repent- 
ance, lunch  lcs«  dolh  it  coiyinand  the  priest  to 
exact  them  i'rom  the  |>cniteuL  There  is  no 
oriier  lor  the  priest  to  examine  whethtn  hedotU 
fifid  his  conscience  troiibleil,  if  the  penitent 
fhrh  not  iiitinale  it  lo  the  priest.  There  is  no 
tfireclioti  lor  the  priest  to  ask  him  any  question 
ulmiit  it.  And  \  al.  Keg,  I.  %  c,  2,  n,  13.  out 
nf  S(»tnii,  gives  us  this  definition  or  description 
uf  ihc  office  imd  duty  of  a  coutessor  in  these 
words,  *  Officium  quidem  confessarii  de  sc  non 

*  est  inlcrrugare  pocnilentem,  sed  audire  confi- 

*  tentem  ;"  And  going  on,  he  gives  this  reaM>n, 

*  Cum  in  foro  p»jEnitentiati  non  proccdatur  sicut 

*  in  criminah  per  vini  coactivam  ad  ejctorquen- 

*  dam  h  reo  confessioncm,  sed  ptr  spontaneom 

*  voluQlalem  coulit<  ntis.'  1  acknowledge,  that 
in  the  church  of  Home,  to  make  ahsoluiion  it 
complete  sacrament^  a  special  confession  is  re* 
quired ;  ab  is  dirtaiid  by  ottr  cbiucb,  when  tko 


I 

I 

I 


4Sny         8  WILLIAM  IIL  Proceedings  against  Three  Nonjunng  Clergymen^  L^^  ] 

]>eD)ifnt  signifies  that  be  feels  aburtli^o  on  his  munication  *  Pn^udicium  futuri  secitIL*  AmIi 
conscience:  But  Deiiher  to  the^,  nor  in  any  the  learned  |^r«late  Uglitr.  in  hi<5  liuswcf 
Other  cases,  wherein  special  confession  U  re- 
^nired,  is  it  any  where  ordered  to  be  publit:.  It 
ig  iufficient  ihtit  it  is  made  to  the  priest  alone ; 
anil  tlitj  common  practice  in  these  and  all  other 
easei  is  to  have  it  private  :  All  other  persons 
are  exdiaded  the  sick  man's  chamber.  But 
•iipposing,  my  lord,  that  the  meaning  of  the 
Rubiic  Miould  be  taken  to  be,  that  the  priest 
should  move  hioi  to  make  such  a  special  con- 
*'c«»!(ion»  this  is  only  directory  ;  it  U  not  com  • 
puls;itory»  any  rnoVc  than  the  ,irectHlinif  para- 
gfjiph^,  where  the  prlcai  is  to  a<ltnoni!sh  the  sick 
person  to  make  his  will,  ami  declare  bis  debts, 
«ud|  if  he  be  cfabilily,  to  irirc  charitably  to  the 
poor.  And  it  would  lie  diHioult  to  maintain  an 
indictment  on  any  of  these  paragraphs  against 
a  prie»t,  for  absolving  a  siek  man  without  ad- 
nioniihing  bim  to  make  bis  will,  declare  his 
debts,  or  be  liberal  to  the  poor,  who  perhaps 
atarved  for  want  of  such  relief.  Certainly  in 
those  cases  the  Rubric  would  be  looked  on  to 
be  only  directory:  And  why  not  so  in  thisf 
The  like  exposition  bath  been  made  on  other 
acts  of  parliament.  The  statute  21  Jar.  1,  c. 
4,  against  vexatious  infonutrs,  enacts,  That  no 
informal  ion  Ksbalt  be  reccircd,  filed,  or  entered 
of  record,  before  thy  inforuier  liutb  made  ontb 
I  bat  the  ojfence  was  coi  ami  tied  within  the 
eouuty  where  it  was  laid,  and,  as  he  believes, 
within  «  year  bdote  exliibiling  the  informa- 
tion; and  this  oath  to  Ije  enti?red  of  record. 
Yet  i  believe,  it  cannot  be  shewn  that  any 
Much  oath  hath  at  any  time  been  made,  noV 
inf<»rmer  nor  officer  indicted  for  preferring, 
tiliug,  entering,  or  reed  ring  any  informa- 
tion vr it  bout  buch  oath  ;  for  that  {Statute  liatb 
(as  to  that  part)  been  ali^ays  beld  to  be  direc- 
tory, thai  the  judge  or  officer  might  require  it» 
if  tWy  thong  III  fit;  but  they  ai-e  not  thereby 
obligai  in  any  case  to  ejtact  it  from  the  in- 
former, an^  othertri&e  than  as  tbebr  own  dis- 
cretions guide  them,  1  Cro,  316.  But  taking 
the  clause  in  the  case  now  before  your  lord- 
ship to  be  compulnalory,  yet  it  is  not  to  be  uni- 
versally observed  to  alf  ptnitents  ;  it  is  oulv  in 
some  cases,  w  here  the  |>erson8  are  not  qiiairfied 
without  such  special  confession,  and  the  priest 
is  to  consider  and  determine  of  the  ijualifien- 
iions  :  For  absolution  is  purely  spiritual,  and  so 
hiX  to  the  priest,  that  he  is  the  only  juilge 
thereof.  And  if  it  might  not  be  tbou^fbt  iin- 
propgr,  I  should  crave  leave  briefly  to  mention 
lheo|unionEof8ome  of  the  fathersof  the  church 
on  tliiK  occasion. 

8t.  Chrysostora  says.  The  Father  judges  no 
man,  but  batli  comnittted  all  judgment  to  the 
Son ;  and  the  Son,  till  bis  second  coming,  hath 
lefl  all  judgment  to  his  minititers.  And8l. 
Jerom,  sneaking  of  the  priestj;,  hath  these 
words,  *  Qui  claves  regoi  roclorum  babentes 
quodatnroodo  ante  diem  judicii  judicant/  And 
lit.  Gregory  ibe  ^reat  says  of  them,  *  Princi  ^ 
patum  snpcrni  judicii  sortiuntur,  nt  vice  Dei 
quibusdaro  {)eccata  retineant,  et  qiiihustlatii  re^ 
^      lexcom* 


Mrtbine   the  Jesuit,  saith,  *^  M  < 
most  williogly,  that  the  princij 
jiriesit's  miois^T'  is  excrcijsed  in  a 
giveness  of  dins."     And  it  fWi' 
what  (  before  cilt^d  out  <»f  Liuv  • 
wise  by  another  expression  ia  tl 
foL  336,  on  the  words  Con  ■    ^ 
wht're  ho  says,  *  Episcopi 
luarnrn  ijiiani  rorei'irtm.  •     ' 
eit  judex  nisi 

word  8ucerdotni;  ' 

pulaii  sunt  ad  audienda^  c>  :'  A 

the    next    |iaragraph   be   i'  -^^^    m 

*■  Verbuin  Ilei  <limiltit  percaia,  iiuv^cidos  a 
est  ju<lt*x\'  And,  m,v  lord,  what  I  would 
fmm  thu-sc  diviii4-s  and  I. in  wood,  iSi  that  tb« 
priest  being  the  jmlge  of  ibt*  »ilate  of  the  6oa] 
of  the  penitent,  he  iiio^t  at  bis  ppril,  as  he  will 
answer  it  to  God  Almighty,  tnke  care  of  tba, 
confession  and  alisolulioii ;  and  if  he  errs,  * 
may  perha|>s  l>c  ptjoi^bcd  for  it  in  atvoibcf 
world,  but  not  in  thi*.  We  u^miIU-  *'^u«  hj  if 
a  hard  case  to  punisii  a  man  f<y 
judgn)cot,  for  not  being  so  wi»e  .« 
be,  or  so  underfntanding  as  another. 
is  in  any  case,  at  c<»ninion  law,  tn  bt 
for  au  erroneous  judgment,  eitlier  by  aciHrti  oc 
indictment,  9  lu,  4,  3,  a.  1*1.  10,  1  I-en  3'2 
[hit.  120.  And  i»ur  divines  tell  us,  that  Gi>4 
Almighty  will  judge  us  by  our  wills,  not  bj^ 
our  understandings.  And  tlM»reft>re,  i(  ibi 
gentlemen  were  mistaken  in  u  hat  they  did, 
being  only  an  error  of  their  judgments,  thcmofh 
it  may  be  deemed  an  imprudent  action,  ^tt  I 
hope  it  will  not  be  adjudged  criminal, 
m  V  lord,  there  may  be  this  larther  r«aaoii 
why  it  should  be  left  to  the  priest  lo  jml^ 
the  repentance,  and  give  the  absolutioti  i? 
he  hees  iK-casion.  Suppose,  my  lord,  an  ii 
cent  man  should  be  condemned  for  ir«a» 
felony,  as  it  happened  in  the  case  of  iha  ni 
condemned  and  e;Kecuted  for  the  murder  of 
niece,  mentioned  in  my  lord  Coke's  third  In 
stitiites,  '23'2.  And  the  like  case  happened  ^ 
Gloucestershire  between  tliirty  and  forty  y< 
since,  when  Joan  Perry  and  ber  two  aoi 
ail  acrount  of  them  following  tbbi  case 
tain  Thomas  Green,  Jbr  Piracy  and 
A.  D.  na5,  in  ibis  Collection]  wti^ecxi 
for  the  murder  of  one  Harrison  ;  and 
tbi-y  were  executed,  the  person  sup^ 
murdered  came  into  the  country,  and  i*^ 
provcil  the  innocency  of  those  persons  that 
condemned  and  ej:ecuted  tor  that  fancied  mur* 
der.  Now,  supposing,  in  such  a  case,  the  ^ 
son  to  be  executed  obstinately  and  resoluWyi 
denies  the  fact,  shall  the  priest  refits v 
solution?  And  because  the  innocent  ^ 
not  accuse  himself  of  what  he  was  not  m»  jmn 
as  in  tbou*;ht  guilty,  must  he  tlierefore  die  tliij 
second  death  for  liiy  other  wins*  for  w  bich  li^ 
docs  repent  P  For  they  are  still  retained  hfi 
the  priest,  who  rcfuntfn  to  give  htm  abeMilutioai 
Because  such  persons  cannot  condemn  tbi 
selves  for  what  their  comcietioca  do  tt>4 
1 


Mn 


ff  aisoMng  Sir  W*  Partcym  and  Sir  J.  Freind»    A.  D.  1696. 


[430 


there  be  DO  for^venes9,  no  abeola* 
em  P  Will  not  charity  allow  they 
ved,  and  consequently  entitlefl  to  ab- 
Kay,  will  not  charity  extend  to 
raffer  in  an  ill  cauae,  throngfa  a  fault 
ndentanding  ?  And  I  hope  that  the 
oar  jndj^Dientsi,  as  well  as  the  weak- 
'  meiuoriet,  ntay  lie  pardoned  amongst 
:  ans;  and  therefore  such  persons 
Iways  be  denied  the  benefit  of  abso- 
t  is  no  where  denied  to  traitors ;  nay, 
lists  say,  *  In  articulo  mortis,  omnes 
qnoslibet  pcenitentes  a  quibusris  nec- 
nsuris  absolvere  possunt,'  Val.  Ilc^. 
,  fol.  9.  And  he  there  cites  a  council 
re  it  WAS  so  determined.  Nor  is  there 
:ulaT  form  or  method  prescribed  for 
•ntauce  or  absolution ;  therefore,  me- 
general  repentance  may  deserve  a 
bsolution;  and  perhaps,  in  some  of 
M,  the  priest  hau  been  to  blame,  if  he 
d  absolution. 

iw,  with  your  lordship's  patience,  I 
into  the  practice  of  divines  in  such- 
;  though  It  cannot  be  expected  that  I 
iusr  many  precedents  to  warrant  this, 
:  is  seldom  that  absolution  is  given  at 
of  execution;  the  ordinary,  or  some 
ine    performing  that  office,  usually 
t  iu  prlrate,  when  they  have  free  ac- 
e  prisoner :  And  if  it  were  not  so  done 
as  because,  afler  these  divines  were 
to  be  with  the  criminals,  and  to  pre- 
fi  fur  another  worid,  and  had  been 
n,  and,  as  we  say,  received  their  con- 
id  repentance  for  the  crimes  for  which 
e  condemned,  and  perhaps  had  there- 
en  tliem  absolution ;   yet  afler  this, 
DP  three  days  immediately  preceding 
atina,  they  were  kept  from  them,  and 
itttd  to  come  to  them  till  they  were  in 
it  the  place  of  execution :  And  it  may 
ed,  that  the  absolution  that  was  then 
em,  was  fur  the  sins  which  they  had 
id  sincx  they  saw  them  last.    There- 
sis  the  king's  counsel  can  shew  me  a 
I  such  circumstances,  they  cannot  ex- 
n  me  a  direct  precedent  to  jastify  our 
v^.    But  I  shall  crave  leave  to  men- 
IT  that  I  think  will  bear  some  propor- 
m  case  now  before  your  lordsnip.     I 
^11  with  that  of  John  Twyn,  who  was 
iTicted.  and  attainted  at  the  Old  llailey, 
I  of  February,  1663,  the  narrative  of 
as  then  printed  by  authority.     He  was 
rl  for  printing  and  publishing  a  trca- 
label ;  and  my  lord  chief  iustice  Hyde, 
rhom  ttic  trial  was,  saith,  [Vol.  6,  p. 
ibis  ColleGtion]  **  I  sliall  not  spend  my 
discourse  to  you  to  prepare  you  for 
1  see  a  grave  |ierson,  whose  ofhcc  it  is, 
ave  it  u»  hiui.     Do  not  think  of  any 
re:  Make  your  peace  with  God,  wliicli 
e  dont  br  confeninn,  and  by  the  disco- 
'  llMMe  that  are  guilty  of  tlie  same  crime 
■a.    God  have  mercy  npon  yon  ;  and  if 
>^M  will  have  mercy  upon  vou."   Af- 


terwards, and  before  he  came  to  be  executed, 
the  ordinary  pressed  him  to  confession  of  those 
others  concerned  with  him,  which  he  refused  ; 
and  yet  the  ordinary  offered  to  administer  the 
Sacrament  to  him.     From  whence  I  would 
infer,  that  it  is  the  office  of  the  Ordinary  to 
prepare  condemned  criminals  for  another  world, 
and  consequently  he  must  be  the  judge  when 
they  are  prepared.     And  next,  though,  the 
Chief  Justice  vras  of  opinion,  that  God  Al- 
mighty would  not  pardon  him  but  on  the  con- 
fession of  his  own  fault,  and  the  discovery  of 
his  accomplices,  yet  the  Ordinary  tendered  bim 
the  Sacrament,  which  comprehends  the  abso- 
lution, when  he  obstinately  refuse<l  to  make 
any  such  discovery ;    [See  Twyn's  speech  and 
befiaviour  in  vol.  6,  p.  536,  of  this  Collection] 
and  yet  no  indictment  against  him  for  it.    My 
lord  Strafford,  when  he  was  going  to  be  be- 
headed, being  denied  to  speak  with  archbishop 
Laud  ;  as  he  passed  by  bis  grace's  lodgings, 
seeing  the  archbishop  at  his  window,  the  earl 
of  Strafford  bowing  himself  to  ihe  ground,  said, 
*  My  lord,  your  prayers  and  your  blessing.* 
The  Archbishop  lifted  up  his  hand,  and  bestow- 
ed both.    There  was  not  time  or  opportunity 
for  his  grace  to  pronounce  the  absolution  at 
large,  nor  to  lay  his  hands  on  the  head  of  the 
penitent,  as  these  defendants  did,  but  he  came 
as  near  it  as  he  could ;  he  lifted  up  his  hands, 
and  bestowed  both  his  prayers  and  benedictiob, 
and  that  without  any  particular  confession  or 
repentance.    And  though  his  mce  was  after- 
wards proceeded  against,  and,  as  they  then 
called  it,  tried  for  Hisrli  Treason,  and  all  the  dirt 
thrown  on  him  that  IVynne  and  several  others 
could  rake  up  against  him,  and  his  whole  life 
searched  into,  and  every  particuUr  action  nar^ 
rowly  traced,  and  even  nis  reputation,  when  be 
was  a  scholar  at  the  university,  produced  as 
evidence  against  him ;  yet  this  blessing,  this 
absolution  was  never  so  much  as  mentioned, 
though  they  had  often  opportunity  so  to  do, 
when  it  was  urged  (as  frequently  it  was)  that  his 
grace  and  the  earl  of  Strafford  were  very  inti- 
mate frieuds  and  acquaintance,  and  went  hand 
iu  hand  to  destroy  the  goremment  both  in 
church  and  state:     And  yet  this  action  was 
publicly  taken  notice  of,  as  we  find  by  the  his- 
torians of  thoje  times.    Rush  worth,  m  the  earl 
of  Strafford's   Trial,  fol.  782.      Franklin  a 
Annals,  901.* 

Now,  my  lord,  blessing  and  absolution  in 
such  circumstances  amount  to  the  same.  No 
man  blesses  the  impenitent.  The  form  that 
the  arcliliishop  then  used  is  not  set  down,  nor 
is  it,  with  submission  to  your  lordship,  any 
ways  material.  There  are  several  forms  of 
absolution,  which  in  sense  and  virtue  are  the 
same,  as  archbishop  Sparrow  has  it  in  his  Ita- 
tioiiale  on  the  Common-Prayer;  where  he 
shews  us,  that  there  are  three  several  I'orms  of 
absolution  in  the  liturgy  ;  as  first,  in  the  morn- 
ing and  evening  prayer,  *  He  pardoneth  and 

*  Sec,  too,  vol,  3,  p.  15^1;  of  this  Collec- 
tion. 


I 


431]         8  WILLIAM  11 U  Promdingi  agnuist  Three  S'onjurlng  Ofw^jv^en,  flW 

absolvcrtb,*  Sec.  The  second  is  usei)  in  I  lie 
Visitalitin  of  the  sick,  *  By  his  authwriiy  chim- 
in tiled  lo  me,  1  aUalve  thee,*  6cc.  Tiie  thin) 
is  ttt  the  sacrament,  *  Alinit^hty  God,  fkc.  hove 
mercy  up^ii  you,  ^c,  [lardon  and  Ibrgtre  you, 
AcC*  The  like  foriB  is  appointed  to  be  iifieil  iti 
case  of  iromioeot  dauber  at  sea,  and  stiled  an 
%liflolution.  Aod,  saitb  that  reverend  and 
leained  prelate,  "  AH  tliese  several  forms  'm 
*€*use  and  virtue  lire  the  same :  for  it  is  all  one 
OS  lo  the  i-L'mission  of  sins  in  the  penitent,  whe- 
ther the  priest  alwolve  him  afttr  this  form,  Al- 
mighty irod,  who  hath  given  me  and  all  priests 
powier  to  pronounce  pardon  to  the  penitent ; 
«e  pardons  you — or  thus,  Ity  virtue  of  a  com- 
tiiisston  <^nted  to  me  frtjm  Uod,  1  absolve  you 
— or  lastly,  God  pardon  you.'* 

I  must  now,  my  lorn,  in  my  way,  crave 
leave  to  observe,  thai  criminals,  be  Vheir  of- 
limccs  never  so  heinous,  thoits^h  they  do  not 
coaftss  them,  or  shew  any  repentance  for 
tJiem,  yet  they  are  not  kept  from  the  puWic 
service  of  the  church  ;  nor  are  they  denied  or 
refused  to  lie  admitted  to  the  blesR*/<t  Sacra- 
ment*, where  Ihey  hav«  the  bcnetit  of  this 
third  absolution,  aud  that  in  puldic.  What 
reason  then  con  there  be  to  ilcny  thrni  this  ab- 
solution, for  the  giviog  which  these  i*-eiidem€o 
stand  now  indicted,  Which  hath  not,  I  bdievc, 
been  at  any  lime  denied  to  any  malefactors, 
either  in  this  or  any  other  part  of  the  whole 
Christian  world?  Ihe  empej-or  of  Germany, 
ID  his  manifesto  a[2:ainst  those  persons  tliat 
killed  his  officers  and  ministers  at  Prague,  as  a 
great  agojravation  of  their  offence  Kays,  they 
titd  it  without  pvinyf  them  a  moment  of  time 
to  repent,  or  make  confession,  or  receive  the 
Sacrament,  which  is  never  denied  to  the  worst 
offenders,  1  Ruf»h worth,  7, — Without  giving 
them  a  moment  of  time  to  repent,  or  make 
conlesBiou,  or  receive  the  Sacrament — It  is  in 
the  disjunctive,  my  lord ;  and  thereby  Conles- 
fiioQ  and  Hep4>ntauce  caimot  be  meant  of  that 
particular  fact  for  which  thej  were  then  put  to 


*  But  in  the  Rubric,  prescribing  the  order 
of  the  admiuifetrntion  of  the  lord's  Supjier,  w 
Holy  Com m union ;  Ihe  i]n>t  directions  are  at 
follows  1 

«*  So  many  as  inteisd  to  be  partaken  of  the 
Holy  Communion,  sbtill  dignity  their  names  to 
the  curate  at  least  somii  time  the  day  before. 

**  And  if  any  of  those  he  an  open  and  noto- 
rious evil  liver,  or  have  done  any  wrong  to  his 
Del^hbours  by  wonl  or  deed,  no  that  the  congfre* 

fauoo  be  thereby  offended  ;  the  curate  having" 
nowledg-e  thereof,  shall  call  htm  and  adver- 
tise him,  that  in  any  wise  he  presume  not  to 
come  to  the  Lord's  table,  until  he  hath  oneuly 
declared  himself  to  have  truly  repented  and 
aiDended  his  former  nau^^bty  life,  that  the 
cong'rcgatiou  may  thereby  be  satisfied,  which 
before  were  offended  ;  aofl  that  he  hath  recom- 
pensed the  parties  to  Mhoni  he  hath  done 
wroii;;^,  or  at  least  declare  himself  to  lie  in  t^ull 
purpsc  fO  to  do,  as  sotiu  as  ho  convetiicDtly 


death,  for  that  was  the  set 

then  roaster,  and  the  muii:     ;.    „.. 

thors  of  their  deaths,  •  Barboroa^,  ' 

^  inhuman  munlefers,*     II tit  I    ^h.  ' 

to  give  3'our  lonlstiiii  ano: 

iliere  hath  been  a  public  ah 

condemned,  and  that  even  ut  t!i 

cutinn,  without  any  tpectal  re|i< 

crime  for  which  lie  wiw  about  to  siiffcr, 

that  was  in  the  case  of' sir  Thoma.%  Armsiroi|)|^| 

who,  by  jud|fment  of  tins  court  upon 

lawry  tor  hit^h-ti^eason,  tor  eonspinng^ 

the  kin^js  life  and  sjoverument,  was  exi 

at  Tyburn  in  June  1(384.     In  the  court 

sisted  on  his  inoocency,  and  so   he  dli 

Speech  which  he  I  the  wise  lell  with  the 

at  the  pbce  of  execution  ;  yet,notwithst 

that,  the  revfreud  divine  that  then  ftssiftfd 

prepai-e  him  tor  another  world,  did  iu  eflV«t  t] 

same  w'rth  these  gentlemen  that  are  now  de> 

fcndimis  (which  I  humbly  submit  to  yoitrlord 

ibipV  ition):  for,  alter  kIcu 

!nen<i  ^r,  he  useth  this  Ik 

*  The  ^,  (.  «•  ni  Mur  Lord  Jesus  I! 
love  of  God  the  Father,  and  !li 
the  Moly  Ghost,  be  w*ith  ns,  aud  ...  ..  y... 
lar  manner  with  this  thy  servant,  now  in  t\w 
njinute  of  ilenth,  aud  day  of  judgement/  Ai»4 
tlien  speak  in  <i^  to  sir  Thomas  Arm&1rnii€j,  saySf 

*  Now,  Kir,  commend  yourRelf  to  God  hy  yotir 
devotions,  make  yourself  ready,  and  ifiea  Irt. 
that  be  the  last  thing  you  do.*  Sir  Hiomas 
Armstrong;  says,  ^  ^lir,  I  hope  in  Ood  my  fiii» 
are  pardonerl/and  1  do  pray  for  it  henrtitv.  I 
forgivt  '  Mall  their  offences  !i  ' 
comii:  St  me.'    Thfiniheil" 

*  1  pray  VHK4  ssicw  mercy  to  you 
pDPSs  chanty  to  them  ;'  and  then  imtncdi 
followed  the  execution.  I  have  dwel 
long-er^  my  loivl,  on  this  particular,  beca^tse  it 
uiuiit  neeits  bo  of  viry  gnat  nuthcirity,  the  n^* 
verend  divine  that  then  assisted  bein|^  Dr. 
Tennison,  now  archbishop  of  Canterbury.  [See 
voh  10,  p,  105,  of  this  Collection. 1  And  the 
circumstances  of  that  case  are  much  the  same 
with  ours :  in  the  indictment  the  same  offence 
was  laJil  as  ng'ainst  sir  Jcihn  Friend  nnd  «ar 
William  Perkins,  he  suftered  at  the 
place,  and  that  if  verend  divine  was  tiki 
with  him  iu  the  cart  There  was  also 
ptr  delivereil  by  the  criminal  to  the  sheriff, 
dpclarinjjf  his  innoccncy  ;  yet  ahsuhition  waa 
puhltcly  firlven  at  the  time  and  place  of  execu- 
tion. Kot  indeed  in  the  same  words  as  the«!€ 
defendants  usetl,  but  in  those  that  are  as  effec- 
tual. I  think  it  is  apparent,  that  no  particiihir- 
form  of  words  is  requisite  to  an  atisidi  ' 
W  bether  we  think  the  power  ot  the  cf 
authoritative,  or  only  declarative^  whai 
is  an  eicecution  of  that  power  that  is  gi 
our  Saviour  in  St  John,  and  denotes  tlie  pi 
absolvini^,  or  the  priest^s  declarincj  ths 
doth  abiiolve  them,  or  the  prie!>t's  recom 
ingf  tljem  \o  God  for  mercy  or  a  pardi 
their  sins,  that,  with  submisston  to 
lordship,  is  as  much  an  absolntion,  as 
the  priest   doth  iu 


4SS]   ^r  aisohnng  Sir  W.  Parkym  and  Sir  J.  Freind.    A.  D.  1696. 

tbem.  So  it  is  in  our  morning"  ond  evening' 
senrice,  Mid  in  tbe  cniumaniem,  and  Uie  service 
at  8cm,  as  I  have  beiore  mentioned  ;  and  yet 
tbe  rubrick  stiles  them  absolutions.  The  whole 
cbristiau  cbarcb,  for  the  first  ten  ajfes,  used 
that  form  of  recommending^,  and  no  other ;  and 
tbe  Greek  church  doth  still  retain  the  same. 
St  Cyprian  De  Lnpsis,  fol.  136,  the  Oxford 
cditioD,  on  the  words, '  Fro  vobis  Deum  rogare 

*  possimus,*  the  learned  Oxford  aunotators  say 
thus — And  i  may  well  stile  them  the  leanied 
aanoiatore,  since  that  great  master  and  iufl;fe  of 
all  lemming,  the  present  bishop  of  Worcester 
(Dr.  Sullingdeet),  in  his  Vindication  of  the  Tri- 
nity, fol.  165,  164,  stiles  them  so.  Their  anno- 
tations are  in  these  wonis,  *•  Quantumvis  nunc 
Memporis   formula   judiciaria  et    potestativa 

*  (I'l^o  te  absolve  quasi  tradita  ik  Christo  |>er 

*  Apoetolos  teratnr,  ex  advert)  compertissimum 

*  babetur  per  decern  priora  secula  in  usu  mi- 
tnlme  receptam,  imo  nee  adhuc  in  Ecclesia 
*Orientali  invaluisse.'  And  that  absolutions, 
ordinations,  and  consecrations  were  in  a  depre- 
catory fonu,  plainly  appears  from  Morinus,  I. 
8.  De  adiuinistratione  pasniteutio;,  c.  \%  sect. 
7,  fol.  397,  *   Ipse  Domioe  rem:tte,  ditnitte, 

*  condone  peccata  hujus',  N.  &c.  And  this,  he 
nys,  was  the  common  and  vulgar  absolution  in 
the  Greek  church,  tto  Theodorus,  who  wrote 
his  Penitentiab  totvards  the  latter  end  of  the 
axth  century,  (it  was  published  per  Jacobum 
Fettit,  in  quarto,  a.  d.  1677,  at  Paris)  in  the 
first  book,  and  the  Arst  chapter,  page  36,  is  this 
absolution,  <  Deus  omnipotens  sit  adjutor  et 

*  protector  tuus,  et  prcestet  indulgentiam  dc 

*  peccatia  tuis ;'  and  many  others  of  the  like 
nature  are  spartiw  through  both  the  volumes. 
In  the  roman  pontifical  there  is  this  absolution, 

*  Misereatur  vestriim,   oniniimtens  Dens,   et 

*  diniissis  peccatis  vestris  pcrducat  vos  ad  vitam 

*  cternam.'  And  likewise  in  the  Ordo  Roma- 
Bos  1  before  cited,  fol.  61,  is  this,  which  is 
itileil  *  Abiiolutio  singularis :  Frater  N.  absolu- 
^tkmem  et  reinissioncin  peccatoruni  tiionim, 
'  per  invocatiouera  sacrati  nomini^  Dei,  et  per 
'ministerium  nostrum,  pcrcipere  nicrearishic 

*  et  in  aetefnum.*  And  m  the  same  page  are 
leveral  other  absolutions  plural  and  singular, 
penned  after  the  same  manner,  in  such  a  de- 
precatory fonn,  and  all  stiled  alMolutions.  And 
IB  nooe  of  these  absolutions  do  1  see  any  enu- 
meration of  particular  olrenceti,  nor  have  I 
found  in  any  of  these  penitentials,  that  malethc- 
ton  are  exchided  from  this  absolution.  Mr. 
Newland,  who  was  about  two  or  three  years 
nice  condemned  and  executed  for  the  murder 
of  Mr.  Thomas,  did  positively  deny  that  he  was 
guilty  of  that  fact,  or  of  aiding,  assisting,  or 
abetting  thereunto.  Yet  Mr.  .Stevens  not  only 
gave  bim  the  sacrament,  and  that  three  timcH, 
with  other  company ;  but  likeu  isc  eave  him 
absolution,  as  Mr.  Htevens  himself  hatn  since  in 
print  publislietl  to  the  worhl.  And  what  is 
lawful  and  justifiable  at  Newgate  before  three 
or  four  |»erson8,  cannot  become  a  crime  at  Ty- 
burn, though  it  be  done  in  the  presence  of  600 
people ;  for  the  place  or  uumbior  of  people  can- 

VOL.  XIIJ. 


[43* 

not  alter  the  nature  of  the  fact,  and  make  an 
.  innocent  action  an  horrid  crime.     1  am  cre- 
dibly iniurmed,  that  in  the  case  of  Anderton 
the  printer,  who  was  executed  for  high  treason 
about  four  or  five  years  since,*  there  was  the 
same  form  of  prayer  used  for  him  by  the  divine 
that  then  assisted,  and  that  at  this  very  place  of 
execution.    In  the  case  of  Mr.  Ashton,  who 
was    likewise    executed    for    high-treason,*]* 
though  he  expressetl  no  sorrow  for  his  crime, 
and  left  a  Paper  behind  him  justifying  the  fact 
for  which  lie  died,  yet  the  samefurui  of  prayei\ 
the  very  same  absolution,  and  at  the  same  place 
of  execution,  with  all  the  circumstances  of  the 
present  case,  were  used  and  performed  for  him ; 
and  instead  of  any  reprimand  for  so  doiu<y,  the 
shcrifTof  ^liddlesex  said  thus  to  the  absolvers, 
as  1  had  it  from  one  that  was  tlien  present, 
and  set  it  down  in  writing ;  *  Gentlemen,  I 
thank  you  for  performing  the  last  oiiices  so 
decently.'     And,  my  lord,  m^'  cli-nts do  insist 
on  it,  that  on  these  precedents  and  this  encou- 
ragement, they  werti  induccil  to  act  as  they  did 
at  the  execution  of  sir  John  Freind  and  sir 
William  Perkins.     I  have,  my  lord,  looked  into 
i  the  treatises  of  some  divines  upon  this  occasion ; 
and  though  1  find  a  minrhty  stir  about  auricular 
coufessioi),  whether  tLic  church  doth  require 
that  or  no,  yet  1  cannot  jierr^ive  that  it  is  by 
any  insisted  on,  that  there  must  be  in  any  case 
a  public  confession  or  reitentance,  no,  nnt  even 
in  those  cases  where  public  penance  is  enjoined, 
j  unless  in  sotnc  few,  where  the  ecclesiastical 
I  court  hath  made  it  part  of  the  penance.     Mr. 
i  IVynne,  in  his  Canterbury's  Doom,  fol.  192, 3. 
tells  us,  that  one  Mr.  Adams  preached  at  St. 
:  Mary's  church  in  Canibriiiife,  a.  d.  1637,  and 
I  maintuined  special  cnnfes:>ion  to  tiie  priest  to 
:  be  necessary  ;    tor  wl:ich  being  sininnoned  be- 
.  fore  (he  vice-chancellor,  lie  and  several  other 
i  doctors  ordered  .^!r.  Adams  to  make  a  recanta- 
tion of  that  doctrine,  and  declare  it  Mas  onl}' 
rei[uisite  in  those  cases  where  people  couhl  not 
quiet  their  own  conL;cicnces  :    and  likewise  to 
I  declare,  that  it  is  against  true  christian  liberty, 
I  that  a  man  should  be  bound  to  the  enumerat- 
j  ing  of  his  sins,  as  hath  been  used  heretofore  in 
I  the  times  of  ignorance  and  popery.     There 
!  were  indeed  some  doctors  that  did  oppose  this 
I  recantation,  and  justifie«l  Mr.  Adams,  insisting^ 
I  it  was  needful  to  make  such  confession  to  the 
priest ;  but  none  pretended  it  was  in  any  case 
,  requisite  to  be  made  to  the  peoidc.     But,  as  I 
i  said  before,  the  vice-chancellor,  and  the  aiajor 
>  part  of  the  doctors,  ordere<I  tiie  aforesaid  recan- 
;  tation,  and  well  they  iniirht ;  fur  it  is  verbatim 
'  taken  out  of  the  second  Homily  <»f  Repentance, 
;  which  book  of  Homilies  was  composed  by  many 
'  eminent  prelates  of  our  church,  nndthereading' 
of  it  enjoined  by  the  rubrick,  wiiich  is  part  of 
the  act  of  uniformity.     And  that  homily  doth 
further  say,  thatit'is  most  evident  and  plain 


*  In  the  year  1093'    See  the  Case  in  this 
'  Collection,  Vol.  12|  p.  12U). 

-f  In  the  year  1691.    See  the  Case  in  this 
Collection,  Vol.  Isj,  p.  646. 


435}         8  WILLIAM  IIL  ProceeeOngs  agMUi  Three  Nonjuritig  Clergymeth  [49S 


that  auricular  confetsioD  hath  not  its  warraot 
from  God*8  word ;  and  it  cites  St.  Austin, 
who  saySy  *  What  have  I  to  do  with  men,  as 

*  thon^  they  were  able  to  heal  my  diseases  ?' 
and  if  a  penitent  be  not  oonipelled  by  the  laws  of 
God  or  holy  church  to  make  a  particular  con- 
fession of  his  sins  to  the  priest,  who  gives  that 
absolution,  much  less  is  he  any  ways  obliged  to 
satisfy  the  curiosity  of  the  people  by  enume- 
rating of  his  offences,  or  publicly  declaring  a 
repentance  for  his  sins.  Nor  do  they  any  where 
distinguish  the  case  of  condemned  criminals 
from  others.  But  the  rules  concerning  it  are 
general,  *  £t  generalitcr  dictnm  generaliter 

*  intelli^dum  est.'  Whaterer  I  jfind  s|ioken 
concermng  alwolution  is  ezpreaied  indefinitel;^^ 
which  falls  under  another  maxim,  *  Indefini- 

*  turn  «quipollet  universali.'  And,  my  lord, 
one  reason  wh}r  I  take  it  to  be  lawful  to  pro- 
nounce absolution  to  condemned  malefactors, 
is,  that  belheir  crimes  never  so  great,  the  sword 
of  justice  <lotli  not  strike  deeper  tlian  the  grave, 
and  there  is  still  room  for  a  *  Dcus  misereatur 

*  animiE  ejus,*  a  Ixird  have  mercy  on  his  soul. 

Thus  I  have,  with  all  humility,  submitted  to 
your  lordships'  consideration  what  I  have  to 
say,  why  tlie  .fact,  of  which  these  gentlemen 
stand  accused,  should  in  itself  be  no  offence. 
Neither  can  it  be  made  a  crime,  with  submission 
to  your  lordshio,  by  any  ill  intention  that  can 
he  suggested  to  uie  adherent  to  it :  For  the  ac- 
tions of  men  shew  their  hearts ;  and  if  their 
works  are  not  evil,  you  cannot  from  them,  *  in 

*  fbro  humano,'  prove  their  minds  corrupt. 
Omitting  tbe  reason  given  by  my  lord  chief 
justice  >iorth,  on  the  reversal  of  the  Judgment 
in  the  case  of  Bamnnliston  and  Soame.*  1 
shall  trouble  your  lordship  but  with  two  cases, 
and  tbe  reasous  of  them,  to  prove  the  truth  of 
Ibis  assertion.  The  one  is  KUiot's  case,  iu  the 
last  impression  of  Croke's  Charles,  fbl.  608, 
u'herc  my  lord  chier  justice  Vaughan  say^, 
It  is  clcai-  and  undoubted  law,  that  whatsoever 
is  in  itself  la\i  ful  cannot  have  an  unlawful  in- 
tent annexed  lo  it ;  for  then  the  most  inno- 
cent act  of  a  man's  life  would  be  liable  to  se- 
vere censures.  And  he  instances  in  this,  that 
a  man  might  then  be  iiMlicted  for  high  treason, 
for  drinking  water  w  ith  a  design  lo  lessen  and 
destroy  the  customs  and  revenue,  thereby  in- 
tending to  dethrone  the  king.  The  other  ca^ie 
that  I  would  mention  is  in  Dyei*,  f.  S96,  pi. 
19,  in  these  words:  **  A  subject  of  this  realm, 
bc^Hg  a  merchant  of  London,  departed  out  of  this 
realm  without  licence  of  the  queen,  only  to  the  in  - 
tent  that  he  might  live  there  free  from  the  laws 
of  this  realm,  and  out  of  his  due  obedience  to 
the  queen,  and  not  upon  any  account  of  mer- 
chandizing ;  Whether  such  a  departure  were 
any  offence  or  contempt  to  the  queen,  or  not? 
And  by  the  opinions  of  almost  all  the  justict  s, 
such  a  de|)arture,  before  an  express  prohibition 
or  restraint  by  proclamation,  or  writ  of  *  Ne 

•  See  the  Lord  Chief  Justice  North's  Ar- 
gument on  that  occasion  in  this  Collection, 
Vol.  6,  p.  1098. 


*  exeat  regnnm'  awarded  by^the  kin^  or  prinoe, 
is  not  any  offence  or  contempt ;  for  it  is  a  thing 
indifferent  to  depart  the  realm,  and  the  pur- 
pose and  cause,  which  is  secret  in  the  heart, 
i»  not  examinable."  That  is  the  reneon  mm 
in  the  book :  And  Jenkins,  a  man  mim  for 
prerogative,  in  his  second  century,  cap.  70, 
fbl.  88,  agrees  this  case  to  he  law ;  and  nyS| 
That  the  common  law  doth  not  allow  an  uh 
tent  to  be  issuable  or  triable,  and  gives  this 
reason  for  it,  <<  Cor  hominis  est  inscmtabile.* 
Now,  my  lord,  those  tliat  will  not  allow  abso- 
lution to  be  a  very  good  act,  must  grant  that 
it  is  at  least  indiflerent  And  then  the  caosa^ 
purpose,  end  or  intent  of  it  being  secret  in  the 
neart,  is  not  examinable,  and  therefore  camiot 
be  justly  said  to  be  done  for  raising  a  rebdlisa, 
or  causmg  a  disturbance  in  the  kingdom.  And 
I  do  not  know  that  in  any  case  a  man  is  |ni« 


nishable  for  an  ill  intent,  except  in  one  species 
of  treason,  the  compassing  the  king's  watfa ; 
and  in  that  case  the  intention  must  he  proved 


by  some  overt  act  directly  tending  to  the  ftcft 
designed. 

2.  But  I  come  now  to  the  second  poiol. 
That  if  this  shall  he  deemed  an  offence,  yd  it 
is  not  enquirable  nor  punishable  in  this  covt 
I  must  humbly  submit  it  to  your  lordship^ 
jud^finent,  whether  the  power  of  abeolutiH, 
which  is  given  to  the  apostles  and  their  eae- 
cessors  by  the  author  and  establisher  of  il 
lawful  power,  both  ecclesiastical  and  ciril,  k 
these  words,  in  the  90th  chapter  of  St.  Jofai, 
T.  S3,  *  WhoBe*8oever  sins  ye  remit,  th^  sia 

*  remitted  ;   and  whose-soever  sins  ye  refiUDj 

*  they  are  retained,'  be  not  an  authority  ht 
above  all  sublunary  jurisdictions ;  and  theie 
gentlemen,  the  successors  of  the  apostlei,  sot 
to  he  called  to  an  account  for  what  they  ilid  is 
the  execution  ol'  that  authority,  but  by  Uia 
alone  who  delegated  that  power  to  them.  Bst 
supposing  it  should  be  examinable  here  oo 
earth,  with  submission  to  your  lordship,  it  ii 
only  in  that  court,  by  those  persons,  or  tkit 
sort  of  men,  who  conveyed  to  these  gentle^ 
men  that  power  given  by  our  Saviour.  And 
this  I  shall  endeavour  to  prove,  First,  firott 
the  nature  of  the  thing  itself.  Their  OOM- 
mission  for  it  is  their  ordination,  which  lay- 
men cannot  give.  Nor  is  it  to  he  tried  by  tM 
common  law ;  for  profession  in  religion,  er 
irifra  $acrot  ordines^  is  only  triable  by  the  or- 
dinary, Co.  Lit.  132,  h.  S  Inst.  492. 

That  very  learned  prelate,  the  present  biebw 
of  Worcester,  in  his  charge  to  his  clergy,  fA* 
43.  tells  us  out  of  Cajetan,  «  Officium  cwia 

*  animarum  est  pnecipuum  ac  spirituslirtiinl 

*  Dei  donum.'  And  the  bishop  is  subeliliirf 
by  our  Saviour  to  give  the  ordination,  whidb 
he  doth  in  these  words,  *  ReceiTe  the  IMf 
^  Ghost  now  committed  unto  thee  by  the  Mi* 
*■  poifition  of  our  hands.    Whose  sins  tboa  M 

*  forgive,  they  are  tbrgivcn  ;  and  whose  ^ 
'  thou  dost  retain,  they  are  retained.'  Nm5 
roethinks,  a  man  must  naturally  infer  tai 
hence,  that  since  this  authority  is  derired  9n^ 
our  SaTiour  by  the  bishops ;  if  any  poMM 


ig  Sir  W*  ParJ^^m 

|«in  tmrth  can  rmt  and  Tef(»rtn  the  errors  or 

I  in  the  execution  of  this  puw«r,  it  must 

the  %ho9e  who  Are  intrusted  to  gii^e  the  ordina- 

liiott  :  Am\  »(  (hiu£^  of  this  nature  th<?ir  cuuris 

[Juiire  usuaJl^v  had  the  conusance.     Nay,  the 

T  |inFit^g€a  of  the  clerg-y  in  old  titn«s  w^nl  much 

iturtiier;    tor  our  pious  and  devout  ancestoi-s, 

J  the  directions  of  ihe  son  of  Sirach, 

■ii^tku^  r,  29,  31»  *  Fear  the  I^rd  and 

rrenoe  hts  priesti;,*    thoug^ht  they  could 

not  pay  atifTicknt  respect  anil  honour  to  the 

dOTiryt  m-l-*^-  *^'^^r  eifempted  them  from  all 

tempora)  u.     80  that  even  10  tern- 

poral  ufTi  ^    !  ihostfof  ahno«tthe  highest 

uatn  »-,  and  felony  of  course,  and  even 

insu'  Mhc  ordinary  would  demand  the 

priftooer   tor  hiii   clerk,   he   was   imtnediately 

Ulcen  from  the  lempornl  courts  and   suhjected 

to  the  ordinary  s  jurisdiction,  Stanford's  Pleas 

^.iif  the  Cruvvn,  ]?3,  and  3d  lustitut,  1  U.     And 

m   his  Mirror  of  Justice,  c.  3,  sect.  4, 

That  if,  in  a  temporal  court,  a  clerk 

I  of  any  C4»e  crimLual  or  mortal «  pleads 

that  lie  is  a  clerk^  the  judo^e  had  do  lartber 

«vn««»n<v»  of  the  cause  ;  for  the  church  i«  so 

ed,  that  no  lay  judge  can  have  juri^- 

'•vera  clerk.     And  the  abridgment  of 

ikm  600k  of  Assizes,  tit.  Coronsp,  foL  74,  say3> 

tbftt  if  a  clerk  will  not  pray  the  benetit  of  lits 

dergy,  yet  if  the  Judge  knows  him  to  be  so^ 

le  will  not  give  judgment  of  death  agfainst 

tiin,  as  against  a  layman.     Aod  these  priTi- 

\mm  would  have  remained  to  this  day,  if  acts 

arparlmment  had  not  altered  them.     And  if 

the  cleri^y  were  exemjited  from  the  temporal 

inriadietion  for  o (fences  of  so  high  nature^  if 

'  eftrg-iimrnt  •  a  m»jori  ad  minu^*  holds  good^ 

!  iiiti3*i  certainly  have  l>eea  exempted  from 

•  puniaihed  in  temporal  courlafor  all  their 

r crimes;  aod  must  still  be  so,  where  no 

lite  Uw  interpoaeS)  and  that  will  lie  oa  the 

r  aide  to  shew. 

1  M  fftr  of  late  years  have  the  clerg-y  been 

111  eiMl  eiteeined  to  be  exeiojit  frtjm  the 

'  power,  that  on  the  treaty  of  the  Spanish 

b,  it  was  agreed,  that  the  1  niaota,  who  was 

t  designed  to  be  our  queen^  should  have  her 

opish  cler^f  aiid  a  superior  over  them.    Anil 

i  14th  article  ruosthu;;,  ^*  that  if  any  secular 

'  shall  apprehend  nny  ecclesiastical  person 

\y  oOeuce,  heshull  t or th  with  cause  him  to 

inhered  to  the  atbi esaid  superior  ecclesi* 

_       r ho  shall  proceed  au^ainst  him  aeiordiiig 

'  tile  canon  law  J'    Thei^e  aitictes  were  then 

1 10  by  the  l;u)jr»  prince,  and  privy  council ; 

herdore  we  must  believe  it  to  be  done  on 

pood  advice.     Tim  is  taken  notice  of  by 

ah  worth,  in  his  fli-»t  volume,  fol.  87, 

Oligfo  how  fur  and  in  what  casen  sjuriiual 

I  persons  formerly  out  of  the  reach  of  the 

\r  power,  may  ;Hlmitot  some  debate  ;  yet 

r  if  more  iAfu\i  than  that  spiritual  causea 

t«  <*'i\    by   the  civil    power. 

;m>  r^'bufispirituahbuscognos- 

n  debet/  &4>8  Fkta,  L  (>.  c.  37.  f.  459. 

There  it  (ta  the  iiicumparably  lemrned  Bii^hop 

^Woroeiltr  bu  it,  in  his  charge  to  his  clergy, 


A.  D.  169G. 


Itss 


fol.  36),  a  common  law  ecclesiastical,  which* 
although  in  many  things  it  may  be  the  same 
with  the  canon  law  that  is  read  in  books,  yet 
hath  it  not  its  force  from  any  papal  or  lugatuie 
con^titotions,  but  from  the  acceptance  and 
practice  of  it  in  our  churches.  And  such  a  law, 
my  lord,  is  coeval  with  the  very  government 
itself.  The  learned  Selden,  in  his  mites  on  thii 
17lh  chapter  of  Fortew^ue,  says  That  in  time 
of  paganism  the  Druids  were  the  Liwyers,  and 
determined  controversies ;  the  same  persons 
were  their  priej»tsaod  judges.  And  sir  Henry 
Spelman,  in  his  discourse  of  Law  Terms,  telfs 
us,  That  ID  the  infaoey  of  Christianity  the 
bishops  and  clergymen  did  hear  and  determine 
all  causes  amongst  the  christians.  And  liow 
those  matters  were  settled,  when  Christianity 
came  to  be  established  amongst  us,  sir  Thomas 
Smith  will  acquaint  your  lordship,  in  his 
treatise  De  nemjbtica  et  Admiuisiratione  An- 
gforum ;  a  book  I  have  oiten  heard  cite*!  in 
this  court,  not  only  at  the  bar,  but  by  very 
learned  judges  00  the  bench.  In  his  third 
book,  the  11th  chapter,  are  these  wonis:    *  In 

*  qualuor     potissrmum    caiisarum     generibus 

*  Archiepiscopi  Episcopiqiie  pecnliarem  juris* 
^  ilictioncm  surtiuntur,  in  testtamentis  et  le^atis, 
^  in  decimis  et  oiortuariis,  in  nuptiis,  adufterto 

*  aut  fornicatione,et  in  iisdemuin  omnibtts  qum^ 
*■  ad  ordineni«k  decusEcc1esiaRtTcumconserlao• 
*  dumetrcligionem  constabdiemlain  pertinent; 

*■  nam  majores  nostri  rempublicam  primo  ordi- 

*  narunt,  postea  tidei  Christianas  nomeu  ilede- 

*  runt  et  politiamsicconstitutam,  com  ea  quam 
'  Apostoli,  doctores  theologique  religionein  hi- 

*  vexeruot^  semper  refmuerunt ;   qivicquid  ad 

*  conscientiic  forum    pertinebat,    dlis    utpote 

*  peritioribus,  et  oh  vitce  sanctiraoniam  morurn* 
'  que  probitatem  laudatti^simis,  quibusque  confi' 
*■  debaut,  maxime  deleg.ibant.'  I  shall  nut 
take  up  your  lordship's  time  to  prove,  out  of 
Magna  Charta,  and  other  old  laws,  that  the 
clergy  have  rights,  liberties,  privileges  and  im- 
munities ;  but  taking  that  for  granted,  shall 
proceed  to  examine,  whether  this  case  doth  :iny 
way,  and  how,  cooceni  their  ritxhts  ood  ]iri»i- 
leges.  h  cannot  be  denied,  but  that  to  be 
exempt  from  the  ordinary  and  common  juris- 
diction is  an  immunity,  and  to  have  conusance 
of  causes  iii  u  liberty  and  privilege:  but  tbe 
question  still  is,  if  the  clergy  are  in  cases  of  tliis 
nature  exempt  from  the  common  jurisdiction  of 
the  king's  temporal  courts,  and  the  ecclesiasiticat 
judges  have  conusance  of  the  offence  (if  an 
offence  it  be)  of  which  these  gentlemeu  stand 
accused  ?  My  lor«J  Coke,  in  his  5th  Beporl,  in 
the  cause  of  the  king^s  ecclesia«itical  law,  Ibl,  9, 
says,  "  As  in  temporal  causes  the  king,  hy  the 
rooulh  of  his  judges  of  justice,  doih  judge  and 
determine  the  same  by  the  lemporal  laws  of 
England  ;  so  in  causes  ecclesiastical  and  sjiiri* 
tual,  as  uamely,  blaaphemyf  apostacy  trom 
Christianity,  lohjsins,  ordering,  that  is,  ^ordina* 
tion),  admissioDS,  institutions  of  clerks,  cekbrc- 
tion  of  divine  service,  and  others,  the  conu- 
sance whereof  belongs  not  to  the  common  law 
of  EngUtud,  tbetaine  are^to  be  detertuined  oud 


4S9]         S  WILLIAM  IIL  Proeeedmgt 

decided  by  ecclesiastical  judges,  according  to 
the  king's  ecclesiastical,  laws  of  this  reuliii." 
In  the  case  of  Holi  and  D]|fhtDn  in  the  12th  of 
king  James.tbe  Hrst  is  reported  1  Rolle's 
Kep.  41U).  who  were  brought  up  into  this  conrt 
by  Habeas  Corpus,  the  return  whereof  was, 
that  they  %vere  coinmitied  b^'the  liigli  com  mis- 
sion court,  aud  the  cause  ot  their  commitment 
was,  that  they  were  dematid^id  by  the  high 
commission  court  if  bey  would  coDtbrmthi^m- 
seives  to  the  custom  of  the  chnrch  i*f  England, 
and  receive  the  sacrament  kneeling ;  aud  for 
that  they  would  nut  give  a  direct  i^u^wer  to  it, 
vhey  were  commiited;  and  thou<;h  it  was 
moved  l»y  seijcant  Hanrey  to  Iiave  them  dis- 
charged, yet  Cuke  und  Dodehclge  said,  that 
the  high  cuuimissiun  coin^t  had  jurimlictjoi)  o1 
schisms  and  heresies,  and  in  that  case  they 
were  accused  of  a  schism,  and  thereture  they 
had  jurisitiction  of  the  cause ;  and  so  the  court 
Temauded  them. 

NoM',  my  lord,  within  all  and  every  one  of 
tbese  description  j  of  spiritual  canses  comes  this 
th^is  DOW  bf^tire  your  lordship  ;  for  acconl- 
ing  to  that  of  sir  Tl^fHuas  Smith,  this  concerns 
onlers  or  oidinatimi,  for  it  was  bv  virtue  of 
thdr  ordinntioti  ih^  they  did  it.  It  relates  to 
the  decorum  off  the  church,  and  concerns  the 
establishment  of  religion  :  for  ibe  indictment 
says,  it  whs  done  lo  the  scandal  of  the  Protes- 
tant religion  now  by  bweslahliitheff.  And  that 
it  is  maUer  of  conscience,  is  in  itself  apparent. 
.Thfi  case  comes  likewise  withiu  my  lord  Coke's 
description  of  spiritual  causes ;  for  it  concerns 
ordmnif  and  the  celebration  of  divine  service  ; 
for  the  quesriori  is.  Whether  thev  |>€rformed 
as  they  ouj^ht  to  do .'  And  the"  indiclraciit 
itself  shews  it ;  which  not  only  stiles  the  de- 
fendants clerkB,  but  says  they  did  it  *  ul  Prcs- 
fcytfcri  Ecclesi«  ogbcanat*  •  *whirl  in  iuiates  it 
was  done  in  cek'hraling  divine  service.  And  if 
kneetinij  at  the  sacranient  be  a  matter  of  eccle- 
siastical conusance,  and  out  of  the  reach  nfthe 
lempoml  couit^  ;  though  the  ri'brick  is  inurh 
more  plain  aud  oxpre**  in  tliatthau  in  our  cane, 
yet  if  thai  onconformity  ho  called  a  M'hi.sin,  ii 
IS  only  examinali  eiu  the  spirit'iai  courts,  whe- 
ther oun$  Im' ko  (ir  no.  Aral  tlic  rather,  my 
lord,  shall  the  hislidp'scouvi.  or l lie  bishop  Iuhi*- 
«lf,  judge  this  matter,  for  tljjif  J>y  i!:l' om- 
mon  law  erclcsiastical,  the  bislmp  is  appoinlwl 
the  visitor  of  all  that  enter  into  hiiy  «;nlcrs, 
and  he  is  to  sro  if  they  livi-  anil  act  ;KT'»r  ".invr 
to  their  ordination,  and  tu  pum^h  tiem  thkit  do 
amiss.  And  absolutioM  is  one  i»f  tlic  i^ rp.it  end 
of  ordination ;  and  for  this  purpoj..  do:h  f  ije 
bishop  make  his  fjv({MCMn  vi-^itHfii'-.s.  >  •)«•, 
fny  lord^  where  the  law  doili  r.npoinl ;:  parruu- 
lar  visitor,  he  alone  is  to  lock  to  ilsut  <  liari;*:, 
and  no  one  clw?  to  inteHav:  ai: .  that  is  thi* 
retLSon  why  a  MaiiilaiDiis  di^l  s.o:  l"o;iMf'r1y  ^u 
out  of  ihisVnirt  lo  restore  A  munk  or  friar,  lior 
at  this  nif^to  a  ^lki*Fofa  college  a  pn.c:or 
of  >nclor$Comn]mis,<irtheljke  Aiid,  1  think, 
on  that  poini  thecailse  oj'  Biceti^r  Cotk'^e  was 
adjudged  Dg^ninstHr.  B«rry,  in  the  IlDUse  of 
Lords.    To  tliis  I  must  crave  leave  to  adtl, 


agaimt  Tltree  Nonjuring  Clerggmmt  [440 

that  where  the  ecclesiastical  oonrt  liath  oona* 
sance  of  any  cause,  all  other  ilimgh  thai  are 
hicident  or  relating  to  it  are  hkewjse  w  Ubia 
their  jurisdiction :  '  Cognitio  prLiiclpohs  trabil 

*  ad  se  accessorium.*  And  ii»e  bookf  are  «i 
ful  of  iuj^tanres  lliereiif.  that  1  iie«d  nutuieiitius 
any.  And  if  any  inlcnor  o^cer  iiun|^TF«a«5  ia 
acting  or  doin^  ihat  whii^it  betonga  to  eccleai- 
asticai  conusance,  the  aiclibishops  and  bi^ps 
are  to  punii^h  itfand  the  temporal  judge  u  not 
to  interfere.  kxHctloUi  mid  extorltotis  Mi 
more  like  temporal  otienceF,  than  what  tbcn 
ddetidanls  suind  now  coavictedof;  fbrtbssi 
in  their  own  nature  xuud  lo  stir  up  the  pMpIs 
to  seJiUon  mui  rebellion  ,  yet  these  oflcooci, 
when  committed  by  spiritual  tnenor  in  eode- 
siiisiitmi  allkini,  by  the  common  law  our  oowti 
could  iiLil  meddle  with  thenu  Mr.  Prynne^ia 
his  A  ni  mad  versions  on  my  kml  Coke^^  Idttftk 
Inst  lutes,  toi.  23d  cites  this  rec<ird  out  of  tht 
pelirions  n  parhametit,  Anntr    8  £»  1.  *  Ho* 

*  mines  de  Lundou  comrjurnmlur  di^  offidtttB 
^  et  mini^^tnsEcclesi^ demultiinodiH  veialMBi- 
'  bus  ct  e£af!tionLhus  nimis  oncrosis,  per  qaM 

*  plus  erlorquent  de  populo  quam  ornnes om 

*  laicales  ;  et  petunt  qunA  Hex  opponat  none* 
^  ditim  ieibnanicr^  ne  destrnatiir  populns  ia 

*  occulto.  The  beginning  ot^  the  king's  m* 
swer  is  sonietvhit  ilonbtfully  penned.  Mr* 
Pryune  gi\es  it  tu  ^  distingufshing  dtatiiM^j 

*  si  curia  Regis  posiit  amendari,  taciat-'  M 
the  rest    of    the   imswer  is    direct  ;    *  C^ 

*  ccllarins  emendft   in   lemporalibus,  Aiflki^ 

*  [liscupus  facial  iu  Epirituaubue/  But  ihiB 
0[)pressions  nud  €\'tortions,  it  seems,  coo- 
tin  in  d  ;  and  sonic  altempLs  there  were,  lo 
punish  th'^m  fay  inclietmenls  at  common  law ; 
hut  such  i:n!i'.*tuic  ;t3  upte  thouffUt  itl^nd  (^ 
in     heOcit^i!  lUr  ul"*     6  E.  3,  par  %  Tom* 

*  Rax  Chm.     6  td.  5,  par  3  izieto.  lA 

dorso,  in  Turri  London.       Rex  dil«eris  etfido- 

I  « libus  suis  Hiigoni  de  Courtney,  Comiti,  De- 

«  von*,  ct  ^ttvm   ui«,  Jusiiciariis  nostriasd  4^ 

*  versa  transgrc«si  nes,  oppreESiones  t-i  extsr> 

*  fiiones,  damn:     grflvamina  et  ejceessu^at^ 

*  et  populo  iiostro  iltaiain  Com  Def  on^  aodieodi' 
^  cL  terminated'  a^^stiriiAi^  sahitem.    C-uni  in  al- 

*  tirao  concilionoitn*  apud  VVe&tiD'teniu,adiv* 

*  qniHttiontm  Prebtor  regTii  noslr*  AaglB 
(  conceasimus,  quod  processibus  omnibas  ^ 
t  singulis  coram   Jusiieiarits  nosiris  iue'     '^ 

<  sen   fact  is  contra  virus    Ecclesia«tJcoi« 

<  jn*,cnnfpie  conditiooisaiit  status  fnerint,  i 
«  aJ^iorfiiuuibus  et  excesisibuK  per  ipsos  in  i 

<  acjunuirt  coroiuEinoftrBe  prejadicium  in  < 
«  citici  jurii^di(5tiuiii^  EucleiiELstic^c  factist  ad  €tf\ 
'  il^enii*  in  ipsus  liijs  oecLsiombus  prnmu?e;Ml*| 
Misque  ad  proxi>uuui  piirljfumt'muni  i  <i  iniiffl] 
«  suprrsi'draiur  ;  •  t  qui  d  inqiiisitiones 
«  extorsionib'.is  d  cxresf-ihus  liiijusmodii 

*  cos  per  .lu.<f(iri.i:'ios  citra  dictum  parlian 

*  n'.dlatcnus  lU*  novo  ti.uit ;  Vobis  inandaMi% 

<  quod  nmnibus  prncei^i^  bii^€orum  vobis  in  cntf 
«  predict'  inci:<»atis  veraa-iquoftcuwiuev"      "^ 

<  clesiasticus,  |)rc»  eitorsiortibus  et  i 
(  per  ipsDs  in  nvstri  et  jurium 


441J   Jar  ainhing  Sir  W.  Varhpu  and  Sir  J.  Freind.     A.  D.  1696. 


[44S 


13,  dono,  I  find  a  special  *  Supersedeai  jiro- 

*  oeisibiis  uoiDibiiset  siiigulis  coram  justiciariis 
'  Dosrtria  inchoalis  sen  tactis  contra  viros  £c- 

*  eiesiaaticosy  ciyuscunquecondiliouis  aulHtaius 
'  fiierint,  super  eztorsioiiibus  et  exccssibiis  per 

*  ipsos  ID  nostri  ac  juriuni  oorone  nostne  pre- 
*judiciuin  iu    exercitiu  jurisdictioiiis   Eccle- 

*  iiasiics  factis.'    AutI  ibat  there  should  be  no 
nuM-e  Dew  indJctaiPDts  against  them  before  the 
next  partiament.     Aud  iu  the  Close  Roll  17  £. 
3,  liar.  1,  ro.  24,  dorsu,  is  |he  like  writ  to  the 
junicca  of  Oyer  and  Terminer  for  the  county  of 
Herelbrd,   iu  which  there  is  a  Supertedeas  to 
stay  tbe  proceedings  at  common  law  against 
soHie  particular  persons  for  those  oflcnces.  And 
in  the  close  roll  of  18  E.  3,  m.  14,  dorso,  (8ir 
Wdiiana    Dugviale  is   mistaken  in  tbe  year, 
when  be  calls  it  tbe  17th)  is  the  summons  to 
lAriiament,  tlie  next  parliament  aAer  tbe  afore- 
MJd  writs  ;    and  the   summons  runs   thus  : 
'  Quia  pro  quibusdam  arduis  et  urffcntibus  ue- 
'  gutiis,  hoiKtreni  Dei,  et  decus  et  defensionem 
*  eeclesin  Aiiglicanue,  et  salubre  regimen  populi 
'  ct  regni  iioatri  Anglis  summe  contingentibus, 
*ordina¥imus|»arliaroentum  nostrum,'  &c.  At 
which  parliament  there  was  an  act  made,  which 
ii  in  the  printed  statutes  18  £.  3.  c.  6.  in  these 
words  :    *'  Whereas    comniissions  be    newly 
Bide  to  difers  justices  to  oiake  inquiry  upon 
judges  of  boly  church,  wlietber  they  made  just 
process  or  excessive  in  causes  testamentary, 
•mi  other,  which  nDtorioosly  Dcrtaineth  to  the 
coumnce  of  holy  church :  the  said  justices 
hive  inquired,  and  caused  to  be  indicted  judges 
of  kolr  church,  in  Uemisbini^  the  franchise  of 
holy  cliurcb,  th«t  such  commissions  be  repeal- 
ed, and  from  henceforth  defeodetl."    And  so 
tbe  officers  of  tbe  ecclesiastical  courts  went  on 
vith  tlieir  oppressions  and  extortions,  and  the 
ittDporal  courts  could  not  lay  hold  of  tbem 
iv  those  offences,  as  appears  oy  several  peti- 
tions  and  answers  in  tbe  parliament  rolls, 
Si  £.  3,  D.  51. 1 II.  5,  n.  23,  till  the  statute, 
2t  H.  8,  c.  5,  brongbt  tbem  within  the  conu- 
naceoftbe  courts  of  common  law.    And  if 
ihearcfaibishops  and  bishops  can  alone,  (the  sta- 
tute being  out  of  the  case)  exclusive  of  all  secu- 

'prejudicium  iu  exercitio  jurisdictionis  Eccle- 
'  nasties  factis,  usque  ad  proximuui  pariiamen- 

*  turn  noatrum   supersederi  faciatis  ;  et  Vic' 

*  Dostr'  com'  prsedict'  detis  in  mandatis,  quod 

*  exigend'  in  ijisos  vel  eorum  aliquem  piniissa 

*  oocasione  promnlgand'  usque  ail  dictum  par- 
*liamentum  nostrum  supenedeat:  acvosin- 
'  qnsitioaibus  super  extorsionibus  et  excessibus 

*  higusmodi  contra  dictos  viros  Ecclesiasticos 
*•  citra  parliamentum  pncdict'  de  novo  capieod' 
'similiter  supersedeatis,  juxta  promissienem 
<  Boelram  predict.    (T.  prefato  Custode  apud 

*  Kenynton,  15  die  Noverobris. — Per  Coiici- 
'  linm. — Eodem  modoraandatum  est  Thome  de 

*  Bcrkele,  etSociissuis,  Justic'  ad  di  versa  trans- 

*  gnasioiies,  &c.  in  com'  Som.  (T.  ut  supra.)' 

And  there  is  a  space  in  tlic  roll,  supposed  to 
belefl  fiir  eiitering  uf  other  writs  of  the  like 
that  were  then  issued  idrth. 
4 


lar  power,  look  after  and  punish  the  irregulari- 
ties of  their  commissaries,  though  tbey  tended 
to  tbe  prejudice  of  the  king  and  lii^  royal  pre- 
rogative, their  (lower  must  be  full  as  great  over 
allecclesiastics,  and  in  an  eminent  manner  over 
the  clergy,  in  all  matters  reJatiu^  to  their  func- 
tion, and  especially  iu  all  things  which  concern 
the  discipline  of  tbe  church,  of  which  the 
bishops  are  judgeii,  as  well  as  of  the  doctrine, 
Uraclon,  in  bis  fit\h  Book,  *  De  Exceptionibus, 

<  c.  2,  fol.  401,  a.'  treating  concerning  the  ju- 
risdiction   of  courts  hath    tliis    expression  : 

*  Clericus  in  uullo    conveniendus  est    coram 

*  judice  seculari,  quod  pertineat  ad  forum  £c- 

*  clesiasticum,  siuut  in  causis  spiritualibus,  vel 

*  spiritualitati  annexis,  ut  si  pro  peccato  vel 

*  transgressione  fuerit  pienitentia  injuiigenda, 

*  et  (inucasu  Judex  Ecclesiasticus  liabet  cog- 

*  nitionem  ;  quia  non  pertineat  ad  llegem  in  - 
^  jungere  pccpitentias,  ncc  ad  judicem  secula- 

*  rem,  nuc  ctiaiu  ad  cos  pertinet  cognoscere  de 

*  lis,  sunt  qn»  spiritualibus  annexa.'  And  if  tbe 
temporal  courts  cannot  hold  plea  *  de  pceniteD- 

*  tia  injunj^nda,'  certainly  they  cannot  pnnisb 

<  pro  |HBnitcDtia  non  dccUirata.'  Bcsules,  I 
think  It  cannot  be  denied,  that  absolution  is 
spiritual,  <  vel  saltern  spiritualitati  annexa.* 
More  instaDC(«  1  could  produce,  if  I  thought  it 
necessary,  to  prove  that  whcie  the  eeclesia»- 
tical  court  halh  conusance'  of  the  celebration  of 
divine  seiviceor  other  spiritual  matters,  it  mni 
hold  nlea  of  what  is  incident  or  belonging  to  it ; 
andtnereibrc  of  the  mind,  intention,  and  de- 
sign with  which  any  spiritual  office  is  perform- 
ed, if  such  mind  can  be  fatliomed,  aud  inten- 
tion punished.  And  I  presume,  my  lord, 
there  will  be  no  occasion  to  prove  that  all  the, 
rights,  liberties,  iirivileges  and  immunities,  that 
the  clergy  lawliiily  eqjoved  in  the  time  of 
popery,  do  still  belong  to  the  present  church  of 
England,  unless  they  are  taken  away  or  altered 
by  act  of  parliament ;  for  tliough  the  erron» 
were  corrected,  and  abuses  reformed  in  mattcra 
of  doctrine  and  of  foreign  jurisdiction,  yet  tbe 
legal  rights  of  the  church,  and  power  of  the 
clergy,  were  not  shaken  or  invaded  by  tbe  re- 
formation. 

3.  And  now,  my  lord,  1  come  to  tbe  tbifd 
and  last  point  I  propose  to  speak  to ;  and  that 
is,  supposing  what  these  gentlemen  stand  ac- 
cused of  is  an  efieoce,  and  tlut  this  court  liath 
conusance  of  it ;  yet,  with  submission  to  your 
lordship,  there  is  no  judgment  to  be  given 
against  us  on  tliis  indictment.  I  believe  the 
kmg's  counsel  cannot  shew  me  auy  rule  at 
common  law  concerning  absolution.  *  So  that, 
if  we  are  guilty  of  any  offend?,  it  is  tor  not  ob- 
serving the  Rubric.  If  we  have  acted  accord- 
ing to  the  letter  and  intent  of  that,  no  indict- 
ment will  lie  against  us  for  the  fact  we  are  now 
accused  of:  and  if  we  have  deviated  from  the 
Rubric,  then  the  indictment  ought  to  have  been 
framed  on  the  act  of  uniformity.  It  is  a  riife 
laid  down  in  our  books,  That  wliere  a  statute 
makes  that  an  offence  which  was  not  so  befbrr, 
an  indictment  for  that  offence  must  conclude 
'  contra  fbrmam  statuti.'     Ho  is  1  Saundevs 


443]  8  WILLIAM  III.  Proceedings  against  Three  Nonjuring  Clergymen^  [444 


249.  2  Ilol1e*8  Abr.  8S.  1  Crake  449,  and 
Joneii  379.  And  I  could  instance  in  many 
precedents  that  are  drawn  accunlingly.  1  shall 
mention  some  tew  on  this  very  act  of  parlia- 
ment. Tliey  are  all  in  the  same  term,  Mich.  X5 
and  16  queen  Eliz.  in  this  court,  and  against 
the  same  i>erson,  i^ibert  Johnson,  of  St.  Cle- 
ments Danes,  clerk.     One  of  the  indictments  is 

*  for  speaking  against  the  Book  of  Common 
^  Prayer,  contra  formam  statuti:'  Another 
against  him,  *  for  omitting  the  Litaoy,  E|)istle 
'  and  Gospel,  in  saying  the  Divine  Service :' 
Another  against  him,*  tor  christening  a  child, 

*  and  not  signing  him  with  the  sign  of  the 

*  cross :'  another  against  him,  •  for  marrying  a 

*  couple  without  a  wedding  ring :'  another 
against  the  same  person,  *  for  saying  morning 

*  and  evening  service  without  a  surplice.'  And 
though  the  preamble  and  inducement  to  every 
one  of  these  indictments  make  an  heavy  com- 
plaint against  the  |>erson  that  is  so  indicted,  as  if 
ne  intended  to  ficstroy  the  Protestant  religion 
by  law  established,  and  overthrow  the  govern- 
ment, yet  they  all  conclude  *  contra  formam 

*  statuti.*  Now,  my  lord,  according  to  the 
mle  and  precedents  f  have  cited,  this  indict- 
ment that  is  now  before  your  lordship  should 
have  set  forth,  that  the  dct'rndants  did  not  move 
air  John  Friend  and  sir  William  Perkins  to  a 
special  confession  of  their  sins,  but  without  it 

Sive  them  absolution,  *  c«>ntra  formam  statuti.' 
ut  supping,  my  lord,  it  should  bo  answered. 
Chat  tlie  mdictmeot  is  rather  for  the  ill  inten- 
tion of  the  defendants,  than  for  not  observing 
the  Rubric;  whh  humble  submission  to  your 
lordship,  if  such  an  iudictment  may  be  brought, 
yet  this  before  your  lordship  is  not  rightly 
framed,  but  ib  insuHicient  and  uncertain  in  re- 
lation to  that  \*try  intent :  For  the  indictment 
says,  these  dtlendants  conspiring,  intending, 
and  designing  the  execrable,  horrible,  and  de- 
testable treason,  for  which  sir  John  Friend  and 
sir  William  Perkins  weri!  then  just  going  to  be 
executed,  to  justify,  or  at  least  to  extenuate, 
diminish,  and  undervuliie,  ^Vc.  did  absolve  them. 
Now,  my  lord,  p.on  constat  wliich  they  aimed 
at,  justifying  or  undervaluing;  and  they  can- 
not be  found  guilty  oi'all :  for  tiiough  the  ver- 
dict be  general  as  to  this,  yet  it  is  according  to 
the  indictment,  which  is  in  the  disjunctive,  *  Et 

*  in  disjunctivis  sutHcit  unum  verificari.'  There- 
fore our  common  law  dolli  always  require  cer- 
tainty, but  especially  in  indictments ;  they 
ought  to  be  ceriain  to  every  intent,  that  a  cer- 
tain judgment  may  he  given  on  them.  Where 
a  man  in  pleading  yets  tortli  his  title  by  a  con- 
veyance, in  which  are  the  words  *  give,  grant, 

*  release,  coniirro,  bargain,  sell,'  Sec.  he  must 
shew  which  of  them  lie  makes  use  of,  and 
which  he  apiilies  to  his  purpose,  or  else  his 
plea  is  naught,  1  Ventr.  109.  The  return 
of  a  Habeas  Corpus  sets  forth  the  commitment, 
'  Kt  lm.>c  est  r.usa  eaptionis  seu  detcntionis,' 
a(ljiid;4ed  an  ill  return,  1  Ventr.  S24.  In  Tri 
nity  Temi  last,  in  this  t^oiirt,  there  were  seve- 
ral iudictmenis  against  liaker  and  others  fur 
exercising  the  trade  of  a  rope -maker, '  ejcistens 


'  misteriom  infra  regnum  Anglis  vd  Wallis ;' 
and  there,  although  the  ofllenoe  was  the  same 
whether  it  were  a  trade  in  £nglaud  or  Wales, 
yet  for  the  uncertaioty  which  the  disjunctive 
made,  the  indictment  was  quasheil.  And  in 
the  Ustterm  (H.  9  W.  3.  B.  U.)  Sanky  uid 
another  quaker  were  brought  uii  by  Habets 
Corpus,*  and  the  return  set  fortn  a  commit- 
ment by  two  justices,  by  virtue  of  the  statiitt^ 
27  U.  B,  c.  SO,  reciting  a  certificate  from  the 
commissary,  that  a  cause  of  subtraction  of  tytbcs 
or  other  ecclesiastical  duty  was  depending  in 
the  ecclesiastical  court,  to  which  the  defendanu 
refused  to  answer.  In  that  cause,  though  the 
wonls  of  the  act  of  parliament  are  strictly  pur- 
sued, whicli  gives  the  same  remedy  where  the 
fact  is  for  other  ecclesiastical  does  as  it  does 
for  tythes,  yet  because  the  certificate  on  which 
the  return  was  grounded,  did  not  set  forth  in 
imrticular  for  what  the  suit  was  commenced  in 
the  ecclesiastical  court,  but  only  in  the  dis- 
junctive, for  that  reason  the  commitment  wtn 
held  insufiicient,  and  the  parties  discharged. 
In  Mr.  Howe's  case,  Bendlow,  fol.  00,  in  Re- 
plevin, the  plaintiff*  claims  common  appurte- 
nant to  a  manor  or  a  messuage  called  CursaH 
Grange,  by  prescription,  and  uey  were  at  issue 
on  the  prescription ;  but  in  arrest  of  taking  the 
inquest,  it  was  shewn  to  the  court,  that  the 
prescription  was  uncertain  ibr  the  common,  to 
wit,  to  the  manor  or  messuage:  where  he 
ought  to  have  claimed  it  to  one  only.  And  the 
court  adjudged  them  to  re-plead,  though  the 
place  itself  was  expressly  and  certainly  named, 
and  called  Cun^all  Ctrange.  In  the  same  book, 
fol.   177,  pi.  o9,  an  ejeclinciit  *  de  una  acra 

*  terra*  sive  prati'  adjudginl  ill ;  and  so  is  tlir 
same  case  reported,  Dyer  '261,  pi.  :J9,  and  1 
And.  31,  pi.  73.     An  inquisition  on  a  *  dnin 

*  clausit  extrcmnm'  finds,  that  a  man  ^a^ 
seized  *■  de  uno  messuagio  sive  teiiemento,' 
was  held  void  and  insufiicient,  Ley.  9,  13  Kep. 
48.  »So  an  ejectment  *  de  uuo  messuagio  sivp 

*  tenemento'  is  ill,  even  alter  a  verdict,  1  Uullc's 
Itep.  7,  331.  2  Itolle's  Abr.  80.  3  l^nnard, 
828.  Iav.  43.  2  Cor.  621.  1  Siderliii.  C95. 
1  Cro.  188,  and  many  other  books.  And  in 
Noy's  iteports,  on  the  like  occasion,  it  is  said, 
that  a  writ  in  the  disjunctive  is  void.  And  in 
Popham,  fol.  203,  it  is  held,  that  an  ejectment 

*  de  burgagio  sive  tcnemento'  is  naught. 
Though  indeed  in  serjeantllardressc's  Reports, 
fol.  173,  in  the  case  of  Dan  vers  versus  Willing- 
ton,  it  was  held,  that  an  ejectineiit  *  pro  uoo 

*  messuagio  sive  burgagio'  in  Hay  infra  Muros 
was  good  enough  ;  but  the  reason  given  w  as, 
because  *  messuagium  et  burgagium'  signify 
the  same  thing  in  a  borough.  There  was  a 
cause  (Pasch.  or  Tr.  8  W.  3.)  about  two  years 
since  in  this  court,  it  was  an  indictment 
against  Stoker,  for  that  he  '  fabricavit,  sen  fa- 
'  oricari  causavit,'  a  certain  bill.f     Exception 

*  See  Lord  Raymond,  323.  Holt,  657.  U 
Mwl.  Hep.  1(1'). 

t  Sec  Siocker's  Case,  Salkeld,  312.  371. 
5  Mod.  Itep.  137. 


far  abgoking  Sir  W.  Parhyns  and  Sir  J.  Frein(L    A.  D.  169G. 


[446 


»to  it,  because  it  was  in  the  diRJunc- 
rreas  it  ought  to  have  been  positive  and 
ir.  And  1  tbiok  the  counsel  for  the 
or  could  never  get  over  that  excep- 
id,  to  the  best  of  my  remembrance, 
H  but  one  answer  that  was  aimed  at, 

wma,  that  tlie  ofreD<.*e  and  fact  were 
i  I  for  he  (bat  caused  it  to  be  counter- 
night  be  truly  said  to  counterfeit  it : 
nk  that  was  not  held  a  good  answer  to 
eption.  But  in  our  case  that  cannot 
ided  :  *  Justiftcare'  and  *  Vilipendere' 
Terv  different  signification.  The  very 
nt  cloth  insinuate  as  much  ;  *  Justi- 

vel  sallem  extenuare,  diroinuere,  et 
lere.'  The  <  vel  saltern'  doth  shew, 
sobaequeiit  words  are  not  of  so  great 
those  pTPcedent.  And  indeed  almost 
they  are ;  for  he  that  justifies,  denies 
ivas  an  oflence;  whilst  he  thatdimi- 

undervalues  it,  says  truly,  it  was  an 
but  not  so  great  as  is  pretended.  And, 
,  by  reason  of  this  uncertainty,  the 
ust  be  in  doubt  what  judgment  to 
r  it  is  evident,  he  that  would  justify 
I  Freind's  offence  would  deserve  a 
NiDishment,  than  he  that  should  only 
,  and  say  it  was  not  so  great  an  offence 
'nock's.  Such  an  invasion  is  not  so 
ad  villainous,  nor  of  so  deep  a  dye,  as 
larous  assassination  that  was  intended, 
ch  a  manner,  methinks,  a  man  might 

extenuate  an  offence,  when  it  would 
y  criminal  to  maintain  and  justify  the 
iesid«fs,  '  Vilipendere'  mav  be  taken  to 
iontemn,  and  condemn  tbc  fact;  and 
rt  be  thought  a  criooeP  And  the  necnon 
dsy  with  those  other  aggravations  that 
i  added,  cannot  mead  the  matter  :  for 
larangue  of  persuading  persons  that 

Fieind  and  sir  William  Perkins  were 
,  and  the  inciting  the  people  to  treason 
sHion,  depend  purely  on  the  justitica- 
Extenuation  of  the  crime ;  for  if  the 
e  justified,  people  would  be  sooner  in- 
<  K>lk>w  their  example,  than  if  it  were 
edjped  to  be  an  offence,  but  the  hein- 
ot  it  lessened,  diminished,  or  vilified. 
eh  of  these  the  defendants  aimed  at 
bcful  to  him  that  drew  the  indictment, 

to  the  jurjr,  and  therefore  I  hope  the 
ill  give  no  judgment  on  it.  Besides 
lord,  there  is,  I  presume,  another  ex- 
that  may  prove  fatal  to  this  indict- 
lod  that  IS,  the  insufiicient  settiniir  forth 
K  of  sir  John  Freind  and  sir  Wil- 
f  in  not  shewing  when,  where,  or 
hat  judges  they  were  atuinted,  which, 
naisrioa  to  your  lordship,  ought  of  ue- 
D  have  bfCB  done.  I  acknowledge  that 
requires  not  much  cer- 
I  it  is  such  a  matter,  on  which 
kdoth  10  depend  that  you  can  make 

without  it,  and  when  it  is  traversable, 
I  mbstance,  and  must  of  necessity  be 
f  czprcased.  For  instance,  if  J.  S.  be 
,  tithtr  civilly  or  criminaUy>  of  an 


offence,  which  is  not  so  but  with  relation  to  a 
fact  of  J.  D.  there  the  fact  of  J.  D.  must  be 
certainly  expressed.  As  in  Hetley,  73.  3  Cro. 
75S2.  plowman,  a  constable,  was  indicted  for 
suffering  one,  who  was  arrested  *  pro  quodam 
*  felonia  antea  facta,'  to  escape ;  and  because 
it  was  not  shewn  what  felony  it  was,  and  when 
done,  he  was  discharged.  2So  in  this  case,-if  it 
be  an  offence  to  absolve  traitors,  whether  they 
are  attainted  or  no,  then  the  treason  ought  to 
be  specially  and  particularly  set  forth,  and 
when  and  where  it  was  committed  :  hut  if  it  be 
not  an  offence  to  absolve  traitors,  unless  they 
are  attainted,  then  that  attainder  ought  to  be  as 
fully  and  plainly  expressed  as  the  time  and 
place  where  those  traitors  wore  executed, 
which  in  this  indictment  is  carefully  set  forth. 
And  that  this  indictment  is  faulty  in  this  par- 
ticular, I  shall  endeavour  to  prove,  as  well  by 
precedents,  as  by  the  opinions  and  judgments 
in  our  books  of  hiw.  But  inasmuch  as  thi* 
indictment  is  '  prime  impressionis,'  I  must 
trespass  on  your  lordship's  patience,  whilst  I 
refer  to  other  precedents  in  which  records  art 
mentioned  and  recitetl,  and  from  a  parity  of 
reason  reduce  them  to  tlie  present  case.  I  shall 
begin  with  precedents  of  declarations.  If  an 
action  of  deot  be  brought  against  a  sheriff  for 
the  escape  of  one  in  execution,  the  time  and 
place,  and  the  court  in  which  the  judgment 
was  obtaine<l,  is  always  mentiomrd.  Hem.  74. 
Robinson,  311.  Brown's  Entries,  1  par.  18. 
2  par.  16.  Brownlow's  Lat.  Rediviv.  S3. 
Thompson,  132.  and  Vidian  193,  197.  and 
several  other  books. 

So  against  a  sheriff  for  not  taking  one  in  ex« 
ecution  Uiat  was  in  his  presence,  sets  forth  the 
judgment,  and  out  of  what  court,  when  and 
where  tlie  execution  issued.  Upper  Bench 
Precedents,  79.  Astou,  67.  2  Brownlow,  36, 36. 

An  action  for  maliciously  indicting  the  plains 
tiff  for  felony  sets  forth,  when,  where,  and  be-  ' 
fore  whom  tiie  indictment  was.    Vidian,  145. 
Hansard,  24,  26,  and  63. 

An  ittformatioii  against  one  for  taking  and 
carrying  away  the  goods  of  afelo  de  se,  sets 
forth  the  inquisition,  and  before  whom  it  was 
taken.    Old  Book  of  Entries,  226,  b. 

An  information  for  intnidiug  into  lands  which 
came  to  the  king's  hands  by  attainder,  acts  forth 
the  record  of  attainder,  where,  when,  and  be- 
fore whom.  Rttslairs  Entries,  387,  412.  Plow* 
den's  Commentaiies,  647.    Ashton,  181. 

And  so,  my  lord,  in  all  good  precedents, 
where  records  of  attainder  are  mentioue<l,  the 
time,  place  and  court  are  always  set  forth.  So 
is  Wiat's  attainder,  Co.  Entries,  79.  Rastall, 
413,  b.     Plowden'sCom.  449. 

So  is  Littleton's  attainder,  Co.  Entries,  422, 
b.  And  Trunel's  attainder,  Co.  Entries,  246, 
b.  the  duke  of  Somerset's  attainder,  Co.  En- 
tries, 481,  and  the  attainder  of  John  Bary,  iu 
the  same  book,  fol.  699. 

So  if  the  master  of  the  Crown-Office  takes 
an  inquisition  concerning  the  escape  of  any  pri- 
soners of  this  coi^rt,  according  to  the  39tb  of 
H.  6,  c.  33,  the  record  oo  which  they  were 


447]  8  WILLIAM  III.  Proeeedings  againU  Three  Nunjuring  CUrgymen,  [4tt 


eommitted  is  fully  taken  notice  of,  as  I  have 
aeva  a  prece4leD\  'Micii.  4  &  5  Kl.  Dot.  7.  In 
the  case  of  iMr.  Uraddon  ami  Mr.  Speake,  the 
indictment*  doth  not  only  say  that  my  lord 
Essex  did  murder  himself  at  such  a  time  and 
place,  but  ailds  further,  *  as  by  inquisition  taken 

*  at  the  Tower  of  London  aforesaid,  upon  view 

*  of  the  body  of  the  said  Arthur  earl  of  Essex, 

*  and  now  in  this  court  remaiuin«f  of  record, 

*  does  more  plainly  ap|iear.'  So  the  indictment 
^fainst  Tasborou^h  and  l^-ice.f  for  suboruing- 
Dtigdale  to  retract  his  evidence  that  he  had 

S'veu  against  the  Popish  Recusants,  6cc.  nets 
rth  the  record,  where  and  before  whom  such 
convictions  were,  iio  in  the  case  of  Thom[isoii, 
Pain  and  Farewel,  lor  printing  and  publishing 
a  scandalous  pamphlet  relating  to  sir  Edmond- 
bnrv  Godfrey's  death,  the  information  ^  doth 
not  begin  like  this  indictment,  *  Whereas  Green, 

*  Bury,  and  Hill,  were  attainted  of  murder ;'  but 
•eta  forth,  Thatit  was  in  such  a  court,  in  such  a 
year  and  term,  with  the  indictment  and  attainder 
at  large,  and  where  the  record  is  to  be  found. 

1  conid  instance  in  many  more  precedents  of 
the  like  nature ;  but  I  fear  I  have  tired  your 
lordship^s  patience  too  much  already,  and  there- 
lore  shall  conclude  with  one  that  will  lea«l  me 
to  the  opinions  and  judgments  in  our  books  nf 
law,  which  I  hope  will  he  of  use  to  fortify  the 
precedents  I  have  cited  to  prove  this  indict- 
ment vicious.  It  is  in  Keilwoy,  193.  An  in- 
oulsition  that  finds  the  attainder  of  one  Hays : 
the  record  is  lirge,  and  therefore  I  shall  not 
I'eche  it,  nor  make  any  other  obseiTations  on  it 
than  what  are  in  the  very  report,  which  arc  in 
these  words :  **  Memorandum.  This  Inquisi- 
tion was  drawn  by  good  advice,  that  is  to  say, 
by  the  council  ot'king  Henry  the  7lli ;  yrt  the 
inquisition  wliicli  entitled  the  kinif  to  the  land, 
by  reason  of  tfie  attainder  of  the  said  Jiavs, 
doth  not  niak*?  any  mcuiion  of  iho  indicteir- , 
nor  of  the  names  of  the  justices  of  jieacp  who 
took  the  inrii(;tm''nt,  but  only  the  duy  <if  the 
the  indictment  ttikcu,  and  tlio  day  of  his  ;)t- 
vainder,   without    rxprrsbly    mcni toning  wh:it 


all  the  special  matter  shall  come  in  bv  the  cer- 
tificate :  and  although  the  justices  of  gaol-de- 
livery, or  other  justices,  before  whom  the  coo- 
viction  or  attainder  is,  do  not  certify  the  ori- 
G^inal,  it  is  not  material,  so  that  tliey  certify  the 
body  of  the  record  of  the  attainder  or  convic- 
tion.'* These  are  the  words  of  that  book :  and, 
mv  lord,  it  must  be  on  the  same  reason,  that 
wuere  a  man  pleads  a  couvic4ioD  of  i-ccusanci*, 
he  must  shew  before  whom  it  was,  N'uy,  89. 
07.  And  so  arc  the  precedents  in  Wincfae's 
Entries,  522,  5<i3,  524.  2  Browul.  13.  Hem. 
503.  8o  in  an  action  for  maliciously  iudictinj^ 
a  man  for  treason,  it  is  not  sufficient  to  say  bf> 
ditl  indict  the  plaintiff;  nay,  if  iic  adds  coram 
such  persons,  justices  of  tiie  peace,  and  omiu 

*  ad  gaolam  deiiberand'  aasignat',  it  is  ill,  3  Cro. 
S57.  And  in  an  action  for  maliciously  indict 
ing  a  man  of  [leijury,  be  must  set  forth  the  io- 
dictment,  and  shew  that  it  was  preferred  befon» 
one  that  had  conusance  of  such  matters.  Aod 
that  is  not  all ;  he  must  likewise  shew,  that  the 
cause  in  which  he  swore  was  coram  judice, 
3  Cro.  725.  He  that  pleads  a  presentment  iu 
a  court  leet,  must  set  forth  the  day  when  the 
court  was  holden,  2  Saunders,  3ga  i  Ventris, 
107.  And  therefore  to  plead  that  at  *  quandam  ca- 

*  riam'  he  was  amerced,  is  ill.  Modem  Rep,  75. 

An  indictment  of  maintenance  in  *  quodam 

*  placito  coram  Domino  Rege  pendente,*  not 
mentioning  where  the  King's- Bench  sst,  wis 
held  faUl  m  arrest  of  judgment,  1-Ventr.  909. 

An  indictment  for  a  second  offence,  where 
the  punishment  is  greater  than  for  the  first, 
ought  to  recite  the  tbrnicr  conviction,  1  I^eii- 
n;ud,  095.  So  it  was  done  in  Uonrer  Booth's 
Case,  Mo.  606,  \*l  91 '•.  In  SKeble,  737,  an 
indictment  for  a  second  oifence  of  printini;  did 
set  forth  the  first,  but  did  not  sav  where  it  uas ; 
therefore  Tuisden  held  tiiu  iudiVlment  nau»^ht. 
And  if  there  be  a  nccessityofscttinflf  forth  so 
pnx'isrlv  the  first  cunvieiion,  to  make  the  se- 
c(»nd  odWicr  the  pfreater,  meihinks,  iu  reason, 
!  ii  must  as  cortainly  l»c  set  forth,  where  it  ^Ives 
j  the  very  esse  to  the  oHeiuT.    And  if  such  a  ge- 


kind  of  felony,  hut  *  pioi|ua(lnm  folonia,'  aiid  '  neral  way  of  referrinpf  to  records  should  be  al- 
i<:ei»  before  whom  Ik  was  '  loncd  in  iudtctineuts,  ii  would  not  only  over- 


the  names  of  the  jn»t 

attainted."  These  ai-e  the  words  ol"  the  rr- 
porter:  and,  my  loi-d,  that  this  casr  '\.i  of  pfi»- 
neral  c*oncern,  appears  by  the  next  case  va  that 
book,  Keilway.  191.  An  indictment  was  found 
on  the  «rscapo  of  certain  persons  convict,  wiili- 
out  shewing  befnre  what  justices  the  oonviciiun 
was ;  and  after  the  matter  was  considered  at 
the  bar  and  the  bench,  the  indictment  was  hf.-lrl 
insuflicient :  hut  says  that  case,  **  The  names 
of  the  justices  of  peace  i)cfore  whom  the  ori- 
^nal  indictment  was  taken  is  not  material,  nor 
the  specify intf  of  thefV-lony,  *proul  patet  supra' 
in  the  case  of  Bays ;  for  wIm  iv  the  couM  is  in- 
structed to  whom  to  write  to  certify  the  rcronl, 

*  See  the  Indictment  in  Eii$r|ish  ami  Luiiri, 
Tol.  9,  pp.  1128,  1129,  of  this  Collection. 

f  See  the  Indictments  iu  English  and  iiSlin, 
yol.  7,  pp.  881.  884. 

X  See  the  Inibrioalion,  tsI.  8,  p.  1359. 


throw  all  the  precedent:*  u-id  nther  authorities 
I  I  have  citul,  hut  the  deiendants  must  needs  lie 
■  under severalinconvcnienceK.  They  would  then 
i  be  cut  oil"  from  the  privilej^e  of  pleading  *  Nul 
!  *  tie]  I^coihI,*  or  traversinj^  it,  as  was  done  in 
,  l5a^b'sCa?e  heforo- mentioned :  for,  althousii 
I  siicli  a  travi  rse  mij^ht  amount  almof  t  to  the 
g"cueral  isMie,  yet  (M>mprchendinnr  matter  ol 
ia-.v,  the  dolendunts  may  picati  it  specially, 
!  llobar'i,  V27.     And  if  the  deft  ndants  plead  tfie 
'  general  iRsue,  how  shuil  they  know  where  t» 
eo  to  lind  out  the  record,  to  see  ^*  liether  a  true 
copy  l;ff  produced  a^ains;  them  ■'  And  it  cannot 
'  he  a  suflicicnt  answer  to  sa\,  that  the  indict- 
ment sets  forth  lliMt  '  debit'e  et  leo-itime*  they 
,  were  lonvicled  and  attainted ;  it  must  be  shewn 
,  aftor  wliut  inanncM'  they  were  attainted,  that  the 
court  may  jn(li;e  wliptlier  it  was  lepilly  done  or 
no.     In  F*aiiick  Uardiuj:'s  Case,   iu  the  first 
year  of  this  kin^  uud  the  l^te  (|uecn  (it  is  re- 


:49j   Jhr  ahehing  Sir  W.  ParhfM  and  Sir  X  Frdnd.    A.  D.  161M. 

orted  in  9  Ventr.  816),*  the  iodicttnent  against 
in  was  for  high-treBsoD,  am)  did  set  forth 
bat  be  adhered  to  the  kinf^'s  enemies.  The 
wry  found,  that  be  listed  and  lent  sohtiers  to 


be  Preoch  kinjp,  then  an  enemy  to  our  kin|f 
" '  the  ■   " 


ad  queen :  but  the  court  held 


indictment 


Moueei 

■o  short  there,  because  it  mentioned  *  hostibus 
at  inimicis'  generally ;  whereas  it  should  have 
Kl  forth  who  those  enemies  were,  that  the 
Mrt  might  take  notice  whether  they  were 
snemies,  as  the  law  intended. 

In  the  case  of  Woodly  and  BckIt,  S  Cro. 
191.  Ydverton  1213.  1  Bi-ownlow'lU.  in 
Idht  for  rent  upon  a  lease  lor  years,  the  plaiu- 
tiff  derives  his  title  b^  the  grant  of  the  rever- 
MB  by  way  of  bargain  and  sale  in  foe  from  the 
bst  Insor,  and  declares,  that  by  indenture  of 
Meb  a  date,  one  grants,  bsrgains  and  sells  for 
nooey  to  him  tine  rerersion  in  fee,  which  in- 
dniOK  was  inmlled  such  a  day '  secundum 
ifiwmam  statuti;'  and  on  nil  debet  pleaded, 
Ibere  was  a  verdict  for  the  plaintiff:  vet  judg- 
DUDt  Has  arrested,  because  the  pUintiff  had 
B3t  shewn  in  m  hat  court  the  indenture  was  in- 
idled ;  though  it  might  liave  been,  and  un- 
inbledly  it  was  alMged,  that  it  was  but  a 
Doaveyaaoe  to  the  title,  and  an  inducement  to 
be  actioD,  and  *  secundum  for  mam  statuti' 
Aews  U  was '  debite  et  legitime.*  8o  in  Allen 
10.  King  against  Somerland.  In  debt  for  rent 
^  plaintiff  declares  on  a  lease  for  years  made 
qr  a  stnager,  wlio  bargained  and  sold  the^  re- 
^Mon  *  per  indenturam  debito  modo  inrotulat' 
>  is  Curia  Caooellaria.'  After  a  venlict  for  the 
pUatiff,  OB  nil  debet  pleaded,  it  was  moved  in 
mart  of  iudgmcnt,  ttiat  he  had  not  alledged 
ht  inrolTmcot  to  be  within  six  months,  nor 
'ssaiadum  formam  statuti;'  and  though  it 
NK  said  to  be  debito  modo^  yet  that  would  not 
Mad  the  matter,  nor  aid  the  incertaiuty,  and 
iaifore  judgment  was  arrested.  Su  m  the 
Mae  book  and  folio,  Colman  against  Painter, 
la  in  aelioD  hy  the  lessee  against  his  lessor  on 
letvenantlbr  peaceable  enjoyment,  he  assigns 
Iv  breach  •  former  lease  to  J.  8.  The  defeo- 
Im  pleads,  that  the  lease  to  J.  S.  was  with 
BoaditioD  of  re-entry  for  non-payment  of  rent, 
mi  thai  bcfoee  the  lease  made  to  the  plaintifl*, 
le  rent  waa  behind,  and  *  legitime  demaudut' 
iKBBdun  fomam  indantone,'  aud  upon  non- 
piysMBt  ha  Te-entered|  and  made  the  lease  to 
ikt  plaintiffs  and  upoil  demurrer  it  was  re- 
irifM,  that  the  demand  was  insufficiently  al- 
Unl ;  for,  says  the  book,  he  ought  to  set 
bn  ctftainly,  when  and  where  it  was  maile, 
Ihtt  k  night  •PP^r  to  the  court  to  be  \efpk\, 

I  shall  trouble  your  lordship  but  with  oue 
«ae  more  to  this  point ;  it  is  in  S  Leonard  7^. 
A  Quo  Warranto  was  brought  by  the  queen 
■|ust  sir  John  Constable,  who  claimed  cer  • 
te  wreok  in  the  c»unty  of  York.  The  defen- 
d,  that  £dward  duke  of  Bucking- 
1  of  such  a  manor,  to  which  he 


^  Bse.  abOy  in  vol.  13,  p.  645.  of  this  Col- 
■Ohb,  a  Mote  of  Patrick  Harding's  Cofe  from 
*>  MtB.  of  sir  WiUiam  WiUUunf . 
^OU  MIL 


[450 

had  wreck  appendant,  and  that  he  was  «  da 

*  alta  proilitione  iledito  modo  attinctiis,'  and  that 
found  before  the  escheator ;  and  shewed  fur- 
ther, that  that  manor  descended  to  queen 
Mary,  who  granted  the  same  to  the  earl  of 
Westmoreland,  who  granted  the  same  to  the 
defendant :  upon  which  it  was  dt'miin*ed  ;  aud 
exception  was  taken  to  the  ])lea,  because  the 
attainder  is  not  fully  and  certainly  plradcd.  Ik 
was  argued  by  Plowden,  counsel  fi>r  the  defen- 
dant, that  the  attainder  uas  certainly  pleaded, 

*  scilicet,  deliito  modo  attinctus :'  For,  says  he, 
it  is  shewn  that  the  wreck  is  appendant  to  the 
manor,  and  then  if  he  hath  the  manor,  he  hath 
the  wreck  also :  and  if  he  had  the  manor,  it  is 
not  material  to  the  queen  how  he  hath  it ;  for 
the  flueen  doth  not  claim  the  same,  hut  im  - 
peacheth  the  defendant  for  usio*^  there  such 
a  liberty.  But  he  there  grants^  that  if  the 
heir  of  the  duke  had  demanded  the  manor  there 
against  him,  the  attainder  ought  to  have  beeu 

K leaded  certainly.  And  if  so  much  certainty 
e  required  in  pleading  an  attainder  tliat  makes 
a  title  to  an  estate,  that  attainder  must  needs  be 
as  fully,  as  clearly,  and  as  certainly  set  fortli ; 
that  is  the  ground- work  and  foundation  of  an 
indictment  for  that  which  is  called  a  very  great 
offence,  which  is  not  lor  alisolving  two  persons 
in  the  parish  of  Paddington,  nor  for  absolving 
two  impenitent  traitors,  hut  tbrabsolvingtwo  per-^ 
sons  attainted  of  high* treason,  who  did  not  re- 
pent of  that  treason  of  uhich  they  were  at- 
tainted. 

There  are,  my  lord,  I  think,  some  other 
faults  in  the  indictment.  It  mentions,  That 
sir  John  Freind  aud  sir  William  Perkins  were 
attainted  for  high- treason,  in  compassing  the 
kins^'s  death,  and  adhering  to  his  cncmiea  ; 
which  were  two  treasons  in  ench  of  them,  and 
consequently  four  in  all.  Yet  afterwards  the 
indictment  suys,  that  these  defendants  intend- 
ing to  juNtify  'the  horrid  treason  aforesaid  (ia 
the  singular  number.)  So  in  tlie  conclusion, 
tliat  the  absolution  was  iriven  *  abstjue  aliqua 

*  poBuitentia  pro  alta  proditione  pnedicta  priua 

*  declarata,'  without  shewing  which  treason  in 
particular  was  unrepented  of;  and  each  of 
them  was  not  obliged  to  repent  of  all  the  trea- 
sons, for  they  were  not  all  his  own.  And  ia 
Uke  the  case  this  very  term  in  this  court,  where 
a  rescous  was  returned  against  two  persons, 
tliat  they  had  rescued  J*  §.  pradici*  without 
shewing  which,  and  there  was  J.  8.  senior,  and 
J.  8.  junior  before- mentioned ;  andt'jr  this 
incertanity  that  return  was  quashed .  And  it 
seems  to  me  to  bear  rouic  rosemblunce  to  the 
caseof  Tiodallaml  Cobbs,  3  U>nnard,  fol*  9, 10. 
In  nn  action  of  waste,  the  declaration  shewa 
the  demise  of  the  manor  of '  Wulverton  and  other 
lands,  and  assigns  the  waste  <  in  quixlam  bosc^ 

*  vocat*  W'olverton  Wood,  pumV  prumnor*  ; 
aud  it  was  held  insufticient,  for  that  it  could 
not  be  parcel  of  the  manor  and  other  landa 
also. 

i  mitst  likewise  humbly  submit  it  to  your 
lordship,  whether  tlio  factitsclt'  he  sufficiently 
set  fortu,  *  «t  COS  abioivi  prouuDtiarerouti'  pro* 

<0 


4fll] 


8  WILLIAM  IIL  Triai  qfJouph  Duvuoh  nut  othtrt. 


im 


nounced  them  to  be  absolved  :  whether  it  does 
not  refer  to  somewhat  to  be  done  hereafler, 
and  ought  not  rather  to  have  been,  *  eos  abso- 
« Jutos  pronuntiaverunt.' 

The  proclaoialioD  for  evidence  before  the 
jnry  is  sworn,  which  ought  to  be  after,  and 
several  other  informalities  m  the  indictment  and 
proceedings,  I  should  have  spoken  to  ;  and 
nave  justified  and  maintained  the  im|M)sition 
of  hands,  from  the  doctrine  and  practice  of  our 


church  ;  and  likewise  have  slid  mnomwImI  tu 
the  matter  that  is  specially  Ibnad,  to  prav* 
that  these  defendants  are  Uierebv  aoiiiitted  of 
the  whole :  but  thesef  things  will  (I  doubl  not) 
be  much  better  done  by  sudi  other  ooantelaa 
your  lordship  shall  please  to  bear  lor  ibe  de- 
tendanta.  I  am  sensible  I  bare  almjy  beoi 
too  tedious*  for  which  I  humbly  beg  pardon  of 
your  lordship,. and  pray  yoor  judgment  fiar  the 
defendants. 


394.  The  Trial  of  Joseph  Dawson,  Edward  Fokseith,  Williav 
May,  Wm.  Bishop,  James  Lewis,  and  John  Sparkes,  at 
the  Old-Bailey,  for  Felony  and  Piracy  :  8  William  IIL 
a.  D.  1696.* 


Admir.  AngL  st, 

X HE  Seasions  of  Oyer  and  Terminer,  and 
ffaol  delirery,  held  for  our  sovereupi  lord  the 
Eing,  for  the  Jurisdiction  of  the  Admiralty  of 
£n;(land,  at  Justice  Hall  in  the  Old  Bailey,  in 
the  suburbs  of  the  city  of  London,  on  Monday 
the  19tli  day  of  October,  in  the  8th  year  of  the 
rei^  of  onr  said  sorereign  lord  king  William 
the  3d,  over  England.  &c.  before  the  right 
hon.  Edwanl  HumscI,  esq.  Henry  Priestnian, 
esq. ;  sir  Robert  Rich,  kt.  and  Imrt ;  sir  George 
Rooke,  kt  sir  John  Ilouhlon,  kt.  and  James 
Kendal,  esi{.  Commissioners  for  executing  and 
exercising  the  office  and  place  of  Lord  High 
Admiral  of  England,  res|>ectively  assigned  and 
deputed;  the  right  \%orshipful  sir  CliaHes 
Heilges,  kt.  Doctor  of  Law,  Lieutenant  in  the 
High  Court  of  Admiralty  of  England,  Com- 
missary General  of  our  suvereigii  lord  the  king, 
and  President  aufl  Jtulqfo  uf  the  said  court;  the 
right  hon.  Kir  Juliii  Holt,  kt.  Lord  Chief  Jus- 
tice of  the  King's  Beach ;  sir  George  Treby, 
kt.  Lord  Chief  Justice  of  the  Common  Pleas  ; 
sir  Edward  Ward,  kl.  I^rd  Chief  JJaron  of  the 
Exchequer ;  sir  Thomas  Rokeiiy,  kt.  and  one 
of  the  Justices  of  the  King's  Bench ;  sir  Sa- 
nuel  Eyre,  kt.  another  of  the  Justices  of  the 
King's  Bench  ;  sir  John  Turton,  kt.  another  of 
the  Juki  ices  of  the  King's  Bench ;  sir  John 
Powell,  kt.  one  of  the  Justices  of  the  Common 
Pleas ;  sir  Littleton  Powis,  kt.  one  of  the  Barons 
of  the  Exchequer;  William  Bridgeman  and 
Josias  Burchet,  esqrs. ;  Secretaries  of  the  Ad- 
miralty of  England;  Thomas  I ^nc,  William 
King,  and  John  Cooke,  respectively  Doctors  of 
Laws;  and  otluiis  his  Majesty's  Justices 
liamed  in  the  jui<l  Conuiiivsion. 

*  This  case,  under  the  name  of  l{ex  v.  May, 
Bishop  and  others,  is  cited  in  East's  Treatise 
of  the  Pleas  of  the  Cn»wn,  eh.  17,  s.  3,  from  a 
Manuscript  Commentary  hy  3lr.  Justice  Treby 
upon  lord  Hale's  Summary,  (»f  \iliich  au  ac- 
count is  given  by  Mr.  Eas»t  iuimcdiutely  after 
the  pre&ott  to  hu  Treatise. 


His  Majesty's  Cmnmisaiooers  being  ikm 
and  there  met,  the  Commisaion  was  md,  woi 
proclamation  madefor  attendanct :  After  mhidL 
the  gentlemen  of  the  mnd  jury  were  eaM 
and  sworn,  and  receirnl  their  enarge  frcM  ikt 
Charles  Hedges,  kt.  Judge  of  the  High  Osort 
of  Admiralty,  who  set  forth  unto  them  the  H- 
ture  of  the  CommissioB,  the  extent  of  thejurit* 
diction  of  the  court,  and  the  ealgeet  matter  if 
Iheir  enquiries. 


Forseith,  William  May,  William  Bishop^ 
James  Lewis,  and  John  8|iarkea,  prisoi 
for  feloniously  and  piratically  taking  and  t 
rving  away,  from  persons  unknown,  a  oei 
ship  called  the  Gunswav,  with  her  tackle,  ap« 
parel,  and  furniture,  to  the  value  of  1,000/.  aad 
goods  to  the  Talue'of  110/.  together  widk 
100,000  pieces  of  eight,  and  100,000  clieqaiB%' 
upon  the  high  seas,  ten  leagues  from  the  capt 
Sr.  Johns,  near  Surat  in  the  Kast  Indies.  Tbet 
Dawson,  Forseith,  May,  Bishop,  Lewis,  sal 
Sparkes,  were  brought  to  the  bar,  and  tfaei^ 
indictment  was  read. 

Joseph  Dawson  confessed  that  he  wis' 
Guilty  ;  but  the  rest  pleaded  Not  Guilty,  mi 
put  themselves  upon  their  trials;  and  there- 
upon the  petty  jury  was  called,  and  thejperMi 
whose  names. follow  were  sworn:  WilliMi 
Walker,  John  Child,  Edward  Leeds,  Thoostf 
Clarke,  Nathan  Green,  Henry  HherbroolK 
Benjamin  Dry,  John  Sherbrooke,  Samim 
Jackson,  Thomas  Emms,  Henry  Hoonri 
John  Hall. 

Then  the  King's  Learned  Counsel  opeDrf 
the  Indictment,  -^c.  and 

Dr.  teuton  made  a  Speech,  which  is  M 
follows : 

?Jy  I^rd,  and  Gentlemen  of  the  Jmy; 

The  prisoners  arc  indicted  for  piracy,  in  leb* 
hing  and  plundering  the  ship  Gunsway,  bdsMp 
iug  to  the  Gn  at  Mogul  and  his  sulyeby^iBVpT 
Indian  iscm  >,  to  a  very  great  value.  i 


4SS]  for  Fdoty  and  Piracy. 

And  the  end  wu  taitable  to  their  btgin- 
m'n^;  tbey  first  pnctised  these  crimes  upoD 
Iheir  own  coantrymen,  the  English,  and  then 
continued  them  on  to  strang^ers  and  I'ureignera: 
For  the  ship  in  which  this  piracy  was  coin- 
mitted,  was  an  Eof^lish  ▼essel,  called  the 
Charles  the  Second,  belonging  to  se?eral  mer- 
chants of  this  city,  designed  for  other  ends,  and 
a  iv  different  voyage,  which  by  these  crimi- 
nals, with  the  assistance  of  one  Every,  their 
captain  in  all  those  villainies,  was  seized  near 
the  Groyne  in  Spain,  in  May  .1694,  from  which 
place,  having  first,  bv  force,  set  captain  Gibsoci 
tlie  commander  on  snore,  Ihev  oarrieil  off  the 
ship,  and  with  it  committcu  many  and  great 
piracies  Ibr  several  years  (as  will  appear  in  the 
course  of  the  evitlence)  in  most  of  tlic  parts  of 
the  known  world,  without  distinction,  u|)on  all 
■atioDs,  and  persons  of  all  religions. 

Their  last  Jiiracy  was  this  in  the  Indies,  the 
greatest  in  itself,  and  lit^e  to  be  the  most  perni- 
cious in  its  coiisef|ueuces,  especially  as  tu  trade^ 
considering  the  power  of  the  Great  Mogul,  and 
the  natuiml  inclination  of  the  Indians  to  re- 
veojge :  But  thev  are  now  brought  hither  ou 
their  trial,  and,  it  the  niatters  they  are  charged 
with  shall  he  proved,  to  receive  that  jud^ent 
from  you  their  crime  deserves;  and  tliut  h 
piracy,  which  by  so  much  exceeds  tliei't  or 
robbery  at  land,  as  the  interest  and  concerns 
of  kingdoms  and  nations  are  above  those  of 
private  families,  or  particular  persons:  For 
suffer  pirates,  and  the  commerce  of  the  world 
must  cease,  which  this  nation  has  deservedly 
so  great  a  share  in,  and  reaps  such  mighty 
advaotaffe  by:  And  if  they  shall  go  away 
uopunisned,  when  it  is  known  whose  subjects 
they  are,  the  consequence  may  be,  to  involve 
the  nations  concerned  in  war  anti  blood,  to  the 
deatmction  of  the  innocent  English  in  those 
oouatries,  tlie  total  loss  of  tlie  Indian  trade, 
and  thereby  the  impoverishment  of  this  king- 
dom. 

The  Witnesses  for  the  king,  viz.  John  Dan 
and  Philip  Middleton,  were  then  called  and 
aworn,  and  in  the  opinion  of  the  court  ga\e  a 
full  evidence  against  the  prisoners,  which  was 
very  clearly  summed  up  by  the  lui-d  chief  jus- 
tice Holt ;  the  tenour  whereof  is  particularly 
■et  forth  in  the  following  Trials ;  but  the  jurv, 
oootnury  (o  the  ex|iectation  of  the  court,  brought 
in  all  the  prisoners  Not  Guilty ;  whereupon  the 
sessions  was  ailjouraed  to  Saturday  the  '^Vai  of 
October  following,  and  the  priKoners  were  com- 
mitted upon  a  new  warraut  for  several  other 
piracies, 

October  ^\y  1006. 

The  Court  being  sat  (at  which  were  present 
iir  Charles  Hedges,  jtid^e  of  the  high  court  of 
Admiralty,  the  lord  chief  justice  Holt,  the  lord 
chief  justice  Treby,  the  lord  chief  bamn  Ward, 
Mr.  justice  Itokeby,  Mr.  justice  Turton,  Mr. 
justice  Eyre,  Mr.  luiron  Puwis,  Dr.  Lane,  Dr. 
King,  and  X)r,  Cook),  the  court  proceeded  in 
thisuunoer. 


A.  D.  1696.  [45i 

CI,  ofAf*  Cryer,  make  prochimation. 

Crycr.  O  yes,  O  yes,  O  yes.  All  manner  of 
persons  that  liave  any  thing  more  to  do  at  this 
sessions,  draw  near  and  give  your  attendance  : 
and  you  sheriffs  of  the  city  of  London,  return 
the  several  precepts  directed  to  you,  and 
returnable  here  this  day,  upuu  pain  and  peril 
that  shall  follow  thereon. 

Then  the  grand  Jury  were  called  over,  and 
the  appearances  marked. 

CL  ofAr,   Make  proclamation. 

Crifcr,  O  Yes,  &c.  The  lonls  the  king's  jus* 
tices  charge  and  command  all  persous  to  keep 
silence  while  the  cliargc  is  giving. 

Sir  C'Aar/es  Hed^et^the  Judge  of  the  Ad- 
miralty, said  to  the  Grand  Jury  upon  this 
occasion : 

Gentlemen  of  the  Grand  Jury; 

The  opinion  which  this  court  had  of  the 
good  intcntionfi,  abilities,  and  integrity  of  the 
last  Graufl  Jury  was  so  fully  answered  at  our 
late  meeting  in  this  place,  that  1  am  confident 
all  good  Englishmen,  who  were  witnesses  of 
their  proceedings,  will  concur  in  giving  them 
public  thanks  for  the  good  services  which  they 
then  performed  :  I  wish  that  all  others,  who 
were  concerni^  in  the  dispatch  of  that  day*s 
business,  had  the  like  preu>ncc  to  have  the 
same;  the  public  Justice  of  the  nation  would 
not  then  have  lam  under  any  manner  of 
reproach,  neither  would  you  have  h:id  this  far- 
ther trouble.  But  seeing  that  it  hath  so  hap- 
pened, it  is  become  ulisulutely  necessary  that  a 
farther  and  a  strict  enquiry  should  be  made 
after  those  crimes  which  threaten,  and  tend  to 
the  destruction  of  our  navigation  and  trade  ; 
anil  therefore  I  am  assured  of  your  patience, 
whilst  I  shew  you  briefly : 

1.  What  the  crimes  are,  which  you  are  to 
enquire  after. 

if.  How  far  the  jurisiliction  and  your  power 
in  making  these  enquiries  doth  extend. 

3.  What  is  the  duty  incumbent  on  yon  io 
Ibis  behalf. 

1.  As  to  the  crimes,  I  shall  not  repeat  what 
was  mentioned  touching  all  the  particulara 
thereof,  at  the  o|)ening  of  this  se»isioiis ;  hut 
cootine  my  iliscourse  to  those,  \«hich  I  lind  by 
the  calendar  will,  at  this  time,  necessarily  fall 
imder  your  exaniinatiou ;  and  those  are  lura- 
cies. 

Now  piracy  is  only  a  sea- term  for  robbery, 
piracy  being  a  robhery  coiniuittetl  within  the 
juriKdiction  of  the  Admiralty.  If  any  man  be 
assaulted  within  that  jurisdiction,  and  his  ship 
or  gfNKJs  violently  taken  away  without  legal 
authority,  this  is  robbery  and  piracy.  If  the 
inariiiers  of  any  ship  sli'ull  violfiitly'disposiess 
the  master,  and  atienvanls  carry  a\%ay  the 
^hip  itself,  or  any  of  the  ^(nmIs,  or  tackle, 
nppaivl  or  furniture,  with  a  f'eituiious  intention, 
lu  any  place  whore  the  lord  Adininil  hath,  or 
pretends  to  havejuri»diction,  this  is  also  ruhbery 
and  piracy.  The  intention  will,  in  these  cases^ 
appeiu:  by  coosidaring  the  eud  for  whieh  tlie 


455] 


8  WILLIAM  m. 


fact  was  committed ;  and  the  end  will  be  known, 
if  the  evidence  shall  shew  you  what  hath  been 
done. 

9.  Now  the  jiirisiliction  of  the  admiralty  is 
declared  aDU  described  in  the  statute  and  com- 
luisaiou,  by  virtue  of  which  we  here  meet,  and 
M  estendcMl  throughout  all  sees,  ami  tlie  porta, 
havens,  creeks,  and  rivere  lieneath  the  first 
bridges  next  the  sea,  even  unto  the  higher 
water- mark. 

The  king  of  England  hath  not  only  an  em- 
pire and  sovereignty  over  the  British  seaa,  but 
also  an  undoubted  jurisdiction  and  power,  in 
concurrency  with  other  |»rtneca  and  states,  for 
the  punishment  of  all  piracies  and  robberiea  at 
aea,  in  the  most  remote  parts  of  the  world ;  so 
that  if  any  person  whatsoever,  native  or  fo- 
reigner, Christian  or  Infidel,  Turk  or  Pagan, 
wiUi  whose  country  we  have  no  war,  with 
whom  we  hold  trade  and  correspondence,  and 
are  in  amity,  shall  be  robbed  or  spoiled  in  the 
Narrow  Seas,  the  Mediterranean,  Atlantic, 
Southern,  or  any  other  seas,  or  the  branches 
thereof,  either  on  this  or  the  other  side  of  the 
line,  it  is  piracy  within  the  limits  of  yoqr  en- 
quiry, and  the  cogoiaance  of  this  court. 

3.  Conoerningthe  duty  incumlient  upon  you 
in  making  yonr  enquiries  and  presentments, 
you  may  consider  that  there  is  a  great  trust 
and  autliority  committed  to  yon ;  and  there- 
fore it  will  Be  expected  that  a  suitable  care 
fhould  be  had,  and  your  power  executed  ac- 
cording to  a  well-regulated  discretion  ;  as  you 
•re,  on  the  one  hand,  to  take  care  that  the  court 

te  not  troubled,  nor  any  man  put  in  haznrd  of 
is  life,  through  any  frivolous,  or  malicious 
prosecution  ;  so,  on  the  other  side,  and  more 
esiieciahy  in  the  cases  of  great  and  public 
offences,  you  are  to  use  your  utmost  endeavours 
that  justice,  tlu^  support  uf  government,  be  not 
obstructCNt  by  any  partial  proceedings. 

You  are  not  obliij^cd  in  all  cases  to  require  a 
rlear  and  full  evidence,  but  only  to  examine 
till  yuu  fnul,  and  arc  satisfied  m  Y<^ur  con- 
sciences, that  there  is  sufficient  and  just  cause 
to  put  the  pany  accused  upon  his  trial.  You 
cannot  ciHiviet,*  but  may  in  effect  acquit  the 
greaU*st  criminiils  ;  amr  therefore,  if  you  do 
but  find  pi  oofs  enough  to  Ci'eatc  a  presump- 
tion against  the  parly  accused,  when  the  case 
seems  mlinus,  and  is  of  great  consequence  and 
importance,  your  safest  way  is  to  put.it  in  a 
pro|)er  mrthod  for  the  i>clty  jury,  who  arc  to 
mceive  full  satisf'uction  from  the  evidence  that 
■hall  be  jriven  in  the  presence  of  the  {tarty ;  and 
according  to  that  evidence,  have  i»ower  to  de- 
termine whether  guilty,  or  nut  guilty,  con- 
demn, as  well  as  acquit. 

And  UfKin  this  occasion,  seeing  many  who 
are  upon  that  scrv  ico  are  present,  it  seems  fit 
that  they  should  also  know  that  tliey  have  no 
power  to'do  more  or  le»s  than  what  is  agreeable 
to  the  eviilence :  they  are  not  to  inter|Kh»e  in 

Soints  of  law,  or  to  be  swayed  by  any  cotiKi- 
eraii«»n  «  hatsiiever,  but  «  hat  shall  at  we  from 
the  proofs  ju  iciallv  made ;  they  are  indeed 
judges  ot  th«  tiu;t,  but  they  are  not  arbitrary  ; 


[4M 


Trid  of  Joseph  DaWion  and  othen^ 

they  are  as  much  restrained  by  the  i 
conscience,  informed  and  -ooiivinoM  oy  na- 
sonable  proola,  as  thejudgeaantlieliaMhart 
by  the  rules  of  law. 

No  man  can  believe  just  ai  he  Hals ;  woi 
therefore  a  determination,  or  jndgmeiit  at  will 
and  pleasure,  will  never  be  thought  to  de< 
aervo  the  name  of  a  verdict  i  Ibr 


may  be  pretended,  the  world  will  not  be  por^ 
tuaded  that  a  jury  hath  punned  thedidalael 
conscience,  unless  some  leaaoaable  gioidi 
for  its  proceedings  ahalianpears  andthauiwn 
whenever  itahallhapiien  tnat  nomnons  naaUftai 
ton  escape  unpunished,  notwtthatandiaf  thai 
in  the  opinion  of  moat  good  men  there  tvat  % 
full  and  sufficient  evidence  tor  their  conTictioai 
it  is  to  be  wished,  and  indeed  it  iccaaa  to  ne  li 
be  neoessary,  in  cases  that  retete  to  the  lawf 
of  nati<»ni,*that  the  reasons  which  iadueed 
such  a  determination,  sliould  be  given  Ibr  Ihf 

[kublic  satisfaction ;  otherwise,  since  fbrogacn 
ook  upon  the  decrees  of  oftr  courts  of  juMies 
as  the  sense  and  judgment  of  the  whole  ast 
tion,  our  enemies  will  be  glad  to  find  an  ecoi- 
sion  to  say,  that  such  miscreants  a«  aie  ootsf 
the  protection  of  alt  laws,  and  civil  govtin- 
Dient,  are  abetted  by  those  who  contend  M 
the  sovereignty  of  the  seas.  The  baibaraii 
nations  will  reproach  ns  as  being  %  haibmn^ 
receptacle,  and  a  nest  of  uirates }  and  Sif 
friends  will  wonder  to  hear  that  the  cnesBisBif 
merchants  and  of  mankind,  should' And  asaae- 
tuary  in  this  ancient  place  of  trade.  Nay,-«t 
ourwlves  cannot  but  confess,  that  aU  lasf* 
donis  and  countries  who  have  suffered  by  Eof  • 
lisli  pirates,  may,  for  want  of  redress  in  las 
ordinary  course,  have  the  pretence  of  jnstics^ 
and  the  colour  of  the  laws  of  nations  to  justify 
their  making  rei»ri»ils  upon  our  merehaol^ 
wheresoever  they  shall  meet  them  upon  ths 
seas,  if  a  jury  happens  in  tliese  cases  In  It 
too  severe,  tlicre  is  room  for  mercy,  and  1  lA 
confident,  that,  upon  a  just  rejiresentation,  lbs 
innocent  never  failed  of  obtaining  it ;  but  fbr 
a  fault,  neglect,  or  error  on  the  other  haoli 
there  is  no  relief  tor  injured  fbreigiierB,  bat  hj 
their  carving  out,  as  wc  may  be  sure  they  wit 
fur  themselves,  such  a  satisfaction,  upon  oar 
Lici'chauts,  as  they  shall  think  fit,  wheneW 
they  shall  have  an  oppoituuity ;  and  so  oar 
whole  nation  must  unavoidably  suffer  botbil 
reputation  and  interest,  and  all  as  it  ^ 
through  our  own  default. 

I  hoi>e  what  hath  been  said  upon  this 
pccted  occasion,  will  not  be  looked  upon  as  ii* 
tended  to  influence  any  jury  ;  I  am  sure  it  ii 
far  fix)m  being  so  designed  :  religion,  oonsci' 
cncp,  honour,  common  honesty,  humamtft 
and  all  laws,  furiiid  such  methods :  there  is  pi 
d.*ubt  but  the  judge,  as  well  as  the  jiiry«B% 
then  bf>st  disch;iiges  his  duty,  when  he  pia^ 
ce«'ds  without  favour  or  affection,  hatred  or  Hr 
will,  or  any  partial  respect  whatsoever. 

Kver}  Iran  oui;ht  to  be  eximnely  tented 
such  a  ^>erson  as  lie  has  reason  to  Urtieve  is  in^ 


uoceat ;  but  it  sliouhl  be  considered 

on  the  other  side,  that  he  who  briaga  a  lili' 


He,  nr  eammoii  malefactor  to  justice, 
es  to  the  safdv  ami  preserration  of 
of  many,  both  bad  aoa  good  ;  of  the 
r  meana  of  the  aaturance  of  protec- 

of  the  had  too,  by  the  terror  of  jua- 
was  upon  thia  coDsideratioii  that  the 
eraperora  hi  then-  edicts  made  this 
aerrice  for  the  public  fooA,  as  meri- 
I  aov  act  of  piety,  or rehgious  worship. 
WB  favra  demonstrate  how  much  our 
■a,  and  partkuhiriy  how  highly  that 
iooe  king  Henry  the  fif^h,  and  his 
fit,  thougnt  this  nation  concerned  in 
j^  fbr  the  aecarity  of  traders,  and  acour- 
Mus  ofroreraandfinee-booters.  Cer« 
ere  perer  was  any  age  wherein  oar 
I  were  not  extraordinary  sealous  in 
r,  looking  upon  it,  as  it  is,  and  ever 
the  Gfaief  support  of  the  narieation, 
eahh,  atrength,  reputation,  and  gk>ry 
ition. 

mnen,  our  concern,  as  our  trade  is, 
reaaoii  to  be  rather  greater  than  that 
ire- fathers;  we  want  no  manner  of 
ents,  no  motif  es  to  stir  us  up,  whether 
iler  onr  interest  or  honour ;  we  hare 
the  sacred  word,  but  also  the  glorious 
he  best  of  kings,  which  sufficiently 

to  us,  that  the  good  and  safety  of 
w  is  tlie  greatest  care  of  his  lite.  Let 
lan,  therefore,  who  pretemis  to  any 
a  true  English  spirit,  readily,  cheer-. 
Ilow  80  good,  so  great,  so  excellent  an 
,  by  assisting  and  contributing,  to  the 
»f  bis  power  and  capacity,  at  all  times 
the  carrying  on  bis  noble  and  generoua 
For  the  common  good,  and  particularly 
tintie,  by  doing  all  that  be  can,  to  the 
by  the  administratran  of  equal  justice, 
pline  of  the  seas,  on  which  the  good 
ly  of  this  nation  entirely  depends,  may 
fted  and  maintained. 


the  Witnesses  being  aworn  in  court, 
od  Jury  withdrew  to  hear  their  evi- 
and  in  the  mean  time  T.  Vaughau,*  J. 
y,  and  Tim.  Brenain,  were  arraigued, 
iie  keeper  of  Newgate,  by  order, 
to  the  bar. 

Jr.  T.  Vanghan,  Hold  up  thy  hand. 

he  did.)   Thou  standest  indicted,  ike, 

I  Guilty  fif  thb  higli  treason  whereof 

odest  indicted  or  Not  Guilty  f 

han.  Not  Guilty. 

Ar.  Culprit,  How  wilt  thou  be  tried  ? 

bii.  hj  God  and  this  country. 

'4r.  God  send  thee  a  good  dcliver- 

'Ar.  J.  Mnnihey,  Hobi  up  thy  hand. 
he  dkl.)  Thou  standest  indicted,  &c. 
lyeat  thoa,  J.  Murphpy,  Art  thou 
N  the  high- treason  whereof  thou  stand- 
iicd,  or  Not  Gnilty  ? 
tkev*  Not  Guilty 


A.  D.  1606.  [1!» 

Mmrphey,  By  God  and  the  king. 
Officer,  You  must  say,  By  God  and  my 
country. 
CL  tf  Ar»  God  send  thee  a  good  deli? er> 


Ar   H 


low  wilt  thou  he  tried  ? 


Far  his  Trial  see  the  Deaa  Gate* 


CL  €f  Ar.  Bring  Tim.  Brenain  to  the  bar. 
(Who  waa  broiight  accordingly.) 

CI.  tf  Ar.  Tim.  Brenain,  Hare  you  any 
copy  of  your  indictment  P— Brenam.  Yea. 

C/.  ofAr.  When  had  you  it  ? 

Brenain.  This  day  se'nnight. 

CL  of  Ar.  Tim.  Brenam,  Hold  np  thy 
hand.  fWhich  he  did.)  Thou  standest  indioted^ 
&c.  How  sayest  thou.  Art  thou  Guilty  of  th« 
high  treason  whereof  thou  standest  indicted,  ot 
Not  Guilty  P— Brenain.  Not  Guilty. 

CL  qflr.  How  wilt  thou  be  tried  P 

Brenain-  By  God  and  my  country. 

CL  tfAr.  God  send  thee  a  good  delirar- 
ance. 

Mr.  Mompetmn.  Will  your  tordahips  please 
that  he  may  be  tried  now  r 

L.C.  J.  Treby.  Does  he  desire  to  be  tried 
now? 

Mr.  Mompetson.  Yes,  my  lord  ;  there  is  m 
evidence  against  him,  and  he  is  sick. 

SoL  Gen.  We  ai«  not  now  prepared  for  tha 
trial. 

L.  C.  J.  Trebff.  If  the  king'a  counsel  and 
the  prisoner  he  agreed,  with  all  my  heart. 

L.  C.  J.  Hoit.  He  may  be  tried  with  the 
rest. 

Then  T.  Vaugban,  J.  Murphey,  and  T. 
Brenain  had  notice  to  prepare  for  their  triak 
on  Friday  next,  at  two  of  the  clock  in  the 
afternoon. 

Tben  the  Grand  Jury  came  into  Court. 

CL  rfAr.  Gentlemen  of  the  grand  jury^ 
arc  you  agreetl  in  your  bills  ? 

Grand  Jury,  Ye«. 

CL  of  Ar,  Billa  vera  against  Joseph  Daw- 
son, Ell.  Forseith,  W.  Alay,  W.  Butbop,  J. 
Lewis,  and  J.  Sparkes,  for  piracy  and  robbery. 

CL  of  Ar,  Keei>ci'  of  Newgate,  set  Joseph 
Dawson,  Ed.  Forseith,  Will.  May,  Will. 
Bishop,  Will.  Lewis,  nnd  J.  N|iarkes,  to  the 
bur.     (Which  was  done  accordinj'ly.) 

CL  of  Ar.  Joseph  Dawtou,  Hold  up  thy 
hand,  (which  he  did).  Ed.  Forseith,  Hold  up 
thy  hand,  (which  lie  did).  W.  May,  Holtl  up 
thy  hand,  (which  he  did).  W.  Bishop,  Hold 
ui»  thy  hund,  (which  he  did).  James  Lewis, 
Hold  up  thy  hand,  (which  he  did).  Jo.  Sparkes, 
Hold  up  thy  hand,  (which  he  did). 

Then  the  Indictment  was  reail,  and  set  forth: 

"  That  Ilcnrv  Every,  alias  Bridgman,  Jo- 
seph Da'.%  son,  I^dward  Forseith,  William  May, 
Williaiii  Bishop,  James  Lewis,  and  John 
Sparkes,  latp  oi'  London,  mariners,  on  the  30th 
of  May,  in  the  6tli  year  of  the  reign  of  our  so- 
vereign lord  kiu*;^  \\  iliiam,  and  the  late  queen, 
did,  against  the  |>eace  of  God,  and  our  said  ao- 
vcreigii  lord  the  king  that  now  is,  and  the  late 
c|ueen,  by  force  of  arms,  u|ion  the  high  and 
opea  teas,  uk  a  certaia  piftce,  about  three 


4jP' 


5  TTILLIAM  III. 


>  1 


■■»4 


.  :•:  :  .c  ihitrles  ihe  Svcon^l, 
..  .-.v^  I  or-lnanre,  belontriny  to 
.•:::*  .r  me  sai.l  kin'j.  ami  the  late 
*  :•  _c-^T>  a<»  Vfl  iinkno\«ii);  ami 
:  -v  |ut  li:i-  Kaiil  (liaHos  (iiiisoii  in 
'  v»r  hts  lite :  ami  then  ami  iherr, 
hi  •»  ^ii;..i:i  atWrcsaiil,  f'eionloiisly 
..CA  \  *\.>\  jtra!,  lake  ami  carry  airaV 
>.i.u  1  !.a:it-!»  tiih<oii  the  said  ship, 
iL.  4-.'.  '.'^t  i'h.irio  iht  Si'cuml,  her  tackle,  an- 
,*  nf ..  ar.ii  t'u;niii:re,  of  the  valm?  of  1,000/. ; 
.-  .<c^>  ot  « iiiiianee,  of  the  value  of  500/. ; 
/O  fust'CJ.  vt'  the  value  «if  10*)/. ;  15  ton  of 
.  ta<,  of  tui-  valuf  of  i:»0/.,  ami  2(»0  pair  of 
v\4<Uen  stockinus  of  the  lalue  of  10/.,  in  the 
K>ssi>s;ou  of  the  said  Charles  Gihsnn  then 
t«ui^;  the  lihip,  i^ouds,  utid  chattels  of  the 
tihjccts  of  our  haid  soveirig^n  lortl  the  king", 
Old  the  late  queen,  (lo  the  jurors  unknown) 
k*:.\tust  the  peace  of  our  said  Koverei;fn  lord  the 
h.in^.  and  the  late  queen,  and  dijrnitits,  ^c." 

How  sayest  thou,  Joseph  Dauson,  Art  thou 
r«uiltv  of  this  piracy  and  i-obhcry,  or  Not 
J  u  illy  i* 
ViitSim.  1  am  i*;norant  of  the  proceedingf;. 
ihfu't'r.  lie  pli'ads  ipfuorance. 
(Y  of  Jr.    \ou  must  plead  Guilty  or  Not 
iuilty. — Dauxrn.  Uuilty. 

CI.  of'  Ar.   IIo\vsa\e'st  thou,  Ed.  Forscith, 
11'!  thou  (iuilty,  or  Not  (iuiliy  :* 
Fojstiifi.  Not  CfU;t(y. 
il.  of  Ar.  ll«»u-  uilt  thou  he  tiifd  ? 
Fornith.  iJy  Uw\  ami  m\  country. 
(7.  of  Af.  Iloiv  siiyest  tllou,  Wilf.  3Iay,  arl 
hou  Ciuiiiv,  or  Not  Cjuilty  ? 
Jlf»;v-   N«'t  Guilty. 

{'I.  of  Ar.    I  low  snyi'st  thou,  W.   Kisjtop, 
\\  thou  (ini!i\,  or  Not  (iuihy  ■' 

/•..^.' 1.    1  disiH'  tt»  111  ar  lIk;  >\liole  indiel- 
iit  ill  ii-.iil  a-  t.u. 
t     I     .1    .'i    4      ^  t»u  hive  luvMil  ir  just  iio-.v, 
..•   %   I     :i  ii  ■■•.;. iiu  if  \ou  d«viit' it. 
I  h  ■  lii.iii«  I  iii.Ik  tun  lit. 
\     \      •     .' ■         Nil,  iIh  ii*  IV  nil  oiM'asliMi  t'-r 
t     >  I'      I  M  I'.t  iiiu  lit  lor   :i   S.'.el  (ii  .i.iiil 


[460 

clay,  to  try  between  our  so?erei^  Ior«l  thekiti<; 
anil  prironers  at  the  bar,  answer  to  yourDameK 
as  you  are  callcti,  ami  save  your  ixsues. 

CI.  of  Ar.  Jo.  De«^ave,  licfijamin  llalley, 
Jo.  Ayres,  &c. 

L.  C.  J.  Holt.  Have  you  any  of  the  former 


Trial  of  Joseph  Datcson  and  others^ 

•"}"re.  i>i  %iithin  the  ju- 

'i.'\  i't  England,  pirati- 
•    <  :    i.p«-n  one  i'harU'S 

."  ^1.1  soier«'|fn  lonl  the 
.  ••:  i*:ic  late  qiicen,  lieing* 

*:»K-r  of  a  certain  mrr- 


\: 


:    IN     »    II- 

.  .li\ 
N.lt 


\    '.    (.Ol 


jury  in  this  pannel  ? — CV.  ofAr.  Ye^,  my  l»rd. 
Counsellor  Conycrs.  We  shall  except  i^Qicst 
thciu  i'or  the  kin^. 

L.  G.  J.  lIa.U.  If  you  Imve  rrtiimcd  any  of 
the  former  jury,  you  have  not  ilone  well;  for 
that  verdict  was  "a  dishonour  to  the  justice  o! 
the  nation. 

C7.  of  Ar.  You,  the  prisoniTS  at  the  liar, 
these  men  you  hi^ar  called,  are  to  pass  I;etweea 
our  »»overcin^n  lord  the  kin^,  and  you ;  if  there- 
fore you  ivill  challenge  any  of  them,  you  are 
to  crialleucre  them  as  they  cotne  to  the  tK>ok  to 
be  sworn,  and  before  they  are  sworn. 

Then  they  were  called  over,  and  somebeinjjr 
challen|;ifed  tor  th«j  king",  aud  some  by  the  pri- 
.toners,  the  persons  sworn  in  this  jury  were 
these:  J.  Dcgrave,  J.  A}Tes,  G.  Broom,  T. 
Hicks,  U.  Meakins,  J.  Shelswell,  AIe.\.  IVi« 
liiitou,  J.  Glover,  Nath.  Carpenter,  Jo.  Bicklcy, 
Nath.  Troughton,  ilura.  hSouth. 
C/.  of  Ar.  31ake  Proclamation. 
Cn/cr,  O  Yes,  H'  any  one  can  inform  my 
lords,  the  kin^-^s  justices,  the  kin^^s  serjcant, 
tho  kinir^s  attorney  general,  or  his  majesty-s 
advocate  in  his  high  court  of  aduiiralty,  before 
this  impicst  be  taken,  of  the  piracy  and  rob- 
liery  whereof  the  prisoners  at  the  bar  stand  in- 
dieted,  let  them  come  foi-th  and  they  shall  be 
heard,  for  the  prisoners  stand  at  the  bar  Ujion 
their  deliveraiiee  ;  and  all  others  may  depart. 
'1  lieu  the  Grand  Jury  eainc  into  court 
a^aiu,  havin:^  lound  tuo  other  bills  nt^ain^t 
the  pri.'ium.rs  at  the  bar,  one  for  piratically 
takill^-  away  a  3loiirish  ship,  ami  another  fur 
eoniiiiitting  pirary  on  two  .ships  belonging  to 
IKniiiask.  Ami  thru  the  Grand  Jur^  was 
:.«lionnied  to  I'riday  next. 

(V.  if  Ar.  Ell.  KorM-ilh,  hohl  up  thy  hand. 
(Ami  N'l  (d*  I  he  n'>t.)  ^  on  that  are  sworn,  look 
upon  the  jirisoiiers,  ami  hearken  lo  their  cause; 
tin  y  ^1alld  indsried,  N.e. 

r»ir.  ]\'/fiitih:r.  3la\  it  phase  your  lordships, 
ar.d  \on  i»i'::lli  r.ien  of  the  jury,  the  [)nsouersat 
l\\i'  Uav  sl.'inil  i.Mtlieled  tor  iVlony  and  piraev,  for 
tiiai  they,  aUnt  ihe  'oi'iU  of  .May,  in  the  Gth 
!  \e;'.r  ol  th.' ri-i^n  of  his  presmt  uiaj(.>siy  kin|f 
.%  1. ••!;•-;  ui-nt,  not  ihe  ;  W  i!!i-:M,  did  make  an  hshiiuU  on  eaptain  Gib- 
\  ot  iiii^  I'ii.iev  and  ! 'oon.  eoniniandfr  of  the  sliip  CharleN  the  iSe- 
/•  ..^  .  \«!i  (iiult)  .  !  (oi.il,  unil  put  him  in  I'ear  oi  his  lite,  and  pira- 
I  ili.ui.  James  Le..4S,  ,  \.r.i\\\  .sU»k;  away  the  ship  and  all  the  furoi- 
MiU\  ?  ;  tnii-;    anil  this  is  laiti  to  he  a^ain^-t  tlieir  duly 

I  and  ;:ll.-^iaucc,  and  a;4ain.>t   the  pi-aei*  of  our 
SpaiKcs,    soveni^n  lord  tin-  kini;,  hi**  erown  and  dignity  ; 


I   ihoii,   J 


il.Mi  he  tiuti!'    [As  of 

■  •\  ^.'Uiiliy. 
I. .    1  ;«%»d  driiveranee. 
>    .i  ;.*«il  iix  n  of  the 
.  *».   .  ■  .ii' u-ar  hcic  this 


I  to  uliich  iudielnnnt  lluv  ha\c  |dc-uded  not 
j  guilty.  A\  e  shall  go  on  to  call  »»ur  \\itues^es, 
'  and  prove  the  eharofe  against  the  prisoners  at 

the  bar,  and  doubt  not  but  a  ou  w  ill  do  your 

dnry.     Then 

Dr.  LiitUton^   .Ailvocate  General  to  his  roa- 

jc>.ty,  in  his  High  Court  of  Aduiiralty,  spakft 
I  as  tbilows: 


firTPthmy  and  Pirdcgk 

:men  of  the  jury ;  Yoa  hsfe  heard 
ctnavDt  opened,  and  we  shall  now  call 
lenea,  who  will  relate  to  you  what 
s  and  horrid  crimes  the  prisoners  at  the 
'  committed  in  the  prosecution  of  the 
in  the  indictment :  Crimes,  that  the 
iition,  had  they  not  taken  effect,  would 
erited  the  hiiniest  punishment:  But 
it  their  case.  For  they  were  not  disap- 
yf  their  wicked  lusts  and  desires ;  ior 
crimes  are  ffrcat,  so  have  they  been 
uate  as  well  as  voluntary  and  mali- 
I  may  well  say,  that  their  wickedness 
I  as  boundless  and  as  merciless  as  the 
upon  which  their  crimes  have  been 
xtl ;  nor  is  there  any  part  of  the  world 
ih  nut  been  sensible  of  their  ra^  and 
y  — Hieiefbre,  Gentlemen,  as  you  are 
fchrisiiauity,  as  you  are  lovers  of  ho- 
uay,  as  you  are  lovers  of  yoursflves, 
ir  the  cl/arurter  of  honest  men,  if  we 
ills  charge  ai^^inst  the  prisoners,  vou 
d  ought  to  find  them  guilty,  rememuer- 
t  the  doing  justice  upon  wicked  and 
le  men,  is  tiie  greatest  mercy  and  pro- 
to  the  good  and  lionest.  We  shall 
e  proceed  to  call  our  witnesses,  not 
*  but  that  yon  will  act  like  honest  men, 
honour  and  welfare  of  your  country, 
having  §ny  respect  to  the  dishonourable 
ings  of  the  former  jury. 
mUaker.  Call  J.  Graret.  (He  ap- 
and  was  sworn.)  Let  him  stand  up. 
ten.  (Sir  John  Ifawles.)  Mr.  Gravet, 
iU  j'ou  give  my  lords  and  the  jury  an 
ot  what  you  know  of  the  prisoners 
away  with  the  ship  Charles  the  Second. 
et,  1  was  second  mate  in  tlie  ship  at 
e.  There  was  violent  hands  laid  on 
was  sei7xd,  and  a  pistol  clapped  to  my 
md  cnrrietl  away. 
Jen.  Who  did  it?  Begin  before. 
et.  I  was  seizeil  by  the  carpenter  of 
I ;  be  took  me  by  the  throat,  and  clap- 
stol  to  my  breast. 
J.  Trtbjf.  Begin  where  the  ship  was 

J.  Holt,  You  was  a  mate  in  this  ship : 
ray   give  an  account   of   the    whole 

et,   I  was  upon  my  watch  upon  the 

ners.  Pray  speak  up. 
tt.  And  there  was  a  boat  came  from 
les  Galley,  with  people  in  her :  And  as 
the  btiat  came,  the  carpenter  seized 
took  iiic  by  the  thn>at,  clapped  a  pistol 
iiid  suid,  if  1  resisted  I  was  a  dead  man. 
<ik  me,  one  by  one  arm,  and  another 
tther,  and  led  me  to  my  cabin,  and  one 
rfstol  *it(KNl  at  my  cabin  dunr,  till  they 
«t  two  ItugUf^  wiihout  the  Groyne, 
very  came  to  speak  to  captain  Gibson, 
iH  tlicu  sick,  and  was  guarfle«l  on  both 
uid  when  he  had  done  speaking  with 
(I  was  returned  from  captain  Gil»soii, 
to  uw  again,  and  said,  I  suppose  you 
I 


.     A.  D.  1696.  [46S 

do  not  intend  to  go  with  us  ;  1  said,  1  would 
not.  Then  I,  and  the  rest  that  would  not  go 
with  them,  had  liberty  to  go  ashore;  and  I 
would  have  gone  to  my  coffer,  and  taken  my 
cloihes,  buttney  would  not  let  me;  and  told 
me  I  should  carry  no  more  than  the  clothes  on 
my  back. 

'Soi,  Gen.  Did  any  of  the  prisoners  at  the 
bar  say  so  ? 

Graret.  That  I  cannot  tell. 

Mr.  Confers.  Then  go  on. 

Gravet.^  Then  I  went  to  Every,  and  I  had 
some  of  my  clothes  ;  he  was  so  kind  to  piv« 
me  them :  lie  gave  me  a  a  coat  and  waistcoat, 
and  his  commission  that  he  le(\  behind  hint$ 
and  W.  May  took  me  by  the  hand,  and  wished 
me  well  home,  and  bid  me  remember  him  to 
his  wife. 

Mr.  Conyers.  W^as  there  lilierty  for  any  of 
them  that  wouM,  to  go  ashore  ? 

Gravet,  Captain  Gibson  told  me  so,  and 
there  were  about  seventeen  went  off. 

Mr.  Conyers.  No  matter  what  captain  Gib- 
son told  you  ;  you  say  you  went  off:  Might 
any  one  that  would,  go  ? 

Gravet,  That  I  cannot  tell. 

Mr.  Conyers,  You  say  there  was  about 
seventeen  \ient  off:  Would  the  boat  hold 
more  ? — Gravel.  Yes,  Sir. 

Mr.  Cowper.  Did  you  see  any  hindered  that 
would  have  gone  off?  Were  any  of  the  pri- 
soners at  the  bur  there  ? — Gravet.  No. 

Sol,  Gen.  Do  you  know  £.  Forseith,  Sec,  P 

Gravel.  I  know  some  of  them. 

Mr.  Conyers,  Name  tlie  men  that  you  say 
you  know. 

Gravtt,  Joseph  Dawson,  W.  May,  J. 
Sparkes. 

Sol.  Gen,  They  belonged  to  what  ship? 

Gravet.  To  the  Charles. 

Mr.  Conyers.  Was  there  not  a  boat  came 
from  the  ship  James,  before  you  went  away  P 
Was  there  any  of  the  prisoners  at  the  bar  that 
came  in  that  boat  ? 

Gravet,  There  were'  about  twenty  six  that 
we  had  account  of. 

Air.  Conyers.  From  what  ship  did  they 
comci* — Gravet.  From  the  James. 

Mr.  Conyers,  Were  any  of  the  prisoners  at 
the  bar  any  of  them  :' 

Gravet.'  lude€d,.Sir,  I  cannot  toll. 

CI.  qt'Arr.  Call  T.  Druit.  (Who  appcaretl, 
and  was  swoni.) 

Sol.  Gen.  Mr.  Druit,  was  yon  aboard  the 
ship  (ca1le4l  the  Charles  the  Second)  when  she 
was  carried  away  ? — Druit,  No,  Sir. 

Sol,  Gen.  Do  you  know  any  thing  of  the 
carryinj^  of  that  ship  away  ? 

limit.  1  was  noi  in  that  ship  ;  I  was  mat* 
of  the  James;  and  ab«)ut  nine  came  one  from 
alK)ard  the  C harks  the  Second,  and  asked  me 
for  tlic  driuiken  boatswain?  Aiiti  1  replied 
Khort ;  II nd  he  went  away  airuin,  and  said  tlie 
ship  was  tn»int;  ti»  In?  run  away  vi  ithal.  Where- 
n|ion  I  went  with  ton  men  to  recovir  the  ship; 
and  at\er  I  had  ad\is(nl  with  the  commander,  1 
ordered  the  pinuucc  to  be  mauacd  \  aud  when 


8  WIlLI AM  IlL  trial  efJwfh  A<ia«m  and  ntiirit 


4d9] 

I  »Bie,  Uie  kst  that  nenl  inU)  Ike  U<Vftt  wm 
Pike ;  tml  I  bid  lUem  put  bai^k,  and  they 
[  ^oald  ooif  but  waai  •wr«y  to  i\w  niitf)  Ctmries. 

Ur.  Coftyrrh  How  msny  were  there  thtU 
iv«tit  fti»ay  in  that  boat  f 

Drttii.  About  fire  and  twenty* 

Mr.  (^nytrt.  Did  jou  know  all  the  meti  f 
Were  Any  of  ll>e  pc laonerv  at  the  bar  there  ? 
I^ook  on  them* 

Druit,  Yea,  my  lonl, llitre  was E.  Forseithi 
W.  Biwhop^und  J.  l^wui. 

L.  C.  J.  Ho//.  What  boat  did  ihey  go  tlVray 
irhh  ?  the  Jamea  boat  f^  Vftiit,  Vea^  ray  lord. 
.  ht.CJ,Ji*ili.  Then  thi-y  came  from  ihc 
Jlaiiic«  to  the  Charles  the  Sec<md  ?  Nattit*  their 
tttm^  agaio. 

Druit,  Ed.  FofBeitb,  /a.  Lewii,  ami  Wm- 
Bwhop. 

SvL  Gen,  You  saw  them  go  off,  did  you  not? 

Druit.  It  was  ao  dark  that  we  could  oot 
tee  theni* 

Mr.  Coufitr,    Were  these  three  ineo  lent  ? 

Druii,    They  were  <eiit. 

Mr.  Coteper.  Or  did  they  fo  of  thetr  own 
^fceadf 

DruH,  No,  I  do  iMl  tay  sa  i  but  1  went  to 
eonmiaod  Ihetn  b«ick  ag'fiin^  and  Ihey  refuaeiL 

Mr.  Cotiutr,    Did  ttiey  make  answer  ? 

I>riiiV.  No ;  Ihey  only  went  away  damning 
and  tinktrig. 

Mr.  Coi^en,  Were  there  any  gmu  aent 
niter  them  f^Druti,  Ye». 

Mr.  Cotuftrt.    What  was  tt  fw  ? 

Drtiit.    It  wati  tu  bring  I  hem  Iwck  again. 

Mr.  Cmcper,  Aud  they  would  uotcome  hack  f 

Ihutt.  They  did  not  come. 

Mr.  Cowpir,  Tbfe^n  ih«'y  wouM  nut  come* 

C/.  t/ Jr.  Call  Daf id  Crcagh,  [Who  was 
iwom.j 

Frmner,  Ttiti  man  it  a  {irtaoner  for  piracy » 

L.  C.'j.  Holt,    What  if  he  be  ? 

J'ruanrr.  1  do  Dot  uuderstaad  law  ;  I  hope 
Jrour  lordshi|i  will  advise  u». 

L.  C.  J.  UoiL  1  wdl  do  you  all  rl^ht.  IH^e 
be  so,  that  is  do  ohjei'tion  n^inist  hioi ;  he  may 
lie  a  good  wilue^  tor  ull  thut. 

Ct,  qfAr.  He  is  n*»t  a  prisoner  for  piracy, 
tuit  for  1  reason, 

L.  C  J-  Holt.  Though  he  he  a  prisfoner  for 
treason,  he  ia  not  attaii)ti*d.  What  is  his  ftame  ? 

CLvf'Ar.    DavikI  Cr«-»ub. 

Sal.Otn,  Whut  do  you  know  about  the  pru 
goncni  running  away  with  iht*  ship  C>harle«? 

Crwamh.  l^pou  ttie  nb  of  lUnVt  lO^i.  I  came 

'  to  the  Groyue,  in  eouipaoy  witfi  the  boatcwain 

MiH  actetal  athm,  on  board  the  t!h»rleti ;  and 

'  %bai  I  was  goin^  in  to  the?  cu  plain  of  the 


trmi.ti    Mr    V 


very. 


I  Cknlio,  eaptain  Qibaoft,  1  fri 

^ibcoiipMtMr,  umA  ioiM  ntliora 

r4dpmdk  I  aad  alUr  I  ««i  coui 
tain,  1  came  and  sat  down  with  thctUi  and  IVfr. 
If^y  drank  a  health  to  tha  Mf^a,  and  pro- 
tfiefity  (o  tlieir  foyag«  i  and  wi*  not  koowbfr 
ihau  dc^Kn  tiiaa,  tkaaf  hi  it  wa»  to  our  lawful 
tipiaiifif  and  fiiaifariiy  I*  lb*  ^«'Pif«  fa*  was 


Citii^k.    Ii  w»*t  I  ni-jh  !tim*i     AfH 

afkerwardtf  the  com : 
and  went  to  their  r 
in  our  cahtus,   we 
deck;    and    captiir 
manded  the  ^'a\*- 
men  were  nm 

meii  ,■  -  ,. 

of  mv  cahm  !«» tKfe  v 
met  by  Ever\%  tit 
ftieu  \  nod  tti' 

mv»-''il>m.      ^ 


L.  C.  J.  l^Wf.    What  is  th« 
tkiat? 

Crtit^h,  That  ls»  to  «l 
her.   So  Even  lc»ok  »ne  ir 
me  tf  t  would  |$:o  with  hitn  ?  And  I  i 
I  did  not  know  hm  df^i^ii*     tie  i 
wer«  but  few  that  knew  jt,     Mavs  I,  " 
who  do  kuow  it,  fhnt  if  you  w»ll  not 
vouiftelf,  I  mfls     ■'  ''i.'-..i  I'l  M  ;■  ,■  1    !   It 
lie  said,  we  i 

be  too  Tate  to  repent  of  t 

penterftlofvd  by  liim,  aiiii  r,.*, 

xU'xi,  cockt^  Yes«  ioiyit  1^  I  di>  <« 

mail,  and  old  Mm     au.1   K 

with  any  ths* 

giftiive,  Slid  t>i 

fiU[ipoi»e  tliey  knuw  yr»ur  di*?ti4(ri.     ^  r«»  i 

lie,  they  do ;  »iid  if  it  were  a  ihin^  of  tun  I 

tite  eot)sri|ue]]ee,  thry  lihoutd  know  if.     CJ^ 

ihiii,  lilt;  carpenter  cutne  to  titf",  and  mM,  i 

you  do  not  fifo  down,  I  sm     " 

nead.     Ana  a^  I  wtis  g* 

W.  Msy   ''i'   I     -i'ticr  ai   u.' 

you  do  \\  \\v,     1  M 

im'»»r,  luii  .».  .^  "  t '■  . 

Cioil  dumit  y<< 

the  hertd ;  ami 

Then  I  wetit  to  nn 

orders  t'ro*u  E*ei  \  ,_     i 

ashore,  should  pre|Kif  r  lu  he  j;nn«.     And  \ 

the  captain  wasi  jjrni  out  of  ht^J,  whf»  was  I 

rery  ill  of  a  feve<\  I 

niunDfroftune,au4t  • 

CJi[»tain  (tilwoOf  1  v 

time.    Sitys*  he,  \\ 

shall  still' 

son«   I  n 

me  so,  \\\..r .;..  v  ^ . A ..  .. 

U\  cri>  on u  des)|fo  again >' 

will  not  do  it*    Theo,  Ji^»;, 

gti  atihMre.     Upon  which'  ih* 

Teral  olhori  of  usi  went  into  1 1 

we  were  by  the  ahip'^  bide,  I  hrar4  ( 

tlm  doctor i<»  be  secured  ;  hut  if  there  «ial 

mon  would  ifo  into  the  haat,  tl*ey  ittiglil; 

W«  mmi  iiita  the  boat,  la  Ilia  tty|»bai  if  I 


L         '       vf-   VVbrrrdiil  lie  K^  ?o(i  f 


illi'  I'riMti  fill*  exjwiliiitTti 

Mr.  ^Wibcw,    VVua.  tli-^'  ntiv  mora  f<»f  mwe 
in  ihe  t«fi«t?^tVr »>?/*,   ^  ^.a.t, 

^  (III  ycm  tmw  ai  llit*  pri- 

I  :.iiim  oiilv  W,  'VI ay* 
^1  ,    '     Whdi  tim«  i^i'tt  iri»nt  the  cnni- 

[  tm^  »*i  I  tic  6»mt»  l<»  llic  tmir  ot  v*Hrr  {fomg  oUT 

^"*'Hr.  CuP^i*r.    Wan  llicri*  iiny  gunn  fir*?^!  in 

J  tlTIM?  f 

Co  A-^A.  Y  I'M*  Sir,  owK  or  n%  0  from  the  J  am  es, 

^y  i:.»|itAio  llixrii|»1iirrj%, 

^1  .'.     VVm  tliii  Jone  tn   (be  t>lii(i 

wii' ,  <h  wiH  ihttv  iiuj^  n|jf(*rir,  or  o|>- 

C>«Oj|&.    Nor  iherc  cDiiftI  be  tl«  oppfTHhjOti  | 

a  Oil  carno  ujiaii  us,  atitl  mirp*  t/^tl  n*,  lunn^  4** 
mat«4  h>  thyv^  lb  At  bnliin^td  to  tlj€  (Jh^irtrn* 
Mr- C«»^/it'r.     Bui  'ii*l  tirt^»it«Iy  mrtk*Mtpjio- 

I*,  r  J,  /ffi/r*   0al  Vi«  \*^ml  iwUoMf 

CfOi^k,    Yes,  t«v  Wrd, 

Cftugh.  N«,  my  UjwI,  iion©  but  tlic  tJtjcior, 
Soi^Cm*     Now  oill  J^K  l>iiu*     LWbo  up- 

II  .    Wtiat  :ibip  Witre  yc^ti  ftlt^rd 

Mr.  Ci>m/rru    N«w^  V^y*  K*vc  my  lorfl  nod 
mAw  juri'  &(i   iiccrtunl  wbtil  you   kaow  ot  the 

ill  Mr  hut  uaHtirill  |tiJt>{f^« 

a^H.  \ M,  Htr :  We  cmmt  to  the  Groyne, 

[  8Dii  Uml  Kt:rn  Itif^rif  db«viit  lUr«f^  or  liiur  rriiintby, 

fiiud  \\t^  U*<\  hti't'ii   ft  bo  It  t  pi<r1i4(  mujythK  out  uf 

I  Ei^l»utl»  and  wti  hy  fijrtaif  i'^  1  ih<^r<^ 

»  iis9  no  m»i;e^  U*  h^  ^<yL     Bin  n3  iv«; 

ui^bt, 

,..   .  ■    -■■! 

^  i»bi*ii  tli«fy  Cm"  11 

t'pnvj   In  It,  Ulr    !     .   ' 

[%hty  ihihm'iw:,  1  Uimk.  ihr  piekct  Wi*nt  out  Iq 

LonkTi'il  tf>  yit«»  ftoiit**;  «n«l  ihry  eam??  to  lb«* 
■  lJ*iH*i  »Qil  *i!*f'iii  nint-  r^r  i<p  brr  hoax  bttikv^  o&\ 
.  ^li  she  txAlM  itit  ;  far  lU^iy  tt^M  ca|il.iiM  Bum* 
|p|tn<y»  thcv  w^u' {.^^tmiii]^  tn  rtiri  a^iiy  ^iib 
I  fHir  Utifi*  %t  hu  bctlfjt  tUv  Jtiiut-^  ;  au4  prt*' 
utiy   irtJin<  tit*  (b»!  iitHov*  ri\mt  imd  tjnJer- 

it  nil  ff  l»rfi  iluy  i^iivc  Uu'i  orJ^^tj  thi^raiUfti 
TOUXllL 


160A  [4M 

Br«fyAiid^5  or  sd  mm.  Ant!  a«  Oiey  came 
ii1i4mnl,oi]rmM€«  wen?  €*ul,  am!  irmly  Ut  ^a. 
And  «ifuinf  utiilr^r  tbr  cartile^  iv«  cttt  ult  tii& 
!H>»tH  but  two^  iinJ  isiood  4)ut  tt>  stii  sibuut  itva 
or  thrre  leagu««  ;  nnd  l!>eii^  Bvfry  wt'iit  lt> 
ptptuio  UibsffU,  mid^  ns  iVicy  s:iit1,  to  Ask  hitn 
if  be  wouhl  gri  tfi  thetUi  m*  not.  H«  sau),  no* 
Tkivfn  hf.  len^i^  be  must  j>rc|mri*  l'>  go  astmr^  j 
u»il  Ji«  did  »a,  a  ltd  fteverfil  uibc^m  viiih  lum; 
4tid  ibv  wurd  wuji  grivrn  aibout^  that  ihc^y  tbut 
WoiiblHlo  :iMhi*re  ifii|jbl  gio  ;  but  wli**llier  lb<f»e 
tncsn  bctud  Um  itt»,  t  raiittot  tvU  7  nndtto  man*ft 
riauit:  ^Ei!t  iucniiori<*d  10  !>«  sii>pfie<l,  but  tba 
iWtftr.  And  wberi  ibty  wi^iir  u^ay,  ibey 
critd^  tbi'ni  viaA  water  in  tb^  b<*jit,  atnriUey  tU> 
wired  tt  bucket  ^t'  m,  to  benv^j  it  furcf,  unt\  wn 
gave  tbetii  oric  ;  nmi  an^ay  tbc-y  wiiii,  I  tbink 
Hbont  15  of  tiic;it»,  aud  uo  Miort'  did  olF*  r  to  g^ 
as  1  naw,  nor  did  I  see  nny  Iviiidef  nny  (but 
would  g^o  :  and  nfterwHrds,  ibey  tUal  wejrt  tiif 
went  ftfiotH  tb«ir  bu^messi  nud  we  abtiut  our 
buftint*M3i.  And  we  ^ame  to  tbe  IsJc  tkf  May, 
aud  vif  tuuHt^d  ourii«lfPs  tbere  ;  snd  lh«re  vi« 
met  witli  !bri?<3  Ko^beh  ibip!!!,  out  of  wbicb  we 
tiMjk  ttome  ufoeisaneg  for  ourselves,  ntid  imorig' 
tliid  reit  sevi-ral  raeti ;  nine  men  we  took  out  of 
ib*^rii. 

Sttl.  (hn.  Wrre  tbo  priftAn4»*fi  &t  tbc  bftr  19 
the  *ljip,  ^  h«nthey  went  away  i 

Ihm,  Yw, 

Sat.  Ofth  Name  tlietn, 

Utin.  Ed.   For34iulb,    W.   May,  J,  L«iPit, 

'  ':   of  tbem  wa«  iboatii 

Hi  ^-nd  tobpfF 

X^./:.  V( .  r*i4^,  ii;id  J,  Sprk*^  ;  aiMl  Ed* 
F^rirftli«  Ji&.  Ltiwb,  Hud  l\.  BUbf^i  cfttuii 
frofu  ilii*  Jrtnii^^*  *   ' 

i^lr.  Cwpcr.  Was  it  not  gtneraUy  nailer' 
ftlCHHl,  I  bat  tbey  wete  |;tolug  to  run  awi*y'*rjtll 
tbc*  «bip^  \vht*ti  tbiiy  cnin^  to  capiauk  Oibsonf 

D&H.  Ye«/8lr,  tbcy  knew  folic  sture. 

Sot,  Otn,  Ud  you  knoiv  tliat  tbi^y  as^MPUtet^ 
to  it? 

Dafi.  No,  Sii\  I  did  not  Ucar  thpm  nay  mj 

Just,  i!*jfr«.  Did  tbcy  daiirt*  to  ij^^asdwr* 
witb  the  rest? — Dan.  1  ^aw  mmi?  bimlet^d*  * 

L.  C.J.  Uo^l,  na4i  Ed.  Fonk!atb  in  tb© 
<iliii»tbt!nf 

/Jfyn,  Ed*  Forjteitb  wai  in  the  ibJp  llieii* 

I*,  C.  J.  i/c^^.  Wa»  lj«  at  the  Isb  «if  'May^ 
i^kin^  in  nffccft^aiiuii  wilb  you  f 

l^an.  Ye*.  Sir, 

L.  f:  J.  JM/.  What  did  be  ^u  10  Ihecom^ 
panyf 

IJitn,  Hewiu  iii.Ui#  sbip,  and  came  ^Hm 
tbiTJ»iiii«.  -^  * 

ir.  C,  J.  Hi/it.  4cid  ftn  did  Bisbop,  and  so  did 

Da  It.  Yts^  my  li^rd,  tbt4«]  tbr^  ;  md  llitf 
otbi^r  twobtilonged  ti>tbe  CbarU^# 

Mr,  Whitakt.r.  Did  liiry  of  ibe  tib^i*!  cr»i# 
go  aebor^  at  lb  if  Imh*  of  IVfiy  ST 

I^mn*  Y«!i,  Hir^  1  think  si>, 

Sal,  Gin,  But  I  ibittk,  you  aa^,  tUat  llto 
wofd  wai  i^fflii  about,  tbai  any  mtgbt  f«  tbit 
would. 

2H 


8  WILLIAM  IIL 


Trial 


467] 

Mr,  Conyert.  Go  on  >«itb  the  prDceedings 
fler  you' were  at  tbe  Isle  of  May. 

Dan.  Alter  we  had  ? ictuaUed,  we  took  in 
Omc  men, 

Prismers.  We  bave  been  tried  for  that  mU 
rady,  mv  lord. 

L.  C.  J-  Holt,   Gti  on. 

Xltifi.  Ai'ter  we  had  been  there,  and  took  in 
'  ^but  we  bad  occasioo  far,  our  quarlcT  master 
0ai(l,  he  woiild  give  tbem  bilJs  for  what  be  took 
ot  Ibem.  Then  we  went  to  tbe  cuast  of  CjUI- 
nea,  and  took  several  negroes,  and  crried  tliem 
away  with  us.  And  aiWward  we  went  to  tbe 
Island  i^f  Fi  inces,  where  lay  two  Danes,  and 
we  fought  them,  and  look  thfni  ;  and  after 
wc  had  taken  thenif  some  of  tbe  men  went 
ashore  at  the  island  of  Princes,  and  otbeta 
went  along  with  ui  ;  and  we  brought  the  ships 
io  Vaodcpo^  and  burnt  one,  and  carried  one 
with  us.    Then  we  caroe  to  cape  Lope5. 

L.C.J.  Ho//.  Where  »■  that? 

Dan.  Under  the  equinoctial  line  ;  and  there 

Ve  tired  a  shot  through  tbe  tiltle  one  to  sink 

Iter,  for  the  men  could  not  agree,  and  so  we 

could  not  carry  her  with  us.     We  went  about 

the  Cape,  and  touched  at  Madagascar 

Dr.  JMtleton,  Had  not  these  men  their  part 
ind  share  of  the  ^d under  f 

L.  C.  J.  Halt^  You  go  too  fatt.  Sir, 

Mr.  C<myerM.  What  i*aa  the  next  ship  yon 
Jloet  with,  afleryou  bad  munded  the  cape? 

Dan*  The  next  waa  a  small  vessel,  about  30 
l#r  40  ton»  and  we  ^ut  ber  ashore,  and  took  a 
'  jmall  matter  out  of  ber,  and  let  ber  lie  ;  and 
I  we  pat  this  gentleman^  Mr.  May,  ashore* 

od  #e  feeing  three  English  shine  a  coming, 
yrt  lelt  him  there,  and  went  to  the  equinoctial 
Jine;  and  "^afterwards,  for  want  of  bread  and 
water,  we  came  a^&in,  and  took  another  small 
Tewel,  and  sonae  rice  and  jMMiy  out  of  ber,  and 
sunk  ber^  and  then  went  to  tbe  Cape  again,  and 
look  in  W.  May  again,  and  met  another  vesseli 
snd  took  rice  and  meal  out  of  her,  and  sunk 
ber  too.  And  then  we  went  to  the  Red  Sea  to 
a  town  called  Meat  ;  and  the  people  would  not 

de  witb  us,  and  we  burnt  it.     And  thence 

»e  went  up  ta  the  Red  Sea»  as  far  as  we  could, 

md  going  up  to  tbe  c^pe  Adio,  we  met  witb 

li^o  £ngmih  privateers  more,  and  they  came 

[■bd  joined  witn  us. 

L.  C.i.  HoU.  You  call  them  privateers; 
t (ut  were  they  such  privateers  as  you  were  ? 

Dtin.  Yes,  my  lord.  I  suppose  they  bad 
L  commissions  at  fir^t;  butliuppose  they  did 
fpot  run  so  far  as  that. 

Mr.  Cony  en*  Did  you  g^  all  oq  the  aame 

011.  Yei,  tbey  tailed  on  with  u«,  and  we 

r^ade  the  be»t  of  our   way,  and  eame  np  into 

lliie  Red  Sea  iu  a  Ultte  time,  and  came  \\\m\  an- 

sliorat  BobV  liLey,  and  bad   lutn  there  but  a 

luight  and  a  day,  tind  tbufo  came  up  tbrc«  tin* 

~*   '  iniuu  more'  iW»m  America  ;  and  Uiey  like* 

oonsoried  uith  ns  ;    and   we  lay   there 

Bt  *^'  ^^  " '^  ;  and  in  that  time  w«  expect* 

I  t!i  (lie  down. 

*1  ....  Whattktlf 

2 


of  Joseph  Dawson  and  otherif 

Dan*  The  Mooriib  fleet,  ikai  c%] 
Mocha.    Tbey  piisaeil  na  oti  Matiirdai 
unseen*  and  we  took  a  %'cssel,  wiffcb 
an  account  that  ibey  were  gone.     Ami 
followed  thero  •,  and  about  three  daya 
made  land,  we  came  up  with  one  of 
about  ';j  ur  300  tons,  and  \ 
her,  and  small  bhot,  and  t 
we  h*  '  t   '    II  Iicr,  we  pUiuutrcu,  ariu  lool 
sont'  siUer. 

Mi.  Vcj/(/«.  And  what  did  yon  do  wtlhit 

Dan.  We  ftrougbt  it  alioard  our  ibip, 

Mr.  Conytrs.  Did  you  share  xif 

Dan,    Not  then,  but  after  we  look  theolba 
ship. 

iMr.  Conyirs,  What  was  that  other  ship? 

Dan*  After  we  had  taken  her,  we  put  mi 
men  al>oord  to  keep  beri^ithns;  nmtali 
two  days  aller  we  wer**  lying"  ^^  anchor  ai 
John *s,  and  there  ^i  t^  ^ 

Gun^iiway  j  and  we 
ber  alwut  two  I 
some  men  hIhk. 
after  we  had  d^ 
venieiit,  we  sn 
her.     And  theu     . 
CiMUt,aud  shared  uuj 

L.  C.J.  Ihit.  Tt,  .   M     ,   ,v 

it  not,  tbe  best  you  bad  all  tbe  voyagt  f 

Dun.  Yes,  my  lord. 

L.  C.  J.  HoU,  Did  you  all  share? 

Dan»  Yes,  all  that  were  in  the  ship. 

L.  C.  J.  HoU,  You  ha^^e  given 
count  of  this  matter,  Was  Edwi 
there?— Z)fl«.  Yes,  my  lord, 

L,  C.J  Htyit.  What  did  he  do?  Wt* 
active  ? — Dun,  I  did  not  see  him  act. 

L.C.J.  HoU*  I  lad  heaahair:^ 

Dan.  Yi'SJ»  n»v  lord,  be  had. 

L.  C.  J.  HoU.  Waii  W,  May  there.* 

Dan*  Yes,  my  lord. 

L.  C,  J.   HoU,  What  did  he  do  there  f 

Dan.  Me  could  do  but  little  then  \  be 
his  share. 

L.  C*  J.  HoU,  Ajid  wh»n  vou  took  himii 
again,  what  did  be  do?    Did  (Udobia 
aa  a  seaman  ^ 

Dan*  Yes»  my  lord,  till  he  w  - 

L.C.J,  HoU:  WanW,  B.V 

Dan.  Yes,  my  lord,  he  was    i:  -a  - 

L.  C.J.  HoU.  What  did   h.     l- 
content  and  n^'^rcelo  wbar  wns  ti^i..   ' 

Dan*  He  had  share  ol  Uji'  niOiie\  . 

L,  C.  J.  HoU^  Did  J.  Lijwib  >biiR  vjo  ! 

Dan,  He  hail  a  uUnre^  as  far  aa  was  ailotl 
by  the  company. 

L.  C.  J.  Holt.  Did  J*  Sp&rkeft  sbaro 
you  loo  ? 

Dan*  Yes,  my  Wd,  aa  far  a*  iho  compai^ 
thought  til   losrlvehiiii 

Mr,  Cow  per.  ^Vhen  yi^a  ^ay  *  y    ^ 
pany  tlniught  fit,*  Mtmt  do  %<iy  i\y> 
did  titey  ah  are  if  f 

Dan*  Some  hiid  1,000/.  aojne  AOOL 
300/. 

Mr.  Cmtpcr,    Had  all  the  i»( 
abarc  T — Dun,  Yew,  fciir,  all  Iml  < 


Ihd 


^! 


Jot  Fehrt^  and  Piracy. 

Ifp.  Whitaktr,  What  (lid  you  do  wllh  the 
ClyiHe«tb«  Second,  after  ihe  voyage  ? 

l>aft.  We  left  Uer  at  Providence* 

r«.  C<  J.  HoU,  II'  any  of  yon  prisooers  at 
be  tiftr  will  Jisk  him  any  questions,  you  may. 

Just.  Turton.  What  (irovislons  nere  aboard 
iLe  Charles  «vlien  she  wa&  taken  avvaj  f 

Dun.  I  canuoi  teU. 

Jtisi.  Turton,  What  quantity  of  bread  was 
Ihere? 

IMft.  A  pretty  d«fal»  1  cannot  teJI  the 
^os^otity. 

Jtkit.  Turton.  And  were  there  any  guns 
alMtrd  her  and  small  amis  T 

X>«it.  Yes,  tny  lord»  there  were. 

May.  My  kird^  may  1  speak  (or  mysett? 

L.  C\  J.  *i/c?/(*  II you  wih  ask  him  any  ques- 
liouis  you  may  ;  you  shall  be  heard  again  to 
speak  for  yourself  bye  and  bye. 

May,  I'desire  he  'may  be  asked  where  I  was 
lakenskk? 

I^  C.  J.  Holt,  He  asks  you,  where  he  was 
taken  sick? 

}^        T  f  \     '■ '    \A\  that,  1  think  it  was 

at  A  "fGuineti. 

13  .M.»  ui  n-vin  with  it. 

?  ou  did  not ;  but  your  first  being 

takt  V  at  Allihoi^, 

J  '»nl»  I  deiiire  you  will  ask  him, 

irh*  1  lukij  I  had  any  kno%*iedge  of  the 

gx>iiig  away  ol  ihe  ship  '( 
L.  C.  J*  iiu/r    You  hear  what    he  saysj 
whatdoyou»].)y  ? 
,  DAn.  I  know  DOiluDg  of  timt, 

I4.  C.  J«  Holt.  You  were  lhere»  and  you  had 
I  aUsre  of  the  prize  ;  you  drank  aii  health  to 
the  surce^  of  your  voyage. 

iUiiy,  I  hope,  my  lord,   you   will    not  be 
yy  fur  a^kioc  'itteslioos, 
U  C.  J.  Hoit.  No,  nobody  is  angryi  you 
»  ask  what  quesUons  you  wilL 

|7befi  Ptiilip  Middleton  was  called  and  swotu. 

Blr.  Conyers.    Pray  tell  what  you  know  of 
I  taking  away  ihe  ship  i-harles  the  Hecoud  ? 

MMUton.  i  cannot  say  any  thio^  of  ruii- 
f  «>ing  away  njth  the  ship,  tor  I  was  asleep  then; 
tiut  ttiierwards,  in  (he  murnint^,   they  called 
up  all  hands ;  aiul  the  CAptaiu  snid^  E? ery  man 
^B  aiiould  share  alike,  only  he  would  have  two 

■      1.  il  J.  Udt.  Who  said  so  ? 
^B      Midiiieton.  Capi.  Evtry.  From  thence  they 
l^^wen*  '"   1^-  '*'vvt»,  and  louk  iu  some  m\i ;   and 
froii  thev  went  lo  the  i^le  of  May, 

ajxi  u  V  took  three  En^lisli  ships,   and 

plnoiiered  them  ;  and  tliey  took  the  goveroor 
aboard  their  ow  n  shi]»  till  ihey  had  done,  (tor 
tJien  they  could  demand  ifthat  victuals  they 
had  a  mind  to)  and  then  thev  spnt  bim  away 
again:  And  from  the  lule  of  ttay  they  vYent 
lo  tlie  coast  uf  Guinea,  where  tney  put  out 
Saglish  colours,  to  make  the  natives  come 
1  10  traile ;  and  when  they  came  aboard, 
f  surpriztrd  them^  and  took  their  gold  from 
,  and  tied  them  with  chains,  and  put  them 
I  the  hold;  axid  whea  Ihey  caiue  to  a  place 


A,  D.  ims*  [*7(l 

called  the  Island  of  Princes,  they  gare  serea 
of  ihtfm  away  for  slaves  ;  And  then  they  went 
to  Vandepfve  where  ihey  cleaned  their  ship ;  and 
from  Vandepoe  they  went  to  Cape  Lopes,  and 
from  Cape  Lopes  to  Annibo,  and  from  Annibo 
about  the  Cape ;  and  at  Madagascar  they 
watered  their  ship»  and  got  provisions^  and 
cows  to  salt  up ;  und  from  thence  they  went 
to  Joanna,  and  from  Joanna  they  went  to  take 
a  Juuk,  and  took  rice  out  of  her,  and  sunk 
her  ;  and  from  thence  th?y  went  to  the  Equi- 
noctial hue,  and  because  they  were  short  of 
water  and  rice,  they  went  back  again  to  Jo- 
anna ;  and  the  wind  being  contrary,  they  went 
to  Cnmmeroe ;  and  there  they  met  a  svnaJl 
French  vessel,  and  they  took  her,  and  sunk 
her;  and  then  went  to  Joanna  again,  and 
theie  took  in  Mr.  May  again  :  and  then  went 
to  Meat;  and  because  the  natives  would  not 
tiaiie  with  them,  they  burnt  their  tovin  :  And 
then  ihey  went  to  Bob's  Key,  by  the  mouth  of 
the  Red  8ea  ;  but  before  til  at,  ihey  met  with 
au  En^^lish  vessel,  thut  was  on  the  same  ac- 
count that  we  were  \  nml  we  rode  there  anight 
or  two ;  aud  they  saw  thert  another  sad  a 
coining,  which  proved  to  l>e  another  Eng* 
lish  vessel  :  And  in  the  morning  they  saw  two 
more  ;  May,  Farrel,  and  Wake,  were  tije  cap- 
tains: And  on  Saturday  niglit  all  the  Mocha 
fleet  passed  by :  And  on  Honday  morning  they 
took  another* vessel,  tlmt  told  them  the  said 
fleet  was  gone  by  ;  and  so  they  consulted 
whether  they  should  follow  them  or  stay  tliere. 
And  then  they  went  after  them  and  overtook 
them*  and  took  one  that  was  about  three  or  four 
hu  ndred  ton,  and  took  u  old  and  silver  out  of  her  ; 
and  sent  men  al'Mard  her  10  plunder  and  keep  hen 
And  next  day  they  spied  another  sail,  and  got 
up  (heir  anchor,  and  stood  to  her,  and  took 
her;  she  was  called  the  Cunsway  ;  they 
killed  several  men  aboard,  and  when  they  had 
taken  and  plundered  the  ship,  they  led  tba 
men  aboard  to  go  to  Surat  again.  And  theo 
they  went  to  Hachipool  iu  the  East  Indies* 
and  got  water  and  aecessartes ;  and  from 
tlience  to  Degorees,  and  watered  again  ;  and 
then  to  Dascaran,  where  they  set  about  twenty 
hve  Frenchmen  ashore,  and  fourteen  Datieiy 
and  some  Knglish  ;  for  they  were  afraid,  if 
they  came  lo  England,  and  were  caught,  they 
should  be  hanged ;  and  they  thouglit  them'* 
selves  there  secure.  From  that  place  they 
went  to  Ascension,  and  iheu  to  the  hlund  Pro- 
ndence  iu  the  West  Indies:  And  then  they  . 
n  rote  a  letter  to  tiie  governor,  to  know  if  he 
would  let  them  come  in,  and  said  they  would 
present  the  governor  with  twenty  pieces  of 
etght,  and  two  pieces  of  gold,  if  he  would  let 
them  come  in  ;  and  the  captain,  because  ha 
had  a  double  share,  he  oHereil  forty  ])ieces  of 
eight,  and  four  of  gold  ;  and  with  that  they 
sent  some  men  down,  Adams  and  ot tiers,  wito 
the  letter:  And  they  came  again,  with  a  letter, 
from  the  island,  that  they  should  be  welcome^ 
aud  come  and  go  agaia  when  they  pleased. 

Mr.  Convert.    L^ok  on  the  prisoners  at  tba 
bar.    Were  they  all  there  f 


171] 


S  WILLIAM  IIL  Trial  f^ Joseph  Bmnon  aitf  others^ 


m 


L.  C.  J.  Holt.  Do  yon  know  Ed.  Forseith  ? 
Was  he  there?  Did  be  beloti^^  to  the  Charles 
the  Secon<l  ? 

Middifhni.  He  came  fro;n  the  Jamrs. 

L.  C.  J   Iloif.  ^Vas  W.  May  there  ? 

Middtetun.  lieu  as  ahriaH  the  Cliarleii. 

li.  C.  J.  Ho/^  Was  W.  Bisbup  there  ? 

Middieton .  UM  iishnp  came  from  the  James. 

L.  <:.  J.  ifo//.  Was  J.  Lewis  there  ? 

Middlclon.  \'es.  hv  came  from  the  James. 

L.  C.  J.  HoU.  Was  J.  Sparkes  there  ? 

Middhton.  Yes,  he  was  ahoard  the  Charieit. 

li.C  J.  Holt.  Had  all  the  men  tlieii*  shares  ? 

Middieton,  Yes,  such  as  tlie  company 
thoug^ht  fit  to  allow  them,  all  of  them. 

L.  C.  J.  Holt.  Had  these  men  their  shares 
of  the  several  prizes  they  took  ? 

Middieton.  Yes,  they  had. 

L.  C.J.  Holt.  Werc'thcy  active  in  the  tak- 
ing of  the  prize  ? 

Middieton.  They  were,  as  far  as  I  saw. 

L.  C.  J.  Holt.  Were  not  divers  others  set 
Ashore  besides  capt.  Gibson  ? 

Middieton.  1  never  heard  any  repine,  or 
wish  they  had  l>een  ashf»re,  or  that  they  had 
never  come  along  with  the  ship. 

L.  C.  J.  Holt.  Rut,  do  vou  know  of  any 
Others  that  were  set  ashnre  ? 

Middieton.  Yes,  a  great  many,  Mr.  Gravet 
and  several  others. 

Mr.  CtiTpper.  I  *hink,  you  said,  some  French 
and  Entrhsli  uere  set  ashore  in  the  Indies  ? 

MiddUtm.  Yes. Kir. 

Mr.  Ci*7rper  Were  they  set  ashore  willing^ly  ? 

Middle  on.  TUvy  di  sired  to  he  set  ashore* 

Jun/man.  He  savs  In  tlie  innri'injy  capt. 
Etctv  callciltlji'fn  above  ilcek,  ami  Lfave  li-ave 
to  any  t(»  ijo  a«*luMe  tliat  w.'rr  iu»t  willing-  tnrrn 
\\\\\i  them  ;  \u*  di«*iroto  \uuw  wlutht-r  any  of 
the  prisoiirrs  wen*  tii'.  it  at  liiut  liiiio:' 

Middltton  J  know  I. oi  thai ;  all  hands  were 
tsulled  lip. 


L.  C.  J.  Holt.  You  hear  what  benr^. 

Dniit.  Yes,  you  were,  and  I  omwM 
yon  to  come  Imck,  and  you  refuted. 

Foneith.  Did  not  vou  comnaad  me'tOfD? 

Druit.  Yes,  and  1  afterwards  o 
you  to  come  back,  and  you  refusari. 

Forseith.  Yon  did  not  command  i 

Druit,  Y'es,  I  did,  and  fired  «t  yoa,  and 
shot  throuGfh  the  boat. 

Forseith,  I  held  water  with  my  oar,  tbat'waa 
all  1  could  do. 

L.  C.  J.  Holt,  What  did  you  commandlnfti 
to  do  T^Druit,  to  reacBe  the  abip. 

L.  C.  J.  Holt.  Instead  of  raacningr  the  abi^ 
vou  run  away  with  her.  He  commanded  yoa 
back,  and  yon  refused  to  ooroe  back. 

Foneith.  I  could  not  hriajyc  her  book  myatif, 
nor  come  back,  unless  I  ahouM  leap  over* 
board. 

L.  C.  J.  Holt,  Have  you  any  more  toaay  ? 

Foruith.  My  lord,  when  I  was  in  Ihelioat,! 
knew  not  who  was  in  it,  nor  how  many.  When 
I  camea-board  the  Charlea,  the  aaila  %rere  kNM«^ 
and  I  was  in  a  very  sorry  condition  ;  they  cut 
the  boat  off,  and  put  her  adrift ;  I  coukl  notgcl 
into  her,  she  was  cone  in  a  minute's  time,  I 
did  not  know  which  way,  or  what  men  there 
were  in  her,  uor  heard  notbin|f  until  two 
o'clock  the  next  day.  And  I  hope,  my  bid, 
as  we  are  but  poor  sea-farinj;  men,  anil  do  wH 
understand  the  law,  you  will  take  it  mm  ooo- 
sideration. 

L.  ('.  J.  Holt.  But  all  you  seamen  under- 
stanfl  that  law,  that  it  is  not  lawful  to  comiuit 
piracy  ;  and  he.  that  doth,  Heservrs  to  l>e hanged. 

Foffti'fi.   My  hutl,  I  ii«  vtr  did. 

Ij.  C.  J.  Uott.  Did  \ou  think  it  no  piracy  to 
roh  i* 

Forsrith.    I  unc  t'nroetl  to  do  what  I  did. 

Just.    Kifrc.  ^'lln  ail  «-ofn[i('t(t'd  ono  another. 

Forseith.  My  n»iii,  I  u as  sent  of  ho  erianil. 

liopcas\%t>  arc  |M»nr   nn  a  in  this  eonditiun. 


Just.  7wr/nn.     \\  h.it    ninnlur    of    prr.xons  '  y"  "i"  iJil**' '"t**  <''^nsidi  ration. 


ivere  alinuni  \^  hen  \\w  ilii  i.ti :,«!  wns  nuule  ? 

Middhton.  Abom  a  liiinilrcd  aiul  sixty. 

Jnst.  Turtuti.    Whul  nii;;!it  tlu-  sIi.uls  W? 

Middiffnn.  ^S»Mn(•  I'jfiO/.  siunc  ()(#•>/.  an»! 
some  500/.  and  some  lesK,  airordin^-  s*s  the 
company  tliou<rht  they  ilisrru  d. 

Jusf.   Pnrfon.  Had  not  \ui\  a  share  ? 

Middieton.  'N'es,  what  the  cnnipany  thonijlit 
fit,  anil  they  told  inn  that  would  serve  to  put 
lueout  an  apprentice,  and  that  I  should  never 
go  near  niy  friends. 

Just.  Tu7ton.  How  nuich  was  that  vou 
lia.l  ?  ^ 

Middieton.    Al»nve  an  hnndrcd  poiiiuls. 

3\Ir.  Cont/nx.   What  hi'canie  *»r  it  :' 

Middit'oi.  Jr>  SinrksrolihMl  mo  of  it. 

1-..  (J.  .1.  //*»7.  Th."  kiuii's  f«ni:!'Jil  havi* 
c^onr  wit!i  tin*  e\i«len(i',  iind  tlienfiiM*  now  is 
your  timr  lur  ti»  spiMk,  it*  \ou  lia\»-  any  liiinif 
to  say  lor  yoirscUi-*.  Kil.  rnrst  itii,  wii.il 
lia\r  \ini  lu  s:i\  f 

F.J?  /(•'/.  "VI \  |.M-;1,  I  drsin*  yoti  would  eal! 
Mr.  Oniit.  and  «sk  inm  wheilitT  X  wui  oiiu  of 
<b«  pinnace's  cruw  ^ 


L.C.J.  Holt.    We  fhall.     Ifa\e  you  Any 

more  lo  say  J* — I'mseitk.  No.  ni)  l.»rd. 

L.  C.-.J    Holf.  W.May.  x»  ha'i  do  you  .«ay  f 

Mm/.   Here   is  oni' ol  the   kiif«;'s  evittrnciv 

that  ttsliti«'<  that  1  knew  noihiii«<f  of  the  shi^i'w 

Lfoiiio;  av:»y  ;  an<l  1  lieliew  ttry    few  knew  if. 

I  beiirve  not  rIiov«-  nine  or  I*  n. 

L.  C.J.  Holt.  None  of  them  siy  yon  wene 
at  tile  eoiisdh;  hut  (»oe  s:i\s  that  wui  !:aid» 
'  God  (iaiiin  \ou,  \ou  desei  vi*  to  he  shot  through 
the  In-ad  */  and  hfld  a  pistol  to  hiin. 

Mat/.  I  ijHVtr  w'ls  any  hitjfh*^'"  than  the 
under-drelc;"  I  \va>  ooiniu;^  up  the  hateh-wa\, 
and  e:.piaiu  Kvny  was  staiidintr.  anil  cori- 
inaiiih:iLt  lln*  -hip. 

L.  1".  .1.  //«;/'.  Kvery  was  no  ofHeer,  he  hud 
i  iMMiiiiio  1;)  do  to  (ouiiiiHiid  ;  hi*  was  under 
j  eaj.iain  (iilisni'.End  took  tin-  s|ii|)tio:ii  Gil^soo. 
j  .1/'.'//  y\y  l<r.d,  IkiiiiN^  noihini;  of  ttieship*s 
1  '^m.-ix  .'..vuy 

!       J..  ('  J.  i/..//.    Vou  should   Inive  stnefc  to 

:  rapuiin  (iih-soii,   ai.d  ei.di-.r.ourcd  to  suppress 

the  insidtiu-r  of  i'^cr\.     Capt.nii  Ciilisoii  was 

the  cumuuudcr,.  you  ou<rht  to  have  obeyed 


4ns] 


;fifr  Pdotymnd  Kraog^ 


faim ;  and  if  wiy  liid  raiiited  him,  or  gone  to 
mitafbroe  opon  him,  yoa  should  have  stood 
py  him. 

JjAy.  I  was  snrpriaed. 

L..C.J.flo2f.  How? 

May.  By  Gajrtain  Every,  and  knew  nothing 
of  it. 

L.  C.  J.  Bolt,  Yoo  were  zealous  from  the 
beginning,  and  said  to  one,  '  Damn  you,  you 
deserve  to  be  shot  through  the  head.' 

Just.  'S^urtan.  And  one  says,  you  drank  a 
health.to  your  good  voyage. 

May.  Presently  after  I  heard  this  rumour,  I 
came  up  the  hatch-way,  and  capt.  Every  savs, 
**  You,  May,  1  believe  you  do  not  lo%e  this 
way,  pray  get  down  to  your  cabbin."  So  I 
went  lo  my  cabbin,  whieii  one  that  is  noiv  at 
Tiiginia  coukl  testify ;  which  I  hope  will  be  ; 
ceuidered,  that  1  cannot  have  my  witnesses  I 
forme.  j 

L.  C  J.  Holi.  What  have  you  more  to  say  ? 
Have  you  any  witnesses  to  call  ?  \ 

Mmy.  I  stayed  in  the  cabbin  a  considerable 
time.  1  was  thinking  1  must  leave  my  old 
taptain  without  seeing  him  ;  and  I  beg^tid 
them  to  give  me  leave  tu  come  to  him  ;  and 
there  was  two  men  stood  with  naked  cut  laces, 
and  would  not  let  me  come  to  him.  We  had 
some  confabulation  together,  and  I  begged  the 
favour  to  come  in,  and  at  last  they  permitted 
me ;  and  the  doctor  was  anointing  the  cum- 
nander's  temples.  And  as  I  was  comingalong, 
I  had  my  hand  cut ;  and  I  went  to  the  doctor, 
to  desire  him  to  liiud  up  my  hand.  When  I 
came  out  again,  they  b^n  to  hurry  the  men 
away.  Here  was  Mr.  (iravet,  the  secontl 
mate,  who  is  now  one  of  the  king^s  evidence ; 
and  I  told  him  he  should  remember  me  to  my 
wife,. I  am  not  iike  to  see  her  ;  for  none  could 
ft,  but  who  they  pleased :  for  when  tliose  men 
were  in  the  boat,  they  cried  to  have  a  bucket, 
or  eke  they  should  sink,  tlicy  having  three 
leagues  to  go :  anil  1  do  not  know  how  they 
ODulil  go  to  tar  with  more,  when  their  boat  was 
Eke  to  sink  with  those  that  were  in  her,  as  some 
of  the  kind's  evidence  have  testified. 

L.  C.  J.  ExdL  Who  will  you  call  P 

'Jl«y.  Mr.Dan.    (Who  appeared.) 

L.  C.  J.  Holt.  Mr.  Dan,  answer  the  ques- 
tkNi,  Whether  there  was  calling  for  a  bucket 
•Bvml  times  by  the  men  that  were  in  the 
fcootf 

Dan.  They  did  call,  and  a  bucket  was  given 
Aemtopnmp  with. 

L.  C  J.  Uolt,  You  were  ivilliog  to  be  rid  of 

May.  I  have  more  to  say.  Afterwards,  if  I 
Aookl  have  denied  to  go  with  them,  I  might 
kfve  been  killed  by  them ;  and  I  knew  not 
vketber  it  be  better  to  be  accessary  to  my  own 
death,  or  to  suffer  by  the  Jaw  of  the  natlttn. 

Sir  Ch.  Hedge*.  You  seem  to  say  that  you 
%ere  under  a  constraint  and  terror.  Did  you 
taake  any  eomfilaint  or  discovery  so  soon  as 
you  had  Jii>erty,  or  at  your  iirst  crnning  iuto 
Ibe  king's  dominions  ? 

May.  Yes,  «t^u|*ima« 


A.  D.  1606.  [;474 

Sir  Ch.  Hedges.  Where  did  yon  first  arrive 
in  England  ? — May.  At  Bristol. 

Sir  Ch.  Hedges.  When  yoii  came  to  Bristol, 
did  you  discover  it  to  any  magistrate  ? 

May.  When  I  came  to  Bristol,  I  had  a  de« 
sign  to  discover  it  to  tlie  Lords  of  the  Admi- 
ralty. 

L.  C.  J.  Hdt.  Did  you  go  to  a  magistrate  ? 

May,  I  was  several  days  iu  the  kind's  col- 
lector's house,  and  did  discover  the  whole  to 
him  ;  and  at  Providence. 

L.  C.  J.  Holt.  You  speak  now  of  Provi* 
dence;  but  iu  England  who  did  you  discover 
it  to? 

May.  I  was  taken  sick,  and  could  not  go 
abroad. 

L.  C.  J.  Holt.  Yuu  might  have  sent  to  tho 
mayor  of  Bristol. 

May.  I  knew  nothing  of  it,  1  intended  to 
declare  it  to  nunc  but  tlie  Lords  of  the  Ad- 
miralty. 1  kiU;W  no  uiau  there,  but  two  men 
that  were  fellow- tradesmen  in  Virginia.  1. 
came  from  Vii*ginia  by  the  tirbt  ship ;  and  if 
that  ship  had  come  away  before  the  Heet,  1  had 
been  at  iionie  long  before.  1  lay  sick  at  Bristol 
four  or  five  day;;,  and  the  filth  day  1  got  |>as- 
siUj^c  for  London  hi  the  coach  ;  an' I  was  taken 
three  miles  off  Bath  by  the  king's  messenger, 
by  one  wlio  betrayed  me,  and  I  was  carried 
liack  to  Bath  again.  And  there  was  the  diiko 
of  Devonshire  ;  and  there  they  examined  the 
whole  matter,  in  every  painit-ular,  as  I  havi.'! 
now  declared  to  the  court.  And  my  lord  de- 
sired the  messenger  should  tukc  me  away 
again,  and  see  me  sale  to  LoihUmi  ;  which  uas 
all  he  said  to  me.  1  have  more  to  say,  as  to 
my  being  put  ashore  at  Joanna.  I  had  no 
place  to  go  to,  but  hiy  in  a  lament  able  condi- 
tion ;  1  could  not  put  water  to  my  mouth  ^vith- 
out  help,  and  remained  useless  of  hands  or 
feet,  despairing  of  my  life.  1  desIrcMl  to  go 
ashore,  to  see  if  the  air  would  do  me  any  good  ; 
and  I  went  ashore  ut  Joanna,  with  another 
man,  Gunning,  and  others,  for  refreshments 
So  the  second  day  we  went  in,  there  appeai-s 
three  shipa,  which  were  East- India  men.  Cap- 
tain Every  heuig surprizn i  by  ihesesiiips,  has- 
tonetl  his  men  and  uaUT  ahciard  to  get  out  to 
sea,  tliKt  he  iiiitrht  not  l>e  surprized  in  the  road 
\«itliout  his  men  on  board,  who  were  come 
ashore  for  the  stick.  And  I  told  them,  I  will 
not  go  uith  you,  1  will  rather  trust  to  the 
mercy  of  my  eonntryinen,  or  the  mercy  of  the 
ne>;Tots  :  f  should  endanger  my  liiie,  if  I  go 
alKtard  ;  if  1  stay,  noipi?stion  my  countrymen 
will  have  coui(»assion  on  me;  and  if  1  have 
committed  any  thing  worthy  of  death,  they 
have  authority  to  |)Ut  me  to  dea.h  aocordini;  to 
the  la%v  of  the  nation.  And  1  appUed  myself 
to  Mr  EdgiH)mb,  when  he  came  ashore,  and 
he  gave  me  scurrilous  language.  But  1  re-i 
pli<Hl,  I  am  a  weak  man,  for  me  to  stay  behind 
IS  death ;  I  had  rather  sufl't  r  death  by  the 
laws  of  my  country,  than  to  lie  left  to  the 
mm'3'  of  these  negroes.  3Ir.  Edgcomb  says, 
1  will  take  you  dowu  with  me,  and  will  hang 
yoa  there  too. 


475] 


8  WILLIAM  m. 


Trial  of  Jose/A  Dawson  and  olherSf 


[4T6r 


L.C.J.  Holt.  Where? 

Mat/.  At  Bombay,  whore  he  snid  I  should 
lie  tried.  Wis  mate,  and  several  other  En;^- 
lishnieii,  came  to  see  me,  and  brought  me  une 
thini;  or  other  to  refresh  inc.  And  at  last,  at 
nif  ht,  he  sent  his  doctor  and  purser  to  me,  who 
said,  the  captain  is  just  now  sending*  hJM  Uoai 
fur  you.  1  replied,  I  am  ready,  here  is  all  I 
"have  in  the  world  ;  and  he  goes  away  abuut 
two  o'clock  in  the  nioruin:^.  And  I  remained 
seven  or  oi;jht  weeks  at  the  mercy  of  those 
negroes,  and  had  pt  i  ished,  hut  that  a  nes^oe 
hearing  an  Kn'^lisliman  was  there,  came  to 
me  ;  he  liwd  :it.  Iir,'lnal-(irt*en,  and  spoke 
English  very  well.  }\v  went  from  Knglaud  in 
thesliip  KoctiL'Ntcr,  taken  at  (iiiinea  some  tim« 
before.  The  traptain  cdinni.ii.ded  this  nc^oe 
to  go  for  the  loiijf-hoai,  and  turn  her  adrift ; 
which  li«'  docs,  hut  i^ocs  awav  with  her  hini- 
■elf;  and  in  tiir*  fi^ht,  says,  the  ship  blew  up 
hy  an  acridrnla!  f'.jr,  and  scvciid  were  Io$t. 
1  his  l•f•^^lf'  I  p't  In  look  att(*r  n:(\  and  he  did 
n-aily  ff-«'d  ni>',  .uid  t>i>i  me  all  nfc«'ssnries  l>e- 
lnn(;ui'/  tn  in<' :  smd  hy  tli.il  nicauH  I  saved  my 
life.  \u\\  ^^luncapliiUi  r.vcry  came  iuai^^ain, 
I  r<Mild  li'it  \:u  niir  Ntir. 

li.  r.  .1.  //<;//.  I  hi  not  call  hiiti  captain  ;  he 
wan  u  piialf. 

Mtiif.  Ilr  mmnuiiidcd  uic,  I  \fas  forced  to 
oliey  him. 

!..(:..(.//'//.  I'lM- that  fuRttorcall  Gravct 
■gain,  hccausi*  \<inaiid  he  were  \ cry  kind  to* 
Ifi'thrr;  yon  fih'iNik  hands  uiili  him,  and  bid 
liini  farrwctl,  and  nMuendicr  you  to  your 
wife.  Mr.  (iraiff,  do  yun  i-cniend>er,  when 
Y4in  went  iiitti  flu*  hout,  did  \V.  May  take  his 
li-ii\f  of  y tin,  or  uaK  he  unv^illing  to  be  left 
Iu'IiiikI  i' 

(ituur.  ^Mirii  we  had  liberty  to  go  out  of 
ihis  ship,  this  man,  \V.  iMaVf  took  nie  by  the 
litiiid,  iiiid  uishi'd  ino  uell  liome,  and  bid  me 
n-Mi4'inI»i-r  liiiii  to  his  n^H'c;  and  was  very 
inrny  and  locund,  and  knew  u hither  they 
%»iT««  gtilii;^. 

Jusi.  'I'liiton.  Did  he  express  any  incHna- 
lioM  to  i>o  wiili  yoni' 

(irart:l.  N«»,  ni\  h>rd,  not  at  all. 

I<.  ('.  .1.  //<*//.   Have  ymi  any  more  to  say  ? 

Mutf.  Yes,  my  lord,  I  remained  in  this  con- 
dilifin  till  I  came  ti>  Pro\i(UMiee  ;  ami  the  king's 
••riilence  can  tcslity  ^^hat  I  say.  1  only  lieg 
mercy  of  this  honourable  bench,  toconsider  my 
Wf'ak* slate  and  condition  that  I  have  been  in. 

li.  ('.  J.  Holt,   lla\e  you  dt»nc? 

Mttif.  Vi.'s,  inv  bnd. 

L.  C\  J.  //(>//.'  Then  the  next.  W\  Bishop, 
what  have  yon  to  say  ? 

Hisfiop.  I  belonged  to  the  ship  James:  and 
at  thr  (iroyne  the  men  began  to  ccmiplain  about 
wages,  anil  that  wua  the  tii-st  be>;inning  of  the 
disturbance  al^out  this  piolting.  We  were 
ship|H.'d  out  of  KnL:buid  in  sir  James  Houblon's 
sen  ice,  to  the  Spanish  West  Indies.  I'piui 
this  mutiny  anmng  the  men  for  their  wages, 
.eviral  no  ii  went  alMmrd  the  king's  ships,  an<l 
dcsiretl  ui  be  entertained  on  board  any  of 
them  to  ^*^o  fur  England ;  and  we  all  went  away 


again  to  the  ship,  because  we  coald  not  be  en« 
tertaincd.  But  this  design  of  £very*B  1  did 
not  know  of.  On  the  17lu  day  captaio  Hum- 
phreys calls,  and  says,  my  meu  are  gone  aboard 
the  C.'harles,  I  think.  Anil  he  calla  oatf  lays 
he,  Mr.  J)ruit,  man  the  pinnace.  I  beiog  then 
on  the  deck,  at  night,  the  racn  all  auiet,  as  I 
thought,  I  went  into  the  piuuace,  and  I  was  no 
sooner  in,  but  in  comes  fifteen  or  sixteen  more 
that  knew  of  the  design:  but  1  was  then  seat, 
and  knew  it  not.  And  Uiey  put  off  the  boat 
and  overpowered  ns ;  and  se? eral  of  us  would 
liaFe  gone  aboard  again,  and  they  would  not 
suffer  us.  And  when  we  came  aboard  tbeship 
Charles,  they  had  cut  the  cables,  and  the  sails 
were  loose,  and  severe]  men  went  from  the 
Charles  to  the  James  in  a  boat ;  and  they  com- 
manded the  innocent  to  do  what  they  pleased, 
with  pistols  and  cut  laces :  and  they  commanded 
me  to  go  into  the  hold  to  do  what  ibey  pleased. 
And  I  not  knowing  ofthis  matter,  the  men  that 
ueic  in  the  boat  called,  haiul  the  buckets,  or 
we  shall  sink.  And  I  he:ird  afterwards  that 
none  went  ashore,  but  whom  they  pleased,  thai 
is.  Every  and  his  crew.  And  i  not  knowing 
of  it,  could  not  go ;  atid  if  I  had  known  it,  i 
had  not  been  admitted  to  go.  'J'hen  we  were 
carried  two  leaguca  \«  ithout  tlie  Groyne. 

L.C.J.  Hull.  Have  you  any  witnesses  to 
call  :* 

Bishop.  'l\\e  king's  evidence  is  my  witness; 
he  command'.'d  me  to  go  into  the  boat. 

L-  C.  J.  Jiolt.  Will  you  ask  him  any  ques* 
tions  ? — BiJiop.  No,  my  lord. 

L.  C-.  J.  IluU.  James  Lewis,  what  have  you 
to  say  ? 

Lrnis.  I  had  been  in  rrance,  a  little  before 
the  ship  came  to  the  (Iroyno,  a  prisoner  there ; 
but  I  knew  noihincf  of  Every 's  de/ign.  By  the 
command  of  our  ofticer  1  went  aboard  the'^boat, 
and  as  soon  as  \*  c  w  ere  in  her,  we  \\  ere  over- 
powered, and  carried  away  ;  they  took  the 
oarK  nut  of  our  hands,  and'oarried  us  to  the 
ship  ('hartes.  And  when  we  came  aboard, 
■  they  put  the  bout -adrift,  and  then  they  com- 
manded me  into  the  fore-castle ;  they  had  arms, 
but  we  had  none,  and  so  were  forced  to  obey 
them.  When  the  l^mt  was  going  olf,  I  heard  a 
noise  of  crying  out  for  a  bucket.  And  when 
we  were  gone  froni  the  Groyne,  we  weie  forced 
to  do  what  they  \u)uld  have  us  ;  it  wiis  against 
my  consent,  and  against  my  will. 

L.  C.J.  Hoit.  J.  b«parkes.  what  say  you  ? 

Sj'urkrs.  When  ca|iU\in  Humphreys  called 
to  tiiem  that  were  gone  into  the  b<»at,  ]  was 
asleep  ;  but  with  the  noise  of  Gravet's  erring 
out,  He  is  coming,  1  a^^akcd  ;  and  all  put  the 
candles  out,  for  fear  1  should  see  them.  And 
when  the  men  were  come  aboard,  I  went  on 
the  deck,  and  they  trowed  the  hammocks,  and 
knocked  medoun. 

h.  C.J.  Holt.  Who  did  it? 

Sptukcs.  'I  he  hanunocks  they  brought  from 
the  other  ships.  1  durst  not  do  any  otherwise 
than  they  bid  me;  J  was  innocent  of  the  thing. 
I  asked  what  they  were  going  to  do,  and  they 
said  they  were  goiug  for  England. 


JvT  Fehny  and  Piracy » 

.Eoli.  Whotoldjoaiof 

i.  John  Dan; 

.  Holt.  J.  Dan,  did  you  tell  J.  Sparket 

wwM  gwog  for  Engbnd  ? 

[  do  not  remember  I  saw  him  all  the 

.  HoU,    f  would  ask  yoo,  if  you  had 

>f  tbeplnnder? 

L  I  was  forced  to  take  it. 

.  Hoii,    Phil.  Middleton,  you  had 

ne,  had  you  not  ? 

ton.  Yet,  my  lord. 

.  Holt.  What  became  of  it? 

/OR.  They  took  it  away  from  me. 

^  Hoit.  Who  took  it  from  yon  ? 

torn.   J.  Sparkes  robbed  me  of  it  by 

.  Holt.  Did  he  Uke  all  away  ? 

ton.    Yes,  all  that  I  bad  there:  870 

i  of  gold  ;  it  was  in  a  belt. 

r.  He  took  out  his  money  and  shewed 

roopers,  and  they  made  him  drunk, 

from  him  ;  and  the  next  morning  he 

took  it  from  him. 

ton.    I  was  forced  to  say  so,  because 

e  had  it,  he  woukl  have  made  no  more 

mv  throat 

.  ilolt.  Have  you  any  more  to  say  ? 

r.  No,  my  lord. 

II.  May  It  please  your  lordship,  and 

lemen  of  the  jury,  I  am  of  counsel 

ise  for  the  king  against  the  prisoners 

r.    They  are  arraigned  for  a  very 

le,  a  robbery  upon  the  seas.     It  was 

crime  because  committed  on  the  sea, 

r  the  more.    These  men  had  a  trust 

n  them  to  assbt  their  captain  in  his 

but  instead  of  that,  they  resist  their 

irn  him  out,  and  run  away  with  the 

ley  ooold  not  find  shelter  in  any  other 

e  ivorkl,  and  I  hope  vou  will  make  it 

ich  crimes  shall  not  nnd  shelter  here, 

I  in  other  parts  of  the  world.    These 

fs  against  tlie  laws  of  nation^  and 

0  rcKibery  on  the  land :  for  in  case 
rj  on  the  land,  we  know  who  is  to  pay 

1  a  robbery  by  sea,  it  often  happens 
cent  persons  bear  the  loss  of  what 
a  do.  It  has  been  very  plainly 
gainst  the  prisoners,  that  the  sliip 
'as  nm  away  with  from  the  Wroyne. 
IS  plain  by  two  witnesses,  that  alf  the 

at  the  £ar  were  in  this  ship;  by 
t  W.  May  in  particnlar  was  one  of 
id  by  one,  that  W.  May  was  so  fur 
,  that  because  J.  Gravet  seemed  to 
be  said  he  deserved  to  be  shot  through 
:  so  that  he  that  would  make  him* 
OBOst  innocent  of  the  five,  is  most 

icy  have  only  this  to  say  for  them- 
i|  tb«y  weve  forced  to  do  what  they 
;  it  bw  bteq  proved  to  you  that  tbey 
fa  lid;  U  was  said,  all  might  go 
Id,  And  it  is  not  proved  on  their 
•ay  one  of  the  prisoners  did  seem  to 
Ml  ibdr  gorog  away.    It  is  proTtd, 


A.  D.  1696. 


[479 


that  Uiey  alt  made  use  of  this  sh'^p  to  very  bad 
purposes ;  that  they  took  and  plundered  seve- 
ral ships,  and  shared  the  booty.  We  do  not 
produce  this  to  prove  them  guilty,  but  to  shew 
that  they  nmde  use  of  this  ship  to  this  verj 
purpose.  Now  if  you  allow  wiiat  they  say, 
that  they  were  forced  to  go  away ;  then  you 
must  never  convict,  at  any  time,  one  or  two^ 
highwaymeti  that  rob  in  the  company  of  foiur 
or  five  ;  for  they  may  say  too,  that  tney  were 
overpo%vcred,  and  forced  hy  their  contpany* 
It  is  so,  not  opiy  in  case  of  robbery,  but  in  all 
other  crimes  also.  They  have  said  a  ^eat 
deal  indeed,  but  without  any  manner  of  nro- 
babtlity  of  truth.  They  have  produced  na 
witnesses  for  themselves,  to  prove  any  thing 
they  have  said.  And  the  witnesses  for  the 
king  have  given  testimony  without  any  excep* 
tion.  And,  I  hope,  you  will  vindicate  tne 
credit  of  the  nation,  and  find  them  guilty,  as  the 
evidence  has  proved  them. 

L.  C.  J.  Holt.  Gendemen  of  the  jury,  these 
five  prisoners,  £.  Forseith,  W.  May,  W» 
Bishop,  Ja.  Lewis,  and  J.  Sparkes,  are  in* 
dieted  for  a  piracy  and  robbery  committed  on 
tlie  hi^b  seas,  some  distance  from  the  Groyne^ 
in  taking  and  carrying  away  a  ship,  and  seve- 
ral goods  therein  contained.  She  was  called 
the  Charles  the  Second.  This  was  done  in  May 
last  was  two  years,  1694.  You  have  heard 
what  evidence  lias  been  given  on  thfs  indict- 
ment against  the  prisoners. 

It  has  appeared  that  this  ship  was  bound  in 
a  voyage  to  the  West  Indies.  Two  of  the 
prisoners,  W.  May  and  J.  Sparkes,  were  sea- 
men then  on  board  this  ship,  anil  engaged  in 
the  voyage ;  the  other  three  were  not  mariners 
in  that,  but  in  another  ship,  called  the  James, 
that  lay,  at  that  time,  near  the  Groyne ;  but 
they  came  aboard  the  ship  Charles  before,  and 
continued  on  board  her  when  she  was  carried 
away. 

Tiiat  there  was  a  piracy  committed  on  the 
ship  Charles,  is  most  apparent  by  the  evidence 
that  hath  been  given  ;  that  is,  a  force  was  put 
on  the  master,  and  some  othera  of  the  seamen 
on  board  her,  who,  because  they  would  not 
agree  to  go  on  a  ])iratioal  expedition,  had  liber- 
ty to  depart,  and  be  set  ashore.  3ut  the  ship 
was  taken  from  the  captain,  who  was  possesseii 
of  her  for  the  use  of  the  owners,  and  was  car- 
ried away  by  Every,  and  others  of  his  crew 
tliat  reniuined  on  board  her ;  and  others  came 
from  the  James:  which  taking  was  a  piracy ; 
that  is  manifested  hy  the  use  they  did  put  her 
to ;  for  they  did  afterwards  commit  several 
other  piracies  with  her,  and  took  several  Eng- 
lish and  Danish  ships,  and  then  went  to  several 
islands,  countries  and  pla(;es,  as  to  the  isles  of 
May  and  Princes,  to  3Iadagascar,  and  then  to 
Joanna,  and  aAerwards  to  Meat,  and  then  to 
the  Red  Sea ;  and  at  the  entrance  of  the  Red 
Sea  committed  more  piracies,  iu  the  manner 
as  you  have  heard,  and  has  been  very  par- 
ticuhu-ly  described  to  you.  So  that  1  must 
t^I  you,  beyop^  a|l  p>ntradiction,  the  Ibroe 
put  pn  the  9•p^iD}  and  taking  away  this  sbipi 


479] 


8  WILLIAM*  IIL  Trial  ofJotqA  Damon  and,  otherif 


[480 


calKid  the  Chiries  the  Sicond,'  was  a  pincy  ; 
aad  for  that  particuhur  fiMt  these  prisoners  are 
now  charged. 

The  matter  yon  are  now  to  enquire  after,  Is, 
Whether  all  the  prisoners  were  guilty  of  this 
piracy,  or  which  of  them. 

As  for  E.  Foreeith,  Bishop,  and  Lewis,  it 
hath  nppenreil  to  you,  that  they,  with  others, 
were  aiu»ani  the  sfiiii  James;  and  that  there 
was  a  ri*|M)rt  spread  ahout  of  a  plot  asfainst  ihe 
captain  of  tlie  Charles  the  l^ecoud,  and  a 
design  to  carry  that  ship  away*  To  prevent 
which,  there  were  some  of  tuese  men  sent 
otit  in  a  boat,  by  the  captain  of  the  James, 
to  this  ship,  to*  assist  captain  Gibson;  but 
instead  of  prevoutiii«:f  this  piracy,  they  staid 
behind,  and  went  along  with  these  luen  that 
carried  away  the  ship. 

As  to  W.'xMay  and  J.  Sparkes,  that  were  of 
tliis  ship.'s  crew,  tliey  continued  on  board,  and 
were  parties  in  all  those  piracies. 

There  was  a  mnsult,  it  seems,  hy  some  par- 
ticular persons,  of  which  EvjTy  was  the  nng- 
Icatler,  how  to  effect  this  design  ;  capt.  Every, 
as  they  call  him,  though  he  was  no  captain, 
but  vias  untlcr  tlic  command  of  capt.  Gibson, 
tliat  hail  the  conduct  of  this  ship. 

It  is  true,  it  is  not  proved  to  you  that  these 
men  were  at  that  consult ;  for,  it  seems,  they 
were  too  many,  for  they  were  about  IGO  that 
remained  on  huard  wheu  the  ship  was  carried 
off. 

Now  for  \y.  May,  Jo.  Gravct,  second  mate, 
tliat  was  aboard,  tliough  he  had  a  pistol  clapped 
to  liiuf  to  [ncveiit  any  resistance,  yet  had  liber- 
ty todej^arl ;  and  upon  his  jroingoff,  disrours- 
■«d  with  May,  who  shook  hands  with  him,  and 
hid  him  fan'wil.  and  remendwr  him  to  his 
wife.  Ami  t!ieif  fore  it  is  eiident  th  it  U'.  May 
wns  under  no  force  U*  stay  ;  he  staid  w  ith  his 
ifood  will,  ami  did  consent  to  the  pirac}'.  AntI 
then  another  wiliiess  is  D.  Crenyfh,  who  say*', 
that  May  was  s(»  zeai<Mis  in  the  maiter,  that'he 
siijil  to  him,  "  God  damn  him,  he  deserves  ti>  be 
shot  tlimuL:'!  llie  head.* 

Sparke«5  was  on  board  the  ship,  and  !iad  a 
dcjii^ned  end,  and  no  eouipnisicn  was  used 
towards  him,  sine*:  lie  had  liberty  to  depart  ; 
hut  the  stayinjr  bthind  by  ihc  re**!,  is  a  jrreat 
evidence  to  induee  you  to  believe  they  were 
parlies  in  the  clesis^n  ;  for  why  '-Ise  shoidd  not 
they  go  ashon;  as  well  as  otlKT««,  sinc«  there 
doth  iiot  appear  any  restraint  upon  them  to 
stay,  especially  when  a  gi^iitral  wi»rd  was 
giTen,  that  those  who  wouM  go  on  shore 
should  go  on  the  deck,  and  a  lH);»t  was  i-eady 
to  eurry  them  off? 

Th«'y  say.thej  wanted  a  boeket  in  the  boat, 
and  tliey  szavcthiin  one  ti»  l:i\e  out  the  water; 
thai  is  a  plain  i'\iilt  nee  iht  y  were  williiijr  to  ! 
Ih'  rid  of  th<»vi'  th.tl  were,  nm  udlnig  to  nujacfc  ! 
with  them;  ;iud  it'  th"V   had  nor  approved  at! 
the  <le«'i'4n,  tliex  w<'rc  noi  hindered  tnuii  i»oing 
i'l  the  lMi.1t.      As  for  ihosi'  that  came  fr.. iii  the 
Jaiiiis.  iheie  was  no  maniu  r  of  force  on  them, 
but  they   were  *it't\t  tVom  the  captain  to  :r-sist 
the  captaiu  of  the  ( 'harles ;  for  those  two  shi[is 


baviog  lain  near  together  at  the  Groyae,  there 
was  some  intelligence  of  such  a  dengn  in  agi- 
tation, and  these  three  fbrmok  their  own  sbip,; 
Every  declared  his  design  to  some :  And  lie 
told  them  what  shares  they  should  have; 
and  because  he  was  their  captain  and  com- 
mander, he  thought  himself  entitled  to  a  double 
share. 

And  then  you  have  heard  what  was  dune  ia 
the  whole  progress  of  tliis  wicked  desijpi; 
every  one  of  thcKC  men  had  their  share ;  even 
this  \V.  May,  though  he  was  sick  for  some 
time,  and  was  set  ashore  at  Joanna,  and  at  the 
ship's  return  taken  in  again,  yet  he  bad  bii 
share  of  all  the  prizes.  \V.  Bishop  had  Jiii 
share,  James  Lewis  had  bis  sliare,  and  Joim 
Sparkes  had  his  share ;  and,  says  this  yoanr 
man,  Philip  Middleton,  I  had  my  share,  whiu 
was  aliove  an  hundred  pound,  which  wm 
thought  by  them  to  be  a  good  share  lor  a  hoy; 
and  Sparkes  took  him  at  a  disadvantage,  and 
having  an  opportunity,  took  it  from  him. 

Now  if  there  be  a  piracy  committed,  tboogh 
contrived  but  hy  one  man,  yet  if  otherado  oue» 
cur  in  it,  they  are  equally  guilty. 

Now,  though  these  pnsoners  tell  you,  then 
was  a  force  upon  tliem,  it  is  a  mere  suggotioi, 
without  any  manner  of  evidence ;  but  there  if 
evidence  of*  their  consenting  and  confederatiBf 
in  this  wicked  enterprise. 

Indeed  there  hath  been  a  trial  before,  which 
you  have  all  heard  of;  for  the  city  and  nitim 
have  discoursed  of  it ;  consider  therefore  the 
evidence.  You  have  a  great  trust  repoeed  ii 
you,  for  you  are  not  to  act  arbitrarily,  bat  yon 
are  accountable  to  God  Almighty,  to  whoa 
yon  are  sworn,  and  to  tlie  govemroeut  for  the 
verdict  you  give.  If  you  are  not  satisfied  in 
your  conscieoces  that  the  evidence  is  sufficicit 
to  find  these  men  guilty,  in  God's  name  aoquit 
them.  But  if  you  are  satisfied  ia  tlie  fuifi- 
cieucy  of  the  evidence  to  convict  them,  yod 
most  find  them  guilty. 

CI.  of  Ar,  Cr\er,  swear  an  officer  to  keep 
the  jury  ;  w  hicli  was  done,  and  the  jury  west 
out  to  consider  of  their  verdict.  AimI,  ia  the 
me-in  time,  the  six  i>risoners  were  agais  v- 
rai|7ned  noun  two  several  indictments;  tbeooe 
for  piratically  taking  away  a  Moorish  shify 
and  the  other  for  committing  piracy  u|iOB  tw9 
Danish  ships.  To  both  which  indictmesia 
Joseph  Dawson  pleaded  Guilty ;  the  other  five 
pleaded  Not  Guilty,  and  put  them  upon  their 
trials. 

Then  the  Jury  having  been  withdrawn  • 
little  while,  returned  into  court. 

Foreman.  If  there  be  any  evidence  to  provt 
that  John  Spaikes  consented  to  the  rooiiiitf 
awuy  oi  the  ship,  we  desire  ii  nuiy  be  haul 
ai^fain. 

L.  C.  J.  UoU.  rie  was  with  them  at  tbi 
carrying  off  the  ship,  and  at  the  Ukingof  thi 
several  prizes,  and  had  his  share  afterwarf^ 
What  is  c«msent:'  Can  men  otiierwise  deBBt' 
strate  their  eonsent,  than  by  their  actioosF 

Jurt^man,  But  we  uuderbtand,  my  loffd|tW 


481] 


Jbr  Fdony  and  Piracy, 


A.  D.  1G06. 


[483 


lie  wu  tried  upon  hb  oonwotiiig  to  carry  away 
the  ship. 

Li.  C.  J.  Hdt.  What  do  yoa  mean  by  con- 
senting ?  If  a  ship  be  carried  away  with  force 
troni  the  captain,  divers  piracies  are  committed 
with  her,  one  continues  aboard  and  receives  a 
share  «if  the  profit  of  ttie  several  piracies ;  is 
not  ihat  an  evidence  of  consent  to  the  piratical 
desiijrn  f  Was  it  not  pn)ved  that  many,  went 
out  of  the  ship  that  were  not  willing  to  go  on 
Ihat  design  ?  And  that  was  with  tlie  leave  of 
the  rest  that  remained. 

Just.  £yre.  And  one  stoml  on  the  deck,  and 
said  with  a  loud  voice,  that  tliey  that  will  not 
go,  mav  have  liberty  to  |ro  ashore. 

Mr, VonyerM.  No  man  was  hindered  but  the 
Doctor,  being  a  aseful  man. 

L.  C.  J.  Holi.  When  a  ship  is  nm  away 
with,  and  people  are  aboard  that  ship  so  run 
away  with,  that  proves  their  consent,  unless 
they  can  prodnce  evidence  to  the  connury. 

Just.  Turttm.  The  captain  was  in  his  bed 
sick  of  a  fever  at  that  time,  and  was  not  willing 
to  go  with  them,  and  they  sent  him  away  from 
them. 

Just.  Eyre.  And  every  man  had  his  share. 

Then  the  Junr  consulting  together  a  very 
fittte  time,  agreed;  on  their  verdict. 

CI.  ofAr.  Gentlemen  of  the  jury,  answer  to 
your  names.    J.  Degrave. 

J.  Degrave.  If  ere.    (And  so  of  the  rest.) 

CL  vfAr.  Gentlemen,  are  yon  all  agreed  of 
yonr  venlict? — Jury.  Yes. 

CL  ofAr.  Who  shall  say  for  you  ? 

Jur^.  Our  foreman. 

CI.  of  Ar.  Set  E.  Forseith  to  the  bar. 
£.  Foreeith,  hold  pu  thy  hand.  (Which  he 
did.)  Look  upon  the  prisoner;  is  Edwurd 
Forseith  guilty  of  the  piracy  and  robbery 
whereof  1^  stands  indicted,  or  not  guilty  ? 

Foreman.  Guilty. 

CL  of  Ar.  Look  to  him,  keeper.  What 
goodj  and  chattels,  &c. 

Fftreman.  None  that  we  know  of. 

CL  of  Ar,  W.  May,  hold  up  thy  hand. 
^Vhich  he  djd.)  Is  W.  May  guilty,  &c.  or 
not  gailty  ? — Foreman.  Guilty. 

Cl.cfAr.  Look  to  him,  keeper,  &c.  W. 
Bishop,  hold  up  thy  hand.  (Which  he  did.) 
Is  W.  Bishop  guilty,  &c.  or  not  guilty 't 

Foreman.  Guilty. 

CL  ofAr.  Loot  to  him,  keeper,  &c.  J. 
Lewis,  bold  up  thy  hand.  (Which  he  did.) 
Is  J.  Lewis  gudty,  &c.  or  not  guilty  T 

Fort-man.  Guifty. 

CL  of  Ar.  Look  to  him,  keeper,  &c.  J. 
Sparkes,  hold  up  thy  hand.  (Which  he  did.) 
Is  J  Sparkes  guilty,  &c.  or  not  guilty  P 

Fitreman.  Guiliy. 

CL  ofAr.  Look  to  him,  keeper,  &c. 

L.  C.  J.  Holt.  <ientlemeo,  vou  have  done 
extremely  well,  and  you  have  done  very  much 
to  regain  the  honour  of  the  nation,  and  the 
city. 

Then  the  Court  adjourned  to  Friday  next 
the  Gtb  of  November,  two  of  the  clock*  in  the 

VOL.  Xllf. 


afternoon,  on  which  day  Edward  Forseith,  &c. 
were  tried  upon  two  other  indictments  ibr  se- 
veral piracies. 

An  Abstract  of  the  Trial  of  Edward  Furseitit, 
James  Lewis,  William  May,  William  Bi- 
shop, John  Sparkes,  (Joseph  Dawson  hav- 
ing pleaded  Guilty  upon  his  Arraignment) 
at  the  Sessions  House  in  the  Old  Bailees 
Friday,   November  6,  1696,  where  were 
present  Sir  Charles  Hedges,  Judge  of  the 
Iligh  Court  of  Admiralty,  the  Lord  Chief 
Justice  Holt,  the  Lord  ChiVf  Justice  Treby, 
with  several  others  of  his  Majesty's  Judges 
and  Commissioners. 
Aflcr  several  challenges  made  by  the  pri* 
soners,  of  the  persons  returned  upon  the  Jury, 
these    twelve    gentlemen    were    sworn,    vis. 
Roger  Mote,   John  James,    Richard    Rider, 
William   Himt,  John    Hammond,    Abraham 
Hicknmn,  John   Watson,  Benjamin  Hooper, 
John  Hibbert,  Richard  Chiswcll,  Daniel  Ray, 
William  Hatch. 

Then  the  Clerk  read  the  two  Indictments 
uj)on  which  they  were  tried,  viz.  one  for 
seissing,  robbing,  and  carrying  away  two  shipa 
belonging  to  Denmark,  on  the  30th  of  August, 
1694.  The  other  for  that  they,  on  the  S8th  of 
September,  1C95,  in  a  place  40  leagues  distant 
from  Surat,  did  forcibly  and  piraticiuly  set  upon 
a  Moorish  ship,  and  take  away  her  tackle  and 
goods,  to  a  great  value. 

Then  Dr.  NcwtoHy  one  of  his  Majesty's  Ad- 
vocates, spoke  to  the  Jury  as  fulioweth : 

My  I/ord,anfl  Gentlemen  of  the  Jury ;  The 
crime  the  prisoners  at  the  bar  stand  charged 
with,  anil  which  has  been  opened  to  you 
upon  the  indictments,  is  piracy ;  which  is 
the  worst  sort  of  robbery,  both  In  its  na« 
ture  and  its  effects,  since  it  disturbs  the  com- 
merce and  friendship  betwixt  different  na- 
tions ;  and  if  left  unpnnislied,  involves  them 
in  war  and  blood:  for  sovereign  powers 
and  nations  have  no  courts  of  justice  afUrwarda 
to  resort  to,  as  the  suljects  of  princes  have,  in 
their  own  countries,  fur  redress  or  punishment ; 
but  they  ran  only  hsve  recourse  to  arms  and 
war,  which  bow  expensive,  and  how  dangerous 
they  are,  and  what  calamities  and  ruin  they 
carry  along  with  them,  no  person  can  be  a 
stranger  to.  So  that  those  who  bring  not  such 
criminals  to  judgment,  when  it  lies  in  their 
power,  and  is  their  duty  to  tlo  so,  are  answer- 
able, in  a  great  measure,  Itefore  God  and  man, 
for  all  the  fatal  consequences  of  such  ac- 
quittals, which  bring  a  scandal-  on  the  public 
justice,  and  are  o'fteu  atU'nded  with  public 
calamities. — It  is  not  tlierelbre,  gentlemen,  to 
be  supposed,  that  wise  or  honest  men,  (and 
there  are  none  who  would  be  thought  to  be 
otherwise)  who  love  their  country,  and  wish  ilf 
peace  and  prosperity,  would  be  guilty  in  that 
kind. — Gentlemen,  this  piracy-  was  wgun  ia 
Europe,  carried  on  throii^fh  Africa^  and  ended 
in  the  remotest  Indies;  so  that,  in  a  manner, 
all  the  world  is  concerned  in  this  trial,  and  ex* 


8  WILUAM  III. 


483] 

pects  and  denmidf  justice  of  them,  if  they  are 
guilt}',  at  yoar  haads. 

Then  the  Witnesses  were  prodaoed  to  prore 
the  f'act!(  chared  u{ion  the  prisoners,  \iz.  Jo. 
Dean,  David  Crra^b,  Phil.  >]iddletnn,  and 
others  ;  who  ffuVfy  pntreil  a!;ain«t  them.  That 
the  prisuners,  with  sevt'nil  other  wicked  per- 
sons not  yet  taken,  did  t'orcihiy  take  away  the 
ship  Charles  the  Seeund  from  the  l»%«fiil  com- 


Trial  qfJoteph  Dmescm  and  oiken,  [484 

CI.  of  Ar.  Edward  Foraeith,  whUhnc  yw 

to  say,  &c. 

Forteitk,  I  am  an  innooeiK  oiau; — and 
went  on  to  justify  himself,  Ace. 

Judge  of'  the  "Admiralty.  Yoa  and  the  rest 
of  the  pr^wners  at  the  bar  bare  had  a  rery  ftir 
trial,  and  been  fully  heard  upon  your  defence ; 
but  the  jury,  vouV  country  men,  upon  whom 
you  put  yourselves  to  be  tried,  have  fimnd  yon 


mander,  captain  GilMSfm,  with  a  piratical  de-  '  ^ilty:  so  that  the  insisting  upon  3*o«rj»tifi 

siini;  and  in  the  said  ship  did  afterwards  ciim-  i  cation  cannot  now  avail  vou  any  thing',  tba 

mit  several  piracies.     At  the  Isle  of  >lay  they  I  venlict  heini?  ffiven ;  but  if^yoa  have  any  tfain^ 


took  three  Encrjish  4hi|is.  From  thence  they 
went  to  the  cnasi  o(  Guinea;  and  when  some 
of  the  natives  came  on  iMiard  with  their  i[[old,  to 
trade  with  them,  they  tM>k  away  their  |Fold, 
and  carried  tlieni  away  for  slaves.  And  then 
Went  to  the  Isle  of  Princes  and  took  two  Danish 
shi|i8,  and  took  out  what  was  in  them,  viz.  40 
pounii  wei«;ht  of  t;o1d  dust,  and  other  inerchan-  I 
dize ;  ami  the}'  offtred  to  restore  one  of  the 
ships  to  tlie  master  after  they  had  robbed  her,  i 
but  the  master  said  she  was  insured,  and  he  ' 
would  not  take  her  a^in.  And  afterwards 
they  burnt  one  of  the  ships,  and  carried  away 
theoiher.  Then  they  went  to  Bob's  Key,  at 
the  mouth  of  the  Red  Sea,  waiiine  for  the 
Blocha  fleet,  which  one  night  passed  by  them 
nnseen  ;  but  were  inibrm^  the  next  day  that 
they  were  ^ne.  And  then  calling'  a  oonncil, 
they  agreed  to  follow  them ;  and  aooordingly 
went  after  them,  and  came  ap  with  one  of  them 
which  was  about  950  too,  and  with  small  re- 
sistance took  her,  and  put  some  men  on  board 
her,  and  took  gold  and  silver  out  of  her  to  the 
▼alue  of  30  or  40,000/.  with  other  merehan' 
dize:  and  afterwards  met  with  the  riiip  called 
the  Gunsway,  and  robbed  her  likewise  of  all 
her  furniture,  to  a  fery  great  value.  And 
about  a  week  after,  they  shanKl  all  the  prizes 
they  had  taken ;  and  some  had  1,000/.  aome 
had  800/.,  some  700/.  some  500/.  every  man  in 
the  ship  his  share,  as  they  thought  they  de- 
sened.  And  it  was  particularly  proved  by  the 
etiflence  against  the  prisoners,  that  tb^liad 
ttieir  shares.  [The  more  particular  relation  of 
which  is  already  printed  at  large  in  the  fore- 
going Trial.] 

When  the  king's  evidence  had  done,  the 
prisoners  were  permitted  to  say  what  they 
could  in  their  defence ;  but  the  same  appear- 
ing to  be  very  weak,  the  lord  chief  justice  Holt 
summed  up  the  evidence ;  and  the  jur^-  goin^r 
out  to  consider  their  verdict,  after  a  ^hort  sta} , 
bronufht  them  in  all  Guilty. 

Then  tho  Court  adjourned  to  the  10th  of 
NuvLMuber  follo\^ini:.  '■ 

AfitT  me  Trial  of  John  Miirpbry  was  over,  . 
tIjL'  P.  rail's  wiTi:  broil  gill  to  tlu*  U:iV.  | 

C/. '/  Ar.    .losoph   I>aw?ion,  ymi  by  xoiir  I 
own  ii):m's».ii>ii  are  convicteil  ol  pirm-y    and 
r«  Mjirv  :  w  l'..ii  have  you  to  »a\  why  sentence 
%»{'  lirailj  sli:ii;  not  be  passed  u|K)n  you  accord- 
inu'  »"  l'i«  ^' 

Ujuioa.  I  iiubmit  myielf  to  the  king  ud  the 
faonouraUe  bench. 


to  otfer  in  arrest  of  judgment,  or  can  anew  any 
cause  v  hy  tbecfuirt  sliould  not  proceed  to^ivs 
judgment  accordin;;  as  the  law  direct^  agvort 
persons  convicted  of  piracy,  yoa  shall  hare 
liberty  to  speak,  and  will  he* heard. 

Fnri^itk.  I  desire  to  be  sent  into  India  to 
suffer  there. 

C7.  of  Ar.  William  May,  what  have  yoa  ts 
say.  S:c. 

'M0}f.  My  lord,  T  being  a  ver^'  sickly  msa, 
never  acted  in  all  the  voyage  1  bave'serrfd 
my  kincT  and  country  this  thirtv  years,  and  m 
very  willing  to  «erre  the  East-India  compaiiy 
where  they  please  to  command  me;  and  d^ 
lire  the  honourable  bench  to  consider  ny 
case,  and  if  I  must  sufler,  I  desire  to  be  tell 
into  India  to  suffer  there. 

CI.  ofAr.  William  Bishop,  what  hare  yw 
to  8ay,'&c. 

Bishop.  I  was  forced  away  ;  and  wha  I 
went,  was  but  18  years  old,  and  am  now  M 
21,  and  desire  mercy  of  the  king  and  Ibl 
court. 

Levis.  I  am  an  ignorant  person,  and  km 
myself  to  the  king's  mere  v. 

Sparkes.  I  leave  myself  to  the  king's  mercff 
and  to  the  honourable  court. 

Judge  of  the  Admiraliy.  JoMph  Dawioai 
you  stand*  convicted  upon  four  inaicf ments,  by 
yoinr  own  confession,  for  piracy  and  robbcrf. 
And  yon,  Edward  Forseith,  ^^  illiam  Slay,  Wu- 
liam  Bishop,  James  Lewis  and  John  Sparkft, 
having  put  yourselves  upon  your  trials  se- 
oording  lo  the  customs  and  laws  of  your  om 
oountrvi  have  been  ibnnd  guUty  npon  tbrft 
aevend  indictments,  for  the  same  detcstaUe 
crimes  committed  upon  the  ships  and  goods « 
Indians,  of  Danes,  and  your  own  f^low-Mb* 
jects.  The  law  for  the  heinousness  of  yoar 
crime  hath  appointed  a  severe  punishment,  by 
an  icnoiniikiuiis  death '  and  the  Ju^incBl 
whicn  the  Lw  awarils,  is  this : 

^  Tliat  you  and  eiery  one  of  you  be  taktt 

*  fn>ni  hence  to  the  place  from  whence  yM 
-  canio.  and  trom  thence  to  the  place  of  eit* 
'  cation  :  arid  ihat  ilicre  you,  and  every  one  rf 

*  you  he  lians^ed  by  the  necks,  until  yoa  ni 

*  every  one  of  you  be  dead :    and  toe  Loid 

*  have  nuTcy  upon  you.' 

Acconlin*:  to  this  srMitence,  Edward  FonHlb 
and  the  nst  were  executed  on  Wednaitoi 
Nofember  the  .\«th,  1696.  at  Ezeeatioo-DML 
the  usual  phwc  for  the  execution  of  r"--^ 


485] 


Trial  qf  Captain  Thomas  Vaughatu 


A.D.  t69& 


[480 


CL  tfAr.  Make  proolamiLtioD, 
Cr^r>   O  yei,  O  yea,  O  j&.    All  roanner 
of  pcrsotus  thai  havo  aoy  Ihlng  more  to  do, 


393.  The  Trial  of  Captain  Thomas  Vaughan,  at  the  Old-Bailey, 
for  High-Treason  on  the  High  Seas :  8  William  HI.  a.  v. 
1696.* 

XHE  C<mri  being  sat,  at  which  w«%  prf^seat,  Sec.  and  were  adjourned  to  thio  how,  dranF 
sir  Ckartet  Hedges,  jtM^e  of  the  high  court  of  near  and  gire  y  oar  attendance.  Ood  Mfe  tbt 
a^mirmitjr,  the  brd  chief  jusliu-e  Uok,  the  Ion!    king. 

diiif  inatice  Treby,  tbe  lord  chief  bafon  Ward,        rp*^  ..     p^„^  w„^  ^^^  ^l,^  ,„,^  ,   .• 
Mr,  Juplice  Tart/o,  and  other*  of  hU  majestjr^i    th  J^n^«S!^likS    Tf^l^  wJ 
i ;  the  court  pioceeded  on  this    ?»®  appearances  marked.    And  witnwio  bfl^ 
'  ^  ing  sworn  in  court  to  gi? e  endence  to  them 

against  Thomas  Tiiughan,  they  unthdrew  t^ 
hear  the  same. 

Tlien  the  Keeper  of  Newgate  waa  ordini 
to  bring  his  prisoner,  Thomas  Vaughao,  to  thy 
bar.    (Which  he  did.) 

CL  ofAr.  Thomas  Vaoghan,  hold  up  thy 
hand.  (Which  he  did.)  Thou  standest  in- 
dicte<l,  Sec.  How  sayest  thou,  ThomM 
Vaughan,  art  thou  guilty  of  the  high-treasos 
whereof  thou  standest  indicted,  or  not  guilty  P 

Vaughan,  Not  Guilty. 

CL  rfAr.  Culprit,  how  wilt  thou  he  tried  ? 

Vaughan,  By  God  and  this  country. 

CL  ofAr,  God  send  thee  a  good  delif  erance. 

And  then  the  Court  proceeded  to  tbe  Trial  of 
the  Piratea,  and  ga?e  notice  to  Mr.  Vaughan  to 
prepare  tor  his  'Aial  on  Friday  next,  the  6th  of 
Nofember,  1C96. 

l^mitmhtr  6, 1696. 

CL  of  At.  Cryer,  make  proclamation. 

CrycT,  O  yes,  O  yes,  O  yes.  All  manner 
of  persons  that  have  any  thing  more  to  do  at 
this  sessions  of  Oyer  and  Terminer,  adjourned 
over  to  this  day,  drsw  near  and  eive  your  at- 
tendance. And  you  Hheriifs  ot  the  city'  of 
London,  return  the  precepts  to  you  directed, 
upon  pain  and  peril  which  will  fall  thereupon. 

Then  the  Under- Sheriff  returned  the  PrecepU. 

CL  qfAr.  Make  proclamation. 

Cryer,  O  yes.  You  good  men  of  the  city 
of  London,  summoned  to  ap|)ear  this  day,  to 
try  between  our  sovereign  lord  the  king  ^nd 
the  prisoner  at  the  bar,  answer  to  your  names 
as  vou  shall  be  called,  every  one  at  the  tirst  call, 
i  and  xave  your  issues. 

Tbe  whole  iiannel  was  called  over,  and  tlie 
appearances  ot  those  that  ans«vcri-d  recordecl, 
and  the  defaulters  were  again  called  over. 

Mr.  Fhipps.*  Will  your  lonlsliip  please  to  or- 
der that  two  men  may  be  liri)ii«;lit  from  tbe 
Marsbalsea,  on  tbe  beliulf  of  tlic  prisoner  ? 

•  That  the  at.  7  W.  S,  e.  8,  fxtends  to  per- 
sons indicted  under  st.  <2B  11 .  8,  c   15,  for  high- 


•  iAfs&t  Balk.  634,  and  Hott,  689.    Bee  alio 
EiM's  PL  Cr.  c.  f .  B.  40.  43. 

"  Captain  Vaughan  was  not  an  alien  enemy ^ 
bat  boing  a  natural  born  subject  of  thia  realm, 
ha  became  a  traitor ;   for  that  be  was  put  in 
prison,  for  thai  be  answered,  and  with  his  life. 
Bist  it  was  ibr  tttat  act  of  hostility  merely, 
Wtlh  reigETd  to  his  character  of  a  luhject  he 
remained  till  the  moment  of  hts  execution,  as 
if  that  act  hsd  never  been  commilti-d.    There 
k  very  little  light  to  be  piti cured  from  our 
hooks,  to  assist  ua  in  our  incfuirvt  hew  far  a 
neutral  joining  in  an  act  of  hoetifitv  is  to  be 
considered  ai  ha^  ing  acquired  the  character  of 
alien  enemy.     Tbe  tubject  ^as  iud i recti y  dia^ 
csMed  tn  the  case  uf  captdti  Vaug^h^ti,  to  which 
I  have  ailuiletlf   Ele  was  cliar£^^tl  in  the  imUct^ 
ment  with  adherini^  to  the  king's  enemies  bj 
cruising  *  cum  suh'Jilis  fJallicii ;'  the  ^vt  was 
that  many  ef  his  crew  were  not  natural  born 
mbjects  of  tbe  French  king,  but  Hollanders.  It 
was  luade  a  qoeition  whether  tbe  llollancters 
ahould  b«  called  *•  subditi  Gallici/  and  diou^h 
the  point  was  not  authoritatively  decided  be- 
«a«we  some  of  tbe  crew  were  certainly  French, 
whidi  was  sufficient  to  support  the  iiMJictment, 
y«tit  Wfti  held  by  Holt^C.  J.  and  agretd  to  by 
the  rest  of  the  courts  that  the  HoHaaders  by 
Accepting  a  eommiiaionlrom  tbe  French  king 
hacaflM  *  subditt  Gallici/  and  so  rfmained 
during  the  continuance  of  their  service  in  a 
■laie  of  qualified  suhfection  arising  out  of  the 
'ot  aiMl  determining  with  it.    This,  had  it 
the  very  point  in  judgment,  would  have 
\  a  great  way  towards  deciding  the  pre- 
icat  question,    'tike  commission  under  which 
tbe  plaintiff  being  a  German  acted  was  put  an 
end  to  by  the  capture  of  the  frigate,  in  which 
he  was.-    After  that  time  he  had  no-  opportunity 
of  continuing  in  the  service  of  the  state  of  Hol- 
fendy  and  his  terofiorary   character  of  alien 
enemy  ceased  and  determined  with  the  autho 


rity  under  which  he  acted.  Captain  Vaughan's  treason  committed  on  the  hitrh  seas,  see  Eas^s 
case  as  far  as  it '^oes  draws  a  line  and  fairly  Pleas ofthe Crown,  c.  2.  s.4:i.  Whetherciirrup- 
■wriEB  out  wbeu  that  character  liegins  and  tion  of  blooilis  wmn^htby  jud^l^cntoft^ea8o'h 
when  it  shall  end."  Per  Byre,  Chief  Justice  committed  <»n  the  hii^h  si'».<,  st-e  Lmisi  u^  above, 
in  giving  judgment  in  the  case  of  S|iarenburgh  :  and  F(Mi«r*s  Cruwii  C^us^-n,  .Sec.  there  cited,  pp. 
V.  Bunmynn.  .1  Bos.  and  Pul.  Kdp.  |  SSS.  S36. 1  U.  P.  C.  c.  27.  iSalk.  8M 


487J 


8  WILLIAM  UL  'Trial  nfCajdain  Thtmas  Vaughan,  [488 


L.  C.  J.  Holt.  You  shall  have  an  order. 

Then  the  court  went  on  the  trial  of  the  Six 
Pirates  ;*  and  afler  the  trial  was  over,  Thomas 
Vanghao  was  called  to  the  bar. 

Vaughan.  Mj  lord,  my  irons  are  very  un- 
easy to  me,  I  desire  they  may  be  taken  off. 

£.  C.  J.  Holt,  Ay,  ay,  take  them  off. 

Mr.  Phipps.    Jf  your  lurdship  please,   we 
kave  some  doubts  as  to  the  iiidictmenL 
-  L.  G.  J.  Holt.    If  you  have  any  exceotions, 
you  ouffht  to  have  made  them  before  tne  pri- 
floner  pleaded  to  it.f 

Mr.  Phipps,  I  thought  you  had  allowed  it, 
my  lord,  in  former  cases. 

L,  C.  J.  No,  we  did  not  allow  it  as  of  rig^ht 
due  to  the  prisoner ;  the  exceptions  should  have 
been  made  before  the  plea.  You  were  indulged 
in  being  heard  at  first  in  the  cases  of  Rook- 
wood,  Cranbunie,  and  Lowick  :  but  it  was 
not  the  intent  oif  the  act  to  alter  the  uietliod  of 
the  proceeding,  and  so  upon  consideration  bath 
it  been  determined.  Tlie  prisoner  hath  time 
Ipven  by  the  act  to  make  any  exception  to  the 
indictment  before  he  pleaded;  but  you  may 
move  what  you  will  aAerwards  in  arrest  of 
judgment,  if  it  be  material. 

CL  of  Ar.  Thomas  Vaughan,  those  men 
that  you  shall  hear  called,  and  personally  ap- 
pear, are  to  pass  between  our  sovereign  lord 
the  king  and  yuu,  ufKin  trial  of  life  and  death  ; 
if  therefore  you  challenge  them,  or  any  of 
them,  your  time  is  to  speak  unto  them  as  they 
come  to  tlie  book  to  be  sworn,  before  they  lie 
■worn. 

Mr.  Philips,  There  was  one  man  here  that 
desired  to  oe  excused,  because  he  was  on  the 
^rand-jury  ;  therefore  it  seems  there  are  some 
returned  upon  tliis  jury  that  were  on  the  grund- 
jurv,  which  I  think  ought  not  to  be. 

L,  C.  J.  Challeui^e  ibcm  then. 

Mr.  Phipps.  We  do  not  know  the  men. 

Then  the  Panuel  was  called  over,  and  a 
f^reat  many  challenges  made,  and  the  twelve 
men  that  were  sworn,  wen;  tliese:  Edward 
Leeds,  Nath.  Green,  Hen.  Slierbi-ook,  J.  Sher- 
brook,  T.  £mms,  Peter  Parker,  Caleb  Hook, 
Jocelinc  Roberts,  Thu.  Parker,  Peter  Gray, 
Roger  Postoo, VVoolley. 

Cl.ofArr.  Cryer,  make  proclamation. 

Cryer.  O  yes.  If  any  one  can  inform  my 
tordstbe  king's  justices,  and  the  kiofir's  serjeani, 
the  king's  attorney-general,  the  kiii^'s  advo- 
cate in  his  high-court  of  admiralty,  before  this 
inquest  be  taken  of  the  hi^h-trea&on  whereof 
Thomas  Vaughan,  the  |)ri.'>ouer  at  the  bar, 
stands  indicted,  let  them  come  forth,  an<l  they 
shall  be  heard  ;  for  now  the  prisoner  at  the  bar 
stands  upon  his  deliverance  ;  and  ail  others  that 
are  bound  by  recognizance  to  give  evidence 
against 4 he  prisoner  at  the  bar,  let  them  come 
ibrth  and  give  their  evidence,  or  else  they  for- 
feit their  recognizance. 

*  See  the  preceding  Case. 
+    East's  PI.  Cr.  c.  2,  s.  4G.  Layer's  Case, 
•n/rfl,  A.  D,  1722. 


CLofAr.  Thomas  Vaivfaan«  hM  optby 
hand.  (W hich  he  did.)  Yoo  that  an  twAta, 
look  upon  tlie  prisoner,  and  bearken  to  bis 
cause.  He  stands  indicted  by  tbe  Dime  if 
Thomas  Vaughan. 

«'  Whereas,  *  That  before  and  until  thettb 
day  of  July,  in  the  7th  year  of  the  reign  of  oar 
sovereign  lord  king  W.  6,  there  was  open  war  be- 
tween onr  said  lord  tlie  king,  and  Lewis  the 
French  king :  And  that  tbesaid  waroontinnedaa 
thesaid  8th  day  of  July,  in  tbe  7th  year  afbnnid, 
and  doth  still  continue.  And  that  tor  all  tbe  lias 
al'oresaid,  the  said  Lewis  tbe  French  kin^  vai 
his  subjects  were,  and  at  present  are  enemm  of 
our  said  lord  the  king  that  now  is :  And  that  at 
the  time  of  the  said  war,  and  before  tbe  said 
8th  day  of  July,  in  the  7th  year  aforesaid,  lbs 
said  Lewis  the  French  king  set  out,  amoDSit 
others,  a  certain  small  ship  of  war,  called  as 
Loyal  Clencarty,  of  which  Thomas  Vaughn, 
a  subject  of  our  said  lord  the  king  that  now  ii^ 
was  commander,  with  several  French  Mil(|eoliv 
enemies  of  our  saiil  lord  tbe  king,  to  the  nnate 
of  fitUen  persons,  in  a  warlike  manner,  to  tab 
and  destroy  the  ships,  goods,  and  monieB  of 
our  said  lord  the  king,  and  his  subjccis,  lai 
against  our  said  lord  the  king,  to  wage  wir 
upon  the  high-seas  within  the  jurisdk.'tioDof 
the  admiralty  of  £ugland.  And  that  at  ths 
time  of  the  said  war  between  our  said  lord  tbs 
king,  and  the  aforesaid  Lewis  the  French  kiag, 
Tho.  Vaughan,  late  of  Galloway,  in  the  kisf^ 
dom  of  Ireland,  mariner,  being  a  subject  of  oar 
said  now  lord  the  king,  as  a  false  relNfi  agaiMl 
the  said  king  his  supreme  lord,  aud  not  hav- 
ing tiie  fear  of  Go<l  before  his  eyes,  nor  coiui- 
dering  the  duty  of  his  allegiance,  but  beiof 
moved  and  seduced  by  the  instigation  of  tbe 
devil,  aud  altogether  withdrawing  the  oor* 
dial  love,  aud  true  and  due  obedience  which 
every  true  and  faithful  subject  of  our  lai' 
lonl  the  king  ought  by  law  to  have  tuwardi 
the  said  king;  and  the  said  war  as  much 81 
in  him  lay,  against  our  said  lonl  the  kiugiie- 
signiu^  and  intending  to  prosecute  and  asMi; 
the  said  l1io.  Vaughan,  on  the  said  8ib  day 
of  July,  in  thesaid  7th  ^ear  of  the  kiug  being  • 
s<ddier  a-board  the  ship  of  war,  called  the 
Loyal  Clencarty,  in  the  service  of  the  tisd 
Lewis  the  French  king,  and  being  then  oo  the 
high-seas,  within  the  jurisdictioo  uf  the  adon- 
ralty  of  England,  about  fourteen  leagues  t'roB 
Deal,  did  then  and  there  by  force  and  snMi 
falsly,  maliciously,  wickedly  and  traitoraudr 
aid,  help,  and  assist  the  enemies  of  our  M 
lord  the  king,  in  tbe  ship  of  war  called  the 
Loyal  Clencarty.  And  at^erwards  the  lui 
Thomas  Vaughan,  in  the  execution  and  per- 
formance of  his  said  aiding,  helping,  and  as- 
sisting, maliciously,  falsly,  and  traitoroialy 
saiieff  a  cruising  to  several  maritime  plMtf 
wiihin  the  jurisdiction  aforesaid,  by  force  «rf 
arms  to  take  the  shins,  goods,  and  money  of 


our   said    lord  the   king,  and  bis   su„-     . 
against  the  duty  of  his  allegiance,  tbe  p«fl*if 

♦  East'i  PI.  Cr.  o.  S,  s.  54. 


I 
I 


I 


onr  said  lotd  the  king^  anrl  also  against  a  sta- 
ttiDe  m  thtt  cn&fi  made  aod  provitled. 

*^  And  tbe  siaid  jurorc  ot  our  fsaici  I  on  I  the 
Ua^f  ujion  iheir  &aid  ualhs,  farther  represent, 
ttiat  the  aftire^aid  Thorofts  Vuiighan,  a^  a  false 
iraitDr  ai^in^l  our  said  lord  tiie  king,  further 
ili^ii^'Tjin^,  practising,  and  with  his  whole 
Hitendinj^  the  common  peace  and  Iran* 
i  this  king^dam  of  Eng^lund  to  distiirU; 
umi  a  vtarand  rebeUion  against  the  said  kin;^ 
ii|)Oii  the  hi|(h-seas,  within  ihu  jurisdictiim  of 
the  admiralty  of  Kngbud,  to  niov  e^  stir  np^  and 
procure;  and  the  saicl  lord  the  king,  front  the 
tit!e,  honour f  royal  nanie,  and  imperial  crnwo 
©f  hts  kinifdom  of  Enghind,  and  dominions 
upon  the  liii^b-aeas,  to  depoi»e  and  deprive;  and 
miserable  slaughter  uf  the  sul>jccts  oflbe  snid 
lord  the  kini^«  of  this  kingdom  of  Enfifland, 
Wftm  tbe  hij^ii'Seas.  mul  within  the  jurisdiction 
aferesaid,  to  cans*  and  procure  ;  on  the  «uid 
8tli  day  oi'  July,  in  tbe  said  7th  year  of  the 
king't  II  pot)  the  bjifh-seAs,  atmut  fouileen 
leagues  from  Dfal^  and  within  the  domitiion  of 
the  crown  of  Eiiij^Undf  and  within  the  jurisdic- 
tion of  the  adintriilty  of  England  aforesaid^ 
fabiyi  raaliciooKty,  deviU^thly,  ami  treacher- 
ously^ by  lorce  and  arms,  with  divers  other 
l»ke  rdjelaaiui  traitors  (lo  the  jurors  unknown), 
war  8|rainst  our  sniil  now  lord  the  king",  pre- 
pared, prompted,  le*ietl,  and  waged.  And  that 
the  said  Thomas  Vauf;baD  in  pertormatice  of 
Ins  «aid  war  and  rebelhon,  then  and  there,  by 
force  and  irms,  maliciously,  wickedlv*  aod 
openly  assembled  and  joined  himself  with  se- 
▼eml' other  false  traitors  and  rebels  (to  the 
jorara  unknown)  to  the  number  of  titleen  por- 
9ott%  beioi;  armed,  and  provided  in  a  warlike 
nMiiitr  With  guns  and  other  arms,  as  well  of- 
ISniive  aa  deteosive.  And  the  said  Thomae 
TfttifphaD,  then  and  there,  being:  aboard  the 
■id  ahtp  tif  war,  called  the  Loyal  Clencarty, 
afliemMeil  with  the  other  iahv  vcbeh  und  trai- 
tors wi  albre^aid,  maliciously,  wickedly  and 
traiiorously  mailed  a  cruising  to  several  inari- 
placesi  with  the  aforesaid  ship  of  war, 
letl  the  Loyal  Clencaity,  with  an  intent  to 
a|Miil,  and  carry  away  the  ships,  go-ods, 

money,  of  our  isaid  lord  the  king,  and   hi<» 

eots,  hy  force  and  arms,  U|Km  the  hi^h  and 

teas,   wiihiu   the  jurisdiction  afore^^aid  ; 

the  duty  of  his  altei^iance^  the  jieaee  of 

•aid  loni  the  kiiisr.  his  cVovvn  and  diif  nities  ; 

iikewi^  against  the  form  of  a  statute  id  ihij 
rand  provided."  ^ 

Thomas  Noden,     >     j 

S4MUEL   OlDHA»|,    J     ^"'^"' 

*  Tbe  Indictment  in  Latin  runs  thus: 
^  Jurat*  pro  [>om*  Rege  su^>er  «acram' 
.  pnesentant,  quod  ante  Sc  continue  us4|ue 
rtav'  diem  Julii,  anno  re{rni  doiii'  nui^irj 
niUelmi  tertii,  Dei  f^ratia  AngF,  8col\  Fratic\ 
|n#i  Hibern*  Ret^s,  tidei  defenjior*,  6cc.  7.  fuil 
rlicUum  aperturo  inter  Pom'  Hilliehnum  nunc 
^Jic^ra  An^l'j  iScc.  et  Ludoricum  Kei^cm  (ial- 
d^ite  bellufo  tllud  eod'  B.  ihe  Julii, 
t€f  i«pfidtct\  et  semper  postea  hucusq' 


Upon  this  Indictment  he  hath  been  arraign- 
ed, and  upon  this  arraignment  he  hath  pleaded 
not  guilty  \  and  for  Iuk  trial  he  haih  put  him- 
self upon  God  and  bin  country^  which  coiintrj 
you  are.     Your  charge  is  lo  enquire  whelbep 

contiDuat*  fuitj  et  adbtic  e^istit^  «[a<>dqne  j»«r 

totum  tempus  praed*  dictum  Ludovicoi  Hex 
Gullicu!^^  et  ejus  subdit',  fuer\  et  adhuc  exis- 
tuiit  inimici  dicti  Doni*  Regis  nuuCf  ac  quod 
tempore  belli  illiuSf  et  ante  pricdict*  octavam 
diem  Julii,  anno  septimo  !iuprad\  diet*  Ludovi- 
cus  Rex  Gallicus  (int'  aVlquimd^  navTcul"  ar- 
mat',  vocat*  *  I^  Ltiyal  1  leiicarty*  (cujus  Tho* 
Vaughan  sulMlit^  dicti  Dom*  Regis  nunc  Aog'l', 
^cr.adtunc  fuitca|>itaneus)r*im  quamplur*  s^ub- 
dil*  Gallicis,  iiiimicis  dicti  Dom*  Regis  nuaCt 
ad  numcrum  15,  personar'  rf(»tei\  [>rxp:ir«rit 
ad  naves  uc  bona,  catall*,  et  denar*  diet*  Dom'  ; 
Regiii  nunc  Anul\  &c.  et  snbdilor'  liunr^  super 
alto  marl,  ac  infra  jnrisdict*  adinirnliiatiH  Angl' 
moilo  guerrino  capipnd^  et  fipoliand',  et  belluni 
pried'  contra  diet*  Dom*  Regem  nunc  super 
alto  mari,  ac  infra  jurisdiction*  admirar  Angl' 
pried*  gercud* :  Quodque  tempore  belli  pT»d' 
inter  ipsiim  D«»m'  Regem  nunc,  etpritd'  Ludo* 
vicuni  Rpgeoi  Gallirum,  Thomas  V  au<rhun  no- 
per  de  Galloway  in  regno  Hiljeru'  nauta,  exla* 
tens  siibdit*  ejiisdem  Dom'  Regis  nunc  Angl* 
Sec*  ut  laUuiS  proditor  contra  eundem  Dum' 
Regem  nunc,  $upremum  Dom'  suum,  timorem 
I>ei  in  c^irde  sno  nou  habenn,  nee  ilcbit'  ligeanc* 
sme  ponderans,  sed  in^t^galione  diabulica  mot' 
et  seduct\  cordialem  dilectiooem^  ac  feram  et 
debit  am  rdiedientiam,  qiius  quilibet  verus  et  fii- 
dehs  subtlit'  dict'Dom'  Regis  nunc  erga  ipsum 
Di>oa'  Regem  de  jure  gerere  lenetur,  penilut 
siibtraliens,  ac  mac  hi  nans  et  intendens,  quan- 
tum in  se  full,  beltum  pnedict^  contra  dictum 
Dom/  Regem  nunc  prosequi  tt  ausEiliari,  idem 
Thomas  Vanghaii  dtcto  B.  die  Jutii,  anno  regni 
diet'  Dom^  R^gis  nunc  7.  supradicto,  vj  etarmis, 
&c.  ijuper  alto  mari  in  quiHlam  loco  circa  14 
leitcaH  a  Deal  distante,  ac  infra  jurisdictioii' 
admiral'  AngP,  seipsum  pnefat'  Thomaoi 
Viiugban  ut  militem  (Angl'  a  Soldier)  ad  bell  am 
praVr  contra  diet*  Dtim'  Regem  nunc  geren' 
etprosequen\  inserTilium  ipsius  prtefat"  Ludo- 
*ici  Regis  GaUici^  in  navicul'  armat'  pr[ed\ 
vocal'  *  Le  Loyal  Clencaity,'  falso,  matitioae, 
neqtii$*iiine,  et  proditoric  posuit;  et  i|uod  ipse 
idem  Thu'  Vauglian  in  naticul'  armat'  praed*, 
vocat'  ^  Le  Loyal  Clencarty/  adtunc  et  ibidem 
sic  exi^tenS  vi  et  armis,  ^c.  adtunc  ct  ihiflem 
super  alto  man  Dried\  ac  infra  jurisilictiou'  ad*  ' 
miralitatis  AugF  pited\  dictis  inimicis  dictt 
Doiti'  Regis  nunc,  in  dicta  naviculu  armala, 
T<K!iit* '  Le  Loyal  CSencarty,*  adiunc  et  ibidem 
scilicet  exi^ten*,  fidso,  malitiose,  uequissime,  et 
pro-ditorie  fuit  adliarens,  auxilian^,  et  ctimfbr* 
tans;  etquod  pried'  Tlio' Vaughuu  in  execu^ 
tion^  et  performationeadhfesionis,  auKihationis, 
et  comfortationis  sute  profd'  postea^  scil'  dicto 
8*  die  Jnlij,  anno  supradicl\  jbidc-^in  super  alto 
mari  prard',  ac  inira  jurisdictiot/  adnuj-alitat' 
Atigl)«e,  simul  cum  dtctis  inimicis  diet'  Dom' 
Regii  aunc^  in  navical'  armai'  pned',  vocal* 


491J 


8  WILLIAM  III. 


Trial  (if  Caplaitt  Thomas  Fot^Aon, 


t49l- 


liti  In!  guilty  of  tl>e  hi^h- treason  whereof  he  • 
fllaiuls  iti(lictv<l,  or  not  j^uilty.  If'you  tinil  biin 
guiliy,  y<Mi  iirc  in  enquire  wli<it  g'o<Mls  or  chut- 
IrK  funds  or  tcurriientH  he  hail  at  tlie  tin;c  of 
the  lii^h  trr-uMHi  coiiuiutttNi,  ur  at  stiy  time 
siiicn.  if  y (III  n"(i  l.iin  guilty,  you  aiu  to  eii- 
(]uiro  whcihcr  Im^  fliil  tor  it.  If  you  fnid  that 
he  fled  for  it,  \on  are  to  enquire  of  his  goods 
nnil  ehiiiti'U,  :is  if  yon  had  found  hiiu  guilty. 
If  you  iitid  him  not  guilty,  nor  that  he  did  fly 
foritf  y<oi  arc  to  suy  so  and  no  more;  and 
hear  your(MidtMu*e. 

Mr.  Wliiiukcr.  May  it  please  you,  my  lord, 
and  tli(^  gi'iittcnicn  of  the  jury,  tlie  prisoner  at 
the  har,  'riioiuas  \  uu<>;lian,  stands  indicted  itot 
higli-troasdti:  ihal  \vlhT4>ns  on  the  Olh  of  July, 
there  was  a  wax  iietx^cen  his  majesty  the  king 
of  l'jni;l.iiid\  and  \av\\W  the  French  king; 
nniong*it  other  warliki'  preparations  that  the 
Freneh  kiuuf  did  lo.iko,  hc>  «lid  Sft  forth  a  ship 
ealknl  tht.*  Ii0\i.l  C'lcnearty  ;  that  the  prisoner 
at  the  liar,  as  a  falsf  traitor,  did  list  himself 
alM>arfl  this  ship  ;  and  (mi  thi*  hii>h-seas,  aUiut 
eleven  leai^ncs  tVoni  Peal,  tlid  traiton>n:>ly  aid 
the  kint>*s  (muu^ii'k  to  t:ike  the  kiuif's  ships. 
This  is  said  ;o  he  a«4aliist  the  duty  of  his  alle- 
ffianei*,  and  liit*  pen  c  ofnur  Nowitign  hird  the 
king,  his  eio\ui  and  dignity.  He  Mauds  fur- 
ther indifted,  lor  tliat   his  the  s:iiil  Tliomas 


Vaughan,  with  sereral  otiier  fitJae  Cnilmai  did 
levy  war,  and  arm  thcmiielves  with  armt.  of- 


*  liU  l<(i\  :*>!  (  ltnr.irt\  ,*ad>iini:  i:t  iliidfiii  exi>ten' 
nd  tpniinplnrMoiMs  niariiiuiosin  failem  navicnP 
arni.li', voeal' '  ia' Ijm nUMootarty,* in «'\plora- 
lioiH'    (  \oi>lieo    cruMUii)    va    intiMitii>ne,     ad 


fensive  and  defensive,  and  was  oniiaiog  oi  the 
high-seas,  oif  of  Deal,  with  an  ioteni  to.taka 
the  king's  ships,  and  to  kill  aod  dastniy  tba 
king's  bubjects,  against  the  duty  of  his  allc^ 
giange,  and  ihe  peace  of  our  sovereign  lord  tbs 
king,  his  crown  and  dignity.  To  this  indict-, 
ment  he  has  pleaded  not  guiliy.  We  shall  aO 
our  witnesses,  and  prove  the  fact,  andduuk 
not  hut  you  will  do  your  duty. 

Dr.  Littleton.  Gentlemta  of  the  jury,  yw 
have  heard  the  indictment  opened,  asalso  whil 
sort  of  crime  the  prisoner  at  the  bar  standi 
charged  with,  viz.  That  be,  being  a  subject  •( 
the  crown  of  England,  has,  together  wilk 
his  accomplices,  anne«l  himself  iu  a  miUtary 
way,  to  murder  and  destroy  his  fcllow-sub|ecl^ 
an  J  as  nnicli  as  in  him  lay,  to  ruin  bisoatita 
country,  by  rniniug  the  trade  and  traffic, 
wliich*is  the  threat  support  and  riches  of  the 
nation.  And  that  this  crime  tnight  be  conssn-! 
mate,  he,  with  his  accomplices,  has  done  whil 
in  him  lay,  to  dethrone  and  disjHissess  bis  H' 
cred  majesty  ;  as  well  knowing  it  was  in  ^aia 
to  expect  to  make  the  nation  unliappy,  as  kng 
as  we  enj(»y  so  great  and  good  a  prince,  iit 
that  you  are  to  look  on  the  prisoner  as  an  ese* 
my  and  traitor  to  his  own  isouutry  ;   aimI  sot 

ravit,  ordinavit,  levavit,  &gessit ;  6i  qood  idea 
i  homas  A'aughsn,  in  cxecutioue  &  perforaa* 
tiouc  guerra.'  V  pruditiouis  suae  prted*  adtoned 
ihideni,   scil'  pra:d'  octavo  die  Julii,  anno  2 


llonr  Utgi**,  et  suhdiivr'  sudi**  super  aUti  m.iri 
pru'd',  ae  mini  ii'.i'iMl.eiiou*  jir.i'il\  \i  (tannic, 
\r.  nialitit'se,  nnpll^^iu)o,  et  pmditorie  n.wi- 
i^;i\it.  ronira  iivTcaor*  stia;  dthiiuni,  ooiilra  pa-  I 
vi'Ui  ditti  Dom*  lit'Li**  niuu\  <  uron*  v\  di>;niiat* 
saa<>,  \t'.  nii-i.on  i'i>nir:\  foimiuu  siaiut'  in  I 
hnjusuiiiiii  easu  imI'.i'  vi  |'i«>vis\  \e. 

"  l-.t  i,n'  pi.itl'.  iirwihi'lo  Dvuu'  \lv^v  sujK'r 
sarr.in'  snun  pMil'  iiiiiTUis  p-:(M'nr,  tpi-.xl 
I'LiiT  r  \  .ni'^l...ii,  ut  lV.Isii"»  pio.'iiur  etuitra 
d..i'  p.  Ml*  lu..*M»iuno  .\j'i;l\  .\i".  sapriur 
l»Mur  Tun*  mIliuis  i>..u'lii!);ii<s.  p.ai-iii\ii'<.  et 
|.»i.t  ^  I  MM  Ml'  ml.  n^^jvii'i  in  vi  t  MiiM..oriCM)  iran- 


nnedand' navts«  hon\  rn  air  et  dcnar^  fjusiK  m  j  snprad\  super  alio  nuu'i    circa  14.   leucaf  i 

Deal  distanie,  ar  infra  juiisilictiou*  admiralittf 
An;^r  in  ilicta  navii'ul'  arroaf,  vocat''  Le  l/nd 
('lenrart\,*  vi  ^  arniis,  &c.  cum  quanpnr^ 
nliift  fnlsis  r«fhellib'  &  proditoribus,  jur*  praf 
ignui'  ad  numcrnin  15.  {>ereonar',  modo  ffuo^ 
riuo  armat'  V  arraiat\  viz.  tormeutis,  &  u'  ar- 
mis,  taui  inv.isi%is,quam  defensivjs,  vi&  snail, 
\i'.  la!^o,  malitiose,  6c  prodiiorie,  adtnnc  fe 
ibitloin  eongregat'  &  assemblai*  €vMn\ 
M'ipMun  sinnl*  arnial'  Sc  arraiat',  malitioiib 
piodiu)r\  \  ap«^rte  asscmblavit  &  conjuaxil;  i 
ipio>l  pr.ed*  'r.  Vaughan  adtunc  .Sc  ibid*  in  4ieli 
na\icur  arnvit',  u»cat*  *■  Le  Loyal  Cleocartv,' 
riiia  diciis  al'  faKis  rebellibus  &  pmdiloiw' 
(>iLMiT  prjEtciitn)  ;issemblat'  exiateu*,  poUts, 
soi.*  dicto  H.  die  Julii,  anno  7.  supradict,' luftf 
alio  m.:ri  p'.ied'.  ac  iufr.i  domin*  coron'  Angbib 
\'  inf-M  j.ir;sJiction'  admiialitat*  Ao^y  pnsd'i 
V  .on!  I'uin  h.h\^  jV  rebell*  5(  prmlitonb',  in  na^ 
1  ii-ai*  arn:..t'  prad'. vocal*  *Le  Loyal Clencartj,' 
aJiitnc  \  ibidcai.  ail  quamplur' locos  maritinifli 
in  vaiit-m  n.iv.cu;*  .amai',  \oi-ai*  *  LeLsjril 
fiiniurtx.'  ;ii  ixpiuraiion'  (Angl*  cruiu»g)9A 
l.iitiUu'ni-  ud  pr«i!and\  s]ioliaiid'  6c  aspomnf 
nav.>.  l'-^u'!'.c.iia!r,  Vdenar'  dicti Uom* R^gili 
\  s-Ks..;'  s.irr*  super  alto  mari  pra:d',  aciu6a 
jui  ts«!iciion*  pr^\lici\  vi  6c  arrois,  6ce.  malilinWi 

,  ni\i;n>Mn'iO.  V  pr.^dicone  naiigavit,  eoiM 
l«^e.:nc'  snx  i'ch;i\  contra  paceiu  dicli  Di* 
Uc^»  nunc.  i\>rou*  S:  dlgnitai'  suss,  &e.  ■M' 
noa  coiitia  Mrmam  sutnt"  in  hnjoiiNdl  fl* 

I  cdil*  Js  pivvis*,5cc.'* 

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gticiiam  conu«  diet*  i>ott*  Ivegvoi  auae  ^- 


Jhrm^  Tr^iion  on  ike  fligk  Seas. 


only  «s  bat  umie  of  the  wont  uid  most  dan- 
ireroaiCDeniMt)  tinoe  he  beings  a  snbject  of 
theee  iahuids,  was  the  better  able  to  spy  out  onr 
weakueMM  and  defects,  and  thereby  to  do  us 
the  greater  ndachief.  It  is  not  to  be  expressed 
what  rain  and  deaolatioo  it  would  have  cauKed 
to  this  nation,  had  this  man  and  his  accom- 
plices brooght  their  wicked  intentions  to  eflfect. 
And  all  this  wis  done  to  aid  and  assist  the 
grand  eneny  of  Cbrislendoin,  and  of  our  own 
country  in  particular,  the  French  kinjsf.  There- 
fore, as  yon  are  lorers  of  your  kin^  and  coun- 
try, and  voar  fellow- subjects,  whom  the  pri- 
soner ana  his  accomplices  >vould  ha\'e  dosti-oy- 
cd ;  I  am  sure  yon  will  take  care  to  do  the  oh- 
tion  Justice,  and  that  he  be  brought  t'>  condign 
punishment.  Gentlemen,  ther^  is  one  tiling-  ' 
further  that  I  most  not  omit,  viz.  That  the 
pritfimer  at  the  bar  being  in  custorly  for  these 
very  crimes  about  a  twelve- mnnth' since,  did 
not' think  Ht  to  trust  to  his  innocenry,  nor  to 
his  pretended  French  extraction,  hut  the  day 
before  he  was  to  he  trie<i,  he  thought  fit  to 
break  prison,  withdi-aw  fmm  justice,  and  run 
his  con  lit  i*y:  whicii,  tliough  nut  a  c<Mir<*ssion 
ind  full  proof,  yet  is  a  great  evidence  of  his 
Ifuilt. 

Stil.  Gen.  (Sir  John  Hawles.)  May  it  plense 
your  h)rdsliip,  and  yon  gcntleniFn  of  the  jury, 
the  prisoner  at  the  bar,  Thomas  V!in«^han, 
stands  indicted  for  two  sorts  of  tn*ason  :  tlie 
one  is  fur  levying  war  against  the  king,  the 
other  is  for  aiding  and  abetting  tlie  king'ti  ene- 
mies. And  to  pro%-c  the  first,  the  lev^  ing  of 
war,  we  shall  pn»Te  that  he  was  a  captain  of  a 
French  ship,  called  the  Granado,of  St.  Maloef: ; 
and  tliat  with  that  ship  he  took  and  carried 
away  many  of  his  majraty's  subjects,  and  took 
several  merchant  shins,  and  carried  them  to 
France.  We  shall  liKewiiM;  prove  that  he  was 
captain  of  Another  French  ship,  called  the 
Layal  Clencarty,  with  which  he  was  cniising 
nflfofDeal,  where  we  had  several  shi|>s  lying 
at  the  same  time:  and  there  he  being  on 
board  the  said  ship  Clencarty,  was  taken  pri- 
soner, with  a  commission,  by  which  he  was 
ooBStittited  captain  of  the  Loyal  Clencarty, 
under  the  hand  of  Lewis  the  French  king.* 

And  to  prove  him  aiding  and  abetting  to  the 
kmg'9  enemies,  we  shall  prove  ngaion  him 
thb  particular  fhct ;  that  he  and  his  accom- 
plices did  in  the  year  1692,  come  to  London, 
aod  went  to  Tower- wharf,  to  encj^uire  what 
vessels  were  ready  to  ^o  down  the  nver ;  and 
there  was  one  laden  with  piece-^oods,  and  he 
put  himself,  and  several  other  of  his  accomplices 
into  this  Tessel,  to  go  down  the  river;  but  they 
had  contrived  the  matter,  and  brought  it  ao  to 
pass,  that  thev  tell  on  those  men  who  had  the 
government  of  the  ship,  and  carried  away  this 
vessel  to  France.    Now,  if  this  be  true,  the 

•  **  The  fact  whether  war  or  not  is  triable 
bj  the  jury,  and  public  notorifty  is  sufficient 
eridence  of  the  fact."  Foster's  Dtscoune,  1. 
c.  9,  s.  19.  Peake's  Law  of  Evidence,  c.  u^ 
I.  9.     East's  Pleas  of  the  Crown,  c.  3,  s.  20. 


A.  D.  1696. 


[4M 


prisoner  is  certainly  guilty  of  aiding  the  king's 
enemies:  and  to  prove  lie  was  guilty  of  this, 
we  will  prove  to  you,  that  even  in  France, 
where  he  was  at  |)erfect  lil»erty,  he  owned  lie 
was  the  contriver  uf  all  this,  and  that  he  had 
a  thousand  piiuufl  for  his  >hare  of  what  was 
taken  from  our  merriiant.s.  If  we  prove  these 
two  facts  against  him,  I  dnuht  nut  hut  you  will 
find  him  guilty.     Wo  will  call  niir  witnesses. 

CI,  ot'Jrr, '  T.   Ktrtington,  Jlicrh.   Crouch, 

Samuel    OMIiam,  Juhn    Huh.    Noden. 

(Who  appean'il,  and  were  suorn.) 

Vuftc/utn.  W  ith  sub.iiisMiou  to  your  lord* 
ships,  and  the  honourahh'-  hencli,  I  he^  that 
they  may  be  put  ajs under,  out  of  hearing  of 
one  another. 

1<.  C  J.  l^^t  it  ho  so ;  thou:;!)  you  cannot 
insist  upon  it  as  your  ri^ht,  but  only  a  favour 
that  wc  may  grant.  * 

Mr.  Cintper.  Srt  up  llichani  Crouch.  Is 
your  name  Kirharil  Crouch  ? 

Crouch,   Yes,  Sir. 

Rlr.  Coicpcr,  Cive  my  lord  anil  the  jury  an  ac- 
count of  what  you  know  uf  the  ship  Coventry 
taki:i;r  of  th<;  Clencarty,  and  what  you  know 
concenung  the  prisoner  at  the  bur  iu  taking  of 
hcri* 

Cnmch.  We  weighed  our  anchor  about 
four  oVh»ek. 

>Ir.  CuTt'jjf.r,  Where  were  you  ? 

Crouch,  \i  the  Nure. 

Mt.  Cowper.     Jn  what  ship?    ■ 

Crouch.  The  Coventry.  After  wc  had  been 
under  sail  a  matter  of  an  hour,  we  eanie  to  an 
anchor  with  a  little  wind  ;  so,  sir,  this  Thomas 
V'aiighan  met  with  u  couple  of  pinks,  they 
were  sniull  vessels,  that  he  <Iesigne<l  to  take  i 
hut  he  saw  us,  and  so  lay  by  all  night. 

Mr.  Cotcper,  Who  lay  by.'* 

Crouch,  Thomas  Vaugh'an,  the  prisoner  al 
the  bar. 

Mr.  Cou'pcr,  In  what  vessel  was  he? 

Crouch,  In  a  two-and-twenty-oar  barge ; 
he  lay  hy  at  the  Cun-tleet:  The  next  morning' 
we  weighed  anchor  at  dity-light ;  we  saw  him, 
and  chaffed  aller  him,  au(l  we  made  them,  and 
he  made  us ;  and  we  made  what  haste  we 
could,  and  coming  up,  we  fired  a  gun  at 
him,  and  then  wc  fired  another,  and  then  we 
went  ashore. 

Mr.  Coicpcr,  What  do  you  mean  that  he 
run  his  vessel  on  the  sands  ? 

Crouch.  Yes ;  and  then  we  fired  another 
gun  at  him,  and  then  he  got  ofl"  again  ;  and 
then  M-e  fired  another  gun,  and  could  not  bring 
him  to,  and  then  he  got  off  the  sands  again ; 
and  when  we  came  up  to  him,  wc  manned  our 
long-boat,  and  piimuec,  and  barj^re,  and  had 
him  at  last.  W  hen  he  came  on  1>oanl,  he 
said,  I  cannot  deny  but  I  am  an  Irishman, 
and  that  my  design  was  to  bu.a  the  ships  at 
the  Nore. 

Mr.  Crnrpcr.  Did  he  himself  confess  it.^ 

«  See  Peter  Cook's  Case,  p.  311,  of  tbe 
present  volume ;  and  PeuLoVs  l^w  of  Evidence 
as  there  referred  to 


491] 


8  WILLIAM  IIL 


Trial  iff  Captain  Thomas  VoKgkmh 


he  )>o  pfiiilty  of  tbe  high- treason  whereof  he 
stands  indicted,  or  not  guilty.  H'you  find  him 
gnilty,  yoii  are  to  enquire  whM  goods  or  chat- 
tels, lands  or  tcni.'uients  he  had  at  tlie  ti^^c  of 
tlie  lii^h  treason  couiuuttetl,  or  at  ony  time 
since.  irv^Mi  find  V.iin  guilty,  you  are  to  en- 
(]uire  wIihIkt  he  tltd  for  it.  If  you  lind  thai- 
he  fled  tor  it,  yon  are  to  enquire  of  his  goudsi 
and  chniteis,  as  if'yoii  liad  found  hira  guillv. 
If  you  IiikI  liiuLnot  guilty,  nor  that  he  did  Ay 
for  it,  you  ari.>  to  say  so  and  no  more;  aiid 
hear  vuur  evidence. 

Mr.  W/niaker.  May  it  please  you,  my  lord, 
and  the  (fcntleMien  of  the  jury,  the  prisoner  at 
the  liar,  Titoiiins  \'aii<f  lian,  stands  jndicteil  for 
hi^li-tieasun :  that  whrntas  on  tlic  9th  of  July, 
there  was  a  war  bet\%een  his  majesty  the  ktii|^ 
of  Knifl.ind'.  and  lii'wis  tlic  trench  kinff  ^ 
anionirst  otlicr  warlike  pre|iaraiioDS  that  the 
French  kiii'j:  ilid  luako,  he  did  set  forth  a  shifi 
calliMl  the  Lovul  CI('iii*aily  ;  that  the  prisoner 
at  tlie  bur,  as  a  false  traitor,  did  list  himseLf 
almard  this  ship  ;  aiul  on  the  hi*fli-seas,  aUiut 
eleven  leui^ucs  from  J)eal,  did  traitorously  aid 
tlie  kintr's  c-ru'ii?ies  to  take  the  kintir's  M[m, 
This  is  said  :o  hv  a$;aitist  the  duty  of  his  alle- 
giance*, und  tiie  pc:irc  of  our  so\eiei|^n  lord  the 
kinfir,  his  crow  n  and  dignity.  He  stands  fur- 
ther indioted,  for  that  he,  the  sniil  Thoiuns 

<  Lo  iiOxr.K'lencarty/adiunoet  ibidem  exi$teii^ 
ad  (|nninpliir'  locos  niaritiiuos  in  eailem  naviciiU 
armiU', voeat' '  l.e Loyal  C'lcncarly,' in explora- 
tioiie  (  \nt;lice  cruiainfi)  ca  iutentione,  ad 
pruMlaud*  naves,  hou',  caiair  et  denar'  ejusdctn 
l)iim^  l^c'g:'^*  ct  subdiiur'  snor*  super  alto  mari 
pra'd\  ac  infm  junMhction'  piu:d\  vi  rt  aruii^, 
6ii\  inalitiose,  netpiissiuie,  et  prmtitorie  uavi- 
g::i\it,  contra  lii^oanc*  sue  debituni,  contra  pa- 
GiMu  dicii  Uoui'  Keuis  nunc,  c<iron'  etdigfnitat' 
Siia<,  i^c.  neriion  c<tnira  formam  statut*  in 
hujusnindi  casu  e<lit*  et  provis\  6iC. 

"■  Ki  jiir'  pjiwl',  prodicto  Dom'  Rcpfc  sin>er 
sacnur  siiuin  pr;rd'  uherius  pnwent',  qumi 
prtv-d'  T.  Vaiic^han,  ut  fdlsus  prodilor   contra 
dlri'  l.»«'ii»'  J{ei,»Mii  nunc  Anjrp,  cvt.  suprcm^ 
Diinr  suuni  ult:'rius  niachinans,  piacticaiM,  et 
tola  vi  suu  int<  nd«.nspncimetcommunem  tran- 
rp-.illitat'  h' juv  re^^ni  Any  I*  pe-rturlmre,  of  i^ult- 
r:ii»i  ct  rchediun*   contra  diet'    Dom'   R'^i^c 
snpiM-alii)  liiuri  pncd',  ac  iiifra  jmisdictlon'  ad- 
miridita  '  A:i;^i'  suscilurc,  ino\ei-e,  et  procurare. 
€1.  did'  Dom'  Ut-^^'fm  a  titulo,  honore,  V  refill 
nomine,  coron'  im|)ei-iar  rctrni  sui  An^fP,  ' 
doirii:i:iir'  su'ti^  siipor  alio  mari  pranf  dcpoiit:i  ■ 
\;  di  pri\arr,  \' strajrem  miserabib'm  suhdili 
t;iu-d.in  l)i.m*   Krjrjs  nunc    hujus  rep;i 
An'^fP  MI  per  alto  maii,  ac  infra  jurisdiction' 
mirar    An}:;!'   pr.vd'  uavi>;nn',  causare  Sc 
c:;r;ii\'.  praMl'   8.   d!o    Julii,  anno  rcpoi 
J'lMu'  H^-l^'k  nunc  7  suprad*,  super  uii<i  • 
clii'a  14   1.  iKai;  a  I):  al  di<!iun*c,  ac  infi  r   ' 
n. II III  r<ini:i'  Aii;;r,  \  intra  juri*i.iiction'  n-'* 
r.  •.■ar  •\..vi'  fa'.s;»,  malitiose,  diabolice;.  \'  •••■ 
(l.i'..n',  ^i  x  arinis,   ^c.    cum  quamplur*  • 
f..!  is  robeilib'  Si  proditorib',  jur'  prsed'   ic 
(;iiciiam  contra  diet' Dom*  Kegcin  niUM 


Vaugban,  with  several  other  Idw  ti 
levy  war,  ami  ariu  tbeiiwelvw  wkli 
fenKivt!  and  delensive«  wad  waftffii* 
high^seaSf  nffofDcal,  wilb  •»  >' 
ihe  kind's  sUipi£»  and  to  loll  ai- 
king'u  liubjecUi  ag&iut4lw  di* 
gian^,  ami  the  peace  of  our  so 
king,  hi  J  crowa  and  digiytv. 
mem  he  has  pleaded  notguiit 
our  witaessei,  aod  profo  t! 
not  bal  you  ivdl  dojour  d- 
Dr<  LUikkm.   Cfentleii 
have  heard  the  iudicUnent 
Kort  of  CHEue  th«  priBii. 
charged  with,  viz.  Tin. 
llie  crowD  of  Euglan 
his  acconaphoes,  arm< 
\«ay,  to  murder  and  :' 
amlai  much  as  in 
country,  by  ruiiiii 
which  ti  the  ij-ri-;  ^ 

uatinn.    Andihni  ^^^ 

mate,  be,' with  iv- 

in  him  layi  la  ^mmm 

cred  iii^rsty  ; 
l4>eiipiCttoii^ 
ai  we  m^^- 
Ihal  jrou  nrr' 
tuy  and  trj .^ 


Thomas  \  a 
tioue  !^(h'; 
ibidiJii, 


495]  8  WILLIAM  III.  Trial  of  O^ain  Thmas  Vau^imtf 

that  is  the  man,  I 


Crouch.   Yet,  he  did; 
know  him  well  enough. 

JL.  C.  J.  When  yon  took  him,  in  what  ship 
was  you  ? — Crouch.  In  the  CoTeiitiy. 
L.  C.  J.  Out  of  what  ship  was  he  tsken  P 
Crouch.  The  two-and-twenty-oar  barge. 

L.  C.  J.  What  ship  did  he  belong  to  ? 

Crouch.  I  reckon  it  was  my  lord  Barcley's 
barae. 

£.  C.  J.  Who  did  it  belong  to  then  ? 

Crouch.  To  the  king  of  France. 

L.  C.  J.  What  company  was  there  in  her  ? 
How  many  men  had  she  aboard  ? 

Crouch.  About  five- and -twtmty  hands. 

Mr.  Cowper.  Did  you  ever  hear  him  say  any 
thing  of  a  commission  he  had? 

Crouch.  1  heard  he  had  a  Frencli  commis- 
mission,  but  I  did  not  see  it. 

Mr.  Cowptr.  Did  you  hear  him  say  any 
thing  of  it  ? — Crouch.  No. 

Mr.  CawpA:  But  he  told  you  his  design  was 
to  burn  the  ships  at  the  Nore  ? — Crouch.    Yes. 

tilT.  Cowper.  What  ships? 

Crrnich.  The  English  ships;  there  were 
several  ships  there  then. 

L.  C.  J.  Were  there  no  Frenchmen  aboard 
the  barge  ? — Crouch.  Nu,  that  1  can  tell. 

Air.  Lechmere.  From  whence  did  he  come, 
from  Envfland,  or  France  ? 

Crouch.  From  Calais  in  France. 

L.  C.  J.  Prithee  hear  nie.  This  two- and - 
twenty-oar  barge,  did  it  belong  to  any  other 
sluj)  ? 

Crouch.  No,  not  that  I  can  tell. 

L.  C.  J.  Did  he  call  that  vessel  the  Loyal 
Clencarty  ? — Crouch.  Yes,  my  lord. 

Then  Edmund  Courtney  was  calleil. 

Sol.  Cm.  Mr.  Courtney,  pray  tell  my  lord 
and  the  jury  what  you  know  of  tlie  going-  a\\ay 
of  a  Custom  -house  boat  ? 

Courhuy.  I  will  tell  you,  if  vou  please. 
Mr.  Phipps.  My  lord,  1  think  they  oujjlit 
nut  to  examiue  to  tlint,  because  it  is  uol  laid  in 
the  iudii!tmciit.  The  carry iu^^  away  of  the 
Custom-house  barge  is  not  meutionccl  in  the 
indictment ;  and  by  the  new  uci  for  rfgulat- 
ing  trials  in  cast.-s  of  treason,  nu  evidence  is  to 
be  admitted  or  given  of  anv  ov<Ml-act,  that  is 
not  exjiresslv  laid  in  the  iudiftnicnt. 

L.  C  J.  S'otliing  che?  Suppose  a  man  he 
indicted  for  levying  var  a;^niust  the  kinjr,  or 
adfieiing  to  the  Icing's  enemifs,  cannot  they 
prove  any  act  that  makes  out  a  levyin;:if  of  war, 
or  an  adhen'uce  to  the  king's  enemies  i* 

Air.  Phipps.  With  snbmissio,  not  by  that 
act,  my  loril,  unless  it  be  laid  in  the  indict- 
ment. 

L.  C.  J.  Levying  of  war  is  the  tiea55on  ; 
may  tiicy  n<it  prove  that  levy  ins:  ^f  ^var, 
wiiiiout  hein^  conlincd  to  any  special  or  parli- 
cuhr  act  Y 

Mr.  Phipps.  AVith  submission,  bv  the  25lh 
of  Ldw.  3.  lef ying  of  war,  as  wefl  as  ima- 
gining the  death  of  the  king,  must  have  the 
overt  acts,  that  are  to  pro^-e  it,  expressed  in  the 
indictment. 


L.  C.  J.  lievying  of  war  ia  n  ovwt^act 

Sol.  Gen.  The  businenof ovfrt-adiisyWbfln 
the  oompassiDg  and  imaginiDp  the  kau^  ted 
is  a  crime  in  question  ;  and  thii  moM  be  dia 
covered  by  overt-acts.  But  if  treaaoa  be  fid< 
sitying  of  tlie  king's  money,  this  ia  tratsoa; 
but  there  can  be  no  overt-act  of  that,  for  ihil 
is  an  oven -act  itself;  but  there  must  be  a 
overt-act  to  prove  the  compaaaiiiff  and  ibi- 
gining  the  death  of  the  king,  and  ui  no  oiki 
sort  of  treason. 

L.  C.  J.  Levying  of  war,  that  is  an  onrt 
act;  so  is  adhering  to  the  king's  eocones. 
Now  compassing  and  imagioing  the  destb  of 
the  king  is  not  an  overt  act  in  itself,  but  is  ase- 
cret  imagination  in  the  mind,  and  a  purpose  in 
the  heart ;  but  there  must  be  external  ads  It 
discover  that  imaginatkm  and  puqiose. 

Mr.  Phipps.   What  is  the  meaning  of  tbi 
new  act,  then,  that  there  shall  be  no  evideoesdf 
anyovert  act,  hut  what  ia  laid  in  the  indictmcitr 
L.  C.  J.    What  overt  acts  are  there  io  dip- 
ping and  coining  ? 

Mr.  Phipps.  That  is  not  within  the  new  ad 
of  parliament. 

L.  C.  J.  That  is  must  true ;  the  one  is  excepli< 
the  other  is  nut  comprehended :  bnt  the  mm- 
tion  is  uiNin  the  statute  of  25  Ed.  3,  to  whidk 
the  late  act  doth  refer.  Now  proving  an  td* 
herence  to  the  king's  enemy  is  proving  an  Ofoi 
act.  Suppose  it  be  the  killing  of  the  chued- 
lor,  or  treasurer,  or  judge  in  the  ezecutisD  d 
his  ofiice,  what  overt  acts  will  you  have  th«F 
Adhering  to  the  king's  enemiea,  ia  atroMB 
that  cousists  iu  doing  an  overt  act. 

Mr.  Phipps.    Yes,  my  lord,  I  take  it  that  it 
is  ;  for  the  new  act,  by  saying,  *  that  no  sri- 
'  denec  shall  be  adinitteil  of  any  overt  actthil 
*  is  not  expressly  laid  in  the  inclictment,'  mad 
be  iuteuded  of  such  trwasons,  of  which  b^  kv 
overt  acts  ought  to  l>e  laid.     Now  the  killiogif 
the  rhanceilor,  or  treasurer,  or  judge  in  ihs 
execution  of  his  othce,  arc  not  such  treaioiHtf  ; 
which  it  was  necessafy  to  lay  any  overt  sets  ia  ^ 
tlie  indictment,  and  so  not  within  the  meaoiBr 
of  this  new  law.      Hut  levying  war,  aoda( 
liering  to  the  king's  enemies,  which  are  As 
treasons  iu  this  indictment,  must,  by  theei- 
prcss  purview  of  25  Ed.  3,  be  proved*  by  ofcrt 
acts,  whicli  are  to  be  alleilgcd  in  the  indictmeat 
Sof.  Gen.  The  new  act  does  not  alter  ibl 
law  in  this  ptu-ticular;  what  was  law  belbre,ii 
law  now  ;  it  leaves  the  overt  acts  as  they  wcff 
before ;  and  it  says  not  that  an  overt  act  tad 
to  be  expresseil  wfierc  it  was  not  neolfid  beliirei 
Now  if  a  man  be  indicted  for  comjiassiog ihi 
death  of  a  private  person,  there  ought  lo  b 
some  overt  act  to  prove   his  design ;   but  if  ^ 
there  be  an  imlielment  for  murder,  there  ncail  j 
no  other  overt  act  to  prove  it,  but  the  moidtf  | 
itself.  « 

/,.  C.  J.  But  the  force  of  the  objectioB  Eli  ; 
io  this,  viz.  to  say  a  man  levied  war,  9rd- 
hered  to  the  king's  enemies,  is  no  good  ia 
ment ;    but  it  is  necessary  to  allfqa  f 
manner  he  levied  war,  or  adhered  to  fhi 
enemies ;  as  that  he  appcmd.iBjBtlJ^ 


4973 


J&f  High  Treason  <m  the  High  Seat, 


169e. 


[49t 


f  tit  tlid  adhere  td  itid  assist  tUe  king^s 
aie«,  by  joixuDg  forces  with  llienif  or  ott>«r- 
MMmOfg  lliein«  or  cotitedersimg  with 
tliai  nmst  be  speciiietL  But  if  )rou  m- 
diet  A  mao  sreneralty  for  adheripg'  to  the  kin<;^(i 
eaeinic*,  aud  not  ray  how  and  in  if  hat  muntier 
b«  did  adhere  to  theiDf  that  is  uot  a  good  La- 
dictineot ;  ther^fore^  if  you  purticulari^e  nbat 
€9tfDies,  Add  bow  and  in  w hut  naantier  he  ad- 
iMird  to  them^  no  etiOeiice  can  be  given  of  any 
•dier  kind  of  adherenre,  but  that  which  is  &o 
ipeettrrd  in  the  indictrnent.* 

Sat.  Gen,   Then  we  must  put  all  our  evi- 
dence into  the  iodiclmenL 
Mr  l^hippi.   iSo  you  must,  as  to  the  overt 


Soi,  Gen,  That  will  be  the  same  thin^  as  to 
jiot  in  all  OUT  evidence,  if  we  must  ^ive  evU 
4tmst  ol'  no  overt  oct  but  what  is  expressed  in 
teiMllcfinent.  But  1  do  not  take  it,  that  the 
nirea  all  overt  acts  to  he  put  in  the  in- 


I 


JUr,  Fh4pp!t.  The  act  soys  so,  Suppose  you 
bad  r  :  ue  overt  act,  would  the  iodictment 

Soi.  ur  //.  We  did  not  intend  to  put  in  all  the 
9 vert  acts,  but  ooly  what  related  to  t hut  part  uf 
the  treason. 

Mr.  Phipp9»  The  treason  must  he  proved  by 
overt  acts,  and  the  overt  acts  that  proie  the 
iTiMOii  most  br  tnetiiioned  in  the  indictment. 

Soi.  Gen.  What !  the  overt  acts  of  llie  trca- 
9tm  before  mentioned,  as  counterfeiting'  the 
king's  mooey,  and  the  hie,  are  atl  to  be  mea- 
tionedf 

X,  C.  /.  Const der,  if  you  can  make  that  a 
fMd  tDdiclmt'nt,  to  say,  that  the  pri^ner  ad- 
Oired  to  the  king:':*  euemics,  without  mention- 
In^  any  overt  acts  to  man i test  such  an  ailhe- 
refir«,  ihea  your  answer  to  Air.  Phipps  is  full ; 
but  if  it  be  not  a  good  iadicimeur,  without  a]- 
Ifdgifig'  particiilar  acta  of  ajdherence,  I  hen  it 
Mcessarily  follows,  that  if  particulai's  are  al- 
iedgc<l«  and  you  do  not  prove  them  as  is  a!- 
k&^^  yon  liave  failed  in  the  intliotmeiit,  and 
90  nvs  obicction  will  lie  hard  upon  \ou, 
,  SqL  Qen,  My  lord,  we  framed  our  indict- 
ment aocurdio^  to  the  letter  uf  the  stiiute. 

X.  L\  J.  In  compa^ng  the  death  of  the 
km^.  you  must  shew  how  that  is  iDiinifested 
b^  the  otert  acts. 

&)/.  Gen,  But  compacsitig^  and  imagining 
mtisl  be  discovered  by  some  overt  acts. 

L.  V.  J.  Trtbtf.  This  is  a  doubt  I  have  often 
thought  of:  1  thought  it  most  naturol  that  the 
word  ofert  act  ahould  relate  to  the  first  article, 
riz.  *  cofttptssiQi^  and  injagining  of  the  king'!>i 
«  death  :*  For  overt  act  seems  to  be  opposed  to 
EORiethin^  of  a  routrary  nature ;  act  is  opposed 
properly  to  tlioii^hi,  ovett  ia  proper!)/  opposed 
to  secret.  And  ibat  sort  of  treason  consistintf 
ia  secret  thought  and  internal  pur|po«e,  cnaitot 
be  k&owfi,  tried,  and  jud^^ed  of,  without  being 
diietooed  and  manifested  by  some  external 
t/^esk  ftcl  r  wheiefore  it  is  pertinent  and  reason- 

«  Ike  Eaat's  PI  C.  c.  9, ».  H-  ^7. 
f  OL-  XilK 


alite,  in  order  to  attaint  a  man  of  such  treason* 
that  the  indictment  i^hoidd  dmrge  and  set  fbrtU 
the  act^  as  welt  as  the  thought.  And  fto  it  hatli 
been  used  to  be  done. 

But  such  order  or  manner  doth  not  seem  so 
natural  or  necessary,  in  framing  tndictmenta 
for  Cither  treasons,  where  the  treason  consists  in 
visible  Of  discernible  taetat,  as  levying  war,  &c. 

Nevertheless,  I  think  an  overt  act  ou^ht  to 
he  alledged  in  an  indictment  of  treason  for  ad- 
hering to  the  king's  enemies,  giving  theni  aid 
ajid  comfort.-'^  And  the  overt  act  or  acl^,  in 
I  his  case,  ought  to  be  the  partictibr  ftciiooa, 
nieanSi  or  manner  by  u  bich  the  aid  and  eoui- 
Ibrt  was  given. 

My  lord  (*oke  d« dares  his  opinion  to  this 
purpose.  His  words  (which  1  read  out  of  his 
Look  liere)  are  tliese;  **  The  compoiition  and 
counectioD  of  the  words  are  to  he  observed/^ 
viz,  [thereof  be  attainted  by  overt  deed.] 
^*  This,"  says  he,  **  relates  to  the  several  and 
diKtintt  tciiniions  before  expressed,  nnd  esj>e- 
cially  to  the  compsssuig  and  imagining  of  thfi 
deatli  of  the  king,  ^ce,  for  that  it  is  secret  in  the 
heart,  &e/'  Th«ow  ihe  arlicles  of  treason  before 
expressed  in  the  statute  of  ^b  Ed.  3,  are  four. 
1.  Compassing,  &c.  2.  Violating  the  queen ^ 
&c,  3.  Levying  war;  and,  4.  This  of  ail- 
hering,  &c.  (And  yet  it  is  hardly  possible  to 
set  forth  any  overt  act  concerning  the  secondi 
otherwise  than  tlie  words  of  the  statute^  tltat 
ailicte  exprc!>ssing  so  parliculiiv  a  fact). 

I  do  observe  also,  that  these  woid^  *^  b^ogp 
thereof  attainted  by  overt  fact"  do,  in  this  ata- 
tute,  immediately  follow  thisoHieteof  ailheringi 
See.  And  it  would  be  a  great  violeitce  to  con- 
strue ihem  to  rt-frr  to  the  firnl  article  only,  aoit 
not  to  this  last,  to  which  ihey  are  thus  con- 
oected.  If  they  are  lo  l»e  restruiued  lo  a  5ing:le 
article,  it  were  more  ogreeable  to  the  strict 
rules  of  construing,  to  refer  them  to  this  of  ad* 
heiiugonly. 

L.  C\  J.  That  which  I  in<iist  on  b  this : 
whetlier  the  indictment  would  be  good,  without 
expressing  tlie  sperial  overt  act  ?  if  ii  be,  then 
this  in  a  surplusage,  and  we  ore  not  confinefl  tu 
it ;  hut  if  it  be  not  ii  good  indictment  without 
expressicg  it,  then  we  are  contine*!  to  it. 

Mr,  JVii/jpi,  I  believe  Mr.  Solicitor  never  saw 
an  imlictment  of  this  kind,  without  an  overt 
act  laid  in  it. 

L.  C.  J,  Can  you  prove  the  fact*  kid  in  the 
indictment  ?  for  certamly  the  indictment,  with- 
out meniiohing  particular  acts  of  adherence* 
woidd  not  lie  j^ftoii. 

Mr.  Copper,  Yes,  my  lonl ;  and  as  to  the 
evidence  before  you,  we  would  only  ctfer  this : 
whether  in  this  case,  if  the  indictment  were 
kid  irenemUy,  for  adhering  to  the  king's  ene- 
mies  in  one  p"lace,  and  in  another  place  levying 
of  war,  and  nothing  more  pariiciilsr,  it  would 
be  goodP  I  doubt  it  would  not.  But  when 
there  is  laid  a  ^u^rticular  act  of  adhering,  wo 
may  give  in  ctidencc  matter  to  strengthen  the 
direct  proof  of  that  paniculor  act  of  adhering 


•  See  Hawkins's  Fl.  C.  c*  17.  i.  29. 


d 


t99J 


8  WILLIAM  in. 


Trial  of  Cajriain  Thomas  Vaughan^ 


[500 


to  the  kind's  raemiei,  ilMNigfa  that  matter  be 
not  wpecially  laiii  in  th«  ioUictment:  for  the  act 
|roe«  oiilv  to  ibis»,  that  the  priioner  shall  not  be 
convictitl,  uDlr«4  }ou  prove  against  him  the 
ovt-rt  aciH  Mitfitail y  laid  iu  the  indictment ;  but 
«» hothcr  u  inall  not  be  heard,  to  make  the  other 
ov«Ht  ai't  which  IS  laid,  the  more  probable? 
Now  wt*  have  laid  a  special  o?ert  act  in  the  in- 
tlicciiiciit ;  and  we  have  |>roduced  evidence  of 
II,  mid  we  would  produce  likewise  collateral 
•%iti4*uct\  to  induiT  a  tirmel'  belief  of  that  spe- 
cial u»vii  act,  by  shcwinp  you  that  he  hath 
made  ii  Inn  practice,  during; 'the  war,  to  aid  and 
4<«iM9»t  ih«»  kni^**  encmini :  but  if  the  jury  do 
iioi  iiiid  liiui  ^iidty  of  tl)»>  special  overt  acts 
luid  III  the  ludiciiiicnt,  they  cannot  find  him 

t^uilt)  h\  the  proof  of  anv  other  overt  act  not 
Mill  IU  ike  iiidicluicnt.  liut  if  we  prove  he  has 
Iliads  ibw  hi«  practice,  in  other  instances, 
iUiiiM^  the  w«r.  whether  thai  proof  shall  not 
Ih*  i%H'ri%c»l  ' 

Ml  r-'rvy^  My  loid.  I  de»ire  the  act  may 
\h'  iv4%).  It  c\prrv<l\  cHintradicts  what  Mr. 
l'vw|Hn  «tii9  .  tor  It  f.iys,  that  no  evidence 
khall  W  ^%\\'%\  HI  the  ov«Tl-act,  that  is  not  ex- 
piv«i«l.%  lakl  III  ih<  indictment. 

The  \i-t  was  rc;u]. 

(  i*  f  rhm  i«.  you  may  ^ivo  evidence  of 
411  o%«ii  net  thnt  w  not  in  tfie  indictment,  if  it 
cMiidiH^e  lo  pio^e  one  that  Li  in  it.  And  if  con- 
•iiUini*  to  kill  the  kin;:f,  or  raise  a  rebellion,  is 
laid  111  the  iiidictniinit,  you  may  give  in  evi- 
dence tin  acting  in  ptirsitiince  of  a  considt,  that 
!•».  nil  r*ideiice  that  they  ngi^vd  to  do  it  : 
ihiMi>*li  ihiit  doinsj^  of  the  thing  is,  of  itself  ano- 
ihri  i>\i-rt  act,  hot  il  tendb  to  prove  the  act  laid 
III  llic  iiulifliiii'iii.* 

Mr.  Vhr.p^.  The  overt-act  luid  iu  this  in- 
dii'iiiieiit,  is,  hNCiiiising  in  the  Cleiicarty  ;  and 
lliiN  oieii  ail  ym  would  prove,  is  no  evidence 
of  th.it,  uoi  lel.ucNlo  II,  hut  ills  a  disliuct  overt- 
set  of  iiself 

/  t '  7  \  iMi  e;uniot  ^ive  evidence  of  a 
ihsiiiii'i  4it t  (h.ii  h.tN  iu»  nhiiiou  to  the  overt- 
■i  I  III!  iiiiiiiinl  111  the  iiidieinu'iu,  though  it 
ftii.tll   loiiitiu  ('   to  piove  the  suiiic   N|H*cies  of 

ll«  .11  Ml     I 

:Ui  ('.'.. /Il  \\  I- would  iipply  this  proof  to 
ihi- «!« .  1 1  lu  I  I. lid  III  till'  iiiilii  iiuetil. 

/    I     '     \ii\  ihiiijj  ih.ii  h.is  a  direct  ten- 


%l»  III  \ 
\li 

iha  I. 


Il*  il  ^%<ii  iii.i\  pio^e. 


{ 


.11..! 

I.. 

.1 


III  11  I 
•  >l     I   I 


\Sv  h.ivi-  l;;id  the  o\ert-act, 
iliil  inhiiii.iiiU  pill  hiiiisetl'on  iHMnl  this 
I  lilt  I  u-iii  h  Ktii^,  the  LoyalClcncarty, 
.Ml  III  M  .1  III  her,  .iml  cruise,  with  a  de- 
I  ik.-  ihr  shios  el  ihe  king  of  iMigUuul, 
.Ill-It  1 1^  Now  pari  i»f  the  overt -act  is, 
lui,  aiiiiii  III  ih.-  nt  (  lit'  riui*iiiig  ;  \vc  do  not 
I..  Ii  ii>  iMih  i.ikint;  one  ship  ;  so  that  his  ; 
•iK.-.i  I.  .1  iiu  iiihiM  III  thr  ov«ii-act ;  and  it  ; 
•ml.  Ill  iii.ike  hi\  eMii%iiig  criuiiual, 
ik;iiid  III  i.ike  thr  ships  of  the  king 
I       N.i«  wi  think  w  a  pniper  iiiten 


l" 


v. 
Ne, 


t   .IM\  V 


l'.c.«,  a 


57. 
57. 


tion,  to  shew,  that  doring  this  wir,  beim  and 
after  the  time  of  the  treason  laiii  in  the  indiGt- 
ment,  he  waa  a  cruiser  upon,  and  taker  of,  the 
king's  ships ;  and  this  fortifies  the  direct  proof 
given  of  the  intention. 

£.  C.  J.  1  cannot  agree  to  that,  because  y  ov 
go  not  about  to  prove  what  be  did  in  the  venel 
ealled  the  Loyal  Clencarty  ;  but  that  he  had 
an  intention  to  commit  depfedatkm  on  the  kin^s 
sabjects:  so  he  might,  but  in  another  sbip. 
Now,  because  a  man  has  a  design  to  commit 
depredation  on  the  king*8  sulgects  in  one  ship, 
does  that  prove  he  badan  intention  lo  do  it  u 
another?* 

Mr.  Phippt.  He  was  cruising  in  the  den* 
carty ;  that  is  the  overt-act  laid  in  the  indict- 
ment ;  aiid  the  overt-act  tou  would  prodnee  is, 
hia  being  in  anothte  venei. 

L,  C.  J.  Go  on,  and  shew  what  he  did  in 
the  Clencarty.  You  the  prisoner,  will  you  isk 
this  man  any  questions? 

Mr.  Fhippu  Crouch,  you  sud,  that  the  pri- 
soner did  say  he  could  not  deny  but  he  was  sn 
Irishman  ;  how  came  you  to  talk  about  it  ? 

Crouch.  He  said,  I  cannot  deny  but  I  im 
an  Irishman. 

L.  C.  J.  Did  he  say  he  was  an  IrishmsD  ? 
What  were  the  words  he  used  ? 

Crouch.  He  told  the  lieutenant  he  was  an 
Irishman. 

Mr.  Phippt.  What  discourse  waa  there? 
How  came  he  to  say  that  ? 

Crouch.  I  went  by  only,  and  heard  the  words 
spoken  to  the  lieutenant. 

L.  C.  J.  Did  he  speak  English  ? 

C ranch.  Yes,  my  lonl. 

L.  C.  J.  If  he  spoke  Knglish,  that  is  some 
evidence  he  is  an  Englishman,  though  the  con- 
trary may  he  proveilhy  him. 

I  tius^han.  That  would  no  more  prove  mt 
an  English  man,  than  if  an  Englishman  were 
in  France,  and  could  speak  French,  would 
prove  him  a  Frenchman,  because  he  could 
speak  Frrnch. 

L.  C.  J.  You  shall  be  heard  by  and  bye  to 
say  w  hat  you  will  on  your  own  behalf. 

Mr.  Philips.  Were  there  any  Frenchmen  on 
board  the  Clencarty  ? — Croucli.  No,  JSir. 

Mr.  Phipps.  Mr.  Vaughan,  will  you  ask 
hiin  anv  questions  vourself  ? 

Mr.  iWptr.  Call  T.  Noden. 

Vaughan.  How  did  you  know  that  there 
wen.'  no  Frenchmen  aboard  ?  Did  I  addresa 
myself  loyoa  when  1  came  aboard  ? 

Crouch.  No,  Sir. 

Vuui^han.  Did  I  not  address  myself  to  the 
cantain  when  I  came  aboard  ?  How  came  I  to 
tell  you  I  was  an  Irishman  ? 

Crouch.  They  were  all  Scotchmen,  English- 
men, and  Irishmen. 

Mr.  Phipps.  Mr.  Vaughan,  you  need  not 
take  up  the  time  of  the  court  about  that 
matter. 


*  As  to  the  Evidence  applying  to  the  overt- 
act  laid  in  the  Indictment,  and  to  no  other, 
see  Hawkins's  PI.  C.  b.  2,  c.  46,  s.  180, 


WIJ 


Jqt  High  Trcaton  an  the 


[Hie  I 


Air.  Ccmptr,   Yau  may  go  on. 
SqI,  GfJt.  Did  ihe  jjinsonwoivn  that  heaclal 
i\i  ihp  Fretjcji  km^*8  com  mission  ?  Di4  you 
I  \  thing  4»i  ins  b&Ytng  a  French  cvm- 

Yea,  I  heiirfl  tie  had  otie,  but  1  did 
_|{  but  1  bt^ard  so  by  the  company, 
.  X  W^rt  tfiere  any  French  men  aboard  ? 
Crouch.  No,  Boithal  1  know  ol\  They  were 
>ulchriit^ti,  und  Englishmen,  and  bcotcbmen 
twi  Iri^litijcn.  . 

Ir-  Cvti>p€r.    CaU  T.  Nadcn*    (Who  ap- 

ircd,  and  wai  sworn,)  Do  you  give  my  lord 

1  the  jury  au  account  of  taking  tbe  vessel » 

ailed  the  two  and- 1 wen ty- oar  hitrge. 

Noden,  Lt^st  year^  about  June  or  Julyt  to 

\  best  of  my  rnnembrance,  I  belonged  to  liis 

niijesly  *8  tb»j»  the  Coventry »  aud   we  look  ibe 

two-aod-twejity*oar  bar»jc. 

JL.   C.  J.     How    many    Dutchmen    were 
AJMiard? — Noden.  I  do  not  knew  ofaboveone* 
L.  C,  J.  Trebv^  What  were  the  re»t  ?  Were 

saoy  Frenchmen  ? 

^Ofici*.  Ye«,  there  were  several  Frcticbmen 

ard.     1  Monged  to  the  Coventry;  and  as 

p€  were  aatlinyi:  by  ilte  Nore,  and  the  Guufleet^ 

uptain  spied  a  small  vessel  sailing  by  the 

tt  itnd  he  supposed  her  to  be  a  Frt^nch  pri* 

er,  ami  be  tired  a  c^un  to  make  them  bring 

plo,  aud  they  did  iioi  obey  ;  and  at  last  tired  a 

run,  shot  and  all,  and  they  would  oot  come  to. 

Ttieii  tlie  captain  ordered  to  man  tbe  boat,  and 

oiler  them :  m  the  barge,  and   pinnaee, 

fxAnd   lon^-boat  were  manned ,  and  tliey  came 

ity  near  them.     This  barife  we  took^  waJi 

hjigroimd  also  ;  nod  they  got  herufloat^aud  E^he 

^ruD  abound  a*;Hin  :  and  a^  they  were  agrouitd, 

BKisI  ulHhem  out  of  the  boat,  our  long-boat 

itruck  aground,  and  waded  after  tbem  near 

Jl»]f  a  league ;  and  wlieii  we  came  to  the  barge, 

^Ibflfr  via  this  captaiu  Vaughan,  and  two  or 

mod  twenty  more ;  and  there  was  two 

and,    as    1    appreheuded*   sonde 

There  was  in  her  a  blunderbuss 

•ail  VDiU  armi,  and  a  considerable  quantity  of 

iMnidk^iiadoeii, 

L*  C*  J.  What  vessel  was  you  aboard  ? 
Nodcu.  The  Gov  en  try » 
SoL  Gtn.    What  couDtryman    did  csptab 
Vaugbao  say  b«  was  ? 

hodtn.  1  did  not  hear  any  thing  of  it.  Our 
raptjun  eicamined  ibe  Diaclimeu  whut  coun- 
tiyuiao  iIh'  f^ooimauder  was,  and  bt>  said  he 
W\^  an  lri>liuiua  ;  but  1  did  oot  hear  it  myself. 
When  ca[#tu]ii  Vuutrhiui  tvaa  brought  aboard 
the  (.u>rriirv^  I  was  put  aboard  ibe  [iri/e  we 
bud  tiikeo. 

Mr  Caieper.    Had  you  any  discourse  with 
cmptaii}  Van;fban  c* — liuden    No* 

L,  C'  J.  DmI  they  end^vour  to  take  your 
ship  f 

Nodcn.  Kov  but  endeavoured  to  getaway 
from  us. 

L.  C>  J*  What  guns  or  atumuuitioo  had 
HmvF 

Noiknr  I  cannot  id\  parlicolarly ;  there  was 
time  CttTMi  hags,  ^ery  man  hai  ft   car- 


tridge bag,  and  there  were  sotne  band-gra- 
naiioes. 

Mr.  Whi  faker.  W^hat  tire -arms  had  they  ? 

Nodin,  \  c»Auot  say  how  many  ;  but  they 
had  muskets,  and  pistols,  ^nd  two  blunder* 
busses. 

Mr.  Cawptr.  Did  you  understand  whence 
this  !»liip,  the  Loyal  Clencarty  cume? 

}sodcn.  Tbe  Dolchnif o  saiil  they  came  from 
CaluJH,  As  near  as  I  can  guess,  we  spied 
them  about  eleven  o^cliick,  and  we  weighed 
anchor  io  the  afternoon,  on  Habbatb^day,  and 
they  took  us  to  be  a  lii^ht  colUert  and  endea- 
voured to  board  us,  as  the  Dutchman  said  ;  bnt 
Wben  ihey  knew  what  we  svere^  they  end^ft- 
▼oil red  to  escape  from  us. 

Mr.  Cowucr,  Call  Sam.  Oldlmm.  (Who  ap- 
peared, ana  was  sworn.)  IVlr.  Oldham^  was  yuu 
aboard  tlie  Coventry  when  she  took  tbe  ship 
called  the  Clencarty  ?— Oldham.  Yes,  I  was. 

Mr.  Coieper.  Pray  give  an  account  what  vou 
observed  of  the  prisoner  T.  Vaucbantben  f 

Oldham.  We  weighed  our  ani^or  tirsl  at  the 
Buoy  and  Nora ;  so  we  saw  a  prize  io  th^ 
moruing;  the  captain  said  it  was  a  prise, 
and  we  made  sail  after  bliu,  and  thej  ran  on 
tbe  Gof>dwlu  Saudis:  and  the  captain  seeing 
tbe  bar^e  run  aground,  we  (ired  at  ber  to 
brill  If  her  to  ;  we  tired  a  tiecond,  and  fth« 
would  not  come  to,  hut  run  aground  again. 
When  she  was  aground,  bv  tbe  caplam'i  order 
we  manned  our  ooaUt  aoil  out  we  went  after 
her. 

IMr,  Ciiwptr.  Did  you  take  ber  ? 

Oldham.  We  went,  and  our  loitg-bQat  ran 
aground;  1  waa  in  the  long  lioat,  and  we 
waded,  1  believe,  a  mile  and  btuf  alter  ber* 

L.  C.  J.  What  Frenchmen  were  aboard  ? 

Oldhanu  I  cannot  justly  say  whether  ther« 
were  any. 

X.  C.  J.  Were  there  any  ? 

Oldhnm.  I  tbmk  oneortwo. 

Mr,  Couper.  Were  there  any  Dunkirkers  or 
Walloons  aboard  P 

Oltlham.  There  was  a  Dutchman,  who  lb«y 
called  a  Fleunng  ;  and  I  discours«?<1  bim.       ^ 

L.  C.  J.  How  many  outlandish  men  were 
there  aboard  ?  Was  there  a  dozen,  or  how 
many  f — Oldham,  I  cannot  say  the  quantity. 

MV.  Cow  per.  Was  there  iiiore  than  two  or 
three  I — Oldham,  Yes,  more  than  two  or  thret- 

L,  C.  J.  W  bat,  foreigrners  ? 

Oldham,  Yea.  And  there  were  two  Eng- 
lishmen. 

Mr.  Cott'jjcr.  What  did  you  ob <--  -  ■  *"  tbe 
prisoner  at  the  bar^  at  the  takiotr  <  ' 

Oldham,  I  did  oot  come  aboaid  ..  ...^  ..Jth 
the  prisoner,  bat  willi  bis  man  ;  and  his  man 
tsaid  he  was  an  Irisbmun,  and  that  be  was 
commander  of  the  boat. 

Sol.  Ocn.  What  was  tlieir  dcsisfn  itt  tliat  ship 
Clencarty  ? — Oldham,  I  canii  ' . 

Mr.  Cow^cr.    Did  they  i-  .r  being 

taken? 

Oldham,   I  cannot  tell  that ;  I  aaw  no  armf  ■ 

Ikfr.  Cowper,  You  were  in  the  action;  waa 
there  any  rodstaooe  made  / 


90SJ  8  WILLIAM  m.  TrUao/Caftain  Tkmttt  Vaughak, 


[5«4 


Oldham.  I  saw  no  resistance ;  they  offered 
to  run,  they  were  agrounil  onoe,  and  got  off 
again. 

Mr,  Phippt.  You  say  there  were  foreigners; 
what  countrymen  did  you  bdicTe  those  fo- 
reiff ners  to  be  ? 

Uldham.  I  cannot  justly  say,  I  beliefe 
Dutchmen. 

X.  C.  J.  How  many  Dutchmen  were  there  ? 

Vldham,  i  cannot  say. 

Dr.  Oldith.  But  you  said  there  were  some 
two  or  three  Frenchmen,  and  that  they  spoke 
French ;  do  you  understand  French  ? 

Oldham.  No,  Sir. 

Dr.  Oldish.  Then  how  do  you  know  they 
were  Frenchmen,  and  spoke  French  ? 

Oldham.  They  said  they  were;  they  did 
not  speak  English ;  several  of  the  ship's  com- 
pany said  they  were  French. 

i.  C.  J.  Ii  they  wens  all  Dutchmen,  and 
appear  in  a  hostile  manner  against  the  king  of 
England's  subjects,  they  are  enemies,  though 
we  are  in  league  with  Holland,  and  the  rest  of 
the  seven  pruvxnces. 

Mr.  Fhipps.  The  Indictment  runs,  That  the 
French  kmg,  '  quandam  Naviculam  vocat, 
^  The  Loyal  Clunc»rty,cam  quamplurimisSub- 

*  ditis  Gallicis,  Iniraicis  Dum.  Itegis  nunc,  ad 

*  numerum    qiiindecim    Personarum,   replet' 
•^preparavit.' 

L.  C.  J.  8up|>osc  it  doth  ? 

Mr.Fhippx.  It  is  ^-Subditis  Gallicis,'  my 
lord. 

L.  C.  J.  They  will  l»e  subjects  in  that  matter, 
if  they  act  under  his  commission:  They  are 
enemies  to  the  king  of  England,  aud  Ihcyhavc 
made  themselves  the  French  king's  subjects 
by  that  act. 

Mr.  Phipps.  It  appears  not  thct  they  are 
Frenchmen,  my  lord. 

L.  C.  J.  If  Dutchmen  turn  rebels  to  the 
state,  and  take  pay  of  the  French  king,  tliey 
are  under  the  French  king's  command,  and  so 
are  his  subjects.  ^Vill  you  make  them  pirates, 
when  they  act  under  the  commission  ot  a  so- 
vereign prince?  They  are  then  *  Subditi'  to 
bim,  and  so  '  Inimici'  to  us. 

Mr.  Phippi,  It  does  not  take  away  their 
allegiance  to  their  lawful  jirince.  They  may 
go  to  the  Franch  king,  and  servo  him;  yet 
that  does  not  transfer  iheir  alle«;iaiice  from 
their  lawful  prince  to  the  French  king,  and 
make  tlicm  his  subjects.  Bnt  however,  to 
make  Ihcm  subjects  within  this  indictmi'nt, 
they  must  be  *  Gallici  Subditi' ;  so  they  must 
be  Frenchmen  as  well  as  subjects. 

X.  C.  /.  Acting  by  virtue  of  a  commission 
from  the  French  king,  will  excuse  tliem  from 
being  pirates,  though  not  from  being  traitors 
to  their  own  state  ;  but  to  all  other  princes  and 
states  against  whom  they  do  any  acts  of  hos- 
tility, they  are  enemies:  And  their  serving 
imdcr  the  French  king's  commission,  makes 
them  his  subjects  as  to  all  others  but  their  own 
prince  or  state.  And  though  they  be  not 
FreDchmeD,  yet  they  are  <  Gailici  Subditi ;'  tor 


it  is  the  French  sutjection  that  OMkea  then  to 
be  •  Gallici  Subditi.'* 

Mr.  Phippt,  Pray,  my  lord,  rappote  t  tob- 
ject  of  Spain  ahoafd  eo  over  to  the  Frencfa, 
and  fight  against  England  ;  I  take  it,  he  may 
be  termed  an  enemy  of  the  kiD{f  of  EoglaDd, 
though  his  prince  be  in  league  with  our's;  boi, 
with  submission,  he  cannot  properly  be  said  to 
be  a  sulgect  of  the  French  kinj^ :  For  soppoie 
an  indictment  of  treason  agninst  a  foreigner, 
should  say,  *  that  he  being  a  subject,  did  coai- 
mit  treason' ;  if  it  l»e  proved  he  is  not  a  subfcc^ 
with  submission,  he  must  be  acquitted. 

Mr.  Cowper.  There  is  a  local  allegiaore 
while  he  is  m  the  country,  or  fleets,  or  amia 
of  the  French  king. 

L.  C.  /.  Dutchmen  may  be  enemies,  not- 
withstinding  thtir  state  is  m  amity  with  w,  if 
they  act  as  enemies. 

Mr.  Cowpcr.  Call  i^  Bub.  (He  was  swon.) 
Was  you  aboard  the  Coventry  when  she  took 
theClenoarty?— JH«c6.  Yes,  Hir. 

Mr.  Cou'pcr.  Give  an  account  what  jn 
know  of  the  prisoner,^homas  Vaugfaan,  at  die 
taklngof  tliat  ship. 

Bub.  We  came  aboard  the  Coventry,  and 
were  at  the  Nore  at  anchor ;  our  pennant  wn 
taken  down  to  be  mended.  So  in  the  night 
captain  Vaughan,  with  his  two  and  twenty  oir 
barge,  rounded  us  two  or  three  times.  In  Ibe 
morning  we  weighed  anchor,  and  fell  dowa,  ia 
oi-der  to  go  to  the  Downs;  and  we  came  m 
witli  them,  and  tired  at  Captain  Vaughan,  Mil 
he  would  not  bring  to.  With  that,  our  captais 
ordered  to  have  tlic  bar^e,  and  pinnace,  aoii 
long  boat  to  be  manned,  to  gc»  after  him.  They 
followed  him,  and  at  last  came  up  with  bisi, 
aud  came  up  pretty  near ;  but  could  not  csnc 
so  near  with  tne  long  boat,  but  were  fm  to 
wade  up  to  the  middle  a  mile  and  a  half.  We 
hoisted  our  colours,  in  order  to  figbt  thea, 
and  bore  down  still  upon  them,  and  tney  would 
not  tiM^lit  our  men :  And  we  took  then  out; 
and  tvlien  they  came  aboard,  the  EugiisbuM 
that  was  a  pilot  was  to  have  his  freedom,  la 
pilot  them  up  the  river.  He  confessed  to  the 
captain,  that  captain  Vaughan  intended  to  ham 
the  ships  in  the  liarliour  :  And  the  neit  day 
after  the  pilot  had  confessed  it,  captain  Vaugbai 
himself  confessed  it  on  the  deck,  that  lieeaoK 
ovor  with  that  design. 

Mr.  Couper.  Who  did  he  confess  it  to.' 

Bub,  To  the  boatswain  and  gunner,  ai  be 
was  on  the  deck,  on  the  larboard  side;  that  be 
came  on  purpose  to  bum  tlie  shipping  io  ibe 
harbour. 

L.  C.  J,  Did  he  confess  that  himself? 

Bub.  Ves,  my  lord. 

L,  C.  J  '  Wherealiont  was  this,  at  the  Booj 
in  the  Nore  ? — Hub.  In  the  Downs,  my  lofd. 

L.  C.  J.  Where  did  the  ships  lie  that  wcie 
to  be  burned  ?—Bi<6.   AtShecmess. 

Sol.  Gen.  Hcownetl  himself  tobeanlridh- 
mnn,  did  he  not  P — Bub,  Yes. 

31  r.  Coufper.  And  that  he  came  from  Ctkkt 


•  See  East's  PI.  Cr,  c  17,  t.4. 


n 


JSub.  Ym. 

Mr.  Ciwpfr.  Had  you  wiy  i!i»courac  with 
him  about  »  commuaioD  f 

Bub.  No.  But  our  lieutefiant  and  captain 
hftd,  but  It  waa  not  in  my  hearing ;  I  wiU  not 
speak  funber  tban  1  beard,  and  what  I  can 
Jualify. 

Sol,  Grn.  Wt\l  you  ask  him  aay  ijuestions  ? 

JMr>  Phipffs.  No. 

Soi,  Gen.  Tbeii  call  Mr,  J.  Cntlcnden, 
tnaculiat  of  Do\or  Castle,  (V^  Uo  was  aivorti.) 
Mf*  CVitteodeu,  Prny  what  diit  you  bear  the 
^mooer  at  tbc  bar  confeis  of  his  detiign  in 
III     :    r  Inland? 

1  did  not  bear  bim  say  any 

Sot.  Gen,  What  did  he  confess  f 

Cnt.   lie  confessed  be  was  an  Irisbmao. 

Ml*,  Whitaker,  Upon  wbat  occasion  did  be 
cotifcss  tbi&t  P 

Crii^  Wl>en  I  entered  bim  into  noy  book,  I 
tiked  bim  wbmt  countryman  be  was. 

Mr.  €Anrftr,  IV  hat  are  you  ? 

Crii,  1  am  the  marshal  of  Dover  Castle. 
Cvwptr,    Uy  what  name  did  be  order 
enter  bim  T 
Wl.  Thoma«  Vaughan,  an  Irlnhman. 

L.  C*  J*  Upon  what  account  did  you  enter 
^m  ? — Crit,  As  a  prisoner, 

Jttr.  Cauptr.  Did  be  speak  any  thing  of  a 
eommttisiofi  ? 

CrU,  1  did  not  hear  him  aay  any  thing  of 
Ibst. 

Mr.  Phipps,  Hare  you  your  book  here  f 
*  cm.  Yes,  sir. 

Dr.  Oidii/i.   \1m>s  be  DOt  m  drhik  when  be 

ill  so  f 

Crit*    I  believe  be  was  not  ?ery  sober,  ia- 

Mr.  Fkippt,    Did  you  ercr  after  bear  him 
By  lie  was  an  Irisbnmji  ? 
Crit*  The  next  day  be  denieil  it. 
Mr*  Cvwper,    IVheu  be  had  cojisidered  Ibe 

of  it. 
L>«r.   The  next  day  he  was  examined  by 

i  nf^tbe  justices  of  tbe  peace. 
StfL  Gen.    IVm  you  by  when  he  was  exa- 
ained  by  tbc  justices.^' — tnf.  Yes. 
Sol,  Gen.  What  did  he  then  say  ? 
Cr$t,  Then  be  said  he  was  of  Martenico. 
Sol,  Gen.    Set  up  Mr.  Bullock.     (Who  was 
vom.)  Mr.  Bullock,  Do  you  know  the  pri- 
oner  at  the  bar  ? — Buiit^k,  Yes. 

SfL  Gen.    Pray  what  hare  you  heard  bim 
ay  of  bis  design  that  he  came  into  England 
'  r? 
Bullock.  He  came  to  Dorer  about  the  Uth 
r/tily^  1695,  as  I  remember :  I  went  with  se- 
al ethers^  who  were  hrougfbt  by  the  captain 
'  tlie  Coventry,  and  the  lieutenant  and  some 
and  wbeo  we  came  thither^  he  there 
I  bimself  an  Int^hman;  but  when  he  went 
'•  tiiiit  day  to  be  e^faniined,  be  said  he  was  of 
^Maiteuico.  He  told  mo  he  ha<l  that  barge  from 
iihm  duke  of  BuUoign,  and  came  on  the  coast, 
ftMnd  was  chased  into  Ibe  Flatts,  where  tbey 
look  JlilBw 


L*  C.  J.  Did  you  ever  hear  bim  say  he  h«d 

any  commission  from  the  French  king  ? 

'BuU<fck,  I  know  nothing  of  that ;  it  was 
late,  and  we  did  not  examine  bim  then  ;  but 
the  next  day,  when  he  C4une  to  be  examined, 
be  said  he  was  of  Martenico, 

SqI,  Gen.  What  did  be  say  bis  design 
was? 

Bullock.  He  JMiid,  that  seeing'  the  boat  at 
BulloitCQi  be  bought  it  of  the  dukeol'  Itulloigw  ; 
and  the  duke  asked  him  wiiat  he  would  do 
tvith  her  ?  And  he  said,  he  would  fit  her  up, 
and  ;7o  and  take  a  ship  at  sea^  that  is  upon  our 
coasts. 

Mr.  Phipm.  W^e  arein  your  lord^iip*sjudj?- 
mcnt,  whether  wc  need  giwe  Any  eviJence ;  for 
we  think  they  have  not  proved  their  indict- 
ment :  for  ihe'indictment  sets  forth^  •  Tiitit  the 
'  French  king"  titled  out  the  Loyal  Clencarty ,  of 

*  which  Thomas  Vau^han  was   commander ; 

*  and  that  Fcry  many  Frenchmen,  subjects  of 

*  the  French  ting,  were  put  on  board.'  Now 
the  Brst  w  itness  swears  there  were  no  French- 
men;  ami  another  swears  there  was  one  or 
ttvo;  another  that  they  were  foreigners;  but 
does  not  believe  they  were  Frenchmen.  8d 
there  is  no  proof  of  that  part  of  the  indictment ; 
nor  is  there  any  proof  that  he  was  captain  of 
the  f^yal  Clencarty :  So  that  none  can  say,  it 
is  tbe-same  vessel  meRtioned  io  the  indiclmeut. 
Nor  is  any  act  of  hostility  proved  ;  for  all  the 
witnesses  say,  that  Vaughan  never  pretended 
to  attack  them,  but  run  from  them.  8o  that 
all  they  depend  on,  to  support  the  iodictment, 
is  to  prove  that  be  had  a  design  to  burn  the 
sbi]*9  at  Sheeroess  ;  which  will  not  serve  their 
turn;  lor  the  words  of  the  indictment  are,  *  ad 

*  prosdandum  super  altum  Mare,'  Now  Sheer- 
ness  is  not  *  super  altum  Mare,*   but  ^  infra 

*  Corpus  Comitatus*,'  and  then  not  within  the 
indictment. 

Mr.  Cowpcr.  The  words  ships  at  Sheemeas, 
do  not  imply  I  that  the  ships  lay  witbio  the 
towD  of  Sbeerness,  but  off  of  Sheeriie^s,  which 
is  *  altum  mdte.* 

Mr.  Fhipps.  Then  it  la  not  in  your  indict- 
ment ;  for  that  says,  at  SheerDeas, 

Mr.  CowpcT.  No,  off  of  Hheemess* 

Sol.  Gen.  Jt  is  DO  coniradiction,  to  aaj  the 
sea  is  within  part  of  a  county. 

Mr.  Phippi.  The  indicinaent  says  at  Sheer- 

Sol.  Gen.  OffofSheemeaa  is  the  hik(b  sea, 
Mr.  Phipps.   Sheemens  is  not  the  Buoy  in 
the  Nofp.     Then  you  must  prove  he  \%  us  cap- 
tain  at  this  time  :  for  the  lodielment  saysi,  '  Ad 

*  tunc  fuit  Capitaueus  et  Aides.' 

L,  C.  J,  One  overt*  act  of  adhering  to  the 
king's  enemies  is,  that  be  put  himself  us  a  sol- 
dier on  board  the  5ihip. 

Mr.  Phifipi.  You  will  make  one  port  agree 
with  another,  That  the  French  king  did  £>et  out 
a  ship,  and  gave  him  a  commission  li  be  cap* 
lain  of  her. 

L.  C.  /.  The  witoesees  bare  proved  be  acted 
as  a  captain. 

Ml,  Phipps,  Ue  W4S  tiken  %  and  sure,  il  W 


i607J 


8  WILLIAM  IlL 


xm  taken,  he  must  Uajt  bis  commission  witli 
him. 

Solf  Gen,  Examiue  the  marshal,  he  took  an 
account  of  liini:  and  by  direction  of  Mr. 
.Vangrban  himsdf  be  entered  him  as  captain  ; 
and  he  entered  sereral  men  in  the  snip  as 
Frenchmen,  by  tlieir  own  direction.  /Mr. 
Crittenden  was  called.)  Mr.  Crittenden,  have 
you  got  your  book  in  which  you  nuide  the 
entry?— Crit 


Yes,  I  have  it. 
By  whose  order 


did  you  enter 


Soi.  Gen. 
Iheni  ? 

Crit.  By  the  direction  of  captain  Vaagban, 
the  prisoner  at  the  bar. 

Mr.  Cowper.  How  did  you  know  he  was  a 
captain? 

Crit.  Because  he  told  me  he  was  captain, 
and  1  entered  him  as  such  in  my  book. 

Sol.  Gen.  Captain  of  what? 

Crit.  The  Loyal  Ciencarty. 

Sol,  Gen.  Pray  read  your  entry  in  your  book. 

Crit.  Thomas  Vaughan,  captain,  Irishman, 
the  14th  of  July,  1695  ;  and  so  of  all  the  rest 
0f  the  ship's  crew. 

Just.  Turton.  Did  you  write  these  in  the 
presenoe  of  captain  Vaug^han  ? 

Crit,  Yes,  m  the  same  room  where  he  was. 

Mr.  Phipps.  Did  you  write  it  by  his  direc- 
tion? 

Crit.  For  bis  own  part,  by  bis  direction; 
and  for  the  rest,  by  their  direction. 

L,  C  J,  Take  all  the  circumstances  to&^e- 
iher,  it  is  great  efidence,  considering  what 
they  were  lUiout,  and  what  YesaeX  they  had. 
Mr.  Crittenden,  can  you  tell  how  many  French- 
men  were  there  ? 

Crit.  I  will  tell  you  presenll3^  (He  counts 
them  in  his  book.)  There  were  Uiirteen. 

Sol.  Gen.  Did  captain  Vauffhan  hear  any  of 
them  bid  vou  enter  them  as  I  renchmen  ? 

Crit.  I  cannot  be  positive  in  that,  I  suppose 
he  did ;  he  was  in  the  same  room. 

L.  C.  J.  Do  you  expect  tvitncsfies  from 
France  to  testify  where  they  were  born  ami 
christened? 

Mr.  Phippf.  One  witness  sars,  there  was 
not  one  Fixuchman  there. 

L.  C.  J.  Not  to  his  luiowled^c. 

Sol.  Gen.  What  do  you  know  of  his  ba%iiig 
a  French  coir  mission  :' 

Bullock,    i  did  not  nee  \*. 

Mr.  Whilukrr.  J)iil  lie  rwn  liis  havir^  any 
French  commission  1' — Bul'ock.  \  cannot  tell. 

Just.  Turton.  Lie  owned  himself  a  captain. 

Mr.  Phipps.  Hv.  mi:;bt  be  a  cuiitain  in  an- 
other ship,  but  nut  in  tliis  ship ;  they  uu(rht  to 
prove  be  wai^  eaptain  at  that  time,  iu  that  ship, 
by  the  French  kinir's  commission. 

L.  C  J,  All  the  witnesses  say  he  acted  as  a 
captain  at  that  time. 

Mr.  Coapir.  He  owned  himself  the  captain 
of  the  l^)yal  Ciencarty. 

Baron  Pi»uis.  What  can  be  plainer,  than 
that  he  OMiitd  himself  captain  1' 

Dr.  Uldkii.  This  seems  to  me  a  very  strange 

proof,  to  he  built  only  upon  the  sayings  of 

.these  persons,  that  they  were  Fcenclimen: 

4 


Trial  qf  Captain  Thomas  Vaugkan,  [SOS 

and  this  to  a  man  who  bad  no  .aiithoritj  to 
examine  them,  when  it  might  have  baai  easily 
proved  in  a  regular  way,  in  oaae  they  bad  hen 
so ;  they  might  have  been  emmiaed  before 
a  magistrate,  and  thereby  it  would  have  ap- 
peared whether  they  were  Freoch  or  no.  Aail 
It  was  absolutely  necessary  in  this  case,  be- 
cause of  tlie  contrariety  of  the  witocasea;  for 
the  first  witness  said,  there  were  no  Frndi- 
men  aboard;  the  next  saidy  there  were  two 
Frenchmen  and  a  Dutchman ;  and  Critteadca 
said  there  were  thirteen.  Now  hbir  can  tbsR 
be  reconciled,  unless  there  bad  been  a  lejpd  or- 
amination  of  the  parties  ?  But  the  tbug  we 
would  chiefly  go  on  is  this ;  1  think  tbey  hafc 
failed  in  the  foundation  of  the  treason ;  thstiit 
to  prove  the  prisoner  a  subject  of  this  crowa; 
neither  is  there  the  least  colour  of  proof  there- 
of. At  night  he  came  to  Mr.  Crittenden,  lad 
is  in  drink  ;  there  lie  says  he  is  an  Irishnta: 
the  next  morning,  when  he  is  examined  before 
the  justices,  then  he  comes  in  a  kind  of  JBi%- 
ment,  and  then  such  a  confession  would  be  of 
moment ;  but  then  he  confesses  himself  to  be 
a  Frenchman  of  Blartenioo.  Now,  my  bod, 
what  credit  is  to  be  given  to  these  confessioaB; 
when  before  the  marshal  he  shall  say,  I  am  aa 
Irishman ;  and  the  next  day,  when  he  is  oa 
examination,  he  declares  hiniselfaFrcnchflHo; 
in  one  confession  he  is  in  drink,  in  tbe.elher 
sober  ?  Now,  my  lord,  I  say,  what  proof  ii 
here?  Here  then  the  foundation  of  the  trason 
fails :  for  the  indictment  is,  '  That  he  beiaga 
subject  of  the  kin^  of  fincland,  let ics  war.' 
Now,  my  lord,  if  this  quality  be  not  proved,  sU 
the  rest  of  the  indictment  falls  to  the  grouDd : 
for  it  is  impossible  for  him  to  commit  treason, 
where  he  is  not  a  subject ;  because  there  can  be 
no  violation  of  allegiance.  So  that  if  be  bei 
Frenchman,  as  he  declared  befoi:e  the  justicei, 
he  cannot  be  guilty  of  treason.  $:»  tlist  bere 
they  have  fail^  in  the  foundation  of  all ;  thit 
is,  to  prove  him  a  subject  of  £ngland.  And 
because  they  affirm  him  to  be  so,  it  lies  onthoie 
tliat  affirm  it  to  prove  it.  But  perhaps,  w* 
they  will  say,  that  these  little  c(»ufes!Hona  of 
his  will  throw  the  burden  of  proof  uu  biiB. 
l\y  no  means  ;  when  here  is  a  stronger  pre- 
sumption on  the  other  side,  a  mere  extrajodicial 
j  saying  to  seamen,  that  he  is  an  Iriahraau,  csa- 
I  not  balance  his  confession  cxamineil  before  the 
justices,  wherein  he  says  lie  is  a  Frencbman; 
and  so  can  never  throw  the  burden  of  proof  oo 
him.  Therefore  it  lies  on  them  that  9iseti  tbii 
I  to  prove  it.  But,  my  lord,  though  itidoth  w^ 
tie  on  him,  yet  we  will  prove  him  to  be  o 


Frenchman,  and  born  at  il^Iartenico,  by  IboM 
that  were  at  the  christening  of  bim,  and  hsfi 
known  hiia  from  time  to  time  ever 


known  hiia  from  time  to  time  ever  since.  ^  id 
because  tliey  say  he  can  speak  Enelisb,  if  tM 
please  to  e3ainnne  him,  you  shaU  hear  bi 
speak  natural  French  ;  so  that  that  CHMl 
prove  him  to  be  a  natural  Irishman. 

Mr.  Phipps.  8uch  a  saying  of  a  faNfgll 
will  be  of  no  great  weight;  IwGaaae^lf  nM 

St  into  a  foreign  country,  ho  .mUf  flQF  P^ 
at  countiy man  to  get  the  more  mpil  ^ 


J5r  High  Treason  on  the  High  Seas, 

r.   What,  to  hanff  himself? 

ipfis.  No,  my  lora  ;  a  man  that  comes 


A.  D.  1696. 


[510 


inge  ooantry,  may  very  well  think  he 
better  mage,  by  pretending  to  be  of 
try,  than  by  owning  himst'lf  to  be  a 
But  we  will  prove  Vaughan  to  be  a 
in.  Call  Robert  French.  (Tbeii 
-ench  was  sworn.)  Mr.  French,  pray 
*otirt  and  jury  an  account,  whether 
'  Mr.  Vaughan  the  prisoner  at  the  bar, 
long  you  nave  known  him,  and  what 
lan  you  take  him  to  be,  and  the  reason 

.    I  have  known  him  this  fourteen 

lipfs.  Where  did  you  see  him  then  ? 
.  i  saw  hiiti  in  Saint  Christophers. 
iippt.  Pray  give  an  account  bow  you 
now  him. 

.  About  siiteen  years  ago  I  was  at 
irat,  and  1  came  to  St.  Christophers, 
e  I  chanced  to  come  into  £nglish 
aiiiong  the  factors ;  and  so  they 
30  to  the  French  ground ;  and  coming 
A-as  in  company  with  several  others 

i,  and  it  happened  1  was  told  there 
Ir.  Tauj^an  there ;    and  1  coming 
d  with  him,  he  she%Ted  me  this  youth 
I  youth  then) :  he  told  me  he  was  his 
recommended  him  to  me,  because  he 
me  to  be  a  man  in  trust  and  business. 
lippf.   From  that  time  what  has  he 
ImI  ? — French,  A  sea-faring  man. 
rippt.  But  what  conntr^rman  ? 
:.  To  be  born  in  Martenico. 
iipps.  In  whose  dominions  is  that  ? 
.  In  the  French  king's  dominion. 
urton.    What  occasion  had  yon  to 
of  the  place  of  his  birth  ? 
.  Because  his  father  was  looked  upon 
renchman. 

\irton.  His  father  was  a  Ft^enchmati  ? 
.   Yes,  my  lord,  and  lived  at  Bfai-te- 

'toper.   How  old  might  he  be  at  that 
French.  About  fifteen  or  sixteen. 
uper.  How  came  you  to  be  talking  of 
and  with  wliom  ? 

I.  One  that  was  talking  with  me  told 
ame  was  Vaughan,  and  that  he  was 
e. 

'4»per.    What  introduced   this  dis- 
How  came  he  to  tell  you  thb,  that  he 
in  that  place  ? 
i.  Hia  father  told  me  so. 
"omper.    You   were   talking   of  one 
of  nis  same :  how  many  were  in  corn- 
ea there  was  this  talk? 
I.  There  were  many  of  them. 
mper.  Name  them. 
i.  It  is  so  kmg  ago  1  cannot  remember 

9wper,   Name  as  many  as  you  can  of 
Biaay  u  yon  do  remember 
L  OfisNr.  Bodiken,  a  factor. 
Ibpcr.  Who  eke  f 
l.^itinluthfif. 


Mr.  Ca»per,  You  named  one  Vaughan  be- 
fore.— French.  Yes,  1  did. 

Mr.  Ctnt^per.    But  you  had  foigot  him  now. 

French.  No;  there  was  one  Vaughan. 

L.  C.  J.  Were  therv  any  more? 

French.  Yes,  there  was;  1  remember  the 
company  that  went  along  with  me. 

L.C.J.  Who  were  they? 

French.  There  were  several  passengers  that 
went  over  with  me. 

L.  C.  J.  How  came  you  to  talk  of  this  man'i 
nativity  P 

French.  Because  his  father  said,  he  had  not 
been  ont  of  the  island  m  20  years.  (At  which 
the  people  laughed.) 

Mr.  Cowper.  Wh^t  dhice  was  this  discount 
in?— PrtfncA.  At  St.  Christophers. 

Mr.  Cowper.  How  did  his  father's  saymg, 
he  had  not  been  out  of  that  island  in  %0  years, 
prove  his  son  was  horn  Uiere  ? 

French.  Because  he  recommended  him  to 
me  as  a  sea-taring  man. 

Mr.  Cowper.  What  is  that  a  reason  of?  What 
is  that  to  his  being  liom  at  Martenico? 

J  ustice  Ikrton.  What  countryman  ate  yon  ? 

French.  I  am  an  Irishman  bom. 

L.  C.  J.  His  fatlier  aoknowledged  himsolf  to 
1)0  an  Irishman  liom,  did  he  not? 

French.  No,  my  lord,  he  did  not  say  whera 
he  was  born :  I  do  not  know. 

Justice  Ikirton.  Have  you  continued  any 
acquaintance  with  Mr.  Vaughan  since  ?  How 
long  did  you  sta^r  at  St.  Christophers  ? 

French.  I  staid  but  31  hours,  to  take  in 
water. 

L.  C.  J.  How  long  was  it  after  this,  before 
you  saw  this  gentleman,  captain  Vaughan  ? 

French.  J  never  saw  him  since,  till  I  saW 
him  in  London.    ^  (Then  the  people  laughed.) 

L.  C.  J.  Pray,'  gentlemen,  have  patience. 
How  do  you  know  now,  that  this  is  the  same 
man  that  you  saw  ]  4  years  ago  ?  for  there  must 
be  a  great  alteration  in  a  man  in  14  years  time, 
from  what  was  at  that  time,  being  but  15  yeara 
of  age. 

French.  I  believe  in  my  conscience  thb  it 
the  man. 

L.  C.  J.  Can  you  take  it  upon  your  oatli  he 
is  the  man  ? 

liar.  Powis.  In  what  language  had  you  the 
discourse  ? 

L.  C.  J.  How  long  were  you  in  company 
with  him  and  his  father  ? 

French.  I  believe  five  Or  six  hours. 

Bar.  Powis.  In  what  language  was  this  dis* 
course  with  his  father  ? 

French.  My  k>rd,  he  spoke  Englbb,  a  sort 
of  liroken  English. 

L.  C.  /.  wliere  do  you  live  younelf  ? 

French.  I  live  in  Ireland. 

L.  C.  J.  How  long  have  you  lived  there  ? 

French.  Nine  or  ten  years. 

L.  C.  J.  Whereabout  in  Ireland? 

French.  In  Connaught. 

L.  C.  J.  Nine  or  ten  years? 

JVciif*.  Yes,  my  Lord. 

Dr.  LiitUton,  bid  not  captain  Vadghtif, 


511] 


8  WILLIAM  in. 


Triat  of  Captain  nomas  t'augka 


[»1| 


l»or  his  fatbeff  speak  Irish  to  you  in  that  mx  \ 
iiours? — Frfnch.  No,  my  loriK 

Just*  Turt0n^  How  loa^  ha%'e  you  been  in 
Ei^and  P — JYcMck,  Nol  atioie  two  tnoolhs. 

Just.  TurtvH.    Did    ydb  bear   of  taptaln 
^au^ban  being  to  be  trieil^ 

Ft^nch,  No,  my  brd* 

Just.  JWrlon«  lluMT  d^d  be  come  to  hear  of 
you,  IheQ.' — Frtneh,    I  heard  be  wasiti  town. 

L.  C,  J.  ft  is  a  strange  tbin^ ;  you  have  a 
most  admirable  memory,  and  captaiu  Vaa^ban 
tiaa  as  goin\  a  jiiemory  as  yoti ;  tliat  yoa  should 
iierer  huve  any  intercoai-ie  fur  14  Vfars,  and 
yet  abould  remember  one  anoiht* r  atVr  so  long 
a  time.  It  h  a  wonderful  ibin^  too,  that  when 
be  could  ijot  know  you  were  io  town,  yet  he 
should  caH  you  a  witness  on  hU  behalf;  ^ure 
he  muiit  have  the  spirit  of  prophecy, 

French,  He  did  nol  sieod  to  me  at  ell. 

JL.  C  X  How  did  you  come  to  be  here, 
ibenP 

French.  I  wilt  tell  you.  It  was  my  custom 
always  to  go  and  see  prisoners  i  and  f  heard 
there  were  prisoners  in  Newgale ;  so  I  went  to 
Kewgate,  and  I  met  w  ith  one  Dwall ;  and  I 
liskt'd  biin  of  anutber  gentleman  tliat  was 
iJiere  ;  and  I  went  to  the  other  fiide  by  chance, 
iAOd  I  met  with  captain  Yau(;ban. 

X.  C.  J.  What  was  iJiy  design?  Why  didst 
thou  visit  Newgate  ? 

FrencA-  Because  it  was  my  custom,  because 
it  was  an  act  of  charity. 

L,  C.  J.  IMd  you  go  to  Newgate  out  of 
tthartty  ? 

French.  I  went  to  sec  my  friend,  and  carried 
a  letter  to  liim.     I  went  out  of  charity, 

Mr.  Phippt.  You  were  in  the  VVeiit- Indies, 
upon  (bu,  French  ground  ;  t\o  uot  they  speak 
hnglhh  on  the  French  ground,  and  Freucli 
on  ibe  Engtish  grfmnd? — French.  Yes. 

Mr.  Cowpcr,  So  they  do  here.  Did  yon 
ever  ttee  capiaiii  Vaugbao  before  Ibat  time  ? 

French.  No. 

Mr.  Whitaker,  Did  you  visit  lately  any 
Other  prisoners  in  Newgate,  besides  captain 
\' a  ugb  nn  ? — French .  \'  tt* . 

Mr,  Whttaket\   Give  iheir  names, 

French*  I  have  risited  Mr.  Noland,  and  ano- 
ther {^ndeman  lh:it  i^  ^itb  him  ;  and  I  went 
Into  the  house,  and  drank  with  him  tlierc. 

Mr.  Whttakcr.  What  is  that  other  gentle- 
man's uame  f 

French,  I  do  not  remember  his  name  at 
uresent ;  but  be  is  a  companion  of  Mr.  No- 
land's. 

Mr.  Whitakcr,  Do  vou  know  hloi  if  you 
fee  him  ? — French  .1,1  won  Id . 

L.  C.  J.  Treb^,  How  long  hare  you  been 
Id  England? 

French.    But  two  months. 

L,  C,  J.  Trebj^.  Have  you  usually  visited 
prisoners  in  former  years  ? 

French,  My  lord,  wherever  1  hare  been  it 
vraa  my  cu6tOQ>  to  do  so. 

h,  C.  J.  T^eby,  But  how  doth  it  consist  that 
you*  who  are  an  Irishman,  should  come  hither 
ti  risit  j^nsoneri  in  Ntwgate  ? 


French,  t  can  pro?e  ander  my  lotd  may  of* 
of  Dublin*s  horui   umi  i  r:^,^,..  hf.ri-  upon* 
nt'ss;    and   I    •  tj  visit  thtf 

prisoners  for  ci.  id  tieitow  i| 

according  as  I  was  sbir 

L,  L\  X   You  bad  best  at^  iliere,  m4o«l^ 
go  away ;  for  we  may  ha?e  occosioo  to 
you  some  questions. 

Mr.  Cotppcr.  D*i  you  not  ate,  ootofchtrfly^ 
to  be  evidence  for  them  ? 

French.   No,  neitr  *  ''  ;      *ife, 

Mr.  Whitaker,  W  I  vsha^«y«<l 

visited  bt^itles  Newoate: 

French.  I  did  visit  none. 

L.  C\  J.  Trchy.    Hud  you  no  charity  frif 
other  prisons? 

Bar.  Poet'ii.  When  youaovlsil  piiw^nt  n» 
what  account  is  itf  Is  ittogivegbosi 

French.  Upon  a  charitaUeaccoum, 

X.  C.  J.  Ghostly  adrict  and  charity. 

Mr,  Fhipps.  Where  is  Mr.   hrHeur  ?  fHc 
did  not  a|ipear.)  Call  Mr.  Gold,  f  ^ 

CI.  uj  Arr.  That  man  is  ati 
doned. 

Mr.  Fhipfi.  Mr,  Gold,  Iiow  long  have  jou 
known  captain  Vuughan  f 

Mr.   Gold.    I    ncrer  knew  Mr.  FiOgblife 
before  I  saiv  him  in  tlie  Mwshalsca* 

Mr.  Phippt.  Is  AioDsieur  LeHenr  here?  Il 
>Ir.  Deberty  here  T 

{Mr 


Mr. 


Deberty  appeared,  and  was  sworn.) 
Phippi.  Do  you  know  'Mr,  VRUglaOt 


the  prisoner  at  the  W?— UcArrly.  Y'es^ 

Mr.  Phippit.  How luny:  h^veyou  kno^vo him? 

DchcHy,  rive\e»r&. 

lUr.  Phtpfi,  ^liot  has  be  been  reputed  til 
along,  since  you  have  kno\rn  him. 

Dchcrty.  A  French m*m. 

Mr.  Phippt.  Did  you  know  him  in  Fnuiocr 

Dcherty.    Yes;    and    he  was    reputed 
Frenchman  there. 

Just  Turtojw  What  occasion  had  you  td' 
oucmtre  into  that,  tlie  place  of  Ms  nadvity  f 

Deherty.  I  did  not  euquire  at  all ;    but 
that  was  bis  servant  was  my  commde  a 
while. 

Mr.  Phipps.  Now  we  will  prove 
was  christened f  by  one  that  wa^  ai  In 
ingf  Mr.  Dascine.    (Be  appe&red  aad&i 
being  sworn,  and  spoke  in  French  to  the 
pretending  he  could  uot  sfieak  English.) 

L,  C-  X  If  he  cannot  speak  Htiglish, 
must  be  an  interpreter* 

SoL  Gen.  They  must  find  an  interpreter,  be 
is  their  witness. 

[Then  a  person  in  court  stood  up,  nnd  toll 
the  court  be  could  Hpetik  Kn^lish  as  well  us  he  J 
that  he  had  been  a  Bailiif^s  ioUower  for ; 
years.] 

X.  C,  /.  You  can  speak  Bngliib,  can  yoi| 
uot? 

Dfiscin^.  I  will  speak  as  tvell  as  I  can. 

King^s  Mcjienger,  I  am  a  messeuger  to  tb«  | 
king,  do  vou  know  me? — Dascine^  les, 

£.  C.  3t  Prithee  speak  English, 


Jmr  High  Trmuom  mi  tke  Higk  Seas. 


A.  D.  1698. 


[514 


A  ifl  wcU  M  i  oan,  My  Iwd,  1  wMl 

ic.  Vm^  my  hri. 

kipp».  Dq  7«i  know  ctptain  Vaufrhtn  ? 
le.  la  ia60 1 WM  in^.  Cliristophen  ? 
mm  Rmu,  and  froni  tbenoe  I  went 
I  mad  doth  to  Crebeck,  and  had  a 
•na  TliaMaa  WiNiama,  a  factor  in 
a.  And  ater  I  had  done,  ai  I  was 
ivw,  Mr.  WilUaina  devired  me  to 
chrjalMiiiHr*  •  mile  and  a  balf  from 
iraL  He  toM  me  there  wai  one  Mr. 
I  had  a  fdantation  there,  and  desired 
be  godfather.  And  about  two  days 
went  from  Port-Royal  to  St.  Chrieto- 
ain.  and  I  cane  to  Roan  ai^aui  in  a 
ed  tik.  Joseph.  So  in  1077, 1  went  to 
itophers  a^in,  and  from  iheuce  to 
!0,  to  Mr.  Williams;  I  asked  him, 
beooBie  of  that  yeunf  man  we  were  at 
rteoinr?  aod  so  be  shewed  me  bim 
ire  (pomting  to  the  prisoner). 
J.  That  was  in  1677? 
«€.  In  1677.  So  I  came  from  Fort- 
I  went  to  St.  Christophers^  and  so 
,  and  came  to  France  again.  And  13 
9 1  weBtto  Sl  Christophers  again,  and 
itsent  and  Haitenieo ;  and  so  when  I 
llartonico,  and  asked  Mr.  Williams  of 
D^  man,  that  I  was  at  his  cliristening, 
lid,  be  k  at  aocb  an  bouse,  and  I  saw 
re. 

/.  Thirteen  years  ago. 
ne.  And  we  went  and  drank  pouch 
;  and  1  came  back  for  Roau. 
/.  When  did  yun  see  bim  since  that  ? 
me,    Nerer  till    1   saw  bim    here    a 

J.  How  do  you  know  he  is  the  man  P 
ne.  He  has  a  bruise  in  his  side. 
Vkippt.   What  was   tlie  gentleman's 
t  tiie  christening  of  whose  cbiki  you 
•Daacine  Thomas  Vaugban. 
^Aippt.  What  was  tlie  child's  name  f 
ne.  Thomas  Vaugban. 
*kipp$.  When  you  went  the  next  time 
snico,  did  Mr.  vViiyams,  you  speak  of, 
I  tlie  godfather,  present  this  person, 
Vaugban,  to  you,  as  the  man  wno  was 
•isteoed? 

se.  Yes,  the  next  time. 
'fkippi.  Now,  is  captain  Vangban  that 
L  the  bar,  that  very  genilemsu  ? 
me.  I  am  sure  it  is  he. 
J.  You  say  thb  meeting  was  about 
-jDusriae.  I^es. 

irca.  Pray  what  was  the  reason  you 
inquisitive  to  know  what  became  of 
Km  that  was  christened  when  you  was 

me.  Because  I  being  at  the  christening, 

bim  bow  the  child  £d. 

/.  How  came  you  to  tal^e  such  extra- 

r  ofascmtion  ot  that  child  ?    Was  he 

vmaikable  child  ? 

fflSBlMs.  Wber^  were  you  born? 

s.  XIII. 


Datdng.  In  France. 

Mr.  Wkiiaker.  What  are  you  > 

DBtcine,  A  barber  bv  trade. 

L.  C,  J,  What  employment  have  yoir  ? 

Doeciue.  An  officer  in  the  Marshal's  oomt 
sometimes. 

Justice  I^rfoa.  What  was  this  man's  fathePy 
what  sort  o^  man  was  be? 

Dateine,  A  tall  man. 

Baron  Pu»ii,  Whatwas  hisfiitber'snameP 

DoMcime.  Thomas  Vaugban. 

Justice  Turtan.  Was  his  father  living  when 
you  was  there  the  second  time  ? 

Daeeine,  The  last  time  I  was  there  I  did  not 
see  bis  lather,  but  I  saw  his  father  the  second 
time. 

Justice  ZVif /oa.  But  you  saw  Mr.  Williams 
his  godfather.— -Daictfie.  Yes. 

Mr.  Pkipps.  Call  Simon  Danneaun. 

Vaughan.  My  lord,  be  is  sick,  and  not  aUo 
to  come  out  of  his  lied. 

Mr.  Fhipps.  Call  Francis  Harvey.  (Who 
was  sworn.) 

Mr.  Phippi.  Do  yoo  know  captain  Vaugbaa  ? 

Harvey.  Sir,  in  the  year  1693,  I  was  in 
France  with  one  captain  Bontee,  who  was 
taken  prisoner  in  August  the  same  year ;  and 
my  captain  he  had  the  liberty  to  go  up  to  Paris 
with  a  guard,  for  his  pleasure,  and  to  learn  the 
speech.  And,  as  it  happened,  we  came  to 
lodge  in  a  street,  called  Dolphin  street,  at  the 
sign  of  the  Crown  ;  and  there  was  some  gen- 
tlemen that  were  there  to  learn  the  speech, 
that  were  my  countrymen ;  and  there  was  a 
young  man  there,  and  he  was  acquainted  over 
the  way,  where  this  gentleman,  captain 
Vaughan,  lodged ;  he  lodged  at  his  aunt's  that 
sokl  silks  ;  her  name  was  madam  Wotfon ;  I 
saw  this  gentleman  there ;  I  am  sure  it  is  he ; 
and  with  that  I  came  acquainted  with  him,  as 
well  as  the  rest 

Mr.  Phipp§,  What  was  he  reputed  there  P 

Harvey,  A  captain  of  a  ship. 

Mr.  Phippt.  What  did  he  go  for  there  ?  A 
Frenchman,  or  an  Englishman,  or  an  Irish- 
man ? 

Harvey,  He  went  for  a  Frenchman,  as  I 
beard ;  one  time  his  aunt,  she  said,  that  he 
was  bom  in  the  West  Indies,  at  Martenico, 
and  that  he  was  her  sister'^  son,  that  lived  iu 
Martenico. 

Sol.  G^in,  You  say  be  u as  a  captain  of  a 
ship?  what  ship? 

Harvey.  That  I  cannot  tell. 

Sol.  Gen,  When  was  that? 

Harvey.  In  1693. 

Mr.  P'hipps.  Is  Mr.  Letleur  here? 

CI.  of'Ar.  He  is  a  prisouer  in  the  Kavoy ;  he 
was  taken  in  the  same  ship  with  Mr.  Vaughan. 
.  Mr.  Phipps.  It  is  reasonable  he  should  hnve 
been  here,  to  give  an  account  of  the  prisoncir. 

L.  C.  J.  Then  they  should  have  token  rnre 
to  have  had  biiu  here.  Have  you  any  more 
witnetwes  ? 

Sol,  Gen,  I  think  we  have  given  suificiept 
evidence  tliat  he  is  an  Irisdimau :  But  now  we 
shall  shew  you*  that  all  your  witoenas  hs^e 

SL 


315] 


S  WILLIAM  in.  Trial  qfCapimn  Thanuu  Fai^JfaM,  [5U 


Siren  a  ?ary  extravagant  evidence  to  prove 
lat  he  is  a  rrenchroan.  All  he  hoped  for  was, 
that  the  prosecutors  for  the  king  could  not  be 
able  to  prove  him  an  Irishman ;  he  believed 
there  were  but  three  men  conld  prove  him  so ; 
that  was  David  Creairh,  and  two  more ;  and 
so  be  writes  to  David  Creagh,  and  tells  him, 
That  liis  life  was  in  his  power,  and  he  hoped 
he  and  the  other  two  wonld  not  discover  it. 
This  David  Creagh  was  his  neighbour  in  Ire- 
land ;  we  will  oallhim  to  prove  that  cantain 
Vaoghan  was  born  at  Galloway  in  Irdana. 

Mr.  WMtaker,  And  here  is  his  letter  under 
bis  hand.  Bring  David  Creagh.  (Who  was 
■worn.) 

Mr.  Cowptr,  1  desire,  before  he  give  his 
evidence,  he  mav  look  upon  those  that  have 
given  evidence  aoout  the  prisoner,  one  by  one. 
(Then  he  looked  upon  Robert  French.)  Mr. 
Creagh,  do  you  know  him. 

Creagh.  No.  (Then  he  looked  upon  the 
rest^ 

Mr.  Cowptr,  Have  you  had  any  of  these 
men  come  to  you  on  a  message  f 

Creagh.  No,  Sir. 

Sol.  Gen.  Do  you  know  Thomas  Vaughan, 
the  priwner  at  the  bar?— CreagA.   Yes,  I  do. 

Sol.  Gen.   How  long  have  you  known  him  ? 

Creagh.  About  two  years. 

Sol.  Gen.  Waa  that  your  first  acquaintance 
with  him  ?^Crcagh.  Yes. 

SjI.  Gen.  What  place  was  he  bom  at,  as  you 
have  heard  ? 

Creagh.  At  Galloway  in  Ireland. 

Sal.  Gen.  From  whom  did  vouhear  it? 

Creagh.  From  all  |)ersons  that  I  have  heard 
speak  of  him. 

Sol.  Gen.  Did  he  ever  own  to  you  that  he 
was  born  there  ? 

Creagh.  Yes,  uftentiraes  in  my  company. 

Soi.  Gen.  Did  ^oii  ever  receive  a  letter  Irom 
him  abuut your  i^ivini^  evidence  in  this  matter? 

Creagh' Yes,  Hir. 

Sol.  Gen.  I>o  you  know  this  letter?  (Which 
was  shewn  him.) — Creagh.  Yes,  Sir. 

Sol.  Gen    Do  you  kn»w  his  hand  ? 

Creagh.  Yes,  1  partly  know  it. 

Mr.  Whiiukcr.  Did  you  ever  see  him  write? 

Creagh.  This  is  tlic  letter  I  received  from 
him. 

L.  C.  J.  Read  it.  Do  you  think  it  is  bis 
hand? 

Creatih.  I  cannot  swear  it ;  but  1  l>elieve  it 
is  his  hand. 

Mr.  Fhippt.  Have  you  seen  him  write? 

Creagh.  I  have  seen  him  write  several 
times. 

L.  C.  J.  Do  you  believe  it  is  his  hand  ? 

Creagh.  Yes,  my  lord,  but  1  cannot  swear  it. 
[Then  the  Letter  was  reail.] 

To  Mr.  David  Creasfh,  in  Newgate,  These. 
"  Mr.  Creagh ; 

<»  I  have  some  assurance  that  Mr.  Whitaker 
has  no  witness  to  prove  me  a  subject  of  £ng  • 
land,  but  yon,  and  two  more,  which  1  am  glad 
•f  with  all  my  heart :  I  hope  I  may  bare  none 


against  me  that  wiah  mt  wmiltn  wi  id! 
captain  Etherington.  If  Mr.  WhUmr  ha 
not  sworn  you  yet,  I  hope  you  will  dM  appeal 

r'nst  me.  1  'declare,  if  I  had  mora  thn  oi| 
,  I  would  ley  it  in  vonr  band.  1  am  Kks  tt 
be  sent  to  Newgate  this  day,  anl  it  k  Kht  yes 
and  some  more  will  be  sent  bere,  thai  w  mij 
not  talk  together.  The  Dutch  diiga  toak  finmi 
me  eleven  hundred  dollaia  in  monen 
certainly  troubles  me  more  than  the ' 
of  death,  which  I  value  not  a  straw;  but  I  f 
in  four  or  five  days  to  he  supplied.  1  ftar  Ih^ 
will  keep  me  close.  I  have  all  tht  VSkKlj 
imaginable  here  to  write,  and  my  firieods  m* 
fered  to  see  me.  I  can  ny  nothing  tUl  ii 
comfortable,  bnt  that  I  am  very  well  in  heitt, 
and  nothing  concerned,  if  my  money  oonaia 
time.  T.  TAOOBai." 

Friday  morning. 

Mr.  P^ippt.  Is  that  letter  praredf  Tkth 
not  to  the  purpose ;  nor  of  any  wrighti  0M« 
dering  who  proves  it. 

L.  C.  J.  No,  that  none  could  prait  Im  i 
subject,  hut  he  and  two  umnv  ? 

Sol.  Gen.  We  will  produce  only  one  vilHil 
more.  "Call  Mr.  J.  Rivet.— [The  cont  knf 
informed  by  some  gentlemen  then  m  m 
benib,  that  there  waa  a  gentleman  tha  k 
court,  one  Mr.  Rivet,  who  being  of  Galiovift 
could  probably  give  some  account  of  the  pn- 
soner ;  he  waa  immeiliately  caUed#  and  it* 
quired  to  depose  what  be  knew.] 

Rivet.  My  lord,  I  am  aurry  1  am  cdled 
where  life  is  concerned,  when  1  came  bilhcr 
only  egt  of  curiosity ;  but  the  service  I  owe  10 
this  government,  obliges  me  to  speak  what  I 
know,  now  I  am  calletl  to  it  [Then  he  wan 
sworn.] 

Sol.  Gen.  Do  you  know  the  prisoner  at  Ike 
bar?    What  countryman  is  he? 

Rivei.  1  have  known  him  n  great  mny 
years ;  we  were  children  together  in  the  Miaa 
town;  we  livetl  in  Galloway  in  Ireland.  I 
knew  his  fatlier,  and  mother,  and  brothen,  aad 
sisters ;  and  I  remember  him  a  child,  as  l«eg 
as  I  can  remember  any  thinf^,  1  cannot  deter- 
mine to  a  certain  pumoer  ot  vears;  and  1  R- 
memlier  him  not  only  a  school  boy,  but  alfsta 
apprentice  to  one  Mr.  Coleman.  And  I  wosdtf 
very  uiucb  at  what  Mr.  French  say s,  for  kj 
,  he  must  hilt 


the  name  and  place  of  his  birth, 

sworn  what  he  knows  to  be  otherwise;  ftrtht 


married  a  woman,  a  native  of  Oalbway,  9m 
had  several  children, one  of  h hich,  iu  the  IMV 
end  of  kin$|f  Charles's  reign,  turned  PapHli  tfi 
I  believe  thi'  ^rrict'  for  it  hastened  iiis  ftiMP 
dcatb.  I  own  part  of  the  evidence  miy  ll 
true,  about  his  lieing  in  the  West  lndim>  hjj 
his  mother,  1  believe,  was  never  out  of  ItHtd 
in  her  lite. 

Dr.  Oldish.  What  was  his  father's  naimr 

Rij?ei.  John. 

I.C.J.  You  say,  you  knew  tbiifuryf*' 


JifHi^  TreoMon  tm  the  High  Seas. 


A.  D.  1^96. 


[518 


to  one  Thomas  Coleman 


1  did  so,  my  kwd. 
r.   How  lonijf  is  it  since  you  saw  him  ? 

1  cannot  be  positiFe,  1  think  at  the 
I  of' GUtoway  m  1601.  1  cannot  say 
It  or  after ;  liut  I  saw  him  .about  that 

knew  him,  and  hare  known  him  from 

I  knew  him  a  school  boy,  and  knew 

en. 

I  Ikrtam.    What  year  did  yon  know 

I  dare  not  be  positiTe ;  I  remember 
icnlarty  well. 
f.  Are  you  sore  this  is  the  man  ? 

I  know  him  as  well  as  any  face  I 
1  came  accidentally  into  court  out 
ity ;  and  one  that  knew  me,  that  was 
ray,  gave  an  account  to  the  king's 
ind  so  I  am  called  to  give  evidence. 
r.  Do  you  know  this  Robert  French  ? 

I  cannot  say  I  know  him,  for  1  see 
in  the  dark ;  if  1  saw  him  in  a  better 
nay  be  I  may.    (Then  Robert  French 
p  ror  Mr.  Rivet  to  see  him.)    I  think  1 
the  face,  1  am  not  certain. 
f.  Do  you  know  this  gentleman  ? 
k.  No,  my  lord. 
/.  Where  did  you  live? 
k.  In  Connaugbt. 

/.  Did  you  know  Joim  Vaughan  or 
f? 

i.  I  have  heard  of  him,  my  lord. 
Powii.  What  trade  was  the  prisoner's 

He  had  the  market  several  years ; 
rery  well,  and  kept  a  public  house  in 

iUfpt.    iMd  you  know  any  other  Tho- 
^an  but  this  ? 
L  No,  not  in  Galloway. 
This  may  be  a  confirmation  of  what 
'  it  be  the  same  gentleman,  his  hair  is 


f.    Pull  off  his  peruke.    (Which  was 

in.  My  hair  is  not  red. 

1  How  are  his  eye  brows  ? 

in.  A  dark  brown,  my  lord,  the  same 

Femii,  Let  somebody  look  on  it  more 
•ly.  (Then  an  officer  took  a  candle, 
ed  on  bis  head,  but  it  was  shaved  so 
colour  could  not  be  discerned.) 
Ujpps.  We  can  give  an  answer  to  this, 
we  shall  prove  that  there  was  one 
Bghan  at  Galloway,  and  he  had  a 
only  that  died  ten  years  ago.  As  for 
Et,  ho  is  a  mere  stranger  to  us,  we 
thing  of  him ;  and,  by  what  I  can 
be  comes  in  as  a  volunteer,  not  sub- 
j  cither  side.  And  for  Mr.  Creagh, 
ibew  be  is  not  to  be  credited  in  any 
ft  we  shall  prove  him  guilty  of  fek)ny, 
be  swore,  that  if  his  brother  would 
y  him  with  money,  he  would  swear 
piHC  kiiDi  aod  silop  him  IB  Newgate, 


and  that  he  should  not  come  out  till  he  came 
upon  a  sledge ;  and  if  so,  there  is  nobody  sure- 
ly can  believe  he  will  stick  at  perjury  or  for- 
gery, or  any  thing  else  which  may  be  for  bis 
advantage.    Call  Mr.  Chistopher  Creagh. 

[Who  was  sworn.] 

Mr.  Phipps,  Pray  do  you  know  David 
Creagh  ?— C.  Creagh,  Yes. 

Mr.  Phipps,  Is  he  any  relation  to  you  ? 

C.  Creagh.  Yes,  he  is  my  brother. 

Mr.  Phipps,  Give  the  court  and  the  jury  an 
account  what  you  know  of  your  brother  f 

C.  Creagh.  It  is  an  unnatural  thing  to  come 
on  this  occasion,  and  1  am  sorry  I  am  called 
upon  this  account. 

D,  Creagh.  Speak  what  you  have  to  say  ? 
Mr.  Phipps.   What  do  you  know  of  yoor 

brother,  whether  you  have  not  found  him 
guilty  of  stealing  any  thing? 

C.  Creagh.  My  lord,  I  am  upon  my  oath  ; 
I  have  known  something  of  it,  he  has  stolen 
some  gold  from  me. 

L.  C.  J.  You  pretend  to  be  so  very  nice ; 
you  are  to  answer  to  what  vuu  know  of  his 
reputation  in  general,  and  of  liis  way  of  living. 

C.  Creagh.  His  reputation  bas  been  but  very 
slender,  I  am  very  sorry  for  it ;  several  in  the 
court  can  g^ve  account  of  it,  as  well  as  I.  He 
seryed  a  relation  of  his  at  Newcastle ;  he  serv- 
ed there  some  time,  and  came  to  town,  and 
came  to  me,  and  depended  upon  me,  and  I 
subsisted  him ;  and  he  took  an  opportunity  one 
day,  when  1  and  my  wife  were  ^one  abroad, 
and  nobody  at  home  but  the  maid,  and  went 
up  stairs,  where  mjr  wife^s  room  is,  and 
there  bein^  a  sash  window,  he  opens  it,  and 
took  out  ot  my  wife's  closet  several  pieces  of 
gold. 

L.  C.  J.   How  did  you  know  that  lie  did  it  ? 

C.  Creagh.  I  found  it  out  aUerwards ;  he 
was  my  brotlier,  and  therefore  I  did  not  pro- 
secute him.  I  did  not  know  he  had  it,  till 
altcrwanis  that  I  found  to  whom  he  had  dis- 
posed of  the  gold.  1  inquired  who  was  in  the 
house,  and  thought  the  maid  had  it :  and  she 
said  none  had  b^n  there  but  my  brother;  and 
he  at  last  owned  the  fact,  and  1  had  it  again. 

L.  C.  J.  Have  you  any  more  to  say  of  your 
brother  P 

Mr.  Phipps.  Did  he  ever  threaten  to  swear 
against  you? — Vaushan.  Or  me? 

C.  Creagh.  He  lias  been  confined  in  New- 
gate 18  months,  and  I  subsisted  him  in  chari- 
ty ;  1  allowed  him  all  along ;  and  he  has  been 
sending  to  me  by  several  messages,  that  if  1 
Bulisisted  him  not  with  more  money  than  I  did 
allow  him,  he  would  swear  me  into  a  plot. 

L.C.J.  Did  he  tell  you  so? 

C.  Creagh.  No,  but  he  sent  me  word  so. 

L.  C.  J.  Is  the  man  here  that  he  sent  this 
wonl  bv  ? 

C.  Creagh.  Yes,  the  man  is  here. 

Mr.  Phipps.  Let  him  stand  up. 

L.  C.  J.  Where  do  you  live  ? 

C.  Creugh.  In  Wathng-street ;  I  am  a  mer- 
chant ;  I  declare  it  is  not  in  favour  or  aflcc- 
tion,  but  only  in  conidciice,  that  I  declare  this. 


hMllMia 


Tul 


C.  Crtogh,  Hi*  M  H,  \mi  Inni 
«]»e»,ifl1i^it? 

««  jMrf  it  ft«M  llitt  ifiiii  lly  wMliksr 

C  CfA:|rA,   No ;  but  I  ti44  »  fewcf  ainef  H, 

I^  C-  J.  Where  ^  ttial  1«ner? 

C  Crt^h.  I  h«f*  it  iiqi  hert* 
.  X-  C,  /.    ih^n  tfot  an  ifrldcBeir  nf  %  Vflfr, 
itbatit  ttie  3riUT  iHre  leiv;   It  ouf  bt  to  btre 

Mr,  M^.  rft1ICbriito|tlirrn<!y«l^.  [H** 

lut  Dmt  14  Ctc*|[Ii  W  »inl  to  ymi  ^m^ta- 

Ji^^iiM.  wviral  dmr*,  *f  h«i  tnjTRiaiiei'  Via 

^^  A'WTftk,  to  AitliB^  film. 

|>rO/Aa.  WlKiirtiyfittiiTfmiillO? 
£7-  Cr<-a|f  A.    Ht  \»  (By  MT^anl 
0€f4cm.    lliiii  IHvkl  Creft^rH  l^ti  <)f%eit  laM 
ml  I  «iimtia  l«a  bit  br^titT,  tlm(  if  bt» 
wt  ia]if»ljr  iika  w^ib  rniMW  niwiiey  fa* 

m^Aed  i^  ^^  time,  I  i»iit  p?m^  thrmi^h  the 
lj^|,dt»cki  where  ibis  DaTra  Cr^agh  called  I<t 
^^1^  I  «Ad  1  4skc>d  Ifiiz)  what  be  tlid  there  f  He 
-^d  he  was  lo  be  e^yeiic*  flgiinst  cflpliin 
y^Ugfiiin  No  certaiirTy,  taid  f,  yen  do  tnH 
him,  Ho  yott  r  Say*  he,  Hctc  » thethrngf 


^ 


gfllfj  8  WILtlAJI  III.  Tnal^i>f4^Thmm  Vat^km, 


[W 


II  ^ii  bif^a  btitter  for  me  th»t  f  huH  bc«D  ofi 
^jiifKe  »^inf»t  htto  bdWe  thi« ;  «iid  1  «ifi 
fOfW)  to  m^  Au  evidt:t\<'e  ugaiost  htifi^  to  i^i^e 
laytt'lf  i  tod  he  bid  me  lt!1  his  brother,  God 
4^n  hii  lou^  to  *il  eternity,  if  be  did  not  wend 
ll^  iuppty  tbut  diy,  tre  wmiM  Have  him  lu 
K*writf,  and  ihal  be  ihoffM  not  comr  out 
j^^fl  till  be  e^mfj  oirt  op^n  a  litt^  ? 

X.  a/   Didbeany  w»r 

Mkydtn.  Ve»,  myrerd. 

C^Crtifgk,    Bmf  \nng  h  it   tgORfr, 
flt»\dBtif  >        „       . 

A  i^rff «   I*  w»i«  ^<?  J*j  ^^^  p*"* 


Wf. 


Hm^f  lint  if  be  wotiH  fin» 
lid",  be  wtitiJtl  bring  him  in  for  tofni 
fri>tiid  toCbrm  tt|^«iiiM  Nut. 
Mr.  F4>/^    Uii*  hfl  «7  ii9  «ii« 

Brwem.  Me  did  wy  lie  wmM  aflCcvwi  i 

mVfai^^  Wlwtdidyi*  km^Mmwf^ 


[f  ^inMMl  Miy  mm  r 
Mfytm*  W  said  be  btd  r*tbvr 


unites  were 
tri<!d ;  more  ttmfi  dul,  ht?iV  wnt  Mr,  Wroib's 
tij«ii  wat  win*  itir  M  tltf  name  time  ;  wod  b*- 
cftinu  he  ibould  itol  ht^f  what  yu»  mid,  yo« 
(cHik  me  ^  t!*e  d*»or. 

Mr.  Ph*ppt^  1»  Pftiiwl  Bfvmi  here? 

I  He  apiieiwctf,  utid  vim  iw^m.^ 
'  Brv«<r.   I  Wtt*  wihiifl^nu'd  htre  li.n'  I  know 
noiw1i«l;  ibr  I  know  not  Cttjitaiu  Vflutjbim, 

Mr.  PhiPfii^  *»if*«  ^^  >*a^*^  *«  Ok  y<^u  a 
Aiie«itiui\  1  l>o  yeii  know,  or  b«tc  yon  hewd  ot 
JhifidCreBlih?— Brywn-  Ye*,  Sin 

Mr.  P%f*-  WiTI  yon  give  an  arrOiTTrt   61 

fifbtl  bi^  hum  9(uid  ofg^eariag  a^^AinAt  iiiij  body  ? 

j^yflif.  H«  bi^  afT«ntefi«d  hii  bnnlieT  le- 


Mr   inrhtk^r.   Thit 
fAf  tli#  «ajnecnintf , 

«lli«r    iyi»M»i%f     Cain   CretghKR^       (Wl« 
tttti  liiimi,)    W  htt  i?ounrrififnJM»  bw?  yo«  ^ 

C^iiig^tm.  AOfoniifgbt  iniiii,  I  *rt«Mrt 
is  BMywwt* ;  !  Mf^^«  Mr.  Mfv«l  kfi0<i»#  m 

1-  W^/v^j  Di4  y<Jii  k»»ffw  oiM  Mi 
V  ID,  (hail  lit  e<r  af  feil^wmy  ? 

fAlc^,   t  k%\f*^  hfim  Tefy  **^ 
pir,  Fkifp^.    Lhj  yofi  kt^aw  itl#  fri<imr»l 
lh^b«r  ?^t.*f^Af«n.   h*.K 

Jtr.  P^tppf.   ll*  yoi»  t«<iii»itew  i*i*  ii« 
JohnVAiiffiiMt  h*d  A9d(t  HoMMt   Mi  *M  ^J 
became  of  bioft  ?  * 

Cr<if*#ffit.  Y««*  b«  b«il  M  trtii  TbOf»*j»  ^  tat 
1  uaderttood  that  h«  went  i«iiii«vvb«ri?  »WP  &*^ 
«?ciuntry » tnd  i\wm  dwMl »  ««d  ft  wm  mptm^  til 
about  tb«  town. 

Mr.  Wi;fl?i.  D«  yoa  hmm  wbai  b»  iitd  i 
of?— Cr«ii|«(>ii.  i  (Mifiuot  tell.  ^ 

i.,  €.  /.  How  lonf  «^  did  h*  <lit  F 
€rtf%^<>i.  Abotiiteoyiiirtaii**   Ikw^iJ*  j 
the  brttlbera. 

Mr.  Phipps,.  DtJ  yotf  knffw  that  Thwiws 
Viug^bflO  ? 

Crtighion.  I  knew  hini  very  wc^VI.  ' 

Mr.  Phippt.  Isrthif  ^enctemin,  ih«  ptifl^ner^ 
be  ? — ^tTei|:A/cn»*  No, 

Mr.  Phipps.  D«  yow  belw^^t!  tlwt  is  it«  iW 
ifiaii  ?— Oe*t'^#'»ii-  I  Mi  We  wot, 

Bfe,  PJIip|Ff.  Dfd  you  ever  kii«iw  my  e*€r 
Til ym  as  V * i ig iiao  F — Crti^ ft fo/t ,  No, 

In^tee  Turu^>  Mini  iifet  Jobo  Vitii^o  » 
SOD  a|ipreotiee  at  Galloway  to  one  Th«flN# 
Coleman  f^Crtighfm,  No,  «  I  kncnr  o#l 

JoEtice  Tati&n,  How  oM  w«»  (iKit  iPrti% 
Th^mafl  Tftu^mr,  when  t^>»  kwew  bifti  ? 

Cf  r 4^  A  f  ri/i.   1  n  a  s  b(f m  a  H  h  e  □£%!  fl<)<ir  to  Ihif 
Tbotii*'i»f  Vair^an  thoi  wtm  repuK^  %y  lie  d€#rf, 
Jtr»itee  Tuttm.     Wai    noi    ihat   TlMiiitf 
Vatig'biifi  appr<rrficc  to  Mr.  ColelfjaitF 
Crtij^ktm.  I  canticft  certafitJy  tell* 
Juscie^  Tuft<m.    How  old  wtri  thai  'IHi^tifnif 
VsogbitB  when  ti«  went  ft  way  frooi  (iiiit*j*ay  f 
C»ile/it^.  Ic^timottefL 
Jiffitice  Tiffftrtf,  WImt  ieyonr  own  tgfr? 
Cr^g  AlOrt,  Bly  fi^e  ia  ftho^it  frr6-ao(l*tweoiy. 
£,  C  X    Yon  hai^  not  seen  hna  in  Mtf 
I  veew  ?-*Crei|r/^<jn.  No,  my  loid, 

L  C.  J,    CsE  y<rti  take  it  ujjofl  yoor  iilll 
l\m  is  not  the  man  yovl  saw  fen  yewi  tftf, 
thtl  Thomas  Yniaghitn  J  on  ktiew  ? 
Crnghkm.  Yes^  tHy  lool. 
L.r.  J,  ilow  old  wftf  be  whtft  yun  wK* 
at^gOHjiM  with  him  f 


MQ 


>l^  H^  THmm  «fi  tketSgh  Seas. 


A.  D.  1696. 


\m 


tefliifMlitalM 
1..C;.  J.  HowloBgittkwt 
OiteAlMr  Tm  yen*. 
Z^Cli.  Wbatitymir 


taH  MiliilMjf  I  1  Mi6iMsi 


1^  t;.  J.  Wbn  If  ymir 

Mr.  Uo«/er.  Vou  Miy  ymi  knew  hinoi'  ten 
7«f»^gi» ;  my  wbaf  sort  ef  peraon  wn  he, 
■Dibow  M kaitfier  frtm  ifan  mm? 

\  Cv«%Afmi.   He  wan  better  mC,  and  not  qoiCe 

M  ty>  M  tbi»  mm,  mO  foil  ef  the  imali-poor ; 

t  l»  wm  tbe  ^trrelfOmett  boy  in  tbe  whole 
ttwn, 

•  '  9d.  Gem.  Ytm  my  he  wn  net  quite  e^  tall 
f*        aMhii  mmr 

Cfdgkiom.  Nik,  he  wa»  net  quite  so  tall. 
**         •  M.  Oem,  Do  yoa  fbink  he  might  not  gfrow 

*  thosf  Tbii  wae  tra  yeari  agv,  when  he  was 
wa  sneeB  yeaiw  ova* 

Mr.  Cvmper.    Yoo  knew  him  at  fifteen; 
,         kow  kmc  had  yon  known .  him  P 

GreMfen,  From  my  mfiuey,  titl'  he  de- 
fknadttieiown. 

'  Mr.  Compet,  Dnrinff  aH  thattime,  what  cm- 
JilMikMot  was  he  in  P  Tell  some  circnmslanoes. 
Creigkitm,  I  think  this  Vauirhan  went  to 
Otte  Mr.  JEtiMKl'a  school. 
Bfr.  Cdwper.  What  to  do  P 
€>eigktem, '  To  learn  for  write  and  read. 
Bir.  C&trper,    And  was  he  Hot  an  apprentice 
m  thai  time P^(>etfA<efi.  leannotteN. 

Mr.  Cbwpef .     Werf  yov  aeqnaimed  with 
'^^^mr-'^ragkiM.  Yd. 

X.C.J.  TooKved  nextdbdr  tnflriikljmre 
y^^am  Mast  be  aeqoainted  with  IrimP 
_  Creigkitm,  ut  was  a  fififhting  boy ;  for  I 
*">B  member  be  did  once  (brash  my  cottsoondfy. 
JLC.J.  WberedoyonHTeoowp 
Cfiighimt.  At  the  Castle  and  Falcon  In  At- 
^«ntate-sir«et. 

L.C.  J.  What  frade  are ywP 
Creigkten.  A  sbofimker. 
Barott  Fawig,    How  long*  bare  yon  Kved 
^f^-CrelghUm.  This  ten  years. 
Baron   PamH.     What   did   (liat  Thomas 
r  die  of,  that  ^fon  say  was  dead  before 
le  away,  aa  il  was  reported  irp  and 
rP — (keighiw:  I  cannot  teA. 
Mr.  Confer,    Jhost  now  yoo  said  he  went 
^>itty  from  fiafbway,  and  it  was  reported  there 
*     he  wai  deaitf  ten  yean  ago ;  now  you  say 
tare  been  hi  En^and  ten  years. 
CreigMtoH,   I  came  into  Eogfaind  aboot  ten 
larattro. 

Mr.  Camper,  Dht  yov  hear  it  at  Galloway 
liifbfw  yoo  came  away  f 

CretgktoH.  1  heard  it  at  Galloway  befon>  1 
canoie  to  London ;  ao<f  there  are  many  can  tes- 
tify that  there  was  a  report  that  he  was  dead. 

Jfontiee  TiiHon.  How  lon«|f  was  be  gone 
finom  Galkiway  before  you  came  away  ? 

Cftigkien.  I  cannot  say  to  an  hour ;  1  heard 
be  was  dead. 

X.  C.  J.  Wen,  well,  he  went  away  from 
Grikiway. 

Juatke  2W<on.  Haye  you  not  been  here 
tweffiryeaiv? 


CreigiU&n.  Ithmk  neV;  I  oatne a Itftle be- 
fore the  Revdotion. 

Justice  3\irf0R.  That  it  eight  years  ago : 
just  now  yon  said  you  had  been  here  ten  yeart. 

Mr.  Fhne.  Call  John  Kioe.  (WIto  waa 
swam.)  Jonn  Kuie,  did  you  know  one  John 
Vanghan  in  Galloway  P 

Kine,  Yes,  I  lived  with  him. 

Mr.  Phippi.  What  ebddren  bad  he  P 

Kine.  Four  sons. 

Mr.  Phippi,  Had  be  any  of  thoae  sons  that 
Wa9  named  Thomas  P 

Kit,e,  Nut  of  those  fonr. 

Mr.  Phippt,  Had  he  a  son  TbtMnasP 

Kine.  Yes,  he  had ;  lie  died  about  ten  or 
eleten  years  old  of  the  small- pox. 

Mr.  rhipps.  Yon  say  yon  lived  whh  this 
John  Yaogban ;  k>ok  upon  the  prtsouer  at  the 
bar,  is  he  any  of  those  sous  ? 

Kine,  Nu,  sir,  f  never  saw  this  man  till  now.- 

Mr.  Phippt.  How  lonyf  did  you  live  with 
him  ?^^Kine,   About  eight  or  oine  years. 

Mr.  Phippi.  Bat  how  long  hare  you  been 
come  away  from  himP 

Kine.  About  ten  years. 

Justice  Turtm.  How  welY  do  these  two 
witnesses  agree  together  P  The  other  said  he 
died  at  fifteen,  and  was  pitted  with  the  small* 
pox ;  this  man  says  he  died  ac  tea,  and  of  tiM 
small-pox. 

X.  C.  J.  Where  do  yon  lire  now? 

Kine,   I  lire  in  the  city. 

L,  C,  J.  How  long  hare  3-ou  lived  there  P 

Kine,  Twelve  years. 

L  C.  J.  How  luntr  was  this  Thomae 
Vanghan  dead  before  you  came  hither  ? 

Kine.  Heally  I  cannot  be  |M>9itive,  I  belitfre 
about  eight  or  nine  years. 

L,  C.  J.  Did  Tiiomas  Vaugbsm  die  Of  th€ 
small-uox? — Kine,  Yes. 

L.  i.  J,  That  you  are  sure  of  ? 

Kine.  I  am  sore  that  was  the  discMf  Iw 
died  of. 

L.  C.  J.  You  knew  him  weill,  1  believe  P 

Kine.  Yt-H,  my  lord. 

L.  C.  J.  How  old  was  he  when  he  died  f 

Kine    About  ten  years. 

L.  C.  J.  Where  was  he  buried  P 

Kiue.  At  ChiUoway. 

Just.  T'irion,  Why  doe* not  tlie oMisar  lake 
care  ?  There  is  one  talking  with  the  witness. 
Can  you  now  reconcile  your  evidence  P  (To 
the  pHMNier's  counsel.) 

L.  C.  J.  Have  you  any  more  witneaseaP 

Mr.  Phippt,  No,  my  lord. 

Just.  Turton,  What  were  the  oametf  of  all 
the  sons .' 

Kine,  The  eldest  was  Johu  Vaughin,  th« 
other  William  Taugbart,  anotlier  £dwant 
?aogban,  and  another  Jamrt  VaUghatt ;  thtC 
was  all  that  he  had  ifKve. 

Mr.  Whitaker,  There  is  never  t  ThoiilMf 
Yau«;han  among  these. 

Bir.  Camper,  Tbdmas  died  Up  and  down  h^ 
several  places. 

Mr.  Phippi.  Mr.  Rivet,  de  yod  Indw  thd 
'  tif  that  Johft  Vkui^ltiiu  f 


S  WILLI AiVI  Ilf. 

Kiv9(*  Be  had  ail  these  sons,  John,  William, 
iTkomiUi  and  Jamca,     He  spcal^*-  "<  •  ^-'h  I  M- 
ramti  ;   1   cannot  exactly   reiu> 
I  there  was  nucb  a  suii  or  no;  ili     „ 
f  ^de  idea  of  it,  Uut  ^m  Wfi  certain,    J 

bottias,  I  went  lit  *chatd  with  hiu),  > 

lliim  in  the  year  1691ft  about  the  suireuder  ol 
raailonay. 

Juryman,   U  that  roan  at  the  b«r  the  some 
[Thomas  Vnaghau  ? 
1-4  Rnifi*  1  am^pofiiUve  of  Uiat. 

Z.  C  J*  Yon  saw  liitu  at  the  surrender  of 
f  ©alt»»way  ? 

Itit^f .'  I  did  J  it  wai  about  tliat  time. 

Vaugkan.   1  am  a  subject  of  llic  mot*  rbi  i<. 
wiunn  kiu^;  and  I  deJ^irr-,  though  I  ^i  ' 
Jj^h,  that  I  may  bv  examined  m  Fo 
Imatter  that  touches  me  so  near*    And  you  may 
i«ee  by  n^y  comniissioo,  my  lonlj  lliat'  I  aui  u 
)  Frenchman ;  which  t  (Jc&ire  may  be  read. 

X.  C.  J.  We  shall  nol  trouble  you  HJth  thai^ 

Vattghan,  I  can  shew  you  loy  conriuiftsii>i>» 
Mborein  the  kin^,  uiy  nvaster,  tledarcs  me  to 
^  be  a  suhject  of  France. 

lir*  (Hdtsh.  Mr.  Vaughaii,  1  tliiuk,  you  neci) 
[aot  trouble  the  court  to  read  the  commission  ; 
p  lh«  commission  is  tlie  same  as  for  all  other  sub- 

cts^of  the  Frco.ti  LIily  utt^i>i!>  he  iij  looked 
upon  aa  a  natui  lUce  ;  and 

he  owns  htii;  ,  n;it<0Q  be- 

ore  thejudffe  ot  the  aduuraity. 

E*.  C.  /.  Hare  you  any  more  to  say  ?  As  to 
llibe<eaLamtoatiou,  who  ran  pruvL*  (.hat  'f 

Mr.  CawUt^.  I  can  jirove  that,  my  lord, 
[  QtU.  Cawley  was  swurn.) 

L.  C.  J.    Is  thai  Thoujaii  Vaughaii*!^  ejcaml^ 
atlon. 

Mr.  Cawicy,  YeSf  my  lordi  it  la  signed  by 
[t^m^  and  taken  before  sir  Charles  Hedges  the 
iJSthof  July,  16Q5. 

L,  C.  J.  'ileaa  it.  (Then  Mr.  Cawley  read 
[llie  £j£«iiiiiialion  of  Thumfti  Vau^han.) 

The  S7th  oJ  July.  1695. 

I  Offieif4m  Dt>mtni    contra    TriOM^    VAUOitAy, 
Capuefn'  I>iuvicuUt  Tlie  Loyal  Clencartv. 

[The  Examination  of  Thomas  Vaughan,  hile 
Commander  of  the  tihip  the  Loyal  Clen- 
cmrtyt  aged  36 years,  taken  (M'fbr**  the  Ri^ht 
Worship  Jul  Sir  Charles  lln\^v%^  kt,  Juiltr^ 
of  the  High  Court  of  Admiralty  of  Eng:- 
biid. 

"  Thlceiamiiinte  satth*  That  he  was  horn 
:    ihc    ddriiiuionii    of  ihti 
^  his  subject;  hut  refuses 

lonswet  i  renU  hti   w»h  born;  Ihat 

|e  came  I  iincc  about  four  yann  ago 

baseoT'  ta&hipvalM  the  H^jv,  vvhidi 

Ij^ii:  tajtfo  from  ibe  Kn^lidh,  ami 

|C»||]«   iti    ii» ?r  to  Naotse  iii  Fiance,  and  1 
since    been    in    France,  or  cruisin 
EPresich  sW^mi   That  be  haili   htren  a   c'ih- 
[  inlander  ever  since  he  was  16  yctkin  of  age, 
t  ind  baUi  comnii&d€4  iCT«rml  Frvoch  pnrAteirrs, 


and  was 


»l  St.  Ma 


Blii' 

nothing;  but 
prore  im/r 
It :  but  V 


but  v\)uil»  dull 

6  xa  mill  all-  si  ill 

loigne;  i^ 

persons  i 

aw!i'     ' 

thai 

am  1 

Fr. 

bail 

fiu.i 

Coveuiry  man  <rt    war, 

GonfleFt  ;  and  « hat  ttit 

VCHi' 

Be 

Wll' 
tlLi^i 

lo  itK  \>Ai\  iiiiiii>y., 

pii\aletr   about   a  ^4 

caute  out,    '      ■'*  ' 

u[nni  till 

told  the  > 

|triiionei^ 

chai-ity  , 

man,  tvlio  tdid  ihe  ^ 

taken  inland  »eivif.< 

Fort   Kcuo<[ue  i  afr 

u|ion  a  sione  at  lU 

what  lo  do  Mi(h  hiui::>tit,  ihv.   . 

him  on  board  for  charitv,  am! 

Ihcs:.     '-:      ..•,,,■,,,     ^      :  L 

m^ 

for 

het 

tool 

tht 

her, 

mn 

C  JljLUi;^.  Tm 

L.  C  /.  Mr.Vaii^han,  hav 
to  say  P 

ruuj^hfin*  It  iM  very  hard  clreaimtBoaei  1 1 


,  |„ 


11%  fi   iiitiiU**  it   i 


tiihman. 
1,  C.  /*  You  hu?r  hid  i  Ttry  fair  Irodf  i 


ifS] 


fit  H^h  Treason  on  the  High  Seas. 


A.  D.  1696. 


[5S« 


r99  ihiH  have  juttioe,  be  it  for  yoa,  or  agoimt 

'OU. 

Faughmu.  I  -  hope  your  lordship  will  do  me 
ight. 

X.  C  J.  Gentlemen  of  the  jary,  the  prisoner 
t  tiie  ber,  Thomas  Vauflfhan,  stands  indicted 
w  high  treaaofl,  tor  adhcriiuf  to  the  king^s 
nemies,  vis.  That  he  put  himself  as  a  sel- 
ler in  the  aervice  ot'  the  French  king,  in  a 
essel  called  the  Loyal  Glencarty,  with  divers 
ther   persona  on  board  her.  that  were  sub- 
Bcta  to  the  French  king,  and  enemies  to  the 
mg  of  Enffland,  with  a  design  to  bum  the 
uog'a,  and  his  aabjects'  ships :  and  for  that 
lorpoae  went  in  that  ship.    That  tlie  prisoner 
vas  on  board  the  ship,  and  with  such  a  design, 
a^ved,  without  all  contradiction,  by  several 
aUneato  that  hawe  been  produced ;  that  is, 
Ihit  the  two  and  twenty  oar  barge,  which  is 
tha  same  called  the  Loyal  Glencarty,  lay  ho- 
vering about  the  Buoy  in  the  Nore;  those 
mm  in  the  Ctiventry  imagined  they  hail  some 
Ugn  of  mischief  to  tlie  ships,  and  they  made 
•Avbrni  with  the  Coventry.    It  was  appro- 
beaded  by  captain  Vanghan  and  his  crew,  that 
the  Coventry  would  be  too  hard  for  them,  and 
IB  they  did  submit,  and  were  taken.    And 
hKBg  examined  on  what  acconnt  he  came  on 
oar  eoasts,  it  is  confessed  by  him.  That  he 
CUDS  with  a  design  to  bnrn  oor  ships.    You 
nay  observe  what  sort  of  men  were  aboard. 
Yoa  have  heard  It  proved  to  yon^  that  Critten- 
^,  tbe  marshal  of  T)over,  entered  those  per- 
nn  taken  aboard  the  French  vesael,  of  what 
Htioo,  and  what  qnaliU  they  were ;  and  there 
vereiboot  a  dozen  of  these  Frenchmen,  for 
fbey  were  entered  as  such.    Now,  for  a  sub- 
ject of  England  to  join  with  the  king's  enemies, 
n  paisuit  of  a  design  to  bum  or  take  any  of 
{ho  king's,  or  his  subjects'  ships,  that  is  an  ad- 
MRDoe  to  the  king's  enemies.    But  it  appears, 
Ml  only  that  captain  Voughan  was  in  their 
Mpaay,  but  that  he  was  their  commander  ; 
*hieh  commanding  the  vessel,  on  board  whicli 
*^  French  auhiects,  enemies  of  the  king  and 
ue  kiofplom  of  England,  is  high  treason,  and 
^particular  faot  of  treason  for  which  he  is  in- 
*M.    And  it  anpedrs  that  he  had  a  commis- 
*>0B  fimn  the  French  king  to  command  this 
^emA,  tbe  Loyal  Glencarty. 

Now  tbe  pnaoner  having  this  commission  to 
*canmanucr  of  this  vessel,  though  tbev  who 
H^ved  nnder  him  were  not  nativeFrenchmen, 
hat  other  foreigners,  yet  their  subjecting  them- 
H^es  to  him,  acting  by  virtue  or  cotour  of 
^  oommiasion,  makes  them  to  be  the  French 
'^'s  subjects,  during  their  continuance  in  that 
^[viee ;  for  otherwise  all  prizes,  which  they 
"jooM  take,  wouM  make  them  to  be  pirates ; 
*nKh  none  will  pretend  to  maintain,  wlien 
*"7y  acted  by  a  commission  from  a  aovereign 
prince,  that  waa  an  enemy.  And  if  they  shall 
cnaie  upon  our  coasto  with  a  design  to  take, 
<^  destroy  any  of  the  king's,  or  his  subjects 
Aips,  they  are  enemies,  though  they  were  the 
J«8ectsofa     ■  •         ■ 


prince  or  state  in  amity  with  the 

n^r  of  England.    But  at  this  time  there  is  ho 


necessity  of  entering  upon  this  question,  be- 
canse  it  is  proved  that  divers,  who  were  on 
board  this  vessel,  were  Frenchmen ;  the  joining 
whh  whom,  in  prosecution  of  such  a  design,  la 
that  kind  of  h'gh-treason,  of  adhering  to  the 
king's  enemies.  So  that  if  captain  Vanghan 
was  a  subject  of  England,  he  is  proved  guilty 
of  high- treason,  if  you  believe  the  evidence. 

But  now  it  is  insisted  on  by  Mr.  Vau^han 
and  his  counsel,  that  though  he  was  exercising 
ho6«tlity  against  the  king  of  England,  and  de- 
signing mischief  to  his  Mubjects  ;  vet,  says  he, 
I  was  not  a  subject  of  England,  I  was  bora  a 
subject  to  the  French  king.  If  that  be  trap, 
then  he  is  not  guilty  of  high- treason ;  he  is  an 
enemy,  but  not  a  traitor :  and  that  is  the  point 
you  are  now  to  consider  of,  whether  he  be  a 
subject  of  England  or  France  ? 

Now  as  to\hat,  he  being  taken  under  sndi 
circumstance;;,  and  speaking  English,  it  is 
reasonable  to  be  prettuined  tliat  he  is  a  sutiject 
of  England,  unless  he  proves  the  contrary. 
But  then  you  have  heard  by  several  of  the  wit- 
nesses, that  when  he  was  at  first  taken,  he  ac- 
knowledged himself  to  be  an  Irishman  ;  and  be 
did  not  only  acknowledge  it  to  them  that  as- 
sistefl  in  apprehending  him,  but  being  carried 
to  Dover,  when  the  marshal  entered  bim  in  his 
book  as  a  prisoner,  he  entered  him  not  as  a 
Frenchman,  hut  he  declared  at  that  time  bo 
was  an  Irishman.  It  ma^'  be,  be  did  not  con- 
sider the  consequence  of  it ;  for  the  next  day 
he  was  carried  before  the  mayor  of  Dover, 
and  then  having  considered  better  of  it,  that  it 
was  not  for  his  interest  to  acknowledge  him- 
self an  Irishman,  lie  said  he  was  born  a  subject 
to  the  French  king,  and  at  Martenico.  There 
were  Scotch  nicii  and  Irtslimen  taken  at  the 
same  time,  and  they  were  entered  as  of  the 
nati'>n  they  belonged  to,  and  so  were  divers  en- 
tered Frenchmen.  So  that  unless  he  hath 
given  sufficient  evidence  to  the  contrary,  this 
is  sufficient  to  induce  you  to  believe  liim  aa 
Irishman  bom. 

But  he  has  endeavoured  to  take  off  this  evi- 
dence that  hath  been  given.  First,  he  says,  it 
was  when  he  was  in  ifrink,  that  he  did  confess 
himself  to  be  an  Irishman ;  but  when  he.  waa 
siiber,  he  said  he  was  a  Frenchman.  And  be* 
sides  that,  he  calls  a  witness,  whose  name  is  Ro* 
bert  French,  to  give  an  account  of  him.  And 
French  says,  that  about  fourteen  years  ago  he 
was  at  St.  Christophers,  on  French  ground, 
and  he  did  then  nee  this  Thomas  Vaughan  ; 
he  did  take  him  then  to  be  about  the  age  of 
fifteen.  He  says  he  stayed  there  about  four 
and-twenty  hours,  and  that  he  was  in  the  com- 
pany of  tbis  Vaughan  and  his  father  about  five 
or  mx  hours.  He  says,  his  father  told  bim  at 
that  time,  that  this  young  man  who  was  then 
about  fifteen  years  of  age,  was  born  at  Marte- 
nico. He  says  fartlier,  that  bis  father  did  re- 
commend this  ioii  to  him  to  be  a  sea-faring 
man,  being  the  employment  he  intended  him 
for ;  and  he  is  sure  this  is  the  man.  Thia 
Robert  French  was  asked,  whether  he  ever 
saw  this  Vaughan  from  the  time  ha  first  aavf 


8WZLLUM  nt. 


lii»iili€MitB^h»«olilllriilim:  ktmfM 
hm  iMTtr  Mir  liun  litiee  that  time,  till  •Uiit 
tip*  ttOflib*  ig9i  He  fives  you  ihw  ic^eoutil 
k>«  W  eame  Iq  meet  with  htm  ;  be  tap  he 
itpie  to  Iowa  f  oad  bein^  ft  obiriUble  man,  he 
Igatd  U*  ¥mi  the  prttoas  ^  awi  li«s  c«iii«  to  New> 

file  to  one  ^folilfld  ;  «mI  ibere  he  mw  ca)}t»Mi 
MUgliati ;  iiud  tboMgb  be  bail  not  i«au  biiu  fur 
iMiiiiaefi  yemrs  b«*rori>,  ^et  be  kneiv  biro  agtin> 
•■4  if  ipoaitif  e  tlmt  hr  i«  ihe  sAnie  penon. 
.  4aNJicr  awears  b«  knew  the  prisoner  about 
Hmfamm^M^  be  waa  re^iuLed  a  Frenctiman. 

Imv  baa  batn  another  witness  prodtioeil, 
wMcH  la  tbat  Daacine,  who  esme  up  at  a 
F^a^difnan,  anH  laJketl  Frf  och,  preteoJiog  be 
tfould  not  ^peaJc  English  ;  but  oo  examiDatioit 
ii  waa  ^fieovf re4  ibftt  he  bad  ao  employment 
lit  En^and,  and  waa  a  bmli^s  follower ;  and  il 
ftlipi^m  be  can  soeak  English  tevy  weil ;  and 
Jtotwitbatmnliti^  hie  pretence,  has  ipven  bU 
#aai«BC«  Ml  English,  And  be  iells  you,  That 
)ift«  abiMil  tbe  year  1669,  did  go  to  ik.  Cbristo- 
<|rilim«  ttrf  tiiirwakf^  to  Uarteoieo  ;  and  there 
he  went  to  ooe  Williams^  who  had  a  fmiid 
whose  tiajMe  waa  Vuutirhiiti,  at  whost;  hoiite 
4bem  traa  a  cbriateniuff  to  be  of  bia  aoo^  to 
aahoB  WlUiina  waa  to  be  godtaAber ;  and  tbia 
«iliiaaa  waa  carried  tbtther,  and  the  ebild  waa 
.<bmveiied  Thomas.  He  lells  yoa  he  went 
4»ver  iL^hm  to  8t.  Cbristopbcrs,  and  to  Marie-  I 

'^ttlea*  in  tbe  year  1677,  and  that  then  he  en-  ' 
^lired  for  tbm  child,  «nd  did  see  him.  T\wn  | 
be  isy»«  ofler  that  he  went  ofer  ai^uio  4o  St.  | 
Cbhstophenf,  aud  to  Martenieo  about  tbiiteen  ' 
year9  a^,  ai»d  iben  saw  kkm  ^mh  ;  and,  I  | 
ibink^  nrrer  saw  him  ainoe  ootil  vtfry  lately ;  | 
#Dd  this  prisoner,  be  ujidrrtakcs  to  tell  you,  is 
4ht  very  pt^rstao. 

But  ibeo  one  Harvey  tells  you  be  aaw  bim  i 
in  Fraaoet  m  die  yenr  169^^  and  tbere  be  was 

•  laJien  to  be  m  Preiu:bmati,  and  be  lived  with  4i 
sNTficsso  tbat  %(Ad  t»ilk,  tliat  Mi<1  be  waa  bar  ue* 
idiew,  her  sister's  iiod  ;  and  that  be  was  hero  at 
Marteojco,  This  is  the  evidence  b  •  ^ivea  you 
40  induce  you  to  beheve  he  is  a  Fi<^cichaian* 

Now,   io  tlie  Hi-at  place,  before  I  open   tbe 
•viderM^  in  aoawer  lu  ii,  I  iWsire  you  to  ob- 
arrve  the  wei^fbt  snd  iicipert  ot'  fibis  evidence  1 
tbst  hath  breti  produced  by  ibefirtaotier.  First,  | 
tor  lliis   Freiicb,  tb^t  aays  bf   aaw  eapUio 
Vaagbao  fourteen  years  afo,  wbeo  be  waa  I 
ib#4al  ftlteen  yesr«  of  ago ;   be  liad  no  fortntr  t 
.S4M|iiau»t«Dea  witli  bimj   stayed  in  hia  eom*  j 
pioy  but  BtK  boors ;    mod  oaoa  away  within 
fbitr-and  twenty  buurs  aAer  bia  arriral ;    aod  I 
never  saw  hiin  eg^ain  io  loarteao  years :  it  is  a  ' 
*alm0ie  Ibing  that  he  sliould  know  bim  again 
«0«eUas  to  be  positive  Ibut  he  i^  tbe  same 
I ;  Ibr  tn  fourteen  years  there  i«  <&  great  I 
lian  ilia  inaji ;  for  a  man  that  has  known  ' 

^KMtailbei^  of  fttWor  and  not  aero  him  in  , 
I  yam  «fW^  ibougb  before  be  wa«  very  | 
^iufalled  iritb   biJDi«  ranoot  so  easily 
m  tcain.     But  liiiwev«r  be  bi  pot itttt%  ' 

PsofMHi  bk  iiatb«  tbat  be  k  ibe  aame  peraon  tbat 

[  4HLMriilUrltnte.  » 

I  m  for  Daarin^fim  najrcaoaite  hioii  | 

0 


Trkt  ^CapUin  Ti<ma$i 

tbat  be  abould  take  noiioa  of  a  Gittp  f 
be  saw  christetiefl   several  yen 
tbat  be  slun/  neoMr  tu«i  «& 

bod  not  sscii        I         J  years ;  sure  be  ] 
great  Uking  to  tbi»  obUd,  ibat  wben  f    "" 
Marten  ice,  manv  years  after,  be  ah 
iuquiftiurs  after  him :  1  mustleavf 
to  vou  te  coosHlerof:  ibat  be  n 


very  poissihiA*  t<MV 
HA'  tliia  evuleiica 


ho  lufts  kiKiwo  tbe  | 


Hiit  now  - 
b«^eiidea««<<«UM 
oeaaea  base  bee  ti 
wbi^  tbty  U»^^ 
Cres^h,  wh' 
aooer  for  two 
reputeil  U»  be  an  k 
way  '  Ur  [m^  M\r 

h 

h. 

tions  \^ 

poaaSbK 

ne  and  i^^u   ntiM^. 

hand  ;  tbst  he  liath  sreu  btm  write,  and  b«  (j 

bevesi  it  is  bb<  hand. 

Then  there  is  a  gent' 
oamebere  by  obanci\  < 
be  aaitb  be  knev  ki 

sras  reputed  to  er^i 

the  rem*))ioii  in   Ird^uL,  lu  1<jaI.  ajid 
Gafloway ;     ami     tl>at     thl^     in  isourfi 
Taughan^  was  \ns  son,  and  he  knew  J 
chil^  ;  waa  well  ai3<|uunifed  witb 


bani  h\ 
Oalbw 
m  aufe  4uis  « 
tbe  priaoner 
dtioiioQ  el'  < : 
tbe  prisoner 
Galloway; 
ciiuntuthMi- 
tation  and  m  < 
what  other  Uroil^ 
no  i4if«^etion  n^nu 
to  baiieve,  sir 
ataotial.tbai 

But  the  ^>iuou< 
d<uivoured  to  aiin 
first  they  hiive  en 
that  he  is  an  ill  < 
tliis  town  wb"*  i 
biiri  sod  t<>^ 
day.  VI  hi  il 


teuiber«  bim  mt  up 
I  k  yoi)  to  w  bom  ^  aril 

--•V-  t--":t*    —rf    r'- 


U»bo  Vf 


-Ud 


sitdidi 


?m] 


Jir  High  Treason  on  the  fl/'gh  Seas. 


A.  D.  1696. 


But  tlieD,  gmnlmieii,  as  to  the  place  of  tliu 
prifooer'tf  birth  ;  two  otber  wittiessts  arc  pro- 
duced to  give  you  ntitfkctioii  ttiat  iliis  capiain 
VannfiiaD  was  not  the  son  of  thni  Mr.  Vaii<rhnii 
of  Oilloway,  whose  eviifencc  I '  wUI  oprii  to 
voo,  and  then  will  see  how  coherent  they  arc 
n  Ibeir  testimony,  llie  tint  is  Crcighion,  a 
ihomiaker;  he  sdyii  he  knew  Thomas  Vaiighaii, 
ilw  MMi  of  Juhn  Vaii<;(ian  of  Galloway, 
ileiitten  yenn  since ;  he  was  a  Galloway  i]):'ii 
hfd,  and  lived  the  next  ooor  to  John  Vaii^ftiaii 
that  bad  a  fton  lljoBiaa.  lie  says  he  has  been 
kivibont  ten  years  in  Englamf.  lie  sayf:  lie 
lUnks  that  Thomas  Vauglwn,  the  son  of  John 
TiDgfbsD,  was  about  the  age  of  15  yeai-s ;  but 
ibt  this  prisoner  is  not  he ;  for  that  Tliomas 
Tugban  was  disfigured  with  the  small- pox ; 
kmiembcred  him  well ;  he  had  reason  (or  it, 
ftrbe  once  basted  him  soundly  ;  and  that  he 
vat  away  from  Galloway  when  he  was  about 
15  veara  of  age,  and  was  reported  to  be  dead  ; 
HI  if  it  were  so,  this  prisoner  cimnot  be  the 
ycituu. 

The  other  witness  is  as  positive  as  Creiz^h- 
te;  for  he  saith,  he  knew  this  John  Vauffhan 
sf  Galloway,  and  his  son  Thomas ;  ana  that 
Thottss  Vanghan,  son  of  John  Vaoghan,  died 
■loot  10  years  since  of  the  small-  pox.    Bo  that 

Shavetbund  two  Thomas  Vaughans:  one 
you  of  one  that  was  15  years  old,  and  was 
dbfignred  with  tibe  small-pox ;  and  the  other 
tdb  yott  of  Tliomas  Vaugban,  who  died  of  the 
■Nfl-poz  when  he  was  10  years  of  age. 

Tm  are  therefore  to  consider  the  evidence 
ta  both  aides.  The  qnestion  principally  is, 
Wbttber  the  prisoner  be  a  subject  of  tne  king 
if  Em^land.  If  you  are  satisfied  that  he  is 
sot  to  English  subject,  but  a  Frenchman,  then 
beis  HOC  guilty  of  this  hri^h-treason^  but  if  you 
■re  satisfied,  bj  the  series  of  the  whole  evi- 
desee,  that  be  is  an  Irisbnaian,  and  that  he  had 
aesmmission  from  the  French  king,  and  that 
beciiiizcd  upon  oar  English  coasts,  in  com- 
pny  with  the  king's  enemies,  with  a  design  to 
ftke,  bam,  or  destroy  any  of  the  kinsf's  or 
Misabieeta  abipay  yon  are  to  find  him  guilty  of 
Ac  hi^b*treason  whereof  be  stands  indicted  ; 


[5Sfr 
of  the  treason 


ilbeniiw  you  arc  to  acquit  him. 

CL  ofAr.  Swear  an  offieer  to  keep  the  jury. 
[Whicb  WIS  done.]) 

T  [Afler  a  short  stay,  the  Jury  returned  into 
Gmm,  and  gave  in  their  verdict.] 

€1  cf  Ar,  Gentlemen,  answer  to  your 
IMM.    E.  Leeds. 

Mr.  Ijeedt.  Here. 

Crjftr.  VatiM  AreM^  and  so  of  the  TPst. 

CLof'Ar.  Gentlemen,  are  you  all  agreed  of 
yiur verdict? — Juru.  Yes. 

CI,  ^,fAr.  Wlio  shall  say  for  you  ? 

Jur^,  Onr  foreman. 

CL  tfAr.  Tliomas  Vaughan,  hold  up  thy 
hUMl.  *  (Which  he  did.)  Look  upon  tliopiU 
Mir.  Mow  sav  you,  is  be  giiilty  of  the  biuh- 
tciion  whereof  ne  stands  indicted,  or  not 
fsibv  ?— .Fureman.  Goilly. 

CLftfAr.  What  goods  or  cbatteto,  1and$  or 
MIL.  Xlll. 


tenements  had  he  at  the  time 
committed? 

Fi>renian,  None  to  our  knowlcdnrc. 

CL  ofAf.  llien  hearken  to  your  verdict  as 
the  coiirt  bath  recordeil  it :  You*  say  that  Tho- 
mas Vaughan  is  U"il'y  o^  ^^^  high> treason 
whereof  he  stands  indicted  ;  but  that  he  had 
uo  gooris  or  chattels,  lands  or  tenements  at  tlie 
time  of  the  high -treason  ccmiinittiMi,  or  at  any 
time  since,  to  your  knowledge  ;  and  so  you 
say  all. — Jury.  Yes. 

Vaughan.  My  lor«l,  let  me  beg  one  favour, 
tliat  1  may  be  used  like  a  gentleman ;  that  I 
may  be  sent  to  a  chamber,  and  not  to  a  dun- 
geon ;  and  that'my  friends  may  come  to  me. 

L.  C  J.  Capt.  Vanj'han,  they  say  you  once 
made  an  escape,  and  therefore  the  keeper  must 
keep  with  humanity,  but  with  all  security. 

Vaughan,  1  desire  1  may  be  kept  like  a 
Christian. 

L.  C.  J.  The  keeper  mnst  do  his  duty. 

CL  ofAr.  Thomas  Vaughan,  bold  up  thy 
hand.  (Which  he  did.)  Thou  standest  convict- 
ed of  high -treason  against  our  sovereign  lord 
the  king;  What  hast  thou  to  say  for  thyself 
why  judgment  shall  not  pass  against  thee  to 
die  according  to  the  law  f 

Vfiughan,  I  am  altogether  a  stranger  to  tha 
law,  mv  lord  :  I  refer  myself  to  my  counsel. 

X.  C.  J.  Well,  then,  you  refer  yourself  to 
vour  counsel.  You  have  had  a  fair  trial,  and 
have  no  reason  to  compUun  of  it:  If  your 
counsel  have  any  thing  to  say  iu  arrest  of  judg- 
ment} they  shall  be  heard. 

Mr.  Phipps,  My  lord,  the  indictment  has 
two  sorts  of  treason  laid  in  it  the  one  for  ad- 
hering to  the  king's  enemies,  the  other  levying 
of  war ;  and  with  submisKion,  I  take  it,  that 
the  first  is  not  well  laid  ;  for  it  says  that  the  pri- 
soner did  adhere  to  the  king's  enemies,  but 
says  not  against  the  king.  Now  e^ery  body 
knows  that  the  French  king  is  in  war,  not  only 
with  England,  but  Holland  and  Spain,  and  the 
emperor:  But  if  a  man  join  with  the  French 
against  any  of  them,  he  adheres  to  the  king's 
enemies;  and  yet  it  cannot  be  said  to  be 
against  the  king ;  therefore  they  ought  to 
have  laid  it,  that  he  did  adhere  to  the  king's 
enemies  •  contra  Dnminuin  l(c;;ein ;'  it  must 
beaidin'r  and  comforting  them  against  the  Ling 
that  makes  the  treason. 

L.  C.  J,  It  does  say  so. 

Mr.  J'/iipys.  No,  my  lord  :  it  only  says  that 
captain  Vaughan  did  udhcre  to  the  kintf's  cne- 
inif's,  an;l  docns  not  say  it  was  asainst  the  king ; 
ami  if  that  be  trrason,  is  >%hat  ^>e  desire  to 
know. 

L,  C.  J.  If  he  adhere  to  the  kind's  enemies, 
it  nuict  he  ay:ainst  the  kins;,  tlinu«fh  he  assist 
them  only  agaiiifst  the  king's  allies  ;*  for  tliere- 

'  East's  l*.r.  c.  'i,  s.  21.  F.ist.  2^0.  But  as 
to  this  niackstoiie  says  :  "  By  the  statute  2 
Hen.  .'>,  Ci  6,  any  sul»i»^ct  committing  acts  of 
hostility  upon  any  nation  in  league  with  tlic 
king  was  declared  to  he  guilty  of  high  treason, 
and,  though  that  act  was  repealed  by  the  stH« 

.3M 


8  WILLIAM  III. 


531] 

by  tbe  king's  enemies  msy  be  more  encou- 
raged and  enabled  to  do  mischief  or  damage 
to  the  king.  8u»|i06C  vou  assist  tlie  French 
king  against  the  king  of  Spain,  that  is  now  in 
alliance  and  league  with  the  king  of  England, 
and  the  French  in  actual  enmity  ;  that  is  to 
adhere  to  the  kind's  enemies  against  the  kiitsf. 

Mr.  Phipps.  Wouhl  that  be  treason,  my 
lord? 

L.  C.  J.  Yes,  certainly ;  though  that  is  not 
a  point  in  this  case,  and  so  not  necessary  to  be 
determined  now ;  for  theactof  narlianient  of 
35  of  £.  8.  defines  treason  in  aifheiing  to  the 
kiog[*s  enemies,  and  expresses  the  overt- act 
ID  giving  them  aid  or  comfort ;  it  is  sufficient 
to  alledge  the  treason  in  tbe  words  of  the  sta- 
tute, adhering  to  the  king's  enemies.  An 
overt-act  alledgcd,  shews  it  to  be  against  the 
king;  and  in  pursuance  of  that  adherence,  he 
did  so  and  so:  He  was  a  captain  and  soldidr 
iu  the  ship ;  did  join  with  the  king*s  enemies, 
to.  with  a  design  to  destroy  tlie  king's  and  his 
sulgects  ships  :  surely  tliat  is  most  manireslly 
an  adherence  to  the  king's  enemies  against  the 
king.t 

jQr.  Phipps,  The  overt-act,  if  it  were  al  • 
ledged  sufficiently,  would  not  help  it ;  for  if 
there  can  be  an  adhering  to  the  king's  enemies, 
that  is  not  treason  ;  they  ouqhtto  alledge  such 
adhering  as  is  treason ;  and  if  the  treason  itself 
is  not  well  alledged,  the  overt  act  will  not 
kelp  it. 

x^  C.  J.  There  is  an  overt  act  to  shew  it  to 
be  against  the  king.  Tt  is  said  all  along,  lie 
being  in  tliis  vessd  Cleucarty,  '<  cum  diversis 
sobditis." 

Mr.  Phipps,  But  then  that  overt- act  is  not 
well  allcdged  ;  for  it  is  said  only  he  went 
a-cruisiog;  whereas  they  ought  to  ha>c  al- 
ledged  that  he  did  commit  some  acts  of  hos- 
tility, and  attempted  to  take  some  oftho  king's 
ships ;  i\tr  cruisiiiGf  alone  cnniiut  be  an  overt- 
act  ;  for  lie  ini<rht  ho.  cruising  to  secure  the 
French  nierchant-ships  from  bcinsr  taken,  or 
for  many  other  pur|K)^cs,  which  will  not  be  an 
overt-act  of  treason. 

L,  C.  J.  1  bcjj  your  panlttii.  Suppose  the 
French  kinj*-,  with  forces,  should  come  to  Dun- 
kirk with  a  dosij^n  to  invade  iilngland  ;  if  any 
one  should  send  him  victuals,  or  give  him  in- 
telligence, or  by  any  other  way  conti'ibutc  to 
their  assistance,  it  wouUI  be  high-treason  in 
adhering  to  the  king*s  eneniies.f 

Mr.  Phipps,  if  the  French  king  had  de- 
8i^ne<l  an  invasion  upon  England,  and  cap- 
tain Vaughan  had  assisted  in  his  vessel  in  for- 
warding the  invasion,  it  would  have  been  trea- 

tute  20  Hen.  6,  c.  11,  so  far  as  relates  to  the 
making  tlii^i  offence  hij^h  treason,  yet  still  it 
remains  a  very  great  oflence  against  the  law  of 
nations,  and  punishable  by  our  laws  either  ca- 
pitally or  otherwise  according  to  the  circum- 
alances  of  the  case."      1  Bkickst.  Comm. 

♦  Kast'sP.  C.  c.S,  8.S1. 
t  Eam'sP.C.  c.S.s,si. 


Trial  rfCafdain  Thomas  Vavghan^  [5S3 

ion ;    but   here  is   nothing    mentioned   but 
cruising. 

L.  C.  J.  Cruising  about  the  coasts  of  Eng- 
land with  a  design  to  destroy  the  king's  ships. 

Mr.  Phipps,  That  design  ou^t  to  be  made 
appear  by  some  act  of  nostility ;  for  in  ths 
case  of  Burton  and  Bradshaw,  and  othen, 
which  my  lord  Coke  cites,  the  agreeing  to  rise 
and  pull  down  inclosures,  and  meeting  and  pro- 
viding arms  for  that  purpose,  is  agreed  not  li 
be  levying  of  war ;  and  they  were  indicted  he 
conspiring  to  levy  war,  upon  the  statute  of  queen 
Elizabetli.  And  in  this  case,  here  being  ooty 
a  conspiring,  and  nothing  attempted,  it  can  bo 
no  more  treason  than  it  was  in  that  case.' 

L,  C.  J.  When  men  form  themselves  iota  ft 
body,  and  march  rank  and  file  with  weapooi 
oflensive  and  defensive,*  this  is  levyiuff  orwti 
with  o|N?n  force,  if  tbejieaign  be  public.  Dt 
you  think  when  a  ship  is  armed  with  goui 
ice.  doth  appear  on  the  coast,  watching  m 
opportunity  to  1>uru  the  king's  ships  in  tka 
harbour;  and  their  design  be  known,  and  oii 
goes  to  them,  and  aids  and  assists  them,  tbii 
this  is  not  an  adhering  to  the  king's  enemies  I 
Here  are  two  indictments,  one  for  levying  wir, 
and  the  other  for  adhering  to  the  king?  mn^ 
mies  ;  but  the  adhering  to  tbe  king's  rnfiiiw 
is  ])rincipally  insisted  on ;  and  there  mut  bo 
an  actual  war  proved  upon  the  person  indided  io 
the  one,  yet  nee<l  not  be  proved  in  the  other  CMb 

Mr.  Phipps.  The  same  certainly  is  necesnrj 
in  one  as  well  as  the  other ;  for  barely  adherim 
to  the  king's  enemies  is  not  treason  ;  bnt  then 
must  be  an  actual  aiding  and  comforting  themi 
and  a  mere  intention  to  assist  the  king's  eoe* 
lilies,  is  not  an  adherence  within  the  statute  of 
25  Ed.  3. 

L.  C.  J.  If  there  be  not  high -treason  in  the 
act  alleil^c-d  ;  that  is,  if  it  do  not  make  out  la 
adherence  to  the  king's  enemies,  then  your  ob- 
jection would  hold  good. 

Mr.  Phipps.  The  going  to  cruise,  my  kiri, 
docs  not  make  out  an  adherence  to  the  kiog's 
cminics;  for  his  cruising  might  be  forotner 
purposes  as  well  as  to  take  the  king's  sbipi; 
and  vour  lordship  will  intend  the  liestin  favoor 
of  lile. 

Mr.  WhitaJicr,  To  burn  the  king's  ships. 

L.  C.  J.  Tribj/.  The  indictment  is  laid  (or 
adhering  to,  and  comforting  and  aiding  the 
king's  enemies.  You  would  take  that  to  be 
capable  to  l>c  construed  adhering  to  the  Idng^ 
eiieiines  in  other  resjvccts ;  but  1  take  it  to  oe 
a  reasonable  construction  of  the  indictment,  tot 
be  adhering  to  the  king's  enemies  in  thebr 
enmity.  What  is  the  duty  of  every  subject  f 
It  is  to  fight  with,  subdue,  and  weaken  tho 
king's  enemies:  and  contniry  to  this,  if  heooi- 
federate  with,  and  strengthen  the  king's  eo^ 
mies,  he  expressly  coiitrailicts  tliis  duty  of  hil 
allej^nce,  and  is  cruilty  of  tliis  treason  of  ai- 
hering  to  them.  But  then  you  say  here  ii  lO 
aiding  unless  there  wen*  something  done,  flOMO 
act  of  hostility.     Now  here  is  going  aboifi 

•  East's  P.  G.c  2,  8. 19,59. 


^r  High  Treoiom  on  the  H^h  Seas. 


A.  D.  1695. 


[$st 


intention  to  ilo  such  acts ;  and  is  not 
fortingf  and  aiding  ?  Certainly  it  is.  Is 
Fremdi  king  comforted  and  aided, 
!  hns  got  to  many  English  subjects  to 
niainff  vnon  our  ships  ?  Suppose  they 
whole  fleet,  or  a  consideraole  part  of 
it  thai  aiding?  If  they  go  and  eater 
"ei  into  a  regiment,  list  themseWes 
"ch,  though  tney  do  not  come  to  a 
liii  is  helpmg'and  encouraging ;  such 
ivethe  enemy  heart  and  courage  to  go 
:be  war ;  or  else  it  may  be,  the  French 
aid  come  to  good  terms  of  peace.  It 
ily  aiding  and  comfortiDg  of  them  to 
accept  a  commission,  and  enter  into 
ps  or  war,  and  list  themselves,  and  go 
derlo  destroy  tlieir  fellow  subjects,  and 
king's  ships ;  these  are  actings  of  au 
ature.  And  if  this  be  not  luiheriiig, 
ny  as  well  be  said,  that  if  the  same 
had  made  an  attack  upon  our  ships, 
carried  in  it,  that  had  not  been  so  nei- 
Bcanse  that  in  an  unfirosperous  attempt 
nothing  done  that  gives  aid  or  comfort 
uemy.  And  alVerthiskindofreason- 
'  will  not  be  guilty,  till  they  have  suc- 
ad  if  they  have  success  enough,  it  will 
kteto  question  them. 
^hippt.  Intending  to  levy  war  is  not 
unless  a  war  be  actually  levied. 
J.  Treby,  Is  it  not  actually  levying  of 
they  actually  provide  arms,  and  levy 
id  in  ft  warlike  manner  set  out  and 
and  come  with  a  design  to  destroy 

*/uppt.  It  would  not  be  an  actual  levying 
ralm  they  commit  some  act  of  hostility. 
J,  Yes,  mdeed,  the  going  on  board, 
3g  in  a  posture  to  attack  the  kind's 
As  to  the  fault  you  find  with  the  m- 
t,  there  is  a  fault,  but  not  in  point  of 
ley  might  have  laid  it  more  generally, 
have  ^ven  more  evidence. 
I  Powis,  However  it  is  well  enough, 
f  ou  to  say  because  they  did  not  actually 
is  not  levying  a  war  ;  it  is  not  plain 
ey  did  intend.  That  they  came  with 
sntion,  that  they  came  in  that  posture, 
f  came  armed,  and  had  guns  and  blun- 
9S,  and  surrounded  the  ship  twice ; 
me  with  an  armed  force;  that  is  a 
ivideoce  of  the  design. 
J.  You  would  make  no  act  to  be  aid- 
assisting  but  fighting. 
^hipp$.  Then  next  1  am  in  your  lord- 
idgroent,  wlietber  the  statute  of  28  of 
by  whidi  captain  Vaughan  is  tried,  is 
S  and  be  not  repealed  by  the  1st  and 
Philip  and  Mary,  whieh  saith,  that  all 
I  canes  of  treason,  shall  be  at  the  cotn- 
r.  Now  by  the  common  law,  before 
mtrfU  Hen.  8,  treason  done  upon  the 
I  tried  before  the  admiral,  or  his  lieute- 
ind  ny  lord  Coke,  in  the  12  Rep.  in  the 
tke  Mlniralty,  aaith,  the  junsdiction 
idmirahjis  by  the  common  law.  By 
me  33  Hco.  8,  trtMon  ooufinsed  be- 


fore three  of  the  privy-council  might  lie  tried 
in  a  foreign  county,  but  that  statute  is  repealed 
by  the  statute  1  and  2  of  Philip  and  Mary  ;  for 
by  the  statute  33  Hen.  8,  c.  4,  treason  com- 
mitted in  Wales,  might  be  tried  in  what  county 
the  king  would  assij^  ;  but  since  tlie  statute 
of  Philip  and  Mary,  it  must  be  in  the  iiroper 
county  ;  so  that  we  are  in  your  lordship's 
jud^ent,  whether  the  statute  of  28  Hen.  8 
be  m  force ;  and  whether,  since  the  statute 
of  1  and  2  Philip  and  Mary,  treasons  done  upon 
the  sea,  ougbt  not  to  be  tried  before  the  ad- 
mirals or  anciently  at  the  common  law  ?* 

L,  C,  J,  This  is  treason  by  the  common  law, 
and  the  trial  is  by  the  method  of  the  common 
law. 

Mr.  Phippi.  It  is  true  that  my  lord  Coke, 
and  other  authorities  say,  that  the  statute  35 
Hen.  8,  for  trying  treasons  committed  beyond 
sea,  is  not  reiiealed  by  the  statute  of  1  and  S 
Philip  and  Mary  ;  but  they  do  not  say  that 
this  statute  is  not  repealed  by  the  statute  of 
Philijp  and  Mary ;  and  the  books  beiofj^  silent 
in  this,  is  the  reason  why  I  propose  this  ques-  > 
tion  for  your  lordships'  judgment. 

X.  C.  J.  It  is  no  mord  a  question  than  th« 
trials  of  foreign  treason,  and  then  the  determi- 
nation of  the  trials  upon  the  35th  determines 
the  question  upon  this. 

Dr.  OldUh,  We  must  have  two  witnesses  by 
the  rules  of  the  civil  law ;  an  extnyudicial 
saying  of  a  partj  may  be  retracted  by  them  at 
any  time,  that  is  the  civil  law,  and  lo  there 
can  be  but  one  witness. 

L.  C.  J.  That  is  not  the  law  of  England. 

Dr.  Oldish,  I  do  humbly  conceive  that  the 
civil  law  is  not  taken  a^ay  in  this  case ;  for 
though  the  statute  prescribes  the  form  of  pro- 
ceedings according  to  tlie  rules  of  the  com- 
mon law,  yet  as  to  the  crimes  and  proots,  the 
civil  law  is  still  in  force ;  and  then  the  party 
may  retract  his  confession  in  judgment,  mucu 
more  any  extrajudicial  saying. 

Mr.  Whiiaker,  You  are  arraigning  the  ver- 
dict. 

L,  C.  /.  That  you  should  have  taken  notiea 
of  before  the  verdict  was  given.  But  we  think 
there  is  no  danger  in  hearing  this  objection, 
because  it  is  so  easily  answered.  How  many 
witnesses  were  to  the  confession  ? 

Sir  Ch.  Hedges.  We  are  not  in  a  court  that 
proceeds  aecording  to  the  strict  rules  of  the 
civil  law ;  but  if  we  were,  that  law  is  not  so 
absurd  as  to  allow  that  a  party  may  retract  his 
confession  at  any  time,  so  as  to  make  it  have 
noefiect. 

Dr.  OldUh.  There  must  be  two  witnesses  at 
any  time. 

Sir  Ch.  Hedges.  So  there  are  here  to  the 
coniession ;  but  yon  mistake,  if  you  think  that 
every  particular  is  to  be  provnl  strictly  as  the 
civil  law  requires;  for  the  end  of  the  statute 
whkh  directs  the  proceedings  of  this  court,  was 
to  faciliute  the  meUAd  of  making  prools,  that 
being  found  difficult  by  the  course  of  the  civil 

•  £nrt'sF.C.c.9,s.iO. 


5S5] 


8  WIIXIAM  III. 


Triii!  of  Captain  Thomas  faughan. 


[sa. 


law  ;  and  therefore  wa*  that  statute  made,  as 
plaiuly  apjiears  bv  the  preamble  thereof. 

Dr.  Oldish.  There  is  a  new  statute  that  re- 
vives that  statute  agaiu,  and  that  requires  two 
witnesses ;  whereby  it  is  reduced  to  the  rules 
of  the  civil  law  a^aiu. 

L.  C\  J.  Two  witnesses  there  must  be ;  but 
then  consider  it  is  not  necessary  to  have  two  to 
every  individual  overt- act:  for  suppose  there 
be  two  overt- acts  laid  in  the  indictments,  for 
one  species  of  treason,  compassing  and  inui- 
gining'  the  death  of  the  king;  if  Uiere  be  one 
witness  that  he  bought  a  da<^gcr,  and  said  he 
would  kill  the  king,  and  he  is  seen,  it  may  be, 
cuing  to  the  king's  bed-chamber  wtlh  the 
i!aif;rer,  another  witness  says,  he  said  he  would 
kill  t!ie  king  with  a  pistol,  and  bought  a  pistol, 
and  4ie  stood  waiting  to  kill  the  king  as  he 
came  by  ;  tliat  is  an  ovi>rt-act  of  tlie  same 
tveusou.  If  one  witness  prove  one,  and  ano- 
ther wit.ioss  prove  the  other,  that  is  suificient 
proof  \r,iU  us 

Dr.  Otdish.  It  is  another  qu^tion,  whether 
lie  be  a  subject  ? 

L.  C  J.  'Hiat  is  not  an  overt- act ;  if  there 
be  one  witness  to  that,  Jt  is  enough,  there  nee<1s 
not  two  wiuicsses  to  prove  him  a  subject  ;*  but 
iipou  the  trial  there  were  above  two  witnesses 
to  prove  it,  that  was  Criitendcu  the  marshal 
;Of  Dover,  Creagh,  and  Rivet.  1  must  tell  you 
as  the  doctrine  of  the  civil  law,  it  is  not  univer- 
sally received  in  all  countries;  it  is  received  in 
several  countries  as  they  find  it  convenient,  and 
not  as  obligatory  in  itself. 

Dr.  Oldish.  Yes,  in  all  places,  n.^  to  proof; 
for  it  is  tUc  law  of  God  and  nations,  <  ex  ore 
*■  duorum,  vcl  ti'ium/  &c.  and  one  wiuicss  is  no 
vitness. 

Sir  Ch.  Hedges.  Two  witnesses  may  be  ne- 
cessary to  convict  a  man  of  any  capital  criuic, 
hut  then  it  doth  not  follow  that  there  must  be 
two  witncss'isto  prove  every  i>articular  fact  and 
circuinst:ince.  Jti  this  point,  touching  the 
place  of  nativity  of  Thomas  Vaughan,  was 
there  not  sufficient  in  his  own  confession,  to- 
gether with  ihe  otlier  proofs  on  the  king's  be- 
lialf,  to  throw  tlie  burden  of  proof  upon  the 
prisoner?  You  youi selves  seem  to  have  been 
of  that  opinion,  you  undertook  to  prove  it,  and 
it  is  you  tiiat  have  failed  in  that  particular. 

L.  C.  J.  Our  trials  by  juries  arc  of  such 
consideration  in  our  law,  that  we  allow  their 
dctermtnatiou  to  be  best,  and  most  advanta- 
geous to  the  siiliject ;  and  therefore  less  evi- 
tlence  is  required  than  by  the  civil  law.  So 
said  Fortescuc  in  his  commendation  of  the  laws 
of  Englantl. 

Or.  Oldish.  Becanse  the  jury  are  witnesses 
in  reality,  according  to  the  laws  of  £nglan<l, 
being  presumed  to  1m!  'ex  vicineto  ;'  but  when 
it  is  on  the  high  and  open  seas,  they  are  not 
then  presur^unl  to  Im*  *  ex  vicineto,'  and  so  must 
1»e  instructed  according  to  the  rules  of  the  civil 
Jaw  by  witnesses.  -  - 

BaroD  Powit.    This  is  not  a  trial  by  the 


f  JEwt's  PI.  Cr.  c,  2,  8. 65. 


civil  law ;  for  that  statute  was  made  to  W9d 
the  niceties  of  your  law. 

Just  Ejfre.  fie  is  tried  with  like  evidoDct 
as  in  other  cases  of  high  treason. 

Dr.  Oldith.  Mo,  the  late  act  reqaim  two 
witnesses. 

CI.  of  Ar.  Blake  proclamation  of  silenee. 

Cruer.  All  manner  of  persons  are  com- 
manded to  keep  silence,  while  jodgueol  it 
givinu^,  upon  pain  of  imprisouroeot. 

And  then  Judgineut  was  given,  aooordinf 
as  the  law  directs  in  cases  of  High  Treaioii. 

The  COMMISSION  of  Captain  Thoxai 
Vaughan,  which  he  had  by  Order  of  tbe 
French  King. 

"  Ijowis  Alexander  of  Bourbon,  earl  ofToi* 
louse,  duke  of  Amville,  commander  of  Iht 
kind's  orders,  governor  aud  lieulcuant-geoenl 
for  nis  majesty  in  the  Province  of  Britany,  ptcr 
diid  admiral  of  France  :  to  all  those  wlioifaill 
see  these  present  letters,  grectjng.  Thekiif 
having  declared  war  against  his  Catbolie  M- 
je^ity,  the  favourers  of  the  ofthi 

crowns  of  England  and  Scotland,  and  iht 
estates  of  the  United  Provuiccs,  for  the  m- 
sons  contained  in  the  declarations  published  by 
his  majesty  throughouttheextent  of  his  kiof* 
doni,  countries,  lands,  and  lordships  under  liii 
ol>ctlience:  and  his  majesty  having comoiaiMM 
us  to  take  care  that  the  said  dcclaiation  he  ob- 
served, in  what  doth  depend  upon  the  power 
and  authority  which  his  majesty  hath  bees 
pleased  to  cuumiit  to  our  sai«l  charge  of  ad- 
miral ;  we  have,  accordiu*^  to  lUe  exjireM 
orders  of  his  said  majesty,  jriven  leave,  jiower 
and  permission  to  Thomas  \uughaii,  Ii\in«rat 
Bulloigne,  to  arm  and  set  forth  in  wariiU 
n'anner  a  baiU,  called  the  Loyal  Clencarly, of 
the  burtlicn  of  ten  tons,  or  therealiouts,  which 
is  at  present  in  the  port  of  Bulloigne,  wiA 
such  number  of  men,  caunons,  bullets,  p(W- 
dcr,  slK>t,  aud  other  ammunitions  of  vtr, 
and  pnivisions  which  are  necessary  to  setbcr 
out  to  sea,  in  a  condition  to  sail  aud  cniiu 
upon  the  pirates,  and  others  without  conimi^' 
sion,  as  also  upon  the  subjects  of  his  Catholic 
majesty,  the  estates  of  the  United  ProviDTCS, 
the  favourers  of  the  of  the  cfn** 

of  England  and  Scotland,  and  other  eontmd 
this  estate,  in  what  places  soever  he  can  ineti 
them,  whether  it  be  upon  the  coasts  of  tbrii 
country,  in  their  ports,  or  rivers ;  also  apM 
their  shores,  or  places  where  tlie  said  captain 
Thomas  Vau<;ban  shall  think  tit  to  biM  » 
annoy  the  said  enemies  ;  and  there  to  laib 
use  oY  all  the  means  anid  arts  permitted  u' 
used  by  the  laws  of  war,  to  take  then  u' 
bring  them  prisoners,  with  their  ships,  v*^ 
and  other  things  in  their  possession.   . 

*'  Provided  tlie  said  Vaughan  shall  kM^ 
and  cause  those  of  his  crew  to  keep  the  Wi- 
time  orders,  and  that  shall  he  carry,  duru|hii 
voyage,  the  flag  and  ensign  of  the  Kii|^ 
Arms,  and  of  ours,  and  eanse  the  preMBtM 
mission  to  be  rpgiatered  in  tbe  rPfut'/  '^ 


nearest  admiraUy  where  he  tliall  be  eqiii|i|)eJ» 
ADil  leave  ihfrc  a  roll  signed  and  certilied  by 
btm,  coDtainm*;  ilie  namei;  am)  siraames^  the 
iiirUis  and  residence  of  his  crew  ;  ami  mnke  his 
return  to  llic  suid  place*  or  some  other  port  oi" 
I'^mijce,  ftiid  m<tkc  hi>i  rt  purr  hc<hre  the  officers 
of  Uie  Admiralty,  and  uu  oihei*,,  of  whuishnU 
happened  during  his  toyaj^e^  ami  ^fire  ut 
le  ttu^reiif,  ami  seiid  his  Kan)  rep*iTt  (o  the 
Seen  irral    of    the    marine,    with    the 

|iA)  iiig  Ihe  same,  th;it  ive  may  give 

i4ich  unjtrh  iii*.'reupOQ  as  may  he  necessary 

**  And  we  pray  amJ  re<^iiireftHkiDj^,priijces, 
poleDtutes^soveret^ns^e^italeii,  rejmhii(!s,  iiiemlii 
fend  allie?*  «f  thi^^  croun,  anrl  all  others  In 
whom  it  »han  appertain^  to  give  to  the  tiaiiJ 
^augbiti  all  favour,  aid,  assii^larice  and  stic- 
<eour  iti  ihfir  porl«,  %vilh  h'ts  saiil  vessel »  com- 
and  prizes,  which  he  shall  take  during: 
f  oyasfe,  witliout  duing-,  or  suiferiiig'  in  he 
lie  to  hito  any  trouble  or  hindrance  ;  oHer* 
ttif  if*  do  the  like  when  we  shall  he  by  them 
tbirreunto  required. 

**  And  we  do  com  maud  and  require  all  marine 
dficers,  and  others  to  whom  it  shall  appertain, 
H  let  him  safety  and  freely  pass  with  \m  said 
ffssel,  arnis  and  tompany,  and  itie  prizes 
ifhich  he  shall  take,  withotit  doing,  or  suffer- 
ings to  be  done  to  Uini  any  trouble  or  biiidrance ; 


]  but  on  the  contrary,  to  give  him  all  succour 

!  and  assistance  that  &liatl  l^  necessary.      Thcbe 

'  presents  to  be  ol^  no  force  after  one  year,  from 

the  day  of  the  date  hereof. 

I      *'  fa  witness  whereof  we  have  KijL^ned  the0f> 

;  preNenti,  ami  caused  iheni  lt>  he  sealed  with 

the  seal  of  onr  armSf  and  coniiier-sig-ued   by 

the  secretary -general  of  the  marine,  at  Ver- 

saitl^,  the  lOtb  day  of  the  month  of  July, 

161»6,  L»  A.  DE  Bourdon.*' 

♦^  By  my  IoihI  de  Valleticour/*      (L.  8.) 

"The  present  Commission  was  regislered  in 

the  aduuralty  of  BiilWigne,  after  havioj^  been 

.  g-bCJi  by  lis  .lames  Abbot  de  la  Cocherinc,  the 

kin^^s  counsellor,  deputed  to  the  iutendency  of 

.  Bulluig'ne,  exereisiug"  the  charge  of  tieutenant' 

'  general  of  the  aduiirallv,  in  the  presence  of 

'  the  kin  fir's  proctor,  at  the  request  of  the  said 

captam  VaughaUt  beiug;^  present,    whom  we 

haie  permitted  to  sail  and  cruL^e  upon  the  ene* 

mies  of  the  estate.     Dons  at  Bulloigne  tb« 

14th  of  July,  1696.  Maoinon. 

"  Versionem  banc  Auglicanam  in  omnibus, 
com  sun  origlnali  Gallio  eon  vent  re  testor, 

♦*  WlLHELMUS  H0CR£,  Not.  Pub." 

He  was  afterwards  executed  according  tu 
Um  Sentence^ 


594^  Proceedings  in  Parliament  against  Sir  John  Fknwick,  bait» 
upon  a  Bill  of  Attainder  for  High  Treason  ;  8  William  III, 
A.  D.  1696."* 


Proceedings  in  the  House  of  Commons. 

November  6f  A,  IQ96. 

LD^IRAL     RUSSELL    acquainted     the 

Ifuuse   of  (Jommouft,   that    hi^   majesty    hail 

^ifen  leave  to  lay  before  ihe  House,  several 

^^pem  in  the  nature  of  iQlbrmations  of  sir  John 

^^L      •  4(  There  was  iiidetd  reason  to  apprehend 

^H^mnult^  I  for  now,  after  the  quten's  death,  the 

^■-Jacobites  be^aii  to  thiak,  (but  the  ^^overmnent 

^■^had  lo«t  tbe  half  of  its  streiit^th,  and  that  things 

^B   oiHild  not  be  kept  quiet  at  home,  when  tbekiug- 

^P   •hould  be  beyond  aea.       Some  pretended,  they 

^    were  for  pu1iini«-  the  princess  in  her  sister's 

|»hice  ;   hut  that  was  only  a  pretence^  to  which 

the  gave   no  sort    of   encouran^ement:    king; 

itraes  lay  at  bottom.    They  fiiucied,  an  in?a- 

(tiaa  in  the  kind's  alisence  would  lie  an  easy 
attempt,  which  would  meet  with  little  resist - 
«OCir:  so  they  sent  some  over  to  Frauee,  in 
particular  one  Charnock,  a  fellow  of  Magdalen 
4<»)lege,  who  in  kin^  Jameses  time  had  turne<l 
Pa)Hai,  and  waa  a  hot  and  active  agent  amon^ 
tbetn  :  ihey  undertook  to  bring  a  btidy  of  2,000 
'bane,  to  meet  such  an  army  as  shouhl  be  sent 
^Vifr;  but  Charnock  came  back  with  a  cold 
•jM)cauult  that  nothing  could  be  done  at  that 
im^i  Mpon  which  It  w^  thought  necessary 


Fen  wick,  in  which  be  and  several  other  persont 
of  quahty  were  named  ;  ami  desired  that  they 
mig;ht  he  brought  up  to  the  tabic  and  rtad  ;  and 
that  he  might  ha^e  au  opportunity  lo  jusiify 
himself,  or  if  he  did  not  that  he  mit^ht  fall 
under  the  censure  of  the  House.  And  Mr« 
Secretary  Trumbull  hein{v  present,  did  say, 

to  send  over  a  man  of  quality,  iv  ho  should  press 

the  matter  with  some  moie  autliority  :    so  the 

I  earl  uf  Ailcj^bury  wasa  pref  aittsd  on  to  go  :    hi: 

was  adniiitcd  to  a  secret  cotiversatian  witli  llm 

^  French  king :    and  this  ^aie  rise  to  a  design, 

which  was  very  near  being  executed  the  loU 

j  lowine;^  winter. 

I      *'  But  if  sir  Johu  Fen  wick  did  not  slander 

king  Jauies,   they   ut   this   time  propl»!>(^d    a 

j  shorli'r  and  more  infallible  way,  by  assassinot- 

,  ing  the  kintf ;    for  he  said,  thai  ^ome  camo 

j  over  friHu  Fmuce  about  this  time,  who  assured 

I  their  party,  and  himself  in  particular,  that  a 

commis^jion  was  comiu*;  over,  (iiix^ied  by  kin«;^ 

James,  which  they  attirmed  they   had  seen, 

warranting  them  to  attiick  the  king's  persou, 

Thia,  it  is  true,  was  not  yet  arrived  ;  but  aome 

aUirmed,   they   had  seen  it,  aud  that  it 

iruBted  to  one^  who  was  on  hla  way  hither ; 

therefore,  since  the  king  wu^  so  near  goings 

over  to  Holland^  that  6e  would  probablv  be 

a 


539] 


8  WILLIAM  III.         l^roceedings  against  Sir  John  Fetttsickt         [540 


that  he  had  his  majesty's  leave  to  lay  those 
papers  before  the  House ;  and  if  the  House 
pleased,  he  would  bring  them  up  to  the  table. 

And  accordingly  (the  House  shewing  a  ge- 
neral inclination  lor  it)  they  were  brought  up 
to  the  table  and  read  (being  the  account  he  gave 
of  the  last  plot  under  his  own  hand,  and  his 
eminination  taken  by  Mr.  Vernon,  afterwards 
upon  his  trial  produced) ;  and  after  the  same 
was  read,  the  House  ordered,  that  sir  John 
Fenwick  should  be  brought  immediately  before 
them  ;  and  that  no  person  should  in  the  mean 
time  speak  with  him,  or  give  or  receive  auy 
paper  from  liim.  And  the  House  further  or- 
dered that  the,  lord  Cutts,  sir  Henry  Hobart, 
and  Mr.  Norris,  three  of  tlieir  members,  should 
see  their  order  executed,  and  in  the  mean  tune 
adjourned  to  the  afternoon. 

Abont  five  o'clock  in  the  afternoon,  sir  John 
Fenwick  was  brought  with  a  strong  guard 

grhich  the  lord  Cutts  had  taken  care  fur)  to  the 
ouse ;   and  being  brought  to  tlie  bar,  Mr. 
Speaker  spake  to  him  thus: 

Mr.  Speaker,  Sir  John  Fenwick,  the  House 
understands  that  you  have  shewed  some  incli- 
nations to  make  a  discovery  of  tlie  designs  and 
practices  of  the  enemies  of  the  government ; 
you  have  now  an  opportunity  to  do  it ;  and 
the  House  require  it  from  you,  that  you  make 
a  full  and  ample  discovery  of  all  you  know  of 
tbat  matter. 

Sir  John  Femcick.  Mr.  Speaker,  I  suppose 
tbe  House  is  not  ignorant  of  my  circuni^tauces. 
I  am  indicted  of  high- treason,  and  iiave  licen 
arraigned  :  what  i  have  done  to  serve  thr  kiirr 
and  nation  his  tiiajosty  knows ;  it  iiath  been 
communicated  to  him  by  his  privy  council.  1 
do  not  know  but  what  I  say  may  hurt  n^.y^ch  ; 
and  therefore  I  desire  that  1  may  have  sonic 
security  for  myself,  and  1  am  willing  to  tell 
the  full  of  all  1  know. 

Mr.  Speaker.    Sir,  if  you  please  to  wiihdraw 

gone  before  the  commission  Ciuild  be  in 
England;  it  was  debated  among  the  Jaco- 
bites, whether  they  ou'^ht  nut  to  take  the  first 
opportunity  to  execute  this  commission,  even 
though  they  had  it  not  in  their  iiands:  It  was 
resolved  to  do  it ;  and  »  day  was  set  for  it ;  but 
as  Fenwick  said,  he  broke  the  (]e>ii;'n ;  and 
sent  them  word,  that  he  noul<l  discover  it,  if 
they  would  not  promise  to  ifive  over  the 
thoughts  of  it:  and  upon  this  reason,  he  bc- 
lieve<l,  he  was  not  let  into  the^<ecrot  the  follow- 
ing winter.  This  his  lady  tol-.l  mc  from  him, 
as  an  article  of  merit-to  obtain  his  pardon  :  but 
he  had  trusted  their  word  very  easily,  it  seeins, 
since  he  gave  the  king  no  wanting  to  be  on  his 

guard  ;  and  the  two  witnesses,  whom  be  said 
e  could  produce  to  vouch  this,  were  then 
under  prosecution,  and  outlawed  :  so  that  the 
proof  was  not  at  hand,  and  the  warning  had 
not  been  given,  as  it  ought  to  have  been.  lUit 
of  all  this  the  government  knew  nothing,  and 
■us|)ectcd  nothing  at  this  time,"    Burnet. 


for  the  present,  the  House  will  aend  yonthdr 
pleasure. 

[Sir  John  Fenwick  withdrew,  and  was  called 
in  again.] 

Mr.  Speaker  (Mr.  Paul  Foley).  Sir  Jobs 
Fenwick,  since  you  withdrew,  the  House  btve 
considered  of  what  yoo  said  at  the  bar.  They 
do  not  think  what  you  said  is  an  answer  to  wbt 
they  require ;  they  do  ez|iect  a  full  and  candid 
confession  from  you  of  what  you  know ;  tod 
they  think  that  the  best  way  tor  you  to  oblaio 
the  favour  of  the  House  is  to  deal  ingenoously 
with  them- 

Sir  John  Fenwick.  Sir,  1  am  in  the  hands  of 
the  law,  and  1  would  not  do  any  thing  tbatUi 
majesty  mij^ht  be  an^y  with;  for  I  do  est 
know  It  is  Avith  his  majest^''s  consent :  I  bare 
acquainted  him  fidty  with  all  I  know  of  tbe 
matter ;  this  is  all  the  account  I  can  give  yea 
at  this  time.  It  is  a  dangerous  point  tbtf  I 
am  under ;  I  know  not  but  I  may  come  to  my 


trial  in  a  few  days :  and  what  1  may  say,  nay 
rise  up  against  me  in  a  court  of  judicature:  1 
humbly  propose  it  to  the  house,  if  they  doMt 


think  it  a  hard  case  tor  me  to  make  any  < 
sion  here,  when  his  majesty  hath  alt  I  kooir, 
1  shall  be  very  ready  to  do  what  this  honoaraUe 
House  pleases  to  command  me ;  but  1  dcm 
this  House  \i  ill  consider  my  circumstances.  I 
would  not  offend  the  king,  nor  offend  thisHooM; 

Thereupon,  Mr.  Sj)eaker  again  spoke  to  him 
to  withdraw :  and  beuig  withdrawn,  the  Hoiae 
debated,  whether  they  should  acquaint  him 
with  their  having  those  Papers  of  Informatioo. 
iiut  they  did  not  think  fit  to  do  it  for  this  rea- 
son, becixusp  they  thought  these  Papers  were 
a  contrivancrc,  and  made  by  others  for  bim; 
and  that  the  best  way  to  get  the  truth  oat  of 
him,  would  be  for  him  to  tell  his  own  story, 
besides,  if  the  House  should  let  him  know  they 
had  those  Papers,  he  would  only  refer  to  thote 
Papers,  as  he  had  lately  done,  when  be  WU 
examined  by  the  king  ani^  council. 

It  was  also  debated,  whether  there  shoohl 
bo  any  thre-ilening  words  used  towards  himi 
but  they  thoun^ht  that  uot  proper ;  for  hif 
confession  ou"fut  to  be  tree  and  natural. 
It  was  also  debated,  whether  they  should  take 
notice  of  his  majesty's  consent;  but  thatwM 
not  tliought  fit,  being  thought  derogatory  to 
the  privileges  of  the  House.  So  the  House 
ordercfl  hitn  to  be  called  in  again ;  and  Mr. 
Speaker  dclivei-ed  the  sense  of  the  House  to 
him  in  these  words : 

[Sir  John  Fenwick  at  the  Bar.] 

Mr.  Spcfiktr.  iSir  John  Fenwick,  the  HooR 
has  considered  of  what  you  have  Siiid,  to  eX* 
cusc  your  luakiug  a  discovery  of  your  know- 
Icdgi' of  the  designs  and  practices  of  the  ene- 
mies of  the  government ;  and  they  think  whit 
you  stand  upon  is  only  an  excuse ;  they  t' '  * 
you  have  no  reas<m*to  apprehend  the  ! 
shuuUI  b(*  angry  with  you  tor  making  any- J 
covery  to  this  House,  this  being  the  proper  fl' 
to  enquire  of  all  things  that  do  relate  to  the! 


II]  upon  a  Bill  ff  AUainderi 

Jfrarernment,  especially  his  majesty's  safety; 
III  von  ousfht  to  discover  to  tbiem  what  you 
WW.  As  to  what  you  stand  upon,  that  you 
ould  not  be  prejudiced  by  what  you  discover 
fe,  1  am  commanded  to  tell  you,  they  do 
ke  notice  by  what  you  hare  said  liere,  that 
>ubaTe  already,  notwithstandiDg  what  you 
y,  discovered  it  to  the  king  and  council :  and 
e)-  command  me  to  tell  you,  that  you  have 
I  reason  at  all  to  apprehend,  that  vou  shall 
ITfr  any  tbin^  if  you  make  a  full  ana  free  dis- 
very  here ;  no  man  that  ever  did  so,  and  dealt 
nditlly  with  this  House,  ever  did :  it  is  in 
<ur  power  to  deserve  the  favour  of  the  House ; 
is  required  by  the  House,  that  you  make  a 
Kovery ;  and  this  is  the  last  time  that  you 
e  like  to  be  asked  to  do  it. 
Sir  J.  Fcnvick.  Mr.  Speaker,  I  know  not 
»t  answer  to  make  to  this  House ;  I  would 
t  willingly  ofiend  it ;  what  I  have  informed 
eking  of  n  a  great  deal ;  and  a  man  would 
re  some  little  time  to  recollect  himself;  and 
lare  been  kept  a  very  close  prisoner,  and  had 
oonvcnlency  of  pen,  ink,  and  paper;  it  is 
rd  to  remember  just  of  a  sudden  ;  and  I  would 
Din^y  be  secure  bis  majesty  will  not  be  an- 
)r  witn  mp.  I  was  in  hopes  that  his  majesty 
Hdd  have  informed  the  House  himself ;  he 
tb  all  that  I  know ;  my  circumstances  arc 
rd,  1  am  in  danger  every  day  to  be  tried,  and 
lesire  to  be  secuiied,  that  what  1  say  shall  not 
e  up  in  judgment  against  me;  it  is  hard  to 
die  me  accuse  myself  under  these  circum- 
iDces,  and  very  hard  to  put  me  on  it  now. 
Mr.  Sptuker,  As  to  what  you  say  relating 
the  fear  of  his  majesty's  displeasure,  and  the 
XT  excuse,  you  liave  bad  your  answer  al- 
idy.  As  to  what  you  say  relating  to  time,  if 
« will  now  declare  what  you  know  and  re- 
Mnber,  the  House  will  take  it  into  considera- 
o,  whether  tbey  will  give  you  farther  time 
make  up  the  rest. 

tJir  /.  Fenwick.  Sir,  his  majesty  hath  all 
inly ;  it  in  impossible  for  roe  to  inform  you 
it  wiUiuut  accusing  myself:  I  do  not  really 
mr  what  to  ask  but  a  little  time,  if  tbey 
•sM  Tilnse  to  give  it  me. 
Mr.  S/tettker.  Sir,  you  know  already  what 
?  llnusL'  requires  of  yon. 
^T  J,  Fenuick.  1  do :  but  it  is  no  excuse 
itlhaie  made:  what  I  have  told  is  truth, 
Ihebcttof  my  knowledge:  i  am  not  very 
•d  at  speaking ;  and  if  1  might  have  a  littie 
M,  1  shall  do  what  they  please  to  command 
i. 

Mr.  Speaker,  if  that  be  all  you  have  to  say, 
jw  please  to  withdraw,  you  shall  know  the 
s  of  the  House. 


ir  John  Fenwick  withdraws.     Is  called  in 
again.) 

Vr.  i!|pcalEer.  Sir  John  Fenwick,  this  House 
ncaasidcred  what  you  stood  upon  when  you 
ft  here  last,  that  your  memory  was  bad,  and 
Hyei  desired  time ;  but  the  House  think  it 
■■tier  of  great  flDoment  to  the  king  and  the 
nfe  BrtioD,  Ibat  those  that  are  their  enemies 


A.  D.  1696.  [548 

should  be  discovered  as  soon  as  possible;  and 
this  being  a  matter  within  your  knowledge,  the 
House  do  not  think  fit  to  give  you  time ;  but 
if  they  find,  by  your  discovery,  that  you  dad 
c&ndidly  and  ingenuously  with  them,  and  have 
told  them  as  much  as  vou  know  upon  your 
memory,  they  will  consfder  of  your  request  of 
giving  Vou  time  for  the  rest. 

Sir  J.  Fenwick.  When  first  1  spake  to  the 
piivy -counsellor,  I  proposed  it  to  him,  whether 
1  nMght  have  a  pardon  without  bt'iof^  an  evi- 
dence against  anv  man  ;  and  in  that  case  I 
would  ser>'e  the  £ing  so  as  to  tell  him  all  that 
1  knew.  It  was  ujion  honour  that  1  did  it  to 
him,  and  he  took  the  words  iu  writing  from 
mc,  and  sent  them  to  the  king  in  Flanders. 
The  king's  answer  was.  That  he  made  no  ob- 
jection as  to  my  being  an  evidence,  nor  his  giv- 
ing mc  a  pardon ;  but  that  1  could  expect  no 
pardon,  till  he  knew  what  I  could  say :  upon 
that  I  was  encouraged  to  do  what  I  did  for  his 
majesty's  service ;  and  have  found  in  all  my 
business  since,  whatever  1  do  or  say,  tlie  an- 
swer is,  it  is  not  satisfactory ;  and  1  am  where 
1  was.  When  this  was  done,  there  was  a  mes- 
sage sent  to  me  from  the  lords  justices.  That 
this  was  not  satisfactory,  and  I  must  tell  all  1 
know:  now,  when  a  man  hath  told  all  he 
knows,  and  this  must  still  be  the  answer,  it  iflf 
very  hard.  The  king's  answer  was.  That  I 
should  more  fully  msS^e  fi^ood  what  1  had  said. 
Sir,  I  did  af^r wards  explain  what  I  had  in- 
Ibrmed  that  honourable  person,  and  still  it  was 
not  satisfactory.  1  hope  I  shall  not  find  tht« 
from  this  honourable  House:  I  am  upon  my 
life,  and  I  hope  this  House  will  consider  of  it : 
I  know  this  House  is  good  security  if  I  had  it; 
but  till  I  have  it,  I  am  under  these  circum* 
stances,  and  I  may  at  last  be  told  all  is  not  sa- 
tisfactory :  I  desire  the  House  will  please  to. 
considtTuf  it. 

Mr.  Speaker.  Sir,  you  know  the  pleasure  of 
the  House ;  you  know  what  they  require  of 
you. 

Sir  J.  Fentiick.  1  am  very  nnwilling  to  offend 
the  House  ;  but  these  arc  very  hard  circum- 
stances, to  1)0  told,  when  1  have  done  all  I  can» 
it  is  nt)i  satisfactory. 

Mr.  Speaker.  Sir,  you  know  what  the  House 
does  cx^iect ;  you  must  either  give  them  satis- 
faction IU  it,  or  withdraw.  (Accordingly  he 
withdrew.)  And  a  motion  was  made  for  leave 
to  bring  in  a  Bill  io  attaint  sir  John  Fenwick  of 
high-treason;  and  af^  a  debate  thereupon, 
the  House  divided.  Yeas,  179.  Noes,  61. 
So  it  passed  iu  the  ailirmativc. 

November  9.  The  Bill  was  presented  to  the 
House ;  and  afVer  a  long  debate,  the  question 
was  put  for  the  seoond  reading  of  it ;  where- 
upon the  House  divided.  ^  cas,  19(i.  Noes, 
104.  So  it  passeil  iu  the  affirmative,  and  Fri- 
day morning  was  appointed  for  it.  The  same 
day  the  House  onlercd.  That  sir  John  Fenwick 
should  have  a  copy  of  the  Order  for  reading 
the  Bill  the  second  time,  and  a  copy  of  the 
Bill ;  and  that  he  should  he  allowed  pen^  ink, 


5431 


8  WILlIAM  III. 


and  paper.  And  further  ordeml,  That  Mr. 
Attorney  General  and  Mr.  Solicitor  General 
thould  prepare  and  produce  the  evtdeDce 
against  him  on  Friday  muming. 

And  Mr.  Sfieaker  this  day  acquainted  the 
Honae,  that  he  had  rcceive«l  a  letter  from  Mr. 
Fuller,  whicli  he  thought  fit  to  acquaint  the 
House  with;  hut  upon  a  qneation  for  reading 
of  it,  it  passeil  by  a  very  great  majority  in  the 
negatife;  so  that  there  was  no  division  u|ion 
that  matter,  but  the  letter  was  writ  in  the  words 
following : 

"Sir; 
"  1  presume  that  no  person  whatever,  in  the 
interestof  the  present  government,  hath  been 
more  actually  en^ged  with  sir  John  Frnwick 
than  myself^  it  bemg  nry  fortune  several  times 
to  bring  letters  to  him  from  the  late  king  and 
queen  at  St.  Germains,  and  to  carry  his  an- 
swers: 1  have  also  been  with  him  at  private 
consults  of  the  late  king's  adherents,  as  my  In- 
formations assert ;  so  tliat  if  I  may  be  service- 
able to  the  detecting  his  treasons,  I  shall  be 
very  ready  to  serve  the  government,  and  to  de- 
monstrate my  integrity.    I  am,  Sir,  &c. 

"   W,  FOLLKR." 

November  10.  Sir  John  Fen  wick  sent  the 
Speaker  a  Letter  in  these  words : 

"  Sir ;  NezcgatCy  Nov,  10. 

<•  I  would  have  addressed  myself  in  the 
humblest  manner  I  could  to  the  honourable 
House  of  Commons,  from  whom  I  received  a 
copy  of  a  Bill  against  me  with  their  order ;  but 
my  keeper  will  not  carry  any  paper  from  me 
but  to  yourself,  to  whom  I  durst  not  presume  to 
send  a  petition  to  deliver  for  me.  Therefore  I 
beg  tlic  favour  von  will  please  to  ac(|iiaint  the 
House,  that  it  Is  my  humble  petition  to  them. 
That  thov  would  give  leave  for  my  counsel,  sir 
Francis  f'emberton,  sir  Thomas  I'owis,  and  sir 
Hnrtholomew  Shower,  to  come  to  me  with  my 
•iolicitor,  Christopher  JDighton,  to  advise  with 
alone.  The  keener  will  not  so  much  os  let  me 
send  the  copy  ot  the  bill  and  order  to  my  soli- 
citor, so  it  is  of  no  u^e  to  me :  1  humbly  beg 
they  will  please  to  give  order,  that  I  may  have 
all  assistance  that  is  necessary  for  me,  and  that 
yon  will  pardon  this  trouble  Irom, 
"  Sir,  your*s,  ^fec. 

•*  John  Fen  wick." 

Upon  this  Letter  they  did  readily  order  that 
lie  should  be  allowed  two  counsel  to  make  his 
deti?nee,  and  that  they  might  be  alone  with 
liim ;  and  atrer  some  debate,  did  give  leave  that 
he  might  have  the  solicitor  he  desire<l,  though 
it  was  said,  his  solicitor  was  a  very  great  Ja- 
cobite ;  ancl  it  was  insinuated,  that  he  was 
suspected  to  be  coiicrrned  in  the  I'scapc  of 
Go<Mlinan  ;  but  it  was  also  said,  that  he  had 
been  made  use  oi'as  his  solicitor  to  prepare  for 
his  Trial,  and  liefore  that,  in  other  matters ; 
and  so  that  it  might  not  be  thought  thiit  there 
was  any  hardship  upon  him,  in  that  respect, 
the  House  thonglit  fit  to  allow  Mr.  Dighton  to 
be  hit  solicitor. 


Proceedings  agahist  Sir  John  Fenivick^        [5i4 

Noveml»e^  J  '2 .  A  I^etition  was  presented  fnor 
sir  John  Fenwick,  as  follows : 


To  the  Hon.  the  Knights,  Citizens,  and  Bw' 
Gtessi^s  ill  Parliament  assembled :  The  hon- 
blc  Petition  of  Sir  John  Fenwick,  bart. 

"  Sheweth, 
"  That  there  lieing  a  Bill  of  AtUinder  branghl 
into  this  (louse  for  the  attainting  of  yborpeli- 
tionci'  of  High -Treason,  and  ^uur  iietitiooer  ii 
advised,  that  there  are  many  weiguty  reaiOBi 
to  be  oflTered  against  the  said  bill :  Vour  pdi- 
tioner  thert'foi  e  most  humbly  prays,  tbst  yosr 
honours  will  be  pleaseil  to  hear  him  bj  \» 
counsel  a^uinst  the  passing  of  the  said  bill  il 
the  bar  ot  this  honourable  If  ouse ;  and  to  ap- 
point such  time  for  the  same,  as  to  your  bo- 
noQrs  shall  .seem  meet.  And  your  petilkns 
shaH  ever  pray,  &c.  "  J.  FE-^wfat.** 

Which  pra3-er  of  bis  Petition  was  gnuiled. 

Nov.  13.  Sir  John  Fenwick  was  broagfet 
to  the  House,  by  order,  from  the  prino  if 
Newgate  ;  and  tliere  being  a  Tcry  great  osa- 
pany  of  strangers,'  both  in  the  Lobby  Mi 
Speaker's  Chamber;  and  the  House  being  ftlf' 
of  members,  to  prevent  the  inconvenience  Ihit 
such  a  number  of  people  crowdinif  in  n^ 
occasion,  the  Lobby  was  ordered  to  be  dmd 
of  all  persons  that  were  not  concerned,  andibi 
the  Speaker's  Chamber,  and  that  the  hack-door 
of  the  same  should  be  locked,  and  the  key  btf 
upon  the  table :  but  it  having  been  said,  that 
the  Lords  did  admit  the  members  of  this  Hoiiie 
to  hear  their  dcbati^s,  there  was  private  inti- 
mation given  the  serjeant  to  let  theui  remaiain 
the  S^ioaker's  Chamber,  when  others  were  le- 
moved. 

Then  sir  John  Fenwick  was  ordered  to  be 
brought  to  the  bar :  but  it  being  a  proceeding 
of  that  nature,  that  none  of  the  aiicientest  mem- 
bers could  give  a  precedent,  it  was  necesaanr 
to  settle  some  preliminaries  ;  and  the  first  quea- 
tion  that  was  moved,  was,  Whether  the  Maes 
ought  to  lie  upon  the  table  wbc:i  sir  J.  F.  ww 
iu  the  House,  or  whether  the  Serjeant  ought 
not  to  stand  by  him  with  it  at  the  barf 

Mr.  Smith.  Sir  John  Fenwick  being  a  pri- 
soner, the  mace  ought  to  be  at  the  wir,  lad 
then  no  member  can  speak. 

Mr.  Boi/le.  This  hearing,  of  any  thing  i 
can  thinlc  of,  is  most  like  the  hearing  of  tf 
election  ;  and  then  the  mace  is  upon  tuetsbtei 
and  every  one  has  liberty  to  speak  and  ask 
queKtions. 

Chancellor  of  the  Exchequer.  (Mr.  Chariot 
Moiituuuer)  The  Mace  ought  not  to  be  upW 
the  table,  becuuste  I>e  is  a  prisoner :  tlie  sberift 
of  Lrindon  can't  have  him  in  custody  here,  aid 
so  tlicy  tlelivei-  him  into  cin»tody  of  tne  serjeiBt 

M I .' ./.  ilouc.  That  argument  would  be  ^li^ 
if  he  coultl  not  Ix;  in  custody  of  the  aegoait 
unless  he  h:ul  the  mace  in  his'hand. 

Mr.  Brother  ton.  The  mace  ought  to  beifV 
the  table,  because  the  bill  is  to  be  md. 

Mr.  Chr,  Miisgrave,   The  mace  otigbtts^ 


545] 


tgoott  a  Bill  ofAitainder* 


A.  D.  1G9G. 


[546 


njMB  the  table.  Ne?eraoy  bill  was  read  but 
tbe  mace  was  upon  the  table. 

Col.  Granville.  If  tbe  mace  be  upon  tbe 
tible  it  would  be  a  jyrreat  hardship  to  the  mem- 
kn  that  they  cannot  speak,  and  a  great  hard- 
ship upon  tiie  prisoner  that  he  cannot  ask  any 
questions.  My  lord  Torrtn^^n  was  brought 
prisoner  from  the  Tower,  and  upon  account  of 
bi!i  quality  the  house  did  not  let  iiirn  go  to  the 
bir:  but  while  he  was  in  the  house,  the  mace 
VIS  upon  the  table,  and  he  gave  an  account  of 
tbe  whole  campaign  ;  and  every  body  was  at 
Eboly  to  ask  what  questions  they  pleased. 

Attorney  General  (Sir  Thomas  Trevor.) 
The  matter  is  very  new :  and  I  think  it  is  ne- 
ONnry  you  resonre  upon  the  method  before 
yoa  call  m  the  counsel,  that  yon  may  acquaint 
the  counsel  with  it ;  I  think  it  not  proper  that 
the  mace  should  be  upon  the  table,  because  be 
b  a  prisoner;  though  it  may  not  be  necessary 
ihit  tbe  Serjeant  should  have  it  upon  his  shouf- 
dcn  aU  the  time,  but  he  may  ease  himself.  I 
believe  you  will  ask  sir  J.  F.  what  he  has  to 
ny,  hot  no  questions  to  make  him  accuse  him- 
kU':  and  I  humbly  propow  it  to  you,  that  after 
the  counsel  is  called  in,  they  may  open  the  na- 
tsre  of  the  evidence  against  sir  J.  F. ;  and 
then,  whether  you  will  permit  them  to  go  on, 
or  they  shall  %vithdraw,  and  the  house  will  con- 
rider  what  questions  shall  be  asked. 

Col.  Mordtiunt.  1  hope  the  questions  will 
U  taken  down  upon  a  paper  by  the  Speaker, 
■id  then  read  to  us,  that  we  may  see  if  they  be 
light,  and  so  asked  by  the  Speaker. 

Kir  ir.  Williami.  If  the  mace  is  not  upon  the 
iibte,  our  mouths  are  muzsded  :  we  are  in  the 
Mturc  erf  judges ;  and  shall  we  |iass  a  vote  that 
the  judfres  shall  not  ask  any  Questions  P 

Sir  iVid.  Djfke.  1  cannot  be  informed  witb- 
wt  asking  of  questions :  [  know  not  whether 
ystt  are  a  House  witliout  it,  without  having 
the  mace  upon  the  table.    And  will  you  act  in 

rmr  hisfhest  cafiacity  without  being  a  House? 
do  not  know  how  it  was  when  the  lord  Tor- 
risgton  was  here;  but  when  the  duke  of  Leeds 
«ai  here,  the  mace  was  unon  tlie  table. 

Mr.  Boyle,  I  wish  you  iiad  appointed  a  com- 
Uttixife  to  have  seuled  the  preliminaries,  and 
ihit  tlie  bill  had  not  been  brought  in  at  all ; 
what  they  labour,  as  a  matter  to  avoid  delay, 
mny  occakioti  more.  For  though,  wlien  you 
carry  the  mace  U  the  table,  no  member  should 
hive  the  lilierty  to  s^ieak,  yet  any  member  hath 
liberty  to  desire  that  the  counsel  may  with- 
diaw,'  and  tht-y  must  withdraw,  and  the  mace 
Bost  be  brouffht  upon  the  table. 

CkuMC.  of  Ejcheq.  That  gentleman  is  cer- 
tainly in  the  right :  but  I  think  the  mace  must 
•St  he  ii;Kin  the  table  till  when  the  prisoner  is 
berr ;  Oiid  I  think  the  questions  must  be  asked 
by  tho  L-hair.  The  longest  examinations  that  f 
lemember  was  of  the  ailmiralty,  and  then  the 
HBcstions  were  asked  by  the  chair.  For  the 
iettsbcu  of  my  lunl  Torriiigtnn,  it  is  true,  he 
bid  not  the  mace  with  him,  nut  he  came  at  liis 
twn  request,  be  came  to  give  voit  an  account 
•f  hif  proceediogs ;  and   in  that  case  not  a 

Vf)L.  Xfll. 


question  was  asked  by  an\  member;  any 
member  hath  liberty  to  pro|M>se  any  questiouy 
but  it  must  be  asked  by  the  chair. 

Afterwards  the  question  was  put,  and  it  pass* 
ed,  That  sir  John  Fenwick  should  stand  with 
the  mace  at  the  bar. 

Then  a  question  arose  about  reading  of  the 
Bill :  some  gentlemen  said,  it  could  not  be  read 
when  the  counsel  was  present,  for  the  mace 
wouU  be  off  the  table;  (and  tliey  seemed  to  be 
under  a  difficulty  by  having  passed  tbe  last 
question;)  others  said,  it  was  not  net^esbary  to 
read  it  whilst  sir  J.  F.  was  present,  he  having 
had  a  copy  of  it;  but  at  last  it  was  thought  rea- 
sonable, it  being  in  the  nature  of  a  charge  upon 
him,  that  it  should  he  read  to  him  when  pre- 
sent with  his  counsel ;  and  it  was  said,  it  was 
done  so  in  the  case  of  indkstments,  though  co- 
pies were  delivered  to  them:  but  it  slioukl  be 
read  only  as  a  matter  of  form,  as  a  charge  to 
which  he  was  to  answer ;  but  it  could  not  be 
reckoned  a  second  reading,  according  lo  the 
rules  of  the  House,  the  mace  being  off  tbo 
table ;  and  therefore  it  should  be  rrad  again 
when  the  counsel  and  he  was  withdrawn.  And 
it  was  said,  that  the  Journals  did  tidce  notice, 
that  in  some  cases,  as  in  the  case  of  an  ad- 
journed debate,  some  bills  bad  been  read  four 
times ;  and  so  it  was  agreed,  and  that  difficulty 
was  solved. 

And  the  serjeant  took  the  mace,  and  brought 
sir  John  Fenwick  to  the  bar ;  and  Counsel  was 
admhted  for  him,  and  for  the  bill,  viz.  Mr. 
Serjeant  Gould,  king's  serjeant,  and  Mr.  Re- 
coitler  Level,  likewise  king's  serjeant  And 
sir  Thomas  Powis,  and  sir  Bartholomew 
Shower,  for  sir  John  Fenwick. 

And  Mr.  Speaker  opened  the  matter  thus : 

Mr.  Speaker.  Sir  John  Fenwick,  the  house 
have  received  Information  that  you  [\Awe  been 
in  a  horrid  conspiracy  against  the  life  of  his 
majesty,  and  for  bringing  in  a  French  force  to 
invade  this  kingdom,  tmit  you  have  been  in- 
dicted thereof;  and  they  have  considered  the 
nature  of  the  crime  with  which  you  stand 
charged,  and  how  destructive  it  r/ould  have 
been  (if  it  had  succeeded)  to  the  very  being  of 
this  kingdom ;  and  therefore,  that  you  maynot 
go  unpunished,  if  you  are  guilty,  have  ordered 
a  bill  to  he  brought  into  this  house  to  attaint 
you  for  high- treason,  which  haih  been  once 
rcad»  and  will  be  now  read  to  you  at  the  bar ; 
and  then  you  will  hear  the  evidence  against 
yon,  and  nave  lilierty  to  make  your  defence  : 
and  though  you  cannot  claim  any  right  there- 
to, this  house  (to  shew  how  reatfy  they  are  to 
favour  you,  in  giving  you  any  reasonaliie  Im'Iii  to 
make  your  defence)  do  allow  you  counsel  to 
assist  you  therein ;  and  having  granted  you  this 
their  favour,  they  doe\'pei*t  that  you  will  make 
a  good  use  of  it.  1  am  likewi^se  to  acquaint 
those  that  arc  your  counsel,  that  this  house  do 
ivckon  their  own  priiilf^mv  will  so  i^uide  tliem, 
as  not  to  give  any  just  offviice  to  this  house  ; 
an<l  that  they  will  not  be  allowed  to  qusatMa 

as 


*iuiuuus  mds.] 

-«»  ^  -  -«*  £-«•««•  i»art.  was,  upon 
1^  and  Cordel 
I  or*  Oyer  aod 

'am  ^    -4  Umd.  on  the 
nt  Hiffli 

and  ad- 


ILLUM  III.         J^icasd^gf  i^aim^  Sir  John  Fenmck,         [518 

^»   --^rnaHiHNa  m  mm  snk  «  tt-    *  «cicd  perMti  (whom  God  long  preserve)  to 

^ift    m^9  wu^  *  icfnMM;  't  »aick  ,  ■  the  late  kin^  Juines  in  Francet  to  invite  and 

•    -.  m  imtiiit  Ml  lodiEe  tnan  any  ,  "  encoorage  the  French  kinj^  to  invade  this 

T*-  *.  ^u  ii«i*fei«fe  iiie>  will  :iui  al-  i  '  kingduin  with  an  armed  force,  by  proniisng 

puini.    Let  the  Biil  be  :  '  to  join  with  and  assist  bim  with  men  and  arms 

*  opon  such  inviksion.  And  whereas  the  sanl 
*sir  John  F«nwirk  did  obtain  his  majestvj 
'  farour  to  have  liis  liial  delayed  truni  time' to 
'  lime,  upon  his  rc|M>Hted  promises  of  making 

t!i^  and  Cofdel  '  '  an    iogfenutiUs   and  fnil   confession    of  bis 
'    *  knowledg[e    of    any   design    or    conspiracy 

*  against  his  majesty's  person  or  goremmeBt, 

*  and  of  the  persons  therein  concerned.    And 

*  whereas  be  has  so  tar  abused  his  majest^'i 
'  ^reat  clemencv  an<l  indulgence  therein,  that, 

*  instead  of  making  such  confession  he  bath 

*  contrived  and  formed  false  and  scandalous 

*  |iapers  as  bis  informations,  reflecting  on  the 
'  fidelity  of  several  noble  peers,  divers  mt-n^.lieni 
^  of  the  House  of  Commons,  and  othenc,  only 

*  by  bearaay  ;  and  contriving  therein  to  en- 
'  dermine  the  goverumeut,  and   create  jea- 

;  '  lousies  between  tlie  king  and  bis  subjects, 

•  lb   .      ■  -li.    The  .' and  to  stifle  the  real  couspirac}'.     And  where- 

J,^^    o^   «^    *  %n  Act  to  !  '  as  Cordel  Goodman,  one  of  the  wituessn 

..MM   <«AniM  to  the  ;'  against  the  said  sir  John  Fenwick,  to  prort 

^.^  I  ijM^-n'^  Dts  ma-  [  '  the  said  Uvason,  lately  and  since  the  sevenl 

^      ^  «»  jmm  nvas  justice,    '  times  apfiointed  for  the  trial  of  the  said  lir 

^,aw».M»   >  -«Q)ce.  and  ,  *  John  Feu  wick,  at  one  of  \s  hich  times  the  said 

4B».  «.    SK  saiu  coo-  j  *  sir  John  Fen  wick  had  been  accordingly  trieil, 

..«.  k  .  ««s  i^nacl-  j  *  had  it  not  been  for  the  expectation  of  tiie  said 

..^.     ^NiA«*  issit.  — ^-  I  *  discoveries  so  ofh  n  promised,  is  withdraw  r^ ; 

^--.^  JiwanU  alias  '  *•  so  that  tlie  said  Conlel  Goodman  cannot  be 

.  ^    i^pik  %/>»•'•«««  Uoimes,    *  had  to  ffive  evidence  upon  any  trial.     Be  it 

— ..^    a:i.-*sd  Rich-    *  cnacteirby  the  kinu's  iiio-l ixcVllent  ronjesty, 

«r*f!%.  ;  *  by  and  wiih  the  aJvicr  ui.il  i-onsfnt  of  the 

.^    ...    a  »r  before    *  LokIs  SpiiitJia!  ai:il  Tonijiii:;'.],  and  Common* 

-ituci*  them-  ,  *  in  this  parliament  assotiihled,  and  by  tlic  au- 

w    V  »s»>  Bench,  '  *  tbority  oltlie  samr.  That  tbe  Mi.l'sir  John 

v^iv  u  'jnierto    •  Fen  wick  is  liereln  convictiMl  and  attaiuicd  ot 

^  .     »  Uiem  as  .  *  High  Treawm,  and  slrill  s:i/fer  the  pains  of 

^.   ^  -t^^atbre-  {  'death,  and  incur  alt  forf*  iturcs  as  a  person 

■itainted,  f  *  attainted  of  High  Treason/ 

;•.  .*c'higb  I 

I    Jeatn,  I      Mr.  6/>c«/rfr.  Mr.  Seripppt  Gould,  the  house 

r»d  di*-  I  expects  from  you,  and  r»ir.  Serjeant  Lovel,  that 

t.  .umted    you  open  the  cvidoiice  y«>u  have  to  prove  the 

.   .f«*jctttl,  <  suggestions  vf  the  Hill. ' 

.  v'4d«els,        iferj.  Gmild.    31  r.  Speaker,  we  are  here,  in 

^  »  *t  Ro-    obedience  to  3  our  nmnnauds,  to  give  an  ac- 

.«i  -.••td,    count  of  the  crhjnp;^,  and  likewise  vf  the  e\i- 

-  •  sinl  '  dencc  of  the  fart,  that  is  aafainst  this  gen- 

k-  o    ;v:  -     tieman,  sir  John  Frnw  iek.    Th»«  chari^o  ni;ain>t 

.^*vr«^  or    sir  J.  F.  is  for  hiijli  treason,  ai'd  hlirh  treason 

.•««v    of  the  hiirhtsl  <le«rr<'e  ;  i!  ••>  i; »  !'^n  li.-ari  fi  de- 

,v  t-    *>y:»  of  dejiosi!)^  ili«'  !;    :•■,  a-j;'  Mihvortin:r  the 

.vr-     ijovornmeiit,   ami  v  .n;  ...  *-■  [.   i,,  ^   IVeneh, 

B».-v'     nrh'   V  y.  vir':  y::'\  i  !:  ;sc  .•  •■•.  Itriinljor  c]nr;:jes. 

.•■\'%     ihjt  !.•  I  :»..>.«  "i.rj  .'ir  .!.»<  t\ir>;.:r\iev.  he  h:iili 

t»  .  i"    ns'i.  t.'i^iiJi.r  \vi;ii  ;■  •..!»!  r«'l'<  r>.  v-ho  have 

^•.»ivii'.'. -I.  .«ti-'J»!.'i  1.  •:..!.(  :j;«r«.\i  tr«riiher  to 

!»5ii':4:in  :i  r.cji'*  .1  i:j\  *.  i-'jii  i:s :  r,!^«l  in  order 

!  1  \\\:'i.  ui  a  i«  lit;.  •:'.  r  <..   it  :.••:.  •!  is  char;jed, 

\;!.-j  me;  contM^t..!  t..  ^rln[  oi-.r  tr>  the  late  kiiijj 

^  ".nes  to  hvr.ti-;  i,i  a   t\\  :.'!i  jiiv  ?r  njjon  us. 

li   :s   eli.r.-vil  lihiuie,   I'lat   he  rcnspircd  to 

<»y  \M\i'  ii;-.  n  iis,  ail  1  i'o/tl;at  r.-jrpuse  diJ  iiw- 


tJU    . 


N»M 


llN  1 


r: 


ifpoii  a  Bill  of  Attainder. 


A.  D.  1696. 


[550 


J  ud  other  wiriike  a*-*  is.  This  I 
;  b«  the  sabsUnce  of  the  cliarge,  as  laid 
JodictiiieDt.— Now,  may  it  please  you, 
pedcer,  as  ior  the  eTideoce  of  the  fact 
d  and  allcdged  in  this  iDtiictinent :  It  is 
rel  oertainly  to  any  at  this  time  of  day 
n  muiy  trials,  so  many  convictioDS,  so 
Utunden),  that  for  some  years  last  |iast 
lath  been  a  wicked  ooospiracy  to  bring 
ench  power  apon  us,  to  suDTerl  this  g^ood 
mcnt,  and  to  depose  the  kiug ;  hut  God 
ity,  by  ipecial  proridence,  hath  always 
tod  and  iniappomted  them.  We  know, 
Bce  the  business  of  La  Hogne  (in  which, 
ly  a  miracle,  God  disappointed  them) 
ive  been  still  restless,  and  ha? e  been  in- 
us  to  set  op  again  this  design ;  and  for 
ive  plottecl  to  bring  in  a  French  power, 
re  not  bad  any  reganl  to  the  king's  meccy 

I  to  them,  and  that  in  passing  several 
parliament,  but  hsTo  still  persisted  in 

M  designs. — Am  to  the  charge  upon  this 
nan  at  the  bar,  we  shall  shew  you  that 
:  in  the  year  1694,  for  several  months 
vas  a  conspiracy  carried  on,  but  did  not 
Sects  afterwards,  in  time,  I  thuik  the 
iog  of  June,  or  tetter  end  of  May,  there 
leveral  consults,  or  meetings,  at  the 
Head  tavern  at  the  upper  end  of  Leaden- 
reet,  where  this  gentleman  that  now 
charged  at  the  bar  was  present;  there 
everai  gntlemen,  and  among  the  rest 
ith  and  will  appear  open  evidenceUhere 
r  J.  F.  my  kmi  Montgomery,  and  seve- 
lers,  whereof  captain  Porter  and  Good- 
ne  there  likewise  present:  It  was  then 
d,  that  one  Chamock  (since  exeonled, 
«cd  upon  by  all  to  be  present)  should  go 
to  France  to  the  late  king  James,  to 
aicato  to  him  their  resolution  and  sm- 
n  being  serviceable  to  him  in  levying 
re  to  depose  the  king,  and  subvert  the 
nent ;  who  was  to  intercede  with  the 
king,  BO  that  there  might  be  forces  sent 
ranoe.    But  after  this,  Chamock  (pre- 

II  this  ^tleman)  comes  and  proposes 
ig  agau,  and  tried  whether  thev  were 

and  real  in  their  former  resolutions, 
eh  they  all  replied,  and  dkl  agree  and 
that  it  sbouki  be  done,  and  ihty  were 
alous  in  the  matter,  ami  the  forces  were 
lime  pro|NMe«l.  And  what  was  that  f 
mly,  no  less  than  8,000  foot,  and  9,000 
IS  of  French,  with  an  assurance  of 
orse  from  this  country.  Chamock  di'l 
France,  and  did  communicate  this  mat- 
1  after  he  had  communicated  this  mat- 
eaoie  back,  and  brought  answer,  that 
imes  bad  endeavoured  to  answer  their 
lions,  hot  at  that  time  the  French  king 
ot  siiare  his  throes ;  but  however,  re- 
lia  thanks  to  them. 

^lassvd  «Ni  till  towards  Christmas  last ; 
oica  over  sir  George  Barcley  up<in  this 
BO,  and  there  was  a  coroinmsion  pre- 
ir  that  purpose :  and  as  to  one  part,  he 
■feag  irith  hioi  a  detMbncut  of 


of  king  James's  guards,  who  was  to  x 
tlieking.  The  next  iHut  was  for  raising  a  re- 
bellion ;  now  that  fell  to  sir  John  Fenwick'a 
Kart.  As  to  the  assassinating  part,  you  have 
ad  several  examples  made  already.  This  we 
have  evuience  to  prove ;  and  if  we  prove  this 
matter  as  we  have  opened  it,  then  I  think  there 
is  no  person  whatsoever,  but  will  agree  that  this 
is  high -treason  in  the  highest  degree.  Now, 
Sir,  here  stands  our  matter :  Here  was  an  in- 
dictment found  according  to  the  law  you  made 
htst  sessions  of  parliament,  by  two  witnesses  to 
one  species  of  tresson  against  sir  J.  F. ;  wo 
have  one  of  tliese  witnesses  here  viva  voce : 
But  sir  J.  F.  hath  protracted  liis  trial  by  fre- 
quent assurances  of  making  a  discovery,  which 
hath  terminated  in  what  you  have  already 
mentioneil  in  your  bill ;  by  means  of  which* 
sir  J.  F.  hath  not  been  tried ;  whereas  he  had 
been  tried  in  course,  without  these  applications, 
and  found  guilty :  but  now  he  hathhad  all  thia 
time,  that  Goodfman  is  withdrawn  is  plain,  and 
we  think  (iiut  that  we  must  leave  to  Uie  judg- 
ment of  this  honourable  House)  may  he  reasona- 
bly supposed,  by  contrivauce,  to  take  off  this 
prosecution  of  sir  John  Fenwick.  For  why  P 
The  inference  is  from  a  fact  that  we  shall  prova 
to  this  honourable  house :  there  hath  been  thO 
like  attempt  upon  captain  Porter,  but  captain 
Porter  halli  been  more  stedftut;  he  has  been 
so  resolved,  that  he  stood  his  ground;  and,  to 
speak  the  truth,  notwithsUnding  he  hath  been 
highly  attempted :  for  we  shall  prove  to  yoo. 
that  one  Clancy  comes  to  captain  Porter,  and 
tempts  him  to  withdraw  into  France  with  assu- 
rance of  a  pardon,  and  he  hath  300/.  paid  him 
in  hand,  and  300/.  more  he  was  to  be  |iaid 
when  he  shonld  come  into  France,  to  be  re- 
mitted by  bills  of  exchange :  besides,  ho  was  to 
have  300/.  a  year ;  100/.  from  my  ton!  Ay  lea* 
bury,  100/.  from  my  lord  Montgomery,  and 
the  other  100/.  a  year  from  sir  John  Fenwick. 
and  thia  to  be  an  annuity  during  bis  life :  and 
thus  ftir  we  suspect  sir  John  Fenwick  may  bo 
concerned ;  for  his  laily  came  (he  did  not  coma 
personally,  but  his  lady  did)  and  gave  fm 
honour  and  assurance,  that  it  should  be  all  per^ 
formed,  and  much  more  if  he  wouki  withdraw 
himself.  CapUin  Porter  presently  made  a  dis- 
covery of  tliis,  and  takes  the  300/.  which  waa 
paid  down ;  u|ion  this  it  hath  been  so  far  pro- 
ceeded, that  Clancy  hath  been  indicted  for  it, 
and  convicted,  and  hath  received  judgment, 
and  I  suppose  there  hath  been  executiou :  we 
have  the  record  of  all  tliese  proceedings. 

We  have  this  circtimstancc  farther  in  the 
case,  (which  it  is  my  duty  to  open  to  thia 
House)  to  shew  what  lalniur  there  liath  been 
to  stifle  the  tmth  of  the  fact,  u|ion  taking  of  sir 
John  Fenwick  :  there  was  one  Webber  taken 
with  him,  and  he  slid  a  letier  into  one  FuwI'a 
bawl,  and  this  was  to  be  sent  to  my  larly  Fen- 
wick :  and  what  is  the  import  of  this  leUer  ? 
the  import  of  it  is  (they  could  not  prevail  with 
Porter  as  1  opeued  just  now,  therefore),  you 
must  influence  the  iary,  get  two  or  three  stout 
jurymen  to  starve  toe  rest»  for  wo  have  nothing 


551]  S  WILLIAM  m.         Proeeedi^s  agaitui  Sir  John  Fentnek^        [558 

nmy  say,  bei  rf  present  at  the  triel,  iiodiia|r  was 
luaile  raore  piain  ;  and  sir  J.  F.  appcsnd  tn  be 
equally  conoumed. 

To  shew  Kir  John  Fen  wick  is  guOty*  1  cme 
leaTe  in  add  this,  he  did  withdraw  himself,  anl 
fled,  and  was  enquired  after  with  diligenoe', 
and  at  last  he  was  found.  We  shall  make  good 
all  we  have  bcg^un  with,  bv  eridenoe  (we  Mpt) 
to  the  satisfaction  of  this  Uonse. 

Seij.  Gould.  If  yeu  please,  Hr.  Baker,  tbit 
is  solicitor  for  the  king  in  this  case,  does  attsorf 
at  the  d(Nir  wiih  all  his  (mpers ;  we  desire  thit 
he  may  be  let  in. 

Mr.  Speaker,  Serjeant,  call  in  Mr.  BalEir. 
[Which  was  done.] 

Mr.  Speaker.  What  do  you  call  Mr.  Bskff 
for? 

Serj.  Could,  To  give  an  acconnt  of  this  is- 
dictuieut,  for  we  have  a  true  copy  from  the  n- 
oord. 

Sir  Thtmias  Powit.  Mr.  Speaker,  since  I  sb 
here  assijpietl  counsel  for  the  prisoner,  by  the 
allowance  of  this  honourable  tiouse,  upon  bii 
application,  without  my  privity,  1  crave  lam 
hnmbly  to  acquaint  vou,  in  behalf  of  my  dieal: 
1  take  it  for  grranted,  that  he  is,  I  am  suiewe 
that  are  counsel  for  him  are,  a  little  snrprind 
in  what  the  king's  counsel  are  going  about ;  fw 
in  truth,  we  were  not  aware,  nor  do  we  find  thit 
any  notice  was  given  to  the  gentleman  at  Ibt 
bar,  that  there  would  be  any  proceeding  sgaioit 
him  by  examining  of  witnesses,  or  giving  «f 
evidence ;  he  bad  (it  seems)  the  vote  of  the 
house  sent  to  him,  and  likewise  a  copy  of  the 
bill ;  but  I  could  not  understand  that  the  hooie 
had  given  notice  thai  he  should  be  prepared  bj 
witnesses,  if  he  had  any,  or  be  at  liberty  ta 
produce  them.  Nor  was  there  the  least  aoiioe 
to  him,  that  there  would  he  a  proceediii|f 
against  him  by  way  of  givincf  evidence.  He 
did,  as  I  find,  humbly  apply  himself^  by  peti- 
tion, that  he  mi^iit  be  heard  bv  counsel  agaiul 
the  passing  of  the  bill ;  and  I  sliall  very  care- 
fully observe  those  directions  you  f^Ve  uf, 
which  I  hope  we  should  not  have  stood  in  need 
of,  but  have  behaved  ourselves  as  becomes  ost 
and  not  have  drawn  in  question  the  power  iii 
parliaments :  I  ne^'er  had  a  thought  to  do  suck 
a  thing ;  but  this  I  humbly  lay  before  you  fin 
your  consideration,  whether,  witliout  any  aorl 
of  nulitre,  that  1  perceive,  he  had  troin  this 
house,  to  make  his  defence  to  any  evidence 
and  consequently  there  could  be  no  need  a 
witnesses  on  his  behalf:  whether  ^^ou  will  si 
proceed,  unless  he  had  had  forewarning  to  |ira 
vide  tiirnselt  otherwise  tlian  by  the  prinM 
votes,  which  (I  suppose)  he  had  no  o|»ponuBiti 
of  seeing ;  and  whether,  within  the  words  ysi 
are  pleased  to  acquaint  us  with,  we  mayb 
heaitl  as  to  the  nabonableness  of  this  praem 
ing,  that  by  and  b^e  we  must  crave  knvet 
speak  unto. 

Mr.  Speaker,  Sir  John  Fenwick  did  peliciai 
it  is  true,  that  he  might  be  heard  bv  eosiBsal  i 
tlie  bar  against  passing  the  bill ;  bat  Im  lifcl 
wise  petitioned  for  oouniel  and  a  aolicitor  ij^ 


vise  to  depend  upon  :  these  things  we  shall 
hnmbly  oner  to  prove,  according^  lo  our  dut}', 
and  according  to  the  order  of  this  House,  and 
then  leave  sir  J.  F.  to  make  his  deteuce. 

Mr.  Recorder,  Sir,  in  what  I  say,  J  shall 
endeavour,  as  I  ought  to  do,  to  pursue  the 
method  of  this  bill :  and  first  I  will  take  notice, 
that  it  is  the  pleasure  and  direction  of  this 
House,  that  we  shoukl  attend  this  House  this 
day,  to  produce  the  evidence  against  sir  John 
Fenwick. 

The  crime  for  which  he  stands  indicted  is 
bigh-treason :  I  presume  the  learned  gentle- 
men on  the  other  side  will  not  deny,  but  that 
the  compassing  and  conspiring  the  death  and 
destruction  of  tlie  king  is  high  -treason ;  and 
that  to  endeavour  it,  or  shew  it  by  an  overt-act, 
to  cause  a  foreign  power  to  invade  the  realm, 
or  to  hold  correspondence,  or  adhere  to  the 
lung's  enemiea,  is  likewise  high-treason  $  and 
therefore  1  shall  not  trouble  the  House  to  say 
any  thing  to  it  one  way  or  another,  because  I 
befieve  they  will  not  deny  it 

In  the  next  place,  the  bill  does  take  notice 
that  sir  J.  F.  hath  been  indicted  at  the  Old- 
Bailey,  in  May  1696.  Sir,  by  the  law  of  this 
lionse  of  Parliament  made  last  sessions,  no 
man  ought  to  be  indicted  of  high  treason  with- 
OQt  two  witnessesi ;  pursiuint  to  that  law,  sir 
J.  F.  hath  been  indicted  upon  the  oaths  of  two 
witnesses,  captain  Porter  (whom  we  have 
her^  and  Goodman  (whom  we  then  luid,  and 
ha  did  swear),  and  upon  the  evidence  of  these 
two  witnesses  the  jury  found  the  bill. 

We  have  this  farther  matter:  for  before  the 
time  the  bill  was  presented  to  the  Grand-jury; 
there  was  an  examination  taken  both  of  Porter 
and  Goodman  in  writing,  and  I  think  it  was 
before  a  worthy  member  of  thb  House,  to  whom 
I  appeal  in  this  case,  and  in  those  informations 
fif  I  mistake  not,)  the  same  informations  they 
gave  against  sir  John  Fenwick  as  they  gave 
against  Mr.  Cook  ;  and  upon  the  trial  of  Cook 
they  were  sworn,  and  did  justify  aad  verify  tlie 
inibnnations  they  gave  before :  and  then,  if 
you  please,  we  sliall  call  witnesses  to  prove, 
that  upon  the  trial  of  Cook,  Porter  and  Good- 
man gave  that  evidence  that  did  equally  affect 
sir  John  Fenwick  (for  he  was  then  withdrawn, 
and  could  not  be  taken) ;  and  the  evidence  was. 
That  Cook,  sir  John  Fenwick,  with  my  lord 
Aylesbury,  my  lord  Montgomery,  sir  William 
Parkyns,  sir  John  Friend,  Chumork,  Goodman 
and  Porter,  were  all  together  at  a  consult  espe- 
cially ap|»ointed  for  the  carrj'ing  on  these  trai- 
torous purposes;  they  gave  the  court  a  great 
deal  of  trouble,  whether  Goodman  was  there 
at  that  time,  and  they  did  call  some  servanta  of 
the  house  that  ditl  prevaricate,  but  the  court 
was  thoroughly  satisfied  ;  and  it  hath  appeared 
more  plainly  since,  that  they  did  abuse  the  jus- 
tice of  the  court,  for  that  'Goodman  was  un- 
doubtedly there.  Sir,  Cook  u}>on  the  trial  was 
convicted,  and  had  judgment  of  death.  And, 
Sir,  he  is  attainted  ;  but  it  does  not  become  me 
to  say,  why  he  is  uot  executed  :  his  Majesty, 
'99  iloubt,  bath  great  reason  for  it.    But  this  I 


t^poii  a  BiU  qfAitmnder. 

rer  from  the  house  was,  that  he  should 
red  counsd  to  make  his  defence. 
Iftofnof  Pcmu,  Yes,  Sir,  I  have  seen  the 
'the  house ;  and  truly  there  did  not  any 
ccur  from  it  to  roe,  that  it  should  be  ex* 
hal  he  should  produce  witnesses ;  for 
ioff  that  he  might  be  heard  aninst  pass- 
iel>i1l,  and  the  order  of  the  house  being 
might  have  counsel  for  making  bis  de- 
1  did  not  apprehend  that  it  impowered 

be  prepared  as  to  bring  witnesses,  es- 

there  oeing  no  notice  given  to  him  to 
iinesses,  nor  no  way  for  him  to  compel 

come  here. 

\art.  Shower,  BIr.  Speaker,  we  do  ac- 
lige  that  we  are  so  far  reaily  as  to  offer 
osiderations  against  the  reasonableness 
ill,  not  against  such  bill  in  general,  but 

sir  John  Fenwick  in  particular,  and 
ose  suggestions  in  the  bill ;  but  in  re- 
'  his  making  his  defence  against  matter 
and  to  answer  the  charge  of  the  bar,  we 

ready.  The  first  time  we  had  notice 
'  John  Fenwick  shonki  attend,  or  be 
t  to  the  bar,  was  last  night  at  nine  or  ten 
at  night;  [Note,  This  order  wSs  made 

before  at  the  rising  of  the  House.]  it  is 
e  order  said  the  king's  counsel  should 
i  evidenee  for  the  bill  upon  this  day ;  but 
tot  ordered  that  there  snould  be  evidence 
h1  for  sir  John  Fenwick,  or  at  that  time 

should  be  personally  present :  we  are 
with  submission,  to  offer  what  we  have 
i|^nst  the  passing  of  this  bill,  upon  the 
lions  made  in  the  bill,  as  sir  John  Fen- 
case  is  there  represented ;  but  to  answer 
I  respect  of  truth  or  falsehood,  that  we 
prepared  to  do :  whether  you  will  hear 
I  that,  before  you  have  heard  us,  in  the 
irticiilar,  that  we  submit  to  you. 
Speaker.  Sir,  you  had  notice  on  Wed* 
last,  that  sir  John  Fenwick  should  have 
to  make  his  defence  by  counsel ;  and  if 
il  doubted  whether  be  should  be  admit- 
o  it  bv  witnesses,  you  might  have  ap- 
have  known  the  pleasure  of  the  House : 
mt  be  what  vou  stand  upon,  if  yon  will 
.w,  yoQ  shall  know  the  pleasure  of  the 

Gomld.  I  must  confess  wc  depended  on 
expected  no  other  thing  than  the  bar 
e.  This  was  our  order,  and  I  appre- 
tbat  the  petition  meant  the  same  thing : 
I  remember,  it  was  an  onler  likewive 
e  king's  counsel  should  produce  the 
evidence :  what  reason  was  there  for 
ideocp,  nnlcM  sir  John  was  to  apply 
'  lo  answer  it  ? 

Recorder.  1  beg  your  leave  to  observe 
bat  reason  the  counsel  on  the  other  side 
Ills  obfcctkm )  when  it  is  the  im|Mirt  of 
1,  that  sir  John  Fenwick  is  guilty  of 
eaaon :  and  your  ordel*  says,  they  are  to 
rd  against  the  bill,  that  is  to  say,  they 


A.  D.  1696. 


[55* 


K  hnrd  against  the  high-treason  chaig- 
I  Una  by  this  bill.  Therefore  the  House 
m  M  10  produce  the  evidenoo  against 


sir  John  Feowidc,  to  verify  the  suggestions  of 
this  bill :  and  so  I  oannot  apprehend  what  can 
be  more  proper  at  this  time,  but  to  prove  t^e 
fact  against  sir  John  Fen#k:k ;  and  it  is  their 
business  to  defend  it  as  well  as  they  can. 

Sir  Thomas  Powit.  What  was  said  by  the 
learned  gentleman  on  the  other  side,  1  hope, 
will  be  some  reason  why  we  might  be  of  opi- 
nkm,  that  we  should  not  have  occasion  to  pro- 
duce witnesses :  and  the  truth  is,  this  bill  does 
no  where  so  much  as  say,  sir  John  Fenwick  is 
guilty  of  high  treason ;  and  therefore  Mr.  Re- 
corder was  undir  some  mistake,  when  he  said 
the  bill  charged  that  he  was  guilty.  The  bill 
does  not  any  wliera  make  sncn  an  allegation ; 
there  is  nothing  but  a  recital  that  he  was  indict- 
ed for  such  a  treason:  and  then  it  recites,  that 
whereas  he  had  protracted  his  trial  by  such 
means,  and  Goodman  had  withdrawn  himself; 
(hot  it  does  not  say  with  his  privity ;)  and  then 
follows  the  enacting  part;  Be  it  enacted,  &c. 
So  that  there  is  no  such  thing  as  any  allepition 
that  he  is  guilty,  whereby  we  could  imagine 
that  that  was  the  fact  or  question  between  ns. 
We  now  offer  these  things  humbly  to  you,  and 
shall  readily  submit  to  what  you  think  fit  to  do 
in  it. 

Mr.  Recorder.  Sir  Thomas  Powis  says,  that 
sir  John  Fenwick  is  not  charged  witli  his  doing 
any  act,  or  being  guilty  of  nigh-treason ;  but 
the  bill  takes  notice  that  he  stands  indicted  for 
it :  then  it  will  be  enough  for  us  to  prove  that 
he  stands  indicted,  unless  the  House  think  fit  to 
let  us  go  into  the  evidence  of  his  being  guilty. 

Sir  S.  Shower,  We  do  not  oppose  the  pro- 
ducing evidence  to  prove  the  suggestions  of  the 
bill,  and  tlie  recitals  of  the  bill  specifieil:  but  if 
they  attempt  to  prove  him  actually  guilty,  by 
living  witnesses,  as  they  have  opened  it  here, 
that  we  humbly  beg  leave  to  oppose.  Bnt  if 
they  think  fit  to  prove  the  suggest  ions  of  the 
bill,  that  there  was  an  indictment,  that  there 
were  witnesses  sworn,  and  one  is  withdrawn, 
and  the  promises  of  making  confession,  and 
his  prevaricating  in  that  matter,  we  are  ready 
to  make  our  defence  tt»  that. 

Mr.  Speaker.  Gentlemen,  you  must  with- 
draw before  you  have  the  directions  of  the 
House. 

Accordingly  sir  John  Fenwick,  and  the 
Counsel  of  both  sides,  withdraw.  And  being 
withdrawn, 

Mr.  Speaker.  Gentlemen,  you  have  heard 
what  is  stood  u[ion  by  the  Counsel  fur  sir  John 
Fenwick:  they  say  if  you  cull  only  Evidence  to 
prove  the  siig<^fs»tiuns  uf  the  Itill,  ttipy  aro  i-rndy 
to  answer  them ;  but  if  you  call  any  evidence 
to  prove  sir  John  Fenwick  guilty  of  ii  Conspi- 
racy, by  living  witnesKi'S,  thcv  piTtcnd  they  arc 
not  ready,  and  say,  They  (fid  not  know  tlicy 
should  be  allowed* liberty  to  produce  any  Wit* 


Sir  T.  Unleton.  Tbe  Counsel  could  not 
think  that  the  Bill  should  set  forth  that  sir  J. 
F.  was  indicted,  but  that  tho  house  would  know 
by  what  means ;  and  that  Goodman  was  gone 


555] 


8  WILLIAM  in.  Proceedings  against  Sir  John  Fenwick,         [556 


away,  and  we  should  not  ennuire  by  wliat 
meaus.  What  are  the  uhjectionsby  xho  counsel 
mii^inst  tbe  Uill  ?  Say  they,  we  arc  ready  to 

Stve  reasoii'i  a<;ainst  tiic  bill ;  they  i\o  not  .say 
own-riy^ht  u;^iust  your  jun^Jiction:  but,  say 
they,  we  are  ready  tu  shew  it  w  not  reasonable 
in  this  case,  as  stand  circumstances,  to  |»ass 
this  Bill ;  Sir  Jolur.s  IVtiiion  was  tu  be  heard 
down-ri<{ht  against  the  Uill.  If  that  was  your 
intention  to  hear  him  to  that  and  tu  that  only, 
I  conceive  you  would  not  have  wordt?d  your 
Answer  as  you  did :  you  ordered  him  Counsel 
to  mako  hU  DeUnice :  and  at  the  same  time 
ordered  the  king's  counsel  to  produce  the  Evi- 
dence :  llow  could  the\  understand  it,  but  to 
make  Delence  to  t  he  Ev  Idcuce  ?  It  may  be  tliey 
have  a  minil  to  h:i?e  another  fee:  Whether 
you  will  thiuk  fit,  in  the  circumstances  you 
stand,  to  ^vc  them  further  time,  1  do  not  know ; 
But  the  circumstances  of  the  kinj^dom,  and  the 
king's  life,  must  be  considered  as  well  as  sir  J. 
F.  What  is  the  meaniiitf  that  they  are  not 
prepared  ?  I  su|>pi«i>  it  is  to  hare  further  time ; 
out  I  think  your  urdtT  is  so  plainly  worded,  that 
they  could  not  ignorantly  mistake  it. 

Lord  Norrj^es.  I  risi*  up  t4>  the  matter  of 
fact:  that  gentleman  tells  vou  your  order  is 
idaiidy  worded ;  it  is  so,  it  ih^y  had  timely 
notice  of  it :  but  the  counsel  at  the  bar  tell  you, 
they  had  no  notice  of  this  order  till  ten  o'clock 
last  night. 

Mr.  Speaker,  That  noble  lonl  does  mistake ; 
for  that  which  they  say  they  had  no  notice  of 
till  last  night,  was,  that  sir  J.  F.  should  1m* 
brought  hither;  hut  the  notice  thni  he  sh(»uld 
be  heard  by  his  counsel  for  liis  Defciuv  was 
sent  him  the  day  h*  furc. 

Lord  Norri/cs.  This  vc:y  oid«fr,  for  his  ma- 
jesty's counsel  to  proilucJ  the  Evidence,  was 
made  but  upon  Thursday. 

Mr.  Speaker,  Then'l  mistake.  But  the 
order  that  was  mad*!  upon  his  I'etitioii,  1  s^nt 
away  immetliatcU  :  hm  the  ordtT  they  uit-an, 
I  suppose,  is  that  for  ;iie  hria;;in{;  hiui  hither. 

Mr.  Cou'per.  Say  the  counsel  for  sir  J.  F. 
We  come  prepared  to  make  Defence  to  every 
thing  charged  in  the  preamhie  of  the  Bill,  but 
what  is  notcharged,  we  do  not  come  prepared  to 
make  defenee  to.  Ntiw,  ihey  conceive  the  fact 
of  High-Treason  is  not  (•har«;Ld  lipon  him  by 
the  Bill ;  and  if  true,  k  is  <>r;jrc:il  weiirht ;  hut 
as  it  is,  it  is  nnne:  for  fu^t,  it  is  plain  the 
preaiuble  recites,  that  he  was  inui.lf  d  for  hi^h- 
treasoii  l)y  the  grand  jury  ;  thiil  is  a  tliar«4i;  <»f 
high- treason  within  the  bill  ;  for  it  s.ivs,  he 
was  charged  by  the  oatl.s  oi'  his  country  upon 
the  oaths  of  two  wiine.>ses  ;  and  there  i.->  the 
very  overt  act  recileil  in  tlic  preiuhble  of  the 
bill.  Now,  aUowing  this  its  due  uei;:iit,  can 
any  one  think,  that  sits  hiTe  as  u  privatt*  ji]d<ri*, 
that  the  hiifh  ireasiiii  thus  rented,  as  f  >uutl  hy 
the  jjfrand  jury,  was  uo  part  of  his  rhargc  ?  The 
very  nature  of  ihe  bill  speuks  ;  lor  eonhl  any 
one  think,  tliat  y(ui  would  ground  a  Hill  of 
At!;tin.'.'r  upon  :i  su:^;^L'sfion,  thai  he  ht.ini;  in- 
dicted of  high-trrason,  had  spirited  away  om4: 
ol  the  king's  evidence,  or  for  giving  false  ui- 


formation?  So  that  this  itf  trifling  with  the 
house,  with  submission. 

Sir  li.  Temple,  Can  any  body  say  any  thing 
of  the  intention  of  tbe  house,  u  heo  it  is  redactS 
into  a  Bill  ?  Is  it  not  the  bili  that  he  is  to  make 
his  defence  to?  and  the  gentleman  that  spake, 
says  that  nobody  could  think  otherwise :  Why, 
sir,  nobody  is  to  think  otherwise  than  tbe  Bill 
states  it.  'Now  the  thing  before  you  is,  Whe- 
ther upon  the  suggestions  of  this  Bill  it  is  fit  for 
you  to  pass  itf  The  case  of  Mortimer  was, 
That  be  made  his  escape,  beinff  under  an  In- 
dictment of  High  -Treason ;  and  it  came  before 
the  house.  Whether,  upon  the  statute  of  25£. 
3rfl,  it  was  Migh-Treason  ?  But  they  did  notde- 
bate  the  fact.  Now  you  have  brought  a  bill 
here,  and  all  the  grouud  is,  that  he  was  indict- 
ed for  high -treason,  had  thus  and  thus  prevari- 
cated, and  delayed  his  Trial  upon  promises  of 
confessiou  ;  and  in  conclusion,  one  of  the  wit- 
nesses is  withdrawn:  8ir,  no  man  is  to  mike 
his  Defence  but  to  w  liat  \%  in  the  bill ;  nor  cto 
you  examine  to  any  thing  but  what  is  suggested 
in  the  bill.  If  you  had  put  tlie  issue  upon  tbe 
guilt  of  sir  J.  F.,  he  must  have  a  fair  trial  ki 
some  place,  and  that  he  cannot  have  here  upon 
oath ;  for  upon  all  Bills  of  Attainders  ihey  ha?e 
had  a  fair  trial  above. 

Mr.  Smith,  1  always  thought  wlien  a  Bill 
of  Attainder  was  to  pass  through  this  house, 
that  every  man  was  concerned  to  hear  what 
Evidence  he  could,  to  make  it  ap|iear  whetlier 
the  person  was  guilty  of  the  facts  that  were 
allcdged  against  him  to  condemn  him  for; 
and  I  take  it,  the  principal  thing  to  be  cod- 
sidi-red  is,  vdielhcr  i.e  he  guilty  of  such  a  crime 
as  df.^erves  sueh  a  )ianishnieiit ;  so  that,  I  take 
it,  the  question  now  is,  Whether  sir  J.  F.  haih 
iiad  that  notice  tf>  produce  his  evidence,  as  is 
convenient  ?  For  1  think  we  should  lose  time 
to  let  coii'.iscl  ramble  upon  tbe  reasonableness 
<d'  t»ur  proceedings ;  the  (question  is,  \\  he- 
ther  he  is  {;uilty  of  the  factl*  Sir,  1  can  ne^er 
think  the  counsel  could  uuilerstand  your  order, 
when  it  s:i\8,  to  uiakc  his  Defence,  but  it 
must  be  to  the  fact  upon  which  he  is  to  be 
eoiuleuuied.  You  have  already  determined 
that  pi:int,  as  to  his  prevaricating,  but  that  is 
not  the  matter  that  shall  make  uie  tind  him 
guilty  :  hut  the  J^vidence  that  will  weigh  with 
mt  fS  the  evidence  of  high- treason,  and  how 
far  they  can  answer  it. 

■VIr."Hoo/)er.  The  question  is,  Whether  or 
uo  there  b(^  a  sufficient  guiit  laid  to  this  man*s 
chaige  ?  For  in  all  couris  of  judicature  this  is  a 
rertuui  rule,  You  must  proceed  *  secundum  al- 
'  h^ata  el  prul>ata  ;'  and  vou  shall  not  go  about 
to  prove  a  thing  unless  it  be  ailtdged.  IS'ow  the 
question  is,  ^\  hether  this  thing  be  alledged  in  the 
whole  Bill,  that  sir  J.  F.  is  guilty  t»f  high-trea- 
s(»n  ?  And  if  not,  you  will  go  about  to  prove 
what  is  iiot  alledged.  Ii  is  true  it  hath  been 
ailedged  that  a  Bdl  hath  l>een  found;  but 
several  have  becMi  indicted  who  have  been  ac- 
ipiiited.  It  is  possible  the  pris«)ner  may  be 
guilty ;  but  I  tliink  vve  umsi  ol>serve  that 
method  here,  that  is  observed  every  where  else. 


5TJ 


upon  a  Bill  of  Attainder, 


A.  D.  IdM. 


[558 


Dd  that  is,  not  to  go  about  to  prove  any  thing 
bat  18  not  alledg^. 

Mr.  Cierk.  The  learned  gentleman  hath 
nade  an  objection  that  perha|.a  would  hold 
ery  well  in  Westminster  Hall :  but  I  suppose? 
le  may  remember  this  Bill  must  Ita^  e  a  second 
eadinsT  before  you,  as  a  house ;  and  tlion  per- 
laps  the  allegations  may  be  different  from  what 
hey  are  now.  But  the  principal  matter  before 
rou  is,  Whether  this  premleman  be  guilty  of 
ligh' treason,  or  no?  And  if  they  did  uo:  pre- 
)are  to  that  part,  I  think  they  were  negligent 
o  their  client;  for  it  appears  to  lie  that  part 
that  is  most  sensibly  like  to  affect  him. 

Mr.  Hove.  The  more  I  hear  tbe  matter  de- 
bated, the  more  it  seems  strange  to  lue.  I 
bave  heard  the  Bill  read,  and  took  notice  of  tbe 
h«ads  of  it :  I  always  understood  the  preamble 
of  the  Bill  to  lie  the  inducement  to  the  end  of 
it:  1  was  mightily  surprised  to  hear  the  king*s 

eeunsel  attempt  to  m;ike  good 1  tbink  tliiey 

did  not  spcsik  materially  to  one  point  of  the 
tOe^tions  in  the  Bill,  so  that  the  allegations  do 
lieaify  nothing:  or  else,  if  they  intended  these 
tlicgations  should  signify  any  thing,  we  must 
kiTe  these  allegations  proved  before  we  pass 
ourjudgment  upon  the  Bill ;  whereas  the  conn - 
id,  instead  of  endeavouring  to  prove  that  he 
vu  indicted  for  high-treason,  (though  hinted 
al)  would  prove  him  guilty  of  high- treason  ; 
iMtead  of  proving  that  he  had  prevaricated, 
thej  iay  not  one  wonl  about  it ;  instead  of 
praring  that  he  has  forg^  papers,  in  onler  to 
ificMte  the  minds  of  the  king's  subjects,  they 
■y  DOtliing  to  it,  though  in  the  Bill  it  is  alledge'd 
»  hii^h-treason. — We  must  not  go  here  upon 

Cie  fancies  and  opinions ;  no  man  that 
my  lord  Delamere's  trial  but  bclievetl 
km  to  be  guilty  of  the  iact ;  yet  he  was  ac- 
quitted, because  there  was  no  evidence  suffi- 
cient against  him.  I  think  you  must  stick  to 
ooe  of  these  points ;  if  you  stick  to  Ibis,  to 
pTOfc  him  guilty  of  high- treason,  you  must 
titer  the  Bill ;  and  then  that  must  be  proved 
oot  of  the  mouths  of  two  witnesses.  If  you 
please  to  stick  to  the  bill,  then  I  hope  the 
nog's  counsel  will  go  on  to  prove  the  allcga- 
tioM  of  it,  or  let  us  know  why  they  do  not :  I 
ihtll  no  more  give  my  vote  to  hang  him,  be- 
ctoae  he  is  indicteil  of  hi^h- treason,  than  1 
■lull  because  he  hath  been  m  Newgate. 
,  Mr.  Sloane,  I  think  a  great  deal  of  your 
line  in  debating  this  matter  may  be  saved ; 
llHiogh  I  will  allow  the  Bill  might  have  teen 
i)r«WD  better,  and  that  a  bar- indictment  is  not 
*  efficient  ground  of  itself  for  a  final  decision 
<rf'this  matter :  but  when  at  the  time  of  finding 
Ifae  Indictment  there  were  two  witnesses,  and 
|>ue  of  them  is  withdrawn,  and  as  is  supposeil, 
^y  his  means ;  if  the  Bill  seems  imperfect  for 
SQy  thing  before  you  now,  yon  will  not  stay  all 
theproceedings  upon  it ;  but  if  yon  see  it  im- 
l^erfect,  and  it  may  be  amended,  you  will  amend 
u  at  the  committee.  1  think  the  favour  you 
hate  given  is  abused,  and  that  it  is  perfect 
trifling  from  the  bar.  In  one  breath  they  say, 
they  could  not  get  ready,  for  they  had  no  no- 


tice till  last  night ;  and  in  the  next  place  they 
say,  they  will  go  on  to  every  thing  but  hit  being 
guilty;  and  1  believe  they  never  will  be  pre- 
pared for  that. 

Mr.  Attorney  General.  I  am  very  unwilling 
to  speak  any  thing  in  this  matter ;  because,  sir, 
by  the  place  1  have  the  honour  to  serve  his 
majesty  in,  us  one  of  his  counsel,  if  it  was  in 
the  course  hdow,  I  must  prosecuite  on  behalf  of 
the  king :  but  I  am  very  sensible  while  1  am  in 
this  house,  I  am  in  niuMhcr  capacit}' ;  I  am  to 
vote  here  us  a  judge,  and  not  as  a  party.  That 
which  I  do  now  tionble  yrju  about,  is  in  rela* 
tion  to  the  matter  thnt  hath  been  objected; 
That  the  Bill  does  not  expressly  affirm,  that  sir 
J.  F.  was  guilty  of  high-treusun,  but  only  that 
he  WHS  iudictcfi  for  it.  Truly  1  thought,  and 
do  still,  with  humble  fiubmission  to  the  house, 
that  that  matter  of  afTirining  him  to  be  guilty  of 
high -treason  was  not  to  be  inserted  in  the  bill ; 
for  that  will  be  the  consequence  of  your  judg- 
ment and  opinion,  uptni  hearing  of  the  evi- 
dence. That  worthy  member  that  spake  last, 
said,  the  Bill  initfht  lie  better  drawn ;  I  am 
sorry  we  had  not  his  assistance  in  it :  But  with 
submission  to  his  undcrstaniiing,  I  think  that 
had  been  too  niuch  presumption,  till  you  are 
satisfied  whether  he  was  guilt\'  or  uo.  We 
could  only  go  so  far  as  to  set  forth  the  faults 
that  we  knew  ;  as,  that  he  was  indicted,  that 
we  can  verily,  and  cannot  take  this  to  be  liko 
the  case  of  an  indictment ;  for  there  you  must 
affirm  such  and  such  things  that  cannot  be 
altered  afterwards.  But  a  mil  in  parliament 
hath  maujr'  steps;  you  read  it  several  tiroes, 
and  commit  it ;  so  that  you  alter  the  sugges- 
tions of  the  hill,  as  the  rase  ajip^i-s  to  you  to 
be  verified  ;  and  if  you  be  of^  opinion  that  be 
is  uot  guilty,  you  will  not  condemn  him  be- 
cause he  is  indicted  :  however,  that  is  not  un- 
matcrial,  but  proper  to  beset  forth  for  a  ground 
of  your  proceedings,  that  there  was  a  proba- 
bility of  his  beinn^  gnilty  from  that  accusation. 
Therefore,  sir,  I  confess,  I  cannot  think  that 
thos(t  gentlemen  that  are  counsel  for  sir  J.  F. 
coul.'l  think,  that  vou  did  intend  to  proceed 
otherwise  than  to  fiear  counsel  as  to  the  fact : 
(bey  could  not  think  that  upon  proof  of  his 
bein;r  indictefl,  that  that  would  l»c  ground 
enun<:h  for  you  to  proceed  to  pass  the  Bill '. 
for  how  could  any  hotly  think,  but  you  would 
come  to  examine  the  fact  ?  i  cannot  see  bow 
they  should  come  to  mistake,  unless  it  was  wil- 
fullV. 

iWr.  Price,  The  matter  now  delmted,  is 
What  method  shall  he  followed,  or  what  evi- 
dence shall  lie  given  upon  this  Bill?  or  whe- 
ther evidence  ^^lall  lie  gi^on  of  any  other  mat- 
ter than  is  suggested  in  the  Bill  ?  I  must  con- 
fess, making  a  false.'  step  at  first  sotiing  out, 
hath  put  us  out  of  the  way  hitherto  ;  for  in  the 
case  of  ray  lonl  StrafTuiif,  \utnesscs  were  exa- 
mined, anil  adjudicatitm  Mr.it  he  was  gnilty  be- 
fore any  onler  fiir  a  15 ill  of  Attainder. '  But 
since  you  are  in  thiti  wny,  ctMisider  w  hetlier  the 
counsel  against  the  Bill  have  gone  ac  cording  to 
their  order:  the  order  was,  that  counsel shuuM 


SS9J 


8  WILU AM  III.         Proceedings  against  Sir  JtJm  Fenwi^        [560 


be  heard  to  pro? e  the  saggestions  of  the  Bill : 
and  the  counsel  for  sir  J.  F.  do  not  oppose 
tliat :  but  the  counsel  for  the  Bill  open  more 
things  than  are  comprehended  in  the  sugges- 
tioDS  of  the  Bill :  for  the  su^^gestion  is  only  a 
ivcital,  and  hath  nn  {lositive  averment.  And 
though  the  Bill  and  an  indictment  is  not  the 
same,  yet  they  must  he  the  same  in  this,  to  put 
a  charge  upon  the  person.  If  the  preamble  is 
DOt  to  any  purpose,  what  need  they  have  made 
any,  hut'havo  said  only,  Let  him  be  attainted  ? 
To  what  purpose  does  sir  J.  F.  come  to  the 
bar  r  If  it  is  to  any  purpose,  it  is  to  answer  the 
charge  of  the  Bill.  That  learned  person  says, 
to  suggest  that  he  is  guilty  till  the  matter  is 
profed,  then  theii;  must  be  an  amendment  in 
that  iinint,  and  that  will  make  it  a  new  Bill, 
and  tnen  he  must  have  another  day  to  answer 
the  new  charge :  but  thev  might  as  well  have 
said  he  was  guilty  of  high-treason,  as  to  say  in 
the  enacting  part,  that  he  should  lie  attaintctl. 
Thcreliire,  it'  the  gentlemen  for  the  Bill  will 
proceed  and  prove  the  preamble  of  the  Bill,  let 
tliem  ;  otherwise  let  there  be  another  dav  for 
sir  Joim  Fenwick  to  attend,  and  let  ihem  ilo  all 
t(»getlicr. 

Sir  ChriU,  Musgnive.  I  think,  as  to  that 
learned  person,  nothing  is  to  be  laid  to  his 
charge,  for  I  think  they  have  drawn  the  Bill 
pu^-s'innt  to  the  directions  ;  and  I  ain  sure  if 
Uiey  had  drawn  it  otiierwise,  before  they  had 
kof>wu  the  sense  of  the  house,  I  think  they  had 
been  guilty  of  a  crime.  That  \\  Inch  seems  to 
he  before  you,  is  what  wus  opened  by  the 
king^s  counsel,  and  that  was  to  pro^-e  the 
treason.  Now,  sir,  I  would  be  glad  to  know  of 
any  person,  wlictiic^r  «iny  thing  is  to  be  ad- 
uiitted  to  bo  pruTul  ut  your  bar  but  wliat  is  in 
5*our  bill.  Fur  let  us  have  a  little  regard  to 
tlie  prococdiniT  in  Westminster-hall :  can  any 
perAou,  upon  an  Indictment  of  high -treason, 
offer  evidence  of  any  tn>ason  but  what  is  ex- 
pressed ill  the  Indirttneut  ?  And  i  think  this  is 
the  saino  in  efli^irt ;  r«»r  hf^re  ytui  draw  a  bill  of 
uttaiudcr  against  sir  J.  F.  aiid  in  ju«<ttce  you 
sL'ud  him  a  copy  of  it,  and,  uitii  ^reat  favour 
too,  you  allow  liini  connM-l  to<li'KMitl  himself  to 
that,  ;is  to  the  sntrgestions  that  are  in  tiio  Bill ; 
ollicruiso.  to  what  end  <lid  you  send  him  the 
c<»py  of  the  liiil ;'  Now.  if  you  will  admit  of  any 
thiui;'  to  bu  im-ommI  Imi  uhut  is  in  your  Bill,  I 
know  not  of  what  i!anp;cr(>ns<MUisc(pienrc  it  may 
be,  for  it  is  impossihlr  to  he  propaicd  for  it. 

Mr.  S  In-iioj-  (h-w.al.  If  tlic  rounsel 
against  the  Hill  conhl  bo  any  way  ntistnkcn,  or 
think  the  l»ill  dcfertivif,  I  am  for  giving  them 
kniger  time  to  make  their  best  defence;  but 
think  n-ither  o:m'  nor  thr  other  o!'  ihent  true  ; 


Preamble,  the  debate,  when  it 
went  no  fiirther  than  that  he  was  aociued  oj 
high-treason,  and  was  like  to  have  bees  brouglit 
to  nit  trial :    and  to  delay  it,  he  pretended  tn 


make  an  ingenuous  confession ;  and  instead  ol 
that,  there  was  produced  a  paper  which  yon 
ha%'e  censured,  as  you  thought  (it,  and  iipoi 
that  you  votecl  a  Bill  to  be  brought  in  to  it- 
taint  him  of  high-treason :  what  then  coald  h 
expected  more  for  the  inducement,  but  the  de 
bate  upon  which  it  was  oixlered  ?-'If  llw 
house  had  thought  fit  to  examine  witnesKs  \t 
fore,  as  now^,  no  doubt  but  the  Bill  wook 
have  suggested  that  he  was  guilty  of  bigb- 
treason ;  but  it  is  time  enough  for  you  to  suf- 
gest  that,  after  you  have  heard  what  witaeoei 
there  are.  If  the  counsel  did  not  know  thii 
notwithstanding  all  that  1  have  said,  I  am  In 
giving  them  time ;  but,  whh  submission,  it wa 
impossible  for  them  to  mistake  it :  If  the  Kl 
hadwent  no  farther  tlian,  <  Be  it  enacted,  tha 
*'  he  should  be  attainted  of  high-treason,'  the 
they  had  some  colour  to  say  there  were  dife 
ent  species  of  high-treason,  and  they  could  M 
tell  to  what  particular  facts  the^  must  a|»pl| 
themselves :  But  when  the  Indictment  is  re 
cited,  which  charges  him  with  particular  faru 
and  tells  him  by  what  witnesses  the  Bill  wa 
found,  it  was  impossible  not  to  know  tbattU 
was  tiie  high-treason  you  did  intend  to  eaac 
that  he  should  be  attainted  for;  but  when  the 
say  they  are  not  ready,  truly  there  may  b 
some  reason  for  it ;  for  I  beheve  they  aen 
will  lie  ready :  sometimes  men  will  be  witfall 
mistaken,  and  sometimes  it  is  their  raisfortua 
to  be  so.  They  say  they  are  mistaken  ;  whic 
of  these  are  true,  I  know  not,  but  we  have  see 
already  the  time  wlion  he  hath  tritled  nitb  tij 
courts  of  justice  *,  he  hath  delayed  iiis  tritl  ti 
one  witness  is  withdrawn  -,  if  you  gite  bii 
longer  time,  he  may  have  the  good  forluael 
have  the  other  gone  too.  i  see  no  reasoa  t< 
you  to  forbear  hearing  of  the  evidence. 

i\Ir.  John  i\hntag»e,  I  am  not  surorized  i 
hear  sir  J.  F.  desire  time  :  for  giviu;^  him  tin 
is  giving  him  life ;  nor  for  his  coiiiisel  to  U 
yon  his  witnesses  are  not  ready  ;  it  is  a  con 
nioa  excuse;  I  hardlv  ever  knew  a  |»^ra» 
brought  upon  his  trial,  fmt  that  wus  hise%cus( 
and  yet  1  have  seldom  known  it  allowed  as 
gmul  excube  :  But  it  is  objected  you  must  i 
»  secundum  allegat'  et  probat' ;'  and  uoUiii 
being  in  this  bill  like  what  the  counsel  tor  tl 
bi'.l  did  open,  it  is  not  tit  to  hear  them  call  wi 
nesses  to  what  is  not  alledgetl  in  the  bill, 
grant  that;  and  yet  I  think  tliey  ought  toj 
allowed  to  call  witnesses  to  prove  every  tkii 
it  is  agreed  tb 


they  have  0|>cned  to  you  : 
but  yiMir  order  was  to  draw  n  bill  tor  attainting  '  ought  not  to  have  brought  in  a  Inlt,  to 
sir  J.  r.  of  high-iivastm  ;    and  I  think  if  tlie  I  jwjnt  blank  terms,  he  is  guilty  of  high-tr 
}MI  had  :^'onu  no  farther,  hut  enacted  that  he  •  hut  they  say,  Vou  should  have  cbai^l  J 
hhonbl  h«'  ailaintod  of  high-lrcavon,  we  had 
strictly  |n«i-sni»d  your  order ;  for  the  preamble 
is  DO  neeosnry  part  of  the  Bill.     .<\  liill  and 
an  Indi'tmont*  are  ot*  quite  different  natures  ; 
there  is  a  tovtn  for  :in  indictment,  but  no  pre- 
cedent for  an  act  of  parliament.     As  to  the 


•  Fill.    tllViJ        J,«J,J^.«       (II.VH.^.       ..».^      '^mm^m^^.      — 

what  ti*eason  he  is  accusefl  of,  and  then  tb 
should  hav^e  been  admitted  to  prove  it.  Wi 
submission,  the  bill  does  that  thmjj^  |  fqr  thel 
does  recite,  that  he  is  indicted  ot  bigfa-ticai 
in  compassing,  fkc.  This  is  the  treaMNi  ihil 
charged  upon  him  by  this  very  UU:  stWfi 


561] 


upon  a  Bill  of  Attainder. 


>  uu  %vjll  pcnmit  tliein  to  prove  what  is  allLHlorrdl  I 
III  the  liill.     \Vhat*fli<l  thif  coiinselfur  the  hit  | 
ofien  ?    That  at  scvt^ral  meetings  they  met  tt*  i 
C(*ik»ult  of  the  matter  that  this  hill  tsikFS  notice  ' 
ot*.     J>itl  nut  he  tell  yuu  when  Charnock  came: 
lirst there  lor  that  |Mir|)o«<r,  and  when  Charnock 
met  them  utrain  for  (heir  a-isurance  ?  Now  this 
kein^  so  plainly  strX  forth  in  the  hill  here,  whicli 
recites,  that  tins  matter  was  proved  b^  two  wit- 
ue»ses,  upon  the  credit  of  whotie  testimony  this 
matter  was  found,  and  that  one  of  them  is  i;oue  i 
Away  ;  and,  say  they  now,  we  are  reaiiy  to  j 
proCe  the  matter  then  sworn  :  Is  not  that  pro-  { 
per  to  satisfy   ;;enth.nnLMi*s    consciences  that  j 
will  not  ron%  ict  this  man  without  evidence  ? 

Sir   Fr.    WiiiiiiHgton,     I   humbly  conceive  ! 
tW  c|nei«liou  >s  not  now,  Whether  sir  J.  V.  is  ] 
«4niliy,  or  no  ?  But,  whether  the  ohjcciiitns  the  • 
ciiutrMC'l  for  liini  have  made,  l)c  so  stntng  us  you  > 
viU ^rant what  they  inoic  to  you?    They  tell 
ytHi,  if  ciiiuLscI   M  ill  proceed  upon  nothing  but 
wliulis  su((^esteil  in  tiie  bill,  according;  to  your  i 
Miler,  we  are  ready  to  make  our  di'(c.nci\     It  ! 
wa&said  the  kin<^  s  counsel  was  ordered  to  ^i\e 
their  evidence  ;  that  can  have  no  interpretation 
Itut  as  to  the  matters  in  the  bill.— Suys  the 
kiDg\ counsel.  We  will  prove  him piilty :  Siys 
tbe(H)iius(d  on  the  other  side,  I  hope  the  house 
vill  (;ive  us  time  to  encounter  them  in  that^  for 
you  have  no  such  thin^  in  the  bill ;  thescndin;^ 
thein  the  copy  of  the  hill  was  as  much  as  to 
Mv,  You  iieeii  not  prove  an\  thing  but  what  is 
tiieaiu  asserted.     It  was  said  by  the  learned "« 
gent,  tlierc,  that  there  mii^ht  have  been  an  act 
u|'|itrlianu  nt  w  hich  might  have  said  tiply,  *  Be  j 
*it  fiiuctLiI,  that  such  a  man  bo  attainted,'  | 
wiihuut  giving  any  reason.    1  cannot  deny  but  j 
It  mi^ht  be  so  without  any  n*asiin,  but  I  don't  I 
belieie  it  will  be  so.      Anil  another  burned  ! 
{MrrMa  was  tur  mending  of  the  bill.     !Sa\s  he.  | 
^Mufii  you  ha\e  the  matter  of  fact  prov'eil  Iw.-  i 
lure  y1)u,  it  may  lead  you  to  the  umeiiuing  of  { 
tlif  l)ill,  and  insertiiig  what  >ou  plca-^c,  nin\  I 
etidcliui;  of  it ;  but  does  not  anstvtr  wIkU  the  | 
^iUitiUii  said  on  the  other  side:     WouM  \ou  j 
luikf  lis  a*  swer  what  wc  did  not  ki^iw  that  ; 
vou  wuu Id  stand  upon  .'*    The  qucstiun  is  not, 
^^heilwr  he  l»e  guilty  or  no  ?     But,  \\  uviher 
the  uiijections  that  are  made  be  goud  to  give 
tli«m  tune .' 

Col.  Granville.    Sir,  the  counsel,  l»y  what  I 

'^bscrfcil  from  them,  have  started  two  diliicul- 

*i«s.  and  really,  t«»  me,  IsUh  seem  very  uiaic- 

^i;  the  fir»t  is,  Whether  the  kin<4*s  counsel 

<liall  be  at  liberty  to  prove  any  thing  that  is 

Mt suggested  in  the  hill?  The'othcr  is,  Whu- 

thersirJ.  F.  had  due  notice  to  make  his  di - 

Ictice? — The  first  is  a  matter  i>f  \cry  :;riiit 

Anient :     You  are  prtN!eeding   upon   a  bill 

**bere  not  only  the  life  of  sir  J.  F.  but  the  life 

^every  man  iii  England  is  in  some  mciisurc 

^oocemed :     When  a  prccedt  nt  is  tn:i<h*  in  this 

caiie,  nobody  knows  w  ho  iim\  be  uifcct!*'!  t>r 

hurt  by  it;   and  therefore  I  desire  \oii   niii 

lettle  that  matter,  and  h:i%e  tin;  judunietit  oi' | 

Ibe  housef  whether  they  ^^til  adntit  the  counsel  ' 

to  pnive  any  thing  that  is  not  suggested  iu  tLe  | 

VOL.  XIII. 


A.  D.  1696.  [5fi« 

bill  7  If  you  will,  I  do  not  see  how  any  man 
that  stands  at  the  bar  of  your  hous4%  can  he 
prepartd  to  make  his  difViice.  For  there, 
.shall  \ie  one  crime  ulledircd  in  the  b'dl,  and 
\s  hen  lit'  comes  to  thi.-  bar.  the  counsel  that  aru 
to  proM-cMf  e.  shall  go  cpiiti*  off  from  that  w  hich 
is  Itiiil  ill  the  bill,  and  produce  you  c\idencc  Xa 
a  new  crime ;  and  he  stares  and  looks  round 
him,  and  you  had  as  good  allow  him  no  coun- 
sel, or  copy  of  the  bill.  This  you  thought  so 
necessary  for  every  man  that  was  to  come 
upon  his  trial  for  his  life  for  treason,  that  yoii 
altered  that  trial,  and  declared  no  man  E:houltl 
have  any  treason  proved  against  him  that  is 
Dot  alledged  against  him  in  the  Indictment — 
Wc  have  had  great  complaints  of  Westminster 
hall ;  and  if  the  parliament  shouKl  proceed  in 
this  manner,  may  have  the  same  again.  If 
they  are  too  rasli  in  their  procee4liug8,  they 
will  be  countenanced  mightily  in  tliem,  if  you 
should  proceed  against  a  man,  and  condcmo 
hiui  for  one  thing,"  when  ho  is  accused  of  ano- 
ther. I  de^re  to  know,  how  we  can  ]irocee4l 
in  a  bill  u|)on  which  sir .).  F.  is  to  be  provetl 
guilty,  and  lie  hath  no  opportunity  to  answer 
itl'  *1  take  it,  as  this  hill  is  drawn,  sir  J.  F.'s 
guilt  is  no  way  conccrneil  in  it :  For  whereas 
the  worthy  gentlemen  tell  you  the  treason  i» 
s|i^fied,  there  is  no  treason  specified,  other- 
wise  than  be  is  indicted  for  it. 

Mr.  Gt'or^e  liodnei/  hru1»c%.  Sir,  I  think 
the  proper  c|uestion  before  you  is,  Whether  you 
will  allow  sir  J.  Fenwick  time  to  produce  such 
witnesses  as  he  shall  desire  for  hisjiistificationf 
It  is  a  little  strange  to  me,  that  the  gentlemen 
that  ai-e  of  s*ir  J.  F.*s  counsel  should  insist  upon 
those  things,  to  desire  farther  time  for  his  pre- 
paration, when  (I  think)  it  is  very  plain,  th€*y 
w  ere  told  what  they  wei*e  to  pre|Min?  for  by  tlie 
bill ;  which  was,  they  were  to  justif\  sir  J.  F. 
against  those  things  he.  stands  indicted  for ; 
and  the  matter  of  the  indiermcnt  is  the  thing 
to  be  proved  l>efore  vou,  .and  the  witnesses  to 
make  it  g(Nid  are  like%%i<e  mentioned;  one  of 
tlicin  is  gone,  but  his  irstimnny  remains  unoii 
oath,  not  only  to  the  grand  jury,  but  in  another 
place,  that  Tarn  told  of:  I  do  not  think  yoit 
uiil  think  it  rtasouaUlc,  alter  the  king's  counsel 
have  made  out  tiicir  evidence,  to  give  hiin  tiroft 
to  make  their  observations  upon  the  charge ;  so 
you  will  consider  before  you  hear  the  king\ 
counsel,  whether  you  v.ii!  allow  him  farther 
time,  or  no. 

Sir  Jtut.  W  i/liumMin.  The  gentleman  that 
.spoke  last  state*  the  case  to  b<'.  Whether  you 
nil!  ti.itik  il uvkonable  to  allow  sir  J.  F.  farther 
time  ti)  protiucc  his  witnesses?  Vou  may,  sir, 
make  ihut  the  fiuc^titm  ;  hut  that  will  depend 
upnn  aiioiiiei%  whikh  i^,  \\  hcther  you  think 
that  sir  J.  F.  had  not  notice  enough  to  prepare 
to  defend  himself  ii^j^ainst  the  charge  contained 
in  the  preamble  of  tip  hit!!'  .Aiid  I  sidJ  thisfur^ 
tlier,  Whetljcr  the  i;iaiii;cr  aiid  way  of  express- 
ing that  paiticul<ii'  cii  ii,;c  lii  t!ic  bill,  is  not  so 
v*<iiihd,  so  charged,  :rs  i.rre  exprcsbly  to  be- 
ri.mc  a  rh.'irj^^e  thit  \a  k  to  uiisml-:  for,  and  not 
ouly  -..s  a  ((laller  of  lac^  hlj»l.iri«:«»ily  relat«d;» 


8  WILLLAM  m. 


I 


now  ta  come  in  ^roof  herv :  For  if  it  proves  to 
be  w«ll  chan^  ilk  the  preamble,  it  is  a  pmti- 
etilar  fact  of  tffiL<io(i  he  ii  to  wifivter  for  in  Lhb 
kotMe;  and  then  he  hath  bad  time  enoug-h  ;  so 
thftt  now  you  are  to  judge  of  your  own  way  of 
eiprcsning^  yotiraebea.  1  beUcvf?  every  gen- 
tteman  knows  it  was  the  sense  and  meanrng  of 
the  hoiiae,  that  tho^  ai^e  th€  {wKicular  treasooft 
meuticmtd  in  the  indictment  with  which  he 
ibonld  he  tharefed  at  the  bur,  and  have  time 
ftnd  liberty  to  iGsfend  httuself ;  and  not  only  to 
the  auctions,  that  he  had  been  indicte<],  ^c. 
Now,  sir,  if  you  eihall  allow  these  gentlemen  to 
except  against  your  way  of  expresnug  ynur- 
•dvesi  that  I  submit  to  you  :  But  it  is  clear  to 
tDe^  that  this  was  a  very  good  and  proper  way 
of  expressinyr  yourselves,  to  charge  lum  witb 
the  facta,  and  to  give  him  liberty  to  disprove  it. 
If  he  and  brs  counsel  understood  it  otherwise, 
the  question  is,  Whether  their  diA'ering  with 
jrou  tn  the  way  of  expreasing  it,  shall  he  ulowetl 
to  tbem^  without  taking  a  reaMOnahle  exception 
to  it  ?  You  arc  tied  hera  to  the  strict  rul»  of 
justice ;  but  as  to  the  forms  of  proceeding 
below,  I  do  not  think  you  are.  Our  tneanmg 
was,  txiost  certain  (though  he  was  indicted,  that 
itwas  nothing  to  us),  that  thejr  should  bring 
their  proof  to  our  bar  to  prove  him  guilty  ;  ajiu 
if  you  shoulii  give  him  two  or  three  days  time» 
you  must  mend  your  bill  to  tlieir  way  of  ex- 
pression, and  to  their  sense. 

Mr.  Brvlherton.  1  take  the  ques^tion  to  be* 
now.  Whether  the  king*s  counsel  should  give 
evidence  of  any  other  matter  than  what  is  al- 
ledged  in  the  bAlF  \3  to  that,  1  must  observe 
to  you,  thnt  this  bill  does  not  set  forth  any  par- 
ticular charge  ngainst  him  ;  it  does  not  say, 
thai  be  such  a  day  did  such  a  feet,  whereby  he 
can  make  his  deteoce }  it  is  only  the  recital  of 
an  indictment ;  and  it  does  not  say  the  pnrri- 
eular  time  and  place  where  the  fact  was  done. 
Now  as  to  what  that  gentleman  savs,  if  it  had 
been  said  generally,  tUnt  he  should  be  attainted, 
it  bad  been  sufficient.  S2  H.  8,  the  statute  for 
attainting  one  for  putting  (mison  into  a  pot,  ^c. 
there  is  the  day  and  yeur  when  the  fact  was 
cnmivttted  ;  and  so  he  might  make  his  defence. 
Then  the  king's  counsel  offer  to  proTe,  that  this 
€Joo<linan  was  conveyed  away  by  sir  J,  F.and 
there  t^  no  such  charge  in  the  hill ;  for  the  bill 
only  ^ys,  that  he  is  withdrawn ;  and  I  am  of 
opinion  they  ought  to  give  evidence  of  nothing 
but  whttt  \h  in  the  hilt 

Mr,  Whi taker.  As  to  the  exceptions  made 
by  llie  coimsej  to  the  insutficiency  of  the  bill, 
by  wliich  ihey  pretend  sir  J.  F»  was  led  into 
an  error,  so  that  he  had  no  due  notice,  I  must 
fieeils  »ay,  if  they  wci^e  in  Westminster  Hall 
they  would  be  in  the  right ;  hut  this  house  is 
not' bound  to  those  forms:  for  1  believe  the 
eirnciirig*  cUti»e  would  do  the  btisineas  of  air  J. 
F.  well  enough,  if  all  the  i-tsi  were  laid  aside ; 
and  [  will  con^itler  it  wJtJi  as  mueh  tend?rnea» 
and  conscience  lor  the  prisoner  at  the  bar,  as 
any  that  brings  arguments  trom  VVeMtminster 
HalL  ]  wotdd  consider,  whether  such  a  de- 
teoee  aa  they  have  made^ihat  from  the  bill  (as 

# 


Procitdingi  agiemjft  Sir  Jokm  Femdekf         [8 

to  what  ia  laid  in  it)  he  had  not  i 
to  prepare  to  make  hta  aMW«r:  Tliif  »y^l, 
reeital  is  no  direct  afSmniioo  in  civil  mwlMmi 
It  is  an  affirmation ;  fir  lo  say,  •  Whoreaas 
*  a  one  is  bound,*  is  good  in  a  det^arsiliofi  op 
a  bond.  Now  1  would  know,  whether  this  I 
not  eoongb,  to  say,  That  be  is  indietcd«  i 
out  any  amvttiontltat  Ite  is  guilty  f 
bill  no  redtai  at  all,  it  had  been  an  i 
but  it  may  be,  it  had  been  auch  ftn 
that  they  ought  to  liavedotie  aOflM^iO|f'i 
parti,  as  to  hftve  deetred  the  opic' 
house  to  what  they  ahoold  heve  ante 
suppose  there  ba'd  been  tto  feeitnl  at  all  (t 
you  may  make  what  recital  you  think  fit)  i  ' 
should  fir  J.  F.  have  donef  There  are  i 
ini^tances  at  common  law ;  A  maji  is  in 
for  being  a  common  barrater,  aod  there  are  I 
instances  given  in  the  indictment ;  why  l' 
he  conies  and  prays  the  court,  f^ 
declare  what  instances  they  wil  i  i 

they  may  givo  no  other  wortU  lu  rtitkoeer" 
therefore*  I  queation  tioi  but  that  ehooM 
come  on  his  part ;  he  is  to  be  heard  ee  t 
enacting  part  of  the  bill;  and  umler 
you  could  do  no  otherwise.     Now  if    " 
offer  to  give  evidence  of  any  treason  thati 
sperifieii  in  the  recital  of  the  bill,  and  the  i' 
sel  make  an  objection  10  it,  I  ehatl  i 
them. 

Sir  Ed,  Seymtmr.     My  lords »♦  and  yon  Wr^] 
Speaker,  what  hath  l»«?n  said  to  \on  by  i 
worthy  [H^rson  that  npake  la«t,  n« 
that  if  there  had  been  no  mori> 
ing  claute,  it  would  have  done  k<:  j ,  k- . 
ness  with  a  witnesa,  or  rather  without  a  witnettj 
But  that  is  not  the  question  we  are  di4 
here  ;    but  the  question  is,  \Vheth»*r  i 
give  sir  J.  F.  longer  time  to  mnke  hla" 
to  that  part  tie  insists  on,  that  ii  not  containe 
in  the  bill  ?    You  are  well  satinlieil  thsit  yo 
cannot  go  through  with  the  suggeatioes 
night,  [past  3  i>*clock,]  and  the  debates, 
what  relates  to  it ;  and  1  find  no  itenon  i 
putting  it  off,  but  becaote  it  would  \*e  a  delayj 
and  if  it  be  no  delay,  that  reason  is  nut  of  door 
— ^They  tell  you,  the  counsel  could  not  htt  mki 
notice  of  the  matters  suiKgeeted  in  tl 
ment  r  I  cannot  tYiink  that  it  revsoneb] 
because  t bey  do  know  the  practir^  -• 
is  such,  that  they  can  take  n 
but  what  is  specified  and  cootuii,,-,  .^  ll^  ^  .1- 
And  therefhre,  there  being  no  f^H  diirgeil 
upon  sir  J.  F  in  the  bill,  i&  it  reflsoiwble  ihejr^ 
Bboidd  come  aod  accuse  themselves  here,     ^ 
mnke  a  defence  to  what  is  not  charged  T     Ne| 
but,  say  they,  it  is  implied  :  This  is  an  imti 
den  (lath,  and  you  ought  to  walk  as  tecnrely  i 
it  as  yon  can.     It  is  extraordinary  that ' 
bring  sir  J.  P»  here  to  answer  tor  treasoti,  wli 
it  IS  allowed   in  the  suggestions  of  the  bill 
you  have  but  one  witness  to  that  treatoti ; 
when  you  take  these  extraordinary  steps,  yo 
khr^ulil  c«jmply  with  him  as  much  as  yoti 
in  the  forms,     Forif  treanoii  be  noltresuioti 


Because  many  lords  were  in  tlie  | 


upon  a  Bill  of  Attainder* 


A.  D.  1696* 


\m 


le  prored  by  two  witnesses,  antl  yon  will 
m  liberty  to  make  his  defence,  I  think  it 
of  time;  for  you  cannot  (^  throug^h  the 
(lijfht,  to  see  whether  sir  J.  F.  " 


.  be  guilty 
t  It  cfiDtained  in  the  indictment.  And  i 
ire  yoa  one  reason  why  he  could  not  be 
pd  to  make  his  defence  in  so  shoit  a  time ; 
could  not  produce  his  evidence  if  he  had 
ind  if  you  ^re  him  Ioniser  time,  I  siip- 
ni  will  think  fit  that  sir  J.  F.  should  give 
oont  of  what  witnesses  lie  shall  make  use 
his  defence ;  and  you  will  g^ive  an  unler 
se  witnesses.* 

Harcourt.  If  sir  J.  F.'s  business  must 
le,  I  hope  we  shall  do  it  like  rational 
lod  what  we  enact,  be  able  to  ^ire  a  rea- 
?.  account  of  it  in  the  preamble  of  the 
As  to  the  question  proposed,  your  de- 
are  run  sereral  ways :  The  first  is,  Wbe- 
r  J.  F.  shall  be  allowed  further  time? 

this  case,  whoever  1  differ  with,  it  is  of 
iture  that  1  must  desire  the  liberty  of 
ng  my  mind.  I  must  confess,  I  see  no 
or  enlarging'  the  time ;  and  I  shall  ham- 
brait  my  opinion  to  othor  irentlemett, 
■      ■    ildh       '     • 

I  ?  And  for  that,  pray  consTder  the 
of  the  matter  before  you. — Sir,  there  is 
X  certain  that  is  alledmi  in  the  Bill ;  and 

you  a]k>w  him  ftirtber  time  to  answer 
hicfa  is  not  alledged,  I  cannot  imagine 
ffect  you  Would  bare  of  it.  It  is  said 
,  he  stands  indicted  ;  but  it  is  no  where 
led,  that  he  is  guilty  of  that  indictment, 
eneral  charge  seems  a  great  hardship: 
is  DO  one  thing  that  so  many  have  been 
y  taken  off  by,  as  the  uncertainty  of  ai* 
;  general  facts  in  indictments  of  high- 
I ;  DOT  has  any  thing  been  complained  of 
I  trials  for  a  greater  grievance.  What 
foa  done  in  the  bill  for  regulating  of 
I  cases  of  high-treason?  In  that  Inl  I  you 
efbrroed  that  abuse,  and  taken  care, 
batever  treason  a  roan  might  be  guilty 
be  shall  never,  upon  his  indictment,  an- 

any  fact,  unless  the  particular  overt- 
spreaaly  laid  and  affirmed  in  his  Indict- 
-That  which  seems  most  reasonable  in 
ic  to  be  done,  is,  not  to  enlarge  the 
Rit  when  you  think  fitting  to  proceed, 
I  apon  what  is  before  you.  Here  are 
latten  expressly  alledged  ;  let  them  go 
e  radtal,  see  whether  tbev  can  prove 
Mt  I  canaot  imagine  to  what  pnrpoae 
MiU  give  the  prisoner  further  lime  to 


answer  not|itng;  for  that  which  is  not  charged 
is  so. 

Mr.  Finch,  Sir,  this  is  a  question,  in  my 
opinion,  of  very  great  consequence :  You  are 
very  well  told  from  below,  that  this  is  an  un- 
trodden |>ath ;  and  I  am  the  more  coofimied 
it  is  so  from  this  debate.  We  are  told,  that  sir 
J.  F.  or  his  counsel,  oouM  not  be  ignorant  of 
what  they  were  to  prepare  themttelves  lor. 
For  this  was  our  meanin^fi  says  one  gentleman, 
though  I  finil  the  path  is  «o  untrod,  Me  are  vfry 
unfiirtnnate  in  expression;  of  it,  for  we  havt*  not 
said  it  at  all  in  this  bill ;  we  have  said.  Sir  J.  F. 
was  indicted,  Ike.  sir  J.  F.  hath  had  a  copy  of 
this  bill  sent  him,  counsel  allowed  him,  and 
upon  a  second  readinff  be  comes  to  make  his 
defence.  We  are  told,  the  proceeitiiig  upon 
this  bill  is  nut  to  be  renenibled  to  the  proceed- 
ing in  Westmiiister-liall ;  and  this  is  sufficient 
in  a  bill,  though  in  an  indictment  it  would  not, 
without  alled^ing  that  sir  J .  F.  is  guilty.  But 
one  would  think,  that  if  sir  J.  F.  w  ^lulty^ 
every  allegation  in  the  bill,  that  is,  the  induce- 
ment to  the  bill,  whkb  is  for  attainting  biin, 
should  be  a  good  and  just  ground  for  the  at- 
er  he  shoulifhave  further  time'to  prepare  i  uinder;  and  then,  this  gentleman,  that  hath 

B  A_  J  ^  _  .i_^^ j__ ..       bad  a  copy  of  the  bill  to  preparefor  bisdefence, 

and  shew  you  reasons  why  the  bill  sliould  not 
pass,  though  our  proceedings  are  not  to  be  re- 
sembled to  the  ordinary  proceedings,  yet  we 
are  to  expect  fhmi  him  such  a  defence  as  the 
oniinary  proceeding  in  Westminster-ball  would 
require:  But  I  thmk  this  is  hardly  to  be  ex- 
pectei! ;  one  might  have  thought,  and  reason- 
ably enough,  that  it  might  have  come  into  bia 
imagination,  that  if  there  had  been  ground  to 
attaint  him,  by  the  ordinary  proceedings  and 
methods  of  justice,  the  parliament  would  not 
have  taken  an  extraiordinary  course  to  come  at 
it :  For  I  can  never  think  it  a  good  reason  to 
proceed  this  way,  that  is,  for  the  saving  of 
tiDie  ;  and  if  there  be  extraordinary  ground 
they  miist  guess  at  that  out  of  the  bill:  Now 
that  b  groiuided  upon  those  suffgeations  that  f 
have  dtad  ;  and  then  I  sboold  nave  imagined, 
that  whereas  he  had  been  indicted  upon  the 
09fhn  of  two  witnesses,  as  the  law  requires, 
and  one  of  them  was  withdrawn ;  tliat  you  had 
rather  intended  Co  have  charged  bim  witli 
some  contrivance  to  elude  justice,  whereby 
you  had  reason  to  exert  your  extraordinary  au- 
thority to  proceed  against  him  by  way  of  the 
legislative;  and  I  do  not  find  we  have  any 
precedent  to  warrant  this  proceeding,  though 
in  oar  debates  we  have  endeavoured  to  find 
one :  yet  I  cannot  but  observe  the  consequence 
•f  thb  hereafter :  For  whether  we  can  find  a 
precedent  to  warrant  this  proceeding  iu  former 
agesy  or  not,  we  are  making  a  precedent  for 
our  posterity.  And  consider  the  consequence 
of  this  precedent  you  are  making ;  I  think  all 
the  bills  in  parliament  are  grounded  by  the 
moat  serious  ways  of  deliberation,  before  you 
oome  to  iudgment:  And  bills  of  attainder 
ought  much  more,  sure,  to  require  the  serious- 
nesB  of  your  debates ;  but  1  cannot  but  ob- 
aarvn  the  atepa  now  made ;  I  am  ai'reid  thart 


J  to  gome  aocoants,  sir  Edward 
if  ineeieh  thos:  «*  I  am  of  the  same  opi- 
th  tbe  Roman,  who,  m  the  case  of  Ca- 
aehrad,  hn  liad  rather  ten  guilty  persona 
tneape,  than  one  innocent  should 
To  which  lientenaBt  general  Mor- 
■id  to  have  replied  as  folkiws :  *«  The 
■MBber.  who  apofce  last  seems  to  have 
htt  the  Roman  who  made  that  decla- 
of  being  a  conspirator 


8  WILLIAM  III. 


567] 

was  a  wrongs  step  ai  first ;  I  was  not  here  the 
first  day :  ^t  I  recollect  some  thinjii^  From  the 
bill  itsdf ;  the  tenderness  of  those  things  upon 
which  this  enaistini«p  clause  does  stand.  Here 
was  no  evidence  ^veii  Ui  induce  the  house  to 
bring  in  this  bill  of  attaindi^r  ;  when  this  hill  is 
brought  in  the  bouse,  and  the  preamble  that 
iiuggests  that  which  is  the  ground  of  the  enact- 
ing |>art  considered  in  the  house;  and  the 
house  did  not  think  it  reasonahle  to  proceed  to 
the  reading  of  it  a  second  time :  I  renienil)er 


Proceedings  against  Sir  John  Fenxmckj 

and  less  to  forms ;  I  mean,  to  fi>rmi 
dered  niprely  ns  forms ;  for  it  onght  to 
reason  that  is  convincinj;  to  you:  o 
ought  not  to  tie  younelves  to  any  fun 
til  is  occasion,  hut  such  as  are  ground 
reuson  ;  and  really  i  have  not  heard  ar 
thiit  fell  from  any  gentleman,  that  sh 
doul)t  of  the  nature  and  aggravating 
stances  of  the  crime  of  the  prisoner 
hath  consisted  with  the  great  candour ; 
tire  of  this  house,  to  shew  this  favoiu 


we  were  told,  Won't  you  read  it  a  second  time,  |  prisoner  before  you.    The  counsel  ss 


are  unpre|iared ;  if  they  mean  the% 
prepartf  themselves  for  more  grounds  o 
eueo  and  chicanery,  1  woul«l  not  giv 
farther  time ;  J  caimot  perceive  there 
reality  of  ari^uineiit  in  it ;  and  there  i 
soning,  as  in  religion,  sometimes  a  foi 
out  a  power. 

8ir  rho.  Difkc,  Sir,  you  have  now 
tiiree  questions  before  yuu  ;  1  desire  ; 
confine  our  debates  to  one  point:  . 
whatever  opinion  gentlemen  may  be 
ceruing  the  proof,  I  thinlt-the  point  unt 
considei-ation,  if  you  will  make  a  rigl 
ment,  is  the  preamble  of  your  hill, 
take  to  be  the  foundation  of  it,  and  tl 
for  which  you  attaint  this  gentleman : 
preamble  does  not  recite,  and  say,  he  i 
but  only  indicted  ;  nor  set  forth  an 
nay,  it  does  not  say,  he  was  arraigi 
that  these  things  are  very  uncertain, 
you  nuist  attaint  him  fur  tlie  things  n 
your  bill.  And  you  know  tliese  acts  < 
(ler  are  extraordinary  methods  in  cases 
son ;  and  if  you  put  it  upon  this  |H 
the  act  attaints  hiui  for  one  thing, 
counsel  stiull  prove  another,  it  niake» 
uncertain  ihaii  it  is,  and  no  man  can 


when  you  may  have  an  opportunity  of  having 
those  suggestions  proved  to  you  ?  'f^his  was  Uie 
ground  wTiy  this  bill  was  reiul  a  second  time. 
For  consider,  otherwise  a  gentleman  may,  in 
any  other  case  as  well  as  this,  desire  leave  to 
bring  in  a  bill  for  attainting  such  a  one  ;  and 
tell  you,  you  shall  have  a  good  reason  given  to 
you  foi'  it  atlerwards;  and  though  the  reasons 
suggested  in  the  bill  are  not  sufficient,  you  may 
have  reasons  out  of  the  bill  that  are  sufficient. 
What  a  precedent  will  this  be!  Why,  sir, 
length  of  time  gives  a  sanction  to  those  prece- 
dents which  the  age  that  makes  them  think  not 
of;  and  they  become  good  examples  to  poste- 
rity, that  were  even  very  heinous  precedents  to 
the  present  times.  Now  if  this  shall  stand,  as 
now  in  the  bill,  I  would  ask,  W'hat  man  in 
England  is  secure,  when  a  parliament  shall 
arise  that  hath  a  mind  to  attaint  him  ?  Why 
then,  sir,  if  you  do  amend  the  bill,  consider  the 
method  of  your  proceedings ;  you  do  your- 
selves, in  efiect,  tied  are,  that  for  bringing  in  of 
the  bill,  for  twice  reading  of  the  bill,  you  had 
no  ground  at  all;  forotluirwisc  you  had  good 
grounds  recited  in  the  bill,  and  that  must  be  a 
sufficient  ground  to  attaint  him  ;  and  if  you  de- 
clare it  no  sufiicibnt  ground  to  attaint  him,  you 

declare  you  have  bnnight  in  a  hill,  and  rcud  it  j  and  therefore  1  hope  you  will  confine 
twice,  without  any  ground.     Whether  you  will  :  sel  to  proofs  of  the  matter  contained  in 
allow  liberty  to  offer  at  your  bar  any  sugges-  '      31r.  /.  Hone,    Sir,  1  think,  if  you 
tions  otherwise  than  in  the  bill,  that   I   luwA 
submit  to  you;  and  for  giving  time,  sincr  that 
is  a  question  of  a  very  extr.'ionlinary  ualiire: 
but  have  humbly  ofiered  my  thoughts,  whether 
any  thing  shall  be  uHcred  otherwise  than  is 
suggested  in  the  preamble  ot  the  bill  ?  1  hope 
you  will  not,  fur  the  precedf*nt  sake  you  aie 
jiow  making  ;    which  if  you  do,   I  am  afraid 
bills  of  attainder  may  become  now  as  fre<|uent 
as  Bills  of  Attainder  were  in  Rd.  2*s  time ; 
which  I  hope  never  shall  Ik*. 

Lord  A'orm/*.  Mr.  Speaker,  1  will  not 
pretend  to  telT  you,  that  you  are  bound  by 
other  rales  than  rules  of  justice;  but  what  is 
justice  in  Wcsimlnster-Iiall  is  so  hero,  and 
every  where.  Ami  last  year  you  thought  it 
justice,  that  no  man  slioiild  lie  broutfht  to  a 
trial,  but  he  should  know  what  were  the  par- 
ticular facts  that  were  alU-dgetl  against  him. 

l^rd  CutU.  I  think  it,  in  stuue  n\easure,  a 
misfortune,  tliat  a  matter  of  this  nature,  as  is 
your  present  debate,  halh  held  you  so  long ; 
and  conceive  it  a  thing  to  l»c  wished,  that  every 
Kentleman  that  speaks  upon  this  occasion, 
»ould  apply  himself  more  closely  to  reality, 


go  on  upon  the  matter  suggested  iu 
they  are  allegations  which  must  b 
hi*fore  the  hill  is  committed  ;  and  liia 
hinder  sir  J.  F.  from  lu-ing  examim 
treason  likewise.  Therefore  all  that  is 
in  this  bill,  I  suppose,  being  thought  i 
to  he  proved,  1  desire  he  may  be  t 
and  the  counsel  may  go  on  to  provi 
allf.>dged  in  the  hijl,*  aiid  at\erwards 
may  answer  them. 

Lord  Co'iitifixhj/,     If  the  qui'stion  v 

'  tUer  you  shouM  grant  this  gentlemai 

I  no  to  make  his  Defence,  I  shimld 

'■  iion!)!( d  you.     But  the  question  now 

he,  W  hether  the  Bill  does  depend 

'<  hnrt*  suifgcslions  of  the  bill,  or  upon 

of  sir  J.  F.  ?  And  therefore  if  gent 

I  iusiht  upon  it,  ihat  he  should  have  k»i 

I  to  defend  himself,  as  to  his  l>eing  ini 

.  guilty,  1  shall  not  oppose  it ;  but  if  ; 

fit  to  |)ut  it  off,  as  if  the  fate  of  tb 

depend  u|Min  the  suggestions  of  it,^ 

agi  ee  t(»  that  matter ;  therefore  1  desi 

tunc  may  be  given  hini  to  auswer  tl 

uf  his  guilt. 


upon  a  Bill  ()f  Attainder. 

irley.  I  6q4]  ail  g^oUemen  that  speak  | 
lijcct,  to  say  this  matter  is  of  a  ?ery 
aary  nature,  aod  you  have  entered  , 
r  Tery  eXtranrdiDary  inethoJs :  but  I  > 
f  observe,  that  tbia  oeiiig  (he  first  bill  | 
od  that  hath  been  bn)U||^ht  into  the 
efore  any  proof',  gentlemen  must  be  j 
f  tliey  are  cautious  what  steps  they  do 
d  when  the  wisdom  of  the  House* has 
fit  to  take  (}uite  different  methods,  as 
fliminaries,  it  is  not  to  he  wmi<!ered  if  | 
t  with  difficulties  iq  their  proceedings.  | 
sntlenien  press  for  more  tinie  to  be  ! 

sir  John   Fenwick  to  be  prepared; 
rs  uria^,  that  yon  sliouUI  declare,  whe- 

counael  should  be  heard  to  any  thing 

is  suggested  in  the  bill.     And  I  think 
t  give  a  determination  to  the  la^it  ques- 
ugh  the  whole  House  a^eed  to  give 
jrer  time  :  for  if  you  give  him  longer 
will  after  come  t<>  the  same  debate, 
they  shall  be  heard  to  any  thing  but 
luggested  in  the  bill?  If  you  should 
to  add  any  thing,  then  it  will  be  rca- 
hat  he  alsi»  should  be  heard  to  that ; 
e  case  of  the  deatli  of  a  man,  let  him  | 
lever  so  much,  yet  he  does  not  deserve  1 
injustly   by   your  hands. — It  st.*ems  a  \ 
lin   propositjun,  that  when  a   man  is  ' 

he  should  not  answer  to  u  hat  he  is  ■ 
ged  with ;  and  to  charge  it  with  in-  , 

and  implications  is  so  uncertain,  ' 
[  always  have  seen  it  denied  in  this  | 
0  I  hoi»e  I  shall  not  see  so  great  an  as-  ; 
five  any  countenance  to  it.  They  did  ! 
,  tliey  were  prepareil  to  speak  to  the  ! 
leoess  of  the  bill ;  but  tliis  matter  not 
ggesteil  ic  the  bill,  they  are  notpre- 

speak  to  it. 

10.  Liitlctoa.  1  see  now  where  your 
bave  led  you  :  I  thought  the  regular 
»f  our  debates  had  been  the  point  npon 
le counsel  withdrew  ;  and  that  was  for 
Por  what  ?  Why  to  prepare  themselves 
>r  any  evidence  that  might  l»e  given 
hem  ;  because  they  perceived  you  did 
he  counsel  for  the  bill  should  ptoduce 
dence.  But  they  made  au  objection  : 
y,  we  did  not  understand  your  order 
it  we  should  cume  prepared  to  op|)Osc  ' 
iinooy  viva  voce  to  be  given  atsainst  us, 

iirepared  to  speak  to  the  reasonable- 
tue  bill.  Now,  gentlemen,  after  five  or 
a  debate*!,  have  been  willing  to  accom- 
tbe  matter  (that  nolwdy  might  think 


one  jiresse«l  a  matter  unreasonable), 
y  miglit  have  time  :  but  some  gcntle- 
1  not  be  satisiied  with  granting  what 


isel  desired,  but  they  desire  more.  And 
that  ?  \S  hy,  that  is  to  know  the  opi- 
tbe  house,  whether  you  will  admit  any 
g  to  be  proved  thiit  is  not  suggested  in 
r  Aod  I  do  uke  this  to  be  within  the 
ioDS  of  the  bill,  as  fully  as  ean  be  ex- 
For  what  does  the  bill  say  ?  The  bill 
r  be  was  indicted  of  high  treason,  and 
:  of  the  witnesses  Is  gone :  and  gentle- 


A.  D.  1696.  [570 

men  come  to  the  conclusion,  and  skip  over  the 
immediate  part  of  the  bill ;  for  the  bill  does 
say,  that  he  did  incite  and  consult,  fcc.  And 
the  objection  of  the  counsel  was  not  against 
tlie  evidence  ;  but  they  said,  they  wt  re  not 
prepared  at  that  time  to  answer  it,  and  there 
they  leave  it ;  and  thereupon  the  House  go  on 
upon  the  debates.  What  ^an  wc  expect  that 
they  intended  ?  They  might  think,  either  we 
shall  gain  our  point,  and  the  bouse  will  give 
lis  time  ;  or  otherwise,  if  they  go  on  and  heur 
this  evidence,  then  we  say  we  wanted  time. 
And  that  will  be  only  evidence  ei  parte,  and 
not  carry  so  much  weight  with  it,  though  we 
have  nothing  to  say  to  it ;  or  they  might  think 
it  may  have  this  effect,  that  the  house  will  not 
go  on,  and  hear  any  evidence  at  all :  in  either 
of  these  cases,  ^^e  have  the  fairest  advantage 
that  we  can  have,  on  tlie  second  reading  of 
the  bill,  in  defence  of  our  client ;  all  tbay 
desiretl  was,  that  they  might  have  time ;  and 
I  ho|)e  that  which  satisfied  them  that  are  most 
concemcil,  may  saii^^fy  any  gentleman  of  the 
house. 

Mr.  J.  Hone.  The  question  is  not,  what 
they  asked,  but  what  is  reasonable  for  us  to 
grant  ?  1  was  in  the  beginning  against  any 
delay,  and  I  think  there  is  no  occasion  of 
delay  :  all  1  desire  is,  sir,  that  the  king's  coun- 
sel may  be  desired  to  prove  the  suggestions  of 
tUe  bin  €  J  tola. 

Mr.  SoiicUor  General,  Most  that  have  spoke 
of  this  matter  have  said,  that  the  matter  is 
very  generally  laid  in  this  hill,  and  the  coun- 
sel could  not  very  well  kno\%  to  what  to  apply 
them^hes:  that  it  speaks  of  high  treason  in 
general,  an*'  ofaidingthe  king's  eueniiev,  which 
IS  very  general :  it  recites  that  indeed  ;  hut  the 
indictment  is  legal,  according  to  the  late  act  of 
parliament.  It  is  not  only  snid,  tliat  he  de- 
signed the  death  of  the  king,  but  for  that  pur- 
pose he  and  others  met  together,  and  agrceil  to 
send  Charnock  to  France,  to  ^o  to  king  James, 
to  induce  the  French  king  witTi  an  aimed  |«ower 
to  invade  England.  Now  bow  can  any  thing 
be  more  particularly  charged  ?  And  the  in- 
dictment is  so  charged  in  your  bill.  I  think 
theretbi-e  the  counsel  could  not  be  ignoi:int  to 
what  they  ou>^ht  to  apply  themselves  ;  but  by 
what  i  perceive,  gentlemen  are  very  well  con- 
tented to  give- him  further  time.  1  remember, 
when  the  bill  was  first  brought  in,  there  was  a 
long  debate  for  a  second  reading  ;  and  S'>ino 
gentlemen  thought  it  hard  to  be  trie<l  by  so 
great  an  assembly,  and  said,  they  had  rather 
be  tried  by  a  fewer  number :  but  I  shall  ob- 
serve, that  you  have  sent  the  copy  of  the  bill 
to  air  J.  F.  beforehand,  and  you  sent  him  notice 
that  he  should  provide  himself.  But  1  remem- 
ber a  much  better  man  than  sir  J.  F.  who  had 
the  misfortune  to  be  under  an  accusation  of 
high  treason,  had  his  indictment  one  hour,  and 
was  trietl  the  next :  and  though  he  pleaded  to 
have  his  trial  put  off  till  the  aflernoon,  he 
could  not  privail  with  the  court  of  justice  to  do 
it :  tir  John  Fenwick  hath  had  a  copy  of  his 


Col.  Wharton.  You  bare  thnse  or  Ibnr  qaeh 
tiona  upoD  your  paper :  and  now,  after  to  kng 
a  debate  as  we  ba?e  had,  I  hope  geotleiDei 
will  not  think  fit  to  start  new  ones ;  and  f 
hope  you  will  lake  care  that  gifutlemen  ibil 
not  rise  up  three  or  four  times  to  speak  to  tbii 
matter.  Yon  have  another  rule  of  the  botue^ 
that  when  a  question  is  moved,  and  seooodal 
thoufifh  another  question  is  mored  aftenrairdi, 
yet  that  must  be  the  first  question  that  is  lobe 
put ;  and  I  hope  you  will  keep  us  to  thw 
rules. — I  wonder  at  some  objections :  it  is  loM 
you,  that  this  is  such  a  proceeding  tbst  nerer 
any  thing  of  this  kind  was  before ;  ami  thai  joh 
are  here  going  to  read  a  bill  of  attaiiMlpr, 
before  yon  have  hail  any  manner  of  evirfesce 
upon  which  yon  shonhl  ground  thebrioq^ingia 
or  tliis  bill*.  Gentlemen  must  rememl^,  or 
should  ha%c  informed  tbemselve:* ;  for  it  is 
very  certain  that  you  had  very  good  gmundslf 
vote  this  hill  to  be  brought  in* :  t  see  rhe  g«n* 
tleman  that  brought  in  his  own  aocusatiuo; 
you  had  his  own  discovery  reai^,  and  Mr.  At- 
torney did  inform  you  what  was  against  bin, 
and  how  he  stood  indicted.  And  another  \j;»- 
tleman  by  me,  told  you,  he  was  with  him,  isd 
there  was  a  treaty  for  his  pardtm ;  ibis  «m 
evidence  lor  reasonable  men  to  go  upon.  And 
to  tell  yon  that  tliese  preceilents  will  endsngit 
your  liberty  !  Under  favour,  this  is  the  ground 
of  oil  your  liberty.  It  is  by  this  power  of  pw- 
ceedinfv,  when  vuu  have  not  that  evidence  that 
Westminster-  Ff  all  requires,  by  which  you  will 
keep  great  men  in  awe. — Now,  give  me  lesw 
think  there  is  nothing  before  you,  but  that  you  ]  to  speak  to  the  question  that  1  think  yon  ought 


on. 

opened  the  proceedings,  after  he  had  opened 
what  had  been  before  the  grand  jury,  seemed 
to  make  it  a  charge,  as  if  sir  J.  F.  had  been 
condoBoending  to  the  withdrawing  of  Goodman. 

Now  that  seemed  as  if  they  designed  to 
make  that  apart  of  the  evidence. 

Sir  Rd.  Temple.  The  counsel  did  not  insist 
vpon  it,  only  to  answer  the  suggestions  of  the 
Bdl :  every  body  knows,  they  objected  to  the 
others  going  on  with  the  evidence  they  opened, 
because  it  was  not  in  the  bill ;  snd  the  king's 
counsel  could  not  so  much  as  ulledge,  that  it 
was  in  the  bill :  and  they  would  have  gone  on 
to  have  proved  the  indictment.  There  is  ano- 
ther thing  ;  it  is  told  you,  as  if  the  preamble 
bad  suggested  something  of  this  kind,  tliat  there 
was  a  meeting.  Now  the  gentleman  that  spake 
last  but  one,  has  cleared  it,  that  it  only  recites, 
he  was  indicted  for  these  things  ;  and  this 
brings  nothing  in  issue,  whctlier  he  be  guilty  or 
no.  Now  I  think  the  present  question,  and 
only  question  before  you,  is  upon  the  sugges- 
tions of  the  bill  ;  for  you  can  bring  nothing  in 
issnehere,  but  what  is  in  the  bill ;  and  nobody 
can  insist,  by  the  rules  of  reason  or  justice, 
that  any  man  should  be  heanl  to  any  matter  of 
fact  hut  what  is  in  the  bill.    And  therefore  J 


thisqupstioo  may  be  put,  whether  tbe  borne 
will  bear,  at  the  bar  of  the  bouae,  tbe  evidenee 
there  is  to  prove  sur  J.  F.  jguilty  of  tbe  bigh- 
treason  whereof  he  was  indicted  r 


571]  S  WILLIAM  III.         Proeeedingt  against  Sir  JtAnFemoidt,        [57S 

bill  for  two  or  three  days,  but  he  ntver  had 
BUT  copy  tin  be  bad  pleaded. 

Mr.  Waller,  I  stand  up  only  for  my  infor- 
mation ;  that  which  1  would  know  is,  whether 
the  counsel  did  not  ask  you  the  question,  whe- 
ther tbey  should  be  bound  to  answer  any  thing 
that  is  not  in  the  hilt?  If  they  asked  that,  then 
tbe  gentleman  that  spoke  nere  is  answered  ; 
end  tbe  gentlemen  of  the  bouse  do  not  in- 
upon  what  sir  J.  F.*8  counsel  did  not  insist 
And  I  do  think  the  king's  seijeant,  who 


should  give  direction  to  hear  them  to  what  is 
BUgz;este<l  in  the  bill. 

Mr.  Mcthu'cn.  Sir,  I  speak  to  the  method 
of  your  debates  :  your  debates  arise  upon  an 
objection  that  was  made  by  sir  J.  F.'s  counsel,  j 
against  the  counsel  for  the  bill  going  on  v\ith 
their  evidence  to  prove  sir  J.  F.  guilty  of  high 
treason.  I  must  beg  leave  td  dif^r,  as  to  what 
the  counsel  did  say,  from  some  of  the  geutle- 
men  that  spake  last :  the  force  of  their  objec- 
tion was,  that  they  should  not  now  go  on,  for 
they  were  not  prepared  to  answer  them  ;  and 
the  reason  they  gave  was,  that  they  had  not 
formal  notice  ;  and  the  other  afterwards  spake 


to  put:  it  i.s  told  you  by  the  counsel  for  tbe 
prisoner,  tiiat  they  are  not  apprised  what  the 
sense  of  the  house  was,  and  upon  that  accooot 
they  desired  further  time :  I  confess,  wlieo  yoo 
alloTved  counsel,  1  was  of  opinion  it  wis  i 
favour ;  and  now  since  they  have  made  tbif 
objection,  though  I  do  not  believe  you  sre 
obliged  to  allow  them  further  time,  yet  1  had 
rather  err  on  that  than  the  other  side;  ifld 
therefore  I  think  the  fairest  thing  is  to  allov 
them  some  further  time. 

Mr.  Secretary  Trumhal.  Mr.  Speaker,  I 
have  attended  all  this  da}r  to  your  debstef, 
which  are  now  in  my  opinion  of  a  very  extra- 


to  the  shortness  of  the  time  :  your  debates  for  '.  ordinary  nature  ;  for  a  great  deal  of  your  tiiae 


a  long  time  went  pursuant  to  this,  whether  you 
should  allow  them  further  time  or  not  ?  But 
the  length  of  your  debates  hath  raised  a  new 
matter :  though  1  think  that  doubt,  though  it 
was  not  made  by  the  counsel,  may  be  very 

{Toperly  made  hy  any  worthy  member  that 
atn  that  doubt,  whether,  as  the  bill  is  broii;rht 
in,  tbe  king's  counsel  might  at  any  time  s|M'..k 
to  that  point,  though  sir  J.  F.  be  acquainte  i 
with  it  ?  And  1  must  always  agree,  that  doubt 
OMgbt  to  be  resolved,  before  you  come  to  re- 
solve,  whether  farther  tune  shall  be  allowed 
Um  or  not  $  and  therefore  I  propose  it,  that 


hath  been  spent  upon  motion  of  the  counsel  for 
the  prisoner  at  the  bar,  whether  you  sboald 
allow  them  further  time  or  no;  and  now,  kj 
what  1  recollect  from  the  sense  of  several  po- 
tiemen,  the  house  seems  willing  to  allow  taflB 
further  time ;  even  that  is  opp<»ed  at  this  tiiiM 
of  day. — Sir,  the  king's  counsel  have  openej 
the  matter  of  fact,  u|Min  which  they  did  uii0i|| 
to  produce  their  evidence ;  and  when  they  bw 
ofiened  the  several  heads,  the  whole  objediM 
that  I  heard  made  by  tlie  other  side,  wa8,Tbiy 
did  not  think  the  king's  oouaaelconld  bavepra- 
ceeded  to  examine  witneases  apon  those  Mii 


l^n  a  BiU  of  Aitaindtr^ 

Ihti  tli«7  were  not  prepared  to  brtni^  wit- 
hes on  the  side  of  the  prisoner,  nnd  there- 
iV^  prayed  fur  f\irther  lime :  truly,  wlieiher 
IIMlI  ue  rvtJiooahle  or  no^  or  whether  iipun  one 
Dur,  the  house  thinh  fix  to  grant  atiother ;  I 
»)4it  tell  what  mi^hi  api^eAft  if  it  bud  come 
stioo  ;  sioce  the  life  of  a  man  is  ron- 
d,  w«ou§rht  U)  be  lender  of  it»  and  I  shall 
as  ieii<ler  as  anolher;  therefore  I  am  of 
vpinioo^  fhttt  o  n?a^c»imb!e  time  should  tic 
allowed.  To  do  what?  VVhy,  upon  ibeevi- 
llraee  the  kinfif*f<  roniiiiiel  nhoubl  prodoce,  they 
jkp\\  hri«|f  their  MfttnesHea  on  the  other  side  to 
Hbwer  thtin.  Whether  the  kmi;\ rouns^el  wi(! 
^^ittK'e  eviilence  thai  is  torei^^  to  th<-  hill^  that 
w{\\  he  ill  jiidtrmenl  of  the  house ;  but  it  was  a 
IfDfici  tnotimi  made  Mow,  which  I  dose  i^itha)^ 
that  u  short  time  muy  he  alloneil  ttieui  to 
niAtte  their  defenee*  and  bring  their  vi  itJie&ses. 
'prakfr.  Cfenth-tnen,  you  h»ve  bad  a 
ite:  1  do  not  remenilHfr  any  tortnnl 
I  that  WHS  proposed  at  first,  tiM  siirh 
'  at  I  read  to  ymi  whiit  I  tbmig^ht  wii«i  the 
ition  upon  Ihe  detnite  ;  when  I  read  you  the 
liion  for  Inrlher  tifoe,  there  were  several 
Hihers  stiMid  ni^  and  said,  that  vius  not  the 
•lion  ;  nod  took  exceptions  to  it,  ami  pro- 
>*i  thai  the  counsel  ghoidd  l>e  coo  fined  to 
lltire  evidence  only  to  the  matters  sugg'efited 
lie  hdl ;  so  that  now  f  have  tvio  ipiestiuns 
t  tny  paper,  which  I  will  read  to  you,  and 
^  wh.'nh  you  will.  One  question  ii^  **  Tnat 
be  contined  to  make  their  proof  to  what 
iijfjjrpsK-d  jn  the  bill"  The  second  cjuestion 
'  That  9;\rL  l*\  lie  allowed  further  time,"&c. 
|r  C  Mutgravr.  A  i^cotleman  said,  the 
^ml  q net t ion  u|>oi)  your  paper  was  btit  lately 
hut  I  remember,  a  little  after  the 
I  w^H  u'iiliilrawD,  it  was  moved,  VVhether 
i  would  '(five  them  further  lime?  And  I  pre- 
\\y  ut'ii^,  in  the  debate,  did  take  the  free- 
to  ask,  Uhetlier  it  was  intended  they 
bM  answer  to  any  things  but  w  hat  was  con- 
1  in  the  Bill  ?  And>  I  remember,  there 
(  a  ^enth'man  of  the  long  robe  said,  That 
'  wa»  nothinjr  offered  by  thv  king's  connsel, 
I  u hat  wnti  within  the  sngigpestiona  of  tl»e  bill. 
^Vman  Kaid,  When  they  may  buve 
II',.;  'Iiry  did  nut  seem  so  food  trf  it  i 

,^;ii  10  m^j  provideil  he  lie  prepared 
Inswer.  But  I  eann^it  but  observe,  that 
i.Ciin<^hision  i>f  that  hooourable  jierson  was, 
ftftl  at  iaat  you  must  come  to  iletermine  the 
^WfHtion.  ^  ou  are  likewise  told  by  un  honour- 
able  pei'&im  nearer  the  bar,  why  ilo  ynu  dispute 
ihis  iM>w  yoH  hflvt  ordered  the  king*ii  crmnsel 
10  pfo«l«ir  Mdence;    and  so  yon  have 

conelutu  ^en?   But  for  tny aelt,  1  must 

rnnHvt^,  I  ii;<i  never  think  the  evidence  waa  to 
be  llfftrd  ^3tlrervii»e  than  as  to  the  ■ug'j^efltiona 
*^  '  hill  And  if  tliut  point  he  to  be  deter- 
,  why  will  not  you  dcfermlDe  it  now, 
rlhinto  have  another  debate  upon  it  f 
^'||p«C«V€ii*  That  %vhicli  U  presNeil  by 
h  ffCoticBi^n,  ii  bejr|iiM|^  of  the  qiiestion^ 
Rt  have  we Irere  brought  »jr  J.  F»  fur  ?  Was 
jfy  otirsielvrKj  wbetlicr  sif  J .  F.  waa 


A.  D.  1696. 


[574 


f^fuilty  of  high-treasou?  Now  that  is  supposed, 
by  some  ^eutletoen,  not  to  he  within  the  bill : 
if  it  be  not  within  the  bill,  1  desire  you  would 
throw^  out  the  bill.  But  the  thiag'  is«  we  naust 
not  examine  to  tJiO(se  thing!!  tl^t  will  make 
sir  J .  F.  gnihy .  8ir,  this  Is  a  very  nice  things 
atul  f  ery  curiously  woven.  The  great  thing, 
say  some  gentlemen,  we  must  take  care  of,  is 
the  blood  of  a  man:  does  any  one  say  he  is 
i n nocent  ?  N  o :  but  we  m ust  have  some  way  or 
another  that  bt'  mttat  not  be  brought  to  bit 
trial.  I  desire,  ns  Englishraen,  you  wilt  not 
only  lake  care  of  the  iife  of  one  man,  hut  of 
the  life  of  the  king  ;  of  the  lives  of  our  wives 
and  children,  and  mil  our  families.  What  will 
they  say  without  doors  f  You  are  afraid  to 
medditi  with  sir  J*  F. ;  and  therefore  you  will 
shiie  it  awuy  upon  another  point  y  that  his 
bfling  ipiiky  of  high  treason  is  not  within  the 
bill.  I  am  not  for  taking  the  advantage  of 
time  ;  1  desire,  as  it  was  moved  before,  that 
yon  will  give  him  tifiH',  and  try  whether  he  be 
guilty  of  this  treason  or  no  ;  or  otberwiae  ds 
nothing  in  it  at  all. 

[Then  the  Order  was  made  for  Candles  to 

be  brought  in.] 

Sir  T.  Littletm,  Now  you  htre  candles 
hruught  in,  it  will  be  fit  for  you  to  return  to  ths 
{|ue6tion  :  for  my  part,  I  am  willing  to  put  both  : 
but  1  think  the  la. (»t  question  that  yuii  have  upon 
the  paper,  properly  speaking,  is  to  be  put  first ; 
and  that  is,  TEiat  the  hou«ie  will  proc^  to  ex* 
atnioe  wi  to  esses  to  the  treason  in  the  hill  for 
which  he  stands  indicted. 

Mr.  J.  HoTPf,  J  think  the  question  ought  le 
be,  that  his  counsel  be  directed  to  hruig  wit* 
neicsei^  to  the  allegations  in  this  bill. 

Sir  'I\  Littleion.  I  (iropose  it  to  you  thus  % 
tliat  the  house  will  proceed  to  examine  wit- 
nesses at  the  bar,  to  tlie  treasons  mentioned  in 
Ihe  bill  for  which  he  was  indicted. 

Mr.  /.  Howe,  I  think  that  geotteman  might 
very  well  haveinoveil  the  qnevtion  without  thai 
limitation  ;  for  that  is  as  rnuoli  as  to  say,  that 
wLlnesstis  shall  he  examined  to  none  of  the 
treasons  in  the  bill,  except  tho«e  for  which  be 
hath  been  indicted  ;  anil  that  h  a  limitation,  I 
hofief  shall  not  Lie  put  to  the  enquiries  of  this 
house,  I  hope  you  will  put  it,  that  they  shall 
bving  evidence  to  the  matters  alledgtfd  in  tlie 
bdi  generally  :  thi?re  are  sevoral  other  aUega* 
lions  in  the  bill  which  i  would  liave  him  answer 
to,  a«  tlie  alienating  the  atfectioni  of  the  king's 
liuHjects  from  him,  u  hich  I  take  to  be  high  tresr 
son,— Aitfw6<r».  No,  no. 

Mr.  X  HoB^e.  Why  F  If  it  be  not  high  trea- 
son, it  hath  nothing  to  do  in  that  place.  I  be^ 
Iteve  it  is  a  rery  high  crime,  and  would  joduoe 
tne  very  much  for  the  punishing  of  air  Johft 
Feiiwiek. 

Mr.  Morris.  8ir,  1  do  not  know  how  the 
questions  may  be  canted  since  candles  are  come 
in  ;  hut  1  tlnnk  it  is  for  (he  better.  1  think 
there  Hre  two  thim^  ha%e  hein  S)»oken  to;  one 
is  this  bill :  I  tind  those  (,'eutlemen  that  were 
sgeiast  tbt  bill  on  Friday,  art  IMOrs  ifainst  i| 


575] 


8  WILLIAM  in.  ProccediN^o  agni.nt  Sir  John  Fenxv/ck^  [570 


now.     I  was  tor  the  bill  then,  and  am  now  for  |  sons  luentioneii  in  llie  biil,  fur  which  nr  John 
a  second  readings  of  it :  1  think  the  bill  is  vt-r^    Fcowick  i;*  iiidicU-d.'* 

Mr.  Motiloi^u.  I  <Io  not  «ibserve,  that  io 
readiu*;  of  it  you  say  any  tinner  as  to  lh#!  other 
altei^jtious  o\  the  bill :  L  think  yuu  should  wont 
it,  that  tho  counsel  be  allowed  to  produce  et i- 
dencc  to  tho  uile^ra.ious  in  the  bill,  anO  tbe 
treasonfi  whiHvof  he  stands  indicted. 

Air.  Spcnker,  Well  then,  the  question  ifi  this 
*'  That  the  i*onns«'l  that  luanatjfi!  the  efidenoe 
aifainstsiir  Jolio  Feuwick.  be  allowed  to  pro- 
duce witnebses  touch in^f  tbe  alle^auons  in  the 
hill,  and  the  treasons  whereof  be  stands  iu« 
dieted.; » 

Which  question  being  put,  it  passed  in  dw 
affirmative. 

Mr.  Speaker,  Will  you  please  to  apfioittt  s 
time  forit.^ 

Mr.  J.  Ihwe.  That  T  would  more  yon  it 
this  ;  You  were  m  extremely  lute  Ufure yoa 
went  upon  tlii^  iuformaiioa,  that  you  hud  wi 
time  to  •^o  ttirou;^h  any  pari  of  it ;  thcreture  I 
would  move  you,  that  you  would  appoint  early 
in  the  morniuj^  for  sir  John  Fenwick  to  be  here. 

And  thereupon  it  wasn  ordered,  '*  That  lor 
John  Fenwick  should  be  remanded  to  Newgale, 
and  brouirht  to  the  liouse  on  Monday  at  ten 
o'clock." 

Mr.  Jumes  Montague.  Sir  J.  F.  now  inmlffd 
he  had  not  notice  \  I  humbly  move,  that  be 
may  be  brouuht  in,  and  acquainted  with  whtt 
you  have  ordered. 

And  accordingly  sir  John  Fenwick  wv 
brought  to  tbe  bar. 

Mr.  Speaker,  The  House  have  cousidovi 
of  what  sir  John  Fenwick  hath  said  atthehir, 
by  bis  cuunseK  and  they  are  of  opinion,  ibai 
witnesses  oiit^ht    to    l»e  examined   there,  to 

t>rove  the  alkg^ations  of  the  bill,  and  to  profc 
lim  guilty  of  hipfli-ticason  whereof  be  staiuU 
iiidicte«l ;  but  in  favour  to  yon,  liecause  your 
counsel  said  you  were  not  pre|Kire<i,  tho  Iloufr 
is  willing*  to  ;>;ivc  you  time  till  Mo-.idity  next 
to  make  your  defence  ;  and  they  require  }oa 
to  give  in  a  list  of  your  witnesses  ;  and  it'  jou 
send  to- me,  you  may  have  a  warrant  tor  their 
appearing  at  that  time  ;  and  they  require  yoB 
to  be  here,  so  that  they  may  pi-ooeetl  njwn  die 
bill  exactly  at  ten  o'clock. 

And  sir  John  Fenwick  being  witlidrawn,  tbe 
House  resolved,  *'  That  tbe  Bill  for  Altaioiing 
sir  John  Fen\*ick  of  High -Treason,  be  read* 
second  lime  on  Monday." 

N«»veniber  16.  Mr.  S^teukcr,  CcnllemeOi  I 
would  receive  your  directions  in  one  thio?- 
you  have  ordeied  a  member  to  produce  a  Uilrr* 


plain,  and  know  not  what  they  wouhl  have 
mentioned  in  it  more,  unless  they  would  have 
bail  the  King's-head  tavern,  and  what  wine 
they  drank  tliere.  1  think  there  is  alt  the  rea- 
son in  the  world  to  hear  the  witnesses  to  prove 
him  guilty  of  high -treason.  As  to  tbe  |K>int  of 
time,  1  should  l^  very  willing  to  allow  it  them, 
if  that  question  was  put;  and,  1  think,  you  have 
lieen  \ery  favourable  to  him  already  in  allow-, 
iug  him  counsel. 

Mr.  Smith.  I  wouhl  only  observe,  when  the 
bill  was  to  be  brought  in,  the  objection  was, 
that  you  had  not  witnesses.  And  now  the  ques- 
tion is,  whether  you  can  hear  witnesses  upon 
tacts  not  particuUrly  assigned  in  the  bill  ?  1  be- 
lieve  no  man  can  say,  bntthat  in  the  indict-' 
meat  there  are  particular  facts  that  ought  to  be 
examined :  I  do  ov%n,  for  my  part,  if  sir  John 
Fenwick  was  a  greater  man  than  he  is,  it  were 
better  be  should  escape,  than  you  should  spend 
so  much  time  about  him.  Sir,  the  indictment 
is  mentioned  in  the  bill ;  no  man  thinks  that 
Goodman's  going  away  is  reason  enough  for 
bringing  in  such  a  bill  against  sir  John  Fenwick. 

Mr.  Speaker.  Shall  1  read  you  the  question  ? 
''That sir  John  Fenwick  be  allowed  further 
time  to  produce  witnesses  in  his  defence,  against 
tlie  charge  of  high  treason,  and  that  he  uame 
liis  witnesses?" 

Which  question  wns  put,  and  passtul  in  the 
affirmative. 

Mr.  speaker.  The  other  question  is,  "  That 
the  couusel,  \\  ho  arc  to  nroduce  their  evidence 
against  sir  John  Fenwick,  br  all<»wed  to  prove 
sir  John  Fenwick  guilty  of  hit;h -treason." 

Sir  2\  Liftieion,  I  do  think  one  of  tho  rea- 
sons why  this  hill  was  brought,  was,  becaii^^c 
possibly,  by  the  absence  of  this  witness,  lie 
could  not,  htrictly  S|)eaking,  be  proved  guilty  ; 
though  all  mankind  is  satistied  in  his  guilt.  And 
thcretbrc  1  question  %\  hether  it  will  amount  to 
a  legal  prtHii :  and  if  you  bail  such  a  pnnif  as 
would  convict  him  by  the  common  proceeilings 
4»f  law,  1  should  not  have  been  for  a  bill  of  this 
nature ;  for  it  is  against  the  honour  and  dignity 
of  this  House  to  do  the  work  that  an  inferior 
court  can  do.  Cut  probably,  by  the  alisence  of 
iliis  witness,  sii  J .  F.  at  a  trial  in  the  Old  Bai- 
ley, might  escape  ;  though  at  the  same  time  it 
is  highly  probable,  ihe  witness  that  is  wanting 
to  convict  him,  is  by  his  means  ironeoutof  the 
way.  Therefore  1  speiik  to  the  wording  of  the 
question  ;  you  say,  *  shall  he  allowed  to  prove.' 
1  would  willingly  prevent  what  may  be  objected 
when  we  come  upon  this  debate:  If  you  do  use 
the  word  *  prove,'  they  may  sav,  this  is  not 


proof  j  for  still  Gooduian  is  not  here.  If  you  and  the  counsel,  in  opening  the  evidecce,  hiv^ 
please  to  say,  thai  wo  will  examine  witnei^ses  '  referre<l  to  it.  Thai  member  desires  to  kaov 
tci  i\,c  tieusoij,  ii:id  we  will  be  jud'^es  how  fur  I  the  pro|>er  liino  for  him  to  do  it;  whc^htfi 
It  appeals  to  us.  wiietih.'r  he  he  guilty,  or  not  '  while  the  couuscl  arc  managing  theeiiilcnM 
guiUy.  {  at  the  bar,  orwhetbet   he  must  stay  tilldwy 

Mr.  S-'fuler.     Will  you  let  me  (irojiose  it  to  ;  arc  withdrawn  f 
you  thus  then :'  "  ThalthecounMrl.  in  produc- I       Mr.  Sluune.      A.s  to  this  matter,   1  do  Pit 
nijc  their  evidence  n'^ainsi  sir  John  Fenwick,  be  '  question  but  it  is  to  be  oifered  as  an  efidmM* 
•1  lowed  to  exaMiine  witnesses  touching  the  tiea-  I  and  by  the  same  reason  that  you  gire  biAlbl 

i  3 


npm  a  Bill  of  AUainder* 


A.  I).  1696. 


[578 


III  tnviilie  the  witnesses  lliat  are  f>ra- 
afftinst  him,  tor  the  same  reaflcni  the 
ou^ht  (0  be  re&d  in  his  pm^enre,  that 
lie  nwy  cjcpfati*  il»  «r  deny  it  -  and  five  ine 
kate  to  td(  my  thoughts  of"*a  not  iter  matt«»r :  if 
^tm%  wwrtliv  member  is  to  offer  evidence  of 
mhtA  h^  lo** V  .] .  P.*s  month,  (though  a 

BHHihqr  €<  ::]ve9  hts  evidence*  in  his 

fla^,  alter  int-  ro^nsel  is  wtthdratrn)  1  thmk 
il  it  not  only  tit  \»  prodoee  th^  Icfteif  in  his 
pff<cn«e,  hat  that  sir  *f .  F.  shi>uld  hair  what 
be  Mjs,  aotl  deny  it  if  ti«  c«d. 

Ilif»  S^mker.  U  that  joiir  pleasiire,  that 
ikit  letter  b«  f»fodoce«t  hethre  m  J.  F.^  am] 
liMt  the  erideDce  to  he  $jiveii  ^  Mr.  Vernon 
shall  be  in  the  pi'esence  of  sir  J.  Fenwick  ? 

^^  The(|uestion  beiD^accon!  "^'"^  ■'■*t»  itpas&ctl 
^bthe  afiinnative.    Then  t  r  was  or- 

^Bred  to  take  his  tnaeef  tind  ^  kVeKtmio- 

^■er*hiilU  and  summoa  the  mombers.  .\nd  he* 
^■g  returned,  the  ortkr  oi'  the  day  tor  proceed- 
ings on  the  busiuess  of  sir  John '^er)^>ick  was 
rend.  ^Itbein^^a  quarter  before  11  o'clock.] 
Tben  air  John  Fcnwk'kf  and  the  counsel  and 
soiicitors  on  hotti  side^,  were  brought  tn« 

Mr.  Spr^k'r,    Sir  ThoinAa   P^wys,  when 
yoa  were  here  last,  you  iosMitecl  u|ion  it,  tliat 
tile  counsel  aguinst  sir  John  Fetiwiek  ahoutd 
im  kept  to  the  fYiXHit^  relating  to  the  af  lections 
in  the  bill  only  ;  or  else  that  yon  might  have 
farther  time,  hceause  the  witnesses  were  not 
ready.     The  Hnuae  have  conaideretJ  that  mat- 
ter, am)  in  favonr  to  sir  John  Fetii^ick,  that  he 
^■illfht  hare  no  snrprize,  have  gi feu  him  to  this 
^■ly  ;  but  they  do  aWovr  the  counsel  to  give 
^ndeiice  not  only  as  to  the  attention!?  in  the 
^■11 »  but  to  prove'  sir  John  Fen  wick  {jfuilty  of 
^P^H-trea»on ',  and  therefore,  Mr.  JSerj.  Gonhl, 
Hint  are  at  tilierty  lo  f^iy  on  with  yonr  evidence. 
"  8erf.  Of  mid.  May  it  please  you,  Mi\f!ij>eaker» 
we  are  here  to  give  in  onr  chartre,  and  the  eri- 
n<?e  that  we  hare  a^iinat  sir  John  Fenwiok. 
ad  hy  your  order,  that  we  are  n«»w  itHowed 
Juce  eviiience  touching-  the  allegations  of 
*  bill,  and  likewise  of  thetrea«ons  Jor  which 
I  stand.*!  inilicled  ;  therefore  I  shall  beg  leave 
ft)  first,  how  he  stands  charged  by  the  in- 
it. 

indictment  first  charges  him  with  com- 

in^jf  and  designing  to  depose  the  kincf,  and 

to  death.    The  second  chtiTge  is,  for 

the  FVench  kin^  to  send  an  army  (4* 

Ki  w.vu.lr*  this  kinc^dom,  and  to  nmke 

Itier  nnian(Tst  the  subject*}  of 

111-'  ihinJ  \\invy  is,  for  adhering 

lurih  part  is, 

with  sereral 

is  to  i»ity,  ChajuiK'k,  gir  J,  Freind, 

dtf!  rfin'ftlt,   pmy^f^e,  treat,  and 

'►  scud  anurn- 

jdom,  Dod  to 

nned  men  against 

cd;  and  with  these 

leflnies,   u'nirj  men  iiritisrij^"  and  invading  thi;* 

akNU.  to  join,  for  to  nittke  and  carr^'  on  a 
bn  atid  war  in  ttii9  t{tn;^n>«    Atid  fur- 
VOL.  MH. 


tbek» 


ther  it  charges,  that  he  dtd  consult,  coitaent 
and  agree,  to  send  €harnoek  as  a  messenger 
from  sir  John  Freind,  and  others,  into  FranC^ 
to  the  late  king  Jam^,  to  propo«if»  to  him,  to 
procure  the  Fp  Idinsand 

armefl  men  tn  i  i.     Then 

likewise  to     "  ,  me  smlictint^nt  charge* 

him  with  horses,  pistols,  and  other 

warlike  arin>.  i  nt»  is  the  char*e  of  the  in- 
dictment;  and  these  matters  are  h\  the  hifii 
for  the  biil  does  chartre  him  with  r-^^'^^-'^-''-^;" 
and  imagining  the  death  and  destm.  • 

king,  with  ad  her  in*  tn  UU  eoemifs, 
ingandagreein.  ral  perso.  I 

times,  to  send  (  o  the  late  k  i 

in  France,  to  invite  and  encourage  i  i 

king  to  invade  this  kingdom  with  an^j  p 

and  promises  to  jinn  them,  and  a^si&t  ihtfia 
with  men  and  arms. 

Then  the  bill  does  take  notice  of  other  mat- 
ters, that  sir  John  Fei.wick  bath  protracted  hitt 
trial,  by  c'  ;  [inces  to  tlte  king  to  make 

a  plain  di  y  reason  of  which  he  did 

.,, »  ^r.,.^..  ..»,.i  ..^,T'  one  of  the  wit* 

J.  May  it  pleasii' 

; ,  ..,.,.  ...,.  ^..  i.^    ^.  it  stands  before 

this  honourable  llouset  and  the  evidence  we 
shall  chargt^  him  witty,  will  beof  thia  nature :  we 
shall  give  yon  an  account,  that  the  latter  end 
of  MiiVi  or  beginning  of  June,  ^r  John  Freind 
and  Charnock,  and  sevei-al  other  persona,  met 
at  the  Krag*s-Hend,  and  upon  tliat  meetinjf 
they  con'^nltcd  how  to  invade  this  kingdom'| 
and  they  cyndndcul  in  thi*,  that  they  would 
send  Cnarnock  into  France;  and  he  was  1#^ 
propose  it  to  king  James,  that  he  should  jyro* 
cure  8,000  foot,  and  '  "  '  V  v- and  d«igoooa|< 
and  upon  their  landi,  re  to  join  thent 

with  2,000  horse,  An^.  i..,..  tliey  had  anolheir 
meeting;  for  Cbarnnck,  to  be  smeof  tlie  mat- 
ter, woulil  II  "vi-  ixMniber  meeting  -,  and  then  hA 
proposed  1  Whether  tliey  contiune^ 

in  the  i^atu  in?  And  they  all  tliei*  de- 

clared, particularly  sir  John  Fenwick,  That 
they  did  appmte  oV  it,  and  stock  by  it ;  and 
that  Charnock  should  go  for  that  purpoece  td 
France.  Chani5ck,  in  pursuance  and  exe- 
cution of  this  treason,  does  go  to  Franrel 
and  brings  haolt  a  message,  tlut  the  matter 
had  been  eomiunnicated  to  the  l*'rench  kings 
hot  at  that  time  he  wiii  not  ready  for  iheinj 
ami  could  not  sjmrc  hi*;  soldiers,  and  hii 
troops,  T*lien  it  rested  Ihr  some  time,  till  to** 
ward'^  iK^i^Hnas,  wfien  '^^«-  f'-'^.r*.  Barclei^ 
canir  md,  and  I  '  with  htti| 

a  det;        I  abuutsixr.  I   theirpro' 

vince  was  to  assassinate  the  king.  But  lier^ 
wa«  jinoi her  pari,  and  that  uiis  ihe  invasion  | 
and  in  thut  part  was  sir  John  Fenwrck  con- 
cerned, wliich  we  shall  prodnre  nnr  evulcnee 
to  prove  tipeo  him ;  but  il  does  full  out,  that  w(~ 
have  but  one  wifnei«  to  thi^  tnatter  that  we  ea 
produce  v  '  '         "  ' 

nit'nt  was  i 

last  sessions,    \vi;Htii  n-ij^vm-u  m 

each  species  of  treason)  we  ha 

tsKince  withdrawn,  ami  that  is  b-i,,  .;i>i  ..^  ,x, 

5?P 


579]  8  WILLIAM  IIL         ProceetSngt  againa  Sir  John  Fenwid,         [SB 


bill,  at  in  truth  the  fact  is.  Now,  if  sir  Jobp 
Feu  wick  had  «ome  on  in  the  ordinary  course 
of  |)roceedinffs  to  be  tried,  sir  John  Fenwidc 
niifht  have  been  tried  upon  this  indictment,  for 
then  Goodman  had  been  there;  but  he  pro- 
crastinates his  trial,  he  makes  application  to 
tbe  km^,  and  gives  him  assurances  from  time 
to  time  of  an  ingenuous  discovery ;  but  inste&d 
of  that,  when  Goodman  now  is  withdrawn, 
these  assurances  have  terminated  in  this  coun- 
terfeit confession  that  hath  been  laid  beibre  the 
.House,  and  is  charged  in  the  bill. 

But,  Sir,  to  supply  this,  we  shall  produce 
the  examination  of  Mr.  Goodman ;  we  shall 
prove  to  yon  not  oulj^  the  evidence  that  hath 
oeen  given  upon  this  indictment,  upon  which 
he  bath  been  arr^ignied,  but  also  the  evidence 
which*  hath  been  given  upon  the  trial  of  Cook, 
who  was  convicted  upon  that  evidence.  We 
shall  go  by  these  further  steps  in  the  case,  and 
humbly  offer  it  to  the  consideration  of  this 
House,  how  far  sir  John  Fenwick  will  be  af- 
fected with  it :  and  that  is  this ;  here  hath  been 
Goodman,  and  captain  Porter  who  still  stands 
his  ground ;  but  they  have  tempted  him  with 
.^00  guineas  in  hand,  and  300  more  was  to  be 
.remitted  to  him  upon  bis  first  landing  in  France, 
.with  assurance  likewise  of  king  James's  par- 
don, and  likewise  300/.  a  year ;  100/.  a  year 
whereof  was  to  he  settled  by  sir  John:  Fenwick. 
This  proposition  sprung  from  one  Clancy :  it 
could  not  be  ezpecteil  that  sir  John  Ftowick 
should  appear  in  his  proper  person,  but  he  did 
by  his  lady,  who  was  with  captain  Porter^-and 
gave  him  assurance  of  all  that  was  proposed  by 
Clancy,  that  that  should  be  performed,  and  a 
great  deal  more. 

We  shall  further  give  this  account,  That 
.when  sir  John  Fenwick  was  taken,  there  was  a 
letter  handed  to  u  third  person ;  and  it  appears 
by  that,  that  he  thought  himself  at  that  time 
not  safe,  unless  they  could  corrupt  the  jury : 
for,  says  ho,  we  must  uow  get  two  or  three 
staunch  pcrsoti»  that  will  starve  tlie  rest.  These 
%Xe\is  we  shall  proceed  uiion,  and  begin  with 
the  indiclnient,  and  call  our  witnesses  to  it 

Seij.  Lovtl.  Mr.  Speaker,  1  shall  not  repeat 
what  hath  hecii  said ;  because  1  know  what 
hath  been  materially  said  cannot  pass  the  ob- 
sen'ation  of  this  I  louse.  The  method  we  de- 
sire leave  to  proceed  in-,  is  the  method  you  have 
Iirescribed  us  ;  and  that  is,  first  tf>  prove  the  al- 
egations  of  the  bill.  And  that  we  shall  make 
appear  to  you  by  undoubted  proofs,  that  •  sir 
Jouu  Fenwick  tfoes  stand  indicted  lor  these 
treasons  at  the  srssions  at  the  Old  Bailey,  the 
28th  (if  May,  u|>on  the  oaths  of  Porter  and 
Goodman  ;  that  we  shall  prove  by  records,  and 
that  is  not  capable  of  any  traverse  or  denial. 
We  shall  also  prove,  bv  matter  of  recoril,"  that 
several  who  were  concerned  with  sir  Jolin  Fen- 
wick in  this  conspinicy  have  been  triinl  and  at- 
tainted ,  ami  then  v\e  shall  call  a  living  witness 
to  pro\e  sir  John  Fenwick  guilty  of  treason  in 
the  highest  manner.  Air.  Tanuer,  deliver  iu 
the  inilieiuient  of  sir  John  Fenwick.  [Which 
was  then  read  at  the  table.] 


Serj.  Lovel.  The  bill  does  chuye.  That  h 
stands  indicted  upon  the  oaths  or  thew  twi 
captain  Porter  and  Mr.  Goodman :  beaideB, 
must  beg  leave  to  observe,  thai  by  the  act  < 
pariiament  made  last  sessions,  it  b  enactei 
That  DO  person  shall  be  indicted  ouIcbb  upo 
the  oaths  of  two  witnesMs:  had  not  these  wii 
nesses  been  sworn  before  the  grand  jury  at  tbi 
time,  this  bill  coukl  not  have  been  found  ac 
cording  to  that  law,  nor  would  lir  John  Fci 
wick  have  pleaded :  but  be  hath  been  anaignei 
and  pleaded ;  so  that  we  submit  it  to  this  Hoosi 
that  it  does  appear  upon  record,  that  this  in 
dictmeut  was  found  upon  the  oaths  of  two  wii 
nesses.  Besides  that,  two  witnesses  are  sob 
scribed  to  the  bill.  Now  thfit  other  pcrsoni 
have  been  indicted,  and  convicted  upon  tin 
same  evidence,  we  shall  prove,  and  that  like* 
wise  by  records. 

Serj.  Gvuld.  I  thought  when  we  cametd 
give  you  an  account  of  the  absence  of  Good- 
man, then  to  have  given  you  an  account  of  thii, 
and  other  matters. 

Mr.  Speaker,  You  will  agree  upon  ytor 
method,  gentlemen :  who  do  you  call  in  tbe 
first  place  ? 

Serj.  Gould.  Captain  Porter,  ^«r.  OVbobs- 
ing'  present).  I  desire,  BTr.  Speaker,  that  ht 
will  ^ive  an  account  of  what  ne  knows  cos- 
cernm|r  this  matter,  as  aUo  of  what  is  cbaig«d 
in  the  mdwtment. 

Mr.  Speaker.  Captain  Porter,  the  Hoor 
requires  yon  to  give  tnem  an  account  of  vour 
knowledge  of  any  conspiracy,  by  sir  John  Fc» 
wick,  against  the  king  and  this  govenimcDt; 
and  hkewise  of  your  proceedings  upon  the  in- 
dictment against  him  for  high -treason. 

Capt.  Pot  ter.  Abtmt  the  middle  of  .^lay  wai 
twelve  months,  there  was  two  consultations, 
one  at  the  King*s-Ucad  iu  Leadenhall- street, 
antl  the  other  in  Pall-mall ;  these  two  cooBul- 
tutions  were  for  the  considering  of  tbe  beii 
means  to  bring  the  late  king  James  into  £Dg- 
land  again :  for  it  was  said,  that  kinc^  William 
being  gone  beyond  sea,  he  had  lett  but  few 
forces,  and  therefore  they  thought  they  coukl 
not  have  a  fitter  opportunity  than  that  juoc- 
ture  ;  upon  which  they  pitched  upon  Cbsf' 
nock  to  go  into  France,  and  make  some  pro- 
posals to  the  late  kin^  James,  to  borrow  10,00( 
men  of  the  French  king,  whereof  there  shouk 
be  8,000  foot,  1,000  horse,  and  1,000  dragooM 
and  it  was  proposed,  when  they  came  over  t< 
meet  them  with  2,000  horse. 

Mr.  Speaker,  Where  was  tliis  ? 

Fitrtcr.  Oiir  tirst  meeting  was  at  the  K.log|f' 
head  iu  Leadenhall -street ;  niter  that,  Mr 
Charnock  desired  another  meeting,  and  tbei 
we  met  at  Mouutjoy'sin  8t.  James's,  aodw 
all  stood  to  what  we  had  before  resolved,  T^ 
he  should  go  over  to  kin^if  James,  and  mikl 
this  proposal  ;  and  that  if  ho  could  get  so  ntsy 
men  of  th(>  French  king,  we  would  meet  hm 
with  so  many  horse. 

iMr.  Sneaktr.  Sir,  you  say  the  first  DBMJf 
was  at  the  King's -head  in  Leadenhall-ltnit  ] 
who  was  then  present  ? 


vpon  a  BiU  of  Atttdnder. 


A-  D.  1896. 


[582 


'T^ter>    There  wai  my  lord     Aylt^bury, 

by  lorti  Montgomery,  sir  John  Fen  wick,  sir 

John  Freind,  sir  Willtam  Parky ns,  Chiimock, 
Mr.  Cook,  and  inyseJf ;  we  Hiaed  tliere,  and 
er  dinner  Mr.  Good  [dan  came  m  to  us. 
Mr,  Speaktr.  Did  sir  John  Fcn«'ick  hear 
ris  discourse? — Prtrfrr.  Yes,  Sir, 
Mr.  Speaker.  Did  sir  John  Feuwiclc  coD- 
Dt  to  it  ? 

Porter.    He  did   absolutely  consent    to   it. 
rjoho  Fr«tnd  did  propose  it;    sh^'s  he,  Do 
not  let  us  propose  more  than  we  can  hring^. 
^  Mr.  Speaker,   Then  }  on  say  you  had  a  se- 
^kpnd  meelincr? 

^F  Porter,  When  we  agree<1  upon  this  husiness 
in  Leaden  hail- street,  capt,  Cbarnwk  desired 
another  meeting',  to  know  if  we  coutinned  in 
our  resolution  ;  and  the  next  fneetin||f  was  at 
Mrs.  Mountjoy's  ;  1  think  then  my  Ifird  Mont- 
gomery was  not  there,  nor  Mr.  Goodman  ;  but 
ftiere  i«mi  my  lord  Ayfesburv,  sir  John  Fen- 
wick,  sir  John  Freind,  sir  \^illiaiij  Parkyns, 
Mr.  Cbamock,  and  myself. 

KMr*  Speaker.  How  lon^  after  ? 
Porter.  Abont  eight  or  ten  dayi,  to  the  best 
my  remembrance. 

Mr  Spe4]kfr.  W  hat  was  snid  at  that  meetings  ? 
Porter.  The  seconfl  ineeting-  was  to  a^ree  to 
the  nme  thing* :    we  desire^]  Charoock  to  go 
M  soon  fti  nossibleto  acqaaint  king  James,  that 
Ibe  sooner  ne  came  that  year,  the  belter. 
Mr.  Sptakevr  Did  sir  John  Fen  wick  consent 
^M  Air^i  at  the  siecond  meetini^,  to  his  g^ing' 
^Kii»  France  to  procure  the  forces  ? 
^mp0rier.   Y>s,  sir. 

B'llr.  Speaker.  Willyou  gire  the  house  anac- 
^laitt  of  any  things  else  ymi  know,  relating  to 

tbis  matter  f^Forter,  T^bat  is  all, 
^■8erj.   Gnu  Id*     VVas  you  ejEamined   by  the 
^kod-jurv,  when  the  Bill  was  presented  against 
HI  John  Fenwick? — Porter.  Yes,  sir. 

8eij.  Gould.  What  evidence  did  you  1^1^^  to 

I  ? — Porter,  The  very  same  I  give  now. 
Mr,  Spenker,    Mr.  Ser|.  Gould,  Tvbal  have 
^j  to  say  further  to  him? 
fierj.  Lofvel,    We  would  ask,  whether  Mr, 
Cook  was  at  the  6rst  meeting:  ? 
Porter,  Yes,  sir,  be  was  at  both  meetings. 
Serj.  LnttL    Was  Mr.  Goodman  at  the  prc- 
riiig'  id'  the  bill  of  indictmcut   at  the  Old- 

rfi.nw  bim  ifo  ill  to  the  jury  >  and  he 
lit  was  for  the  same  thing*. 
tljovef.  We  have  some  of  the  jnry  here, 
t  we  will  call  them  to  that. 
erj.  GouU,    Now,  if  it  please  you,  sir,  we 
will  ask  him  to  the  matter  concern ing;  Clancy  ^s 

«g  with  htm. 
stoker.  Wilt  you  give  the  house  au  ac- 
that  matter? 
o.  Forcis,  By  your  favour,  I  hope  you 
will  |pve  us  leave  to  interpose  in  this  matter : 
for  I  am  sure  in  I  be  case  of  lite,  and  in  case 
where  there  is  a  taw  prepared  lo  be  made  sub- 
i6i|aent  to  the  fact^  tn  condemo  any  man  to 
you  will  not  only  have  good  evidence, 
L  which  is  legal  evidence.  And  I  take  it, 


that  in  cases  of  thisnature,of  asubsenuenllaw, 
the  evidence  ought  to  be  much  stronger,  und 
much  fairer  than  when  a  man  is  to  he  trietl  by 
a  law  in  hein^f .     If  they  should  offer  that  which 
was  sntd  in  the  great  case  of  my  bid  of  8tiaf*| 
fordr  (which  attainder  there  hath  been  an  act  of  1 
parliament  to  reverse)  by  a  gentleman  that  did  I 
then  appear  against  my  lord  of  Strafford  ^  That  I 
where  the  house  proceed  in  a  legislative  way, 
there  needs  00  evidence  at  all  1  but  every  1 
may  follow  the  dictates  of  his  own  thought] 
ancf  conscience:    (^It  is  in  R us h worth *a  Col h 
tions,  foU377.)    '^  el,  1   hope,  you  will   be 
another  opinion,  and  expect  ?tronorer  evidctic«,*l 
tlmn  if  a  man  was  to  be  tried  by  a  Taw  in  beinfl 
Now  that  which  is  offered  now,  cannot  \te  aT 
!owe<l  in  any  court  of  justice  ;  ihey  were  g^uj^ 
about  to  shew,  that  my  lady  Fenwick ,  the  witlft  | 
of  the  gentleman  at  the  bar,  that  she  had  used! 
some  means  to  take  off  Goodman^s  evidencei!  J 
and  they  would  make  use  of  that  agaiost  her  j 
husband.     Now,  what  any   man's  wile  sayi*  1 
cannot  be  made  use  of  against  him,  as  nothing*  I 
that  she  says  or  does  can  be  made  use  of  foe  ^ 
him  ;  and  by  the  same  rule  of  justice,  it  cannot  1 
be  made  use  of  against  him  :  for  otherwise  the 
rule  would   be  unequal,  That  she  might  be  ft 
witness  against  him,  but  not  a  witness  for  him  ; 
that  seenrs  so  unjust,  that  it  will  not  be  ad* 
tuitted  in  any  court  whatsoever- 
Sir  Burth.  Shower.     By  your  votes  the  pri- 
soner is  allowed  counsel,  and  the  king's  ser-' 
jeant  is  to  produce  the  evidence  ugam^t  the' 
prisooer:  thai  phrase  of  evidence  makes  usbe- 
Iieve«  or  at  least  to  hope,  that  you  will  give  us 
leave  to  object  to  that  which  is  not  so  ;   and  iu 
this  f  appeal  to  the  knowledge  of  the  gentle* 
man  on  the  other  side,  who  hath   had  a  great 
deal  of  experience  of  this  kmd  ;  and  I  am  sure, 
in  all  his  observations  in  the  Old -Bailey,   be 
cannot  say  this  was  ever  adniitted  in  cuse  of 
treason,  nay  not  in  felony,  the  actions  or  say- 
ings of  other  persons  ;    and  I  must  confess  I 
wonfler  to  hear  him  move  it  now. 

When  attempted  on  behalf  of  a  close* pri« 
bOner,  that  was  not  visited  hy  any  hotly,  it  was 
not  admitted  that  the  actions  of  a  third  pei^oa 
at  large,  should  be  admitted  against  htm  .  There 
the  actions  of  u  wife  cannot  be  e^'idence  for, 
nor  against  her  husband.  It  was  never  but  in  ' 
one  case,  aud  that  for  sodomy,  allowed,  and 
that  was  at\er  two  or  three  witnesses  l>ej»ides 
had  l>een  produced ;  :ind  by  the  o|jinions  ever 
^ince^  it  hath  been  allowed  not  to  he  Idw  :  and 
that  for  the  economy,  the  danger  might  follow 
in  cases  of  matrimony  and  families.  i\ow  they 
both  do  concern  the  acts  of  other  persons,  and 
not  sir  John  Fee  wick.  Besides  i  have  one 
objection  more,  and  that  is,  There  is  no  such 
thing  altedged  in  the  hill ;  and,  with  submis- 
sion you  have  declared,  that  ihey  nhould  pro- 
duce evidence  as  to  the  alligations  in  the  bill, 
and  the  treason!»  m  the  indictment ;  hut  I  can- 
not  find  any  order  that  tliey  shoohl  prorhice 
evidence  concerning  tlie  carrying  away  id"  any 
witness  ;  and  it  is  not  al hdged,  that  Goodman 
m  withdratvn  by  sir  John  Fen  wick's  privity. 


§un      ftWgJiiiM  in- 

Aj  to  PmU!T\  hiutg  taiiiijer^  wkh^  tlirrc  i«  yo 
colour  ol'  iug^'t^ntlort  iti  hiv  bill ;  fo  that  Uiii 
neither  t»eiu|^  in  Uie  bill,  iiur  bdm^  nn^PRKG  at 
Uw^  we  mnul  k'  surfrnjenil  tery  itiu^b  hy  it^  if 
you  sli0ulij  aitrnil  il, 

Mr.  Speaker.  Vim  hi^^ar  lliP  oxce|Kliaii,  Whit 
dp  VOd  h^y  10  it  ? 

\  mry  Gt^uid.  I  tLiiiL  ivti»t  tbetQfinlk'iiiiti 
iiy,  will  rrfm^e  a  (ilam  aiiivtw.  vbey  bave 
nift{t«'  jiu  oiijtfcnuu  viilUoul  ftuiw«!riiig  the  »iih- 
^1  mutter;  it  i»  uu  tillegaiiuii  in  tUo  ImII« 
Thftt  G^mdfuan  hath  fvithilr»wii  hiivit*«ll*  Nuw 
thif  Uve ive  tiiiakt*  of  thi^  is,  In  let  lii  in  to  gi^e 
OH  aoQoimloi  wh«l  UtMxInmn  biih  tswtinip 
-  iad  to  oititb  u^  to  rt  ail  bin  rJ^iimitiwi Uiu  r  For, 
•ijr  we.  bu  liatii  been  UmiMrioi;  t<^  f^Mll«^  Ibi* 
OOlMprvt;!/,  t4i  taki!  dtr  tbe  kiogV  «iTiile&d«r. 
For  tHibuUj  il&uhu  vf  the  fiieemblu  ii^d  wi«bi4 
«(iu«»titr«cj  I  md  it  ig  ii«  pltin,  h^n^  batb  beeti 
two  witii«i(M»i  t4»  firti^r  ii :  ftn4  «£  ^hm^  UmI 
thii  inilictiiK^iil  t»  lound  uccqriling  to  ihe  htc 
*ci  «f  (itriiamcnt,  n|MHt  ih^  «rii1«ac^  wf  iVn*r 
lutl  (iottilmiiii.     Niiw,  to  kltovr  tliM  coi}i|»irm;y 

4c  ^1  r I V  i  »i(f  u  II  ^  w tM>fi«^f  to  proiw  t bo  tamim  i  D|^ 
kl  bitb  Wij  ti>  tak«»  oil  Ibu  kitig'H  tfTiilvmst, 
Ulti  to  by  thai  helor^:  tU«  uoii%iileiatioa  ol'  ibb 
liouie ;  jhi  the  uji^  w^  make  of  it,  i^  onljr  )t<v(. 

Citciry  t«k  }i  I  m  in  if>  ic^l  j^ou  wb»t  Ct«oibDait 
b  MifWAt  Mini  in  LfiHsfl  limt  |y«  diall  [uro- 
4fic«  to  voii  ui)  iiiitii*t[arat,  irbrr*',  iijvnn  kia 
v^r^f  on  til,  ikw\  iijjtiti  thi*  si^iDf^  rvicttnei-  an  hc 
oifcx  b«?rf,  un^lb^r  cil'  the  iriuior*  hath  hemt 
wfuiii-tj^  ^tHttherttaioiva  bmiihty  offer  it 
■*vli  ,  itiiiicriit^is,  we  Khali  not    Uii  lul* 

Ui^  ^  '>      ,  >  ii^c-  lUm  t4kin|imiii£  1* 

Hi'Tj,  l^v^i.  Bclbr«  ive  willtiivaw,  J  Jioi; 
tiTo  WQi-du  »»  to  vikU  h  oh^t«tl  ou  the 
Dlbirr  Miiu,  for  liitit  Iruro^  g^utiaman  Afi^ 
imiU  to  nw;  a,ui\  I  uK^^t  iL|»[»4ial  to  tb« 
•miwIiHigv  cif  io]ri«  iiii'^iiWii}!!  tli^i  fure  biime^ 
ill  I  be  law,  auU  i4^  til^  thtil  cv^*n  in  criuunal 
ou'M^  cooiiJi  ttr«  uoc  Louiid  up  u*  potitii^is  e^i- 
iliHicc,  but  that  tbtr  eviilrnc^  of  eif«;uaii$taiicoti, 
mnd  Hunii^  f^enutui  m  oorrohoriitA  tjuflm,  b  ftd^ 
lUJtlfd ;  And  it  ii  vhoM  he  «ri,  tbul  tiulhju^^ 
Uiit  (i^itivfl^  rviiicuooibdiiy  eouf  ictt  wa  sh^uiil 
hsLvv  vQvy  ievf  c^uvitatMUi  «t  the  Old -Bailey  ; 
«ito  c'lpppiu^mid  ^itafaig^,  wU^wouj^  ii  ma- 
vmni]  by  p(i»iuvu  uviileuf^^^  adti  itiri.>et  i>roof, 
Ibrty  ate  convicieil  and  atbtinted  by  circum^ 
Btnutes^  n»  maU^riAh  loutul  nbout  tbem,  and 
putiiijj^  otr  couuiei'reit-ioon«y«  ^if^  1  mu^l 
submit  to  you,  whutber,  us  ilio  nature  of  this 
case  1^  dm  bouso  will  not  think  lit  m  Ueukr  iill 
etidctice  iliui  uiay  ooucera  kbit  ru%itert  whe- 
tbor  L'^rt  un  or  drdumst^otiaj ;  and  the  niAiloiu 
i»f  tbiH  ho  USA  Will  (Itfiju^nii^U  ufLerwiriU^  whit  I 
tb«y  tbink  is  out u  rial ^  and  «but  h  tioth  We 
(lt»  t«tkc  tim  v>  be  p^vri  ot  the  same  i^onjiptfac^y 
^e  do  Uiarift^  ibeprisoturat  ibu  bar  uiih,  ibat 
b^  uiiglK  uot  eonie  lo  condign  punii^UnirriC ; 
nnd  tbeit'foii;  we  (iraVi  that  ki  ili^^  [HOCivdinyi^ 
of  other  |duce>i  bk  wliat  they  w)ll,Lhtkt  you  ^vill 
hear  the  wbole  oiatter  lu  tbiaoa^t  wbntlitir 
tliet: Vidro 04!  tie  |>Oi»itiie  or  dtcuuistijotjml. 

Sir  Tho,  Pijwii,    I  lb  ink  tbry   tiuslibk^  ui 
wbuu  they  giv«  up  tuifii  i^  «n«}ier*      Wo 


r 


doubt  not  but  iKurt^  t^  po%%xite  evideaee  and 
{nrconuiaobah  but  wo  yippoie  tbii  lo  be 
tm  i:vidmo<9  at  alL  Mr/H«por«lcf  Idb  tii 
lru«f^  Tiiiil  L-ircmnJxtantiiil  «fiteice  ii  frv- 
qiicntly  umltf  u«#  ol  ;  but  mm  mj,  tb«l  pbat- 
i^rer  my  l;uly  I'l^iwick  batU  aaiil  or  4onMt  » 
nrtt  to  b^  udii^tlkHl  as  i-^'ideuoe  o|^iio«t  Ib^  ^• 
aoiiffr  itt  ili»  bar  i  becaose  wit  at  uhm  batli  mui 
by  wiv  of  enilenrour  to  dmw  (^IF  f»r>CKli3iaii,  t* 
IK?  evii]«joc4?  at  all  to  bo  offered  ag4in«t  bcrr  hw* 
batiil,  f nil  14  uot  ao  mticb  a«  cireuaiiAimtiil 
andcnce. 

8ij-  BartL  $hmtr,  W«  do  agree,  if  thitnll 
bad  tiecn  brought  in  against  my  liyly  Ft^nirtdK 
or  i^iinfet  Cbuiey I  tbi»  h^d  lW«ii  p^ot^r  t%i- 
flttucc  ;  and  thry  did,  and  m^y  di^ervc  pu- 
ui&bnH^ut  lor  it  tunmidYes :  but  tbi^  \%  uo  t«i- 
dci^i ^JHuMlMT  JobM  Fou^it-k,  tbat  in  bere. 

i^f^j.  I^^/.  Wc  tbi^k  it  iA  iiroM-.t'ly  befor* 
tiK*  llouic,  cf  en  tnr  tbe  order  of  tbo  tioitit 
it%«rif :  t^'oriy  thf  lint  nlaei*,  we  are  la 
lo  the  fii4^t««|€nqt«io^  lU  the  bill.  Om  i 
hi,  Tbut  air  J.  F.  had  b««ii  trit^d  b«ffir«  n^w 
hut  i»T  rtrasoui  wcnuoned  lu  Ibo  bill  |  jui4  thai 
b«  ibdfyod  hit  trial  tdl  nmh  i\me  «a  Qoodmaii 
wat  wiibdrawn ;  tbtaiiforu  «  bai  Iks  b^bro  m 
by  ibtt  djf«otioii  ol  Ibt?  U au8iL%  h,  tb»t  tiii  nueb 
titno  aa  G««ftiitAa  va^  «iitbdtrawn,  uf  4.  P» 
did  prt^tcod  to  ifo  on  tu  utikke  »  dboot«ry^  mut 
JtltvDviifdi  i^ut  It  olT  wiib  what  is  cbargid  i^ 
the  biil :  Uut  My  i^iiy,  Wbai  is  dooi?  by  m^ 
lody  Frnwiokni  1»  no  evidrivc^  agaifiirt  bte« 
W'lieu  ail  tbe  circuuistanc^a  are  laid  bdM 
the  HoitrM^,  what  d«4ibo^ii  lii«rc  was  witb  eajt* 
tain  t^orti*r,  imd  ^vbat  was  ^aid  at  tlia4  Uniie^ 
^iui  tba  consL^uc^co  preit^nUy  after  Goudmaa's 
going' aj^ra^'^  I  \miK  it  i»  an  uiucb  crideuot  aa 
the  cAst  will  ht;«r. 

Siir  It,  Ihtifiit:*  ^r,  i  desLratbcy  mayAvitbdrair. 

Accord  in  i^ly  they  witbdirw. 

Sir  E.  Tempk.  1  tkiuk  it  tnoch  coooerDs  tlie 
honour  of  ibe  boupf'f  whvsk  a  pf  i^on^t  it  at  tba 
bar,  ibiU  ba  tlionld  be  allowed  tbo  rigbi  of 
an  Etigli^bman;  whatyuivdo  hare,  may  be  a 
preeed^nt  in  af Wr  iti^m  *  Von  are  l<^ld  what  is 
offtred  m  ei  idenca  htro  ii  adujiiled  ia  oo  coort^ 
and  llie  un^vi^r  that  ui  made  to  ii^  i;^  of  no  foitaf 
at  all :  they  tail  yon  Ihtre  is  no  albgalioaa  in 
your  biil^  thai  sir  John  Faawick  bad  any  liaadt 
lu  his  witbdrawiiiff^  nor  nothiitfi^  in  tbe  iiHlict'* 
uuntof  it,  and  lof  that  reaMin  the  evidence 
«eeiui  impvopvr ;  and  if  It  was,  tbia  would  be 
no  evj dance  at  ail ;  tor  tbe  oatbs  of  otbar  per- 
ikoni  is  no  evidenea  against  tbe  prisoueri  t0 
iu4ke  blin  guilty  of  atiy  thing. 

Lord  CuHt*  I  think  il  is  a^re^l  nlrcadyf 
Thiit  tba  couu«d  lc»r  tlie  tifiiooer  shoiild  UfjA 
meddl»  «vit1i  ilie  Mitbority  ^ud  juriMlictiou  ot' 
tbii  Hooaa  :  For  it  we  are  lo  he  tic^l  ii|»  to  &tl. 
tbo  Cbrma  and  nicttiim  observed  iu  mitmmr 
courti^t  tlu^n  to  what  end  in  iba  priaoiiier  brought 
have'f  I  tbinkeitdeuce  ought  to  be  admit^y 
thai,  may  olt^ar  e^ery  inan'fi  eon^ci^uce,  thalr 
tbisbiil  a^aioEit  sir  John  Fen  wick  ought  to  pai& 

Mt.  J.  lLtw&,  A  ^enlJ4;uian  said,  We  are  n(4 
ti«d  lo  Ibe  forwt  t»f  ialerkjc  courts i  but  tbanfb 


Mftj 


upon  a  BUI  nf  Atiaindtr^ 


■ke  •/«  aot  tted  b  the  fornis  of  inferior  courts, 
fi^  are  tied  U>  that  which  was  the  g'rtHiiid  af 
VMOi,  eiMi  that  if,  rtgbt  reavon  and  irui;  »en«e : 
tbe^r  httf  e  aUedged  thai  he  wai  iodiet^id  ;  no- 
bod^  diMibly  il  That  Goodman  is  witbilraviii, 
mAdy  doohts  it.  But  whui  is  that  to  m 
^olw  riowiok  f  It  miizht  he  with  a  ijesi^n  tor 
good  or  evil  to  sir  Juhn  Fen  wick.  My  if»rd 
}«if«ri«ft  stttdi  »t  my  hird  Di*buicro'«  iriU,  (lu 
I  801  isfoniMd)  that  one  wimc^,  with  i^ood 
cirauaslancett^  was  enough  toc^invict  a  nmn  of 
Ikig^h* treason.  And  1  am  told,  it  vwim  iM  him 
llien,  that  if  they  et or  met  turn  in  th«  iioute  of 
Lnnds,  be  shoufj  answer  it  witli  his  UemL  I 
doire  ymk  wotltd  aak  uijitain  Porter,  when  he 
eooiee'in,  whether  this  W3«  disoouraed  betbre 
dinner,  at  dinner^  or  aiter  ilinner  ?  And  whe- 
liicr  be  knows  that  Goodman  hemrd  this  or  no  i* 
C4«i.  of  the  K^kgq,  There  icems  a  |>arti> 
«Niliir  abyneii  to  know  the  truth  of  thi«  matter^ 
I  mean  in  the  cotioscf  the  other  day  :  the  gen* 
tkin«a  savb,  That  Goodman  mi^'ht  hi;  with- 
drmwn  to  fl^o  prejudice  of  sir  J.  P.  as  well  ai 
for  bis  good  :  1  dc siri;  yoti  will  not  hi  the  go- 
ventoHsui  He  »o  stigmatised.  Yon  have  pven 
to  tlte  cotinael  to  examine  to  anything 
ly  be  added  to  the  Bill  ;  for  upon  a 
iliiient,  f  can  move  you  to  put  any  thing 
*  1  be  though  t  reasonable. 
Tk0,  Vtfkt.  itmay  hea  reaatmabletbiiig 
etM|uire  why  Goodman  is  withdrawn?  But 
^  quettion  ii^  Whether  this  be  a  proper  time  ? 
is  not  tied  to  the  common  forms, 
sre  tied  to  the  eommoD  tvlW^  uf  equity : 
question  is,  Whether  the  IKjase  wiU 
it  any  person  to  sutfer  by  the  acts  of 
her  ? 
Set  G^n,  (Sir  John  Hawles.)  It  is  disore* 
■Mrv,  whether  you  wiU  dcftermine  tliM  ibi^ 
MociMM  now,  or  aller  you  have  lieimi  it.  I 
i«U  at  wbote  trial  it  has  but  I  won^t 
pMt  lb#  lefTility  id  tbe  thio^ ;  it  is  one 
wbflo  n  man  is  to  bo  tried  by  a  jury«  and 
thing  wh^a  he  io  to  be  tried  before 
A  jufy  amy  be  so  awayed  and  pos. 
by  it^  that  it  may  not  be  fit  Utr  them  to 
hear  it :  but  look  into  the  court  of  Chaucvry  ; 
ifld  there  depositions^  if  one  side  say  tliey  are 
^videiieo,  and  the  other  side  say  they  are  not, 
iBSCfftry  day  admitted  ;  and  the  ruic  is,  that 
llif  •ooiMr  diopalcbed  by  bvarinif  of  it^  than 
M.  Yott  d^  not  sil  here  as  a  mry,  but  as 
jid^is,  ami  wiU  ctmaider  hosr  fk*  Am  actions  of 
*  mA  dull  ooQcent  ber  hmfamd ;  you  will 
An  tkm  iwuiofier  right,  and  youraetves  right^  if 
jMiwiil  bear  ibeot, 

Uk  Fr,  Wnmneton,  The  quealMm  is.  Who- 
tbflr  lb*  kiiH^'t  coomioi  ■  ■  ,  ■ . 

Big-^Mpmker.  Lat  me  set  you  right;  tb^ 
ifO  1141  bero  aa  kiut^s  counsel.' 
Sir  F     "  Very  well;  but  in  this  House 

^•f  a  nd  jury  too .  T  he  e*  idencc 
14  ^,«^.,^«,  js  to  iniluce  you  lo  bolieve  I  hot 
be  ii  ffiiiliy  ;  and  tli«  geotlemin  that  afiuko 
lywyt  aot  illow  it  to  be  a  legal  eviilettce. 
Vim  1km  qweatm  ii,   Wbelber  you^  beinir 


yoiaiir 
ib«lk 


A.  D.  leoe*  [S86 

be  afraid  to  be  induced  to  beliere  a  faet,  by  th^ , 
which  is  not  legal  evidenoe  f  ^uppotemy  Mj^l 
Fen  wick  had  had  the  design,  and  had  told  bcirl 
husband  trhalshe  inieAdedtodo,  and  heshont^l 
have  said,  he  &cori^d  it ;  this  iai  |«oasibie,  if  i 
go  to  auppoising ;  and  that  be  might  anpre* 
bend  it  would  do  him  a  mischiei*.     Now  it  i 
be  to  no  purpose  to  hear  tlii«  evidence^  UQ 
it  be  to  satisfy  the  House,  in  order  to 
the  prisoner.     No,  but  say  they.  Let  us  beafg^ 
and  we  will  juda^  HlWrwai-ds  ?  Why  so? 
Citunot  sHect  the  prisoner :  and  if  an  v  [ 
here  lifter  have  a  mind  to  have  luy  lady  FilS« 
wick  punished,  tbey  may  examine  it. 

Mr.  HUvim*  The  gmtleman  that  spake  I 
hath  made  one  suppoeal ;  let  me  make  ;iuothen  I 
He  supposes,  thai  it  may  appear  by  the  ei m  ] 
deuce,  upr^i  iheexamioailon  of  witnesses,  Ihi 
what  my  lady  Fen  wick  or  Cbucy  dtti, 
contrary  to  the  direction  of  sir  Julm  F«nwitkl 
if  the  evidenc '  hapjien  to  be  so,  it  iswitbuigll 
But  we  may  supposeagaia,  8t}ppoi«it  bnppi 
that  It  appears  by  the  ev  pile  nee,  tliat  it  was 
Ibe  bfloetitof  air  lohn  Ffnwick  to  the 
degrve,  to  gpt  away  oiie  of  the  witiieoaes; 
^  cui  bono/  is  the  strongest  nrf^sumption  to  i 
I  do  allow,  in  Westminster- Hall,  that  a  «oma 
ahoukl  not  be  a  wilneas  for  or  against  her  hu 
band;  but  if  she  be  directed  by  ber  buabandtl 
^  Qui  facit  per  ahum,  tadt  per  se  \^  you 
not  alledisro  all  the  evidence  in  tbe  imiclrae 
tlukt  runs  in  general ;  if  tbe  evidrnoe  dtfem  i 
to  time  and  place,  ye  loay  iind  biin  guUty  i 
the  iudtctment. 

Lord  Norrif€i,  Because  1  weuld  not  wiH 
go  upon  suppcMitiofis,  I  desire  tl>e  derk 
read  tbe  question  that  you  bare  passed 
Ust  day*  to  esmminipi^  evideoee.     [ W  bieb  i 
accordingly  read.]    Now  1  desire   to  kn 
whether  thia  bo  Ireoaott  within  the  indie 
or  any  of  tbe  aU^r^tioiis  of  tbe  hilt :  other 
I  think  yoia  bare  tied  yonmlycs  up  by  tb 
rule, 

Mr.  Pei/km,  I  did  eipe«t  tbe  ^eatk 
that  B()akc  lat^y  would  have  ckrared  the  ntatli 
He  ^ve  you  a  disuiietioo  between  the  fro*' 
coeduq^of  Westminjiter  *Hall  ond  tbe  Coort^f 
Chancery.  I  afti  ii^nonuit  of  both.  I  doiiiv 
to  kuow,  Whollier  we  are  tii  go  here  by  lb* 
proceedings  of  W  esuniartcr-  Hall,  or  the  Coiirtj 
of  Chancery.  If  wo  are  mot  tied  by 
rules,  we  may  let  ouraelves  into  any  ev 
that  will  induce  us  to  believe  him  giuHy  or  mil? 
guilty  :  if  we  aee  tied  lo  tlioae  rulea  tlsl»9 
ohaerved  in  all  onono  ol  juMtMW,  where  triabi  of 
Ireanon  are  had,  thifrOMi  beef  no  validity  :  ao 
I  dooire  to  knew,  wbctber  we  are  to  go  accord- 
ini^  to  tbe  prMeediageoi  ifcoae  coortsi,  or  whe- 
ther we  may  proceed  ■■  tbe  Court  olr  Cli 
oery  ? 

Sir  Tka,  Latkimi,  Tbe  I 
that  spake  last,  desirte  to  ] 
are  bound  hy  tiMf  rtite  m  WeetinMslef-IMf,  ] 
their  proeeeiiittg,  or  ucn  ?  I  bebeve  it  weuM^ 
have  been  lo  ««ry  httle.pui|ioee  to  httvis  theugtrt? 
nf  this  hill,  if  those  UWWH  JUtl  bew  tJtiWtetwl 
bim.  Ibebeve,! 


587] 


8  WILLIAM  in.         Prcceediugs  against  Sir  John  Feimek^ 


firoceedings  of  WestmiiiBter-IIall,  and  there- 
Ibre  that  yon  could  not  have  proceRded  on  this 
bill,  ^ou  would  have  taken  notice  of  thero,  and 
reprimanded  them  for  saying  so.  I  know  not 
what  to  say  to  the  proceedings  of  Chancery  in 
this  case ;  but  I  suppose  upon  this  trial,  you 
will  inform  yourselves  by  the  liest  methods  you 
«an  ;  and  every  man,  aocordini;  to  his  judg- 
ment, be  for  orafjfainst  the  bill.  If  upon  what  1 
hear,  I  am  of  opmion  he  is  notoriously  guilty, 
I  shall  fi-ecly  pass  the  bill.  If  I  do  so  much 
•8  doubt  that  he  is  guilty,  according  to  the  old 
rule,  «  Quod  dubitas  no  feceris,'  I  shall  not 
be  for  it ;  'and  in  order  to  this,  I  am  for  hear- 
ing every  bod;^  that  comes  before  us..  It  is 
saitl,  that  possibly  Goodman  is  withdrawn  to 
air  John  Fenwick's  prejudice,  I  would  be 
glad  to  hear  that ;  if  so  1  shall  have  the  worse 
opinion  of  the  bill.  They  say,  it  is  notalledj^ 
in  the  bill,  concerning  captain  Porter's  bemg 
tampered  with ;  but  it  is  a]ledfi%d,  that  Good- 
man is  withdrawn ;  and  that  it  is  not  dledged 
that  sir  John  Fenwick  was  privy  to  it ;  but  it 
may  weigh  to  gentlemen's  judgments,  how  he 
comes  to  be  withdrawn.  They  that  tamper 
with  one  witness  may  be  thought  like  to  tamper 
with  another.  They  tell  you,  that  the  evidence 
of  a  man's  wife  will  not  weigh  against' her 
husband.  It  may  be  so  in  point  of  law ;  but  if 
you  think  yourselves  bound  up  to  the  strict 
roles  of  law,  dispose  of  your  bill  presently. 

Sir  W.  Coryton.  You  have  been  pleased  to 
give  leave  to  the  king's  counsel  to  prove 
matters  against  sir  J.  F.  You  have  heard  capt. 
Porter  upon  the  fact.  If  they  had  opened  the 
matters,  that  sir  J.  F.  was  instrumental  to 
convey  Goodman  away,  I  should  have  been 
willing  to  have  heard  it :  but  they  opened  it, 
that  m^  lady  Fenwick  was  instrumental  in 
convoying  away  Goodman ;  and  this  ought  in 
no  iBorttooe  admitted.  An  hon.  gentleman  of 
the  long  robe  made  a  difference  in  the  proceed- 
ings between  the  court  of  Chancery,  and  the 
courts  of  Westminster- Hall ;  but  I  would  fain 
know,  if  a  fact  was  stated,  Whether  my  Lord 
Keeper  could  determine  the  matter  Liefore  a 
commission  went  to  prove  it.  It  is  true,  we 
are  not  tied  to  the  forms  of  law,  but  we  are 
tied  to  the  forms  of  justice.  I  know  no  case 
where  a  wife  is  admitted  to  be  a  witness  for  or 
against  her  husband.  In  Brown's  case,  in- 
deed, who  took  a  woman  away,  and  forced  her 
to  many  him  ;  the  question  was.  Whether  she 
should  be  admitted  ?  And  in  that  case  vhe  was 
admitted  as  a  witness,  because  the  necessity  of 
the  thing  rcquirrd  it ;  and  there  was  no  other 
way  to  proie,  whether  he  liati  her  consent  or 
not.  Another  case  there  was  of  my  lord  Castle- 
haven,  where  from  the  nature  of  the  thing  it 
was  admitted ;  for  it  was  impossible  there 
should  be  any  other  proof  of  it.  but  if  my 
lady  Fenwick  be  ^\\iy  of  this  matter,  it  must 
only  by  way  of  inference  affect  sir  J.  F.  T-hey 
tell  you,  they  insist  upon  it  as  an  indictment ; 
then  it  comes  to  be  a  matter  of  consequence  ; 
and  therefore,  since  the  matter  hath  been  fully 
staled  to  the  House,  as  to  what  they  would 


prove,  I  think  we  may  now  give  our  judg- 
ment upon  it. 

Mr.  jBof coven.  Yoa  are  here  in  yoor  lepf  • 
lative  power,  and  are  no  more  tied  to  the  rales 
of  law  in  examining  of  witnesses,  than  you 
are  in  giving  of  judgment ;  for  you  can  give 
those  punisnmeuts  that  never  are  given  ia 
Westminster- Hall.  1  am  of  opinion,  diat  mj 
lady  Fenwick  cannot  be  examined  for  or  agaiiut 
her  husband ;  but  if  he  send  her  to  solicit  ftr 
him,  it  shall  have  some  weight  with  me. 
Those  that  do  not  believe  it  from  what  hesaji, 
may  give  their  jadgmeDtaocordingly :  1  dcwe 
to  know  of  this  gentleman,  if  I  do  not  beliefs 
it,  whether  I  can  give  judgment  againat  hioif 
I  believe  a  man's  conscience  ought  to  go  with 
his  judgment. 

Mr.  Speaker,  I  will  read  the  QoestioD: 
That  captain  Porter  be  examined  to  the  atleapl 
of  taking  off  his  testimony  as  to  the  Ute  cpi- 
spiracy.    . 

[Which  Question  being  pat,  it  passed  in  the 
affirmative.] 

Mr.  Hariey.  I  suppose  yon  will  let  the 
counsel  of  both  sides  have  first  done  with  their 
questions,  and  then  there  will  be  some  ques- 
tions proposed  to  you. 

Mr.  J.  Howe,  They  tell  you  how  that  ar 
J.  F.  was  indicted,  and  that  Goodman  is  with- 
drawn ;  but  there  is  one  thing  the  ooonsel  of 
both  sides  slip  over,  and  that  is,  sir  J.  F.  bslh 
given  in  false  informations ;  it  looks  as  if  tbej 
were  agreed  on  botli  sides  in  that  matter :  1  de- 
sire the  king's  counsel  may  be  a«ked,  wlietbcr 
they  have  any  evidence  ot  tUat  matter  i* 

Col.  Crauford.  Since  I  am  mentioned  u 
that  paper 

Aam.  RuskI.  I  believe,  though  that  gende* 
man  was  afraid  that  matter  would  have  beco 

Eassed  over,  yet  that  the  gentlemen  of  diii 
louse  that  are  therein  named  will  take  care, 
for  their  own  vindication,  that  that  matter 
should  not  be  slipped  over;  I  suppose  the 
proper  time  for  that  is,  when  the  evidence  ii 
over ;  I  assure  you,  if  nobody  else  will,  I  will. 

SThen  sir  John  Fenwick,  and  the  counsel  of 
I  sides,  and  captain  Porter  were  brought  iii.] 

Mr.  Speaker.  Sir  Tbo.  Powys,  the  Uoon 
hath  considered  of  your  exception  to  the  tes- 
timony of  captain  Porter,  as  to  the  point  lie  wu 
to  be  examined  to,  and  they  are  asreed,  that  it 
is  fit  that  all  the  evidence  should  be  laid  before 
them,  and  they  can  judge  afterwards,  whether 
it  be  material  or  fit  to  be  allowed,  or  not. 
Therefore,  captain  Porter,  pray  do  you  give 
the  House  an  account  at  large  of  whatatteai|rti 
have  been  made  upon  you,  at  any  time  to 
draw  you  off  from  your  testiauiny,  with  re- 
spect to  the  late  conspiracy. 

Foricr.  I  had  a  meeting  with  one  Clancy, 
first  in  Mitre-Court,  at  ,  and  afktf- 

wards  at  the  King's-Head  tavern 
by  the  play-house  :  at  those  meetings  he  pi^ 
posed  to  give  me  300  guineas  to  bear  ay 
charges  to  Fraiice,  aait  to  aend  me  •  bill  6r 


;    tipoji  a  Bill  ofAUainder. 

and  likewiM  that  I  •hould  beal- 
f.  a  year. 

aker.  How  Umg  had  you  been  ac« 
Bfyre? — Porter.  Several  years. 
aker.  Did  he  tell  yoa  who  he  came 

He  laid,  he  had  been  with Fen- 

>  desired  him  to  make  thia  proposal 

aker.  How  often  bad  you  meetings 

? 

Aboat  seren  or  eight  times.', 
uker.  What  satisfaction  did  he  give 
ir  John  Fenwick  would  perform  the 
? 

He  told  me,  my  lady  Fenwick  and 
loDtgoroery  should  meet  and  con- 
thing  that  night.  The  day  before 
9, 1  met  with  my  lady  Fenwick,  who 
y  lady  Montffomery  could  not  come, 
le  of  her  children  was  fallen  sick. 
nker.  What  satisliBu^on  did  she  give 
ir  John  Fenwick  would  perform  what 

She  said,  what  Clancy  had  proposed 
Uuoly  be  made  good. 
mid.  Did  you  receive  any  thing  in 
rsuance  of  this  agreement? 
I  received  300  guineas  of  Clancy, 
■omised  to  me  a  bill  of  SOO  more, 
deposited  by  —  Feuwick  in  his 
>e  sent  after  me  into  France. 
mid.  Pray,  what  letter  was  that  he 
•u? 

He  brouffbt  me  a  letter,  and  said  it 
y  sir  J.  F.  to  king  James  on  my 

iker.  Did  he  deliver  that  to  you  ? 
No ;  he  delivered  it  to  the  gentle* 
ras  to  go  with  me,  one  capt.  Done- 

iker.   Why  did  you  not  take  that 

your  own  bands? 

I  had  it,  and  read  it,  before  it  was 

mid.  Do  you  remember  the  contents 

As  much  as  I  remember  was,  He 
majesty,  by  reason  that  my  going 
tu  save  my  lord  Aylesbury  and  my 
gomery,  6cc.  to  pardon  what  I  have 

vcl.  Who  subscribed  it  ? 
It  was  not  sir  John  Fenwick's  name ; 
dd  me,  king  James  would  know  who 
m. 

itel.  How  did  you  proceed  after  the 
ith  my  lady  Fenwick  ? 
The  next  night  after  that  he  had 
ly  money,  and  shewed  me  the  bill, 
to  go  away  the  next  day  after ;  tbey 
oat  was  provided. 

inei.  Can  you  tell  whether  the  boat 
\td? 

Tbey  were  taken  up  presently  after. 

•Id.  We  will  now  produce  a  record 

Iht  evidence  that  he  hath  given 


A.  D.  1696.  [590 

yon:  this  person  hath  been  convioted  for  this 
tampering. 

(Accordingly  the  Record  for  Ckncy's  Con- 
viction was  produced.) 

Sir  Tho,  Powyu  I  desire  to  know,  Whether 
they  ofier  this  as  evidence  against  sir  John 
Fenwick? 

Mr.  Speaker.  They  oflfer  to  prove,  that  this 
very  peraon  hath  been  tampered  with,  to  take 
off  his  testimony ;  and  they  leave  it  then  to 
the  House  to  judge,  who  is  most  likely  to  be 
guiltv  of  Goodman's  withdrawing.  They  begin 
to  shew  you,  there  hath  been  an  attempt  to 
take  off  this  person's  testimony  i  you  have 
heard  the  person  himself  to  it  already  :  so  now 
they  offer  to  read  the  oonvictiim  of  Clancy  to 
this  matter. 

(The  Record  of  Clancy's  Convictk>n  was  read.) 

Serj.  LooeL  We  will  prove  the  like  solici- 
tatkm  hath  been  made  by  Mr.  Dighton,  who  is 
solicitor  for  the  prisoner  at  the  bar. 

Mr.  Speaker.  What  is  your  witness's  namef 

Seij.  Lovel.  Thomas  Roe:  if  you  please^ 
Sir,  to  ask  him  what  endeavours  hath  been  used 
by  Mr.  Dightonto  make  use  of  him,  that  Good- 
man miffht  withdraw  himself. 

Mr.  Speaker.  Mr.  Roe,  Yon  are  requhed  to 
ffive  this  House  an  account  of  what  hath  i 


between  Mr.  Dighton  and  you,  in  order  ^to 
take  off  the  testimony  of  Mr.  Goodman. 

Roe.  About  the  middle  of  September  last 
I  had  occasion  to  go  to  Mr.  Dighton,  to  en- 
quire, Whether  the  commissioners  of  the  land- 
tax  in  Surrey  sate  ;  for  I  kniew  he  was  con- 
cerned in  some  affiurs  for  that  count  v :  he  toM 
me,  he  did  not  positively  knew,  but  would 
speedily  enquire.  At  the  same  time  be  took 
occasion  to  tell  me,  he  knew  it  was  in  my 
power  to  do  sir  John  Fenwick  service.  I  asked 
him,  What  he  meant  by  it  ?  S&ys  he,  I  know 
vou  know  Goodman  well,  and  it  will  be  the 
better  for  you  if  you  will  tell  me:  I  asked 
him,  What  he  meant  by  that  way  of  talking? 
He  desired  I  would  meet  him  some  other 
time,  and  I  should  know  further  of  bis  mind. 
Accordinffly  1  did  meet  Mr.  Dighton:  saya 
he.  You  know  Goodman  well,  ml  if  ymt  can 
say  any  thing  that  can  discredit  Goodman's 
testimony,  you  shall  have  100/.  a  year  settled 
upon  yon  for  your  life.  Says  I,  Sir,  I  do  know 
him  well :  says  he.  Did  yon  never  hear  him 
talk  of  ^isoning  the  duke  of  N.  and  robbioff 
on  the  highway,  and  that  he  is  concerned  with 
clippers  ?  Says  I,  I  have  heard  him  talk  of 
those  matters  several  times ;  but  you  cannot 
think  1  will  be  a  witness,  and  expose  myself,' 
and  disparage  people  till  I  know-  for  what 
Says  he.  For  that  you  shall  be  satisfied  ;  you 
shall  have  100/.  a  year  settled  upon  you,  pro- 
vided you  can  discredit  Goodman's  testimony, 
that  sir  J.  F.  may  come  off,  and  it  will  be  done 
by  a  friend  of  yours.  We  accordingly  agreed 
to  meet  the  next  day  nt  a.  coffee-house  in  the 
city,  and  appointed  a  friend  to  be  there  i  but 
Mr.  Dighton  did  not  meet  at  the  time ;  and  the 


I 

I 

I 
I 


191]  8 

v«i9oa  be  t«>U  ne  w««,  bvoaufe  air  1*  F.  wiw 
that  ilay  to  t»e  sirralgued.  As  •ooii  m  Mr. 
Dtghtou  bad  made  tlits  propfvsal,  I  told  Mr. 
GoiHtman  oit^it^  ami  he  ii,dvised  me  Ut  go  ou 
with  bjm,  aud  see  if  I  coald  gel  any  offbr  under 

it)«  10  ikie  «ily»  aD«l  a  iVieod  tu  be  th^e  w  b«ar 
in€.  1  weut,  and  irdd  >k.  Digiitoii ;  but  Mr. 
Uo#da)Mi  wouM  wH  lie  saUsfied  wiib  thai,  but 
laid  I  musi  go  U)  the  tu-chbihbop,  and  lell  biin 
IV bat  pu^ed ;  so  1  did  g»  and  idl  the  arcb*^ 
liisiu>t>  ifhat  1  have  told  yoii  oow. 

5lr.  iipi»k6t\  Uad  vqu  any  mettiof  alWr 

Ito,  VoB,  oa  Uie  i9th  of  8€|VtenDbfr ;  and 
tiieti  h«  |t)tttl«i  i^fcat  tftseveratiotia^  Uiat  whal  hi; 
j^id  bliould  Ijcs  tH!rturRi«d ;  and  U\at  1  sliauld 
not  only  oljhge  sir  J*  F,  but  ray  lord  lHantgo- 

Sry  i  and  that  Gooilnian  was  a  lost  inaa  by 
0|^  become  a  CO  ramOo  evidence;  and  ttjat  it 
%«qul<l  not  be  in  bis  poif«r  to  oblige  aoy  totn, 
«K)y  ladv  ducbess  baviiig  diacbifged  mm  ol' 
Ills  ctnploy,  and  b«  would  not  be  in  a  rooditioii 
Id  liy  I'uftW  tW  me ;  aad^  sayi»  lie^  Whaisver 
ymt  would  bftve  gpiten  by  serving:  my  lady 
4ilfili«aa  in  ker  caocefna^  aball  b«  luade  u|t 
MVtr  whI  above  tills  IDO/.  a  ye«r  Ibat  1  have 
l^rotniseiK 

Sao*  Gmtld*  I  desire  h^  may  be  asked ^ 
Wfiifflr'"'  Qoydnmn  did  not  acquaint  (iioi«  tlial 
%8iil6v  oi'sU'  Juhn  Femvick':i  baiJ  letsu  witb 
bitn,  and  u^jon  what  occiislon  f 

Hoi*  About  the  time  of  the  preftTrinf  of 

llaaNU  agaiuU  fit r  John  Feowick,  I  saw  liood- 

at  Hicka's-llall ;   and  a  httle  after  be 

me,  that  a  sister  of  sir  Jobn  Funwkk^s 

come  la  btnit  and  made  some  prOfKiaalfl  lo 

;  and  I  aoouaiDled  tlie  dnkc  of  SShrcvvs- 

Iff 't  deputy,  air.  Vernon,  with  it, 

Mr.  Dighion,  so 


Old  you  [lurvtio  iliis  discourse 
to  c:otne  to  any  ^mi* 
liir«a|^reatiieBt? 

jte.  Pio  otherwise  than  what  I  taldyou; 
iil|R design  w«a  to  have  Mr.  Di^htou  to  hai^ 
glfsiLii  las  ift  writing^,  or  else  tor  turn  to  U^^e 
aaid  it  hslora  soine  other  man;  but  i  don't 
Immw  any  thin^  whereby  1  could  have  di^cre- 
diied  AcU,  Gnodxnan^  if  he  would  have  done  it. 
Horj.  GauliL  Von  observe,  &ir,  tliat  one  of 
tly^  viitiKiiaes,  wbos^  Tuuoe  ii  subscribed  ti>  the 
hill  of  indiotniaii^  is  withdrawn  :  now  lo  give 
yon  an  account  thai  he  is  withdrawal  I  desife 
limJtmg**  ijrodaiiiatiou  may  be  read. 
JCioiitfrs.  No,  no. 

Ifarj«  £000/4  W»bavo  Mr.  Goodiiwa.'s  eacm- 
mtnalain  uiniar  th«  hood  of  Mr,  Vehiod ;  we 
pray  ilmay  be  read* 

8ir  Xh9.  Famyt,  Mr.  Speaker,  T  desire  to  be 
i  a  word  to  this  matter  t  1  take  this  to  be 
aw«(t  point,  not  otdy  as  it  concerns  the  life  of 
thia>MVK)ii,  but  as  it  may  l>ea  matter  of  exam  • 
pLo  in  all  tiiiiea  bcecalter;  th^it  which  thry 
would  o^f  ts  nWialhinijr  that  Mr.  Goodman 
>  awom  when  he  wus  eanmuied  by  Air. 
sir  J^  F.  nnt  being  present  or  pnvy, 
I  M^4>ppafftoBity  given  to  cmm-eicamine  the 
M  iiiitl  oo««Mi?«)tluil-'Gaii09th»4»i6red 


^inH  Sir  Jt^  Feimckt         [SU 

as  evtdettee ;  for  if  ij^  abi^d  W  att^anftl  Ih 

evidciice,  then  wbdt  ts  sworn  behinil  a  msa't 
back,  in  any  case  wbalsoever,  may  as  vr^  be 
hroduced  a$  evidotice  ngsiinst  hini  1  aadlbn 
know,  thai  in  a  ea«)e  ot^  tlMs  t Aloe  of*  flve  m* 
hng(»,  DO  depositions  or  cxamiaiitioos  of  say 
tuan  can  bo  maiia  use  of;  ami  1  stn 
will  not  say»  thiA  llic  depoakiiwia  lakaa 
other  pefsons,  where  a  man  t%  nol  a 
be  tuade  uae  of  as  tfvidanr^^  iiiAi 

if  uot  admitted  where  proi>  icertkod  ia 

tbelQwesidcgfee,  I  hope  you  wui  Qcvcrafciil 
it  in  ihia  great  plai.^«  from  wHcpeo  iaAnw 
OQurts  (as  lo  justice)  take  titeir  maamir». 

Sir  Earth,  Shitwrr,  Mr.  Spealtar,  1  dsiBi 
you  would  spans  me  a  word  «f  the  imMne  sfale. 
I  humbly  oppose  iba  reading  of  this  examios- 
tion,  ss  u(A  agreeable  10  the  fuIks  ed  pr«eiiei 
and  eridanoe,  and  th«t  wbitth  a  wholly  new  * 
and  iliTs  in  civil  cansei  cannot  possibty  be 
done :  no  depositicio  ol  a  person  can  bt  ««d^ 
tiniugh  beyond  sea,  unieis  io  cases  whem  tbe 
party  it  is  to  ha  t«9il  minst  wm  prtry  to  ike 
examination,  aud  might  haw  crasa-eiatDiaeA 
him»  or  extintoed  t0  kit  cradit,  if  he  thongbt 
fit ;  it  was  never  prelandad,  depositions  00m 
be  read  upon  other  circnm&tances.  But 
mioal  casea^  I  appoat  to  the  gentleoieb 
other  side,  who  know  the  prooeodinga 
Old- Bailey  very  weM^  it  was 
oily,  in  an  appeal  of  murd'^r  if  di^i 
taken  before  ilie  corotwr,  a  >«  aik 

minalian  of  witnesses   iiji 
though  the  appeal  be  for  tlie  same  fart, 
order  to  brttig  the  person  to  fiv*  s^rmr 
meut ;  \  et,  ia  thai  case^  tho^  ri> 
be  reaif,  because  it  la  another  * 
ueve^  att0inpted  iu  any  court  < 
the  cjcsminalioii  of  wiinesses  l 
back,  «;ould  lie  rtnd  in  any  p]  • 
Our  law  requires  persons  10  ti\< 
ibcir  teitimony  Twa  voc€ ;   unt^ 
Ihcir  testimony  appears  tfwlible,  or    not,  hy 
therr  very  counlenaoc^,  and  1^-  r»'«""ni'f  of 
their  deU\cryi  and  tljeir  falsily  1 
bo  discovered  bv   ntr  ^rinn  tU  n 
ask  tiitMUj  and  li 
circiimiitjf:c.;*s, 

of  a  V  ;  vrhii'h  *' 
biUiK  L;«Hher,  iX\v^ 
well  at  tin»t  j  mA  ihis*  w«  ar^ 
this  examin^iion  **hon!H  hp  ^I'ln 
-^N--    ■"  .  

OOt  <i! 

eomincr  iho  njtes  <  ijnsitue,  u  is  wr 

criminal  ca^es^  espec>:illy  as  our  coo* 

that  the  person  shaM  see  his  ar*"^- 

uiav  KWfiir  a  dfp'tsitiiMi  re^hiC' 

whoss  consnier^-^   i»Mi.,..^  m, 

publicly  acouai 

perienee  hath  *»li 

yviil  calommate  atioiher  privately,  vrtil  n*H  |<»*1 

tify  On?  same  in  open  court  of  ju slice,     Wbat  I 

Goodman  is,  it  is  not  proper  for  ns  *t  presealj 

to  give  an  o«ciniot  of ;  nut  we  op^e  it  at  ^«* 

sent,  *br  that  w«  were  not  present,  nor  pnvj 

tior  could  baft  crat-emBAMtf  Ifttn ;  it  ii  ool! 


wf.'   ^rr 


iii^l 


5933  ^po"  «  ^^^^  of  AttainJer, 

an  infomialioii  before  a  private  justice ;  for  if 

not  SI),  vre  know  not  what  autlioril^'  ho  had  to 

examine  him :  and  then  if  so,  Mr.  Recorder 

knows,  that  in  the  Old-Uailey,  if  Gootlman  had 

died  it  had  not  been  eTidcnce ;  *  in  case  he  had 

been  kick,  or  withdrawn  \\ithout  our  privity, 

thev  could  not  hare  read  it ;  nay,  if  be  were 

tiithdrawn  by  our  privity,  it  conhi  not  be  read  : 

it  is  true,  the  inciting  him  to  withdraw  bad  been 

punishable  in  another  man,  but  couhl  not  have 

Deeo  read  to  have  convicted  the  party;  and 

lince  this  examination  could  never  have  been 

read  tljere,  and  if  it  must  be  unjust,  and  hath 

Dot  been  practised,  I  hope^ou  will  not  do  it  now. 

Mr.  Speaker.  Mr.  Segeant  Gould,  what  do 

you&ay  to  it? 

Serj.  Gould.  I  observe  this  grentleman's  ob- 
jection, why  this  examination  should  not  be 
read;  and,  under  favour,  we  think  we  are  re- 
Itular,  as  this  case  is,  to  have  his  deposition 
rvtd.  It  is  true,  as  longf  as  the  witnesses  can 
be  produced,  in  all  courts  and  practice  of  the 
law,  vou  shall  not  read  his  examination,  or 
what  Is  taken  before  a  justice  of  peace:  but 
tliat  is  not  our  case ;  it  is  now  fully  proved  be- 
fuTf  you,  that  he  is  withdrawn  ;  and  it  is  fully 
Ufore  you,  that  he  hath  gir en  evidence  for  the 
Liiur,  and  hath  been  examined  ;  and  this  is  an 
ritraordinary  case,  and  that  is  the  reason  we 
arv  in  parliament :  he  hath  sworn  this  matter, 
anil  before  a  projier  officer  ;  why  then  shall  not 
bi«  evidence  be  read  and  allowed  when  he  is 
ailfully  withdrawn,  and  we  iikv,  by  the  con- 
Irivaoce  of  the  prisoner  at  the"  bar  ?  And  the 
thia^  speaks  itself.  Now,  with  submission,  I 
take  it  to  l>e  every  day*s  practice,  that  where  an 
etideurc  is  dead,  his  de|M}sition  shall  be  read. 
It  appears  to  you,  that  there  was  to  have  l>eeu  a 
trial,  but  t!ie  witness  is  withdrawn  ;  and  it  np- 
feu%  jduinly  that  he  hath  been  tainperinj^. 
Tbe  eviflence  is  full  in  the  case  as  to  Porter ; 
and  we  have  produce*]  a  record  of  conviction 
tIjBl  does  confinu  it :  now  this  is  such  a  prac- 
IHX,  we  come  into  parliament  to  have  it  reme- 
ditil ;  for  otherwise  men  shall  commit  treason, 
and  by  their  contrivance  and  ai-t  the  witnesses 
shall  be  drawn  away,  and  the  prisoner  shall  not 
be  brou;;ht  to  condign  ptioislinient.  Here  is 
the  record  in  which  he  j^ve  evidtncr,  and  hn  is 
nitbdrawn  ;  and  therefore  1  hope  in  this  «ui«ic, 
»e  shall  be  admitted  to  read  iiis  deposition : 
§otl  deny  what  the  gentleman  sa^.s  to  he  the 
imctice;  and  Mr.  Recorder  can  t;ive  you  a 
letter  account,  who  knows  more  of  the  prac-  ' 
ticeof  it,  that  if  a  witness  is  dead,  they  may  | 
Twd  his  depositions.  We  are  here  before  you  i 
in  pirlianicnt ;  and  by  the  same  reasons  that ' 
ntbci-s  have  been  tam|>cred  uitli,  this  wit-  ! 
luaa  may  be  presume<l  to  l>e  tampered  with ;  i 
and  therefore  we  are  in  your  judf^mcnt,  whe- 

*  "  The  evidence  which  a  witness  ppave  ou 
a  former  trial  between  the  name  parties  has  ufter  | 
hit  death  been  read  in  a  ciwl  action :  hut  this  is 
aot  altoweil  in  a  criminal  prosecution.*'  Pcnkc's 
Law  of  £vi4Jknce,  chap,  S.  s.  2.  art.  Deposi-  j 


A.  D.  169^. 


[594 


VUL.  XIII. 


ther  in  this  esse  his  depositions  shall  not  be 
read  i* 

Serj.  Lofvel.  It  is  olijected,  on  the  other  side, 
Thatthisevidenccoughtnotto  be  offered;  and  foi^ 
what  reason?  Because,  say  they,  a  jury  ought 
to  go  *  secundum  allt^ta  ct  probata ;'  and 
what  is  not  strictly  evidence  by  law,  you  arc 
not  to  take  notice  of;  but  in  criminal  cnsca 
(which  is  this  case),  where  persons  i\o  stand 
upon  their  lives,  accused  for  crimes,  if  it  ap- 
pears to  the  court  tliat  the  prisoner  hath,  by  ^ 
fraudulent  and  indirect  means,  procured  a  per- 
son that  hath  ^iven  ha  formation  against  him  to 
a  proper  magistrate,  to  withdraw  himself,  so 
that  he  cannot  give  evidence  as  reg^lariy  as 
thev  used  to  do ;  in  that  case  his  information 
hath  been  read  ;  which,  I  suppose,  with  hum- 
ble submission,  is  this  case ;  but  I  suppose  we 
are  not  here  tied  np  to  formal  evidence ;  but  it 
is  our  duty,  since  the  house  hath  commanded', 
to  lay  the  whole  fact  before  you,  and  you  are 
judges  what  is  material,  and  what  is  not  mate- 
rial. 

Sir  Tho.  Powys.  Please,  sir,  to  spare  me  a 
little ;  for  sore  this  is  no  small  matter.  I  diil 
expect  that  they,  if  they  intended  to  have  sup- 
ported this  evidence,  would  have  mentioned 
some  author,  some  case,  or  some  precedent 
where  this  has  been  before :  but  he  makes  such 
a  distinction,  I  am  mightily  surprized  at;  for 
Mr.  Recorder  cites  no  one  instance,  that  ever 
he  saw  such  a  thing  in  his  life ;  nor  cites  one 
book  that  hath  such  authoritv ;  but  he  gives 
you  a  distinction,  whether  it  be  of  his  side  or 
our's,  1  must  submit  to  you ;  for  he  seems  \o 
agree,  that  in  cases  of  property,  such  evidence 
is  not  allowed ;  hut  in  cases  of  life,  in  which  \«e 
ought  to  be  more  tender,  he  says,  it  is  to  be  a1  - 
lowwl.  Sure  if  it  be  not  evidence  where  five 
shi:lius;s  only  may  be  at  stake,  I  submit  it  to 
you,  whether  it  ought  to  be  admitted  in  the 
case  of  lifel*  Tor  my  part,  I  know  nothing  of 
it,  if  it  be  a  rule;  but  1  always  thought  th6 
evidence  ought  to  he  more  clear  and  full  in  the 
case  of  life,  than  iu  the  case  of  property ;  but 
Mr.  Recorder  turns  it  u[K)n  us,  and  says,  . 
Though  it  is  not  evidi  nee  in  case  where  pro- 
perty is  concerned,  yet  it  is  evidence  in  case  of 
fife :  but  I  desire  he  will  shew  any  one  lawyer 
in  England,  that  ever  s:iid  it,  but  himself. 

Sir  ]{.  ShoiLcr.  1  answer  to  what  Mr.  Ser- 
jeant Ciould  says:  that  this  is  an  extraonlinary 
case,  1  will  not  pretend  to  say  any  thing,  yoa 
are  the  proper  judges  of  that ;  we  now  oppose 
it  ill  rtspect  of  the  rules  of  justice.  As  to  Mr. 
Recorder's  distinction  between  civil  and  cri- 
minal causes;  he  halh  admitted,  that  in  civil 
causes  it  woulil  not  he  allowed  ;  and  1  hoiie  you 
will  be  of  opinion,  that  it  ouijht  not  to  be  ad- 
mitted in  ciiminal.  Thejnry  must  go '  secun- 
«  duni  allegata  vi  probata.' "  I  dcisire  to  know 
what  other  rules  a  jury  hath  in  criminal  cases  f 
But  they  say,  that 'a  juryman  hath  not  a< 
much  upon  hiMoath  in  Irving  a  prisoner  for  his 
life,  as  iu  trying  un  action  of  trespass.  Is  not 
the  oath,  »  Vou  shall  well  and  truly  try,  &c. 
according  to  the  evidence  vou  have  heard?' 

3U 


595] 


8  WILLIAM  III.         Proceedings  egabisi  Sir  Joftu  Fenmcl-^        [596 


jSow,  I  irould  know  wbeth^r  tbp  form  of  tb« 
oath,  ubich  the  wisdom  of  our  ancestori  bath 
thougrht  fit  U  use  for  1,000  jetrs  past,  does  not 
flirect  what  diall  be  evidence?  Evideoce  of  ;}r»- 
ma  facia  must  bo  evidence  of  Uring  persons :  I 
am  sffeakiag  for  the  life  ofa  maniand  for  main- 
taining the  rules  of  law,  which  1  hope  shall 
Continue  for  ever :  and  that  is,  that  the  eximi- 
nation  ofa  person  that  is  absent,  shall  not  be 
read  to  supply  his  testimony.  What  you  shall 
think  fit  to  fio  here,  w«  must  submit  to;  but 
that  it  is  allowed  below,  we  moat  deny. 

Mr.  Btcorder,  Sir,  I  do,  witli  humble  sab- 
misaion,  stand  to  what  1  said :  as  to  the  defini- 
tion of  allegata  tt  probata^  in  matter  of  proper- 
lyv  we  i^gree  with  tliem ;  but  as  to  allegata  ei 
probata f  in  matters  crimsnal,  we  roust  diflfer 
with  them :  I  did  say  it  before,  and  do  say  it 
l^in,  with  submission,  that  in  many  cases 
criminal,  there  need  no  positive  eviilence  at 
kll ;  and  yet  the  jury,  acconlin^  to  allegata  tt 
ptxiataf  m  that  case,  may  convict  a  cruninaL 
And  I  do  say,  with  submission,  that  where 
there  is  no  postive  proof  at  all ;  yet  in  that 
cose^  many  criminals  are,  and  still  will  be  con- 
victed. I  did  instance  before  in  the  cose  of 
cTipping  and  coining,  which  are  matters  so  se- 
cretly practised,  as  it  is  very  rare  there  can  be 
any  positive  witness  to  jprove  the  fad:  what  is 
then  the  method  ?  Why,  we  go  by  circam- 
stancca,  by  information  of  other  persons,  by 
tools,  and  otlier  instruments  that  are  found ; 
and  though  nobody  ever  saw  them  do  the 
^uigt  y^^  tlicy  are  convicted.  We  do  not 
offer  this  evidence  to  be  as  concluding  evidence 
as  if  Goodman  was  here ;  but  a  corroboratinuf 
evidence  of  what  caiitain  Porter  liath  said.  Ti 
it  did  wholly  depend  upon  this  evidence,  it 
may  be  it  might  have  no  great  weight ;  but 
oince  there  is  other  evidence  viva  voce,  and 
since  you  have  been  pleased  to  order  us  to  lay 
before  you  all  the  evidence,  we  humbly  ofFi-r  It 
to  you,  and  pray  it  may  be  read. 

Kir.  Mantei/,  I  humoly  pray  they'may  with- 
draw. 

Mr.  Speaker.  If  you  please  to  withdraw ; 
but  first  I  am  required  to  ask,  if  on  both  sides 
you  insist  upon  this  point  ? 

And  the  Counsel  for  both  sides  declared, 
they  insisted  on  it.    [And  then  withdrew.] 

Mr.  Maniey,  I  should  not  have  presumed 
io  have  given  you  this  trouble  of  theii*  willi- 
drawing,  but  that  a  thing  is  insistcil  on  by  the 
counsel  for  the  bill,  which  1  liiink  is  ot'tho 
greatest  conscquonce  to  all  tLi*  lri:enien  of 
England.  It  is  true,  the  rule**  ol'  \Vcstniiustcr' 
Lall  are  not  binding  to  the  Irjjislalivo  power  ; 
but  1  wunid  not  have  the  legislative  power  to 
be  governed  by  the  private  sense  of  any  nmu 
iviialsoi'ver,  but  by  those  rules  that  arc  the 
rules  ot'justiee  and  coiumou  eqiiiiy.  God  ibr- 
Lid  tliiit  \vc  slionld,  upon  suppui;itions,  su|>- 

Jose  ourselves  out  of  all  the  ri^hts  ol'lae  law  ! 
never  heard  any  gentleman  of  the  long  robe, 
before  the  learned  scrjennt  at  the  bar,  assert, 
that  aa  examination  before  a  justice  of  the 


neaoe  couM  be  read  agmast  a  man  far  his  liff  • 
It  is  known  to  all  tlini  hare  looked  iolo  the 
A  B  C  of  the  law,  that  it  was  net er  pradiied. 
It  ia  true,  in  equity,  depositions  Hwy  be  rttti, 
because  they  are  taken  by  the  ooiiseut  of  all 
parties ;  and  it  is  as  well  a  deposiiioa  of  aes 
side,  as  oi' the  other,  and  the  wilBcases  may  ht 
cruss^xamined :  but  that  is  Dotbiog  (o  tlw 
purpose. 

Mr.  Shane,  I  bcliere  I  may  saTe  yoe  • 
great  deal  of  tronble  in  this  matter ;  for  Ihm 
gentlemen  from  the  bar  thai  mode  dikjetAoBM, 
spake  without  book,  but  I  speak  by  book; 
[having  my  lord  chief- justice  Il'ales's  Pkas 
of  die  Crown  in  his  hand.}  No  less  a  ma 
than  my  L.  C.  Justice  Hales  (and  1  think  ht 
was  past  his  A  B  G  oflbelaw;  I  knowoot 
how  far  tliis  gentleman  b  advanced),  in  Ui 
Pleas  of  the  Crown,  in  tliat  part  where  be 
shews  what  is  evidence  to  the  petite inry,  be 
says ;  First,  by  the  statute  1  and  3  Pbilip  lai 
Mary,  c.  13,  and  Z  and  ft  Philip  and  Mary, 
c.  IS,  the  justice  hath  power  to  enunioi 
the  ofiiender  and  informer ;  and  so  hegoci  od 
in  several  {Mulicolars :  and  then,  6,  he  njt, 
these  examinations,  if  the  party  be  dead  k 
absent,  may  be  given  in  evidence.  I  mmt 
allow,  such  on  examination  not  of  the  same  ao- 
thority,  as  if  the  witness  was  present  it  wobU 
be,  because  he  cannot  be  crass-examined ;  bM 
still  it  must  be  of  some  weight,  and  it  mrntb 
read :  but  in  this  case,  it  is  of  greater  «rei|bl 
tlian  in  thot  which  my  Lord  Chief  JnHei 
puts ;  for  he  says,  it  would  be  evidence,  if  tin 
party  was  dead  ;  or  if  he  was  withdrawn  vitb- 
out  the  consent  of  the  party  against  wbooi  be 
is  a  witness,  and  that  comes  to  the  case  in 
chancery,  every  day  pi  act'.scd  ;    that  if  anjr 

{>cr8on  gets  my  deeds  and  evidences  into  fan 
lan^ls,  and  he  liath  emliczzled  the  deeds,  thej 
shall  be  presumed  to  siy  what  I  allcilged,  be- 
cause it  is  his  fault  he  does  not  produce  then. 
$0  this  withdrawing  I»y  the  instigation  of  nr  J. 
F.  is  a  strong  presumption  that  what  iieswciii 
against  sir  J.  F.  is  tnie. 

Sir  lid.  Temple.  No  nr,an  can  give  evidence 
of  any  depositions,  uor  \v«is  it  over  admitted 
to  be  evidence  cither  upon  the  parly's  death  or 
absence ;    and    I  v.cuM  not  have  tliat  dcririat 

Sass,  that  we  are  not  tiod  to  the  ruk^s  ot'  law. 
ly  L.  C.  Justice  Vanghan,  when  hewaspf 
this  house,  told  us,  wc  were  not  bound  to  the 
forms  of  law,  hut  we  were  tied  to  the  rules  of 
law ;  and  if  you  are  not,  how  will  you  judjjc 
of  this  crime:'*  How  will  you  ju*Ige  it  to  be 
treason  in  the  worst  oftiulesi*  in  the  trial  of 
my  lonl  Blordaunt,  who  was  tried  before  the 
high  court  of  jui-ticc,  they  would  nntiiUowof 
this  piece  of  cvi'.lence,  thoui^h  they  had  Uiroira 
aside  jurie-:.  We.  ore  tied  by  the*  rules  of  bv, 
or  we  arc  lictl  by  nothing. 

.Sir  T/io.  Littleton,  The  worthy  rambcr 
here  tells  us,  we  are  tied  by  the  rules  of  lav, 
or  we  arc  tied  by  nothing.  I  ho|»e  lie  doe« 
net  intend  to  put  l!:e  pun  upon  r.s,  that  waillf 
a  noble  lord,  »  You  are  tied  by  rales  or  bo 
rules  ^  if  you  arc  ti?d  by  uo  rujes,  whatnd* 


►fl 


nfon  a  Bill  ofAUainier. 


eTonticdh^?*  I  tiMik  3roa  may  act  by  rules, 
id*  yet  admit  of  this  eridence.  I  told  yoa 
lore,  I  should  aot  nchoo  nyself  so  tied  b^ 
e  raJeaoTlaw,  hutthsA  I  would  bear  all  en- 
laee  that  should  he  oiered:  aud  I  do  not 
sk  it  is  for  o«r  honour  to  stifle  any  ihmg 
MS  may  hrinff  out  tlie  truth.  A  worthy  hiw- 
er  said,  let  tbem  produce  one  evidence  that 
I  of  the  recorder's  opinion ;  and  a  member 
sih  prodneed  the  opinion  of  rov  L.  C.  Jus- 
iee  Hales :  and  I  hope  we  shall  not  be  de- 
nrred  from  the  satufiiction  of  hearing  what 
ikey  might  hear  in  the  courts  below.  Here 
us  two  witnesses  that  hare  beeo  enunined 
i^iiait  him,  which  the  jury  did  believe  that 
Mnsd  the  bill.  If  we  cannot  hare  these  two 
«ilBesKS,letttshafeasmucbaswecan.  We 
hsrc  heard  wlMt  one  said ;  we  hare  an  oppor- 
taity  of  hearing  what  the  ether  said.  No, 
m  the  genlleracr,  we  do  not  desire  to  be 
iwmMd;  but  1  believe  it  must  come  to  that 
tthiL 

Sr  Af.  IVmpZr.  The  gentleman  that  spake 
hrt,  insinuated,  as  if  1  had  dropped  some- 
f^  be  oould  not  understand.  Give  roe 
hitetotell  Tou,  there  was  the  courts  of  the 
Mdents  otWalcs ;  when  they  urged  rules  of 
Inr,  then  they  were  a  court  of  equity ;  aud 
vhea  they  argued  from  points  of  equity,  then 
ftcy  were  tied  up  by  the  rules  of  law;  and  so 
fuc  judgment  neither  aeoordiog  to  the  one 
nr  the  other ;  and  so  it  was  taken  away  by 
let  of  parliament 

Mr.  JkscMws.  I  have  seen  it  myself,  that 
I  justice  of  peaea  has  been  examined  himself 
li  to  depositions  he  bath  taken ;  and  I  take  it 
to  ke  an  ordinary  ezaminatkm. 

Mr.  HmrcouH.  Sir,  I  must  say,  if  you  were 
li  pick  all  the  absurdities  out  of  the  trisls  in 
the  last  reign,  3rou  couM  not  pick  out  more 
than  has  hem  eiideavoured  hv  the  king's  conn- 
hI  to  be  imposed  upon  you  this  day :  this  does 
a  ssme  measore  convmee  me  or  what  was 
laid  by  another  gentleman  the  other  day,  that 
t  is  much  better  to  be  tried  by  an  assembly  of 
100  gentlemen,  than  at  the  Old  Bailey,  lliere 
was  a  quotation  of  a  learned  author ;  and  the 
pmllemau  read  yon  what  was  evidence,  and 
vhal  WM  not:  and  the  eondnsien  was,  That 
theie  depcMitioBS,  if  the  party  was  dead  or  ab- 
Hot,  is  evidence.  Why,  sir,  if  these  depesi- 
lioBS  be  evidence  if  the  party  be  absent,  then 
what  are  we  doing  of  all  thitf  day?  Ifthatbea 
eatain  rule,  there  is  no  manner  of  need  of  ap* 
plying  to  this  eztraonlinary  vray ;  bat  if  yon 
fhase  to  enlsr  into  the  consideration  of  that 
psiit  (I  an  neither  siraid,  nor  unwilling  to  be 
ndWmed).  If  gentlemen  will  take  it  de  bene 
car,  fiir  better  for  worse,  with  all  my  heart ; 
Wt  if  you  enter  iotothnt  matter,  I  wdl  freely 
idlyon  Riy  opinion  of  it. 

fir  Edm.  Srywonr.  It  hadi  been  made  a 
fmiuu,  bow  ikw  yeo  are  bonnd  to  pursue  the 
nicseflawP  1  suppose  it  ie  no  new  thing  I  am 
ping  to  Si^ ;  Tlint  Bills  of  Attakider,  and 
^igiwjta  of  ntiwnder,  havn  been  reverserflfor 
T  lit  row,  hii  biwiBw  thi 


A.  D.  1696.  ISS6 

have  net  proceeded  according  to  the  rules  of 
law :  I  will  not  say,  you  are  bound  bv  the 
rules  of  inferior  courts,  but  you  must  be  bound 
by  the  rules  of  parliament,  and  by  the  proceed- 
ings and  practice  of  parliaments,  which  is  th« 
law  of  pvrliament.  And  then  I  would  know» 
whether  this  house  did  admit  of  an  aflEUiavit  for 
evidence  ?  and  the  reason  is  this,  because  by 
that  yea  make  this,  which  is  the  superior 
court,  hme,  without  the  assistance  of  an  infe* 
nor  court. 

Mr.  G.  R.  Bridget.  The  matter  before  yoa' 
is,  whether  sir  J.  Fenwick  be  guilty,  in  your 
jud^ents  of  this  conspiraer?  and  if  so  I  can- 
not imsj^ne  why  you  shonhl  not  take  all  the 
information  that  is  offered  to  you ;  and  why  not 
hear  all  the  circumstances  of  it  ?  If  you  do 
not  read  this  affidavit,  I  do  not  say  hut  it  is  a 
kindnem  to  sir  J.  F.  but  wliat  kindness  will  il 
be  to  the  country  and  government  ? 

Mr.  James  Montague.  I  hope  yon  will  not 
spend  much  more  time  about  this,  because  the 
law  is  so  plain.  If  there  be  any  thing  in  the 
oMeetion,  it  is  this,  Tliat  if  it  be  evidence,  the 
other  courts  below  may  proccrcd  upon  it :  but 
that  1  take  to  be  no  objection  neither;  for 
though  it  be  evidence,  tliere  are  not  two  wit- 
and  the  courts  below  require  two  wit* 


nesses  though  there  be  other  eridenee,  and  one 
witness  besides;  so  that  you  can't  try  hin 
without  two  witnesses:  it  wonM  be  aiimitted 
in  the  case  of  felony,  and  there  two  witnesses 
are  not  required  expressly  by  the  law:  and  I 
can  tell  you,  upon  my  reputation,  I  have  sees 
it  done  several  times. — ^Ttie  learned  ^t.  tells 
you,  my  L.  C.  Justice  Halcs's  opinion  is  so, 
and  that  is  grounded  upon  an  act  or  parliament; 
and  I  think  that  is  oi  greater  authority  than 
any  judg[e ;  and  therefore  I  think  that  objection 
will  vanish.  He  says,  you  have  no  authority 
to  receive  affidavits ;  but  sure  we  must  take 
notice  of  acts  of  pariiament ;  and  if  that  re- 
oHires  depositions  to  be  taken,  and  to  be  evi- 
dence against  criminals,  we  ought  to  take  no« 
ticeofit;  so  that  what  the  kw  makes  to  btf 
evidence  will  be  good  in  this  place. 

Mr.  Hariey.  1  look  upon  this  matter  under 
your  debates  to  be  of  the  greatest  consequence 
to  the  lives  of  tlie  subjects  of  England,  that 
possibly  can  come  before  you:  gentlemen  have 
given  you  several  reasons  for  rnuling  these  de- 
positions; one,  that  it  was  ray  L.  C.  J.  Halcs's 
opinion ;  another,  that  there  is  an  act  of  parlia* 
moot  for  it:  now,  1  think,  it  would  be  proper 
to  johi  issue  in  theae  two  points :  If  any  act  ot' 
parliament  can  be  produced  for  this,  then  the 
debate  wilt  be  at  an  end ;  but  if  there  be  an  act 
|iositive  in  fact  against  it,  then  I  hope,  you  will 
not  receive  it :  and  if  my  L.  C.  J.  Hales's  book 
have  not  one  word  relating  to  this,  then  I  hope 
that  will  be  no  argument.  He  begins  his  chap* 
ter  of  eridenee,  and  says,  That  the  evidence  te 
the  jury,  in  cases  of  treason,  must  be  two  wit« 
nesses ;  and  then  comes  to  the  cases  ef  felony : 
But  b  that  any  debate  before  us  P  and  he  tells 
you,  that  informations  might  be  taken  of  the 
pertee  hiuwclf,  but  that  was  mi  by  the  — 


509}  8  WILLIAM  IlL 

rupii  law,  b«t  was  allo\vr<l  of  by  particular  acts 
<if  parliament ;  and  tlipn  teUs  jou,  (hat  Wis  in- 
ii)nDation,  ami  tliat  dcpositiuns  before  the  jus- 
lice,  were  to  he  atlmitted  (but  he  was  to  be  by :) 
But  is  this  any  things  to  Ivail  you  ?  Have  they 
brought  any  statute  that  tells  you,  there  must 
he  tuo  nilnesses  in  this  case  ?  Ifyou  will  take 
uodce  of  a  statute,  you  must  take  notice  of  a 
statute  that  is  in  point.  If  any  man  Kuflers  by 
one  witnc<»s,  I  bchcre  all  the  world  must  say ,  he 
sufTei's  niiju.\t1y  :  I  think  it  is  of  the  g^reatcst 
coDse<)uencc  to  admit  of  aiFidavits.  Here  it  is, 
tiiat  the  boundaries  are  established  for  the  lives 
and  libertirs  of  mankind  :  and  this  is  an  ob- 
Qen-atiou  that  is  found  in  histor}',  that  those 
that  hare  broke  their  bounds  down,  it  hath  re- 
tjjrned  i\\wn  them  to  their  prejudice. 

Sir  liobcrt  lUchard.  I  am  sure  now  we  are 
not  upon  the  point  of  rcadinof,  whetlier  it  be 
much  or  little,  but  upon  the  point  of  hcarin"', 
luid  that  [  speak  to :  and,  I  think  the  gentle- 
man near  the  table  did  not  mistake  what  the 
liar  said ;  for  tlie  counsel  on  the  oilier  side 
insisted  positively,  that  nt-ither  by  the  practice, 
nor  by  the  books,  was  a  de])Osidon  to  be  read 
as  evidence :  against  that  the  gentleman  near 
the  chair  produced  tliat  book.  .'Vs  to  tlie  mat- 
ter of  treason,  every  parliament  man  can  re- 
member, that  you  have  made  an  act,  that  there 
i^hall  be  two  witnesses  in  cases  of  treason. 
Now,  At  the  same  time,  it  wiji  be  taken  notice 
of,  that  you  have  taken  care  in  that  act,  that 
the  proceedings  of  this  house  shall  not  be  tied 
vp.  The  gentleman  tells  you  of  a  court  that 
wavered  between  law  and  etjuit}',  and  so  came 
to  nothing ;  and  I  am  afraid,  if  we  bring  the 
House  of  Commons  down  to  the  courts  of 


Westminster  Hall,  they  will  make  nothiii:^  (>t' 
vs  eilber.  I  do  not  say  tliat  this  paper  shall  be 
SIS  strong  evidence  as  if  (loudman  was  at  the 
bar  ;  but  to  s;iy,  it  shall  weigh  nothing,  I  can't 
agrt?c  ui'itJier :  1  agree  also,  to  inukc  a  iroiuuion 
practice  of  reading  affidavits,  will  lie  i.A'  ill  con- 
sequence :  and  if  you  take  this  to  be  a  niatler 
of  small  consequence,  I  am  not  for  reading  this 
afiidavit.  Now  1  aim  not  ai  sir  J.  Fenwick's 
blood,  hut  the  safety  of  the  king  and  govern - 
nirnt :  and  J  would  not  refuse  any  evidence  in 
this  case,  be  il  never  so  small.  'I  licse  gtnlU*- 
men  spi-ak  a:>ain>t  a  matter  being  evidence  be- 
fnc  it  is  rt'a«l ;  il  is  offered  as  evidence  ;  if  it 
be  small,  or  come  to  nothing,  it  is  the  better 
fur  tliepii*^onirat  the  bar. 

JVir.  Ptiluitu,  I  am  indifTerent  whether  I 
hpar  that  pa^ior  read,  or  no;  but  what  is  said 
by  a  learned  ^rcni.  8(arlios  ine :  Says  he,  in 
WcstminMcr  Hall  they  arc  lj<innd  to  the  evi- 
•^lence  oi'two  witnesses,  and  there  this  evidence 
would  not  be  proprr;  hut  heie  we  are  upon 
another  im»t.  I  ho(»e  we  are  not  here  upon 
anotlu  r  UnA  ;  I  hope,  though  here  we  are  uot 
to  be  lied  b\  the clinanery  of  the  law,  we  are 
to  be  tied  hv  the  (quity  and  substantial  reasons 
oi  it.  J  desire  to  know,  if  any  one  can  be  tried 
for  treason  upon  one  wiine&sf  And  if  we  are 
not  tied  by  the  rules  of  law,  we  njay  hear  any 
evldenoe  ^Mhaisocver;  il'  the  king's  counsel 


Proceedings  againsi  Sir  John  Fentoicl,         [600 

thinks  it  may  satisfy  your  fancies,  it  most  be 
received. 

Lord  Cults.  T  conceive,  ffentlemen,  wc  are 
out  in  the  way  of  arguing :  I  mnit  put  you  in 
mind  that  we  are,  at  tbeMHtom,  only  arguing 
against  the  jurisiliction  of  this  House :  ami 
though  that  matteir  hath  been  settled  before, 
we  are  told  very  often  of  the  law  anil  rules  of 
Westminster- hall.  In  answer  to  that,  1  mim 
observe  there  are  several  sorts  of  hws ;  there  ii 
the  law  of  natifre,  the  law  of  nations,  the  law 
of  God,  and  there  is  the  legislative  ;  and  it  is  a 
self  evident  maxim,  not  to  be  contradicted, 
That  no  superior  is  to  be  circumscribed  by  u 
inferior :  And  f  wou'd  ask,  if  the  courts  bdmr 
are  not  inferior  to  the  parliament  T  There  ii 
nothing  can  limit  us,  but  the  law  of  natore, 
tlie  law  of  God,  and  the  law  of  parliameoti; 
and  though  1  cannot  tell  you  very  well  wbilii 
the  law  of  parliaments,  yet  no  gentleman  hath 
said  any  thing  upon  that  subject,  tliat  isajraiBit 
the  question  before  you  :  The  matter  was  in  a 
course  of  law ;  but  upon  an  extraordinary  acci- 
dent, and  for  extraordinary  reasons,  it  is  brought 
before  you.  The  accident  is  the  wiihdrairi< 
of  a  witness ;  the  reason  is  tiie  securing  of  the 
king,  the  government,  yourselves,  and  poile- 
rity.  1  do  not  think  any  man  that  sfiokeagiiiit 
it  IS  for  favouring  sir  J.  Fen  wick;  for  1  think 
this  is  the  worst  way :  1  would  appeal  to  eteiy 
man,  what  prejudice  it  b  to  you  to  hear  thii 
paper  read?  and  it  may  be  a  disadTantage ts 
yon  not  to  hear  it. 

Iklr.  Hoice.   There  have  been  many  iTjni- 

ihents  given  for  and  against  the  rending  of  thii 

paper  ;    and  if  1  did  not  take  it  that  the  read- 

I  ii)Ti-  of  this  paper  could  be  of  uo  use  to  the 


ju.l:,nunit  we  ore  about  to  make,  I  should  be 
Vor  iliir  reading  of  it:  Either  it  amounts  to  a 
proof  of  high-trtason  against  sir  J.  F.  or  it 
siirnilii'S  nothing  tt»  you.  Ifyou  suppose  il  w 
vvt-irl,  any  thing,  I  can  never  agree  to  ilic  read- 
ing of  it  {  for  it  is  only  an  hearsay  broujjlit  to 
convict  a  man  that  is  tried  for  his  jile.  But 
there  is  a  greater  argument  which  weighs  un're 
than  the  reason  hath  been  ui-ped  ;  and  that  is 
your  entmies  will  have  an  advantage,  an«l  jour 
government  is  at  stake  :  Hut  1  do  not  taketlul 
to  he  so  much  an  ai-gunient  of  their  strength, 
ns  of  their  weaknes-*  and  neglect;  however, 
when  they  prove  that,  I  will  see  how  far  I  caa 
go.  It  is  said,  that  in  the  worst  of  times,  they 
would  not  convict  a  man  upon  one  evidence. 
As  to  sir  J.  F.  though  he  should  not  be  a  good 
Kiiglishnian,yct  his  cause  mav  he  a  goodtufj- 
lishman's.  The  question  is,  Whetlier  tlicre  be 
more  danger  by  the  withdrawing  of  a  wilw^i 
and  the  escaping  of  sir  J.  F.  or  the  willidniw- 
ing  of  the  witness,  and  the  convicting  of  air  J» 
F.  ?  Here  they  let  Goodman  (such  a  rake)  W 
abi.ut  and  he  is  jjone  ;  and  now  the  fate  of  tbj 
government  seeius  to  depend  upon  it.     To* 

1)recedent  on  the  other  side  is  not  so  much  H 
>e  feared ;  for  I  supiK)se  future  govenuii«JI 
will  take  care  uot  to  let  a  witness  go  aboaltM 
streets  again :  But  it  may  happen  that  certn*. 
men,  for  asserting  the  liberties  of  tlieuroHUlVi 


>l} 


upon  a  Bill  of  Attainder » 


h^ttm  upofi  by  ill  govertimeoU)  ;>Qtl  at* 
iti  IBlde  U|jon  their  lives  hy  iiilse  vvitnessi?*. 
,  the  btil  of  treason  proviifes,  that  no  person 
nil  b«4>roiseciJteiJ  wjlboui  two  u  iinesses.  Now 
iiappeo,  that  they  shall  hare  no  such 
i  BS  can  coti^itice  a  jury  (1  belic'?e  this 
ftD  to  be  as  much  guilty^  in  my  01% n  thought, 
1  beheve  any  ihiug^  in  the  world ^  and  yet  1 
ill  coodetiin  no  muiiUjioti  my  primate  lancies) ; 
here  are  two  nitnesscs  brnu^jht  belbre  the 
^  jury,  ant)  nathiti^  ir.  so  easy  as  to  get  a 
~iiti  hy  thtini  (ami  that  m  all  tiiat  is  iJooe 
jmaii).      Nasv  »ay  »b*;yi  if  this  should 
ae  before  a  jvetit  jury,  one  of  tliese  witnesses 
>  not  be  creiliteil  ;    m  they  will  carry  bim 
|ud  ttrge  this  for  a  ^recedeat,aniJ  HQ  this 
iy  be  convicted. 
fr.  Smith.    I  think  we  are  come  to  the  dc^ 
of  the  bil^  iti^te:)d  of  reading-  the  paper, 
lie  quevurtdt   VV  hether  this  paper  sbuidil 
ic<i  as  a  5t.x«nd  witness?  Then  it  wiiuhl 
iftfitrealqirestiou  wiiK  me,  whether  it  should 
he  read  ;    but  the  tjuestiau,  as  to  Col.  S^^idoey^ 
i  not  whether  the  paper  shouKl  be  reatd,  but 
bet  her  a  should  supply  the  place  cfa  second 
I?    But  your  debute  is   extraordinary  ; 
I  takes  4iotice  of  Goodman  heiogf  t^ooe 
Ififl  now  you  wonH  take  notice  of  what 
behind  him  ;  which  1  should  the 
llfttititied  m,  because   [  saw  a  gentle- 
dlidtiug  at  the  bar,  tlmt  did  eodeni  out- 
let   him    away\       If  Giwdman  had  Iteeu 
pttght  a  prisoner  to  the  bar,  I  do  not  know, 
keUiPr  it  tnight  tiot  have  hetn  reckoned  as 
at  a  ftinii,  aa  now   his   havininf   too  much 
erty.     Il  haih  been  citfd  m  a  great  luwyer-s 
lioiotit  that  it  nughi  be  given  in  evideiitt ; 
^  he  docii  out  »ay  what  weif^ht  btmii  be  laid 
m  It. 

Mr.   Pel  hum,     I  arei  sorry  that  hononrohle 

uU  nri>iiook  me  so  much  ;    I   thoui^ht  I  had 

l^ke  very  plain  ;  1  toUl  you,  I  vvu»  lutt  against 

iing    of   the    pjijier,  till  the  leurued  ^ent. 

|it  vou,  yott  were  not  lied  U|f  as  the  courb 

VVrfttiuiU6ter-bail  to  two  witnesses.     As  to 

at  I  said  of  Mr.  ^idoey^s  ca^ie,  it  wns  not 

iinst  the  reading:  that  paper;    but  I  mul  he 

I  rely  upon  it  as  at^aiuiit  commoo  justice^  to 

bauainted  u[»on  oue  witne;*!^:    .^^nd  that  at- 

jider  you  have  thought   tit  to  reverse ;    and 

reason  he  gives  jor  it  was,  because  it  was 

sibible  for  a  man    to    make   any  detenec 

BTUst  one  sin^;le  uitness. 

lit.  Gin.  The  matter  yoti  are  now  debating 

[i»  iM,  U  betber  these  putters  should  be  now 

kd  f  And  {rentkmen  have  let  themselves  into 

debate  to  reign  lo  the   questiotu      A  great 

toy  art'  ai;aitji»t  it  upon  this  argument^  that 

would  uoi  W  ul'  opinion  to  condemn  hiin, 

is  there  v* ere  two  witnesses:   That  ib  not 

}  questiODi  lor  \  thiuk  no  man  is  ready  to  give 

\  t*piiiion  to  cioidentn  or  aequit  him,  unless 

\.  i%ei«  two  w  itae«>ses ;    One  gentleman  i^i 

I  the  re»4iintr  of  it,  und  yet  bilicves  ^ir  J. 

J  must  respite  my  j*olfcriuent  till  1 

itud  his  df^tence  :  I  tliinU  that  tlie  coun* 

■  J.  Jr\  at  tht\  h^r*  nrt;  very  much  ws- 


taken,  when  they  siid^  that  such  a  thing'  as  an 
examinalioQ  in  writing  was  never  read  in  any 
court  of  justice.  1  tnink  that  is  a  great  mia- 
lake,  and  a  good  authority  hath  been  cited  tor 
it ;  and  every  one  knows  the  practice  is  other- 
wise; il  is  often  allowed,  that  the  examina- 
tions before  a  justice  of  peace  are  read.  Tlie 
question  h  now,  Whether  the  examination  shaft 
be  read  .^  If  there  do  not  appear  another  wit- 
ness to  prove  hmi  s^uilty,  you  will  debate  that 
matter  itietif  Whether  \ou  will  condemn  him 
without  two  witness«*s^  You  might  as  weH 
have  debated  betore  whether  Porter  should  b«s 
examineif,  because  no  man  will  condemn  bind 
without  two  witnesses,  and  therefore  do  not 
examine  one,  W  by,  we  know  not  what  further 
witnesses  may  be  produced,  if  sir  ,K  F.  was 
upon  his  triril ;  1  think  this  information  nugbl% 
have  been  adinittetl  for  proof,  if  Goodman  \\i 
out  of  the  way  ;  but  if  it  was  admitted,  unlcst] 
there  was  another  ^vitness  produced,  1  betievtl 
the  court  will  ttll  the  jury,  here  ai^e  not  tw<|j 
witnesses,  ami  therefore  you  must  acquit  him.  • 

8ir  \Vm.  Coriftim.   \  must  crave  leave  to  dil*  1 
fer  from  thai  worthy  geoileman  :  1  Ibink  fhi»mj 
the  proper  titue  t<>  de  terra  in  e,  whether  tliis  eri*  f 
dence  is  to  lie  rtdiiiiited    attprvvards  ^    Indee^j 
you  may  determio*^  how  far  it  is  available,      I  j 
thought  liolh  in  law  and  justice,  hctbre  I  cam#  ] 
into  the  f  loose,  that  ihi^  ougbt  not  lo  he  admit*  j 
tetl  for  evidence.      A  gentleman  groiiudeil  hit  J 
arLfument,  upon  what?    My  L,  C.J.  Halcs'tj 
opiuiyn  :    but   I  be  fact  is,  that   my  L.  C.  Jij 
Hales  state^  iheditference  in  cases  of  treasooi  J 
and  in  cases  of  felony.      Now  in  felony,  they  ^ 
make   use  of  depoijitions  ;    and  the  reiisoit  is^ 
because  it   is  more  lor  the  advantage  of  iho  j 
prisoner  lh;m    hi»   disadvaniage  ;    for  if   th^,| 
witiii^^  diBer  tTOru  his  exnmin:ilion  before  th^  1 
jiisiice  of  peace,  that  turns  to  the  advantage  of] 
the  prisoner.      In  thu  nature  of  the  thing  it-^ 
i>eems  not  to  be  reasonable,  for  it  i^i  easy  to  J 
turn    the    tubles.      Am\  suppose  Goodman  itI 
the  place  of  sir  J,  F.,  and  sir  J.  F.  in  the  place  I 
of  Gondmau  ;    it  would  be  hard,  take  the  in^ 
formations  to  be  as  they  are,  to  admit  tbem  for 
evidence  ;    which,  in  my  opinion,  arc  great  re* 
tlectious  upon  persons  of  great  honour  an4 
worih. 

8ir  CA.  MusgfitTc,     That  which  t  pcrceiva  ' 
Id  be   your  debate,  is  that  upon  which   tbd 
eounspf  withdrew  ;  y cm  bear  it  asijcrtcd,  th^t  ' 
there  was  Jio  instance  in  a  criminal  cnsc^  whero 
an  a^davit  was  allowed  for  evidcurc ;    and  I 
think  the  learned  coun^iel  at  the  bar  did  no(  ' 
much  insist  upon  it;  and  yet  1  don't  think  theyt 
were  ignorant  of  the  case  quoted  out  of  my  L, 
C\  J.  Hales,  but  they  ihought  it  wasnotapplM 
Ciiblc  to  this  business  befuivthe  liou&e  ;    but 
only  relateil  to  felonies,  and  when  deposition^ 
were  taken  in  the  presence  of  the  partv.     It 
is  said,  we  are  not  lied  up  lo  the  rules  nf  \Ve«lJ 
minsttr-hall ;  and  that  parliameuls  may  deu<»«  I 
minate  crimi^s  alter  they  are  coinniiltcd  -,   but  1»  J 
never  did   hear,  that  the  parliament  diil  take 
upon  them  to  dcteimtue  that. to  be  evidcuta 
which  is  iiut^^^idcncc  ia  say  court  iu  iha 


6BS]  8  WILLIAM  III.         Proceet&fi  agamst  Sir  JoknFenwiekt         [601 

mMM^  girmg  tbem  mort  tbu  it  mheA  b«re ; 
for  bm  cfn  be  DO  quertioa,  bill  w  to  lbs 
foTTDB  cf  fnt&edmgB,  The  qoeaiiMi  b  not 
■ponb»criin«,thctnnoq«eiliMi;  iiull  tika 
it,  Ibat  if  Dptn  any  oceuioa,  it  is  to  be  jmliiiJ 
m  tlib,  end  the  law  balb  trasted  tbe  parttamenl 
with  a  greater  power  tbaa  now  tbey  are  abom 
to  execute,  and  there  are  only  objection  to  it 
raited  from  another  place,  wbieb  1  tbhdi  cu 
net er  conclude  in  tbia. 

Mr.  Ckanc,  of  the  Exchequer.    I  an  fiir 
reading  of  this  juper,  tboui^  I  do  nollbinfc  il 
evidence  ffjnivalent  with  viva  voce;  nor  do  I 
think,  that  in  like  cases  it  ought  to  be  admitted 
below  ;   but  I  think,  in  your  prooeedinpi  ii 
parliament,  it  ooglit  to  be  read,  whether  it  W 
an  affidavit  or  not ;  and  I  am  more  of  thai  op- 
nion,  from  what  happened  in  a  case  to^r. 
We  had  a  dispute,  whether  Porter  was  to  be 
examined,  because  tbe  testimony  ef  a  mis'i 
wife  was  not  good  below.      But  when  tbit 
came  to  be  examined,  it  was  not  tbe  testisHoy 
of  a  man's  wife,  Imt  his  own  letter  appetnd 
in  evidence ;  and  Clancy  tokl  Pdrler  he  csBt 
from  Fenwick  himself,  and  therefore  tbecri- 
dence,  which  at  first,  for  that  reason,  wasogMl 
not  to  be  heard,  did  amoimt  to  nu»e  wbmil 
came  to  the  proof.    I  would  have  this  popv 
read ;  not  bc^ose  it  should  supply  llie  pMi 
of  a  witness ;    no,  but  because  yon  see  be  bitb 
been  indictoil  by  the  evidence  or  Qoodmaa  aal 
Porter,  and  tbe  first  is  withdrawn ;   and  bf 
whose  means  you  have  heard:    and  I  wmh 
know,  whether  Goodman'sevidencedid  amsoil 
to  accuse  him  of  the  same?   1  do  say,  in  your 
power  of  jurlf^ing,  you  arc  not  conetraioed  Is 
the  rules  of  We«tminster-hall:   and  1  would 
say,  that  for  your  constitution,  the  courts  nf 
ncstminster-irall  are  to  be  governed  by  ihs 
letter  of  tbe  law  :    but  there  is  lodged  in  the 
l<*gislative  a  power  to  judge  those  crimes  tbit 
are  sheltered  behind  the  law  :    and  I  believe, 
if  the  several  attainders  were  examined,  there 
was  never  any  attainder  that  went  upon  a  more 
jost  proGee<lirig  than  this.     I  take  the  criuie  to 
be  a  plot  with  your  enemies  to  bring  ia  a 
foreign  power ;   and  as  if  that  was  not  safi- 
cient,  he  hath  made  a  false  and  scandalooi 
confession,  to  brine  a  distrust  and  jeahNUf 
amonflf  the  king  and  his  people ;  and  he  badi 
dallied  and  gained  so  much  time,  as  he  bath 
had  opportunity  to   coiTtii>t  one  of  the  wit- 
nesses ;  and  therefore  it  woukl  l>e  haid,  if  no 
law  shouM  reach  him.    It  is  said,  why  did 
not  you  keep  the  witness?    It  would  be  baii, 
after  a  perwHi  hath  made  a  confession  for  lbs 
good  of  the  kingdom,  that  he  shouM  be  alws^f 
kept  in  irons.    We  ore  debating  of  tbe  biN, 
while  we  are  now  only  purely  to  see  what  ii  ia 
this  paper.    I  should  not  have  offered  to  bssi 
made  use  of  this  as  a  second  witness ;   but  tfct 
being  an  affidavit  or  not,  is  not  material  in  thil 
point ;  the  commons  proceed  upon  impeafb* 
mcnts  without  afiiihiviis.    It  is  offered  as  m^ 
dence :    tliat  Goodman  was  a  witness  agaM 
him  (you  hare  had  proof  of) ;  and  that  bt  Mb 
beam  tampered  with  lo  wkbdimwi  by  M 


If  yoa  md  this  pap^  ^  inlbrm  vonr« 
)  yaaadnil  tbatto  be  evidence  which  is 

^  wbm  daa  to  be  admilted.  Yoa  are  told, 
yott  aie  Ml  tied  to  the  forMs  of  mferkw  courts 
of.kwDM  equity:  If  you  are  aoc  bound  by 
ibeai,  you  are  bound  by  your  own  constitulioaa. 
Yon  are  laid,  yon  are  used  to  read  affidavits  in 
coflMBOBcaiisea;  bvtif  my  memory  serves  me 
right,  you  have  always  had  it  oppMed  in  this 
boose;  therefore  I  think,  according  to  the 
roles  of  your  own  house,  we  shall  not  reail  affi- 
davits. Will  yon  make  a  new  rule  in  this  case  ? 
Piray  consider  the  coDsequence  of  it  hereafto. 
JSupposo  there  came  dmvn  afUdavits  upon  ano- 
ther person,  against  a  great  man  for  high-trea- 
son,  whether  that  may  not  be  thought  sufficient 
for  to  govern  your  judgments  ?  I  hope  thoee 
that  hear  me  will  have  a  care  of  the  matter. 
Why,  by  tlie  parity  of  reason,  may  not  two 
affidavits  do  by  tiie  help  of  the  legislative 
power  ?  I  would  be  glad,  to  know,  it  bother  in 
the  case  of  an  impeachment,  they  ever  heard 
of  affidavits  being  read?  And  this  is  much  in 
that  nature ;  and  therefore,  why  should  you 
admit  of  an  affidavit  now,  when  the  party 
chai^^  was  not  present  when  tiiat  afMavit 
was  taken  ? 

Sir  Jotepk  WUliamson.  I  am  sorry  this  point 
eosta  us  so  much  time  ;  the  gentleman  that 
apake  last  hath  brought  us  lo  thequestion,<how 
far  you  will  admit  this  aflidavit,  as  they  call  it, 
lo  be  rend  ?  I  am  of  opinion,  notwithstanding 
all  that  batli  been  suggested,  that  it  not  oniy 
may  be  read,  but  thai  it  ought  to  be  read. 
"Sone  of  the  cases  that  have  been  instanced, 
comes  up  to  the  case  in  question;  all  the 
cases  that  are  brought  arc  from  inferior  courts, 
and  the  last  that  is  brought  is  from  the  examide 
and  usage,  in  less  considerable  cases,  and  in- 
deed of  a  different  nature. — ^I'his  bill  of  at- 
tainder is  indeed  a  thing  so  extraordinary,  as 
hath  been  said,  as  it  never  ought  to  be  used 
but  upon  extraordinary  occasions  ;  and  upon 
that  principle,  all  that  is  feared  is  all  an- 
swend  and  avoideil.  It  is  to  be  thought  never 
to  come  but  upon  the  like  occasion ;  and  then 
God  forbid  but  they  should  be  governed  by  the 
like  precedent;  and  if  that  was  proper  to 
speak  now,  which  will  be  at  the  bottom  of 
h,  when  we  come  to  give  jndgraent,  and  we 
bare  time  to  ccasider  of  it,  1  can't  think  we 
•ball  differ  in  many  voices.  Whether  it  be 
evidence,  and  how  far  it  is  so,  is  not  now 
tfie  qnesticn ;  Init  the  question  is  only  whether 
it  be  snch  an  evidence  as  onght  to  be  read  ? 
And  all  the  inoonveniencies  tliat  have  been  al- 
ledged,  depend  only  ufion  this,  that  it  should 
not  be  admitted  in  the  ordinary  proceedings  in 
the  courts  of  justice.  Now  1  say,  there  was  a 
power  lodged  in  the  parliament  of  England  to 
make  a  man  guilty  m  treason,  that  was  not  so 
before ;  and  that  even  in  a  reign  when  they 
caane  to  determine  what  ti'easuns  were :  they 
did  not  think  it  for  tbe  safety  of  the  community 
•f  mankind,  bat  th^  there  shoiiM  be  a  power 
Mged  in  tlie  whole,  to  declare  tliat  to  be  a 
caaci  that  was  no  crioN  befere  U  was  cmio 


»] 


lipon  a  Bill  ofAUdndBT. 


A.  D.  1696. 


[ti06 


iendt  of  tbii  scDdcnum.  I  do  think  we  have 
me  more  fhiriy  and  eqaally  to  work,  than 
iMi  aay  «f  the  icconk  of  attainder  Id  your 
uraale. 

Mr.  BrvlktrUm.  The  qiiettion  is,  whether 
IB  paper  ebaU  be  read?  First,  it  hath  not 
BCD  proved  before  whom  it  was  taken,  nor 
Dthing  at  all.  It  hath  been  oUected,  that 
wre  oof^  to  be  two  witnesses  by  the  late 
latnte.  But  I  mnet  put  you  in  mind,  that  it 
raeao  by  the  statute  of  £dw.  6.  and  so  was 
be  oommoii-law  before ;  and  my  lord  Coke 
ays,  then  must  be  two  witnesses,  and  they 
nnqi^facetofSawe:  and  so  goes  to  the  divine 
IV ;  and  if  it  should  not  be  so,  I  will  put  you 
nouad  of  an  inconveniency  :  eleven  witnesses 
wire  produced  before  the  ffrand  jury;  and 
when  they  came  to  give  evi&nce  face  to  face, 
bcibrs  the  petit  jury,  the  first  witness  did  not 
IwMr  the  criminal  that  he  had  sworn  against. 
hwss  in  tlie  case  of  sir  Rowland  Stanley. 
Tbey  mention  a  paper  against  Algernon  Sid- 
icjr;  bat  that  papor  was  wrote  by  himself.  It 
if  1^  this  House  is  not  bound  by  the  rules  of 
criwr  courts ;  for  that  reason  they  ought  to 
gire  rules  for  other  touvts.  Nothing  is  more 
OBBon  than  to  say,  judgment  was  so  in  the 
Boose  of  Lords^  and  that  settles  the  law  in  other 
nam  beYow. 

Sr  Godfrey  CapUy,  Several  gentlemen  have 
ipoke  to  the  reading  this  paper ;  some  have 
^  that  it  slunild  m  read  as  evidence :  some 
>mi  are  for  reading  of  this  paper ;  but  yet 
tt  Ike  saoM  time  tell  ns,  it  is  not  to  be  looked 
1^  as  evidence,  at  least  not  equivalent  to  a 
^itoesB.  If  the  paper  be  to  be  read  at  all,  J 
»ould  know  for  wliat  reason  ?  If  it  he  to  have 
aj  sway  upon  our  judgment,  if  it  hath  any 
Seet  npoo  my  judgment,  then  in  some  measure 
t  is  equivalent  to  a  witness,  when  it  is  in  the 
store  of  a  witness ;  and  if  it  should  be  read  to 
apply  the  defect  of  •a  witness,  then  I  wouM 
DOW,  what  the  conse<|oence  of  this  might  be  ? 

do  very  well  understand,  that  the  court  cf 
idiameot  does  take  no  precedent  from  West- 
linster-hall ;  nor  am  I  alraid  of  any  prece- 
ent  they  should  give  to  Westminster- hall : 
Bt  I  an  afraid  of  a  precedent  to  future  par- 
imeols.  Suppose  the  information  of  sir  J. 
Mwick,  that  hath  been  delivered  in  here, 
benM  be  prodnced  as  evideuce  against  any  of 
wse  honourable  persons  that  are  chargedi  in 
:,  thoogli  1  believe  tbey  are  very  innocent ; 
nd  some  knaves  or  rascals  in  future  reigns 
bsoM  come  in  against  tbcin,  and  this  paper 
bsold  be  brought  to  supply  another  witoess, 
that  a  eonsemieoce  wonid  that  be ! 

Vtt  Onry  HahmH.  1  must  differ  with  the 
pMlemaBthat  spake  last;  as  to  the  gentle- 
Ma  that  ipake  before,  I  dkl  not  expect  any 
thing  to  be  quoted  out  of  Lancashire  against 
Ibeifdingot  it.  I  will  tell  you  why  1  think 
1^  paper  should  be  read ;  ymi  have  it  sug- 
Mad  in  the  bill,  that  Goodman  was  one  of 
^  ovideace  asainit  sh-  J.  F. ;    they  are  to 

and  this   will 
cvkieaoe.    Yon 


>bi  evidence  against  sh-  J.  F. ; 
■J*e  good   the  mggcalioBs,  ar 
*>Vi  that  Oiiodnm  was  «b  cvk 


are  told  the  danger  of  tlie  praoedeni,  ndthm 
may  come  ill  reigns,  and  ill  partianscnts;  as  to 
that,  I  diail  only  say,  in  a  good  reign,  and  a 
^(ood  |>arliarocnt,  there  is  no  danger ;  and  man 
ill  reign,  and  ill  parliament,  tliey  will  maka 
precedents  witliout  your  giving  ot  them.  Afr. 
St.  John  tells  yon  in  his  arguments.  It  is  trae 
inferk>r  courts,  by  the  statute  of  £dw.  6,  tfaey^ 
are  bound  by  two  evidences  vkca  voces  but 
you  are  not  prescribed  by  tliat  here,  but  yon  are 
to  judge  in  your  own  oonsciences  as  the  thisi|f 
appears.  I  may  say  as  auotber  did  upon  ano- 
ther occasion,  let  it  be  read ;  *  Valeat  ^uaotua 
*  valere  potest.' 

Sir  Marmaduke  Wyvell,  1  desire  to  take 
notice  of  one  argument  that  hath  been  made 
use  of  by  one  or  two  honourable  persons ; 
which  is,  that  tbey  tell  us,  that  Goodman  hath 
been  tampered  with  by  sir  J.  Fenwick :  1  re- 
member no  such  thing  that  hath  been  piored  ; 
but  indeed  it  was  said,  that  Mr.  Dightaa  offer- 
ed Air.  Roe  100/.  a  year  to  invalidate  Mr. 
Goodman's  testimony. 

Lord  Cattkton.  Let  me  ask  yon  this  ques- 
tion. Whether  if  you  read  this  affidavit,  yon 
read  it  as  evidence.^ 

Mr.  SoUcilor  General,  I  desire  yon  would 
consider  what  you  did,  before  you  ordered 
copt.  Porter  to  go  on  with  his  evidence,  and 
did  agree  you  would  consider  of  it  afterwards. 
Some  are  for  reading  this  paper,  and  others 
are  indifferent  whether  it  be  read  or  no ;  and 
those  that  are  against  reading  of  it,  are  against 
reading  of  it  bemuse  it  is  no  evidence;  but  that 
is  no  reason  why  3'ou  should  not  read  it ;  for 
it  is  at  most  hut  doing  a  vain  thing.  I  thmk 
you  have  been  told  already  if  it  was  insisted 
on  below,  it  most  be  read ;  and  the  other  tide 
roust  demur.  The  court  might  say,  it  is  noi 
materia],  but  it  must  be  read  before  they  cam 
demur :  so  that  the  question,  Whether  it  n 
evidence ?  must  come  afterwards;  and  if  yoa 
go  according  to  the  rigour  of  law,  with  submis* 
sion,  it  most  be  read. 

Mr.  Price,  I  did  not  design  to  trouble  yna 
in  this  matter :  but  the  doctrine  laid  down  by 
some  men  of  our  gown,  surpriaes  roe :  it  u 
only  an  argument,  Uiat  tlie  court  below  ought 
to  admit  this  paper  to  be  read  ;  but  there  is  no 
precedent  shewed,  nor  convincing  reason  given, 
why  the  courts  should  admit  it.  The  qoestinn 
is,  ^Vhether  an  information  taken  before  no- 
tice of  peace,  ought  to  be  read  here  ?  If  it  be 
to  introduce  a  new  law,  and  make  a  new  crime, 
then  you  make  a  new  sort  of  evidence ;  bat  if 
this  be  a  crime  against  an  act  of  pariiament,  or 
law  in  being,  then  you  must  take  the  evklenee 
the  law  doth  afford  yon,  iu  the  nature  of  tfaa 
crime.  The  charge  here  is  a  charge  of  Irea^n 
against  a  known  law :  but  the  great  arguineal 
is,  this  is  an  extraordinary  offence ;  that  sir  J, 
Fenwick,  or  his  lady,  had  a  hand  in  sending 
Gooflman  away :  it  is  a  mistake ;  and  offermg 
one  thing  that  in  ni>t  evidence,  bringa  us  to 
another  ;  the  evidence  of  Clancy's  tampering 
witli  him  :  captain  Porter  does  not  say,  that  sir 
J.  F.  employed  him ;  only  that  Clancy  sMd  so» 


607] 


8  WILLIAM  III.         Proceedings  against  Sir  JoM  fentoick^         ffiOl 


which  ift  hut  a  hearsay,  and  that  is  no  etidence, 
unless  Clancy  iras  at  the  bar,  and  would  say 
it.  In  tlie  next  place,  it  is  said,  That  there 
was  a  tamperinfl^  by  a  solicitnr :  what  is  that  ? 
Is  it  not  naturalfor  a  solicitor  to  say,  Is  there 
any  objections  to  such  a  witness?  Is  it  not 
natural  for  him  to  lessen  his  reputation  if  he 
can?  Now  you  would  have  a  copy  of  an  in- 
formation to  be  evidence.  It  is  said  it  is  tanta- 
mount: if  so,  then  the  courts  of  Westminster 
ought  to  intermeddle  with  it,  and  not  this 
house.  A  noble  lord  mentioned  to  you  the 
law  of  nature,  the  law  of  nations,  and  the  law 
of  God ;  but  he  forgot  one  law,  which  was 
most  ihaterial,  and  that  is  martial  law ;  which 
if  he  had  said,  does  justify  the  fnkin^  away  a 
man*s  life  u^nm  extraordinary  evideucc,  he  had 
said  right 

Mr.  Speaker,  Tlie  question  is  this,  That  the 
information  of  Cordel  Goodman,  taken  upon 
oath,  S4th  of  April,  1695,  be  read. 

Which  question  being  put,  the  house  divid- 
ed. Yeas,  218.  Noes,  145.  So  it  passed  in 
the  affirmative;  and  sir  John  Kemvick,  aud 
tlic  counsel  and  solicitors  on  both  sides,  were 
called  in  again. 

Mr.  Speaker,  Gentlemen,  since  you  with- 
drew, the  house  have  considered  of  the  matter 
upon  whfcli  you  did  withdraw,  and  they  lia%-e 
thought  tit,  that  the  information  of  Cordtl 
CSoodman,  taken  upon  oath  bcibre  Mr.  Vernon, 
aith  of  April,  1690,  be  read.— -Clerk,  read  it. 

Clerk  of  the  House  of  Commons  reads. 

This  is  signed,  Cordel  Gomlman,  and  sworn 
24th  of  April,  1696,  before  James  Vernon. 

"  About  two  years  since,  i»r  belter,  I  umlor- 
stood  col.  Parker  was  resident  here,  in  ontiT  to 
engage  several  people  for  the  ber\  ice  of  king 
James ;  and  capt.  Porter  told  me,  lie  liati  a 
mind  to  see  me,  which  he  accor(!iun:Iy  did 


and  a  roll  to  march,  to  rendezToat  a^n  occa 
sion  ;  and  indeed  I  did  not  much  press  it,  be 
cause  I  did  gather  there  were  a  ^freat  nani 
concerned  ;  aud  at  this  time  capt.  Porter  and  i 
took  a  house  in  the  Chase,  with  stables  am 
barns,  tit  for  holding  horses,  and  as  a  fit  place 
to  meet,  upon  orders  given  us  to  mardv,  wfaicfa 
were  then  daily  expected. 

*'  Some  time  after  this  col.  Parker  was  takes, 
and  being  committed  to  the  Tower,  he  niKfe 
his  escape ;  and  at)er  that  I  saw  him,  and  thco 
he  toM  me,  he  would  be  sure  to  cormpood 
with  me  and  Porter ;  and  I  should  receive  bis 
letters  of  Mr.  Cbamock  or  Mr.  Johnson,  and  be 
accordingly  did;  and  in  his  letters  he  still  t^n 
us  hopes,  and  said,  he  would  certamly  send  n 
notice  to  be  in  readiness  lime  enuuij^b,  to  be 
serviceable  to  the  design  of  the  invaiuou. 

«*  The  last  letters  I  received  fn»m  Pirkfr 
gave  me  advice.  That  he  doubted  not,  but  the 
cause  would  come  to  a  hearing  at  this  Eaitrr 
term ;  and  he  should  write  no  more,  bnt  bring 
the  orilers  hiuiself :  Upon  which  I  ^tuA  to 
Charuock,  and  he  told  me  he  did  expect  bini 
here  in  a  short  time:  But  always,  or  dhkI 
commonly,  in  his  letters,  he  told  me,  ftr  a 
sign,  That  when  the  Toulon  fleet  should  job 
the  Brest  fleet,  I  mtscht  certainly  depend,  diat 
we  should  be  invaded  here. 

**  During  tlicse  transactions,  capt.  PMfr 
com;dained,  that  something  he  was  sendionf  tb 
I^ncashire  had  miscarried  ;  he  desired  me  Ik 
set  by  two  boxes,  which  I  lookeil  not  into,  but 
supposed  them  to  he  arms,  and  I  did  scttbem 
hy  tor  him  :  I  had  not  hoiin^ht  any  arm«,  bnt 
luid  li(*Rpoko  some  of  one  Perry,  a  c^'UDsmitb, 
Mho  said,  I  should  liuve  them  at  a  wifL» 
wariiiiii*". 

**  After  Parker's  having  made  his  escsp*. 
and  gotling  into  France,  l^Ir.  Charnock  ctm* 
to  me,  some  time  hefore  the  king's  fl^oinj  ti 
FLindors,  and  said,  he  had  sometliing  to  pro- 


where  he  told  me,  there  would  be  an  iuvasion,  I  nose  to  nic  ;   and  dosirf»d  me  to  ijo  alon«jf  wilfc 


him,  which  1  diil ;  and  he  brought  me  to  ooe 
to^'it  he  had  commission  to  levy  men,  and  j  iMi*.  Waugh,  who  said,  he  expecitMl  a  r<»mini<' 
.nt  out  subordinate  commissions  fur  a  iv;j[i-  |  simi  from  kinqf  Jani's  to  seize  kinjr  ^Viinam; 

:icci)ri!iug!y  wc  went  to  the  Chocolate  Hon* 
ill  Si.  James's  stn?et;  and  after  some  discoorte 


and  king  James  would  he  restored ;  and  that  in 

order      •   •     •     ■ 

to  grant 

ment  of  horse,  and  did  ask  if  I   would  at'ccjit 


of  one,  which  1  acconlingly  did.     lie  likcui>e 

8aid>  he  would  see  me  as  often  as  he  could  ;  ,  abour  the  coniniission  he  said  he  expected,  ^ 


ajtpoitited  another  meeting  at  that  place,  ta^ 
aiijourned  from  thence  to  my  house  in  Brown- 
low  street,  whore  was  present,  Mr.  Charnock. 
Mr.  I'orter,  Mr.  \Vani;h,  nnjor  Matthewi. 
and  Mr.  l)oiiela«rh.  The  subject  of  oar  di^ 
course,  was,  about  the  snrpri/in2r  and  mUB^ 

, --.^^.--, ,,  —  ,     the  kin^,  as  ho  came  from  Richmond;  iij 

WilheringUui,  to  be  lieutenant  |  after  tevcral  ways  proposed  to  that  pnqioie^l 

I  particularly  asked,  <{uppose  that  the  king  wen 
in  our  power,  what  then  ?  For  we  ougbt  • 
have  regard  to  some  euil  or  other  in  such  • 
underiakitii* ;  for  1  was  not  willing  to  offer  ifl 
thing  to  his  person.  Mr.  Waiigh  sakly  •^ 
might  have  a  coac!],  and  convey  him  Mfl^> 
and  he  said,  he  was  assured  of  a  fort  to  tew>^ 
livercfi  to  him,  and  put  into  his  hands  (f^^^. 
best  of  my  reniemlirance  it  ivaa  Det!)*  wH* 
miglit  give  us  shellcr  tUl  we  might  find  upp<* 


and  that  capt.  Porter  and  I  should  recuivc  di 
r«H;tions  from  him,  from  time  to  time,  upon 
several  meetings;  and  having  received  my 
commission,  I  understood  wiial  captains  were 
to  be  in  the  n'giment ;  which  were  captain 
Porter,  sir  U  illiani  Parky ns,  Mr.  Chariiock, 
sir  Hugh  Smilhson,  Mr.  ilig^ens,  and  myself; 
and  one  Mr 
colonel. 

*'  The  commissions  were  to  be  blank  when 
they  were  to  be  delivered,  and  to  be  filled  up 
by  the  captains,  ^Vc.  I  then  came  acquainted 
With  Mr.  Charnock  and  sir  >V .  l*drKyns  ;  and 
by  them  and  Parker,  capt.  Porter  anrl  I  were 
informed,  that  there  was  a  great  body  of  horse 
to  be  ready  in  the  norlh ;  but  thou^rh  1  asked, 
yet  they  never  named  any  persons  to  me,  but 
said,  it  was  sufficient,  1  should  receive  orders, 


upon  a  BiU  of  Attainder. 

0  carrj  him  ioto  Fruce  by  shipping. 
confcaft,  I  did  see  very  little  probability 
:  he  Saul ;  neither  did  I  believe  that  he 
Boeive  aDV  such  commission,  as  he  said 
«led:  (For  about  two  years  since,  I 
er  I  saw  sir  George  Barcley,  with  col. 
D,  and  Mr.  Porter ;  sir  George  was  then 
rer  to  Franoe,  and  it  was  the  only  time 
r  f  saw  him ;  and  then  captain  Porter 
lid  desire,  that  if  king  James  desired 
:h  thing  as  seizing  kmg  William,  he 
end  over,  a  comipission,  and  a  panlon 
a  case  of  an  accident ;  which  message 
ge  carried  over,  and  king  James  reins- 
lend  it.).  However,  we  had  another 
'  after  that  at  my  house,  by  which 
!  sai«l,  he  would  shew  us  tlie  commis- 
id  facilitate  the  design;  it  was  at  a 
ehind  the  Temple,  where  the  aforesaid 
y  met,  and  Mr.  Waugb  brought  with 

1  Mr.  Hays,  who,  he  said,  could  fUr- 
with  a  ship  which  would  be  ready  to 

t  ns  after  we  had  seized  the  king ;  but 
icourse  with  Mr.  Hays  we  found  that 
jauds  were  so  exorbitant,  and  not  in 
ly  of  being  complied  withal ;  aud  be- 
>  order  nor  commission  being  produced, 

desist  then;  for  captain  Porter  and 
f  atthews,  and  I,  did  declare,  we  would 
Idle  without  sight  of  the  commission. 
is  capt.  Porter  and  I  talked  of  having  a 
ind  sending  Le  Rue  and  Cbarnock 
We  met  at  the  Fountain  bv  the. 
Gate,  and  sir  W .  Parkyns  was  there ; 
ing  the  time  of  our  being  there,  one 
ir  William  out,  and  sir  William  called 
er,  who  came  in,  and  said,  there  was  a 
ail  that  could  help  us  in  this  affair; 

was  I  know  not ;  1  believe  captain 
nay,  for  I  saw  him  not :  But  all  this 
if'/icctual,  for  the  king  went  away  sud- 
Jid  no  commission  ever  came.  And 
rs  from  France,  I  understood  king 
ras  angry  tliat  they  used  his  name  to 

had  not  promised  ;  and  Porter  and  1 
rer,  by  his  order,  the  truth  of  tlie  whole 

ne  time  after  this,  captain  Porter,  the 
iylesbury,  sir  John  Freind,  sir  Wm. 
I,  and  sir  J.  Fen  wick,  and  others,  met 
ending  over  some  pro|M)sals  to  king 
to  expedite  an  invasion  ;  and  likewise 
Porter  said,  it  was  proper  1  should  be 
4-  he  had  engaged  for  me.  I  tuid  him 
I  come ;  and  at  the  King's- Head  in 
lall-street,  1  found  the  pei-sons  above- 
together  with  my  lord  Montgomery, 
Mr.  Cook. 
e  effect  of  their  consultation  was,  the 

Mr.  Chamock  with  a  message  to  this 
;  that  if  the  king  of  France  could  spare 
umber  of  foot,  and  so  many  dragoons, 
ng  to  about  12  or  15,000,  or  there- 
I  all,  that  then  a|Mn  notice  given,  that 
irtieular  man  there  was  to  furnish  such 
ff  of  hone,  some  more,  somefess,  to 
f  to  socGour  tlie  forces  from  Prance 

Xfll. 


A.D.  1606. 


[610 


when  landed.  Mr.  Chamock  went  and  re- 
turned with,  a  refusal,  that  forces  could  not  be 
spared :  sir  John  Freind  and  my  lord  Aylesbury 
were  of  opinion,  that  if  king  James  would  Ten- 
ture  hither  with  some  small  retinue,  he  had 
friends  enough  to  appear  for  him,  without  any 
foreign  forces ;  but  that  was  held  in  doubt. 

"  1  use<l  afterwards  to  see  my  lord  Ayles<> 
bury ;  T  always  asked,  what  news  he  heard  ? 
He  said,  when  he  received  any  orders,  be 
should  know ;  for  he  having  been  in  France 
([as  he  did  not  deny)  I  supposed  him  not  to  be 
ignorant  of  what  was  intendeJ. 

"  And  to  the  better  facilitating  an  invasion, 
sir  J.  Fenwick  useil  to  send  over  a  list  of  the 
forces,  and  how  they  were  quartered,  and  what 
were  in  garrison,  and  what  otherways  disposed 
of:  be  having  made  a  mistake  in  the  account, 
Parker  did  by  letter  desire  me  to  try  if  1  could 
procure  such  an  account ;  which  t  accordingly 
did  of  one  Gibson,  a  clerk  in  the  office,  and 
sent  it  over  frequently. 

**  After  the  escape  of  Parker  out  of  the 
Tower,  sir  J.  Fenwick,  when  I  asked  him  how 
he  got  away,  and  how  much  money  was  given  'f 
he  said,  200/.  promised,  and  300/.  given ;  for 
when  a  person  came  in  and  told  him  ho  had 
brought  him  liberty,  aud  M'as  to  have  SoO/.  he 
replieil.  You  shall  have  300/.  and  it  was  made 
good  to  him  afterwards. 

"  CoRDEL  Goodman." 

**  Much  abont  the  same  time,  I  used  now 
and  then,  with  captain  Porter,  to  be  with  sir 
John  Fenwick,  and  it  was  agret^d,  that  if  Parker 
should  not  bring  us  timely  ordet^,  that  what 
forces  we  c«)nld  brin{j  in,  (viz.  Porter  and  I) 
we  were  to  take  orders  from  sir  John  Fenwick ; 
this  we  offered  him,  and  he  kindly  accepted : 
and  then  he  said,  that  he  believed  most  of 
my  lord  Oxford's  regiment  would  go  to  king 
James;  when  1  told  Mr.  Paradise  had  pro- 
mised to  bring  in  seven  or  eight  to  me,  aud  that 
Mr.  Aynsworth  was  to  bring  in  twenty,  and 
Parker  had  said,  if  I  made  it  thirty,  it  was  suffi- 
cient for  me.  As  to  the  keeping  the  horses,  sir 
John  said,  it  was  dangerous,  and  they  would 
certainly  be  seized ;  but  the  best  way  was  to 
have  a  list  of  what  horses  were  in  and  about 
the  London  stables.  Captain  Pbrter  and  I  sent 
accordingly  to  view  the  stables.     1  sent  Mr. 

Reyhough,  and  Captain  Porter  sent Cran* 

bom,  and  they  took  an  account 

«*  CoRDEL  Goodman." 

Jurat.  24  April,  169G. 

Coram  me,  J  a.  Vernon. 

8erj.  Gould,  Now,  Mr.  Speaker,  if  you 
please,  we  will  call  some  of  the  grand  jury  that 
will  give  you  an  account  what  evidence  they 
found  the  hill  uiran. — Mr.  Graced  ne,  you  were 
one  of  tb(.'  iti-aml  jury  that  found  this  bill? 

Graciiitt.    Yes,  8ir. 

Sir  T.  I'oTij/s.  This  is  so  far  from  being  evi- 
dence, that  I  think  it  is  the  oath  of  tlie  grand 
jury,  that  they  shall  not  disclose  or  discover 
the  king's  secrets.  The  bill  of  indictment  is 
hut  an  accusation.    A  bill  of  indictment  cannot 


8  WILLIAM  IIL 


611] 

be  gfiTeD  10  e? idenoe  against  a  man  for  the  leait 
crime  aoever.  it  cannot  be  gifen-in  endenoe 
to  he  credited,  brcaase  it  it  but  an  accusation ; 
and  by  consequence,  whatever  any  witness 
says  at  that  time  can  go  no  farther.  When  a 
pereon  comes  upon  bis  trial,  they  cannot  so 
much  as  resort  to  any  thing  Uiat  is  sworn  be* 
fare  the  grand  jury,  nor  make  use  of  it. 

8ir  B.  Shower,  We  humbly  oppose  this  evi- 
denoe ;  because  the  gentlemen  can  give  no  in- 
stance in  their  reading  or  observation,  that  the 
tostimooy  that  hath  been  giren  before  a  grand- 
jurv,  bath  been  giren  in  evidence  to  a  petit  jury : 
and  it  is  part  of  the  oath  of  a  grand  juryman, 
that  it  should  not  be  disclosed.  We  do  not  say, 
it  will  bind  your  House ;  but  I  hope  it  will  be 
evidence  to  you,  that  it  is  not  agreeable  to  the 
rules  of  law. 

Membert,    Go  on,  go  on. 

Mr.  Speaker,  Mr.  Gracedue,  will  you  give 
the  House  an  account,  who  were  the  witnesses 
before  you  upon  finding  the  bill  P 

Graccdne,  The  witnesses  before  us  Mxre 
captain  Porter  and  Mr.  Goodman. 

Mr.  Speaker,  Can  yon  remember  so  well,  as 
to  giie  an  account  to  this  House  of  what  eri- 
dence  Mr.  Goodman  gave  ? 

Gracedue,  Yes,  I  think  I  can.  When  he 
came  before  us,  he  told  us,  that  he  was  at  a 
raeetiug  at  the  King's  head  in  Leadenball 
street,  where  there  was  sir  J.  iVnwick,  my 
lord  Montgomery,  capt.  Porter,  Mr.  Chamock 
and  otiiers  ;  and  the  business  was  to  send  Mr. 
Cbamock  over  to  France,  to  procure  men  lo 
invade  thiH  kingdom ;  and  8,000  foot,  and  2,000 
horse  was  pro{)osed.  Ifo  told  us,  the  result  of 
that  consult  was,  that  if  France  would  supply 
8,000  loot  and  3,000  horse,  it  would  be  a  su(H- 
cient  power  to  come  over  ;  and  that  they  would 
supply  2,000  horse  oiuong  themselves.  Upon 
which  Charnock  replied,  gentlemen,  you  send 
meovcrnpon  uucertainiies;  you  say,  you  wil!  _ 

supply  2,UU0  horse;  but  uuicss  you  give  me-  Cook:  that  is  not  admitted  in  the  courts  beknr; 

fur  according  lo  that  method,  the  tiiul  of  one  is 
lilt}  company  woiihl  l>e  the  tiial  of  ail  the  rest. 
This  wsLS  ueVer  allowed  in  any  other  case,  tsil 
I  hope  you  will  notallow  it  Itctv. 

8ir  B.Hfiou^cr,  The  indictment  is,  that  they  diJ 
consult  together,  but  their  crimes  arc  several ; 


Proceedings  against  Sir  John  Femmck^        [613 

street ;  and  Cbaraock  and  the  icat  Ikcra  dki 
consult  how  to  bring  ia  their  oM  wstcr ;  aate 
Chamock,  that  they  agieed  to  send  him  ever 
to  king  James,  to  know  whether  the  FVaaeh 
kingcouM  fnmbh  then  witfi  8/Xiefcotaed 
3,000  horse,  and  that  they  woaM  eiidaavoiir  to 
meet  him  with  S,000  horse.  Hereupon  Cbar- 
nock  (Goodman  said)  put  it  Ce  eveiy  nan  sf 
them,  to  know  if  they  were  ell  of  one  wiad  ? 
And  they  all  said  they  were.  This  he  did 
prove,  and  this  ia  alll  oan  rememb^. 

Seij.  LoveL  We  have  many  more  to  the 
same  purpose,  if  the  House  thidk  fit  to  hnr 
them. — Members.  No,  no. 

Serf.  Got£/(f.  We  will  go  tbu»  mueh  further ; 
that  u^  the  trial  of  Mr.  Cook,  wheren  there 
was  evidence  given  bv  this  gentlenMn,  and  is 
that  this  gentleman  tnat  is  uie  prisoner  at  (he 
bar  was  particulariy  named  to  be  oOBeerad, 
we  will  call  them  that  were  present  there  at  the 
giving  of  the  evidence :  but  first,  we  desire  tt 
read  the  record  of  Cook's  conviction 

Thereupon  amotion  was  made  for  the  coowl 
to  withdraw ;  and  being  witlidrawn ,  a  molioB  wm 
made  f  brcandles,  which  passed  in  the  affinmlife 
without  a  division,  in  regard  it  being  daik  with- 
out candles,  there  could  be  no  motion  madeftr. 
adjourning  the  debate,  or  remanding  the  pi- 
sonei'. 

Afterwanls  a  motion  being  made  for  adjem- 
ing  tlie  HoiMe  till  to  morrow  morning,  the 
house  divided.  Ayes,  141.  Noes,  103.  Aid 
so  it  passed  in  the  ne«;;ative  ;  and  sir  J.  Fci- 
wick,  and  the  couiir^el  and  solicitors,  woe 
bronglit  in  again  to  thfibar. 

Mr.  Speaker.  ]\ir.  Seijrant  Gould,  the  hit 
evidence  you  were  ahom  to  offer  was,  thatef 
the  record  of  Mr.  Cook. 

Sir  r.  Poni/s,  Mr.  Speaker,  wcoppo&ethit 
l»ein;;^  o^ur€^d  iiscvidcnec;  as  I  understand  il. 
ihey  are  going  to  give  in  evidence  against ar 
John  Fenwick  what  was  sworn  against  3lr. 


some  assurance,  i  cannot,  nor  will  I  go.  And 
tlie  question  was  proposed  to  all  of  them,  if 
they  would  make  good  their  proportion  ;  and 
tliey  prouiiswl  sinirly.  Wuys  I,  did  sir  J.  Feii- 
wick  promise?  And  he  sM,  Yes.    Says  I, 

did  my  loid  3]oni!xnme) y  ?  And  he  said,*  Yes.     . ^>. ,  .,- ,  — - 

lie  was  atiked,  who  eUu  ?  But,  says  he,  it  is  if  they  had  l>een  meutioni*d  in  one  indictment, 

not  a  question  for  you  to  ask  us;  and  tor  that  i  and  one  hail  been  tried  at  one  time,  and  the 

lie  referred  himself  to  me  :  lor,  he  said,  he  was  |  other  at  anothei%  it  would  not  have  been  allowed 

not  bound  to  answer  further,  having  proved  the  j  that  they  should  gi\e  in  evidence  agaiastdie 

indictment .                                                         |  one,  what  had  been  sworn  against  the  other ; 

Serj.  Luvei.  Wc  desire  Mr.  Joshua  Meade  |  for  though  their  charge  is  by  the  same  witim 

may  be  asketl  to  tho  like  purpose.     Were  you  '  and  lor  a  fact  done  at  the'samc  time,  yef  the 

Against  sir  I  defence  of  the  parties  may  be  different ;  and  it 


one  of  the  jury  that  found  the  hill  against 
Jolm  Fen  wick  r—iVr«f/€*.  Yes. 

Mr.  Speaker.  I*ray,  who  were  the  witnsses 
before  you  upon  findingof  the  Bill  1' 

Mtade.  There  was  captain  Porter,  and  Mr. 
Goodnian,  Sir. 

Mr.  Speaker.  Can  you  remember  what  Mr. 
GoedmiMi  lestitird  then  ? 

Hieude.  Mr.  Goodman  did  then  testify,  that 
air  John  Fenwick,  my  lord  Montgomerv,  &c. 
at  the  King's  Head  tavern  in  Leaifeohall 


J  parties ^. , 

cannot  be  ex{iected  that  Ve,  on  the  belialf  ei 
sir  John  Fenwick,  are  prepared  to  give  aa  an- 
swer, in  resrard  of  any  thing  that  was  swfliB 
agninct  Mr.  (.-ook. 

Mr.  Speaker.  Mr.  Serjeant  Gould,  you  hatf 
the  exf<  ption. 

Scij.  Gwtld.  We  ho|>e  in  this  case  wcshil 

go  on  with  our  evidence,  as  offered  and  ii*" 

posed  to  this  House.    These  gentleroeB  Mf« 

made  their  objections,  asif  they  were  hehMvii 

4 


tI3] 


upon  a  BiU  ftfAtkiinder* 


leiiire/Uir  ooorts;  but  we  are  here  dow  befbrp 
mi  in  a  parliamentary  way ;  and  what  is  that 
rhich btmga  us  hcre^  but  beoauaetherc  is  a  wit- 
cfls  wtthHrawn  by  artifioe,  so  that  we  cannot  pro- 
Ince  liiiD  ?  And  tberefora  we  come,  and  ham- 
ily  a|ip1y  oiirselres  to  this  honourable  House. 
Sow,  Sir,  you  are  judg^es  of  the  raethoii  oF 
NMiin^  at  the  truth,  and  supplying  that  defect: 
if  we  conkl  produce  him,  .tMre  n-ould  be  an 
end  of  the  matter ;  but  in  this  case  we  are  in 
ilie  judgineut  of  this  honourable  house,  whe- 
ther we  ahall  not  gire  sneh  evidence  as  he 
kith  giren  upon  his  oatli,  though  in  other  oases 
it iiB(.t  admitted? 

^.  Lavei,  When  we  produce  the  record  of 
CBtfictm,  we  only  produced  it  to  shew  you 
tbeie  waa  such  a  tnal ;  and  by  that  means  to  let 
la  in,  to  ahcw  you  what  was  sworn  by  Mr. 
I  at  that  trial. 


Then  upon  the  motion  of  Col.  Granville  and 
5lrR.Templ6,  sir  J.  Fenwick,  and  the  coun- 
sd  and  solicitors,  withdrew. 

Sr  R.  Temple.  If  I  did  not  believe  what  is 
■MTollfTefl,  IS  what  was  never  offered  before, 
aid  of  dangerous  consequence  to  every  one 
berei  I  would  not  have  troubled  you  at  this 
tiaeof  wilt.  There  has  nothing  been  offered 
lUt  this  Tiath  ever  been  done.  They  say,  it 
iMlh  not  been  done  in  inferior  couns :  i>ray, 
kt  as  see  if  e^-er  it  hath  been  done  in  parlia* 
■nt,  tliat  what  was  given  in  evidence  at 
tudifr  trial,  should  be  given  in  evidence 
^pBst  aooilier  iieraon  here,  when  this  penmi 
aai  not  by,  and  bail  no  0|)portnnity  to  defend 
MMdf  against  it ;  1  am  sure  it  was  never  done 
yet 

Kr  r.  MompeMsoH,    This  gentleman  com- 
lins  this  waa  never  done.     When  the  duke 
«f  Moannouth  was  impeached,  the  bill  wi 
nti  three  times  in  one  day,  and  that  gentli 
■ia  moved  for  the  impeachment. 


ttr  R.  Tempie.  Here  were  three  witnesses 
tbn  did  declare  they  saw  him  in  actual  rebel- 
fiia,  at  the  bead  of  an  army  ;  but  I  hope  1  am 
Mtta  aasiver  for  all  the  proceedings  tnen. 

Cel.  Crmmville.  When  I  saw  them  g[oing  on 
to  Biake  use  of  that  as  evidence,  whicli  was 
■ever  allowed  in  any  court,  1  thought  1  ought 
ts  «ove  for  them  to  withdraw.  I  shall  not 
five  my  consent  to  have  it  read,  until  some- 
hriy  satisfies  me  it  is  good  evidence  against 
<iri.  Fenwirk.  1  cannot  see  how  you  can 
I'wt  this  for  evidence:  are  we  to  read  all 
Ike  trials  that  are  upon  this  ploti*  therefore 
Idenre  you  will  bid  them  produce  what  is  evi« 
^Bsee against  sir  J.  Fenwick,  and  not  to  trifle 
*idiyud. 

Sir  r.  Litlleion,  If  you  proceed  in  this 
maoacr,  1  know  mit  when  you  will  havo  done. 
Tbey  do  not  tell  you,  they  iirodnce  this  a^  evi- 
^Moe  against  sir'Jiihn  Fenwick  4  nor  do  I  take 
Ihiitobe  the  only  evklenceto  prove  him  gi'ilty. 
tf  nocbing  but  exact  proof  wouM  have  satis - 
fcd,  this  SUI  wouhl  not  have  been  brought  in : 
btt  ihii  is  to  make  as  good  proof  as  the  nature 
if  iha  tUng  will  bear.  You  have  heard  several 


A.  D.  1696.  -  [GU 

things  before,  in  relation  to  Gooddaan,  that 
poasibly  might  strictly  be  no  more  evidence 
against  sir  J.  Fenwick  than  this  ;  as  GihmI- 
niairs  being  withdrawn.  First,  tliey  offered  to 
prove  that  he  was  gone ;  that  it  was  suspicious 
that  sir  J.  Fenwick  was  privy  to  his  pnng : 
why  did  you  admit  the  eviilence  of  what  he 
said  to  tlie  grand-jury  ?  What  is  thL^  but  to 
give  evidence  of  what  he  ^id  to  the  petit  jury, 
wherein  the  grand -jury  and  petii-jury  have 
both  believed  him? 

.^Ir.  Harley.  I  think  if  you  had  couie  to 
one  determination  before  you  had  entered  upott 
Ihiti  matter,  yon  had  very  much  shtnlcned 
your  business ;  that  is,  that  ym\  would  not  ex- 
|>ect  such  proof  as  is  nccediary  at  law ;  and 
it  may  be,  if  you  would  come  to  it  now,  it 
would  save  you  time :  for  I  find  bv  the  coun- 
sel, that  what  is  swoni  against  another  man,  at 
another  time,  would  not  be  evidence  at  law 
against  the  prisoner ;  anil  1  believe  if  he  should 
except  to  a  jury- man,  because  he  was  u|Km 
Cook's  trial,  it  would  not  be  albwed  as  a  good 
exception,  and  he  would  be  told,  he  was  no  way 
concerneil  in  auother*s  trial. 

Mr.  i7o&;r.  It  is  a  strange  sort  of  o^idence 
that  is  uflTored  lierc,  and  it  is  a  strange  way  of 
hriniring  it  in.  The  lionse  made  ntithing  lately 
of  hear-say,  and  yet  now  hear-say  must  he 
taken  fur  evidence.  I  have  hcanl  that  the 
grand-jury  take  au  oath  not  to  discover  what 
wassworu  liefbrethem;  this,  since  the  grand- 
jury  have  sul^ectcd  tliemselves  to  (yet  yon 
have  brousrhtthem  here  as  witnesses  to  give  an 
account  of^what  was  sworn  before  them,  which 
I  am  afraid  is  a  breach  of  their  oath),  it  shall 
make  me  give  less  credit  to  what  they  say. 
We  are  here  to  attaint  a  man,  but  we  must  not 
talk  of  proof;  that  is  a  strange  thing!  I  am 
sure,  if  y4m  do  not  find  it  with  proof,  it  wonid 
he  against  proof.  Shall  1  be  f  lain  with  you  f 
I  question,  if  this  house  had  heard  what  Good- 
num  sworn  at  that  trial,  and  what  was  alledged 
against  it,  wliether  this  house  would  have  been 
of  that  jury's  mind :  for  I  have  heard  that  two 
or  three  did  swear,  he  was  not  at  the  place  at 
the  time  he  swoi-e  be  was,  as  plain  as  a  negative 
could  be  sworn. 

Mr.  Harcourt.  If  you  please  to  kl  the 
king's  counsel  go  on  upon  this,  yon  will  save  a 
great  deal  of  time,  and  prevent  any  exception 
to  any  evidence  afterwards :  for  it  is  not  in  the 

r»wer  of  roan  to  offer  any  thing  m<»re  absurd, 
don't  believe  that  ever  any  man  heard  of  Kuch 
a  thing  offered,  that  a  recoril  should  he  given  in 
evidence  against  a  man,  that  is  no  manner  of 
|iarty  to  the  record  :  1  am  siire  never  any  such 
thing  was  attempted  before.  As  for  the  other 
things,  you  had  something  offered  that  inaile 
it  seem  doubtful  how  fsr  3'ou  should  gi\e  credit 
to  them.  Upon  those  matters,  tlie  counsel  at 
the  bar  for  tlie  king  told  you,  that  there  waa 
some  pretence  that  it  was  law,  and  practised 
below,  and  a  book  was  pruflnced  to  justify  it : 
but  in  this  case,  if  there  be  book,  practice,  pre- 
cedent, or  any  thing  to  justify  it,  1  will  sit 
down.    The  anawer  made  it  ten  tiroca  worse : 


615] 


8  WILLIAM  IIL         Proceedings  againgt  Sir  John  Fenwick,         [616 


the  gtentlemui  said,  he  would  DOt  have  the 
reconl  read,  but  upon  that  record  to  prove  what 
waa  aworn  at  the  trial :  why,  does  that  concern 
any  penon  in  the  world  but  Cook  ? 

Lord  CuUt,  If  the  worthy  geutleman  that 
spake  last  had  made  out  all  his  propositions 
with  clearness,  equal  to  the  assurance  with 
which  he  asserted  them,  they  would  have  more 
weigfht:  but  I  will  say,  that  which  he  hath  as- 
serted does  not  ap|»car  to  me  so.  I  take  (his  j 
to  be  the  same  thuig',  in  some  measure,  debated 
over  again.  It  hath  been  told  you,  that  this 
house  are  to  g-ive  their  iudf^ment  in  a  matter  of 
crcat  importance ;  and  then^ore  I  think  it  is 
lit  that  all  the  whole  matter  should  be  laid  be- 
fore them  ;  when  that  is  done,  they  only  are 
the  judges  of  what  weight  it  is. 

Mr.  Sloane.  1  go  along  with  those  gentle- 
men, that  this  is  no  sort  of  evidence  against  sir 
J.  Fenwick :  but  our  question  is  about  a  witness 
that  is  witlidrawn,  and  to  know  what  ho  said, 
and  how  he  was  believed  when  he  was  here. 
How  he  is  gone,  we  have  seen  already ;  snd 
therefore  thi>u^h  I  think  the  venljct  against 
Cook,  nor  nothmg  of  that  can  he  given  in  evi- 
dence again&t  sir  John  Fenwick;  yet  if  lie 
bath,  withdrawn  the  witness,  and  the  credit  of 
him  is  at  stake,  as  you  have  heard  evidence  of 
what  he  said  upon  oath  before  the  trial  came 
on,  by  the  same  reasou  you  may  hear  what 
he  said  at  the  trial. 

Mr.  Pelkum,  I  think  it  would  shorten  our 
debates,  if  we  were  tnily  satisfied  about  what 
we  are  a- doing,  that  wc  are  trying  sir  John 
Fenwick,  as  we  aro  told  at  tho  bar  ;  he  called 
it  a  trial,  and  it  is  a  trinl.  1  must  (X)nfcss  1  was 
in  hopes  I  should  never  sit  in  tlm  House  of 
Commons  to  try  any  body  ;  i  diil  not  think  it 
the  business  oi'  us  ;  if  I  imd,  I  would  uot  have 
come  hither :  but  since  we  are  come  into  it, 
is  any  thuig  nvtre  natural,  than  to  examine 
whether  thi^  » ••  ■  '..nr*?  be  proper,  or  such  evi- 
dence asaii\  (^  '■■r  v.culd  allow  of? 

Sir  If.  \Viliia9M.  1  8upi>ose  there  is  no 
gentleman  of  our  profession  that  hath  seen  any 
record,  will  say,  that  this  jiiith  i>een  oflered  in 
any  court  of  law:  1  bfheve,  if  he  was  upon 
his  trial  upon  the  iiiiliirhncut,  nobody  will 
say  it  «iouid  be  read  against  him.  Let  us  con- 
sider how  many  judgments,  that  have  been 
given  hiistily  in  the  late  i-eigns,  have  lieen  re- 
versal. What  is  the  reason  thnt  is  given  (or 
it  ?  It  is  for  receiving  that  for  evidence,  which 
was  not  evidence  in  the  law :  Your  bill  Mi' 
right  takes  notice  of  it. 

Sol.  Gen.  I  did  not  think  this  matter  would 
have  held  you  a  quarter  of  an  hour ;  but  if 
gentlemen  uill  debute  u|H)n  the  same  luattpr 
that  hath  been  over-ndcil  twice  More,  all  that 
is  to  be  fn-oved  by  this  record  is,  that  one  I'eirr 
Cook  was  attainted  for  high-tivas'in :  if  the 
counsel  on  the  other  side  would  have  owntvl 
Peter  CiHik  to  have  been  attaintei),  ynu  had 
not  been  troubled  to  have  the  reconl  brought 
to  the  talde.  But  as  to  what  they  say,  that  sir 
John  Fenwick  was  no  party  t(»  tlie  record,  and 
therefore  it  can  be  no  erideuoe  against  him,  I 


suppose  it  woald  be  evidence  fbr  hind.    Sop- 
pose  Goodman  had  sworn  be  never  had  been 
at  the  Riog's-head- tavern,  would  not  the  pri« 
'soner  have  produced  a  witness  to  prove  whit 
he  had  sworn  ?  Thcu  I  wouM  put  you  in  miad 
of  a  case,  because  there  is  a  nicety  In  this  mat- 
ter without  any  reason ;  it  ivas  in  the  trial  of 
alderman  Cornish ;    he  was  indicted  and  tried, 
and  the  great  fact  was  in  the  houee  of  one 
Shephcnl ;    there  was  a  witness  against  him, 
one  Riimsey,  who  swore,  &c.  says  Mr.  Cor- 
nish, lie  was  a  witness  at  my  lord  Konel'i 
trial,  and  he  did  not  name  me  to  be  one ;  io4 
it  went  so  for,  that  when  Shepherd  said,  I  wu 
in  the  room ;  he  stood  up  and  said,  No,  it  va 
read  before  I  came  in.    Air.  Cornish  wosU 
have  pro<luced  a  witness  to  have  proved  whtf 
Kumscy  i^aid :    says  the  court,  we  canoot  id- 
mit  of*  that;     tor  it  d«>es  not  appear  tovi^ 
that  my  lord  Russel  was  ever  tried  for  bieli- 
trcuson  ;   and  there,  upon  that  slip,  wu  uit 
gentleman  destroy  ed.     1  pray  it  may  be  reod ; 
1  huve  given  no  opinion  of  what  force  it  is,  but 
I  think  It  depends  upon  tlie  same  reatoo ;  nay* 
you  have  more  reason  to  do  it,  than  any  tbiog 
you  have  read  to-day. 

Air.  Pr/rr.  It  is  \  ery  much  pressed  that  jaa 
should  read  that,  which,  when  read,  tbey  nfi 
is  not  evidence,  but  only  to  introduce  aaotbcr 
matter.  If  it  be  uot  evidence,  upon  what  ac- 
count shall  tliey  rend  it  ?  But  if  it  introdoet 
other  evidence,  this  is  an  ingredient  and  part  of 
that  evidence.  Now  suppose  the  record  sboaM 
be  produced,  and  they  ijhuuld  bring  witneca  ts 
say  what  <ioo<lmun  swore  at  that  trial :  imoiiM 
that  be  evidence?  No  sure,  for  uolnidy  ever  pre- 
tends that  this  hntli  been  admitted  either  at  lanr, 
or  in  {rarlianient.  By  what  law  f  By  whatrole? 
B\  *^  hat  meastiiT  »»f  reason  are  we  to  proceed 
in' this  house?  It  you  Mould  permit  to  be  pro- 
duced a  record  of  conviction  against  a  third 
person,  and  this  to  be  c^klence  against  onetbat 
IS  not  ])re4ent,  I  think  \ou  may  as  well  admit 
to  be  prmluced  a  record  of  the  conviction  €f 
any  other  conccrnpd  in  the  assassination.  Bat 
I  stood  up  principally  upon  the  obServatioa 
made  at  the  bar,  and  he  put  you  that  wbicb  he 
takes  1o  be  a  sinister  case ;  tor.  sa}  a  be,  sup- 
]rose  sir  John  Fenwick  had  brought  this  record, 
and  made  use  of  it  to  take  off  Goodmau*s  testi- 
mony, shouhl  it  not  bo  evidence  i*  Yei,  po 
doubt  <»f  it ;  and  there  is  the  disiiuction.  It  i< 
one  thing,  where  you  are  to  give  in  areconlto 
ciinvict  and  attaint  a  person,  and  another  thin^i 
where  it  is  to  prove  a  man  prijured,  sod  la 
invalidate  his  testimony ;  for  when  eridence  n 
brougiit  against  a  prisoner,  he  hath  no  wajr  to 
lessen  his  evidence  but  what  is  collateral ;  if  f^ 
be  upon  a  trial  when  another  is  concerned, if 
the  witness  gave  a  contrary  e«idcuce,  or  d» 
party  was  ac(piitte<l,  then  the  record  niayJv 
made  use  of  against  the  witness  :  but  it  difcs 
very  much,  where  you  biing  evidence  to  lak* 
off  (he  credit  of  a  witness,  and  where  vt> 
bring  it  to  convict  or  attaint  a  penon.  Tb* 
case  of  Cornisli,  that  turns  upon  the  simefia- 
80U,  and  it  was  only  to  be  used  to  take  off  tb* 


ttpow  a  BUI  tj  Atiatndcf. 

on)f  of  Rumsey  ;  but  iHliis  record  of  llie 
I  uf  Covk  be  brought  to  tiny  [»ui|>o5^ 

it  b  to  saliafy  yvnr  c^nscieTiccs,  ilmt 
OoodmaQ  nve  a  good  testimony  at  that  trial ; 
ftnd  I  woiiUer  the  Serjeants  should  ulff^r  it,  ivUo 
ate  9«iora  to  ufler  nottiing  ia  viululion  of  tUe 

\  J>r.  Oicfkitn^   If  I  did  not  tbink  ihifi  ques- 

bfid  be^fii  deleriidneil  More,  I  should  not 

DuLde  you  in  Ihts  debule  ;    for  did  not  we  re- 

i%e  w  hat  Goudtnati  depost.'d  upon  oath  beiore 

'  kistiee  uf  |}«ace  ?    Was  it  read  because  it  was 

ken  in  wfifiDg^f  or  b4?cau&e  it  y»^^  his  er i- 

nee  ?  Now  they  otffr  you  an  evidence  of  biii 

Bt  was  not  ]jtit  into  wriliu"^,  hut  they  witl 

|irDve  by  witness  ;    what  is  the  difterent-e?    If 

^1^  had  been  takeu  dow^i  in  writing-^  it  must 

Hfeve  been  mdmitted  as  the  satue  was  before. 

^^i^  M,  WyveiL  That  worthy  jfentletnan  de- 

iir«d  to  know  the  difference^  &e.     Tb«t  dejjo- 

•icioii  was  against  sir  J«dm  Fenwick,  but  tliin 

videtict'y  that  they    oHer    now,    was    ipfcn 

aittst  Peter  Cook. 

^Ait.  Gtn,  Yon  are  now  upon  a  debate,  Whc* 

you  fchatl    read   the  conviction  of  Peier 

ok :  I  do  iitjree  with  those  gentlemen  ihai 

kve  spoke  of  liiis  palter,  that  the  conviction 

f  Cook,  nor  any  ef  jdence  U|Kni  hi-^  conviction, 

can  btr  evidence  aj>iiinst  sir  John  Fenwick.     I 

do  not  pretenil  that  this  15  ;    nor  do  not  believe 

lliat  this  is  offfred  upon  any  i^iich  considera- 

Jpti  I  but  it  IS  one  of  the  allegations  of  the  bill, 

^BBt  several  of  these  ^entletnen  were  present 

^B  ibis  consult,  of  which  sir  John  Fenwick  ts 

^Bousfd  ;    therefore,  I  suppose,  the  counsel  for 

^■e  ImU  did  offer  this  rectjrd  to  luake  i^ood  that 

alliii^tiooj  and  so  think  it   may  he   properly 

u&a&i !  unless  it  be  admitte<l  {  I  do  not  ^ee 

L  lie  made  jrooA^  further ;    I  do  not 

proper  to  examine  to  what  Gooilman 

N  '  '     '  '    trial. 

if  tson.    I   speak  only  to  i>bew 

t^tiiii^^t^tj   with   the   attoniey-q^eneraf; 

hath  stated  it  right,  no  douht,  as 

Action  of  this  person ;    as  Mr.  Atior- 

lit,  it  may  he  proper  enuu|;h, 

heri.  Calt  tbem  in,  call  iheni  in, 

'  C  Aihsgravt'.  1  hear  gentlemen  bay,  call 

1 10  :    Do  you  intend  when  you  call  them 

I  read  thjs  record  ?  1  think  the  learned  geu- 

nan   hath  stated  it,  that  it  ou^ht  not  to  be 

ai  evidence.     Mow  the  counsel  for  sir 

Fenwick  said,  they  hoped  yon  wuutd  not 

'  ft  to  be  read  as  evidence  against  the  pri- 

:    1    never  heard  tbe  counsel  say,  tliat 

;  was  not  aitaiuted,  nor  ever  heard  that  any 

I  did  doubt  it ;  then  if  it  he  no  controverBy 

^llMM  tbe  counsel,  to  ubat  end  is  it  brou^t 

^^^^S  Do  you  think  that  the  steps  that  are 

^^HBb  be  taltcn  in  this  esse,  will  not  be  a  pre- 

^t^HL  for  (fosterity  ?    1  take  it  that  there  is 

■piill  deal  of  ditfereoco  between  tbe  paper  you 

Kaf«  read  and  this  record  ;    and  tberelbrt:,  if 

jreti  call  tti  the  couoseli  I  hope  you  wdl  uot 

■latity  I  hem  in  reading  oi^  it. 

^p  Mr.  £,  HarUy,  Betore  you  call  the  counsel 

»9 1  butnbly  propose  it  to  you  to  consider  to 


A.  D«  1696. 


[619 


what  purpose  this  record  should  be  read ;  if  a9 ^ 
evidence,  you  overthrow  all  the  coarse  of  proof  I 
that  is  settled  by  the  common  law,  and  statutaJ 
law  ;    ibr  it  haih  been  in  all  trials  opposed,  t04 
^ive  in  evidence  that  wbichis  improfier,  because  1 
it  shmdd  not  intluence  tlie  jury.     1  would  not  , 
have  it  said^  that  under  the  reign  of  king  VVi]*J 
liam,  any  thing*  was  done  contrary  to  the  lavr  J 
and  constitution   of  the  nauon.     There  hatb 
been  an   instance  given   of  the  trial  of  Mr, 
Cornish,  thoi]|;»h  that  case  doea  not  come  up  t(k 
it:  but  we  know  what  was  done  id  lhos«  reigusj 
hath  been  justly  rededed  upon  ;    and  I  ho{ia| 
you  will  not  make  a  precedent  here,  to  encou* 
ragejudo^es  to  do  what  is  against  law. 

ftir.  Speaker,   Gentlemen,  this  i»  your  < 
tion,  that  the  record  of  tbe  couvictio'n  of  Pete 
Cook  shall  be  read. 

Which  question  being  put»  tbe  nouie  di-  * 
Tilled.     Ayes,  181.     Noes,  110,     So  it  passedl 

iu  the  affirmative. 

Mr,  Speaker,  Gentlemen,  You  have  had  an«^ 
other  question  that  hath  been  tbe  subject  of  1 
debate,  That  the  counsel  for  the  bill  be  admitti 
to  give  evidence  as  to  what  Good  in  an  swore 
against  Peter  Cook. 

Mr,  R.  Harley.  Tbe  learned  gentleman  di4>1 
tell  you,  That  what  Goodman  said  at  tbat-f 
trial,  ought  not  to  be  ffiven  in  evidence ;  and  I 
tlieretiire,  I  think,  geouemen  wonH  insist  u)»oa  j 
that,  thai  is  carrying  it  too  far  ;  and,  1  thinkp  j 
be  opened  it|  that  it  was  only  to  (irovc  liia^j 
Cook  nas  alrainied,  and  to  make  tise  of  it  na^ 
farther. 

Mr,  Speaker,  Is  it  then  your  pleasure,  that  J 
sir  Juhu  Fenwick  and  his  counsel  be  called  in  f  < 

[Which  qiiefition  being  put,  it  passed  in  thaj 
allirmative,  and  accordingly  they  were  calleil  | 
in.'] 

Mr.  Speaker.  Sir  Thomas  Po wys,  tbe  bousa  I 
hath  determined  to  have  this*  renord  read,  not  i 
evidence  against    sir  John   Fenwick,  but  1 
prove  the  allegations  in  the  hill,  aud  thai  Coo 
was  attaiuted.     Head  the  Record. 

[Accordingly  tliat  Record  was  read  by  th#  1 
Clerk.] 

Sir  B.  Shoner.  We  are  sure  the  Record  doe#4 
tmt  prove  that  he  was  convicted  u|>on  Good* 
loan's  evidence. 

Serj.  Lofvel,  Look  upon  tlie  indictment. 

Sir  T.  PiJwyi.  It  appears  by  that  ibat  Good*  ] 
man  was  a  witness  upon  tbe  iiidictmeut ;  but  i|  j 
does  not  prove  by  that,  that  he  was  a  witoesal 
ii|>on  the  trial. 

Serj.  Could.  May  it  please  you  then,  Mr* 
S|>eaker,  thus  far  it  i»  agreed,  that  here  is 
record  of  tbe  conviction  of  Cook  ;  and  it  i 
agreed,  and  tbe  record  speaks  it,  that  Gooilmaiil 
was  a  witness,  for  it  is  iodorsed  upon  ihe  in* 
dietment.  Now  the  main  dispute  is,  whethq 
Goof  I  man  *s  evidence  did  prevail  to  convict  Coq|(  I 
u{H>D  that  inthciment  ?  And  lor  that  we  shair 
apply  ourselves.  Call  our  evidcneej  some 
Ibejury^  and  same  tbot  were  thtrn  wlti 


62SJ  8  WILLIAM  IIL 

Collins,  To  the  best  of  my  memorv,  I  will 

Sive  tbe  best  account  I  can.  Goocfman  did 
epose,  that  he  came  to  the  Kind's- Head  in 
LouIeDhall- street,  and  enquired  for  captain 
Porter,  ac<'ordin;r  as  the  captain  had  ordered 
him  ;  and  the  captain  came  down  and  carried 
him  up  into  the  room  where  the  gentlemen 
were.  There  was  sir  John  Freind,  sir  Wm. 
Parkyns,  Mr.  IMiaruock,  Mr.  Cook,  and  sir  J. 
Fenwick  ;  there  was  two  others,  if  you  please 
to  have  me  name  them. 

Members.  Yes,  yes. 

Collins.  My  lord  Aylesbury  and  my  lord 
Monti^omery :  this  was  what  he  deposed. 

Mr.Speuktr.  Goon,  Sir;  you  have  named 
those  that  wore  at  the  meeting. 

•Scrj.  Lurel.  Did  he  fr'i^e  you  an  account  of 
what  was  agreed  on  at  that  meeting  ? 

ColUnt.  1  think  it  was  about  sending  Char- 
nock  to  France. 

Mr.  Speaker,  Sir,  you  should  repeat  all  the 
particulars,  what  (.Mmrnock  was  to  do. 

Collins.  1  cannot  remember  any  thing  fur- 
ther than  what  I  hare  told  you. 

Serf.  Gould.  If  you  please  that  Mr.  Cooper 
may  be  askeil  to  this  ? 

Mr.  Speaker.  Was  you  of  the  petit-jury  that 
con?ictctl  Mr.  Cook  ? — C^^per.  Yes. 

Hr.  Speaker.  C*an  you  gire  tlic  House  an 
account  what  evidence  Goodman  gavt^  to\ou 
tor  conviction  of  Cook,  aud  what  he  s;uil  iu  tbat 
c\  idi'iife  ? 

CnMtpcr,  Mr.  (i<KMlman  did  declare  upon  his 
ovidencf*,  that  he  was  nt  the  Old  Kiti;j:'s-llead 
ill  liradi'iiliull-slrtM't,   wlicrc  lie  ilid  meet  uiili 


Proceedings  against  Sir  John  Fenvae]^^         [6£l 

had  been  a  meeting  of  ■everalgentlcmen,  ami 
that  they  had  made  sever»l  offers  of  soldiers 
and  people  that  were  to  lie  raised  here,  and  to 
acquaint  king  James  with  it ;  and  be  dedanni, 
that  sir  John  Fenwick  was  there  at  the  same 
time. 

Mr.  Speaker.  Pray,  can  you  give  this  House 
an  account  of  what  exception  was  taken  to 
Goo<lman's  credit,  and  how  ii  was  ansnered:-* 

The  same.  There  was  exception  taken,  tbit 
he  was  guilt)r  of  a  great  many  crimes,  and 
tliat  he  had  his  pardon  ;  aud  the  fines  were 
levied  upon  him ;  but  it  was  said  then,  that  lie 
bad  (raid  his  fine,  and  that  he  was  a  very  good 
evidence  in  the  case. 

Mr.  Speaker,  Mr.  Serjeant  Gould,  hare  you 
any  other  evidence  to  produce  ? 

Serj.  JjtvrL  If  you  please,  Mr.  Speaker, 
here  is  Mr.  Tauuer,  tbe  clerk  of  the  arraign- 
ments, that  best  knows  the  nature  of  thi-se 
things ;  that  as  to  these  objections  tliat  were 
made,  it  appeared  to  the  court  to  be  a  contriv- 
ance, for  he  was  never  bailed,  but  discbary^ed 
without  any  more  to  do.  If  you  please  tliat 
he  may  be  asked.  What  objections  were  made 
to  Goodman's  reputation,  and  what  answer 
was  made  to  it  ? 

Mr.  Speaker,  I  did  ask  the  inryman  tbat; 
aud  I  suppose  you  need  not  labour  this  point, 
unless  the  credit  of  Goodman  comes  in  qias- 
tion  here. 

Scij.  Gould.  Then  may  it  please  you,  Mr. 
Spciiker,  we  have  one  other  piece  of  evidence 
again<tt  sir  J.  Fenwick,  which  we  are  humblv 
to  oiY^r  to  your  ctm^I'leratiun,  and  1  think  itf^ 
very  maltTial  ;  aiul  it  is  s(.iiio  of  the  evifltiia' 


•lixci-s  |M>i'S(iiis  that   wvvc  in   cuiiSiihatioit  :   lie  I  >v Inch  I  diil  open  iu  staliii<>  ut  the*  cum.',  ulii^-ciu 

sir  J.  I'Viuvick  haiii,  in  a  manner,  given  u  \er- 

diet  ajrainst  liinisclt  ;  liir  while  sir  J.  Feimick 

was  workintc  of  liis  c«^rapc  to  cjo  hoyund  sea, 

j  ai  tiiut  very  lime  ihrn*  was  a  lotior  wrilteii  l») 

!  Iiim,  (liroi'U'd  to  hi.<»  lady,  iind  dclivcied  intr> 

ilio  hands  of  one  Mr.  I'ow  kr,  \<  ho  was  to  cans* 

'  ir   to  he  dciivtrcd  to  hi>  Kidv  h^  one   Webber, 

;  who  wastakon  up  ulun  sir  John  Fenwick  \%  as. 

I      This  h'llcr  imports,   That  sir  J.    Fenwick 

>  Kii'kod  upon  himself  as  having  no  dtrfence,  hiii 

!  dopLn:!ei]  ('nly   upon  a  cunirivancu   with  itu- 

inry  ;  iliiy  Wfio  to  work  with  some  persons  c' 

'  the  jur^ ,  w  ho  were  to  stand  it  out,  and  t(»  >tarvr 

l\w  rest  ;  and  so  by  that  means  to  save  him. 

;  Our  evidence  of  this  « ill  be,  that   it    fell   out 

that  ^Nrliher  (wo  ha\e  him  noi  h;rrc  n«'W,   hut 

;  h;\ve  endeavoured  it  a>>  much  as  \\.ii  pu-^siiile, 

I  bill  he  is  jjone  looonl  of  the  w;i\  ),  that  he  was 

taken  at   the  Si:nie  time  thai  Mr  .1.    Fenwick 

;  was  ;  hui  by  reaMHi  ol  liie   |»roiraclin«»'  of  sir 

I  .lohirs  tjial,   he  ci  ruts,  and  i.-^  (!•  livereil,  there 

.'  Ikmh;;  no  eharL;o  ;'.i;aii:st  hiui  ;  and  he  i>,  since 

I  his  <ieli\eianc«;  np.ui  h!>  ll.ilicas  t 'orpns,  ^m?'..* 

j  ont  of  the  v»My  ;   hul   \si*  >hall,  iu  the  nieihe.l 

of  our  eviflerue,  proiluec  \ou  Mr.  Fowler,  llie 

person  touhoinihN  letter  t^as  handinl,   who 

will  tr'wv  yon  iih  aeeonut  ol  this  letter  ;  and 

then  \\dl    produce  this  letter:  to   which  end, 

we  inn>i  humhU    be^  the  favour  of  a  worthy 

member  uf  this  ilouso,  3ir.  Vtrnony  who  bath 


nain(*d  riiarnoi'k,  sir  J.  Fenwiek,  sir  J.  rivind, 
and  diu*rs  others. 

Mr.  Spi'ukcr.  What  was  the  eonsnltation  ? 

i\lr.  i'lHtiJtr.  It  \wis  alHJUl  st  lulinj:  rliarnoi  k 
over  into  I'Vaiiee. 

Air.  .S7»M/A«T.  To  what  purp- ill' ".■ 

•Mr.  i'wiprr.  '\\t  hrinii;  o\er  liiiet  s,  vr  i  jn'ou- 
rajfe  the  hriii^int;^  om  r  ol  lorees  :  ihut  Uiis  ilie 
purport  of  his  iiiesssii^i'. 

I^lr.  Spaikir.  Will  you  produce  any  ojIut 
evidence  to  this  jMiint .' 

S«m;j.  (fi»f</(/.  \\  e  desire  this  i^eniUiiian  may 
Ih'  aske«l  to  the  same  purpnsi . 

Mr.  Sprak,  r.  W  us  you  one  of  the  p»  til  nn\  j' 

Anof/ivr  ll/.'wos.  'I'liere  >*as  eajit.  I'itJi -. 
and  i\lr.  (loodm.m,  that  >\ere  the  two  oi- 
denecN  ;  and  <MH)ilman  did  say«  that  he  ha! 
been  at  the  Old  kind's- 1  lead  in  Leadtnhall- 
streel,  one  Toxe's,  and  sjr  .li»hn  Fenwiek  was 
there,  andM\i-r:d  other  y^entlemen,  eonsiiltin^* 
ul'aii  atlau-  to  send  over  luto  Fraitet*  fur  some 
toreis  lo  he  hroii>;ht  owr  into  ICnufland  ;  and 
that  t'hurnoek  was  the  pi  •  >on,  and  they  all 
ai^n III  he  .>hould  :;o  o\er. 

Mv.  ^/Mi.'Vc/-.  Hut  did  he  yfi^e  you  an  ac- 
I'ouiK  ot  wh.ili'ook  ami  the  others^  did  iitrree 
M.  iipim  whieh  >«>u  found  Mr.  Cook  {fnilty? 

/'///  *.;».'.T.  We  did  apprehend  that  l'«M)k  did 
eoiiseni  that  (Miaruoek  should  ^o  o\er  to 
J-Vaiiti^',  and  actpiaiut  kinQ  James,  that  there 


Upon  a  Bill  ofAUaindcr* 

tte  letter,  tlmtit  may  Ijeprodticet),  iinil  shewed  , 
t9  Mr*  Powlcr» 

Mr.  ycrmm.  Sir,  1    reccivcil  j?*>iir  order  to  I 

tt*i<?  leUer  thni    sir  J.  Fr'»wi(  k  wrote,  I 
I  ju  custody  ai  Rtimney,  wliich  xv»^  seni 
>  rae  by  Mr.  MmscaH,  \v1io  Imd  it  of  51  r. 
er  ;  «Dd«  if  yau   plvasCf  1  ara  ready  to  j 
deUv4^r  it.  \ 

Mr.  Speak fr»  Who  sent  it  to  v^u  ?  ' 

Mr.  ^frjwn.  One  Mr,  Mascull,  a  ja.<itice  of 
ce  of  Uunincy. 

iir  T,  Poayi.  1  hope  now  we  shall  muke  an 
ction  lo  Ibis  letter  with  g^ood  aulhoriiy^ 
irely  for  them  to  |*roduce  a  Ititcr,  aa  air  J, 
iiuri«^*s,  ii  not  to  be  alloned  as  evidence, 
ttHleis  it  vi'a«  j»n*vcd  that  he  »vrote  \%,  because 
tliftt  sort  of  eridence  t%a8  (mrticularty  t>ikeii 
BOtMse  of  by  parliament :  and  jiid^'iuent  ^iven 

fm  that  sort  of  evidence^  by  comparison  of 
><Js,  in  the  case  of  Mr.  Sidney*  and  the  act 
r«rersa|  of  bis  attainder  does  atloM^  it  to  be 
megril  evidence.     This  is  sudi  an   autliorrty 
IS,  I  hope^uiU  lieiir  no  I  dispute  :  aud  the  courts 
•f  Westniinster-Hall  ha^e  since  tlioni^ht  it  so  ; 
Ibey  iHd  so  in  the  case  of  Crosby,   who  was 
^peii  the  oiber  day  in  Westmiiv«iter-HatL 
^KSir  jB.  Shnu^er,  In  this  objection  we  have  the 
^Kaion  of  inlerior  cronrts,  and  Ibe  parfiament 
^Ep  I  for  the  particular  evidence  Mr.  Sidney 
^Pl«  convicted  upon,  was   ii|>on  a  paper  which 
was  found,  and  provef)  by  &ome  who  pretendeil 
Is  k»ow  his  hand  ;  and  1  am  sure  that  is  more 
^pUi  they  can  preterit)  to,  auil  more  Itiau  they 
^|pve  yet  opened.     We  do  therefore  hnintdy 

rmt  this  evidence^   ii  beinty  in  the  caae  of 
lifiP  of  a  man  \  and  tbe   kmef,   Lords^  and 
nmons,  baviufir  dechiretl.  That  this  sort  of 
litJence  ou^hv  not  to  he  uUoweil :  and  Ibei'c* 
I  hope,  you  will  f>ot  altow  it  in  this  case. 
in  Ciosby's  case,  U|ion  readin^^  the  act  of 
rliaONfnt,  this  evidence  was  not  allowrd»  and 

.by  wasaapiitteil. 

^Bir  T.  Ptmyi.   I  hare  a  copy  of  the  bill  for 

rermni;  tbe  attainder  io   ruy  band  ;  and   it 

lys,   *  Tbe  prodocini^  a  paper  Ibwid  in  the 

closet  of  Mr.  8idney,  which  was  not  proved  by 

mny  witness  to  he  his  hand-  ivritinsr,  ^c.^     Anil^ 

we  hope,  if  in  the  judgment  of  iTie  parlia^ment 

thai  WU9  not  thought  reasonnble  evidence  to 

mtiaint  tiim,  this  will  not  l>e  tboiifrbt  reasoimble 

in  parliament  lo  attaint  this  gentleman. 

^^  tiery  Gnuld,  Aa  this  case  l^,  we   hope   this 

^My  he  1  concurrin^^r  evidence :  it  wtH  i»e  plain, 

^V|MMi  the  evidence  we  shall  ifiTe,   that  Webber 

wii*  with  sir  John,  and  taken  with  him  ;  and  at 

t  tiine  this  letter  was  haudefl  by  him  over  to 

E^wler,   to  be  r^irried  to  my  Iddy.     Now,  8ir, 

'humbly  offer  it  to  your  consideration,  flow 

-  it  is  available,  and  what  operation  it  will 

ve?    Wbetlttsr^  in  a    case  of  this   nature, 

k  two  being   taken  tog'ether,  and  Webber 

I  this  letter  to  Fowler  lo  deliver  it  to  sir 

J.  Pcnwick^s  lady,  tuid  the  iin|>ort  of  the  letter 
CODOenis  sir  J .  I^eiiwtek  foi- his  acquittal  ;  you 
will  not  suffer  it  to  be  read  ?  Jt  is  not  to  charge 
bim  With  a  treiisont  for  that  is  the  case  of  At- 
gcrooon  Hidney :  it  ii  uul  Xu  profe  a  critne 
VOL.  XHi. 


A.  D.  ims. 


[69(J 


npon  biiTi  ;  but  we  will  pro?e  that  sir  J.  Fen<< 
wirk  handed  this  letter  over,  that  ilmi^bt  come 
to  his  l.idy ;  by  which   he  desiretl  hi^  lady  ^a^ 
fnr  to  work  the  matter,    that  some  juryman 
mis^ht  Ite  found  to  starve  iht'  rest,  ami  ntand  out '  | 
for   him  ;  if   we  could    prnilncc   WebJicr,  we 
would;  it  is  plain,  Webber  correspondenl  witti-' 
sir  John,  and  was  with  him.  >l 

Serj.  Lani'L  1  humbly  he^  one  word  in  thif  ' 
tTKitter:  the  counsel  on  tbe  other  side  do  tery 
wt^ll  knoiT,  the  constant  practice  is,  *rbat  ifi:j| 
the  case  of  a  deed  or  will,  let  the  value  of  the  i 
estate  be  ^vbat  it  will,  iftlte   witnesses  cannot  \ 
be  produced^  or   are  ^ooe   Ireyood  sea,  they  ^ 
always  admit  evidence  by  eomj»iirison  of  handsel 
But  for  tbe  case  of  Algferaoon  Sidney*  there  i4  f 
no  doid)t  but  his  attainder  ouf^ht  to  be  reversed, 
because  that  attainder  was  iip^on  no  other  evi« 
dence  ;  for  there  was  no  other  proof,   but  a?1 
paper,  that  he  himself  did  say,  was  only  for  i\\m\ 
exercising   of  hi^  own   intrenmty   and  parls  ji'J 
and  it  was  said  to  be  n  riHen  for  no  other  pur- 
TM>sp,  and   proved  only  by  the  comparison  of  I 
hands  :  had  there  been  any  other  witness  t<^1 
corrokirate»  it  had  altered  "the  case.     But  inj 
our  c^se,  we  <lo  produce  the  letter,  not  for  the*^ 
eonvictinijf  of  the  prij^oner  ai  the  Irtir  ;  hut  wtt  j 
are  humbly  to  lay  before  you  all  the  matter  of  I 
fact.     It  will  be  wortliy  oV  your  consideration,  ^ 
what  you  wilt  think  lit  to  take,  and  what  to  J 
reject;  this  is  a  matter  for  your  ownjud^-j 
meni.     We  produce  this  letter  for  this  purpose,  1 
to  shew  you,  that  at\er  sir  J.    Fenwick  wb»^ 
taken,  he  sipprehended  his  case  to  lie  so  des* 
perate,  tbitt  he  used  (he!«e  indirect  tneaiH^ 

Mr.  Sffittktr,  What  mean  vou  by  thatf  j 
This  letter  came  from  Mr.  Fowler. 

Seij.  Lovrl.  Here  ii  Mr.  Fo^vler  thai  received  j 
it  from  Webber,  w  hen  sir  J.  Fenwiek  was  by,  ] 
in  the  presence  of  sir  J,  Fenwick* 

Mr.  Speaker.    8bew  Mr.  Fowler  the  letter, 
[Accordingly  the  clerk  went  down  to  thu  bar|  j 
and  shewed  Mr.  Fowler  the  letter.] 

Mr.  Speaker.  Do  you  know  thai  paper  ? 

Foteler.  Yes,  sir. 

Mv.  Speaker,  Where  ha?e  you  seen  tl  be-J 
fore? 

Fi>ft'ier.  I  had  it  from  one  Webber,  that  was  j 
ai  Kumney,  about  the  ^d  of  June,  as  1  re«| 
uieuiber. 

Mr.  Speakfr.    Was  that  the  time  thoct  sU 
John  Fenwick  was  seized  ? 

Ftmlcr.  He  was  then  at  Rumney.  Mr.| 
Webber,  1  was  told,  had  some  acquaintnnc 
with  me,  and  desired  to  speak  with  me.  i  went  I 
to  him ;  and  he  wsm  rh'mg ;  and  when  up,, 
says  he,  Mr.  Fowler,  1  would  desire  yoti  ttfJ 

fmt  a  letter  into  the  post ;  says  he,  there  is  naj 
lurt  in  it ;  it  is  directed  to  Mrs.  Frances  Far*4 
rer,  at  the  countess  of  Carlisle*s  in  $ob<H] 
square;  and  when  I  had  delivered  it,  be  i 
»ired  me  to  come  to  him  afi^ain. 

Mr.  Speaker^  Did  you  come  to  him  agaio  ? 
Fowler.    Mr.  Maicfdl,  of  Bumuey,  sent  fqf 
me  to  his  liouse^  and  rold  me,  that  he  Itadheap 
that    I    had    received   some   letter  from   Mn 
Webber ;    and  when  be  had  opt oed  it,  aud  fftir  * 
2S 


62SJ 


8  WILLIAM  III.  Proceedings  against  Sir  John  Fen^aek^ 


Collins,  To  the  best  oi'  my  roemorv,  1  wilt 

Sive  the  best  account  I  can.  Goodman  did 
epoBC,  tbat  he  came  to  the  Kind's- Head  in 
LoidenhaU- street,  and  enquired  for  captain 
Porter,  acrurdin^r  as  the  captain  had  ordered 
kioi ;  aiul  the  captain  came  ihiwn  and  carried 
him  up  into  the  room  where  the  gentlemen 
were.  There  was  sir  John  Freind,  sir  Wm. 
Park)rn8,  Mr.  Cliarnock,  Mr.  Cook,  and  sir  J. 
Fenwick  ;  there  was  two  others,  if  you  please 
to  have  me  name  them. 

Members.  Yes,  yes. 

Collins.  My  lord  Aylesbury  and  my  lord 
Montgomery :  this  was  what  he  deposeil. 

Mr. Speaker.  Goon,  Sir;  you  have  named 
those  that  were  at  the  meeting. 

Serj.  Lin>eL  Did  he  give  you  an  account  of 
what  was  agreed  on  at  that  meeting  ? 

Callint.  1  think  it  was  about  sending  Char- 
nock  to  France. 

Mr.  Speaker.  Sir,  you  should  repeat  all  the 
|Nirtk:ulars,  what  Charnock  was  to  do. 

Collins.  I  cannot  remember  any  thing  fur- 
ther than  what  I  hare  told  you. 

Serf.  Gould.  If  you  please  that  Mr.  Cooper 
may  be  asked  to  this  ? 

Mr.  Speaker.  Was  you  of  the  petit- jur3Mhat 
convicteil  Mr.  Cook  ? — Cooper,  Yes. 

Mr.  Speaker.  Can  you  give  the  House  an 
account  what  evidence  Goodman  gave  to  you 
tor  conviction  of  Cook,  and  what  he  said  iu  tbat 
e\  idi'nce  ? 

Coitpcr.  Mr.  (i(K>dman  did  declare  upon  his 
evidence,  that  he  was  at  the  Old  Kin;;'.,.  Head 
in  lieudenhall-sireet,  where  ho  did  moot  with 
•hvers  |tcrs4ms  that  wert'  in  coiisnlt.ition  ;  he 
named  Charnock,  sir  J.  Foiiwtck,  sir  J.  Fivind, 
and  di\i*rs  others. 

Mr.  Speaker.  What  was  llie  consultation  .'' 

Mr.  Codficr.  It  was  about  stnilinu:  Cliarnotk 
over  into  France. 

Mv.Sptitktr.  To  what  jiurp'-sr  r 

Mr.  C\v/>ir.  To  liriuir  o\cr  t'oitvs,  <-r  incou- 
rage  the  brini'iiii;'  (»\cr  nt'torces  :  ihat  ^*.is  ll:r 
purpttit  of  his  nu-S'iiiire. 

Mr.  Sfotktr.  W  ill  vou  pnxiucc  r.ny  oiIut 
evidence  lo  this  point  ? 

JSerj.  (»i»m/i/.  Wedesire  this  gem loni:ui  nuiy 
bo  askinl  to  ihe  suine  pur[mst. 

Mr.Spcuki".  W  as  \  oil  one  of  the  pi  tit  ]\v.\  ? 

Anofhtr  lf\;»ii>>.  There  was  iiipt.  I't-rii  ■. 
;uul  Mr.  (loeihn.in,  lital  ^uiv  the  two  i\.- 
dencos  :  and  (looihnan  did  say,  that  he  ha  1 
heeii  at  the  Ohl  knit's- IK ud  in  Lcadtiihall- 
slreet,  one  Coxe's.  and  sir  John  Feuwick  was 
ther«\  and  M\er;d  other  gentlemen,  coiisnUiiig 
o:'an,^trair  to  send  over  into  Fiance  for  some 
forces  to  In*  hreOi;hl  over  into  Kn:;hnd  ;  ami 
that  Charnock  was  the  (k  .  hmk  and  they  all 
a;»r%vd  lie  »houhl  jX^^  o\cr. 

Mr.  ^';  «-.:s:c ".  Hot  did  hesjive  you  an  ac- 
count t)f  w  hat  CiH>k  and  the  others  did  a^ive 
to.  \\\\o\\  which  you  found  ^Ir.  iVnik  gniliv  .* 

r.*i(  sane  Wv  did  apprehend  that  Cixtk  did 
consent  that  Charnock  should  go  o>er  to 
Fno^,  aiul  aoquMBt  king  Jainct,  tbat  ibere 


had  been  a  meeting  of  teveral  gentlemen,  an 
that  they  had  made  several  cifiera  of  soldier 
and  people  tbat  were  to  lie  raised  here,  aod  t< 
acquaint  king  James  w  itii  it ;  and  lie  declared 
that  sir  John  Feowick  was  there  at  the  muim 
time. 

Mr.  Speaker.  Pray,  can  you  give  thislloufc 
an  account  of  what  exception  was  takeo  lo 
Good  man  *s  credit,  and  how  it  was  ansaem).' 
The  same.  There  was  exception  taken,  tbtt 
he  was  guilt^r  of  a  great  many  criines,  lod 
tliat  he  had  his  pardon  ;  aud  the  fines  woe 
levied  upon  him ;  but  it  was  said  then,  that  be 
had  |>aid  his  fine,  and  that  he  was  a  very  good 
evidence  in  the  case. 

Mr.  Speaker,  Mr.  Serjeant  Gould,  haveyoo 
any  other  evidence  to  produce  ? 

Serj.  Tjfvcl.  If  you  please,  Mr.  Speaker, 
here  is  Mr.  Tanner,  the  clerk  of  the  arnifpn- 
ments,  that  best  knows  the  nature  of  thm 
tilings ;  that  as  to  these  objections  that  witc 
made,  it  appeared  to  the  court  to  lie  a  coitriv- 
aoce,  for  he  was  never  bailed,  btit  discliargri 
without  any  more  to  do.  If  you  |ilcase  thit 
he  may  lie  asked.  What  objections  were  nnde 
to  Goodman's  reputation,  ami  what  aoiacr 
was  made  to  it  ? 

Mr.  Speaker,  I  did  ask  the  itiryman  tbat; 
aud  1  suppose  you  need  not  labour  this  poiat, 
unless  the  credit  of  Goodman  comes  in  ^ua- 
tion  here. 

Serj.  Gould.  Then  may  it  please  you,Hr. 
S{ieiikor,  we  liave  one  other  piece  of  evidfiee 
against  sir  J.  Fenwick,  which  we  are  liaoiUv 
to  oiler  to  your  con si'lr ration,  and  I  think  iti^ 
very  material  ;  and  it  is  some  of  the  evidence 
which  I  did  open  in  staiiunr  ot  the  cusi.',  wbiTcia 
sir  J.  Fonwick  hath,  in  a  manner,  given  a  ver- 
dict against  himself ;  tor  while  sir  .1.  Feowick 
was  working  of  his  escape  to  go  bc}Ood  sci. 
at  that  very  time  then.'  wa^  a  letter  wrilteab)' 
!  him,  directed  lo  his  Indy,  end  delivered  iirio 
,  the  hands  of  one  Mr.  Fowkr.  who  was  tocaose 
;  it  to  lie  ilciivercd  to  hi»  luilv  b^  one  Webber, 
i  w ho  was  taken  up  w  ht  n  sir  Jubn  Fenwick atf* 
i      Tills  letter  imports,  That  sir  J.  FcnaicL 
'•  loi'kod  upon  himself  us  having  no  dfcfeoce.hat 
i  de])cu'.!eii  eniy   upon  a  conlri^ance   with  th^ 
I  jury  ;  they  were  to  work  with  some  persons  of 
the  jur\ ,  w  ho  were  to  stand  it  oat,  and  u»  blarre 
tile  rest  :  und  so  by  tliat  means  to  save  liiD>> 
;  ()uv  1  \  iileiice  of  tliis  w  ill  be,  that  it  fell  out 
that  ^Nri'ilier  (we  ha\e  hiin  not  Lore  n»w,  btti 
have  ciidtatonrcd  it  as  much  as  wus  |io$sil)le, 
.  bill  he  is  ^r.ne  mo  out  uf  the  way),  tbat  he  wa* 
taken  at  tlie  sunic  t:mc  that  sir  J.  FenwiclE 
w.!"*;  l«;i:  hy  reasoi:  nl  the  |t;i»tracliog  ot'iir 
.Tohn'N  tiial,  he  cciihn.  and  i>  lit-hvereil,  tbeia 
Iviiiy^  no  ih.iFuc  ii^air.Nt  \\\\\\  ;  and  ho  i>,  siB<* 
hi-  uiii^K:.;!^*  i'.j).iii  lii>  Habeas  Cor})US,j;W0 
.  rut  ot"  I'.ie  wv.y  ;  h-jt  we  shall,  iu  tlienieW 
I  ol  our  c\.fl^".it».  pri»iluceyou  Mr.  Fowler,  tba 
'  person  to  wb.om  this  letter  was  handed,  wbi 
will  ^.\e  \ou  uii  account  ot  this  letter ;  an 
then  will   I'rt'dMce  this  letter  :  to  which  o^ 
we  mii>i  huuilii\   bog  the  favour  of  a  tnrt^ 
moiibcr  of  this' House,  51r.  Vemoiiy  whtfM 


»1 


^pon  a  Bill  ofAUainder* 


A.  D.  1696. 


b  letter,  tbit  it  may  bejiroduced,  and  shewed 
)lr.  Fowler. 

Mr.  Vernon.  Sir,  I  reoeivcil  your  order  to 
ini^  tffie  letter  that  sir  J.  Fmwiik  wrote, 
hile  in  custody  at  Riimney,  which  wa«(  sent 
p  to  me  by  Mr.  Mascall,  who  had  it  of  Mr. 
Wler ;  and,  if  you  please,  1  am  ready  to 
eliTCf  it. 

^r.  Sneaker.  Who  sent  it  to  you  ? 

Mr.  Vtmon.  One  Mr.  Mascall,  a  justice  of 
letce  of  Rumney. 

Sir  r.  Povyt,  1  hope  now  we  shall  make  an 
objection  to  this  letter  with  gfood  authority. 
Suifly  for  them  to  produce  a  lelter,  as  sir  J. 
Fcnn'idc's,  is  not  to  he  allowed  as  evidence, 
iDless  it  was  prufed  that  he  wrote  it,  because 
riiat  sort  of.  evidence  was  particularly  taken 
Mlioe  of  by  parliament :  and  jud|^ment  i^iven 
ipOD  that  sort  of  evidence,  by  co»i|iarison  of 
Mods,  in  the  case  of  Mr.  Sidney,  and  the  act 
•f  rerersal  of  his  attainder  does  allow  ii  to  be 
iHcffil  evidence.  This  is  such  an  authority 
IS,  I  liope,  will  bear  no  dispute :  and  the  courts 
rf  Westminster- Hall  bsivc  since  ttion&|[|it  it  so  ; 
tkcviHd  so  in  the  case  of  Crosby,  who  was 
Hiol  the  other  day  in  Westminster- Hall. 

Sir  B.  ShoKer.  In  this  objection  we  have  the 
•pioion  of  inferior  courts,  and  the  |Niriiament 
tet ;  for  the  particular  evidence  Air.  Sidney 
WM  coiivicte<l  upon,  was  u|)on  a  paper  which 
vatfuand,  and  proved  by  some  who  pretended 
Ii  know  his  hand  ;  and  I  am  sure  tliat  is  more 
tbio  they  can  pretend  to,  and  more  than  they 
kwe  yet  opened.    We  do  therefore  humbly 

rae  this  evidence,  it  beinjjf  in  the  case  of 
life  of  a  man  ;  and  the  kiniff,  Lords,  and 
Gwinona,  havinsf  declared.  That  this  sort  of 
cridence  ought  not  to  be  allowed  :  and  there- 
fcre,  1  h<»pe,  you  will  not  allow  it  in  this  case. 
Asd  in  Crosby's  case,  upon  readin^^  the  act  of 
priiaoMnt,  this  evidence  was  not  allowed,  and 
Cnibv  was  acquitted. 

ftr  T.  Powyt,  I  have  a  copy  of  the  bill  for 
fsrcrtioit  the  attainder  in  my  hand  ;  and  it 
ays  *  The  producing  a  |iaper  found  in  the 
cmet  of  Mr.  Sidney,  which  was  not  pn»ved  by 
IB?  wiiDCfls  to  be  bis  band-  writing,  ^cc'  And, 
vebope,  if  in  the  judgment  of  the  parliament 
ta  was  not  thought  reasonable  evidence  to 
lUaiat  bim,  this  will  not  l»e  thought  reas^oiialile 
in|«riiament  to  attaint  this  gentleman. 

^kn.  Gimld.  As  this  case  Is,  we  hoi>e  this 
■ay  be  a  concurring  eviflencc :  it  will  lir  pliiin, 
«|Mitbeevidence  we  shall  give,  that  Webber 
«ii  with  sir  John,  and  taken  with  him ;  and  at 
Ihil  tine  this  letter  was  handed  by  hiiu  over  to 
PMler,  to  be  carried  to  my  Uily.  Now,  Sir, 
*c  bninbly  offer  it  to  your  consideration,  f  low 
6rit  is  available,  and  what  operation  it  will 
^«?  Whether,  in  a  case  of  this  nature, 
IkjR  two  being  taken  together,  and  Webber 
tticn  this  totter  to  Fowler  to  deliver  it  to  sir 
'•Fcnwick*8  Uy*  and  the  import  of  the  letter 
"'  mrJ,  raiwick  for  his  acquittal  ;  you 

'^  it  to  be  read  ?  It  is  not  to  charge 
a  Ifvaaoa,  for  that  is  the  case  of  Al- 

nmm  Htdu&j  i  it  if  not  to  prove  a  crime 

VOLXiUL 


upon  him  ;  bnt  we  will  prove  that  sir  J.  Fen- 
wirk  handed  this  letter  over,  that  it  might  come 
to  his  hidy  ;  by  which  he  desired  his  lady  so 

!  fur  to  work  the  matter,  that  some  juryman 
iniv^ht  be  found  to  starve  the  rest,  and  Ntand  out 
for  him :  if  we  could  produce  Webl>er,  we 
would  ;  it  is  plain,  ^Vehber  corresponded  with 
sir  John,  and  was  with  him. 

iSeij.  Lofvel,  I  humbly  beg  one  word  in  this 
matter :  the  counsel  on  the  other  side  do  very 
well  know,  the  constant  practice  is.  That  in 
the  case  of  a  deed  or  will,  let  the  value  of  the 
estate  be  what  it  will,  if  the  witnesses  cannot 
be  produceil,  or  are  gone  beyond  sea,  they 
always  admit  evidence  by  comparison  of  hands. 
But  ^or  the  case  of  Algemoon  Sidney,  there  is 
no  doubt  but  his  attainder  ought  to  be  reversed, 
because  that  attainder  was  upon  no  other  evi- 
dence ;  for  there  was  no  otner  proof,  but  a 
paper,  that  he  himself  did  say,  was  only  for  th» 
exercising  of  his  own  ingenuity  and  parts  ; 
and  it  was  said  to  be  written  for^no  other  pur- 
pose, and  proved  only  by  the  comparison  of 
bands  :  had  there  been  any  other  witness  to 
corroborate,  it  had  altered  Ithe  case.  But  iu 
our  case,  we  do  produce  the  letter,  not  for  the 
convicting  of  the  prisoner  at  the  bar ;  but  we 
are  humbly  to  lay  oefore  you  all  the  matter  of 
fact.  It  will  be  worthy  of  your  consideration, 
what  you  will  think  fit  to  take,  and  what  to 
reject ;  this  is  a  matter  for  your  own  judg- 
ment. We  pro<luce  this  letter  for  this  purpose, 
to  shew  yon,  that  after  sir  J.  Fenwick  was 
taken,  he  apprehended  his  case  to  be  so  des- 
perate, that  lie  used  these  indirect  means. 

Mr.  Speaker.  What  mean  vou  by  that? 
This  letter  came  from  Mr.  Fouler. 

Sei j.  TjOveL  Here  is  Mr.  Fowler  that  received 
it  from  Webber,  when  sir  J.  Fenwick  was  by, 
in  the  presence  of  sir  J .  Fenwick. 

Mr.  Speaker.  Shew  Mr.  Fowler  the  letter. 
[Accordingly  the  clerk  went  down  to  the  bar, 
and  ahewcHl  Mr.  Fowler  the  letter.] 

;      Mr.  Speaker.  Do  you  know  that  paper  ? 

I      Fowler,  Yes,  sir. 

i      Mr.  Speaker.     Where  have  you  seen  it  be- 

I  fore? 

I      Fotvler.  I  had  it  from  one  Webber,  that  was 

;  at  Rumney,  al)Out  the  :id  of  June,  as  1  re- 

{  uicuibcr. 

I  Mr.  Speaker.  Was  that  the  time  that  sir 
JdIih  Fenwick  was  seized  Y 

I      Fowler,    He   was  then  at  Rumney.    Mr. 

i  Webber,  I  was  told,  had  Kome  acquaintance 
with  me,  anil  desired  to  speak  with  me.  I  went 
to  him ;  and  he  was  rising ;  and  when  up, 
says  be,  Mr.  Fowler,  I  would  desire  you  to 

{)ut  a  letter  into  the  post ;   says  he,  there  is  no 
lurt  in  it ;   it  is  directed  to  Airs.  Frances  Far- 
rcr,   at  tho  countess  of  Carlisle's  in  Soho- 
>  Mpiare;    and  when  I  had  delivered  it,  he  dc« 
,  sire<l  me  to  come  to  him  again. 

Mr.  Speaker.  Did  yuu  come  to  him  again  P 

1      Fowler.    Mr.  Ma8c:dl,  of  Rumney,  sent  for 

me  to  his  house,  and  told  liie,  that  be  had  heard 

that   I    had   received  some  letter  from  Mr. 

Webber ;   and  when  be.  bad  opened  it,  and  taw 

2S 


827] 


8  WILLIAM  IlL 


what  it  was,  be  thoaglit  fit  to  send  it  up  to  the 
seeretarv  of  Rtate ;  and  I  made  my  mark  upon 
it,  that  I  miirbt  know  it  again. 

Mr.  Speaker.  Have  you  made  your  mark 
upon  it  P — Fowler.  Yen,  Sir. 

Herj.  I/>vf.l.  I  desire  he  may  he  asked,  whe- 
ther sir  John  Fen  wick  was  not  in  the  same 
room  when  Webber  delivered  it.^ 

Fmcler.  Yes:  but  I  question  whether  he 
saw  Mr.  Webber  give  it ;  for  be  delivered  it 
prirateW,  as  1  thought. 

Vr.  Speaker,  Was  sir  John  in  the  room  then  ? 

Fowler.  Yes,  sir. 

Mr.  Speaker.  Can  vou  say  any  thing  more 
of  sir  John  Fenwiek's  knowledge  ol*that  paper  ? 
■  Fowler.  No,  1  know  no  more. 

Serj.  Gould.  If  vou  please  then,  Mr.  Speaker, 
beeause  perha|i8  there  may  be  some  objections, 
that  we  should  give  an  account  of  Webbc?r,  we 
will  caU  a  witness,  that  we  have  done  our  utmost 
to  find  him  out. 

Membert.  No,  no. 

Sir  '1\  Fou'is.  That  which  I  was  going  to 
oA'tr  is,  that  this  proof  is  short,  if  that  which 
in  the  act  of  reversal  of  the  attainder  of  Mr. 
Sidney  is  admitted  to  be  no  proof  against  him  ; 
Ibr  the  act  recites  that  letter  was  tound  in  his 
closet,  and  proved  by  comparison  of  hands,  and 
yet  for  all  that,  this  sort  of  evidence  is  con- 
demned by  this  act  of  reversal  as  illegal  evi- 
dence, 'f'his  case  before  vou  comes  short  of 
that ;  for  here  is  no  proof  by  comparison  of 
haniis,  nor  that  it  was  in  the  possession  of  sir 
J.  Fen  wick :  but  only  that  a  person  in  the  room 
without  the  privity  of  sir  J.Fiinwick,  delivrred 
it  to  another  ;  and  the  witness  says,  he  did  it 
in  .1  privali.'  manner. 

Sir  R  ShoHtr.  \\  itii  submission  this  letter 
could  i«ot  be  rc.id  in  any  pl:ice  whatsoever 
against  sir  J.  Fenwick,  in  a  civil  cause;  fur 
t  vcTj  ill  that  case,  they  must  prove  it  to  be  his 
hand-wiitiiii>-  by  eoinpurikon  (if  hands. 

8eij.  CumiJ. '  1  think  not  to  insist  upon  it:** 


Proceedings  against  Sir  John  Fentoictf         [flS 

But  that  we  shall  desire  is  this ;  we  hate  no 
done  with  our  evidence,  only  we  shall  desi; 
the  worthy  member,  Mr.  Vernon,  to  give  i 
account  what  was  the  reason  why  air  John  hai 
not  been  tried ;  for  indeed  he  hath  very  mac 
trifled  with  the  government,  pretending  still  i 
make  a  free  and  ingenuous  confession. 

Sir  T.  Powyt.  I  am  of  counsel  for  this  gentli 
man  at  the  bar ;  for  his  lite,  for  his  fortmit 
for  all  that  he  hath  in  the  workl.  It  ii  oc 
only  this  ^ntleman's  case,  but  it  is  a  case  tbi 
may  be  of  great  consequence  in  all  future  thsa 
I  have,  as  it  was  my  duty,  attended  tor  at  kai 
these  twelve  hours,  either  in  opening  the  nut 
ter,  or  by  producing  such  evidence  as,  m 
hoped,  \\e  did  fairly  object  to.  Sir,  there  an 
several  things  oiTere^l  on  their  parts,  wbichj 
confess  we  little  expected,  and  which  will  Ri 
quire  something  to  be  said  to  ;  and  I  bavs  a 
great  deal  to  olfer  on  the  behalf  of  sir  J.  Fes- 
wick,  both  as  to  this  metliod  that  is  taken,  and 
what  is  a  Hedged  in  the  bill,  ami  what  is  con- 
tained in  the  iiidk;tmrnt  upon  which  the  bill  if 
founded,  wherein  I  desire  to  be  lieanl :  aoi 
since  you  have  been  pleased  to  allow  us  to  be 
counsf-l  for  him,  I  am  sure  we  shall  have  a  Air 
and  favourable  bearioq^.  We  have  a  great 
deal  to  offer  to  you,  iuMh  as  to  the  matter  w  tbe 
iudictmeut,  and  the  manner  of  it :  and  I  bop 
to  shew  yon,  that  the  iudiclment,  as  it  is  lad, 
does  not  contain  a  sufficient  charge  of  treasflB. 
We  have  likewise  a  srreat  deal  to  say,  as  to  the 
evidence  they  have  offered,  at  least  what  tbej 
call  so  :  but  I  must  make  it  my  request,  that 
we  may  have  liberty  until  to-murrow  nioroiDg 
to  majce  our  uhservaiions,  and  answtr  what 
ha'ihbeen  said  i)y  the  counsel  on  the  other  idde. 
I  am  not  in  a  very  ^od  condition  by  this  luDg 


*  'riiis  letter  was  written  with  a  biack-lcud 
pencil,  and  was  as  tulious  : 

**  U  I'lil  1  fcartnl  is  at  last  hap|>ened  ;  iiad  I 
«;<ine  aluiu>  1  liud  dune  it ;  hut  the  other  was 
b«.Mr.iyi'4l  Ihiiu  London.  It  is  liod's  will,  so  we 
nuist  submit.  I  know  iiDthiiiir  ran  sa\e  my 
lif«>,  but  my  lord  Carlisle's  gtMUiT  o\er  ti»  him, 
(meaniii;*:  kiiiif  \Vi]linm  j  kicked  by  the  rest  of 
the  family  ot'tlie  llowaviU,  to  he:;  it.  and  ofier- 
iii:jf,  that  I  will  lie  alinvit!  all  Ins  tinu\  where  I 
cannot  hurt  him ;  ami  tl::*t  1  will  never  draw 
snont  airainst  him  I  must  leave  it  to  ynu 
what  else  to  say.  All  I'l '.ends  must  bo  made. 
My  I.  id  Devonshire  ma;,  |ierhap>,hy  my  lady  ; 
my  !onl  liodolphm  uinl  iiiv  ionl  IVmhrokc.'by 
my  lady  ^lonti;oiner%  ;  \\i:  NtUon  by  the 
bishop  (it  (\iiilrrbury.     My  lord  Air.iii  niis;lii  ]  sny  no  more  now. 


enufaife  his  hntlhcr  S«>lkirk  to  use  his  niterest 
Willi  Kepp.l.  I  Micve,  if  my  lord  Carlisle 
would  go.  II  were  lK?st  betbiv  uiy  trill.  <»r  else 
they  will  rut  mc  short  tin*  w.'\nt  nf  time  :  if  he* 
can  prevail  with  liim  fur  a  pnnlon.  he  will  pro - 
rare  it  as  well  before  my  trial  as  alier|  at  least 


he  may  prevail  for  a  reprieve,  till  some  can 
come  over  to  him.  My  lord  also  will  have  an 
opportunity  to  engage'  Bentinck  [the  earl  of 
Portlanil,]  and  get  my  lord  Essex  to  join  with 
him.  I  cannot  think  what  else  to  say;  bet 
the  great  care  nmst  be  the  jury,  if  two  lyr  thrve 
eould  be  got  that  would  starve  the  rest ;  that  or 
nothinuf  can  suve  me.  .Money,  i  know,  wonld 
do  it ;  but  alas  !  that  in  not  to  be  had,  nnr  sliall 
I  livi  enoughfor  counsel.  I  beg  ui'  yon  not  to 
think  of  being  shot  up  with  me;'l  knowil 
u  ill  kill  you.  and  besides,  I  have  no  such  fiienil 
as  you  to  take  eare  of  my  business  :  th(iii;;hit 
would  be  the  eouifort  of  iny  hfc,  llie  little  time 
it  lasts,  to  hu\t:  you  with  nie  :  and  I  havethii 
only  comtoii  now  let),  that  my  death  will  make 
vou  easy.  3!y  dearest  life,  grieve  not  for  ne, 
iiiit  resign  me* to  (>od's  will.  You  will  bear, 
as  soon  as  tbev  bring  me  to  town,  where  they 
]iut  nw,  and  then  I  would  have  a  servant,  sf 
someliody  with  me.  I  am  interrupted,  so  can 
Engage  sir  John  LowlbeTi 


the  new  lord,  w  ho  has  more  interest  than  mj 
bod\ .  Let  m\  lord  Scaradale  engage  JcmaiM 
lo  engage  0\  erkirk  liir  me.  Speak  to  my  My 
Arlington.  Jf  my  trial  could  be  put  offtUltlM 
king  enme.'^  back,  there  would  be  i 
tunity  to  solicit  hifu." 


«39] 


fipott  a  Bill  of  Attainder, 


A.  D.  1696. 


[630 


■mttendance,  and  by  attendingf  mv  duty  in  the 
courts  in  WestmiDSter-liall  ;  antll  am  afraid  I 
am  not  now  in  a  condition  to  do  my  duty,  as 
may  be  expected  from  me.  1  must  owu  it,  I 
am  not  prepare«i  as  I  ou<;ht  to  be ;  and  I  hope 
when  there  ia  so  great  a  stake,  you  will  allow 
us  until  to  morrow  morn ini^. 

Sir  B.  Skoaer.  I  beg  your  favour  in  the  same 
manner,  and  to  the  same  eflect  as  sir  T.  Powys 
hath  done.  It  ia  to  be  acknowledged  there  are 
several  thiugs  offere<l  in  evidence,  which  is 
new  to  us  lawyers.  We  do  not  desire  to  trifle: 
we  do  not  desire  it  on  behalf  of  the  |irisoner  by 
way  of  delay,  but  on  behalf  of  the  len^ih  of  the 
proceedings,  tliatyou  w  ill  give  its  a  fair  heariog, 
as  you  liave  allowed  it  to  the  kio^'s  serjeaots ; 
and  that  we  may  make  that  defence  that  is  in- 
cumbent upon  us  in  discharge  of  our  duty  to 
the  prisoner. 

Mr.  Speaker.  Gentlemen,  you  must  with- 
draw.   (And  being  withdrawn,) 

Mr.  Smith.  1  would  not  give  an  opportunity 
to  any  man  to  practise  with  witnesses,  to 
hinder  the  truth  of  the  matter  from  appearing, 
after  they  have  heard  the  evideace  i))r  tlie  bill. 
I  woukl  know  what  list  of  these  witnesses  sir 
John  Fenwick  hath  given  in  ? 

Mr.. Speaker.  You  did  make  an  order,  that 
sir  John  Fenwick  should  deliver  in  a  list  of  his 
witnesses;  but  1  believe  he  did  not  send  in  a 
list  to  any  body  upon  that  account,  for  1  have 
made  no  order  tor  any. 

Loid  Omingthy.  l  am  convinced  that  you 
areobligedtosit  so  long  as  to  hear  the  wit- 
nesses on  both  sities  ;  and  therefore  my  iqo- 
tion  is  to  call  in  the  counsel,  and  ask  them,  if 
they  have  any  evidence  to  produce ;  but  1  tlu 
not  desire  the  counsel  should  go  on  to  make 
their  observations  to-nieht. 

Sir  Walter  Young.  I  think  you  are  rightly 
moved  by  that  noble  lord  that  spoke  last.  I 
think  if  sir  J.  Fenwick  hath  any  evidence  to 
produce,  he  ought  to  produce  it  now ;  and  that 
you  ought  not  to  give  him  time  till  to-morrow 
morning  to  produce  that. 

Mr.  Speaker.  Is  it  your  pleasure  that  an- 
J.  Fenwick  and  the  counsel  be  called  in,  and 
toU,  that  the  House  do  expect,  if  they  have 
any  witnesses,  thot  they  do  examine  them  to 
night ;  hot  as  to  their  observations  the  House 
wUl  give  them  time  till  to-morrow  morning  ? 

Which  was  generally  consented  to,  and  they 
were  brought  in  again. 

Mr.  Speaker.  Sir  Thomas  Fowls,  the  House 
bave  coasidered  of  what  you  said,  when  yon 
weat  out,  and  they  are  inclined  to  alk>w  yon 
time  for  making  your  observations :  but  tney 
bave  commanded  me  to  ask  you,  if  you  have 
any  witnesses  to  produce?  and  to  let  you 
know,  that  if  you  have  any  witnesses  to  pro- 
duce, they  ei^lMGt  you  would  produce  and 
aamiDCtnem  to-nignt. 

8b  T,  Fcmyt,  Sir,  1  would  acquaint  you  with 
an  the  opeuices  that  becomes  me  on  this  occa* 
■on.  1  must  confess  we  have  not  any  wit- 
iMHt  tlnlwepTopoietocall;  bat  when  we 


come  to  speak  to  the  matter,  we  hope  to  give 
you  some  satisfaction  as  to  that ;  out  at  pre- 
sent we  have  no  evidence  to  produce,  unless  it 
be  a  copy  of  a  record. 

Mr.  Speaker.  Sir,  if  you  please  to  withdraw, 
you  shall  know  the  sense  of  the  house. 
Accordingly  they  withdrew. 
Chan,  of  the  Exchequer.  I  suppose,  since 
the  gentlemen  have  no  living  witnesses  to  pro- 
duce to-night,  you  will  not  Uiink  fit  to  receive 
them  at  any  otner  time,  for  it  is  giving  them 
too  much  advantage ;  and  the  whole  meaning 
of  the  chicanery  of  the  counsel,  is  only  to  get 
time  to  reply,  Mr.  Dighton  having  heard  the 
evidence.  And  now  1  have  mentioned  him, 
give  me  leave  to  tell  you.  That  I  think  you 
cannot  rise  without  taking  some  notice  of  him. 
I  think  there  is  as  plain  a  sul'Ornation  proved 
in  Dighton,  as  can  be,  by  one  Uoe ;  and  when 
L  you  have  heard  such  a  character  of  a  man,  and 
I  (here  is  no  other  evidence  that  he  can  solicit,  I 
think  you  ought  to  take  care  that  he  he 
forth-comiitg ;  anil  that  he  should  be  taken 
into  custody.  I  think  yuu  may  give  the 
counsel  further  time  as  to  the  record ;  that 
cannot  well  be  falsified ;  though  1  believe  in  a 
matter  of  this  moment,  where  the  government 
is  concerned,  there  never  was  such  a  pro- 
ceeding by  the  counsel,  as  this  has  been,  to 
entertain  us  six  or  eight  hours  together,  by 
delays. 

Mr.  Smith.  I  suppose  before  you  hear  any 
thing  as  to  Dighton,  you  will  do  something 
as  to  the  putting  this  cause  off  to  another  day  ; 
1  hiunbly  propose  that  you  will  goon  tliis  again 
on  Wednesday. 

Sir  H,  Hohart.  When  it  is  proper  to  go  upon 
ways  and  means,  1  shall  come  into  it:  But 
while  this  is  upon  your  hands,  I  believe  you 
will  never  ^et  heartdy  into  otlier  business  :  and 
therefore  1  humbly  move  you  that  you  will 
go  upon  this  to  morrow  morning. 

lliereupon  the  house  came  to  these  Reso- 
lutions: 

Resolved,  That  this  house  will  proceed  fur- 
ther in  relation  to  this  business  of  sir  John 
Fenwick  to-morrow  at  twelve  o'clock. 

Ordered,  Tliat  sir  John  Fenwick  be  re- 
manded to  Newgate.  That  the  bill  be  read  a 
second  time  to-moirow  moniiog. 

Mr.  Riifte/.  1  am  unwilling  to  trouble  gen- 
tlemen at  this  time  of  night ;  but  I  would 
know,  Whether,  when  sir  John  Fenwick  Is 
called  in,  you  will  ask  him  any  questrons  upon 
that  paper? 

^embert.  No,  no. 

counsel  were  called  in,  and  withdrawn 


The 
again. 

Resolved,  that  this  House  being  informed 
that  the  counsel  for  sir  John  Fenwick  have  no 
living  witnesses  to  protluce  except  to  prove  a 
record,  that  this  House  will  not  hear  any  wit- 
nesses, except  to  prove  the  said  record. 

Ordered,  That  Mr.  Dighton  do  attend  to- 
morrow moming. 


S  WILLIAM  IIL         Proceedings  against  Sir  John  Fentaek,         [632 

ax  the  kiDj^'s  sorjennt  insisted  tbcre  was :  and 
if  there  be  so,  then,  iintler  lavoiir,  tliere  is  do 
reason  but  he  bhoulcl  have  the  benefit  of  an 
(inliiiary  trial,  Hbich  it  the  birth-ri^ht  ol'  ill 
the  kinjr's  subjects :  or  there  is  not  sufficient 
evifltMice  agfuinst  him  ;  aitij  it'  there  he  not,  it 
\i  ill  be  a  ^und  rcascm  against  making  a  par- 
ticular idw  for  taking  away  his  life :  For,  we 
think,  nothing  can  be  saul  for  this  law,  bw 
want  of  evidence ;  and  that,  to  my  under* 
standing,  is  a  very  odd  reason. 

Sir,  I  would  not  s|)end  time  in  taking  notice, 
That  the  meanest  8abj(H:t  in  the  kingdom  is 
entitled,  by  being  born  in  this  kingdom,  to  be 
trird  by  a  jury,  where  there  are  those  just  ad- 
vantages, that  cannot  be  bad  in  another  case: 
There  is  a  lil»erty  of  fiballcnging  S5,  withmK 
slieu  ing  any  rea8i)n,  and  as  many  more  as  tie 
can  any  way  object  tu  with  rea^ion.  The  wit- 
nesses arc  u*|)OQ  oath,  and  all  the  proceeiiiDes 
are  bv  cortatn  known  rules  and  methotis,  sod 


631] 

Noremlier  17.  Sir  John  Fen  wick  and  the 
couusei  un  both  sides  were  called  in. 

Mr,  Speaker,  Sir  Thomas  l*uwys,  3'on  that 
areof  cnnnBcl  for  sir  John  FeuuicK,  the  House 
agreetllast  bight,  to  give  you  time  till  to-ilay 
to  make  your  defence,  your  obttervalions  upon 
the  evidence  that  hath  been  given. 

Sir  T.  Pou}/$,  Mr.  Speaker,  I  am  of  counsel 
for  sir  John  Fenwick,  who  now  stands  before 
you  upon  the  greatest  concern  he  can  have  in 
this  world;  and  assi  you  ha%c  been  pleased  to 
assign  us  to  lie  of  cuuuncI  fur  him,  and  I  must 
own  ha\e  very  fuvournbly  heard  us  liithertt», 
80  I  shull  think  myself  very  unfortunate,  if  I 
should  let  full  any  expretision  in  his  defence, 
that  should  seem'indeceiit,  and  give  oifence  to 
this  House;  for  I  am  hmvc  I  have  no  intention 
to  do  it,  but  on  the  couirary,  to  behave  myself 
with  all  the  deference  that  n»  pus^iMe,  in  a'cuse 


of  this  nature. 

The  thing  I  shal!  insist  upon,  will  be  upon  |  notonly  by  Ihestatnieol  MagnaCharla,b»tby 
three  heads.     1.  The  mauuer  of  proceeding,  ,  the  common  law  of  England,  much  miire  un- 


and  method  that  hath  been  taken  in  this  prose- 
cution. 2.  I  shall  tab.e  notice  of  those  thiii;>;s 
that  arc  alledged  agtiiiist  him  in  the  bill,  un«»n 
whirl)  he  is  to  make  his  defence.  '6,  1  bhall 
beg  your  favour,  to  observe  what  sort  of  proofs 
they  have  offered  on  the  Dther  side,  and  which 
they  call  evidence. 

As  to  the  first  matter,  1  must  intreat  the  fa- 
vour of  you  to  be  thus  understood  :  That  when 
1  say  any  thing  in  relation  to  the  manner  of 
proci-rding,  I  do  not  speak  in  op|K)$ition  to  the 
jjowtr  of  parliaments  ;  for  1  ki-oiv  very  wrll, 
that  our  lives  and  estates,  ami  all  that  we  liaxc, 
are  snbjeel  to  acts  nf  parliament ;  but  1  h(>|)e 
you  will  permit  me  to  oiXvv  some  reasons,  which 
(I  hopo)  may  be  of  wcii^ht,  in  o(>|»osiiio;i  U\  the 
rxercisintf  of  that  iJOwiT  in  the  way  you  are 
now  goiii:^.  Noliody  can  say,  but  whrn  an 
act  of  parliauuMU  is  |i,isFt:d,  thoiiyfh  the  parly 
^•onrriKil  tna\  titink  it  ^*as  uj.on  haul  fMins *; 
yt'l  v*hcn  it  i>  heeonu.'  a  hiw.  it  is  noi  to  l.«.*  oji- 
pos»il.  I  rariJKil  say  hut  those  pcr.'Mis,  who 
in  the  la'-i  M'.s>iuns  <it'  parliamci.t  \vt.r«*  impri- 
t»oi:c.l  by  m  .li'i  i.r /'«/./  /Ja7()  and  ^^^llM  ;ini.Mii 
to  the  fai  t  i'(»ni|)!a:iie(l  (»f;  yri  wht-n  it  was 
pasjsed  into  a  law,  they  Wfr(''|(Mrall\  di-taiiicd  : 
Bill,  I  hope,  1  may  so  tar  lake  notice  »;f  linMr 
'•rtse,  as  some  kind  ot  rcas  1:1  a^^ainst  this,  to  the 
«:nd  that  those  lav.s  ma\  n -t  ^rcjw  familiar,  th.it 
thiy  may  n«»teasil\  U' oh. .lined  ;  hecans-j  pre- 
<'tj|ents  :;cin'rally  ^r»vv  ;  and  as  that  law  '  e\- 
•  po^t  facicj,*  cxtrnilid  to  liiRriy,  so  ihis  extends 
tfi  life  ;  one  precencut  is  apt  to  I.m  :;«t  aniMhir  ; 
.mil  tin  rcfore,  sun-,  you  will  be  careful  how 
\cm  pve  pri.-Cfi!enls,  especially  in  cnse  of  life. 

The  lirt  tirm;;  1  observe,  isohviinis;  that 
IS,  the  jjerson  ulio  i.>  ti»  l.(? -wim  n«<..|  hy  this 
hill  is  forthcoming,  in  ordrr  to  he  triiil  in  the 
ordinary  method  of  ju<:tice.  Me  is  not  onlv 
«iidiete4t,  and  actually  tmder  process  ;  but  he 
hath  |ileade<l,  au'l  he  is  ready,  when  his  ma- 
jesty, in  the  course  of  justite,  shall  call  upon 


cieiit  than  that  statute  ;    and  thnnsfh  the  pro- 
'  cecdings  therein  are  such  as  a  criminal  inaj 
I  sometimes  escape,  yet  the  just  advantages  arr 
I  so  much  lieyond  any  thiug  t»f  that  nature,  that 
I  K  hope  we  shall  never  complain  '>f  thataacient 
\  course  of  proceeiling  by  jury  :   lam  sure  it  is 
I  the  honour  of  our  governmeni,  the  mark  ol' 
our  free«lom,  and  envy  of  our  neighbours  ;  and 
<  I  ho|ie,  that  method  ol' trial  shallnevcr  lie  laid 
j  aside,  though  sometimes  it  may  not  have  the 
I  effect  that  is  desired  bv  it. 
I       I  w<mld  take  notue  to  you,  that  in  a  esse  ut' 
th(^  qfreatevt  crime,  and  most  notoriety  ot'  lact. 
I  yet  the    persons  concerned  in  it  werebntutrM 
l<»  their  trial,      'f  he  re«rieides,  who  did  not  fly, 
I  hut  were  lound  upon   tlie  restoration   of   kin^ 
j  ('liarlos  <2,  though  tl»eir  treason  had   the   wor^: 
eff'oct.  e\en    in  the  murder  ot  the  kin:»:  ;  y^- 
i  notwithstanding,  though  the  tact  was  so   no- 
torious, iho.se  that  were  found  upon  the  place 
I  were  admitted  to  their  trials  in    the    ordinary 
\  courst:  of  justice;  ahhough  ut  the  same  ilmt 
I  there  was  a  bill  of  attainder  aj^ainst  some  that 
fleit.  and  some  that  \%ere   dcid,  and   so   ccmUi 
not  he  iricnl. 
'       I  would,  with  your  favfMir,  likewise  observe. 
That  the  parliaments  of  England  have  been  $0 
.  far  from  depnviuif  persons  from  ih^r  ordinary 
■  trials,  that  whereas  the  common  law  of  Kug- 
land  sa\s,  tliat  persons  out-lawed   for  treason 
>  aiid  fei(Mi\,  it'tnken,  shall  be  put  to  death  with- 
out trial  ;  \et  the  parliament,  in  the  reign  t»t' 
Hilward  (>,    made  a  law,  pntvidini;,  that  cri- 
minal* that  reiiirnrd  wiihin  a  year,  aceonling 
lo  that  law,  should   be  admitted  to  their  onli- 
nary  trials. 

Sir,  all  along:  the  statutes  run  in   favour  of 
trials  ;  there  are  no  less  than  two  acts  of  pnr- 
.  liament  in  the  reitrn  of  Kdwarc!  6,  in  ihe  first 
and  tilth  year  (»f  his  reign,  that  say,  there  shall 
'  not  he  less  than  two  wiinesses  against  any  per- 
son tor  treason  :  And  1  hope  I  shall  never  see  a 


iiini,  to  undergo  his  trial ;    and  cither  there  is  j  law  made  so  much  in  opposition  to  those  arts, 
><uUieii'nt  e\idcLJcc,  legal  evidence  against  him,  \  as  that  a  [>er;>on  shall  be  sentenced  to  death 


upon  n  Bill  of  AiimnSSr. 
1L9  one  witDt^s^  as  I   shall 


^TLihont  so  mnch 
shew  by  and  Uye. 

Perhap?i  ii  loi^bt  be  Ibougbt  e  Kirn  ordinary, 
Thai  in  Ute  same  parburoenl  thai  pussed  a  bill 
fi*r  rcguliiling  triaJs  in  cases  of  high'trea&ont 
rft^uiring'  two  wrluesi^ea  ^\{h  great  strictness, 
nnd  giving'  furtUer  advantages  to  the  ertmiual 
tbati  eter  wvre  before  allowed,  an  act  Ehniild 
pass,  to  put  a  persoD  to  death,  wiUmiit  any 
trmt  at  all.  And  let  any  one  compare  the  pre- 
amble ot'lbai  act  vkitii  tbis  hill. 

ISir,  1  take  it,  wttb  bumble  su))ti>is%ionf  that 
tbe  present  case  it  not  ut  aH  to  tx^  liketieil  to 
moat  of  tho^e  bills  of  attainder  that  may  be 
csted  ;  tbose,  when  th«y  cocne  to  tie  looked 
mta,  will  be  tbuml  eiiber  to  have  passed  against 
titcti  persons  as  fled  fro  in  justice ;  and  tliniein 
tUey  only  pursued  tbe  role*  of  the  cotimiwn 
law,  which  allowed  them  to  he  out- la  wed,  »nd 
by  coofieituence  to  he  attainted  :  and  the  jiar- 
hameut  theretore,  m  altajntia^  lliem,  did  hut 
the  lame  thing;  and  therein,  there  wan  nolhini^ 
done  exlruorihnary.  True  it  i^,  that  nbere 
riersona  have  bet-u  furlbcutiim|r,  thei'e  have 
Lret)  ftome  fe^v  bdls  of  attainder:  but  I  ii^ill  pre- 
•ufiie  to  say,  they  are  never  meationed  wiihonl 
fieary  oeuaurtiS,  ami  a  grent  complaint  agrunst 
ihem, 

Thid  cttiiseia  not  like  the  late  inslaace  of  th'' 
bdl  of  aUamder  againt^t  the  duke  of  Moo- 
tuouth,*  for  be  was  present  in  the  kingiloin  : 
yet  he  was  hi  direct  up poi^itiou  lo  any  method  ol 
trial ;  be  was  in  defiance  to  hII  rourts  of  jus- 
tice t  but  here  is  a  pcrston  u  Iio  submits  himseJt, 
and  hatb  pteadefl,  and  fttand»i  reatly  to  he  tried ; 
audi  hope,  I  miiy  take  notice,  to  lake  oji' all 
prejiiihre  tliat  rnay  be  raided,  ihat  tht<«  gentie- 
niaa,  though  he  wa»>  of  the  parliament  that 
ptntd  that  bill,  yet  he  wuh  not  in  town,  until 
af  f«a*l  a  uwuib  after  the  bill  was  passed* 

I  do  aijree,  there  art  some  c^ses  h  here  per- 
fM»M  have  been  attainted  without  bein^  m knitted 
to  be  tried.  In  the  lie[»innijig  of  the  reign  of 
Edward  3,  Roger  Mortimer  wus  attamted  and 
eatecuted,  without  being  tned  ;  but  98  td,  3, 
il  wa*  feverstd,  because  he  was  nut  brought  to 
jotlginent  according  to  the  law  of  the  land,  1 
£d.  3.  The  like  m  the  case  of  Edmund  earl 
of  Anmdel:  but  4  £d.  3,  Hich:ird  hisa  sdu  pe- 
litioiied  iu  purham*:^ut,  aetiing  forth  the ^  pro  * 
«9eeding«  to  be  agamst  the  Great  Charter,  antl  in- 
Mlili^t  that  there  ought  to  bare  been  due  pto- 
efeaa  of  law,  and  be  was  then  i-esturetl  in  part  -, 
hot  28  Ed,  3,  there  was  an  act  of  revej-sal,  de- 
fsUriog,  that  it  clearly  appeare^l,  tlntt  the  said 
£dtDund  was  unduly  put  tu  death ;  and  that 
the  statute  by  vihich  he  was  attainteil,  was 
vmdi  erraneoui,  and  null .     There  is  an  instance 


*  8e€  this  Gate,  vol.  ll,  p.  10(25,  in  a  Note 
to  wbrcb,  p.  1040,  is  contained  some  matler 
«Oiw    1  I   m!c  of  passing  the  Act  of  At' 

till.  1      lu  the  works  of  lortl  De- 

ere, see  iii^    I  rial,  vol,  11,  p.  509,  printed 
I,  is  an  article,  nUilled,  Obbervatiou:^  upun 
Attainder  of  the  late  duke  of  Mooiooutli, 
tke,  alio,  2  Ralph,  143. 


D.  \696.  [634 

in  3$  H.  8,  Col.  4.  Inst,  foL  S7.  of  Thomaii 

Cromwell  earl  of  Essex,  who,  though  he  wa» 
iu  custody  tu  the  Tower,  yet  he  was  attainted 
without  being  tried  ;  but  the  words  of  my  lord 
Coke  are  as  follow,  ^  Auferat  ublivio.si  potest, 
*  si  non  utrumq;  silentium  te^at:'  for  the  more 
high  iind  absolute  the  Jurisdiction  of  th«  oonH 
is,  the  more  jtiHt  and  honourable  ought  it  to  be 
in  its  proceedings,  ami  to  give  examples  t>f  jus- 
tice to  inferior  courts.  And  he  atlds  I'urther,  to 
the  end,  as  1  apprehend,  that  the  reversal  of 
this  attainder  tnay  be  tif  ill  uso:  I  am,  says  he, 
confiilently  (>ei^uudeil,  sorb  if'orthy  atid  ho- 
nourable  members  bhnll  from  time  to  time  be  of 
both  huUNfs  of  paHiameni,  as  never  any  uttaiu- 
iter,  uhen  the  pers^m  is  furtb-coming,  shall  be 
bad  herettrtiT,  without  hearing  of  him  ;  which 
I  understiitHl  to  lie,  without  trying  of  him  : 
nnd  it  is  ntemorahle,  what  my  lord  Coke  re> 
eaes,  that  he  who  thus  died,  alteuipted  the  hke 
ogniust  auother, 

Tiiere  is  another  caae,  of  Thomas  Seymour, 
ailuiirai  of  England,  who  likewi<ie  was  attaint- 
td  by  act  vf*  parliament;  aud  as  d  appears, 
wit  bout  execution  ,  you  bureau  abcodnt  there- 
of in  tbe  second  part  of  the  History  of  the  He- 
formation,  toL  98,  ^,  WO,  wUiiber  I  v-ill  refer 
yon,  only  to  read  the  sentence  of  the  learned 
huihor,  there  pronouticed  ag^ainsthmi.  That 
Jauercase  is,  that  of  mv  lord  Stratford,  which 
every  body  kivows.  1  shall,  as  the  best  account 
of  that  matter,  crave  lea»e  to  read  the  wonts  of 
the  parliament  to  the  act  of  tbe  reversal,  f 
will  not  ( rouble  you  with  reciting  tbe  whole, 
but  only  read  the  begintiing,  and  some  part 
thereof  in  another  place,  "  Whereas  Thomas, 
late  earl  of  Strafford,  was  im[ieaelied  oi  high- 
IreasffH,  u|H>n  pretence  of  endeavouring  to  sub* 
vert  the  fundamental  taws,  and  called  to  a  pub* 
lie  and  solemn  arraignment  and  trial  before  the 

iMiers  in  parltauient,  where  \w  iim<le  a  particu  ■ 
ar  defence  to  every  article  ohjected  agiunst 
him  J  insomuch,  that  tbe  turbulent  pany  Ihen 
seeing  no  hopes  tu  effect  iheir  unpist  designs, 
bv  an  ordinary  way  and  method  of  prckceediwgB, 
did  at  h^i  resolve  to  attempt  the  destruction 
and  atlaiuder  of  ihc  carl,  by  an  act  of  pnrha- 
inent,  tu  be  theicfiHe  purptisily  madr  to  con* 

demn  bim    upon   accumulative  trenson,*^ 

And  then  it  goc^  on  to  shew,  it  was  carried  by 

ihe  tuiiiuit  of  the  people  ;  and  then  tullows 

'^  And  to  tbe  end  that  right  be  done  to  the  me- 
mory of  the  deceas^nl  earl  of  8tralfuid  afore- 
said': be  it  further  enacted,  That  all  records  and 
proceediugs  of  parliament  relating  to  tbe  said 
attainder^  be  whrdly  cancelleil  and  taken  otf  the 
file,  or  otherwise  defaced  and  ohlit%^rated,  tuihe 
intent  the  same  may  not  be  visible  io  after 
ogen,  or  brought  into  example  to  ilie  prejudice  of 
any  person  wbaisoeverJ*  So  that  the  parlia- 
ment that  enacted  that  reveraal  did  consider 
those  proceetliugii  as  very  evil  and  unjust,  aad 
was  not  willing  there  should  be  any  remain*  of 
such  an  example  to  future  ages. 

Sir,  having  made  these  observations  as  to  the 
manner  of  proceeding,  1  oomo  now  to  that 
which  b  tbe  subject  niaiter  of  tbe  bill  at  pre* 


635] 


8  WILLIAM  III.         Proceedings  against  Sir  John  Fentdck^         [636 


Sent  before  you,  and  which  we  take  to  be  the  convietecl,  uobody  can  say  it  comes  near  trea- 
chaiveagaiostsirJ.  Fcuwick  :I  must  crave  icate  '  sun,  by  unfair  means,  to  contrive  to  putoff  bic 
to  ODsenre,  that  in  all  courts  of  justice,  where  •  trial. 


any  person  is  accused,  he  is  to  make  hisdef(;uce 
'secundum  allei^ata  ct  prubuia:'  it  is  not 
enoQgh  that  a  matter  is  jiruved,  if  it  be  not  «l- 
ledg;^;  nor  that  it  is  alledi^cd,  if  it  l>e  not 
proved ;  but  if  it  be  both  alled{^  and  proved, 
then  it  is  a  full  charge,  and  requires  an  answer. 
It  it  not  only  the  law  of  England,  but  I  believe 
all  nations,  and  wherever  any  (lerson  is  to  make 
his  defence,  especially  in  capital  crimes ;  tliat 
to  which  be  is  to  answer  must  be  alledged 
mgainst  him :  from  whence  1  shall  obsOTe 
what  is  alledged  against  sir  J.  Fenwick ;  for,  I 
hope,  we  are  not  cuucerncd  to  defend  him  fur- 
ther than  as  to  what  at  this  time  he  is  charged 
with.  This  bill  of  attainder,  as  it  is  drawn,  and 
now  stands  before  you,  doth  not  so  much  as  al- 
Jedge,  or  say,  that  sir  J.  Fenwick  is  guilty  of 
the  treason  whereof  he  was  indicted  ;  and  that 
hath  prevented  us  from  producing  witnesses  t(» 
that,  and  several  matters  which  the  king's 
counsel  have  entered  upon :  for  though  you 
have  permitted  them  to  ('xamine  witnesses  to 
several  things  quite  out  of  the  bill :  yet,  I  hope, 
you  are  not  come  to  any  resolution,  that  these 
matters  shall  be  thought  fatal  to  sir  J.  Fenwick, 
that  are  not  so  much  as  alledged  against  him. 
We  do  not  therefore  think  we  are  bound,  or 
ought  to  follow  them  in  those  things  that  are 
totally  out  of  the  bill ;  and  therefore  his  being 
{^lilty  is  not  now  the  question,  because  it 
18  not  achargc  upon  him. 

The  first  tiling  that  is  alledi;cd  in  the  hill  is, 
That  sir  J.  Fenwick  was  indicted  at  the  ses- 
sions, for  that  \%hich  is  laid  in  the  imlictinent  Lo 
be  treason  (which  by  and  bye  1  shall  crave  leave 
to  be  heard  to) ;  and,  I  think,  nobody  will  say 
this  alone  docs  retiuire  any  answer,  further 
than  to  own  the  fact  or  to  deny  it :  and  »e  do 
admit  that  he  was  so  indicted.  1  need  not 
lalH)Ur  much  t<»  clear  hini  of  the  conseq\H;nce 
of  that  alone  ;  for  very  often  innocent  persons 
have  been  indicted  and  accused  (for  an  indict- 
ment is  no  more  than  an  accusation)  ;  and  this 
bill,  as  1  have  observed,  doth  not  say  he  is 
guilty.  When  the  hill  hath  recited  that  mat- 
ter, it  proceeds  lo  take  notice.  That  they  by 
some  unfair  prevarications  (for  so  1  aijree  they 
were,  if  the  facts  allcdged  in  the  bill  are  true, 
which  by  the  way  hath  not  been  yet  proved, 
by  producing  any  one  witness)  did'  obtain  the 
king's  clemency  to  put  off  liis  trial,  in  expec- 
tation of  an  ingenuous  confession,  which  the 
bill  tak(^  for  grantc.l  he  hath  prevaricated  in, 
by  charging  several  pci*sons  of  honour  and 
fitlciity  with  matters  of  a  hitfh  nature,  only  by 
hear-say  ;  and  by  usin|^  other  unfair  artifices 
tfi  put  off  his  trial.  How  far  it  is  made  out, 
tliit  I  must  submit  to  vuu  ;  we  think  at  present 
tiierc  is  no  proof  of  it,  and  by  consupiencc  we 
are  not  concerned  to  answer'  ii :  but  had  they 
prived  it  as  fully  as  h  is  luil  (though  far  be  it  j 
from  me  to  excuse  such  a  lM.-haviour) ;  — ^* 


The  next  tiling  the  bill  recites  is.  That  oae 
of  the  witnesses,  who  rai^ht  have  been  |in|. 
duced  against  hiia  upon  his  trial,  if  it  had  |iro. 
cceded  as  was  intended,  is  since  witbdrauQ. 
I  caunoi  say,  but  Gooduum  is  witlidrawu :  but 
as  the  bill  does  not  so  much  as  alledge,  tbilit 
was  by  the  means  or  procursment,  no  sor 
privity,  of  sir  J.  Fenwick ;  so  from  tlieooethit 
part  of  the  bill  charges  no  offenoe  home  tqiir 
J.  Fenwick:  for  in  case  the  same  witnen 
had  happened  to  have  died  by  the  act  of  Goi, 
it  would  not  have  been  said  to  have  bees  a 
good  reason  for  this  bill  of  attainder  agaiost  fir 
J.  Fenwick,  imless  he  had  contributed  to  it. 

From  these  premises  follows  the  enacliof 
part,  That  sir  J.  Fenwick  be  attainted  of  liigb- 
treason  ;  and  in  future  times  the  act  muabe 
supimsed  to  he  grounded  upon  the  induceucst 
to  it.  And  I  humbly  submit  it  to  you,  Wb^ 
ther  this  bill,  condemning  him  for  higii-tm- 
sun  upon  such  recitals,  will  be  thought  to  he 
reasonable  ? 

These  being  the  allegations  of  the  bill,  I  wi 
now,  with  your  favour,  come  to  that,  wbich 
they  on  the  other  side  do  call  proofs ;  aod  1 
must  humbly  observe  to  you,  and  submit  it  ti 
your  judgment.  Whether  in  the  case  where  a 
man's  life  is  to  be  taken  away,  by  a  subsequcat 
law  made  on  purfiose  for  him,  the  pmofs  in  thil 
case  ought  not  to  be  much  more  evident,  tbu 
if  he  were  to  be  tried  by  a  law  already  a 
being?  in  my  poor  apprehension  (1  s|i«ak  it 
with  all  submission  to  you,  Sir,)  it  would  bctoe 
much  at  once,  to  make  a  subsequent  law  to 
condemn  a  man  to  death,  and  to  do  itupoo 
doubtful  and  uncertain  evidence,  or  rather  udob 
no  pi-oof  at  all.  Nothing  could  excuse  suclii 
law,  hut  an  undeniable  proof  of  the  fact.  And 
therefore,  surely,  the  position  we  find  of  Ur. 
St.  John's,  in  my  lord  Strafford's  case,  ii  «f 
most  dangerous  consequence*  I  am  al'raid 
none  arc  safe,  if  that  be  admitted,  that  a  Mib- 
sequeiit  law  may  take  away  a  man's  life  witli* 
out  any  evidence,  other  than  the  private  o^- 
uitui  or  conscience  of  every  particular  Uv- 
maker.  He  is  pleased  so  to  assert,  thatitmaj 
\ni  done,  as  in  Rush  worth's  History  of  thiA 
Tria'i,  fol.  677.  I  am  sure  if  this  be  so,  at 
man  knows  how  long  his  life  is  his  owd;1 
hope  this  doctrine  shall  never  be  followed  «r 
approved.  Sir,  we  have  the  happiness  to  lift 
under  an  eblablishment  that  every  man  dots,«r 
may  kiit>\v  the  law  he  is  to  go  hy :  every  ose 
is  iMtiind  at  his  jieril  to  take  notice  of  the  laws, 
and  to  act  accordin;>iy,  because  they  mayki 
known  :  but  at  this  rate  none  hut  prophets cSi 
li\e  amongst  us. 

In  the  next  place,  I  would  observe  vhit 
course  they  have  taken  in  their  evidence  wbf 
arc  the  kioi^'scounyel. 

Firirt,  They  have  betaken  themselves  lo  IJNl 
which  is  not  alledgetl  in  th.e  bill ;  and  we  thipk 


to  excuse  such   a  lM.-haviour) ;  yet  ^ 
whi-n  a  criminal  is  to  be  tried  for  that  which  ,  that  this  is  not  agreeable  to  a  couraeof  ji 
wil!  be  of  fatal  consequence  to  him  if  he  be  i      In  the  next  place,  to  make  out  whiitklj 


37J 


upon  a  Bill  of  Attainder, 


tsast  on,  ihey^  bare  produced  but  one  )>er8on 
itt  comes  bither  viva  voce  to  speak  to  it ; 
od  1  must  tnke  notice  to  you,  that  lie  is  not 
ipoD  oath.  I  know  fery  well  it  is  not  your 
mine  iu  this  boose  to  administer  an  oath ;  but 
1  know  very  well,  though  it  is  not  your  course 
in  this  bouse  to  administer  an  oath,  yet,  I 
hope,  that  is  so  far  from  being  a  reason  why 
Ik'n  bill  should  pass  without  an  oath,  that  it  is  a 
fosd  reason  why  such  a  hill  should  not  beg^n 
un:  there  is  no  jilace  in  the  world  uhere  a 
Mnmi  is  sentenced  to  death  without  an  oath. 
Id  the  case  of  my  lord  Strafford,  the  procced- 
nz  first  was  by  way  of  impeachment,  and  the 
TJlDeees  had  oeen  first  examined  upon  oath 
it  tbe  House  of  Peers ;  and  that  bill  of  at- 
Hiiider  takes  notice  of  it,  reciting  that  it  had 
keeafnlly  proTcd;  and,  by  consequence,  we 
may  suppose,  tliat  the^  would  not  otbenTise 
hiTf  pasised  it,  that  being  the  ground  of  their 
proreediiig  upon  that  bill  of  attainder:  but  for 
tbe  bill  tu  be^in  originally  in  this  place,  to 
ibrm  such  a  judgment,  the  heaviest  that  can 
>e  pnmoiincod  against  a  man,  a  judgment  of 
leaih,  corrupting  of  his  blood,  and  forfeiting  all 
ie  has  in  the  world ;  and  this  upon  hare  nlle- 
rstjoni:,  without  so  much  ns  the  sanction  of  an 
iaib,  is  extremely  hard.  Mr.  Porter  is  such  a 
Mfwn,  that  I  know  not  how  he  hath  gained  so 
Badi  credit,  that  this  act  should  pass  upon  his 
karole  to  take  away  the  life  of  a  man.  He 
vas  lately  of  that  horrid  conspiracy  of  the  as- 
tsKiuation  of  the  king ;  and  shall  that  man, 
»fao  was  so  lately  of  that  villainous  disposi- 
Md,  to  be  engagcil  in  a  crime  of  that  black  na- 
Svrp,  and  not  convicted  by  his  own  conscience, 
bat  by  the  danger  he  hail  run  hirosrif  into,  not 
n  much  as  pardoned  his  crime,  but  at  this 
time,  if  I  may  without  offence  use  that  ex- 
prn»i<in,  dniifsring  for  his  panion  ;  I  say,  shall 
tlii  person's  life  lie  taken  away  by  his  panile? 

Sir,  The  next  thing  I  woufd  go  to,  is  that 
(wbich  likewise  they  call  evidence),  Mhicli  is 
ai  examination,  as  they  term  it,  of  fjoodman, 
tikea  betitre  a  justice  of  ])eacc :    hut  he  was 
M  examined,  and  I  must  insist  upon  it,  that 
tfiotigh  you  permitted  it  to  lie  read,  yet  I  did 
«bHT«e  you  did  not  declare  it  to  he  evidence; 
Itt  you  were,  i  presume,  willin;;  to  lirar  alt 
tbiD2«,  and  llu-n  judge  whatwoidd  he  tlio  c>vi.  | 
dence.    And,  I  think,  the  king^s  fourisel  f'id  ! 
UK  press  it  further.     Sir,  as  this  is  not  cvi-  | 
^nee  that  would   be  allowe<l  in  un  infciior, 
wait,  so,  1  hope,  you  will  not  allow  it  to  he  \ 
evidence  here ;  tor *t hen  it  is  hke  to  he  followed 
^  other  courts,  who  observe  the  proceeilings 
Kreai  Ihcir  great  rule,     his  only  what  Mr.  { 
Cwxhnao  thought  fit  to  write  down  without ; 
kiog  fxamined. 

Nr.  the  uext  thing  they  resort  to  is,  What ' 
^oian  swore  upon  his  examination  in  ano  - 1 
^ cause,  where  sir  J.  Fenuick  was  neither . 
F^7  nor  present.  Sir,  there  are,  I  suppose, ! 
^  reasons  against  that  sort  of  evidence  from 
'■Hiral  justice,  that  it  is  not  admitted  in  any  : 
^rt:  because  tliere  may  be  a  weak  defence, .' 
''the  petfon  that  awean  it  against  cue,  per- . 


A.  D.  1696.  [6S9 

haps  may  not,  when  lace  to  face,  have  the 
confidence  to  persist  in  it,  in  case  it  be  false, 
against  another ;  or  at  least  that  person  who 
was  not  a  party  before,  when  he  comes  upon 
his  trial,  may  think  of  such  questions  as  may 
go  a  great  way  to  discover  tbe  truth,  may  pro- 
duce such  evidence  against  his  credit  as  may 
overthrow  it. 

But  if  what  is  sworn  at  one  time  agaiust  one 
man  must  be  always  taken  for  truth  against 
all  others,  the  trial  of  one  of  the  company  is 
the  trial  and  condemnation  of  all  the  rest :  and 
how  contrarv  is  this  to  a  fundamental  rule  ia 
our  law,  That  no  evidence  shall  be  given 
against  a  man,  when  he  is  upon  trial  for  his 
lite,  but  in  the  presence  of  the  prisoner ;  be- 
cause he  may  cross-examine  him  who  gives 
such  evidence  ;  and  that  is  due  to  every  man 
in  justice. 

But  1  would  with  submission  inquire,  how 
they  are  sure  that  Goodman  would  have  swore 
this  matter  again,  if  he  was  now  fi)rth-comingP 
Because  he  did  swear  so  in  Cook's  cause,  is  it 
necessary  that  he  would  swear  so  again  now, 
if  face  toVace  with  sir  J .  Fen  wick  ?  >(obody  can 
say  so  positively  and  absolutely ;  they  only  can 
imagine  it,  because  he  once  swore  it,  therefore 
it  is  possible  that  he  would  do  so  again: 
Whereas  we  may  as  well  say,  he  did  then 
swear  to  save  bis  own  life ;  and  having  done 
that,  and  found  an  opportunity  to  get  out  of  tbe 
way,  his  own  conscience  might  put  him  upon 
flight,  tu  prevent  his  doing  of  it  again,  and  that 
might  be  the  reason  for  the  withdrawing  of 
himself.  However,  I  insist  upon  it,  that  there 
is  no  proof  that  it  was  by  the  procurement  of 
sir  J.  Fenwick:  The  bill  does  not  alledge  it^ 
and  the  proofs  do  not  come  up  to  it :  Nay, 
there  is  nothing  offered  to  such  purpose,  save 
only  that  Mr.  Porter  was  pleased  to  say.  That 
another  man  told  him,  that  the  300  gumeas  he 
was  offered,  and  300  more  he  was  to  have  re- 
ceived, were  to  have  come  fnini  sir  J.  Fen- 
\^ick:  hut  hearsay  evidence  is  to  he  rejected, 
especially  against  a  man  for  his  life;  because 
every  man  is  at  liberty  to  talk  at  large :  But 
Ciod  forbid  that  that  should  be  allowed  for 
fvidrnce! 

The  next  tiling  they  went  ufion  was  what 
>Ti'  Roesni'l ;  that  Mr.  Oi^hton,  who  by  your 
permission  is  solicitor  for  sir  J.  Fenwick,  was 
inipnrlr^-  of  him  what  he  could  say  to  take  off 
Goodniuii's  evidence:  The  words  I  think  be 
used  were,  What  he  could  say  to  discredit 
Gooehnan's  evidence ;  and,  1  hope,  that  does 
no  way  affect  sir  J.  Fenwick :  For  it  does  not 
appear  that  he  had  any  authority  from  him; 
hut  it  is  only  sus(>ected,  because  he  is  now  so- 
licitor for  hna,  which  he  was  admitted  to  after 
the  time  spoken  of.  But  I  take  the  words  to  be 
nothing  relating;;  to  Goodman's  withdrawing  of 
himself;  but  t<j  inquire  what  he  could  say  to 
discredit  his  testimony,  which  supposeth  be 
would  appear  ;  and  iniports  the  quite  contrary 
of  withdrawing  l.imself :  and  if  had  ffone  no 
farther,  I  think,  there  bad  been  no  &nlt  in 
that;    for  any  solicitor  may  enquire  up  and 


639J 


8  WILLIAM  IIL  Proccedhfgs  against  Sir  John  Fenvnci,  [64 


down  lor  the  acUantaj^e  oi'  Uts  client ;    aiul  the  [  me  where  siu'li  an  accusation  tras  ever  agrev 


word  solicitor  i in  ports  his  efn|)iovntuiit.  Ak 
to  the  offer  iMr.  Ilou  suys  he  matie  him  of  a 
very  ffreat  recomfieDCi',  how  far  he  ih  (f  uihy  o\' 
that,  I  suppose  he  can  f^ire  some  account,  if 
you  should  please  to  enter  into  an  examination 
of  it ;  and  as  I  find  he  docs  not  douht  to  clear 
himself:  so  that  sir  J.  Fenwick  is  in  no  sort 
prove«l  to  be  privy  to  Mr.  Gowlman's  h  ith- 
4irdwing  himself,  much  less  to  he  proved  to 
have  had  a  hand  in  it. 

There  is  one  thin^  more  I  wouUl  offer,  and 
that  is  ijrrounded  upon  the  bill  of  indictment 
preferred  at  the  Old  Uailey  aj^aiust  sir  J.  Ken- 
wick  ;  That  the  matter  in  the  very  indictment 
that  thev  have  read  on  the  other  side,  as  it  is 
there  laid,  and  as  far  as  it  hath  been  otfered  to 
l>e  here  proved,  does  not  amount  to  treason  ; 
or,  at  least,  it  hath  l)een  made  a  very  (j^reat 
iloubt,  and  by  some  u  ithin  these  walls :  nut  this 
I  offer  with  all  submission  ;  1  have  the  author 
in  Diy  band,  who  is  a  person  of  note  of  the 
king's  counsel ;  he  hatli  furnished  me  with 
such  arguments  as,  I  hope,  I  ma\'  be  admitted 
to  put  you  in  mind  of  without  offence. 

The  mdictoitat  lays,  That  there  was  a  con 


to  be  more  thuu  a  conspiracy  to  levy  war  ;  an 
that  such  a  conspiracy  ivas  ever  agreol  to  I 
treason  within  the  statute  of  Edward  3,  ti 
within  these  few  years." 

ISir,  now  I  must  huuibly  submit  it  to  you 
whether  this  be  any  tiling  more :  and  tor  lb 
purpose  you  will  please  to  consider,  What  tlii 
iireM'nt  bill,  and  what  that  bill  of  indictmen 
IS :  for  it  is  not,  for  that  Charoock  was  sen 
into  Trance  to  solicit  forces  ;  but  only  tliatsii 
J.  Fenwick  was  at  a  meeting,  wheru  they  ilii 
agree  so  to  do.  Calhn^r  in  foreign  forces  ii 
levyinij^  war,  but  conspiracy  to  levy  warisDol 
treason,  unless  if  be  actually  doue :  a  coii< 
spiracy  to  call  in  foreieo  forces  is  DOtking 
more.  And  therefore  I  humbly  insist  upoo  it, 
That  neitlier  by  tli is  bill,  or  by  the  indictiDcnt 
recited  in  it,  or  the  proofs  offered  beibre  you, 
any  thing  is  ebarged,  but  only  an  agreeiueal 
at  the  meeting  mentioned  by  captain  Porter,  a 
single  person,  aud  he  not  upon  oath,  to  call 
in  foreign  forces.  For  he  only  says,  Tbal 
Charnock  told  him  he  had  been  in  France.  ] 
shall  not  trouble  you  any  further  ;  we  have 
not  thought  fit  to  produce  tiituesses,  ir.r  Un 
apiracy  and  agreement  to  call  in  foreign  [lower,  i  reasons  1  have  ottered:   tor  that  we  do  wsk 


find,  that  sir  J.  Fenwick  throughout  the  bill ii 
chargeil  with  being  guilty  of  treason  ;  sod  M 
are  not  willing  to  enter  upon  the  defence  of  a 
matter  not  charged  upon  him.  I  hope,  Sir, 
you  will  not  make  a  preccdeut,  That  where  i 
person  is  indicted,  and  ready  to  abide  bis  trill 
HI  the  ordinary  course  ot  justice,  as  sir  J. 
Fi'uwick  now  is,  that  he  might  be  taken  out  of 
the  hands  of  the  ordinary  iudges,  and  be 
brought  to  this  bar,  to  receive  his  trial  here. 
.\  matter  of  this  nature  may  be  of  very  grot 


and  to  that  puriiose  to  send  Charnock  to  j 
France  ;  but  tue indictment  does  not  say,  That . 
Charnock  was  sent,  only  that  there  was  a  , 
uieeting,  and  an  agreement,  and  a  conspiracy,  J 
to  send  him  :  So  the  indictment  does  not  lay  { 
it  as  a  thing  done,  nor  docs  the  bill  charge  it  so*;  : 
but  ouiy  takes  notice,  That  he,  1  incin  sir  J.  j 
Fenuick,  was  indicted  f'>r  conspiiing  and  ■ 
Agreeing  to  call  in  a  foreign  force ;  so  that  '' 
this  bill  does  not  say  that  Charnock  was  sent.  I 
Aud  I  appeal  to  you,  AVheihcr  it  he  proved  | 

that  he  was  sent:  For  Mr.  Porter  sa}'s  no  I  con.s(npieucc :  \M' know  at  present  ufjon  uint 
more,  but  that  there  was  a  meeting  at  the  i  ground  \«e  stand  *,  for  by  the  statute  ofEduard 
King's  head, and  he  named  sir  John  Fenwick  .  .'{,  we  know  what  is  treason;  by  the  Inusti* 
to  be  one"  who  was  present ;  and  there  it  was,  |  tutcs  ot'  Eduard  6,  and  the  late  act  of  treason, 
be  savs,  agreifil,  that  Charnock  should  be  sent  j  we  know  uhat  is  proof;  by  the  statute  of 
iiUo  ("ranee.  Now,  if  there  u  as  nothing  more  ;  Magna  Chnrta,  we  know  we  are  to  be  tiied, 
tlian  an  agreement  aud  conspiracy  to  do  it,  and  j  <  per  legem  terrui  et  |>cr  judicium  parium;' 
no  tnriher  act,  hut  such  a  meeting  to  do  it,  hut  i  that  is,  a  peer  In  his  peers,  and  a  coinmoocr 
tlie  person  was  not  actually  sent,  or,  at  least,  by  a  jury:  hut*  if  hills  of  attainder  come  iolo 
not  provefl  to  be  sent  ;  then,  from  this  learned  fashion,  we  sIklII  neither  know  what  istn-asOB« 
author's  opiui  ui,  1  insist  upon  it,  that  this  is  what  is  cvidenco,  nor  how,  nor  where  we  ire 
not  a  sufficimt  overt-act  of  treason.  In  the  to  be  tritMl.  Sir,  I  submit  it  to  you,  aud  hope 
late  case  of  my  lord  Russel,  whose  in noceucy  is     this  hill  shall  nut  ])::s<<. 


vindicated  by  this  author,  he  takes  notice. 
That  a  conspiracy  or  agreement  to  levy  war  is 
not  treason,  without  actual  lev\n);r  ^'or  ;  ^"d 
of  that  opinion  was  my  lord  Coke,  and  my 
Lord  Chief  Justice  Hales.  A  conspiracy  or 
agreement  to  call  in  foreign  forces,  unless  ac- 
tually done,  i\Y  a  person,  at  least,  actually  sent, 


Sir  i).  Slwfvcr.  Mr.  Speaker,  I  air.  of  coun- 
sel for  sir  John  Fenwick,  the  prisoner  at  the 
bar :  and  first,  I  :im  humblv  for  to  thank  yoa 
tor  your  i^ndoar,  of  whicfi  1  ha\e  hud  fiv- 
quent  experience  ;  and  humbly  beg  for  myMt 
That  if  1  ofler  :)ny  wordb  that  are  iudcctni,0f 
unlit  for  me,  tl.ai*you  will  interrupt  me;  tiirii 


or  sori^ething  more  than  a  bare  agreement  for  |  is  furthest  from  my  intention  so  to  do.  Th 
that  purpose,  is  the  same  as  a  conspiracy  to  |  bill  that  is  hrou;rht  into  this  House  agaioitflr 
levy  war.  And  is  the  case  of  my  lord  Kussel,  John  Fenwii:k,  is  that  whereby  even  twed 
the  proof  being  only.  That  In-  :in(l  others  met  \  \ou  (with  suhmi^lon)  ai-c  to  declare  and  pit- 
together,  and  ag^ee<l  to  seize  upon  the  guards,     '  *      ' 

and  levy  war,  wliich  he  never  actually  did,  it 
is  insiiScd  upon  by  this  author,  that  that  was 
not  treason ;  for  tliat  iDdictment  went  no  fur- 
ther,   lad  therefore  my  mUior  says,  **  bhow 


i  \ou 

I  n((unoe,  That  he  shall  hi' drawn,  hanged,  Mrf 

quarteretl,  as  a  traitor.     ^\nd  the  quektioo  bl* 

fore  you  is,  U  hetlur  you  will  do  this  in  thil 

case  ? 

Isiir,  I  shall  not  pretend  to  questioDf  nor  Odfl 


041] 


tipan  a  Bill  &f  Attainder. 


A.  D.  1696. 


[64S 


nio  mny  debate  or  ar^meDt  io  this  tbinc;^  con- 
oemin^  the  power  of  parliameDts :  no  question, 
but  ill  all  f^vemments,  there  is  some  supreme 
power  ;  aocl  by  oor  constitution  it  is 'lodged  in 
the  kiofi^.  Lords  and  Commons.  There  are 
precedenta  of  attainders,  and  that  many  ;  but 
can  they  shew  me,  where  there  bath  been  any 
attainder  by  parliament,  for  bigrh- treason,  upon 
one  single  act,  which,  if  treason,  was  determi- 
aable  at  common  hiw  ?  There  have  been  hilts 
«f  attainder  for  flagrant  treason*!,  and  for  great 
■uaisters  of  state :  some  topping  sinners,  who 
Wfe  been  above  judges  and  jury,  and  whom 
bferior  courts  could  not  tell  what  to  say  to : 
kit  I  believe  1  may  say  this.  That  for  a  single 
cMmlt  or  agreement  between  four  or  five  pri- 
me gentlemen,  in  a  private  room,  in  which 
llafe  was  no  danger,  but  by  the  consequence 
tftbe  revolntion,  if  it  was  put  in  practice,  no 
Bttcan  shew  any  precedent  for  attainting  any 
ymoo  in  parliament. 

If  you  please  to  observe,  the  35  EJw.  3 
iBMTes  the  power  to  parliament,  to  proceed  in 
tmioD  not  expressed  within  the  statnte ;  but 
M  to  tbe  compassing  the  king's  death,  adher- 
iif  to  the  king*s  enemies,  and  those  things 
tkit  are  there  particularly  specified,  it  sceons 
the  sense  of  the  parliament  to  leave  them  to 
tbe  rules  of  the  common  law.  So  1  Hen.  4. 
No.  Ii4,  upon  the  roll  it  is  at  Itxrge  complained 
tf  aecosalions  in  parliament  for  treasons  and 
ftbaies,  and  declares  for  the  future,  they 
iwuid  be  determined  in  the  inferior  courts. 

1.  This  was  occasioned  by  sir  Raw,  IlaiToy  ; 
Cotton's  Abridgment,  189. 

Tbere  is  a  melancholy  precedent  or  two  of 
liogie  acts  of  attainder ;  but  they  are  roost  of 
tbnn  reversed.  Sir  Thomas  Haxey  in  Richard 
tbe  tod's  time  was  attainted  for  Imnging  in  a 
Ul  into  the  Commons  House  against  the  pre- 
rqpitJTe;  but  1  Hen.  4,  it  was  rcvei-se<l  with 
p^  censure,  C(»tU  Abridg.  3G2,  363.  There 
ue  sthers  in  Hen.  O's  time,  but  they  were  fur 
ietsin  that  reign,  which  were  questionable, 
^tlier  or  no  within  tlie  statute  of  £dw.  3, 
iDfl  were  for  such  actions,  as  perhaps  were 
■til  for  the  honour  of  the  prince,  or  good  of 
the  goferuinent,  to  disclose  by  public  trial,  as 
the  attainder  of  the  queen,  and  others  con- 


I  b^  leave  to  repeat  the  words  of  a  great 
•■tbor,  the  bishop  of  Siili.Nbury,  in  the  History 
of  the  Reformation,  which  I  crave  leave  rather 
tido,  because  it  hath  been  approved  of  by  this 
Bouse,  for  he  had  thanks  of  tlie  parliament  for 
it;  fol.  359,  360.  where  8|>eaking  of  these  sort 
ofitiaindera,  he  says,  "  After  these  executions, 
Mioweil  the  parliament  in  1539,  in  uliich 
tfcwe  attain'lers  were  not  only  confirmed,  hut 
diffn  others  were  made  of  persons  in  custody, 
without  bringing  them  to  trial;"  (and  ho 
^%)  "  which  cannot  l>e  enough  condemned 
*•  breach  of  the  nio&t  sacred  and  unaltirahle 
'rin  of  justice." 

That  of  the  marchioness  of  Exeter,  6cc.  T 
Aafl  make  do  paraiibrase  upon  it :  there  is  no 
fKHkm  but  vou  will  agree,  and  I  roust  admit, 

VOL.  Xlfl. 


Sains  Populi  to  be  Suprema  Lex  ;  but  for  an 
act,  liot  the  last  of  May,  but  hist  May  was 
twelve  months,  the  danger  passed,  the  |»ersona 
executed  that  were  concerned  in  the  great 
ti'eason,  and  all  ilanger  that  might  have  lieen 
from  that  act  gone,  an<l  no  fear  now  concern- 
ing it,  1  hope  ycu  will  not  use  the  extraor- 
dinary power  of  the  legislative,  to  punish  for 
that  tact  which  may  be  punished  hy  the  ordi- 
nary rules  of  law. 

1'he  reason  suggested  iu  the  bill  is.  That  it 
is  impossible  to  have  this  gentleman  tried  by 
the  rules  of  the  common  law  ;  for  otherwise 
there  is  none :  for  you  will  not  waste  your  time ; 
and  if  the  doctrine  that  was  broached  here  yes- 
terday be  true,  there  is  no  occasion  to  trouble 
you  now;  for  according  to  their  doctrine, 
there  is  legal  evidence,  and  there  is  no  need  of 
a  bill  of  attainder  ;  but  taking  that  for  granted, 
that  we  must  do ;  otherwise  there  is  no  reason 
for  this  bill.  Then  the  -bill  says,  That  Gooil- 
man  was  an  evidence,  and  that  he  is  with- 
drawn ;  which  I  must  observe,  is  neither  laid, 
nor  proved  to  he  by  the  privity,  consent,  or 
procurement  of  sir  John  Fenwick.  There  is 
no  pretence  of  it  in  the  bill ;  no  insinuation  of  it, 
norany  evidence  to  that  purpose.  Then  sup- 
pose Goodman  is  withdrawn,  we  may  presumo 
you  will  not  pass  a  bill  to  put  sir  John  Fen- 
wick in  a  worse  condition  than  if  (aoodman  was 
present,  if  he  had  been  ready  to  have  sworn 
the  same  thing. 

In  case  you  do  pass  this  hill,  you  do  put  sir 
J.  Fenwick  in  a  worse  condition  than  he  would 
have  been  if  (jloodnian  uerc  here  :  perhaps  it 
might  have  been  reasonable  to  have  an  act 
passe<l,  that  Cloodmnn's  dq;o>iti(Jiis  should  be 
read  at  the  trial,  if  Coodman  was  withdrawn; 
but  we  hope  it  cannot  be  a  reason  to  condemn 
sir  J.  Fenviick  of  hij^h-treason  uidiout  tnal ; 
for  the  conRe(|uence  of  this  is  (if  it  were  by  hia 
means),  that  he  is  punished  greater  than  the 
thinsT  requires.  For  if  Goodman  was  here,  sir 
J.  Fenwick  would  have  had  his  trial  by  a  jury, 
the  benefit  of  challenges,  exceptions  to  ilie 
array,  mi^ht  have  challcng«'d  upon  account  of 
favour,  it  any  of  the  gran»l-jury  had  been  im- 
panelled ;  had  his  legal  exceptions  to  the  tes- 
timony of  the  witnesses ;  uiii;ht  have  these 
witnesses  examined  upon  oath;  might  give 
evidence  upon  oath  to  it;  and  ail  this  he  is  de- 
prived of:  so  that  now  he  is  in  p.  worse  cuntli- 
tion,  hy  Goodman's  obscure,  than  if  he  uas 
present.  We  insist  upon  it,  thciefbre,  and 
submit  it  to  you,  whether  any  punishment  can 
he  imj)OKed  by  the  legislative  power,  but  only 
(o  supply  that' defect,  and  put  ilie  ca^e  in  the 
same  rircum stanches  it  woutt!  have  hi^en,  if  sueli 
a  misrnvriaq^e  had  not  liern  coinmitteil.  Hut 
this  hill  is  to  condemn  him  to  deatii  upon  the 
oath  of  one  witness,  thoui»h  thirc  uas  yonraet 
of  parliament  last  year  rniuircs  tuo.  With 
suhiuission  to  tlw-ir  judifnuMit,  it  was  the  law 
of  the  laud  l>efore  t'ttiit ;  and  in  all  e.ises,  where 
trials  are  '  per  testes  ;'  aiul  it  is  the  law  of  (lod, 
and  the  law  of  the  wlndo  worhl ;  ;ind  no  luw 
allows  a  roan  to  be  coiidemncd  hut  b^'  two  ^a- 
ST 


643J 


8  WILLIAM  III.  Proceedings  againH  Sir  John  Fenxokh^         [64^ 


and  the  reason  that  here  one  witness  is 
admitted,  is,  because  he  hath  I  he  beneGt  of  a 
jury,  aud  challenges  to  them,  who  the  law 
auffposes  are  privy  to  the  fact,  and  therefore 
are  to  come  from  the  Ticinage,  from  the 
neiirhbonrhood  of  the  place  where  the  party 
dwislls ;  and  for  that  reason,  in  cases  of  felony, 
where  no  statute  interposes,  the  law  allows  but 
one  w  itness.  Natural  reason  requires  two  wit- 
nesses in  case  of  so  great  crimes,  because  that 
one  witness  can  he  no  rule  to  guide  your 
judgments;  one  affirms,  the  other  denies ;  this 
is  equal ;  and  presumfitiou  ought  to  be  on  the 
side  of  innocency,  rather  than  otherwise ;  but 
we  ho|)c,  in  this  case,  it  will  not  be  thought 
reasonable  to  pass  the  bill  to  condemn  sir  J. 
Fenwick  for  treason,  and  to  condemn  him  to 
the  basest  of  executions,  upon  the  testimony, 
na}',  upon  the  parole  of  one  witness.  And  it  is 
no  more  than  W  Goodman  had  been  dead,  then 
you  would  not  have  done  it.  If  Goodman  and 
Porter  had  botli  come  to  this  bar,  you  would 
not  have  done  it,  but  hare  referred  him  to  his 
trial  at  the  common  law.  Mow  what  is  there 
pretended  by  them  to  induce  you  to  judge  the 
oontrar^,  or  at  least  without  so  much  as  an 
allegauon  in  the  bill,  that  sir  J.  Fenwick  pro- 
cured his  withdrawing?  I  propose  it  to  your 
consideration,  Whether  there  be  any  proof 
that  Goodman  is  withdrawn  ?  He  was  once  in 
CQstodv,  let  out  upon  bail,  the  prosecutors  ap- 
proved the  l»ail,  he  never  yet  called  upon  his 
recognizance ;  nay,  there  is  not  one  tittle  of 
evidence,  but  that  Goodman  may  be  in  the  same 
lodging  where  he  was  :  and  then  suppose, 
when  you  have  passed  this  bill,  Goodman 
shoujil  apnear  ajfain,  and  contradict  his  testi- 
mony he  lias  eiven  before  ;  then  it  may  be  too 
late  for  you  to  do  rij^ht  to  sir  J.  Fenw'ick.  It 
is  not  su  much  as  offered  that  Goodman  could 
not  l)€  fbiiiut ;  thoy  offered  a  printed  procla- 
mation, uhich  lam  snre  the  king's  serieant 
will  not  allow  to  be  any  eviilcncc.  Whether  it 
ptissiMi  tlir  j^reat  sral  before  it  was  printed,  or 
wlieiluM-  it  |ns«!iMi  ii  at  all,  non  constat ;  for  it 
was  not  n*!ul ;  tiny  wavetl  it.  It  does  not  ap- 
pcii.-  sir  J.  I'tMivuik  oonwnlcd,  or  procured 
(jo<iHm'iirs  \tiili(lra>yinsf ;  he  could  not  pro- 
cure it,  for  lie  was  u  prisoner,  and  so  not  likely 
to  aft'tct  it,  being  a  prisoner,  especially  for 
his  life. 

As  for  my  lady  Fenwick,  whether  she  did 
so  or  not,  1  am  sure  you  will  be  of  opinion,  it 
ouifht  not  to  oireet  sir  J.  Fenwick:  suppose 
Cl.iui  y  a  sti-an;rer  to  sir  J.  Fenwick,  and  in 
trulli  lie  never  saw  him :  or  sup])o^.»  liini  a 
friend,  and  tie  otiiciniivly  did  what  he  did ;  he 
ought  to  answer  for  it;' and  I  think  he  hath 
nn«!rr^oiie  the  punishment  the  law  tlmiitrlit  fit 
to  iTiliui  in  iliat  ense  ;  it  is  his  own  crime,  and 
hy  tin-  rules  of  just  ire.  no  man's  crime  oiiglit 
to  tend  to  (he  punisiinieiit  or  misfortune  of  ano- 
ther Uiaii:  ilie  ad  of  one  criniinal,  tiiouulit  to 
he  a  party,  or  aeqiiaintaiice,  or  a  frienti  of  sir 
J.  ri-nwiek's,  <»Uirlil  inU  in  affert  him,  nor 
noiNMly  iiui  the  actor  ;  it  is  he  that  hath  suf. 
fercd  for  ii. 


And  what  hath  been  said  in  thatnmtleroogh 
not  to  influence  your  judgments ;  for  it  is  no 
improbable,  but  what  Clancy  told  Porter  ii 
false ;  yon  wilt  never  a1k>w  hear-say,  nor  per 
mit  your  judgment  to  be  governed  by  an} 
thing  but  what  is  certain,  and  bath  all  tlic 
moral  niles  of  persuasion  :  hear -say  nai 
never,  by  any  hiw,  in  any  conrt  of  the  worVI, 
allowed,  nor  indeed  believed  in  private  con- 
versation. 

As  to  my  lady  Fenwick,  there  is  this  fur- 
ther, That  husband  and  wife,  in  respect  of 
crimes,  are  distinct  persons ;  and  what  ooe 
docs  cannot  affect  the  other,  no  more  tlian  ibe 
deserves  to  be  executed  for  %vhat  sir  Jobo 
Fenwick  did :  aud  as  to  what  Porter  says  cno- 
cerning  it,  it  only  relates  to  himself;  it  prorei 
no  suggestion  of  the  bill,  whidi  is,  That  Good- 
man is  withdrawn,  because  a  stranger  to  sir  J. 
Fenwick  (and  it  must  be  so  in  coustmctim  of 
law)  made  an  attempt  upon  captain  Porter; 
therefore  Goodman  being  withdrawn,  there 
was  an  attempt  upon  him,  and  by  the  cum 
person,  and  by  the  same  means :  this  is  no  evi- 
dence ;  it  carries  no  logic  in  it,  and  will  oot 
prevail  upon  your  judgment. 

We  ofier  another  thing  to  yonr  cons- 
deration  :  it  is  said,  that  one  Roe  was  spol-e  19 
by  a  solicitor  of  sir  J.  Fenwick's,  Whether  or 
no  he  could  say  any  thing  to  the  discredit  of 
Goodman,  as  to  his  robbing  or  clipping  P  The 
asking  of  that  question  was  lawnd ;  and  to 
desire  him  to  testify  it  was  lawful :  I  mat 
agree,  to  offer  too  great  a  sum*of  money  may 
subject  him  to  an  information  in  the  Kiog'' 
Bench ;  (but  IMr.  Atlorney  knows  that  bnt) 
but  God  forbid  it  slioulfl  afieet  sir  J.  Fem;ick^ 
Mr.  Dighton  was  not  his  solicitor  at  that  time, 
not  ap)K3inte<l,  nor  had  any  liberty  to  coioe  to 
him  ;  besides,  it  cannot  be  an  cvidenro,  uor 
cannot  induce  yon  to  bclicre.  That  the  sanM 
person  was  instrumental  to  «^  away  GooJ- 
man,  because  he  asked  Roc,  if  he  knew  (iooJ- 
man  to  be  guilty  of  those  crimes  ;  for  there  ii 
no  evidence,  that  he  asked  him  to  persuade 
him  to  withdraw  himself. 

There  is  another  thing  wc  could  offer  to  yoa: 
there  is  no  proof  of  that,  which,  upon  the' tint 
reading  of  this  bill,  was  aimed  at,  to  be  pn- 
nished  with  greater  pains  than  the  common  itw 
inflicts,  and  tiiat  is,  the  giving  of  false  paneii 
and  accusations  against  great  persons ;  tney 
have  not  attempted  any  thing  like  it ;  so  that 
that  is  to  he  taken  as  if  there  was  no  sudithia^. 
Neither  is  there  any  proof  of  protractinj^  hit 
trial,  b}'  any  promises  of  confession  or  disco- 
?ery  ;  they  oi)entd  it,  but  did  not  attempt  the 
proi»f  of  it,  but  waved  it. 

liut  take  it  to  be  so ;  I  ho^H;  you  will  not  patf 
an  act  to  at'aint  a  man  for  making  a  false  ae- 
cu«;!tion,  whieli  only  incurs  an  action  of  &aa- 
dalum  Mai!nnluut,  or  tine  and  imprisonmcit 
upon  an  imlictinent;  and,  1  hope,  you  will  nrf 
anulemn  him  to  a  i^reater  punisliment,  wben,il 
the  time  he  did  it,  he  had  no  notice  of  tltf} 
punishment.  Tlic  design  of  the  law  ts  to  it 
fluence  men  by  fear  of  penalty ;  and  how  CH 


hl5] 


tqxm  a  Bill  of  Attainder. 


A.  D.  1696. 


[646 


lal  be,  when  penalties  are  not  known  at  the 
uie  the  fact  was  committed  ?  I  speak  with 
abmissioD  still ;  it  seems  not  just,  that  I  should 
Drbear  with  so  much  caution,  from  an  action 
hat  exposes  me  to  the  penalty  of  ^OL  as  from 
in  action  for  which'the  law  says,  I  shall  forleit 
ny  life:  now.  Sir,  in  this  case  it  mif^hl  he  ex- 
[MKted  that  he  should  incur  the  penalty  of  fine, 
[Hllorv,  and  imprisonment;  hut  not  that  he 
could  incur  the  |»enahy  of  death. 

Then,  Sir,  as  to  the  protracting  of  his  trial 
\j  luch  promises  of  confession :  certainly  the 
iiuttiog^  off  his  trial,  in  itsellj  is  so  fur  Yrom 
beiDg-  acrime,  that  it  cannot  be  thoufi^ht  but  law- 
ful: it  is  every  map's  dutjjr,  upon  the  principle 
of  ielf-preservatiou  ;  and  it  was  at  the  liberty 
of  the  government  and  ministers,  to  do  as  they 
ibougbt  fit  in  it. 

Id  the  next  place,  we  do  insist,  that  tiiere  is 
no  treason  alled{>;ed  nor  proved  in  this  cose : 
there  is  no  pretence  of  truth  nor  charge,  in  re- 
ipeet  of  the  assassination ;  nor  of  buying  of 
smu  or  liorscs,  tlicHigh  mentioned  in  the  indict- 
meat:  and  if  sir  J.  Fen  wick  had  been  to  have 
been  tried  upon  this  indictment,  and  they  had 
bad  both  these  witnesses  there,  all  tliat  could 
baielieen  proved,  must  be  of  the  consult ;  as  to 
tbe  rert,  he  must  have  been  found  not  guilty : 
and  1  believe  it  is  most  notorious,  that  the  whole 
company  there  could  not  have  raised  what  was 
Ulksdof.  Now,  as  to  this  single  act,  it  hath 
beeasaid,  that  a  conspiracy  to  levy  war  is  not 
UMioa :  My  lord  Russel  was  atUinted  for  it, 
aad  that  attainder  was  reversed  upon  tliis  very 
sceoont,  and  the  act  declares  the  reason  of  it, 
be  being  denied  his  lawful  challenges,  and  by 
Hiaiaed  construction  of  treasons  he  was  unlaw- 
fnllv  convictifl  of  treason.  Now  the  overt-act 
iaUie  h.dicUnent  was  this,  that  my  lord  Russel, 
ud  others,  did  consult  and  conspire  to  seiae 
tbe  king's  guards:  the  proof  of  it  went  further, 
tbttthey  sent  sir  Thomas  Armstrong  to  view 
tbem  and  seize  them :  but  then  the  question  is, 
■bether  the  consulting  to  send  a  man  to  invite 
Amifn  Ibroes,  is  any  more  than  a  consult  to 
Mj»e  the  king's  guards  ?  We  say  each  are 
levying  of  war,  and  it  is  not  within  the  clause 
of  sdhisin^  to  the  king's  enemies ;  for  they 
lUK  be  either  present  aiding  and  abetting  it' 
tbcn,  or  sending  them  money,  arms,  and  am- 
Buailiuo,  and  tlie  like;  and  1  think,  for  that,  I 
■ty  appeal  to  your  act  made  against  corrcs- 
pmiog  with  the  king's  enemies;  which,  I 
uppoie,  if  the  law  before  was  otherwise,  it 
onded  not  to  have  been  made.  Now  here  is 
•olv  a  consult  and  agreement  to  do  this  act. 

It  bath  been  questioned.  Whether  tcribere 
«f  "ffre  f  But  here  it  is  only  m'UUrt ;  nay, 
A  is  aot  so  much,  it  is  only  agreare  mUtcre  ; 
Ki  nieo  had  between  them  a  little  private  dis- 
Mvse,  and  at  last  one  of  them  did  agree  to  send 
Uaraock  to  France :  The  question  is,  whe- 
m  the  law  of  the  Und  will  warrant  this  to  he 
iMMSB  ?  And  if  not,  then  you  must  not  pass 
lis  act  upon  audi  a  single  luiint.  Dr.  Stury  's 
Mn  is  dtoicd  to  be  kiw ;  tliis  case  is  no  more 
bM  that  IB  nj  lord  Dyer,  for  writing  a  letter 


to  invite  the  Spanish  king  to  invade  England ; 
and  it  was  a  time  of  great  fear  of  them,  as  it  is 
of  tlie  French  king  now  ;  and  he  was  attainted 
upon  that,  but  that  judgment  hath  been  ques- 
tioned and  denicil  to  be  law.  My  lord  Hales 
expressly,  in  his  Pleas  of  tlie  Cruwn,  says,  that 
a  conspiracy  to  levy  war  is  not  an  overt-act  of 
the  king's  (leatli  ;  and  thai  attempting  to  levy 
war  is  not  treason.  Now  the  sorts  of  treasons 
are  these  three ;  compassing  the  kius^'s  death ; 
levying  war;  or,  adhering  to  the  km j^'s  ene- 
mies. Now  for  compassing  or  agreeing  fo  levy 
war,  to  apply  that  to  1m*  an  overt- act  of  com- 
passing the  king's  death,  hath  been  always 
complained  of  as  a  strain  of  the  law. 

Upon  these  reasons,  we  think  this  would  not 
have  been  an  act  of  compassing  the  king's 
death,  as  laid  in  the  imlictmcnt;  and  then  if  it 
be  but  a  question,  whether  it  he  or  no  ?  u  e  hope 
you  will  not  proceed  in  your  legislative,  es|te- 
cially  when  he  is  deprived  of  the  advantage  of 
insisting  on  this  at  his  trial  at  common  law  : 
witnesses  are  there  upon  their  oaths ;  he  might 
have  had  a  challeuKC  to  the  jury  ;  he  might 
move  in  arrest  of  ju(igment.  Now  the  questioa 
is,  whetlier  you  will  pronounce  sentence  of 
death  upon  him  for  high-treason,  upon  one 
single  act,  a  year  and  a  half  ago,  just  after  the 
act  of  parliament  for  regulating;  trials  in  cases 
of  high-treason ;  and  if  wa  had  had  a  trial  at 
law,  we  should  have  canvassed  these  things,  if 
we  had  \y  itnesses  u|Mm  their  oaths ;  for  the 
pardon  reached  the  29th  of  April,  they  could 
swear  no  new  discourse  but  just  in  May ;  and 
now  they  say  it  was  in  the  middle  of  May  ;  if 
it  had  been  before,  the  king's  grace  would  have 
exempted  sir  John  Fenwick  from  punishment ; 
and  these  things  we  should  have  had  the  ad- 
vantage of,  if  we  had  had  the  liberty  of  a  trial. 

There  is  another  consideration ;  sir  J.  Fen- 
wick hath  pleaded,  and  hath  so  pleaded  to 
issue,  and  issue  is  joined,  and  a  Venire  Facias 
is  awarded.  Now  we  submit  it  to  ^-nu,  whe- 
ther you  will  thiuk  fit  to  take  it  out  «ii  the  hands 
of  the  common  hi w,  when  there  is  no  exti^or- 
dinaiy  necessity?  And  the  considiTntiun  we 
have  to  offer  to  you,  if  you  do  not  cast  out  this 
bill,  if  we  should  have  the  good  fortune,  as  we 
hone  for  in  amMher  place,  sir  J.  Fenwick  stands 
still  liaMe,  ami  must  submit  to  his  trial,  if  the 
king's  counsel  think  fit  to  prostmitc  him,  nnd 
we  think  it  hard  to  undergo  your  censure,  to  bu 
condemned  in  this  place  ;  and  if  (i-crhaps)  he 
he  acquitted  here,  to  nnden^n  the  liUe  danger 
in  another,  and  then  to  be  tricii  in  a  tliiid  :  and 
for  these  reasons,  we  hoi>e,  you  will  reject  this 
hill.  , 

8orj.  Gould.  May  it  please  you,  Mr.  Spc'aker, 
I  have  hearkened  to  what  these  gentlemen  have 
objected,  nnd  could  not  he  aware  uf  all  they  have 
said  ;  they  have  enlargnl  u|>oii  sc\crul  to|»ics ; 
1  shall  recollect  them  as  well  as  I  can,  and  an- 
swer them  in  the  uu'thod  they  have  taken.  I 
never  did  think,  that  the  parliamei.t  \touhl  take 
things  out  of  the  ordiiiury  cotirse  of  justice, 
nor  atbiint  any  of  treason,  unlrsv  in  cases  ex- 
traordinary ;  and  these  gentkruiun  hate  agreed, 


047]  8  WILLIAM  m.         Proceedings  against  Sir  John  Fermnci,         [641 

that  in  cases  extraordinary  they  have  done  it. 
They  likewise  have  agrreed,  and  sir  Bartholo- 
mew Shower  has  told  you,  that  there  are  some 
treasons,  by  the  statute  of  25  Edw.  3,  re8er\'ed 
by  that  act,  to  be  declared  by  parliament.  Sir 
Thomas  Powis  says,  This  is  taken  out  of  the 
ordinary  cuui'se  of  justice  :  So  says  sir  Bartho- 
lomew Shower  ;  says  he,  here  is  an  indictment 
before  you,  the  party  hath  nleaded  not  guilty  ; 
and  they  say  he  may  be  tried  in  the  ordinary 
coarse  of  the  law  :  and  therefore  they  look 
upon  it  as  improper  to  bring'  it  here. 

The  grentlemen  arc  mistaken  very  much,  to 
think  that  I  did  say,  that  the  exammation  that 
I  said  was  evidence  here,  would  lie  allowed 
below.  If  I  had  thoupfht  so,  I  should  have 
thoui^ht  at  the  same  time,  this  House  would 
not  nave  meddled  with  it :  but  f  do  disagi-e^ 
with  thom  in  this  ;  and  take  it,  that  where  a 
case  is  extraordinary,  you  will  come  and  med- 
dle with  the  matter.  Here  is  au  abominable 
treason,  that  is  agreed  on  all  hands.  Here  is 
plot  upon  plot ;  here  hath  been  a  plot  now  to 
take  away  the  kiii<t's  evidence  ;  there  was  two 
witnesses  in  the  beginning ,  and  it  is  very  plain 
that  one  of  them  is  not  here  ;  for  that  here  was 
a  proclamation  produced,  and  I  did  look  upon 
that  matter  as  taken  for  gfranted,  that  Good- 
man was  witiidrawn,  and  for  that  matter  they 
may  be  easily  satisfied.  They  say,  we  have 
not'  iiroved  I'lic  sugyfestious  of  the  bill  ;  but 
we  think  we  have  :  for  first  of  all,  captain 
Porter  bath  here  sworn  it  expressly  ;  it  is  not  a 
ihin^r  of  looso,  baretalUin^if,  but  hehath  proved 
a  delilKnito  ami  forntcd  conspiracy  ;  he  hath 
pr()Tti<l,  tlii'tt  it  was  actually  ai^reed  upon  a  firet, 
and  at  a  srconil  liiuc  ;  ai:d  that  Charnock  was 
sent  ill  onkr  to  llin  execution  of  it :  an«l  what 
was  it  lor  ?  It  was  plainly  to  dc^posc  the  kinjr- 

lie  tells  yon,  f*;r  tliat  purpose  they  had  de- 
sired «,000*^  foot,  1,000  liorso,  and  1,000  dra- 
goons iVuiii  iUi'.  r. cuch  Uir.ij  ;  and  these  gen- 
tlemen a£»roe(l  to  join  tiu'in.  Now  can  there 
be  a  greater  evidt^nee  ol'deposingthc  kinp,  and 
conseqiiitly  of  iinapcininij  his  death?  It  is 
an  cvideiiee*  of  xUn  iiua<;iiialion  of  the  death 
of  the  king,  as  writ  as  of  the  rebellion  ;  it 
hi'iuix  s(»  in  the  ni'cessary  ronscquence  of  it. 
Nuw,  1 1  111  Ilk  lie  h.itii  fully  proved  that.  Then 
we  oiler  to  \on,  how  far  ym  will  allow  of  this 
examitiatioii :  \\  hy  i*  btcanse  upon  a  secon<l 
coutrivanec  licre  is  a  witness  withdrawn  :  and 
can  We  j^ve  you  jrrcater  evidmioof  that  than 
we  have  gfi^cn  :*  ;u'  have  proved  that  there 
was  taniperinu',  h  t  the  thiiiuf  nm  as  Car  as  it 
will.  Ca;/tai:i  Pnrter  was  dealt  willi,  had  300 
guineas  in  hansl,  anil  ;}00  more  he  was  to  have 
remitted  to  l:ini ;  and  wos  t«)  have  SOOi.  a  year, 
whereof  sir  J.  I'enwiek  was  to  pay  one.  It 
does  follow  lifter,  that  he  is  withdrawn  :  we 
must  leave  it  to  this  honourable  llousr,  what 
construction  you  will  make  ol'  thai  ;  W bother 
here  is  i.oi  li  second  plot  ? 

Ni'W  this  in.itter  is  brought  before  this 
hoiiournhio  House,  wc  have  gone  so  far  in  it, 
astoproduer  Cioodinan*s  examination  that  was 
taken  before  a  justice  of  peace:  we  have  shewed 


you  the  evidence  that  he  bath  girea  nmm 
former  trial ;  and  now  he  is  gtme,  snre  nolwdi 
but  must  justly  infer,  it  is  by  sir  J.  Fenwick^ 
means :  so  that  here  they  ha?e  taken  awtj 
the  evidence  that    is  necessary    in    the  o^ 
dinary  course  of  proceedings.    In  such  an,ex< 
traordinary  case  I  think  it  hath  been  usual  for 
the  parliament  to  interpose :  therefore,  what 
they  pretendeil,  under  favour,  tliat  this  sbouM 
not  be  evidence,  is  all  taken  off.     For  now  we 
are  in  parliament,  you  will  make  use  of  sack 
informations  as  can  give  you  any  light  into  the 
matter,  and  may  obviate  and  curethe  distemper 
that  is  upon  us  ;  and  you  are  judges  of  vonr 
own  methods,  and  how  fa csu*  J.  Fenwickhatli 
been  concerned  upon  the  instances  we  lure 
given  you,  that  is  in  your  judgments.    Asht 
what  sir  Thomas  Powis  tells  you  ;  says  be, 
tbir  power  hath  not  been  executed  by  padia- 
ments  very  frequently,  but  it  hath  gewrally 
been  doue  where  persons  are  withdrawn  fnm 
justice,  and  caimot  be  come  at  in  the  onlioary 
course.    Why,  we  are  in  the  like  case  ;  if  m 
be  we  cannot  come  at  justice  in  the  ordinary 
course,  and  that  by  our  evidence  having  kes 
tampered  with,  and  drawn  away  ;  thea,  8ir, 
under  favour,  by  their  own  arguments,  it  ii 
pro|)er  to  come  before  this  honourable  House; 
so  that  notwithstandin||^  what  hath  been  aaiil, 
we  do  think  we  have  given  you  evidence. 

And  as  for  what  they  said,  that  we  hareDH 
given  any  account  that  sir  John  Feuwick,  by 
giving  assurance  of  his  confession,  had  piv> 
traeted  his  trial ;  for  that  I  did  appi}'  myself, 
that  Mr.  Vernon  might  give  vou  an  aecowit  ot 
it:  so  that  ufMrn  the  whole  'matter,  we  uiust 
leave  it  to  your  ronsideration,  and  hope  ne 
have  given  you  goml  satisfaction,  thattbtre 
hath  been  a  great  plot  against  the  government; 
and  there  was  no  evidence  of  any  other  niatlrf 
before  the  judges,  ami  they  allowed  it  to  be 
hiifh  treason.  Here  is  the  same  eriilence, 
only  we  have  not  one  of  tliem  virta  voce, 

Serj.  lAToeL  Mr.  iSpeaker,  1  shall  not  troaUe 
you  nor  the  House  very  long ;  but  I  humbly 
ho|>e,  with  a  little  pains,  to  satisfy  ilie  Houfe, 
that  most  that  hath  been  said  on  the  other  9^^ 
is  not  much  to  the  purpose.  Sir,  I  will  coo- 
sider,  with  the  leave  of  this  House,  whalibe 
common  law  was  l)efore  25  Edw.  3,  and  lio* 
the  law  does  now  stand  ;  and  draw  some  coo- 
sequences  from  thence,  and  the  necessity  ol 
this  case. 

The  statute  of  25  Edw.  3,  I  must  obserre  it, 
is  not  an  enacting  law,  it  is  only  a  law  decla- 
ratory ;  for  all  those  particular  instances  of 
treasons  that  are  mentioned  there,  wcretiva- 
sons  before  that  law  was  made ;  an«l  so,  by 
the  preamble  4>f  it,  plainly  appears :  hut  tbc 
judges  had  a  gi-eater  lilnTiy  upon  constnictivt 
treason,  and  i!jH»n  accumulative  treasons ;  WJ 
that  was  left  too  much  at  the  discretion  sM 
lil>erty  of  the  judges  l)elow,  and  theexectfi*^ 
powei-  of  the  law.'  Then  that  statute  coineiii* 
restrains  the  judges  in  that  point;  and  Uf^ 
that  they  shall  not  gi\c  judgment  in  any  csn 
of  treason,  but  only  in  these  cases  paiUcobfij 


.9J 


upon  a  Bill  of  Attainder. 


entkmed  there:  and  that  statute  says,  that  if 
ly  frtlier  matter  which  shall  be  thought  trea- 
a  should  come  before  them,  they  shall  not 
meed  to  jadement,  but  acquaint  the  kingf  in 
iriiameot  with  it.  I  only  make  use  of  it,  to 
rote  bow  treasons  stood  before  that  act,  and 
ow  it  eomet  to  be  altered  from  the  common 
iw :  and  I  am  sure  it  is  not  to  be  denied,  but 
hit  one  witness  was  sufHcient  at  the  common 
aw:  but  then  comes  1  Edw.  C,  c.  13,  and  that, 
br  the  security  of  the  subject,  does  ordain, 
nst  in  cases  of  high-treason  tiiere  shall  be 
two  witnesses  of  the  fact :  but  that  statute  does 
MA  liter,  but  was  made  for  the  security  of  the 
nbject  in  point  of  proof.  But  in  that  statute 
•f  1  Edw.  6,c.  18,  that  does  provide  there  shall 
be  two  witnesses  in  cases  of  high- treason, 
dltfe  is  an  exception  of  treason  for  counterieit- 
y^  tod  forging  of  the  coin  ;  and  that  is  the 
itMOD  that  the  law  is  taken  now,  that  though 
1l»re  must  be  two  witnesses  in  the  cases  of 
Hber  treasons,  yet  in  the  case  of  coining  there 
seeds  but  one.  Tlie  offence  or  crime  is  never 
liw  ifreater,  because  there  are  to  be  two  wit- 
BOKs  to  prove  it.  In  this  case  that  !s  here  be- 
lure  you,  we  come  to  desire  your  help,  because 
ene  of  the  witnesses  is  by  art  and  fraudulent 
nctni  withdrawn :  Does  that  purge  the  crime 
at  all,  or  lessen  it  ?  No  man  wUl  say  the  crime 
ii  lees,  but  it  does  prevent  a  regular  trial  before 
tbe  oDurts  below ;  and  that  is  the  reason  why 
we  did  come  here ;  and  we  hope  this  defect 
ibit  be  supplied  by  a  sjiecial  law.  But,  say 
ibef,  it  is  very  bani  a  law  should  be  made  ex 
M facto  to  take  away  a  map's  life.  It  would 
■e  very  bard,  if  the  case  was  as  they  have 
Mated  It,  to  make  a  crime  fx  post  facto  that  was 
sot  to  before :  but  I  do  not  take  it  to  be  hard 
<br  a  law  to  be  made  to  repeal  another,  to  mnke 
s  matter  triable  that  was  not  triable  beibre. 

^unpose  a  law  should  be  made,  that  all  trea- 
•Mu  from  and  after  such  a  time,  suppose  from 
a  time  before  the  fact  is  here  supposed  to  be 
ceamitted,  as  May  was  twelve  months,  should 
be  triable  as  at  tlie  common  law  ;  no  doubt  the 
parliament  may  repeal  a  law  in  part,  or  in  all. 
no  man  can , say  but  sir  John  Fen  wick  might 
be  tried  at  the  conimou  law  by  one  witness, 
befiMe  tlie  sUtnte  of  1  Edw.  6.  So  that  I  do 
^baerve,  and  humbly  submit  it  to  you,  that  this 
lew,  by  the  aet,  is  not  changed  us  to  the  crimej; 
H»  enme  it  as  it  was  before,  it  is  only  changed 
!•  to  the  number  of  witnesses.  The  instances 
tbat  have  been  observed  on  the  other  side,  with 
bunUe  subraissicm,  I  think,  do  not  reach  our 
ctae.  We  do  not  insist  that  there  are  two  lethal 
vitaesses ;  we  do  confess  the  information  that 
balb  been  read  is  not  a  legal  proof;  but  this 
'loaie,  in  tbeir  lej^islative  capacity,  is  not  to  be 
1  to  the  evidence  that  a  jury  must  have 
This  House  may  take  what  ways  and 
•iCbods  tbey  please  to  satisfy  themselves.  Say 
ibf ,  here  is  the  life  of  a  i^entleman  that  is  con- 
Mad.  1  know  all  goodmen  will  be  tender  of 
ha  life  of  a  inan :  but  here  is  the  life  of  the 
m,  aod  tbe  talety  of  the  kingdom,  the  peace 
mmkij  of  Hi  oil,  Ibat  is  ooDoemed  in  tbe 


A.  D:  1696.  [65d 

same  case ;  and  let  them  put  these  things  into 
the  balance,  and  consider  which  ought  to  weigh 
most. 

Yon  have  a  record  before  you,  of  the  convic- 
tion of  Peter  Cook,  who  was  indicted  by  the 
same  witness. 

A  learned  gentleman,  that  is  of  counsel  for 
the  prisoner  at  the  bar,  did  make  the  same  ob- 
jections as  are  made  now,  at  tlie  Old  Bailey  (it 
may  be,  there  are  some  other  particulars  now) ; 
and  after  all  the  debates  and  arguments  that 
could  be  used  at  that  time,  it  was  unanimously 
resolved,  that  the  crime  was  high -treason :  and 
if  it  was  hi^h-treason  in  Peter  Cook,  it  is  no 
less  in  sir  Jobn  Fenwick,.  who  was  present  at 
the  same  time,  and  engaged  in  the  same  busi- 
ness :  for  what  was  a  crime  in  one,  was  the 
same  iu  both. 

I  think  it  is  too  diminutive  an  expression,  to 
say,  this  was  nothing  but  a  little  twittle-twattle. 
Tliey  did  there  meet  upon  a  solemn  consulta- 
tion ;  and  not  only  once,  but  they  did  meet  a 
second  time  ;  and  what  was  it  to  do  ?  It  was  to 
invite  a  foreign  power  to  invade  this  'and,  and 
to  make  war  with  the  king  and  kingdom  ;  and 
they  did  promise  and  solemnly  engage  to  assist 
them  with  armed  forces;  and  it  was > proved^ 
that  they  did  agree  with  Chaniock  to  go  into 
France ;  and  Chamock  was  not  willing  to  go 
the  first  time  he  was  desired,  till  he  found  tbey 
were  staunch  and  steady  in  their  resolutions ; 
and  upon  a  second  meeting  they  were  all  found 
so,  and  then  he  would  go :  I  think  that  is  an 
overt  act  of  treason,  if  there  be  any.  And  when 
he  came  back,  be  said  he  had  been  in  France, 
and  brought  an  answer  to  the  message  he  went 
about:  This  is  all  now  laid  before  you.  But, 
say  they,  this  is  an  extraordinary  case  ;  I  do 
a^^ree  it;  but  because  it  is  an  extraordinary 
case,  and  for  the  safety  of  the  king  and  king- 
dom, it  is  fit  there  should  be  an  extraordinary 
remedy. 

They  ask,  what  mischief  it  would  be  if  this 
gentleman  should  be  left  to  the  ordinary  course 
of  law  ?  It  hath  been  the  wisdom  of  au  ages  to 
make  a  law,  to  punish  such  as  by  their  artifice 
would  evade  the  law.  Here  is  this  gentleman^ 
as  we  say,  guilty  of  high-treason ;  but  that  we 
submit  to  you. 

This  gentleman  was  in  the  prosecution  of 
the  law,  and  might  have  been  tried  in  the  re- 
gular way,  and  had  the  witnesses  upon  their 
oaths;  (the  grand  jury  have  found  billa  vera 
upon  their  oaUis)  but  we  must  appeal  to  a  wor- 
thy member  of  the  House  (who  because  he  was 
a  member  we  did  not  call  uiK>n  him)  to  give  you 
an  account  how  he  did  delay  and  protract  his 
trial ;  and  now  they  know  he  cannot  l>e  tried  at 
all,  tbey  pretend  he  is  willing  to  be  tried :  and 
because  be  cannot  be  tried,  tbey  would  have  it 
as  an  argument  that  he  should  not  be  punished 
by  any  other  means. 

Sir,  if-  so  notorious  a  crime  as  this  is  should 
be  committed  against  the  body  of  a  nation,  and 
go  unpunished,  either  in  the  common  course, 
or  by  some  extraordinary  methods,  the  nation 
would  be  io  »doubtftil  aod  daiigeroua  e&fe. 


When  this  House  hath  passed  their  judg- 
ments in  this  matter,  it  will  go  to  another 
place,  where  it  wilt  have  another  examination  ; 
sjid  it  will  have  that  refjfnlar  consideration  that 
all  other  acts  have.  We  are  in  an  extraordi- 
nary case,  and  do  think,  that  this  extraordinary 
case  does  deserve  an  extraordinary  punishraent. 

Sir  B,  Shower.  I  heg  pardon  but  for  one 
word :  no  man  docs  abhor  such  consults  more 
than  myself;  but  I  do  not  think,  that  discourses 
are  such  an  overt  act  of  high -treason,  as  de- 
serves the  punishment  of  death. 

Sir  John  Fen  wick  and  the  counsel  then  with- 
drew.   And  being  withdrawn. 

Admiral  RusseL  I  think  this  may  be  a  proper 
lime  to  ask  quctstions  :  if  so,  I  think  myself 
euough  concerned  to  trouble  you  with  one  or 
two.  I  think,  in  Uie  paper  [meaning  Fen  wick's 
informations]  that  hath  been  read,  I  am  men- 
tion^ twice.  These  are  the  questions  I  de- 
aire  to  have  asked,  what  proof  he  hath  of 
this  ?  whether  ever  he  saw——*?  And,  what 
proof  he  has  that  1  sent  captain  Lloyd  over, 
and  that  I  gave  him  a  list  of  the  ships  ?  And 
that  1  said,  we  could  not  fit  out  SO  shi^w  in 
May  ?  aud  whether  or  no,  since  this  revolution 
he  hath  had  any  conversation  with  me  ? 

Col.  Crawford,  What  that  honourable  per- 
ion  savs,  calls  me  up ;  my  name  is  mentioned 
in  air  J.  F.'s  paper ;    I  desire  you  would  ask 


651J  8  WILLIAM  III.         Proceedings  against  Sir  John  Pentoiek,         [6S! 

Col.  GranviL  I  desire  he  may  be  asked 
what  proof  he  can  give,  tliat  my  lord  Bath  wsa 
to  betray  Plymouth  into  the  hands  of  kin^ 
James,  or  the  king  of  France ;  and  whatevei 
else  my  father  is  accused  of  in  that  pspcr  ? 

]\Ir.  Hurley,  J  humbly  propose  it  to  yoa 
for  the  roctliod  of  your  proceedm^  since  yos 
take  this  method,  whether  it  will  save  joo 
time  for  you  to  look  upon  that  paper,  aud  uk 
him  as  to  the  several  parts  of  it,  wnat  prooTbe 
can  make  of  it. 

Mr.  Howe,  I  do  not  oppose  sir  J.  Femtick*! 
being  examined  to  this  paper ;  but  it  mjJA 
have  been  more  to  your  credit,  if  you  htd  ex* 
amined  him  bei'ore  your  vote :  [a  vote  made 
a  little  before,  by  which  that  pajter  was  cod- 
demned].  But  here  are  a  CTcat  many  gestlsf 
men  rise,  to  ask  a  man  to  that  which  be  doci 
not  pretend  to  any  proof  of.  The  best  nay  for 
saving  your  time  is,  1  conceive,  to  have  tbeie- 
veral  parts  of  the  paper  that  does  conccro 
these  gentlemen,  read  to  him:  and  to  ask  kiia 
upon  what  grounds  ha  gave  the  king  tbat  io- 
formation.  This  will  lead  him  into  all  tbat  be 
knows  of  the  matter. 

Mr.  Bogcawin.  I  am  not  against  the  ques- 
tion tbat  is  proposed  last ;  but  you  inav  ask 
him  tbat  at  last.  But  there  is  a  nnble  lorU  tbt 
is  reflected  on  in  that  |Kiper,  and  that  is  my 
lord  Godolphin :  I  desire  you  would  please  i« 
ask  the  same  questions  as  to  him. 

Lord  Coningsby,  I  did  inteud  to  takt*  care 
of  my  lord  Godolphin;  there  is  a  hard  reflcC' 
tion  upon  that  noble  person  ;  but  under  favour, 
you  must,  I  think,  let  liini  know  you  liriwsucb 
a  paper ;  and  then  ask  bim  in  irt-nt^'ral,  wliat 
proof  lie  has  to  the  particulars  of  that  paper? 
And  then  you  ^ill  do  inj(ii»lico  to  nobody. 

Mr.  Norris.  There  have  been  several  quel* 
tions  moved  by  several  worthy  members ;  aud, 
1  think,  the  questions  ought  to  lie  asked:  but, 
1  think,  there  is  one  previous  qucstiou  to  ail 
these :  and  that  is,  when  you  tell  him  tbat  you 
have  such  a  paper,  I  think  the  first  quesikn 
should  h(>,  whether  ever  he  delivered  tliuae 
papers  to  tliekiuirp 

Sir  li.  Deluval.  I  And  I  am  named  in  tbat 
paper  that  sir  J.  F.  hath  given  ;  I  desire  that 
part  that  relates  to  me  may  be  read  to  bini ; 
and  that  he  may  ^ive  a  reason  why  he  balb . 
said  so  of  me  and  Mr.  Killigrew.  ■ 

Lord  Walden,  There  is  another  mentioned, 
and  that  is  commissary  Crawford  ;  I  desire  be 
may  be  asked,  what  proof  he  hath,  that  be 
gave  Mr. a  list  of  ihe  army  ? 

Chancellor  of  the  Exchcijucr,  I  can't  blaM 
gentlemen  for  asking  questions  that  conccn 
them  or  their  friends :  some  are  for  reading  if 
it  to  him,  1  am  against  that :  but  yet  I  would 
haye  you  to  enquire  into  this  naper.  Aai 
being  you  intended  to  do  it,  it  miufht  have  heM 
as  well  enquired  into  before  Mr.  Digbton  cast 
last  to  him .  1  think  you  may  put  yourself  idi 
an  easy  method,  and  avoid  all  leading  fMip 
tions ;  and  ask  him  u(>on  every  name  ui  tM 
l>aper,  as  you  come  to  it.  What  be  kBpwvW 
thatgoDtieman?  ADdaskhuBUPOllMrqiMfliU 


him,  why  he  mentioned  me  in  his  paper,  as  he 
hath  done  ?  And  that  you  would  require  him 
to  make  proof  of  what  he  says  in  relation  to  mc. 
Col.  Godfrey,  I  desire  some  questions  may 
he  asked  him  in  relation  to  a  nolilc  lord,  my 
lord  Marlborough :  if  he  be  guilty,  1  would 
have  it  known,  and  1  would  as  willingly  have 
it  known  if  he  be  innocent,  as  I  believe  it  will 
so  appear.  I  would  have  him  asked,  whether, 
since  the  beginning  of  this  war,  or  fr(»m  the 
time  of  this  kinif's  landing,  sir  J.  F.  did  ever 
sneak  to  him,  in  public  or  private  ?  Or  ever 
did  write  to  him,  or  reeeive  any  messuufe  by 
word  of  mouth,  or  letter,  from  my  lord  MarK 
borough  ?    He  says,  that  some  service  he  hod 

Eromised  king  Jan^cs,  inclined  him  to  promise 
im  his  pardon:  1  would  know  nhut  that  ser- 
vice was?  And  in  relation  to  his  sending  Lloyd 
into  France,  whether  he  can,  by  any  body 
else,  make  tliat  appear  ? 

Col.  CrauJorJ.  That  gentleman  hath  nut 
me  io  mind  of  one  short  question :  whether 
ever  he  conversed  or  spake  with  me  in  his  life? 
Mr.  Bridges.  >Vhethcr  sir  J.  F.  hath  any 
body  but  himself  to  support  the  hearsay  he 
hath  given  an  account  of?     And  I  desire  a 

3uestion  may  be  asked  him  on  behalf  of  the 
uke  of  Shrewsbury ;  what  proof  he  has  that 
the  duke  of  Shrewsbury  came  into  the  oHice  of 
secretary  of  state  again,  by  the  operation  and 
consent  of  king  James  ? 

Mr.  Vernon.  J  desire  a  question  may  be 
asked  previous  to  that,  because  it  is  so  in  Ume ; 
how  he  knows  that  noble  lord  was  io  treaty 
urith  king  James,  before  he  went  out  of  the 
secretary's  office,  when  be  fint came  there  ? 


iS] 


ufOH  a  Bill  of  Attainder* 


Mr.  Smith,  1  was  staDdinpf  up  to  the  same 
nrpose :  I  would  not  have  you  to  put  words 
ilo  liis  mouth,  nor  let  him  know  b}'  any  qiies- 
un  what  answer  he  is  to  make. 
Mr.  Speaker.  Crcnllemen,  I  am  willinsf  to 
o  you  any  service  1  can  :  but  here  are  long 
nformatious,  and  I  never  read  them,  nor  know 
be  contents  of  them,  but  as  they  were  read  at 
he  table. 

Mr.  Attorney  GeneraL  I  think  the  method 
late'.y  jiroposed  will  save  you  a  great  deal  of 
;tme',  and  is  proper  for  the  discovery  of  the 
truth :  that  you  will  name  the  persons  to  him 
in  order  as  thov  are  in  the  paper,  and  ask  him 
in^oeral,  Wliat  lie  knows  of  those  persons? 
Bot  when  you  call  him  in,  f  am  not  for  askin? 
bin  to  the  particular  thin^  he  hath  said 
aipunst  them  in  that  paper ;  l^cause  that  paper, 
thoDj^h  it  is  under  his  own  hand,  is  not  his  own ; 
asft  if  he  knew  it  then,  be  knows  it  still. 

Col.  Murdaunt.  I  wonH  pretend  to  propose 
aay  thinf*-,  only  fur  the  shortenings  of  your 
time:  If  after  you  have  informed  him  there  is 
such  a  paper,  that  you  should  ask  him.  Whe- 
ther he  will  own  it?'  And  then,  What  sort  of 
proof  he  will  brinj;  to  prove  it?  You  will  find 
be  will  either  tell  you,  he  will  advise  with 
coimsel,  or  whether  he  will  give  any  answer 
at  all. 

bml  Cutis.  1  have  only  one  question  to. 
bf^askedsir  J.  F. ;  It  is  not  a  question  that 
rrhtfs  to  any  person  namefl  in  that  paper.  I 
think  thei-e  is  no  one  jierson  that  he  hath 
macd,  but  in  emiuently  known  or  believed  to 
beia  the  interest  of  this  gfovemment;  and  none 
bat  what  are  in  some  post  of  trust  and  eni- 
filoTaient  in  it.  Then,  I  think  it  highly  ne- 
cesnry  to  know,  how  it  comes  to  |iass  that  he 
biih  had  so  much  conversation  with  persons  of 
thttchamcfer,  and  none  with  those  people  that 
hekatb  been  acen  daily  to  converse  witliP  And 
if  he  hath,  why  he  hath  not  discovered  them, 
as  he  hath  done  the  rest? 

Mr.  Speaker,  Is  it  your  pleasure  I  inform 
him  we  have  the  informations  ? 

Mr.  Palmer,  If  I  am  not  mistaken,  when 
pa  firrt  called  sir  J.  F.  before  you,  he  referred 
iimself  to  what  be  had  informed  the  king; 
ud  referred  himself  to  that  paper,  as  of\cn  as 
VOQ  asked  him  any  questions.  And  if  you  ask 
bn  genera]  questions,  I  presume  be  will  give 
Tw  die  same  answer :  Therefore,  I  think,  it 
Kay  be  proper  to  ask  him.  Whether  this  is  the 
psjKfthat  he  delivered  in,  or  not?  Or  other- 
*iie,  I  doobt  be  will  tell  you,  he  knows  uo- 
Ibiog  but  what'ii  in  that  paper.  Now,  if  he 
jcftn  to  tiiat  paper,  you  may  ask  him,  if  he 
faowi  it  again,  irit  be  shewed  to  him. 

Mr.  Sloane,  What  this  gentleman  has  said, 
kii  partly  interrupted  what  I  was  goinj;:  to 
*ftr ;  but  aa  to  what  he  says.  That  when  he 
*ii  here  before,  be  referred  to  his  confession 
^fivcred  iu  tu  the  king;  we  did  not  tell  him 
^kKw  of  that:  But  he  put  it  further,  That 
"WasiMlbmind  to  accuse  himself,  and  that 
^  he  md  might  be  |^ven  in  evidence 
im ;  anifO  ftr  he  was  in  the  right: 


A.  V.  1696.  [654 

For  if  he  knew  of  any  body  that  was  concerned 
in  a  conspiracy  against  the  government,  that 
was  misprision  of  treason  at  least  in  him.  I 
don't  question  but  it  was  a  very  mischievous 
contrivance ;  but  if  he  should  confess  it,  with- 
out some  assurance  of  being  indemnified,  be 
proves  himself  to  he  gnilty  of  it. 

Mr.  Vice  Chamberlain,  You  are  now  upon 
the  mathod  of  your  nrocecdings.  There  is  great 
suspiciou  whether  this  paper  he  sir  J.  F.'s  own 
or  no.  If  you  will  tell  sir  J.  F.  that  in  the 
paper  in  your  hand  he  hath  laid  tliiners  to  the 
charge  of  persons  of  trust,  whom  this  house 
hath  a  good  opinion  of;  and  that  this  house 
desires  to  know.  What  ground  he  hath  for  it? 
if  he  does  not  think  fit  to  give  you  an  account 
of  it,  there  is  an  end  of  your  enquiry. 

Mr.  Jamet  Montague,  The  house  seems  to 
agree,  that  they  will  have  sir  J.  F.  sent  for  in  : 
1  suppose  you  will  not  have  the  counsel,  nor 
solicitor,  by ;  and  when  he  withdraws,  I  de- 
sire he  may  be  kept  private  from  bis  counsel 
and  solicitor. 

Lord  Cults.  By  sir  J.  F.'s  behaviour,  when 
he  first  appeared  at  the  bar,  and  by  what  he 
said  then,  I  believe  sir  J.  F.  did  tell  you  to  this 
sense.  That  be  had  assurance  from  a  noble 
person,  that  what  he  then  said,  should  not  rise 
against  him  in  judgment ;  and  I  think  he  was 
told.  If  he  dealt  ingenuously,  he  might  expect 
favour,  or  to  that  effect.  I  do,  for  the  saving 
of  time,  mention  it  to  you,  to  consider  how  far 
the  house  may  give  him  security,  that  what  he 
here  says  shall  not  rise  up  in  judgment  against 
him ;  and  that  if  he  dealt  ingenuously  he  might 
expect  some  favour  from  this  house. 

Mr.  Hurley,  You  are  upon  the  nicest  thing 
in  its  nature,  that  possibly  can  come  before 
you.  I  think  before  you  call  him  in,  it  ought 
to  be  understood  that  the  questions  be  very 
plain. 

Mr.  Manley,  I  think  you  liave  been  wdl 
moved  from  the  other  side,  That  we  shonkl 
not  read  this  paper  to  sir  J.  F. :  And  I  am  of 
that  opinion  from  this  consideration,  besides 
what  hath  been  mentioned :  We  are  here  in  a 
judicial  capacity  as  well  as  a  legislative;  and 
this  paper  I  take  to  b^  an  examination  made 
upon  sir  J.  F. ;  and  as  my  memory  serves  ne, 
some  things  he  speaks  of  as  matters  of  fact, 
which  he  does  positively  assert ;  which  being 
contained  in  the  same  paper  with  other  natters 
of  hearsay,  if  ^ou  should  read  that  paper  to 
him,  and  ask  him  a  question.  Whether  that  be 
his  paper  ?  That,  I  dooht,  will  be  contranr  to 
the  rules  of  law  :  Fur  it  will  l>e  asking.  Whe- 
ther this  information  against  himself  be  true  or 
false  ?  And  I  think  it  does  not  become  the 
dignity  and  honour  of  this  great  assembly,  to 
ask  him  any  questions  that  may  make  bim 
accuse  himself. 

Mr.  Vernon,  I  would  observe  to  yon,  that 
he  has  not  considered  these  two  pspers :  The 
first  of  these  papers  I  think  the  bill  refers  to, 
and  that  is  under  sir  J.  F.'£  hand;  and  there 
he  does  charge  nothing  at  all  upon  himself,  but 
it  is  an  accusation  upon  the  persons  named. 


I 


I 
I 


C55]  8  VVILHAM  III. 

in  the  first  paper  be  does  sny.  There  ^m  a 
•elect  numbei  to  niaoagc  the  atHiir^  of  king 

J«mes,  II n J ivas  sent  over,  but  lliey  are 

not  named  ;  and  ai\ern aids  he  went  about  to 
exnbin  it  in  the  sccood  ;  and  the  bill  refer  ring 
only  to  tlie  first,  I  aLi|*pose  you  will  confioe 
J'4|ur8elves  nu\y  to  the  iirst  papr. 

Mr.  Chan,  of  the  Eich,  I  wouM  ibiok  of 
wme  w^y  to  recoucile  these  ihiojir^  you  are 
^oing  upon  :  For  thoui^b  gentlemen  are  in 
U»e  rijfht  to  pres!»  fcir  these  qtic^Lions,  yel  [  do 
not  tliink  it  the  buMnesf  U  liire  you.  There- 
fore 1  think  you  ijbauld  acquaint  sir  J.  F.  that 
this  ptper  huth  been  presented  to  you,  which 
litis  house  huth  thought  tulse  and  scandulous  ; 
But  tKftbre  be  goes  awty,  this  house  has  a 
inind  to  Ue^r  what  be  would  say  to  it ;  aod  let 
birn  say  what  lie  would  upon  that,  then  you 
would  not  kad  him  by  any  question.  The 
Iirst  person  that  is  named  f  hafe  a  g^reat  re- 
apeet  for,  and  aiit  as  witling  he  shonlJ  be  fin* 
Vacated  as  anv.  The  first  question  that  you 
o&k  him  is,  \Vhat  be  knows  of  my  lord  Godol- 
phin  ?  But  that  you  should  literally  ask  hita 
qut*s>lions»  as  the  ]»ap€r  state*  it»  1  don't  think 
it  proper  for  tbis  as.'iemhlv  to  ask;  tor  there  arc 
facts  *>eyi»nd  the  Act  of  Indemnity,  many  of 
ibein.  AiXcT  you  have  done  wttb  fbe  pnper,  I 
have  some  qaeslions  to  a&k  him :  I  take  tht'5e 
matters  to  lie  fatsc ;  but  I  shall  have  some 
^uestjoos  to  ask  him  wliitih  I  believe  will  pi-ove 
true, 

Mr,  Bndgci.  Before  you  call  iu  sir  J.  F.  I 
n^uultf  fjffcT  one  thlna^  to  your  eonsideratiun  :  I 
Uunk  lliut  puper  you  lire  unon  is  written  v^iih 
luv  .1.  F,^s  own  hand.  Why  may  it  not  he  fit 
f«r  you  to  usk  fcir  J»  F*  if  that  be  liifr  Imnd  ? 

MemUrs.  No,  no. 

^Ir.  Siicttkcr.  Js  it  your  pleaiore  that  m 
John  Feu  wick  be  called  iti  ? 

Whieh  Question  being  |)iit,  it  passed  in  the 
atEmiaiive.  And  he  was  biMJuy^ht  in  ^\ithout 
his  counsel. 

Mr.  Speaker.  Sir  John  Fen  wick,  tins  house 
does  uudeiTiiund,  that  you  have  given  inforniu- 
lions  againiil  several  ]»erson^  of  great  qunlit}', 
that  hare  been  in  the  government:  and  they 
do  expect  irmn  >ou,  that  you  j^bould  deal 
clearly  and  candidJy  with  thetn,  rind  gfive  them 
an  account  of  what  you  know  iii  relation  to 
those  [lersons.  1  aro  commandnl  in  the  lirjit 
place  to  ask  you,  What  you  know  of  my  lord 
Godoiphin,  iii  relation  to  this  mutter  f 

8jr  X  Frtiukk.  I  am  under  a  double  pro- 
secution tor  my  life  :  I  know  nut  but  w  hat  I 
say  may  turn  to  my  "\*ri  prejudice:  I  Iioj»e 
the  liouse  will  not  iiiink  it  nri  t>hstiuiicy  in  me  ; 
and  since  tlu!»  hout^e  have  done  me  tiie  t'avriur 
to  hrar  me  by  my  counsel,  I  hope  they  will 
please  to  f?onsiiler  what  they  have  said. 

Mr.  Speaker,  No  donht  the  bouse  will  con- 
•ider  what  you  hove  staid  hy  your  counsel,  that 
is,  in  rpference  to  yonr  own  defence  ;  but  they 
do  expert  from  you,  as  1  I  old  you  before,  that 
vou  do  deal  candidly  with  ihcm  iti  what  you 
iuQvr  of  this  mutter* 


Proceedings  againH  Sir  John  Fcmvklf 

Sir  J.  Fennick,     Sir,  I  am  nudw 

tji»fi  for  my  life:  and,   I   hiqw,  ihr  hmu    

please  to  consider,  thai  I  kri'>w  Oitt  what  m^ 
cimvenitncy  may  come  upon  me  by  it;  sad  1 
hope^  the  hou9«;  will  excuite  nH\  f  jr  I  do  it  oot 
ont  of  ohhitniicy,  but  lor  my  own  |»i  »*vervali*Mi, 

Mr.  Spi'oker,  Vuu  would  do  wt^M  to  4dtiM 
yonrself  well  in  this  matter';  it  is  of  fftvtt 
concernment;  the  favour  *tf  llr    '  fvw 

deserve  it,  may  be  of'  trrcui  k  in  i '  i     I 

have  only  iu  command  to  It'll  >  .u,  ..,t^i  tW 
house  ex|vect,  and  you  are  to  courtlier  liow  ta 
answer  it. 

!Sir  J.  Frnicick.     I  hope  the  lions*'  will  doI 

IMit  me  upon  any  thin;:^  that  will  hurt  myself 
should  be  sorry  to  incur  the  dispkn^fure  of 
this  bouse,  hut  I  hope  they  will  eouiiid«fr  mf 
cojiditiou ;  and  I  am  sure  the  juMiicf>  nsm\ 
honour  of  the  house  is  such,  that  they  wdlint 
press  any  inau  to  do  auy  thizig  that  uiay  kol, 

Mr*  Speaker.   Sir,  tf  you  please  to  withdraw*, 
[Aocordbgly  sir  J.  Fen  wick  withdrew.] 

Ijord  Cutii,    I  would  himibly  propose 
thing  to  you  to  save  \onr  time,  »tid  removi 
this  inconVenieDcy.     The  boost*  have  Uevi 
what  hir  J.  F.  say*i;     1  cannot  but  say,  t 
in  matters  of  blood  %ve  cannnt  be  too  tender 
hut  that  I  would  jtropose  to  you,  if  this 
approve  of  it,  is  ihis:    suppose  yon  wa' 
whole  matter  to  the  l^st  moment  of 
your  hill^  and  then   I  shall  have  hmii 
more  to  say  to  you  in  the  matter. 

Mr,  Clerk,  Now  1  think  it  may  lie  rttf 
pn»per  for  you  to  proceed  in  yollr*le^i.4attfl•i 
oapacity.  I  am  glad  the  house  have  taken  a»| 
much  pains  in  this  examination  ot'  tlit-  matter 
and  it  is  no  small  s:tti>»IUciion  to  nie«  ituvl  tti# 
l^eoilemau  was  bronifhi  to  liie  bar  upon  ibii 
enquiry ;  very  prohuble,  iinother  tiinc  nwi/ 
induce'  liim  more  to  comply  than  be  does  it, 
present;  though,  if  t  luity  spak  iny  opinioap^ 
there  ii  tittle  hope  of  tlit*  centleilian's  ftB-" 
swering  your  expecf»tinu  here:  and  I  tliifill^ 
the  first  thing  you  are  tu  do  tam'^  is  lo  km 
your  bill. 

1^1  r.  Pultenei/.  Oneof  the  allegaliont^oftbij 
htll  is,  that  hk  trial  was  put  ofi*  upon  si^vrml^ 
repealed  pretences  of  niakitig  a  confessiwi. 
The  conuHcl  for  the  prisoner  look  nolrce  ibit 
that  allegation  wjis  not  pro\ed:  the  coans<fl 
for  the  bill  told  you,  they  must  refer  %o  *, 
worthy  member  ot'this  house,  who  could  nrcFTt^ 
it ;  the  w  orlhy  member  it  Mr.  X'^ernon.  I  fcup'^ 
pose,  before  }0U  enter  into  a  dehalc,  as  tber»] 
will  he  after  the  second  reading  of  thp  bdl# 
gentlemen  will  desire  to  have  all  the  evidenet»; 
And  t  find  your  order  is»  that  Mr.  Virnon  d<i 
give  in  his  evidence  while  sir  J.  F.  ih  at  tha 
Cari  and  tlierefore  I  humbly  move.  That  sir 
J.  Fcnvuck  may  be  called  iu  while  Mr.  VernoA 
gives  hi»  evidence.  4_ 

.Mr.  Speaker.  I  suppoae  if  BIr.  Vernon  gtvc| 
evidence,  you  will  call  in  the  couuael. 

Members*     V'es,  yes. 

Speaker.     Pray^  ih«P{  bear  Uie 


is  bggi 
meiffin 


Mr. 


G57J  upon  a  BUI  ofAitainderm 

thatlmlh  liera  made;  8ha11 1  put  the  question, 
that  8ir  J.  Fenwick  and  the  counsel  be  called 
io,  while  Mr.  Vernon  does  ^ve  his  evidence  ? 

Which  question  passed  in  the  affirmative; 
anil  sir  J.  Fenwick  and  the  counsel  on  both 
sides  were  brought  in. 

Mr.  Speaker.  Gentlemen,  you  that  are  of 
counsel  of  both  sides ;  the  house,  before  they 
proceed  any  further,  was  willinff  to  hear  the 
testimony  uf  a  worthy  member  of  this  house, 
vrhich  halfa  not  yet  been  ifiven ;  and  they 
are  Willi o<^  that  sir  J.  Fenwick  and  you  should 
be  present  while  it  is  ipTen.  Mr.  Vernon,  will 
you  please  to  acquaint  the  bouse,  &c 
.  Mr.  yernon.  If  I  understand  the  counsel 
for  the  bill  aright,  that  which  they  did  appeal 
to  me  for,  was  about  the  protracting  of  sir 
J.  F.'s  trial,  and  upon  what  pretence  it  .was. 
The  account,  8ir,  that  I  can  give  of  it,  is  tliis : 
that  sir  J.  F.'s  trial  was  put  off,  will  appear 
best  irom  the  freouent  adjoumraentsof  the  ses- 
sions at  the  Old- bailey  ^jr  six  or  seven  weeks 
tugeiher.  For  when  sir  J.  F.  was  committtnl 
to  the  Tower  (which  was,  as  I  take  it)  on  the 
19th  of  June,  there  was,  1  believe,  a  sessions 
to  be  held  soon  after ;  for,  as  1  remember  it, 
the  first  application  tliat  lady  Mary  Fenwick 
made  for  putting  off  sir  J.  F?s  trial  was  u|>on 
the  30th  of  June;  anil  the  petition  was,  that 
iie  iiii^lit  have  some  friends  come  to  him  to  ad- 
Tise  him  how  to  make  his  application  to  the 
kinfir :  on  the  30th  of  June  or  about  that  time, 
my  lady  Alary  Fenwick  did  lirst  propose,  that 
soOielMidy  should  be  sent  over  from  sir  J.  F. 
to  the  king  upon  some  matters  of  im|»art&iice, 
but  dill  not  decUre  what  they  were ;  but  only 
that  she  was  told  there  was  such  matters,  and 
she  had  a  (iroper  |ierson  to  send,  and  would 
arquaint  the  Iwils  justices  with  the  man,  if  he 
mi)(iit  have  leave  to  ^o  to  the  king :  but  after- 
wards my  lady  Mary  Fenwick  said  slie could  not 
pruride  a  fierson  so  soon  ;  and,  1  think  the  'Jd  of 
July,  she  <»me  and  offered  to  go  herself;  and 
said,  if  it  was  not  as  much  f»r  tlic  kintr's  service, 
as  sir  J .  F.'s  beiietit,  she  would  not  undertake  tin* 
journey.  81ie  liail  leave  to  go,  and  would  have 
capitulated,  that  the  trial  should  be  put  off  till 
■he  returned  ;  but  tlie  lords  said,  when  she 
should  return,  would  depend  upon  her  plea- 
sure ;  but  they  would  w  rite  to  the  king  at  the 
■anse  time,  and  gave  notice  of  her  intention, 
and  that  the  trial  should  not  gu  on  till  they  had 
an  answer  of  their  own  letter. -*There  was  a 
passage  in  the  lrans|)ori-ship  going  to  Holland, 
and  my  lady  Mary  Fenwick  desired  to  s|)eak 
with  sir  John  in  private,  in  order  to  her  jour- 
ney ;  the  same  night  she  came  back  again,  and 
said,  she  had  considere<l  of  it,  and '  said,  she 
"Would  not  go ;  and  several  reasons  she  gave. 
Upon  the  7th  of  July  there  was  a  noble  lord 
that  was  in  the  commission  for  the  adminis- 
tration of  the  government,  said,  he  had  had  an 
application  maile  to  him  from  another  noble 
peer,  ray  lonl  Carlisle,  who  desired  that  he 
would  gu  to  sir  J.  F.  for  that  he  had  been  very 
«acDe|jt  to  speak  with  hiua.  That  nuble  lonl 
VOL.  XIII. 


A.  D.  1696. 


[Qsa 


did  acqniint  the  lord  justices  with  it,  who  ac« 
quiesced  in  what  he  thought  fit  to  do  in  the 
matter.— He  went  the  saniteday  to  sir  J.  F.  and 
the  next  day  the  lords  justices  met  again ;  he 
then  told  he  had  been  with  sir  J .  F.  and  that 
sir  J.  F.  luid  told  him,  he  had  sent  to  the  king  ; 
for  he  did  not  allow  it  should  beotlierwtHecom-* 
municated.  My  lords  then  thought  it  was  fit 
to  stay  for  the  kmg's  answer.  This  was  the  7tU 
of  July  ;  and  by  what  acciilent  I  know  not, 
but  no  manner  of  account  came  till  the  71  h  of 
August,  that  the  letter  was  receite«l ;  but  the 
7th  of  Aug.  the  letter  was  acknowletlged  to  be 
received;  and  the  answer  that  then  came  to  it 
was,  that  the  king  had  not  received  an  v  great 
satisfaction  by  the  message ;  (I  know  not  what 
it  was)  but  that  sir  J.  F.  should  lie  trieil ;  but 
withal,  that  noble  lord  ac(|uainted  my  lords  juSf 
tices,  that  the  king  was  pleased  to  write  to  him« 
that  what  sir  J.  F.  had  to  say,  should  be  sent 
him  in  writing.  It  happened  at  that  time,  thai 
the  judged  were  ufiou  their  cir<>uit ;  and  there 
being  the  king's  directions  to  receive  what  sir 
J.  F.  had  to  say  in  writing,  that  noble  lord  did 
undertake  to  go  again  to  sir  J.  F. ;  and,  1  sup* 
pose,  he  did  receive  something  irom  sir  J.  F. 
which  he  sent  to  the  king :  w  hen  the  answer 
to  that  came  it  was  in  September,  and  that 
noble  lord  was  at  the  Bath  ;  and  so  it  required 
a  litt'e  time. — Why  then  it  appeared,  that  the 
king*s  direction  was,  that  what  sir  J.  F.  had 
sent  to  the  king,  he  should  prove  it ;  and  he 
should  hkewise  shew  his  ingenuity  in  coniessing 
what  he  knew  of  any  other  design^:  against  the 
government:  and  the  10th  Sept.  as  I  take  it, 
I  was  (liriTted  tu  gu  to  sir  J.  F.  who  was  then 
in  the  Tower,  and  to  acquaint  him  with  this 
message.  fio:n  my  lords  justices.  S.r  J.  F.'s 
ansvter  was,  Tiiat  he  had  no  more  to  say,  or 
soine  Hui'ils  to  thut  effect;  and  then  he  must 
prepare  for  his  detence  us  well  as  he  could  ;  but 
if  hecou'd  speak  with  tliat  nuble  lord,  he  should 
be  glad  to  df>  it ;  but  he  w  as  not  come  from 
the  Bath,  and  direction  was  then  given  for  his 
trial.  A  gum,  in  the  mean  lime,  that  noble 
lord  did  come,  and  he  did  go  to  sir  J..  F.  and 
he  brought  an  account  from  him,  Tiiat  sir  J.  F. 
would  |iruvc  to  the  kiosT,  and  make  out  what  he 
had  sail! ;  and  was  ready  to  give  the  lords  jus- 
tices satislaction :  and  upon  that,  I  w  as  sent  to 
sir  J.  F. ;  1  carried  the  message  in  writing, 
which  you  may  see  when  you  please. ;  and  it 
was  to  osk  him,  Whether  he  was  witling  to 
make  out  hy  proof,  what  he  had  already  said 
tu  the  king;  and  whether  he  was  ready,  iu 
compliance  with  the  kim^'s  direclitms,  to  give 
the  lonls  an  account  of  \Uiat  he  knew  of  any 
design  against  the  government  ?  I  carried  siri. 
F.  this  message,  and  he  returned  an  answer  in 
writing,  That  he  was  ready  to  make  out  to  tlie 
king  what  he  said,  and  would  ac(|uaint  the  lords 
with  all  the  matter  that  he  had  not  ob^iervetl  to 
the  king ;  (his  arraignment  was  then  to  have 
come  on  the  I7th)  hut  he  did  dicUte  a  pa|ier 
which  was  brought  to  the  lords,  which  they 
thought  fH  to  1)0  sent  to  the  kiug ;  and  tlie  trial 
was  put  off  as  to  thai  time  i  and  before  ai^ 
3U 


659] 


8  WILLIAM  IIL 


«ntw«r  A-oni  tbv-kin^  came,  it  wu  (I  believe) 
Ihebeffinnini^of  Octolier:  and  this  u  the  ac- 
count I  have  to  irive  you. 

Mr.  Siteaker.  Gentlemen,  yon  connder  that 
this  evidence  ii  fifiven,  with  relation  to  that 
part  of  the  hill,  that  sets  forth,  how  sir  J.  F. 
hail  delsyed  his  trial  by  offers  of  eonfewon. 
You  ba?e  heard  %vhat  the  evidence  is ;  if  you 
have  any  lhin$r  to  observe  as  to  that  point,  you 
may  speak  before  you  withdraw. 

8ir  Tko.  Fowtf$.  As  to  this  matter,  I  can 
6nly  say,  that  in  itself  at  least  according  to  our 
rules  of  law,  it  is  nut,  in  any  dej^ree,  treason : 
what  you  will  construe  it  to  he,  I  cannot  tell. 
IVe  think  it  is  only  what  is  very  usual  when 
fiersoRs  are  under  an  accusation ;  they  will 
put  off  their  trial  as  long^  as  they  can :  perhaps 
their  witnesses  may  1^  out  of  the  way,  or 
somethinfOr  ^^  nnay  be  the  reason  of  it,  and  it 
does  Tiot  rarry  any  crime  in  itself;  at  least,  not 
of  the  nature  that  this  bill  is  of. 

8ir  Bartk,  Stumer,  We  do  think,  with  sub- 
mission, that,  oonsiderinfir  the  nature  of  the  bill, 
and  the  particular  case  of  sir  J .  F.  will  (in  some 
neasihv)  answer  this  fact :  1  take  this  sinirly 
in  itself,  as  it  hath  been  observed,  not  to  con  • 
list  with  honour ;  but  it  does  not  import  a 
crime,  tor  any  man  to  use  little  insinuations  to 
put  off  hi<4  trial.  But,  suppose  it  was  unlawful, 
•r  that  which  they  call  prevaricatini; :  I  lio|ie 
St  is  far  Irom  makint^  him  (ruiliv  of  hi|fh- treason, 
which  is  the  prreatest  crime  this  bill  designs  to 
|>ass  sentence  for ;  and,  I  hope,  you  will  coii- 
aider,  if  it  Lq  an  offence,  it  is  so  at  cuimmon 
Jaw;  and  ttie  same  evidence  will  prevail  to 
briny^  sir  J.  F.  to  coudic^n  punishment  by  the 
common  methods.  And  if  it  be  no  offence,  1 
hope  yuu  will  not  by  law  make  it  an  offence, 
BO  as  to  inflict  the  gieatest  punishment  for  this 
artifice. 

Mr.  Speaker,  Mr.  Serjeant  Gould,  have  you 
any  thiniyif  to  nay  ? 

Mr,  Serj.  Gould.  No,  Mr.  Speaker. 

Mr.  Speaker,  Then  withdraw. 

And  heinnf  withdrawn, 

Mr.  S/oane,  1  propose  it  to  you.  Whether, 
if  tlie  paper  be  evidence,  it  should  not  be  read 
in  the  presence  of  the  prisoner? 

M*mbcrs.  No,  no. 

Then  the  (jueMion  was  put  for  Candles; 
which  passed  in  the  affirmative,  and  they  were 
l»rouji>ht  in. — Ordereii,  That  ihe  counsel  be  dis- 
cbargi'd  any  tuith(r  attenduncc  at  tliis  time. 

Mr.  Mtihuen.  There  car  he  no  debate 
previnutt  to  the  ren«ling-  ol' your  hill.  1  desire 
tJiC  order  of  the  *\.\y  may  be  read. 

Accnrdinijrly  the  (htlvr  of  the  day  for  readin|i^ 
of  the  Uiil  a  sec4i*id  time,  was  read  hy  the 
olerk.  I'hen  the  liill  was  read  a  second  time 
by  the  clerk. 

And  bi'in;^  afterwards  opened  hy  l\Ir.  Speaker, 
anil  he  havinvf  ex]>ccted  for  some  time,  and  no 
member  rihin^  up  to  speak: 

Mr.  .Speaker,  Shall  1  put  you  the  question 
of  comuiitmentp 

Sir  Thit.  Djfke.  Sir,  I  hope  you  will  not 
put  the  qiiestioa  of  comiuitnMQt  uoVii  some  ez- 


ProceetUngs  against  Sir  Mm  Fetmd^f        [M 

ception  is  made  to  the  bill ;  I  «m  Mta'il  is  n 
liable  to  exceptions  as  any  bill  that  bath  ham 
brought  in  a  ([{Teat  while :  h  is  *  laiidcr  anhjeH 
to  speak  of,  the  pretence  of  the  bill  b^n^ftr 
the  preservatio:i  oftbekingand  giovcniMBt; 
and  if  I  thought  it  was  really  so,  I  tboaU  hi 
heartily  for  it ;  tor  I  think  there  it  no  coft 
rison  lietween  the  vmlae  of  the  king^  life,  smI 
that  of  private  personi :  but  that  halk  ksn 
often  said,  but  not  proved ;  thwefote,  1 1 
I  may  tell  you  my  reaaoni  why  I  aiD  i 
the  bill.  That  the  fMriiameot  balb  a 
to  make  such  a  law,  is  agreed ;  but  I  tl 
ought  not  to  be  oicd  but  upon  4 
occasions,  when  great  peinea  ai 
that  cannot  be  otherwKe  brougbt  to  ^ 
and  when  crimes  do  not  Ml  nnder  ibadcai* 
mination  of  the  law,  which  is  not  tfaaDnMl 
case.  ThiscaseiSftbatageBtlemaDiseMigil 
with  treason ;  and  it  is  proved  but  by  eue  vib 


though  the  ooansel  did  asy,  tb^  a  om 
salt  io  levy  war  was  not  treaaoo.  Now  site 
it  will  not  be  the  crime  that  is  alledged,  or  itb 
not  proved.  Here  you  are  jndgea,  proi 
witnesses  and  jury:  1  woukikiyiw 
country  it  is  so  i*  Begidei,  the 
produced  here,  and  not  sworn ;  and  Hpoa  tin 
whole,  tliere  is  but  one  witnesa.  Sir,  I  m 
against  the  bill,  and  against  it,  as  being  af  te> 
gerous  consequence. 

Mr.  Ptt//aey.  This  matter  befiwe  yoa  ii  rf 
such  a  nature,  that  as  a  debate  is  risiBg  npaii^ 
I  hope  all  gentlemen  will  bear  one  aaolhtf 
with  the  greatest  attention  that  may  be.  Ths 
worthy  member  admits  you  have  a  powOH 
pass  the  hill,  and  I  do  not  find  that  contatfd 
by  any  iKMly  ;  thou^^h  (with  submission)  ibi 
latter  part  of  what  lie  said,  contradicted  wfait 
he  admitted  at  iirst ;  but  since  that  is  so  nsck 
agived,  1  shall  say  but  little  to  it,  and  that  il 
this :  that  without  such  a  power  as  this,  asy 
government  would  be  imperfect,  and  wcaM 
want  a  sufficient  power  for  its  own  preservstii^ 
u|K>u  extraordinary  occasions.  You  havebeoi 
told,  this  hath  been  an  untrodden  path ;  hot,  I 
believe,  gentlemen  are  pretty  well  satisfied  it 
hath  not  beeu  so  untrodden,  and  many  prec^ 
dents  of  that  kind  have  been  quoted;  aodlhs 
counsel  a^rainst  the  bill  have  aduiitled,  thtf 
there  have  been  frequent  precedents.  Aa  ok 
jection  hath  been  made  to  some  of  them,  Ibit 
they  were  made  in  ill  reigns;  but  I  take  it  Is 
be  no  olijection,  that  the  precedent  was  niio 
at  one  time  or  another,  since  it  is  agreed,  thtf 
we  have  such  a  |M>wer,  and  that  that  povtf 
hath  be<'n  executed. — The  cliief  matter  beta 
you  is,  Whether  in  the  present  case,  there  ii 
sufficient  {frouud  for  you  to  exert  that  pow«f 
And  u|Nm  that,  give  me  leave  to  observe  ikt 
nature  of  the  crime  of  this  gentleman,  and  iht 
evidence  that  hath  been  brought  to  prove  Wm 
guilty  of  that  crime.  Hiscrime  is  high-treon 
the  highest  crime  in  the  law :  it  is  tor  oamf^ 
intr  the  destruction  of  the  king,  and  tbeoMfr 
thruwintif  of  the  government.  The  etort'Ojt 
which  tiie  bill  tells  you  (and  which  io  mm 
tioned  ia  the  indirtrnmi)  m  Ui  ntiiiiV  *  ^ 


I] 


tcjBOfi  a  BiU  ofAtiainder* 


A.  D.  1698. 


iGtm 


nch  firae,  io  aidtr  toaceemplith  hit  design, 
his  crinia  woaM  admit  of  iggravation,  some 
er  puti  of  the  bill  would  aggravate  it;  but 
link  it  will  adDit  of  none.    The  counsel  at 

bar  made  •  doobt,  whether  or  no,  that 
ich  was  laid  hi  the  indictment  did  amount  to 
jfficiettt  oYert-aet  of  high-treason  ;  and  his 
viDent  he  drew  from  a  book  that  hath  been 
oat  by  a  learned  gentleman  of  tlie  house ; 

the  gcntlertian  could  easily  have  answered 
irelf ;    and,  I  presnme,  diil  not  speak  his 
a  opinion.     For  that  gentleman  did  write  a 
ik,  called,  *  His  Majesty  and  Government 
idicafed :'  by  which  he  endeiroured  to  over- 
ow  the  argamenta  in  the  other  book  of  the 
lergentlctnan. — A*  to  the  proof  before  yon, 
a  nave  bad  the  testimony  of  Mr.  Porter, 
wse  evidence  hath  been  justified  by  the  se- 
rai convictions  grounded  upon  it ;   and  by 
t  eonlosion  of  several  gentlemen,  that  hate 
nedthe  fiiut  at  the  very  time  when  they  have 
CD  gomg  out  of  the  world  :  and  there  hath 
en  no  evidence  brought  by  the  prisoner  at 
e  bar,  that  should  invalidate  the  testimony  of 
ia  gentleman.    And  so  (with  submission)  you 
ite  one  undoubted  evidence,  that  doea  char^ 
a  prisoner   with    the    fact    mentioned    m 
cbill:   you  have  other  proof  that  does  not 
«e  op  within  the  letter  of  the  law ;  but  you 
ife  strong  circumstantial  proof,  that  e^ery 
iotleroan  will  apply  to  his  conscience  in  the 
d^^nvent  he  shall  give  in  this  matter.    One  of 
e aliegation<i  in  the  bill,  is,  that  he  did,  by  re- 
nted prnmisea  of  making;  a  confession,  from 
na  10  time,  gain  a  delay  of  liis  trial.     It  is  a 
vat  presnra|ition,  that  that  was  in  order  to  a 
iBjpi  that  he  had  of  scilucing  Mr.  Goodman, 
at  was  one  of  the  witnesses ;   for  it  was  ob- 
fved  to  you,  what  practice  there  waa  in  the 
nr,  with* the  other  evidence,  Mr.  Porter.— 
r,  gentlemen  have  objected  the  consequences 
^  BMking  a  precedent :  you  were  very  well 
U  by  a  worthy  gentleman  tliat  spoke  the 
kn  flay,  near  the  place  where  I  am,  that  in 
K  case  of  a  good  parliament,  it  is  not  to  be 
Ngined  that  they  will  make  use  of  this  pre- 
Mt,  but  Dpon  as  good  a  ground  as  yon  have 
Nv ;  and  an  ill  parliament,  they  will  have  the 
urn  reaaoB.  lor  they  will  copy  afVer  the  same 
laoedcnta  that  have  been  made  l>efore,  and 
iR  not  stick  at  doing  of  it.    Besides,  let  gen- 
Men  coaskler  the  way  of  arguing:  I  have  a 
■var  Io  do  such  a  thing,  and  yet  if  I  have 
Mb  ajjroond  aa  ia  anfficient,  I  shall  not  make 
H  af  a :   to  aay.yon.  have  a  power,  but  shall 
atsMvt  it,  ia  uffwid  aa  to  aay,  you  have  no 
aver  at  all.     Tnere  were  some  preceilents 
iltd  bf  a  learned  gentleman  that  spoke  against 
b  biH,  and  be  particularly  quotea  that  cif  my 
■dIftraAiffd ;  and  the  act  of  parliament  that 
i^eab  that  attainder,  waa  in  part  read  to  you  : 
■■t,  ar,  the  veaaooa  given  in  that  hill  of  refieal 
■fay  kird  Stniffbrd'a  attainder, are,  that  it  was 
teitil  ID  a  t&maltaoua  manner,  which  infln- 
indlha  parliament  in  doing  of  it;  and  that  it 
Mid  in  Uia  house  of  lords,  when  most  of  the 
vii  warn  aiMCDt :  and  at  lait,  the  lung,  when 


he  gate  his  consent,  by  commission,  to  the 
passing  of  thebill,  it  was  with  great  reluctancy. 
It  is  certain,  all  these  are  reasons  that  are 
given;  but  there  is  not  one  that  questions  the 
parliament's  power  of  doing  it ;  though  upon 
the  trial,  gentlemen  may  remember  there  waa 
a  doubt  in  the  law,  whether  the  evidence  waa 
sufficient.  Sir,  it  hath  been  urged  to  you,  of 
what  ill  consequence  it  would  he,  and  how  much 
injustice,  tu  make  a  law  to  punish  a  man  ex  pott 
facto  ;  hot  that  the  parliament  may  declare 
that  to  be  a  crime,  which  was  not  so  before^ 
nobotly  doubts;  and  without  that,  the  clause  in 
the  35th  of  £4lw.  3,  signifies  nothing ;  and  I 
do  not  imngine  it  is  a  greater  injustice  to  sup- 
ply in  point  of  form,  aa  to  matter  of  evidence^ 
when  the  fact  committed  by  the  prisoner  waa 
against  a  known  law,  at  the  time  when  it  wa« 
committed  :  and  the  rather,  if  I  think  that  de« 
foct  of  form  in  the  courts  below  was  occa- 
sioned liy  tlie  prisoner.  It  is  a  matter  of  blood, 
it  is  true ;  hut  1  do  not  aim  at  this  gentleman's 
life  in  it ;  but  any  man  must  believe  he  must 
be  concerned  in  great  matters,  to  bring  to  pass 
this  great  design  ;  therefore,  all  I  propose  by 
it  is,  to  get  his  confession,  which  in  all  proba-* 
bility  we  might  have  had,  if  the  other  witneaa 
had  remained  here. — Sir,  U)M)n  the  whole  mat- 
ter, I  do  think  we  have  power  to  do  this :  I  do 
think  here  is  good  evidence  (1  speak  with  re- 
spect to  myself)  to  think  him  guilty  of  thia 
crime.  1  do  think,  if  this  bill  does  miscarry, 
there  is  the  greatest  blow  that  can  be  given  to 
your  constitution.  Ami  give  me  leave  to  lue 
this  expression  ;  I  think,  if  this  bill  miscarry, 
it  not  only  turns  this  plot  upon  you,  but  makes 
it  impossible  ever  to  come  to  the  depth  of  any 
other;  and  fur  these  reasons,  I  am  for  commit- 
ting of  this  bill. 

Mr.  Newport.  Sir,  I  am  unwilling  to  troa» 
ble  you  at  any  time,  but  more  especially  at  this 
time,  when  1  am  afraid  I  am  like  to  speak 
against  the  opinion  of  the  majority  of  theliouse  ; 
for  I  see  gentlemen  are  in  great  haste  for  the 
commitment  of  this  bill.— Sir,  in  this  matter  I 
louk  upon  myself,  as  e^ery  gentleman  here,  to' 
be  a  judge;  and  therefore,  I  will  in  this  case, 
aa  in  all  others,  go  according  to  the  dictatea  of 
my  own  conscience :  I  must  be  saved  by  my 
own  faith,  and  never  will  pin  my  faith  upon 
another  mau's  sleeve :  perhapa  it  may  be  a 
weakness  in  my  nature,  that  I  am  very  tender 
in  the  matter  of  blood ;  but  i  hope  ^entk»men 
will  not  be  in  so  much  haste  to  commit  the  bill ; 
for  *  De  morte  hominis,  nulla  est  cunctatio 
*  longa.'  A  gentleman  below  said,  the  other 
day,  it  waa  iidssible  in  his  own  private  opinion, 
he  might  believe  the  prisoner  guilty  ;  and  aome 
notice  was  taken  ot  those  words :  hut,  Sir,  I 
would  put  a  case  for  nrgument*s  sake,  and 
would  have  it  taken  no  otherwise ;  and  I  would 
go  a  little  further  than  that  honourahle  gentle- 
man ;  and  suppose  that  1  knew,  of  my  own 
private  knowledge,  that  sir  J.  F.  was  gnilly; 
yet.  Sir,  with  humble  submission,  as  a  judge,  t 
do  not  think  it  ought  to  weigh  one  way  or  an- 
other with  me;   and  will  give  yon  my  raaaoa 


863]  R  WILLIXM.  III.         Proceedings  against  Sir  Johtt'Femeiek, 


f« 


for  it ;  for  as  a  jud^p,  I  am  to  p;o  ac'corHin^  to 
my  judicial  knonletl^e,  and  not  nccordioj^  to 
my  private . kno\v)eft|j:e.  Jt  is  a  maxim  *  Nil 
'  refert  cyiiiil  notat  judex,  si  non  iiotat  forma  ju- 
dicii :'  and  it  (Hits  me  in  mind  of  a  cnse  in 
ilen.  4*8  reijjjru  :  two  men  travelled  toflrethcr, 
and  one  killed  the  other,  an<l  the  jud^e  saw  it ; 
'afterwards  that  judge  went  the  same  circuit, 
and  nu  innoirent  man  came  to  be  tried  before 
liim  for  it ;  and  yet  the  juil;;e,  in  that  case, 
^as  obliged  to  go  acconlin^  to  his  judicial 
Jcnowleilgc  ;  all  the  judg^e  could  do  (the  man 
bfintf  found  guilty)  in  that  case,  savs  the  book, 
M'as,  to  respite •  the  jud(;meiit  and  execution, 
and  to  make  applicutinn  to  the  king  for  the 
p<K>r  man's  |nirdon.— Thf  e\  idenee  that  is  pro- 
oucefl,  is  tirsi  a  living  witness  ;  the  next  e%i- 
deuce  was  the  confession  of  Goodman,  taken 
before  a  justice  of  peace  ;  tor  that,  trnly  I  did 
not  think  yesterday  it  was  a  le^al  evidence  :  1 
^m  sure  in  a  court  of  law  it  hod  id  not  be  ad- 
mitted ;  but  the  house  was  pit  a-ed  to  read  »t, 
and  gentlemen,  when  they  pressed  it,  tnid  us, 
.read  ii,  •  v:leat  quantum  valeie  puU'st.'  Then 
if  you  strike  this  paper  out  of  the  cwse,  with 
4iuudde  submission,  there  is  notliini;  'eft  hut 
^le  lesinnony  oi'  caiitain  Porter  ;  and  so  then, 
in  that  cafse,  yu  uave  but  one  wiincKs.  It 
•wouid  seem  a  little  strange,  that  the  commons 
of  England,  that  lately  it  ere  so  very  careful  of 
-the  lives  of  ihc  subject,  and  were  so  desirous  of 
passini^  a  bill,  that  did  provide,  that  where 
•lliere  Mere  t«o  species  of  treason  in  one  iodict- 
ment,  and  one  xutncss  to  one  spe<'ies,  and 
anotlu'r  witness  to  another  specie*:,  thai  that 
shonlil  not  be  i;'Oi:d  evidence  to  convict  a  prr- 
aoD  of  high-treat^on ;  that  tliry  should  be  at- 
4ainting  a  man  for  treason  upon  one  sin;,^le  evi- 
dence !  Surely  they  willssiy,  we  have  mi<;htily 
changed  our  opinions  since  last  sessions.  J 
■  a|»eak  not  this  upon  the  account  of  sir  J.  F.  ;  I 
know  him  Uid,  though  I  am  not  a  stranger  to 
bis  character,  and  1  hear  that  is  none  of  the 
best :  I  speak  it  as  it  may  be  my  case,  or  any 
man's  whatsoever.  God*  knows,  we  live  in  an 
■unsettled  time,  and  how  soon  a  precedent  of 
this  nature  may  turn  upon  any  man  whatso- 
ever!— Amongst  the  gieat  irregularities  com- 
mitted in  the  late  reign,  1  thought  that  of  3Ir. 
Algcmoon  Siilncy  one  of  the  greatest  strains  I 
•aw  in  ^\'estmiiistcr>hall  ;  for  there  was  my 
lord  Howard  a  witness  against  him,  and  the 
next  evidence  was  a  book  that  he  had  wrote 
against  sir  Uobeit  Fdmore,  which,  1  think,  is 
printed  since  this  revolution,  and  I  have  it  in 
'my  study  ;  anil  I  hope,  1  shall  not  he  hangeil 
for  it.  'I*hat  was  conatrued  to  be  calculated  for 
a  treason  that  hath  not  beon  committed  abov« 
two  months,  and  was  the  second  witness  to 
convict  him  ;  but  that  attainder  was  reversed, 

and  it  was  tit  it  should  he  so;  tor  1  thought  it    viiter,  the  idea  of  which  new  punishiiieiii  L 
a  hard  strain  to  convict  hrin  w^vu  that  evidence. ,  sibly  arose  from  Rouse's  having  been  a  cook 


this  gentleman  has  told  yon,  itf,  that  be  pr 
mised  to  make  an  ingenuous  coDfession  :  b 
any  man  might  have  easily  seen  ihroo^ib  tl 
confession,  that  it.waa  only  an  ■rtificetoaba 
the  king's  best  triemls  ;  nay,  the  ntberp  wbi 
this  gentleman's  bi-oiher  bad  aerved  tins  vei 
government,  hut  two  or  three  years  ago,  ll 
same  trick.  We  know  my  lord  Pl^atun  in 
attainted  of  high- treason,  and  then  lie  murt  d 
something  for  his  {lardun  ;  and  lie  madeao  is 
gen;  ous  confession,  as  he  called  il,  wheicb; 
he  aceiiseil  most  of  the  great  men  ;  and  Hhci 
he  liad  a  pardon,  though  his  confeasioo  wm 
under  his  own  hand,  and  deliTered  to  the  kinr, 
he  denied  every  woni  of  it ;  and  what  be  tflU 
was  to  save  bis  own  life.  My  Deigbbonr  ritf4 
you  several  precedents  ;  1  have'  lucked  iols  • 
great  many  of  them,  thev  are  mentioiipd  io 
Kushworth^s  Colleiiitms,  in  the  great  Aifu- 
ment,  that  Mr.  St.  John  made  for  |ms»ingtbe 
bdl  against  m\  lord  StraflcMnI;  aiid  as  tnibtw 
precedents,  ail  I  ran  say  is,  1  could  not  but 
come  up  to  them,  it  I  had  livetl  in  those  tiain. 
The  last  precei'ent  was  ot  a  c«iok  that  put  (loiMB 
into  the  p(»t  of  the  bishisp  of  ftochister:  Aod 
\«hat  di<l  they  do?  They  did  enact  that  he 
should  be  boiled  alive.*  I  have  a  great  hi- 
noiir  tor  the  present  binhop  ;  hitt  if  it  bud  btp* 
peniMl  in  his  famdy,  1  should  hanlU  hauecy* 
scuicd  to  the  like.'t  *  Judicandumi'st  lii;ibK 
*  lion  exemnlis.'  1  should  be  glad  (his  goi- 
tleman  might  suffer  his  due  puiiiNhnivnt;  Itnl 
I  am  not,  hy  any  means,  sati>fu-d  lu  the  pall- 
ing of  this  biM  ;  and  as  to  what  grtir.tiiiin  nf 
is  the  reason  why  this  man  was  not  iriril, be- 
cause it  was  thought  he  would  ha%e  nuiii^  IB 
ingenuous  ronlVssion:  Sir,  if  they  ha^e  tnajte 
any  mistake,  1  will  not  help  it  by  the  passiri^tbii 
biii  of  attainder.  I  ask  your  pardon  tor  troub- 
ling you  so  long  :  1  am  a  judge  in  this  niuWfi 
and  ought  to  deliver  my  opinion.  1  ho|«c  no 
man  doubts  but  I  am  as  zealous  for  this  go* 
vernmeutas  any  man  whatsoever;,  but  let  wbi' 
will  come  of  it,'l  cannot  give  my  vote  for  pin- 
ing of  this  hill. 

Mr.  Svlicilor  General,  This  is  a  bill  forif- 
taintingsir  John  Fenwick  of  high  treason :  iiii 
the  greatest  crime  we  know  in  the  laiv  ;  and,  1 
think,  the  greatest  crime  known  in  a  gnfffa- 
inent.     1 1  is  much  greater  than  murder,  or  loy 

*  See  Foster's  Report  of  William  Nicho- 
las's case  (Crown  Law,  pp.  68,  09.)  **TI»e  Sta- 
tute 22  H.  8,  c.  9,  is  printed  at  length  ia  Rif 
taps  edition  :  and  by  thf  preamble  it  apprtf' 
that  one  John  Hoose,  a  c(K>k,  had  poisoned*11 
persons  of  the  bishop  of  Uochester's  family,  tw« 
of  which  died.  John  Koose,  therefore,  by  i 
retrospective  law,  is  made  guilty  of  high  twi* 
son,  and  he  is  ordered  to  be  thrown  into  I 


I  am  very  sorry  this  bill  is  brought  into 
this  house;  nor  can  I  imagine,  after  all  that 
hath  been  said  by  the  learned  gentleman,  why 
this  man  was  not  tried  when  there  were  two  po- 
sitive witnessus  against  him,    All  the  reason 


Darrins:ton's  Observations  on  1  £dward  0- 

•f  See  some  particulars  concerning  hifli  !■ 
the  Introduction  tn  the  Trials  for  the  KytAw^ 
Plot,  Vol.  9,  p.  362,  and  ia  the  Seren  BiiMr' 
Ctse,VoL  18,  p.  180. 


GBS]; 


iipon  a,  Bill  ofAltamdtr. 


A.  D.  I6g(S. 


1666; 


thioiif  else ;  became  it  sabverts  the  grorernraent, 
and  the  law  whereby  these  crimes  are  punished ; 
and  persons  should  be  deterred  from  coinin it- 
ting  these  crimes,  li  hath  been  made  a  ques- 
tion by  the  gentlemen  at  the  bar  (1  think  two 
ot'them),  whether  this  matter  that  sir  J.  F.  is 
indicted  and  accused  of,  is  hipfh-treascn  or  not? 
1  must  confess  1  heard  something  of  it  without 
doiiTs ;  and  that  they  wo'ild  make  it  out,  that  if 
he  was  guilty  of  the  matter  charged,  it  was  not 
higli-treasfm.  1  thouj^ht  it  somewhcit  a  bold 
matter,  but  did  not  think  they  would  have 
undertaken  it  in  this  place,  thou;r||  they  might 
have  pretended  some  flaw  in  the  indictment : 
But  it  seems  they  have  the  authority  of  a  good 
lawyer  in  it ;  and  they  ha%'e  qnoted  one  learned 
author,  as  they  please  to  call  him,  thou^^h  I  take 
that  ftir  a  great  ccim|.IIment :  I  believe  they 
may  mean  mvKelf;  and  they  have  done  nie 
some  hiniuur ;  for  they  say,  my  lord  chief  jus- 
tice Hales  was  of  the  same  opmion  ;  and  then 
said  soraelhing  of  Dyer.  Now  he  bath  read 
something  at  large  out  of  that  author  hu  spake 
of,  and  cliallengeaany  one  to  shew  any  opinion, 
that  ever,  a  conspiracy  to  levy  war  was  high- 
ireason  within  the  statute  of  25  Edw.  3.  Now, 
1  would  give  a  challenge  on  the  other  side,  that 
he  would  shew  me  any  opinion  before  that 
time  or  since,  that  a  des^igii  to  depose  the  king 
is  not  high-treason  within  that  statute.  The 
author  that  he  speaks  of  says  that  expressly  in 
tlie  iiintter  of  my  lord  Uussel,  and  tells  you 
particularly  ;  and  in  *  The  Government  Vindi- 
\  cated,**  which  was  only  an  ans^ver  as  to  the 
prosecution  of  my  lord  Kussel,  there  are  several 
cases  cited,  that  a  design  to  depose  the  king 
was  hif^h-treason,  and  agreed  to  bjr  that  very 
person  \  and  it  always  was  agreed  to  be  high- 
treason.  Then  take  the  state  of  this  case,  and 
tliut  of  my  lord  Russel :  The  groat  matter  was, 
that  he  sent  same  persons  to  view  the  guards 
(it  was  said,  in  order  to  seize  the  king) ;  this 
was  evidence  against  my  lord  Russel,  for  a  coii- 
spiiacy  to  levy  war :  But  it  was  said,  that  tiiis 
was  nc>t  so  much  a  conspiracy  to  levy  war 
■gainst  the  king,  as.  against  the  guards.  But 
this  is  of  a  quite  dififerent  nature  :  Captain. 
Porter  hath  given  you  an  account  of  it  (and  I 
think  Goodman's  examination  is  to  the  same 
purpose,)  that  they  met  in  I^eaden hall- Street, 
and  consullefl  how  to  bring  king  .lames  back 
■gain  ;  and  the  only  meth(Ml  they  could  think 
of,  was  to  send  Charnock  over  to'  king  James, 
that  he  might  prevail  with  the  French  king  to 
■end  them  10,000  men,  and  they  would  meet 
him  here  with  2,000  horse :  And  for  what  pur- 
pose was  this?  It  was  to  bring  back  king  James 
igain.  I  would  be  glad  to  hear  if  those  gentle- 
Den  that  were  at  the  bar,  or  any  body  else, 
cnuld  say  this  was  any  thing  eUe  but  a  design 
»  depose  king  William :  And  they  cannot  shew 
me  one  lawyer's  opinion,  but  that  designing  to 
Jepose  the  kin;*',  was  evtr  called  imupfiiiing  the 
leath  of  the  king,  within  the  statute  of  95  E.  3. 
The  first  resolution  of  this  matter  was  pretty 


.  •  SeijVol,  9,  p.  741; 


early ;  I  think  it  was  Henry  4.'s  time,  and  that 
was  pretending  Richard  S  was  alive,  and  that 
he  was  the  lawful  king :  8o  that  the  matter  is 
treason,  as  it  is  charged  in  the  indictment- 
Then,  as  to  the  precedent,  that  it  is  ao  ill  pre* 
cedent :  I  must  confess,  I  am  not  afraid  of  a 
precedent  of  this  kind :  I  should  be  glad  if 
these  gentlemen  should  turn  back,  and  see  how 
many  attainders  have  been  by  act  of.  parlia- 
ment. But  I  dare  say,  tliere  have  beep  more 
men  destroyed  by  the  irregular  judgnoent  of  a 
conmiission  of  Oyer  and  Terminer,  than  by  all 
the  acts  of  parliament,  whether  legal  or  illegal. 
— As  to  what  they  say  (»f  my  loril  Coke,  who 
mentions  the  aUainder  of  my  lord  Cromwell 
and  sir  J.. Mortimer  ;  the  gentleman  pretends 
to  repeat  my  lord  Coke's  words  at  large ;  but 
he  did  not  deal  so  well  as  he  ought  to  do  by ' 
you  ;  for  he  should  have-told  you  all  my  lord 
Coke  tells  you ;  that  Cromwell  was  never 
brougl)t  to  answer,  never  permitted  to  say  any 
thing  for  himself,  neither  in  parliansent,  por 
where  he  was.  Now,  pray.  Sir,  is  this  the  pre- 
sent case  ?  Hath  noi  sir  John  Fenwick  been 
heard  by  you  ?  I  woukl  be  glad  that  gentle- 
man, or  any  body,  could  shew  me,  that  any  - 
person  hath  so  fair  an  hearing  before  commis- 
sioners of  Oyer  and  Terminer,  as  sir  John  Fen- 
wick hath  bad  before  you.  As  to  sir  John 
Mortimer,  it  is  much  of  the  same  nature :  My 
lord  Coke  says,  there  was  a  jealousy  of  sir  John 
Mortimer's  pretending  to  the  crown  ;  and  be- 
cause they  suspected  him,  they  did  give  out, 
that  he  said,  that  the  earl  of  March  was  heir  to 
the  crown  ;  and  if  he  did  not,  he  would  pfe- 
tend  to  it  himself,  ^c.  Now,  says  my  lord 
Coke,  this  was  but  a  bare  pretence,  and  no- 
thins:  else :  He  speaks  as  if  he  did  not  ever 
think  him  guilty  of  those  words,  and  says,  hav- 
ing indicted  him,  they  not  being  able  to  proceed 
that  way,  they  made  it  good  by  act  of  parlia- 
ment, and  he  was  condemned :  8o. that  what 
my  lord  Coke  complains  of,  is,  that  these  per- 
$ions  so  condemned  were  never  heard  ;  and  if; 
this  be  the  truth  of  the  matter,  these  precedents 
(with  submission)  have  no  affinity  with  yours. 
But  I  believe  this  may  be  said  in  this  case,  sir 
John  Fenwick  hath  Lieen  heard,  and  that  more 
than  ever  any  one  in  parliament  was  before,  in 
a  capital  matter. — As  to  the  case  of  my  lord 
Stratford,  he  had  counsel  assigned  him  to  stand 
by  and  hear,  but  not  to  prompt  him.  if  there 
arose  any  point  of  law,  he  was  to  propose  the 
matter  to  the  lords,  and  the  counsel  was  to 
assist  him  by  their  direction.  And  in  the  case 
here  before  you,  you  have  allowed  sir  John- 
Fenwick  counsel,  not  only  to  assist  him  in  point - 
of  law,  but  to  assist  him  in  point  of  fact  too. 
They  have  made  answer  for  him ;  so  that  1 8ay« 
he  hath  been  tried  fairer  than  any  man  evec.< 
was  in  parliament,  be  it  upon  bill  or  upon  im- 
peachment, that  is,  as  to  the  matter  of  prece-. 
dent.  Then  it  hafh  been  said,  this  would  not: 
be  good  before  the  judges.  I  must  confess  it ;  ■ 
hut  the  evidence  captain  Fortcr  gave  of  his  owb- 
knowledge  of  sir  John  Fenwick,  every  body- 
will  agree  is  %rhat  thv  lajv  will  allov.  .Bi^t  hei 


8  WILLIAM  m.         Proceedings  ogainH  Sir  John  Tenmek^         [M 

at  the  KingVHeaA  in  LeadeBhatt-RtrcH,  m  «l 
Mrs.  Hountjoy'8,  for  tba  purpoM  gifCB  in  m- 
denoe,  ba  ought  to  be  ai(auist  the  hill ;  but  I 
think,  every  maD  that  ia  of  that  opiaiiMi  eqabt 
to  be  for  the  bill.  1  am  one  oft'  thoae  thai  daak 
he  is  lifnilty,  aod  therefore  am  Ibr  oiMnnMttiiy 
the  bill. 

Mr.  Harccurt.  I  ean  readily  a|raa  with  the 
gentleman  that  apoke  last,  that  hyh^tieam  ii 
the  higheflt  crime  in  the  laiv ;  and  father,  thil 
the  matter  of  the  indictment  that  b  mintioart 
in  the  recital  of  the  act  ia  undoubtedly  bigbi 
treason  ;  and  I  am  sure  he  will  agree  with  at 
in  one  thing  also,  that  the  greater  the  eriiM  is 
that  any  person  ia  accused  of»  thedeanrtks 
proof  ought  to  be  by  which  he  b  eonriek^iF- 
Some  gentlemen  have  begun  their  disooune  b 
relation  to  the  power  ;   but  aure  it  b  no  arma- 
ment, because  I  can  do  a  thing,  therefere  1  wA  ' 
do  it ;  because  we  hare  |)Ower  to  repeal  Msfss 
Charta,  and  all  other  subsequent  laws,  vhni 
bare  been  made  in  favour  of  life  and  likrtff 
and  property,  by  the  sanoe  conaequeaca  as 
ought  to  do  It :   A  better  reaaon  must  be  gifoi 
me,  before  I  consent  to  this  bill.— Then  fcr  Iks 
precedents,  it  is  said,  there  have  besa  msn« 
and  many  have  been  mentioned ;  and  if  I  thaogU 
it  worth  while,  I  woukl  mention  many  bmis 
you  have  not  heard  of.     As  for  preceosats  b 
s(pneral,  they  are  so  far  imitable  aa  tbev  SN 
^lunded  upon  true  reason,  and  agreesMS  Is 
justii  e ;  but  I  do  not  remember  any  one  pitee* 
Hent  of  this  nature,  for  a  fieraou  in  ciolsdy, 
f'orthcoroiuf^,  to   be  tried,  yet  to  be  attsialed 
without  a  trial  al  law,  but  what  has  been  uu- 
vcrsally  branded  ;  and  they  all  seem  to  be  rs* 
proaclies  even  to  those  ill  reigns  in  which  tbcy 
were  usually  made ;    and  rather  to  be  marked 
out  HA  rocks  for  us  to  avoid,  than  pattrras  for 
our  imitation. — Before  I  particularly  nieatioa 
thq  fuels  how  they  stand  beture  you,  1  wouU 
lieg  Icove  to  observe  upon  the  general  method  <rf 
your  proceeilingn,  and  tell  you  what  stains 
ine  ill  it. — 1  have  of\en-  heard   this   callsd  a 
trial,  and  that  we  are  the  judges ;    the  gnHb* 
man  that  spoke  last  gave  us  an otber  title,  sod 
tolil  us  we  were  the  jury  also.    I  know  no  trill 
for  treason  but  wliut  is  confirmed  by  Ms^aa 
Cliartn,  per  judicium  pariuntj  by  a  jury,  whkh 
is  every  kngiishman's  hirth-riglit,aud  i'salwajs 
esteemed  one  of  our  darling  privileires  j   or  fer 
le^em  trrra^  which  includes  impeachmeols  b 
parliament ;  but  if  it  be  a  trial,  it  is  a  pretty 
strange  c»ne,  where  the  pcrMin  that  stands  opM 
his  trial  hath  a  chanoe  to  be  hanged,  but  noat 
to  be  save<l.     1  can't  tell  under  what  charadcff 
to  consider  ourselves,  whether  we  are  judges  sf 
jurymen  :  I  never  heard  ol' a  judge,  1  am  SOU 
not  of  a  ji:ryman,  before,  but  he  waaalwaji 


ia  hot  a  aingle  witnesa,  and  you  ought  not  to 
wocaed  upon  the  eridsnee  of  a  aingle  witness. 
Let  oa  see  bow  the  law  stands  upon  the  whole 
matter :  You  have  made  an  act  of  parlbment 
last  sessions,  and  I  own  the  law  was  before 
that,  that  thcare  ahouU  be  two  witnesses  in  caae 
of  traaaon  (  but  all  that  goes  no  farther  than  to 
triab  in  the  King's-Bencn,  and  commissioners 
of  Oyer  and  Terminer,  and  gaol-delivery.  And 
if  you  look  upon  those  acta,  it  is  very  plain ; 
for  they  refer  mostly  unto  the  judges,  what  they 
ahall  do  in  such  and  such  cases :  But  then  you 
will  see  what  b  the  reason  of  making  those 
rules ;  I  think  there  was  good  reason  that  you 
ahonkl  not  put  that  power  in  persons  below, 
that  yon  have  in  yourselves :  You  give  them 
rubs  to  proceed  by,  and  they  are  to  keep  up 
strictly  to  them  ;  you  may  act  by  other  rules. 
It  is  one  thing  when  I  command  my  servant  to 
do  such  a  thing,  and  another  thing  when  1  act 
myself.  And  Uiere  is  a  difference  when  a  ju- 
dicature ia  by  fow,  and  when  it  is  by  manv ;  the 
law  pots  a  greater  confidence  in  many  than  in 
a  few.  The  ordinary  trbl  is  by  twelve  jurors ; 
but  if  it  be  a  matter  of  an  high  nature,  as  an 
attaint,  then  it  shall  be  by  twenty -four ;  and 
you  do  prefer  a  greater  number  in  every  thing 
to  a  few.  It  b  aaid,  though  a  judge  do  think 
in  hb  conscience  a  person  guilty,  yet  he  ought 
net  to  make  use  of  that  private  knowledge ; 
and  a  caae  was  quoted  out  of  Hen.  4.  But  I 
think  that  judge  might  have  bchavetl  himself 
aomething  better  than  he  did  ;  and  sure  I  am, 
now  lie  would  be  blamed.  I  do  not  say,  that 
a  jndge  upon  his  private  knowledge  ought  to 
judge  ;  he  ought  not :  but  if  a  judi^e  upon  the 
l>ench  knows  any  thing,  whereby  the  prisoner 
night  be  acquitted  or  convicted  (not  generally 
known)  then  T  do  say,  he  ought  to  be  cal!eil 
from  the  pUce  where  he  sate,  and  (fo  to  the  bar 
and  give  evidence  of  his  know  Ie4l;rc ;  and  so  the 
judge  in  Hen.  4.'s  time  ought  to  have  done,  and 
not  to  have  suffered  the  prisoner  to  have  been 
convicted,  and  then  get  a  pardon  for  him  ;  for 
a  panlon  will  not  always  do  the  business :  for 
there  may  be  a  forfeitnre  that  the  king's  par- 
don doth  not  restore.  But  though  we  act  as 
judges  here,  do  ue  act  only  asjudf^t^?  1  thought 
we  were  as  well  triers  of  the  fact  as  judges. 
There  is  this  difference  between  the  judicature 
of  Westminster -hall  and  this  court :  They  are 
to  judge  upon  a  fact  found  by  a  jury  ;  hut  we 
act  both  the  part  of  a  jury  m  trying,  and  also 
of  judges  in  judging  what'the  fact  amounts  to  : 
8o  that  if  a  juryman  may  make  use  of  his  pri- 
vate knowledge  to  acquit  a  prisoner,  as  (1  think) 
nobody  doubts  but  it  is  his  duty  to  do,  then 
every  gentleman  in  this  House  may  make  use  ot' 
his  private  knowledge  to  ocquit  the  prisoner, 
or  convict  him. — I  confess,  tor  my  part,  I  am 
satisfietl,  that  sir  John  Fenwick  is  gudty  of  this 
crime  for  which  he  stands  accused.  1  do  think 
this  crime  b  high -treason  ;  I  think  there  is  no 
danger  of  a  precedent  in  this  ca.se,  if  you  con- 
vict him,  being  convinced  upon  the  evidence 
you  have  heard,  that  he  is  guilty  :  1  do  own,  if 
any  gaatlenun  think  he  b  not  guilty  of  meeting 


upon  his  oath  :  I  never  neard  yet  of  a  judg!^ 
but  had  power  to  examine  witnesses  u|ion  oalhi 
to  come  to  a  clear  sight  and  knowledge  of  thi 
fact :  I  never  heard  of  a  judge,  (lut  if  a  phsaasi 
came  before  him,  the  prisoner  was  alwaystsM 
he  stood  upon  his  deliverance,  ami  had  natanlj 
a  power  to  condemn  the  guilty,  bnt  to  aave  tki 
innocent.    Have  we  this  power  T  SuppoaasfH 


6691 


vpon  a  Bill  of  Attainder, 


A.  D.  1696. 


[era 


mach  a  (rial  a*  this  fif  it  roast  be  catted  so)  K 
nny  to  happen,  that  a  persrtn  that  comes  be- 
fore lis,  shuuid  be  the  innoceutest  man  in  the 
worid  ;  what  judf^inetit  is  it  tliat  we  can  i^ivc 
ibrso  much  as  such  a  person  hath  ttmfle  his  tn- 
soeenej  fuUy  appemr  ?  Is  the  Speaker,  hy  his 
warfBot,  ta  send  him  hack  a^iti  to  Newt^ate  f 
You  eao*l  diafioae  of  hitQ  otherwise,  though  you 
waitt  tftlMed  of  his  innoceDcy :  but  in  such  a 
cm^  tHe  party  mo^  uDrterj^o  a  double  trial, 
wbich  is  eontrary  to  all  ibe  nile«  I  iia^e  heard 
of.  If  1  am  a  judgr  in  the  ca^e,  1  beg  le^ve  to 
tell  yon,  for  my  own  jiistificatioD  ottly,  what  a 
detinitiofi  1  liave  met  with  of  a  judo's  discre- 
lioa ;  my  lord  chief  juBtice  Cuke  says,  it  h 
*  disoemere  per  le^era  ;'  and  by  that  discretion  I 
beg'leare  to  cnnsi^ier  ihiscase  :  if  judijes  make 
tlie  law  thpir  rul^i  they  can  never  err ;  but  H' 
the  uncertain,  ai biliary  dictates  tjf  their  own 
fancies,  which  my  lonl  Coke  ealU  the  crooked 
of  discretioo*  be  the  rule?*  they  go  hy, 
I  errors  musi  be  the  effect  of  such  judfir- 
jnoita.— As  to  this  particular  c^se,  I  did  expect 
from  the  |^i}tlt:man  that  spoke  last,  that  he 
»ould  hare  told  you  there  was  a  plain  evidence^ 
why  you  should  t^o  on  to  the  paHstng*  of  this 
tttl ;  hut  in&iead  of  that,  I  am  surprized  in  hear 
ttUa^  meotioiiedf  that  in  parhameutary  pro- 
ccading9  A  roan  may  be  lian^ed  by  one  witof  ss ; 
eeitainljr  that  is  ntit  to  be  taken  ]iir  ff ranted, — 
Aa  CO  this  particular  c^se,  I  %iould  t;^ke  cuptain 
Porter  as  upon  his  oath,  i\)r  stxppuisitioD  :  You 
Ittano  one  witness  ag-atost  sir  John  Feriwiek  of 
fe^gh'treasHO  ,  and,  with  your  Ipave,  I  desire  to 
evsmine  what  you  ba^e  more  in  this  ease. — 
Veaieuiay  you  voted  a  paper  to  be  read,  Good- 
■NMi'0  ntrntive  or  examination ;  it  is  a  dif- 
feent  eaiie  now  you  have  it  hetore  yuu  to  rtr- 
termioe  ujm>ii.  Yesterday  the  qucfitinn  was 
only  for  heann^ ;  hut  ^enllemFo  nmv  consider 
Imut  f^r  they  ou^bt  to  believe  it,  and  the  other 
tffiilefice  ipri?  heard.  And  6rf:t,  there  is  some 
^■fdeo4-e  that  Clancy  tampered  wiih  Porter, 
^Hd  i^ave  hmi  a  sum  of  3O0/.  and  so  th^'y  would 
HWlrr,  l>ec»use  I'orter  was  tampered  » ith  to  l»e 
ae,  thererore  Goodman  was.  ft  was  t^dd  us 
r(uod  1  desire  1  may  be  irdiarmed  if  j  am 
ftken,)  that  Clancy  said,  he  outue  fi^iiri  sir 
I  Fetiwicrk;  and  afterwards  my  lady  Miny 
Itewiek  said,  she  w<»uld  make  ^ood  what 
'  had  said  ;  and  IWmo  tht?se  arj^uments 
jr  jprvsume,  that  iir  John  Fentviek  koevv  of 
6ive  iiw  leave  to  ItW  you  a  rnle  1  never 
1 43ontradieted,  that  uresumption  is  io  lie 
t  in  favour  of  life ;  but  in  pt  etiume  u  mnn 
because  Porter  wa£  tumpered  ivith  by 
because  he  fiaid  it  wm  by  sir  John 
t*i  onler  ;  *ihaU  \4e  presume  t^ir  John 
ridr  did  it?  Is  ht>ar-say  tt*  be  endeutie? 
^  li  #  von  to  be  had  to  the  j^dlovvs  upon  pre- 
tionf  How  olten,  »nd  \utb  hnw  much 
tMive  we  heard  ei^cbm^ttiufui  s^aiust 
Mipoti  presumpUotis,  iimi^ndu^is,  con 
(iTe  aod  accumulative  treason  ?  Ace, — 
Bfihcrr  is  some  further  eviitence,  and 
i  Mf  of  «rhal  was  sworn  at  Cook's  trial ;  and 
t  tbotight  6t  to  liAve  the  record 


read,  and  an  examiontioa  of  whit  wi 
there.  I  can  never  ^  ao  te  as  to  think  it  rea- 
sonable, that  what  evidcooa  bath  been  g-iven  in 
ooe  case  should  affect  aoottier  man  ;  but  all 
this  is  to  he  aoawereiJ^  by  calhni^'  it  parlia- 
mentary proceedinifs  We  doubt  it  is  no  e?i* 
dence  in  llie  courts  below,  but  they  are  meD-. 
tinned  with  some  kind  of  disdaiOf  as  vary  incon- 
siderable. In  this  case.  1  he^  teav«>  to  tay  this 
in  their  vindieatton,  thai  whatever  the  ndea  in 
Westminster- ball  are,  it  is  not  therefore  reawm 
because  it  is  a  rule ;  but  because  it  is  itras^m,  and 
reason  approved  of  by  lon|r  experience,  tlvere* 
fore  it  is  a  rale  ;  andiftliey  make  their  rules 
for  that  cause,  I  hope  that  is  a  catise  why  %••_ 
should  imitate  them:  but  I  would  not  liai#| 
those  rules  thoug^ht  matters  ol'  lorm,  Itot  an 
stance,  ar  more  properly  part  of  the  law 
— ^Upon  the  whole  matter  ;  if  do  ^ntlemsn  wflf 
g'ive  OS  a  reni»ou  why  this  is  eviilence,  but  one 
witness,  and  that  not  upon  oath  :  and  if  we  are 
to  come  to  our  parliamcutary  discretion  to  sup- 
ply that  defect,  the  w  ant  oF  the  other^  it  is  ^  ^ 
discretian  I  will  disclaim  all  the  days  of  i 
life.     And  I  hope  you  wdl  ffject  the  bill 

Lord  Cuits.  If,  sir,  the  gentleman  tha 
spake  last  had  l>een  speaking  to  Westmiosier-^ 
hall,  I  should  think  that  he  had  shewed  a  ^*eat 
fteal  of  reason,  and  spoke  with  a  firreat  deal  of 
juil^raent ;  but  since  I  thuik  you  are  here  upon 
a  quite  diJferent  foot ;  I  shall  not  ff»llow  him 
(because  I  will  not  ijoneceii#«arily  detain  yoa) 
ti»  an&wer  every  particular.-^ I  renieinber,  when 
the  counsel  for  tlie  pri«»(tTirr  first  spake,  they 
took  notice  to  y oil ^ that  preredents  wire  pro- 
creative,  and  one  bej^al  another,  and  they  are 
apt  lo  multiply  ;  therelure  I  do  think,  it  is  of 
the  hi|;liest  moment  to  you^  what  preceiteat 
vou  make  to-ui§^lit :  and  if  any  |rentlentan  can 
be  satisfied,  that  the  precedent  of  passing  this 
billt  will  he  of  worse  consequeficethan  the  pre- 
cedent of  notpassiogr  it,  I  shaU  humbly  submit. 
I  do  tliink»  sir,  tl»e  matter  lietbre  you  is  of  the 
hi|^hest  im|X)rtance ;  and  i  must  coofosa,  it  it 
with  a  4p-e«t  (Teal  of  satisfaction  to  niyself,  that 
i  do  see  t^^entlemen  si*em  to  apply  tliemaelves 
with  a  L^reat  deal  o^'  seriousness  lo  this  debate, 
a't^f  I  shall  nut  pretend  to  make  a  particular 
answer  to  what  the  r^^unselfor  the  prisoner  did 
say  ;  as  to  the  prece^tents  of  acts  of  parliameflt, 
I  think  rlns  answer  is  fiutficJcnt  at  present  for 
I  hat,  thai  if  we  have  no  precedent^  we  are  undor 
a  nuees»iity  ofiuakiug  one.  It  is  l4ild  us,  that 
ot  all  till;  pivcrdentH  utHie  i»  ill  justify  us  in  this 
proceeding,'  ;  Uu  at  the  hAma  time  it  must  b« 
considered,  that  we  are  in  a  iftse,  the  like  lo 
which  iievt^r  yet  ha[mene*J  in  t:^n|^hnd. — ^The 
first  ihin^  I  shall  apply  iii\seil  t^ii  is  the  juris- 
diction of  parliaments  ;  and  iruly,  I  thuik,  it 
ivill  be  very  r»eceosary  to  say  a  little  upon  that. 
I  have  lieard  tionc  call  this  ^Ktwer  in  ipieslioe* 
Ihe  Ihint^  sjieaUs  itself;  it  is  ttie  lejfisltttve 
power,  and  the  ctymologfy  of  tlie  word  tells  yoa 
what  it  is  :  tt  i-i  a  power  that  cao  muke  laws, 
and  alioltith  them;  a  power  that  is  superior  to 
hII  other  [ittwers  whatsoever,  aod  wo  are  part  of 
ihat  legLsUttive  ^wer^aad  tberefbi^  I  ikall  aay 


.671]  8  WILLIAM  III,  Pfoceedingtngmnti  Sir  John  Fenmdc,        [GTt 

not  one  (;peDtleman  within  tliese  waH^,  nnr  that 
walks  the  streets,  nut  a  livintr  soul,  that  doubts 
of  his  crime.   But,  8ir,  1  wouhl  nnt  Ihis  matter 
yet  further ;  1  am  not  only  satisfied  in  my  own 
conscience  and  reason,  of  the  justice  of  yoi:r 
proceedings,   which  ought   indeed  to  be  the 
foundation  of  e>'cry  man's  opinion  ;  hut  i  am 
satisGed,  that  in  this  wav,  there  is  no  liaitUhip 
imposed  upon  sir  John  ten  wick,  if  he  will  be 
his  own  friend :    for  I  doubt  not,  ii|»on  what 
iiath  passed   in  this  proceeding,    that  l>efore 
thingH  are  bi'oucht  to  the  last  extremity,  if  sir 
John  Fenwick  be  his  own  friend,  if  l^e  be  m 
much  a  penitent  and  friend  to  the  government, 
and  to  posterity,  to  tell  truth,  and  lca?e  off  his 
dissembling,  and  be  plain ;  I  doubt  not  bat  he 
will  find  favour.     Now,  Sir,  I  would  )»eg  leare 
only  to  answer  one  or  two  ohjections;  for  some 
thini^  that  hare  been  said  ogaiitst  the  passing 
of  this  hill,  1  do  not  think  material.     Oue  ob- 
jection thut  Si^ms  to  me  to  carry  the  i(Teatest 
apiicarance  of  ivcight,  was  made  by  ono  of  the 
counsel  for  the  prisoner:  he  said,  It  would  look 
strange  in  alter  a^e^i,  that  the  same  parliament 
shoidd  pass  the  hill  for  regulating  of  trials  ia 
treason,  and  this  bill  of  attanider.     Sir,  I  desire 
you  will  please  to  oliscrve  how  this  matter 
stands ;  and,  in  the  first  place,  as  previuas  to 
that,  I  take  leave  to  observe  a  few  things :  it  if 
a  proposition  generally  agreed  to,  and  not  to  he 
denied,  that  that  which  is  designed  for  the  pir- 
servation  of  any  creature,  ought  not  to  be  ntafJe 
use  of  to  their  destruction.     Now  this  treaso:i 
hill    was  deai:;ned    for  \our  preservation,  to 
MMeen  yon  ai^iinst    the"  jhiiijjfer  of  arl;iiiarv 
poucr,  and  llii*  iiiilii.e  of  f;il.se  uiliii'ssrs  ;  ami 
!  this  hill  (if  ;:iiai!uicr  is  bro;ii»lit  to  scivt.ii  Noih 
1  umaml  ilio  co\i.'rnmciJt  iVoiii  your  t'licmies, 
I  both  abni.tii   nod  nt  h'>ine.     Aiid  I  tliiiik  the 
;  trea*»on  !»  il  i*;  no  i>i>|(<iii)n  Ujio.-i   tiu-sc  toi^i- 
df  r.uidus :  bo>ijle*,  tlio  ti't-uson   liill    was  <>ri!y 
maili'  lo   III!   a  rule   to  intirior  fourt-^.     T!i3 
ii'anuMl  ixi  i.i'i man  tlial  spake   last,  told  vou, 
'.  the  rules  ot  \\  estinin.stcr-hali  w<Me  not  rule* 
i>i'oaiisc  tijey  were  observed  there,  hot  b<-c;\use 
i  tlii'v  V, iro  trrf^undcd  uj>on  reas-m.     Why,  Sir. 
!  ill  aiiL,Nv<'r  n»  tluit,  I  \m\\  oiiI\  \.\Vv  leave  io  tell 
I  hiiu,  that  that  wliicli  is  reason  in  \>'c=«':nnr.siii* 
j  hall,  docs  iu>l  carr\  the  san>e  wfij^ht  {ilw.    I 
■  thill!;  tliat  matter  was  so  \rt-ll  explainu)  hy  iV' 
I  Uaniod  i-fntltnian  at  the  bar,   that  iherc  lutd 


■  no  more  to  that,  it  being  a  matter  agreeil, 
that  wc  have  a  power  to  proceed  in  this  mut- 

-  ter.  Now  I  will  take  leave  to  observe  some- 
thing as  to  tlie  particular  case  before  you. — 
Though  a  gentleman  that  sp^ike  some  time 
since,  did  speak  to  you  of  the  nature  of  the 
crime ;  yet,  with  submission,  I  think  there  re- 
mains something  to  lie  addeil  to  what  he  said. 

.  The  conspiracy  of  which  sir  John  Fenwick  to 

.  rue  appeai-s  guilty,  is  not  only  against  the  life 
of  the  king,  not  only  to  depose  the  king,  not 
iivXy  a  conspiracy  to  raise  a  rebellion,  but  at 
the  same  time  to  contrive  an  invasion  from 
France,  and  bring  in  a  fureign  |M)wer.  I  know 
not  what  better  expression  to  tell  my  thoughts 
in,  than  by  using  a  term  which  physicians  use 
in  some  desperate  cases ;  they  tell  you,  there  is 
a  complication  of  distempers ;  and  I  think  this 
is  a  complication  of  treasons:  this  is  the  high- 
est crime,  and  it  is  atlrmled  «vith  all  the  aggra- 
vating circumstances  Uiis  crime  can  admit  of. 
Now,  in  giving  uur  opinion,  and  passing  our 
judgment  upon  this  matter,  I  think  there  are 
two  considerations  ought  to  guide  us :  there  is 
a  consideration  wc  owe  to  tlie  prisoner  that  is 

'  brought  before  us :  and  another  considcratiou 
which  we  owe  to  the  conunon  security.  As  to 
the  first  of  these,  it  being  a  matter  of  blood, 
wherein  the  life  of  an  Englishman,  the  lite  of  a 

.  man  of  his  quality  and  figure,  is  at  stake,  wc 
ought  to  proceed  uith  all  the  calmness  that  is 

t>08sible ;  and  I  do  agree,  if  there  was  noihint^ 
mt  presumption,  that  ought  to  be  in  favour  of 
life.  But  pray  let  us  consider  how  this  matter 
stands:  \vi  ine  desire  those  gcnlliiniu  that  are 
of  opinion  weouijiil  to  have  so  nuieli  lCiulerni*ss 
for  the  prisoner,  to  lay  before  iheui  nnnthcr 
Geene,  and  S(»rt  of  eonsideration,  at  tiie  same 
time.  J  do  consider  the  hanUhip  (if  I  nniy  use 
that  evpression)  of  passing  this  sentence  ;  I  ilo 
consider  what  a  eoiuiiii'Mi  uc  had  been  in,  if 
tlie  voniri\anri'  thut  i.  as  laid  ha<l  laki-n  rth'rt ; 
that  is  the  i\cii;Iili<  .>l  pari  of  the  matter  JM-titii' 
von:  anil  tiiooj^h  it  was  di^a|ipoinl(d  then,  1 
know  not  how  far  oil'  it  is  at  present ;  litis 
onyht  lealiy  to  weiiih  v.iih>on.  And  I  hope 
I  i;ia\  taKirK'avc,  npnw  tins  oecasion,  lo  ohs^-rve 
to  yjjv,  what  one  ol  liic  wisi'-.t  and  h/»«i  r|"  ih»- 
l{uiii:tns  said  upiui  an  (ieca>>i)u  in  tills  natnri': 
he  tells  \oti,  'i'hat   a   man  r:;;;t  \;o;;Id  (•.•ii^liUr 


fiis  dniy  arii^iit,  mnsl  consiiK.T  the  maU«.r  i:i  all 
i\s  p.irts  and  eirenmstanees ;  aiid  wlun  that  is  i  nothin;r  he  added  lo  it.  Ilett>hl  ymi  \er>  well. 
<!oi;;\  nau\  act  adKpiat,-,  as  wi.il  t.i  tlit- <  vmu-  |  it  {%  one  \\\\w^  what  1  trust  to  t\M  hy  my  sc-r- 
mniiity,  as  id  h;:n^.  It'aml  his  i.t  i:;h!iOMr.  I  j  Kint,  and  an-ither  thing  what  I  di  by  my- 
ivntiMaiijdy  that  t.)  ih.- pro.^cnt  e;.  .e  ;  and  wonlil  \  self,      ft  i«<  Mvy  oi»\ions  to  any  man's  imilrr- 


1 11.-.' 
h.... 


i;«.!ilUni.n  ll.at  i'A|r.tss  ^..l  !:ii;rh 
iJU'Ss  m  ilii-;  casr,  lo  ha\c  s»inn  {or  tij«' 
,;i:r  Til.  ana  thciisi-lvis.  li  wa*.  l.Id  y«:ti. 
ii'C  pri^-cmi-r  hir;<ri'  \ou  dn  s  n<.t  s'.  .nd 
■  ■  d  'ii  a:"!y  eriiiic;  it  was  told  yon  at  thf 
li.'it  iIh:  mo.  t '.le  on'^ht  lo  j)r..t;.i.i!  t<j,  is 
no  li.i  i.ier  than  t»  leave  hiiii  iii  ilu*  <<»nt;,i:..!i  \.  i.' 
i'.twW,  u'ww.  I  think,  Willi  siibni'issi«<n,  ;ht' pri- 
.  s  »!»•  .  ■  ;...mI->  fofivi.-ii  d<.'t'hii;h-lna«on,  uith  the 
•Ii:;^1m  -i  coi.vielioii  upon  t.arlh,  and  that  is,  the 
^«  i.t  ial  i:oiiM.!il  tif  all  mankind  ;  l'«n'  1  will  be 
•luid  tu  buy,  I  do  \ erily  believe,  thut  llitre  is 


slaiidini;,  it"  ihis  |<ovvtr  wen*  lodired  in  tlir 
inil^cs,  wh:;t  use  tlii-y  luiniit  make  of  lliis 
(ioiiniiied  powir;  h.it  no  i^i  ntleman  can  mis- 
triisi  :4ny  thiny  tliat  siiall  be  tlonc  by  this  bousr. 
--\notlier  ohjeetion  that  was  made  by  the 
eoiinscl  for  the  piisomr,  was,  says  he.  This  i» 
i\ i»K  nee,  or  ii  is  no ev  idenee ;  it"  it  Ik?  e\ ideiue, 
linn,  says  In-,  why  do  not  you  try  liim  at  law." 
It  It  he  no  cvidenee,  w  hy  do  >on  admit  it  here* 
Ni:\r,Mir,  with  >uhmission,  this  carries  the  fac<^ 
and  form. of  an  ar^nuunt ;  but  if  you  take  it  to 
'  pieces,  I  thluk  there  is  uo  couvincing  weight  ia 


rrs] 


itpoii  a  Silt  of  Attainder. 


A.  D.  1696. 


ieii 


t:  for,  Sir,  the  reason  why  this  matter  comes 
wtore  you,  is,  because  by  tlic  absence  of*  one 
if  tbe  witnesses,  accordiuf^  to  the  formal  part 
cf  the  law,  sir  John  Fenwick  will  be  acquitted  ; 
tint  it  is  tr(*nrrally  ajpred,  that  the  consf-quencc 
of  so  great  a  crime  (roing*  uiipuhished,  may  be 
dansreroiis  to  your  posterity.  This  bill  ot  at- 
taJQiirr  is  bnuinrlit  into  the  House,  thai  you 
ihny  supply  that  want  of  form,  you  bein^  con- 
TiD(:('«i  f  if 'the  reality  of  his  crime. — Anotlier 
ol)jiTiinu  made  by  the  counsel  at  the  bar, 
WIS  as  to  captain  Porter,  w  horn  he  refleclccl 
iinoa ;  says  he,  shall  a  man  that  hath  owned 
bimself  guilty  of  such  a  villaiuy  as  the  murder 
of  the  king,  of  a  sudden  have  such  credit  as  to 
nray  with  you  ?  I  would  take  leave  upon  this 
•ocasioii,  to  rcfieat  to  you  what  my  L.  C.  J. 
woo  the  bench  did  observe  at  Chamock's  trial : 
Ine  same  thing  was  urged  and  pressed  home 
(j  Charnock;  and  ray  L.  C.  J.  was  pleased 
10 take  notice,  that  it  consisted  with  the  wisdom 
aid  justice  of  all  states  and  governments  to 
aflow  of  such  evidence,  because  without  it 
they  could  never  come  to  the  knowledge  of 
aay  treason  or  conspiracy ;  for,  he  added, 
VMin  will  you  have  an  account  of  these  things 
ibm  but  the  actors  of  them  ? — And  therefore, 
when  they  are  penitept,  and  willing  to  atone 
Ibr  their  crime,  by  doin|^  all  the  service  they 
no  to  the  state,  and  justice  to  mankind. 
We  ought  not  only  to  receive,  but  encourage 
Ihein. — When  the  danger  the  government 
woaid  be  in,  if  you  did  not  pass  this  bill,  was 
vged  ;  it  was  answered,  but  what  danger  will 

ra  and  your  posterity  run  in  not  passing  of  it  ? 
think  tht>  matter  appears  so  plain  and  clear 
lefere  }ou,  that  when  all  the  other  parts  of  the 
meiUo:!  are  passed  over,  I  should  think  it  a  re- 
fection ufion  the  House,  to  enter  u|k>ii  a  par- 
licalar  answer  to  it.  I  had  not  said  what  I 
kave  said,  that  1  think  any  part  decisive,  but  to 
char  roysplfto  the  world  for  the  opinion  I  am 
foing  til  give ;  and  perhaps  what  i  have  said, 
■ay  give  occasion  to  some  others  to  say  somc- 
Aiag  that  may  be  much  more  to  the  purpose ; 
hot  for  thereasooM  1  have  given,  I  am  for  the 
liH. 

Mr.  Sloane.  Sir,  I  as  little  care  for  me<l- 
Aflg  in  mattprs  of  blood,  as  any  man,  and 
Aould  he  glad  to  avoid  giving  my  opinion  in 
ttb  case ;  but  I  think  it  is  incum!:eut  u[>on 
ttfiy  gentleman  that  hath  the  honour  to  sit 
kft^  in  point  of  trust ;  I  think  it  his  duty  to 
ttem  whom  he  represents,  to  the  king  and  king- 
iaiia  general,  to  give  his  opinion  when  he  is 
Aar  and  satisiied  in  it ;  and  ir  I  was  in  the  least 
tetisfieil,  f  should  venture  the  displeasure  of 


peers.^  Tliose  gentlemen  that  have  made  that 
objection,  have  initicly. forgot  the  other  parts 
which  is  the  next  sentence ;    Nee  super  ibiiuuSy 

*  nee  super  cum  mittimus,  nisi  per  rcgulart^ju- 

*  dicium  parium  suorum  vel  per  legem  terr.T.' 
What  do  they  make  that  to  l>e  ?  ft  is  true,  in 
the  ordinary  course  of  justice,  persons  must  be 
tried,  a  commoner  by  a  commoner,  and  a  peer 
by  a  peer ;  but  there  are  several  sorts  of  trials 
and  laws  in  the  land :  and  when  you  come  to 
consider  what  is  meant  by  '  per  legem  ten*a;,' 
you  have  the  commons  lex  terra ;  you  have 
the  statute  law,  and  lex  iocif  the  laws  of  par- 
ticular manors ;  and  there  arc  several  sorts  of 
trials  besides  that  by  jury ;  there  are  trials  by  bat- 
tle :  the  defendant  in  case  of  appeal  may  try 
it  by  battle,  and  he  that  is  kdled  loses  the 
cause.  Then  there  is  a  law  above  all  these 
laws,  and  that  is  the  law  of  parliament,  which 
nciy  lord  Coke  calls  lex parliamenti  znd  lexpar^ 
liamentaria  in  another  place,  which  he  says  if, 

*  ab  omnibus  inquirenda^  but  *  a  paucis  nota;' 
and  it  is  not  fit  it  should  be  known  now  far  they 
can  go  (and  so  it  is  in  chancery),  and  that  is  s 
law  that  is  unfimited,  and  that  b  one  of  the 
laws  saved  by  Magna  Charta.  1  say,  there- 
fore, that  without  .any  incroachment  upon 
Magna  Charta,  or  any  law  whatsoever,  you  en- 
ter regularly  upon  his  trial. — 1  would  answer 
another  thing  that  was  said  against  a  trial  in 
parliament ;  and  I  must  confess,  1  <lid  wonder 
to  hear  it  from  that  honourable  ancient  nnem- 
ber,  that  if  he  was  to  be  tried,  he  should  rather 
chusc  to  be  tried  in  Westminster-hall.  Why, 
sir,  bcf«jre  I  should  have  given  so  sudden  a 
judgment  as  that,  I  won  If  I  have  consfdered 
what  my  case  was :  If  I  had  had  such  a  case  as 
count  Coningsmark,  a  bad  cause  and  a  great 
deal  of  mon«;y,  I  would  rather  be  tried  there  ; 
or  if  I  could  on  tried  as  sir  George  U''alceman 
w  as ;  but  if  J  had  a  good  cause,  aotl  would  use 
no  corruption,  instead  of  twelve  men  that  might 
l»e  corrupted^  1  had  rather  be  tried  by  4  or  5(X) 
gentlemen  that  are  beyond  it.  You  sec  how 
trials  went  below,  the  trial  of  my  lady  Lisle,  that 
could  neither  see  nor  hear  ;  and  there  came  a 
person  to  her  house  that  wus  proved  to  be  in 
iMouniouth's  rebellion,  and  she  was  burned  fur 
it. — Then  as  to  the  case  iK'lbre  you,  1  would 
oiTer  my  reasons  why  1  believe  this  gentleman 
to  be  ijuilty  ;  here  is  capt.  Porter,  he  hath  po- 
sitively sworn,  that  he  had  another  meetbig  at 
Mrs.  Moiintjoy's,  and  there  they  did  consult^ 
an«l  ai^rce  to  ^^end  Charnock  over  to  France ; 
and  Cliarnock  was  directed  to  go  witli  a  iites- 
sago  to  invite  a  foreign  power  ovc.r  here.  .^Noir 
the  cpiestion  i.i,  whether  he  is  to  be  believed  ? 


Ik* House  to  alMcnt ;  but  upon  the  whole  case,  {  nnd  1  would  go  upon  the  same  reasons  for  bc< 
iUt&c  proof  that  hath  been  given,  I  am  very  i  lieving  a  witness,  as  they  do  in  Westminster* 
4BBr  that  sir  John  Fenwick  is  gtiilty  of  this  i  hall ;  and  will  go  as  far  alimg  with  those  gcn- 
^|NOD  that  he  is  accused  of;  and  that  it  is  trca.  ;  tlemen,  as  to  the  cre<1ibi!ity  of  a  witness  ;  but 
■Ivitboat  any  strain,  and  well  wiirninted  by  |  if  he  be  to  becretlitrd  in  Westminster-hall, 
Medeots. — I  would  first  take  notice  of  what  '  why  is  he  not  so  here  ?  And  therefore,  if  they 
said  to  your  jurisdiction  in  general ;  I  re-  haci  brought  any  testimony  :igninst  his  credit, 
iMer  it  wafs  said  this  was  an  incroachment  as  made  him  guilty  of  perjury,  or  forgery,  it 
^tfaffna  Charta ;  for  by  that,  no  person  is  had  been  an  objection  ni;ain>t  his  testiiuouy  ; 
fWtriedfbr  Lis  life,  butby  the  judgment  of  his    but  it  was  so  far  from  that,  that  they  did  not 

roL.  xfii.  .    SI  X 


675]  8  WILLIAM  IIL         Proceediiigs  against  Sir  John  Fenxvick^         [67S 

offer  to  prove  one  word  of  that ;  bnt  what  was 
■aid  waa  laid  from  the  couosel,  and  that  is  to 
go  for  DO  evidence.    The  counsel  did  indeed 
alledg^  against  bis  credit  several  things,  but  did 
not  prore  any ;    and  if  they  had,  thev  would 
not  hare  taken  away  his  testimony  in  Westmin- 
ster-hall:    that  is,  that  he  waa  concerned  in 
the  late  intended  assassination,  and  treason : 
this  was  the  same   objection  that  was  made 
below;   and  they  brought  witnesses  to  iirove 
that  and  some  other  thinss,  but  they  did  not 
weigh  any  thing ;   for  if  it  should  be  an  objec- 
tion that  he  was  in  the  conspiracy,  then  vou 
can  haye  no  evidence  of  any  villainy,  for  they 
will  never  trust  honest  men  with  it   Therefore 
I  do  take  it,  that  Porter  stands  before  you  as  a 
Tery  credible  good  witness,  without  any  imputa- 
tion whatsoever.  Then,  sir,  say  they,  he  is  not 
ujpop  his  oath  ;  that  is  an  objection  to  your  ju- 
nsdictloD,  and  thou^  they  say  they  own  your 
jurisdiction,  yet  when  they  say  so,  they  speak 
against  your  jurisdiction ;    and  by  the  Kume 
reason  you  can  go  upon  no  impeachment  what- 
•oever;  for  you  can  in  no  case  give  an  oath. 
Then,  sir,  they  tell  you,  he  is  but  one  witness, 
and  that  it  is  in  the  case  of  treason,  and  there 
ought  to  be  two  witnesses ;  and  therefore  though 
you  have  jurisdictiou  to  do  any  thing  wliatso- 
^^9  yet  yon  have  no  jurisdiction  to  go  upon 
this  caose.    Now,  sir,  because  this  seems  to  be 
the  moat  formidable  obiection  that  is  insisted 
Ob  against  the  proceetlin^  in  this  rase,  I  beg 
your  leave  that  I  may  fully  answer  it. — And 
taking  it  to  be  true,  that  the  fact  is  proved  by 
one  witness,  I  conceive  we  may  proceed  in  tins 
cause,  though  they  can't  in  Westminster-hall ; 
and  I  do  take  it,  that  there  is  a  great  deal  of 
difference  between  one  and  the  other ;  and  I 
do  not  take  your  proceedings  upon  this  bill, 
being  there   is  but  one  witness,  to  lie  any 
strain,  but  what  you  may  extend  tlie  legislative 
to,  without  going  beyonil  what  hath  been  done. 
I  tlierefore  heg  you  to  consider  what  the  law 
oi-iffinally  was  as  to  treason,  and  how  it  came 
to  be  altered.    Before  the  statute  of  26  Ed.  3, 
it  was  uncertain  what  was  treason,  and  what  was 
not;  then  the  statute  came  and  reduced  it,  that 
as  to  all  inferior  courts,  these  are  your  treasons, 
and  no  other  shall  be  adiudgeilso;    bnt  the 
parliament  reserved  to  tuemselves  a  i)ower, 
that  if  any  case  should  happen  like  them,  they 
w  ere  to  determine  it  themselves.    So,  sir,  tliit 
at  tliat  time,  and  after  that  time,  one  witness 
was  good  in  case  of  treason :  as  now  it  is  at  this 
day  fur  robbery,  felony,  or  any  other  fact  but 
treason.     And  till  1  £d.  6,  one  witness  was 
good  in  all  treasons :    Then  comes  two  sta- 
tutes in  Ed.  6's  time,  and  the  first  takes  no- 
tice,   That  since  the  U3  Ed.  3,  by  several 
statutes  treasons  had  been  made  which  were 
unseasonable,  and  therefore  re|)eals  them,  and 
makes  several  new  treasons:  Then  c^mcs  a 
Proviso  at  the  end  of  it;  *  Provided  always, 

*  that  no  person  whatsoever,  after  the  1st  Feb. 

*  then  pcxt  coming,  shall  be   indicted,    ar- 

*  raigi»ed,  condemmsd  or  convicted  for   any 
« ofignce  of  tyca«>n,  &c.  unless  the  offender  be 


*  accused  by  two  sufficient  and  lawful  wit- 

*  nesses,  or  shall  willingly,  without  violence, 

*  confess  the  same.'    Now  that  Proviso  relitei 
only  to  the  treasons  particularly  mentioned  in 
that  statute.    Then  comes  the  next  statute  5. 
Ed.  6,  and  pursues  the  same  wonis  ;  But  nwr 
this  did  not  mean  any  facts  whatsoever  that 
were  left  to  the  judgment  of  the  parliameot, 
because  these  facts  were  not  within  their  cog* 
nizance.    They  are  nqi  parliamentary  wordi ; 
indicted,  arraigned,  convicted,  but  only  nscd  bj 
the  courts  below.   Why,  sir,  if  it  be  so  that  ooa 
wimess  is  sufficient,  here  vou  have  not  only 
one  credible  witness,  but  be  is  propt  up  ei- 
tremely  well  by  collateral  circunislaDCes ;  and 
though  I  do  not  allow  that  below  they  can  |»ro- 
c^ed  upon  one  witness  with  pregnant  drcnii- 
stances ;  yet  for  the  reasons  giv^,  consideriw 
how  this  evidence  is  propt  up,  I  think  it  isut- 
ficient  before  you:    For  tnere  was  another 
^  itness  against  him,  and  it  hath  been  profcd 
what  that  witness  could  have  said  if  be  wh 
here;    aud  it  u  plain  that  men  have  died 
upon  the  same  testimony.    I  must  confii^ 
wlien  I  was  for  readim;  of  Goodman's  ezann** 
tion,  Sec.  I  was  not  for  reading  them  as  ooa* 
elusive  evidence,  nor  do  1  thmk  them  so  ia 
any  sort,  either  the  conriction  of  Cook,  or 
Goodman's  examination  before  a  jnstioeif 
peace ;  but  it  is  a  stronger  evidence  b  tkii 
case  than  any  other,  because  the  witaea  ii 
not  dead,  nor  is  he  withdrawn  by  the  meaai  >f 
an)[  body  but  the  prisoner,  or  his  friends; 
which,  as  I  take  it,  appears  upon  the  evideoce; 
and  if  so,  I  think  it  comes  to  the  case.  That  if 
any  one  gets  luy  deeds,  if  he  will  not  prodooa 
tlicni,  they  shafl  be  presumeil  to  Ije  what  1  aj 
they  are.     I  must  confess,  the  at-ting  of  his 
wife  or  any  agent  mi^ht  not  be  evidence,  if  it 
appeared  tiiey  tlid  it  ofliciously  without  hit 
knowledge ;  but  being  Clancy  said  he  cams 
from  sir  John  Fenwick,  and  it  was  for  sir  Jtfka 
Fenwick's  advantage,  I  will  believe  it  was  by 
his  privity :    And  for  myself,  J  think  it  DO 
strain,  if  iii  tliis  case  we  take  him  to  be  a  good 
second  to  captain  Porter,  though  it  ought  ool 
to  be  ndmitied  in  Westminster- hall. — Thcu  itii 
said,  'i'hnt  you  have  no  jurisdiction  to  proceed 
by  attainder  in  this  case,  where  the  person  does 
appear,  and  he  is  in  the  hands  of  the  law,  and 
ready  to  take  his  trial :    1  quoted  you  ao  io- 
slance  the  other  day,  12  Car.  3,  where  they 
attainted  persons  that  were  dead,  without  exa- 
mining one  witness ;    and  1  have  viewed  aH 
the  boidka  since,  and  there  is  nothing  appeait, 
but  the  bill  ordered  to  be  brought  in,  one  read- 
iue,  and  another,  and  some  petitions  for  maluBg 
of  savings :  There  is  one  rank  of  people  thai 
were  dead;    a  second  rank,  which,  as  JH 
were  told  from  the  bar,  were  the  kingr*s  judgv: 
some  of  which,  it  is  true,  were  tried  by  As 
law :    But  how  ?    Not  by  the  direction  of  iM 
parliament :    It  was  before  they  came  into  Ac 
nauds  of  the  parliament :    and  the  uBiliiniri 
takes  notice  they  had  been  tried.    That  vM 
another  sort  that  was  neve  a  tried,  bat  abseanil 
and  though  they  might  have  cotM  iail  Afl 


npon  a  Bill  of  Atiainder. 

r  the  hw  and  been  out- tawed,  the  par- 
took cogBiance  ot'thona,  and  attnmlcd 
trpasoD.  Hir,  I  do  take  notice,  that  there 
ronrth  sort  of  people  convicted  at  that 
>r  if  we  were  confined  to  the  rules  of 
nstter-hall,  do  doobt  we  could  not  give  a 
udnrroent  than  that  for  treason) ;  there 
i  lord  MouDSon,  sir  John  D*i\nvers,  and 

and  the  statute  recites,  that  they  were 
ed  in  the  murder  of  the  kinc^ ;  yet  in 
to  many  bad  actually  suffered,  they  did 
e  them  the  judgment  of  treason  but 
t  their  estates,  &c.— This  is  to  shew 

jurisdiction  the  parliament  have  over 
;,  and  how  they  can  alleviate  the  punish- 
■cording*  to  the  circnrastances  as  they 
kfore  them ;  therefore  I  think  this  is  a 
iHif  that  we  have  a  jurisdiction  to  go  on 
(*  bill ;  and  at  the  same  time,  I  say  this, 
I  put  it  out  of  the  case,  whether  the  pri- 
*  a  little  man  or  a  great  roan,  that  is 
judgment  before  us ;  and  I  would  put 

the  case,  what  a  good  thing  his  disco- 
)uld  be ;  I  do  not  think  that  a  good  ar- 

:  neither  do  I  think  it  any  argument  if 
n  escape,  what  danger  we  shall  be  in  t 

0  give  my  judgment  from  the  argument 
uilt,  and  our  jurisiliction. 
Ptlham.  Sir,  %Ue  learned  gentleman 
ike  last,  seemed  so  very  clear  in  his 
,  when  be  began  to  speak,  that  I  was  in 
e  would  have  given  me  and  every  body 
tiun  ill  this  great  point,  especially  when 
D  with  Magna  Cbarta,  which  says,  That 
lan  shall  1^  tried  by  his  peers,  or  by  the 
ihe  land :  I  do  take  \i  to  be  part  or  the 
the  land,  that  no  man  should  be  con- 

1  for  treason  without  two  witnesses ; 
r  that  he  did  lay  his  finger  upon  the 
itold  vou,  the  great  objection  was,  that 
rts  of  Westminster  hall  are  so  governed 
3  down,  that  they  cannot  pass  any  sen- 
6r  treason,  but  upon  two  witnesses ; 
told  vou,  they  ought  to  be  tied  so  :  In- 
i  did  say  we  were  not  tied  so :  But  1 
you,  he  did  not  give  me  any  satisfactory 
why  we  should  not  be  tied  so.  It  9 
e  are  not  tied,  and  it  is  impossible  we 

for  no  act  can  tie  thele^slative  power, 
eral  gentlemen  have  said,  that  though 
re  aereral  statntes  th»t  declare  there 
t  two  witnesses  in  cases  of  treason,  yet 
>  say,  that  in  case  of  attainder  by  par- 
,  one  witness  may  be  sufficient.  Why 
not  be  thought,  that  these  acts  extend 
mslative,  as  well  at  the  statutes  of  £d- 
rbich  itb  presumed,  that  the  parliament 
(weed  open  one  witness  ?  And  I  take  it, 
se  beine  no  such  hint,  it  is  a  presump- 
it  the  ux  terra  does  crave  an  observa- 
it  by  the  legislative  powers — 1  did  pre- 
estenlay  to  tell  you,  tkat  Mr.  Alffemoon 
did  staad  upon  it  as  bis  natural  right, 
ey  eould  not  proceed  against  him,  there 


mt  one  witneM :  I  dtd  not  bring  his 
pmllel^to  thi%  or  think  that  his  autho- 
*  yoa  }  but  he  was  a  man 


A.  D.  1696.  [6T8 

that  bad  that  love  to  liberty,  and  the  good  of 
his  country,  that  he  would  not  have  said  so, 
even  to  save  his  life,  if  he  had  thought  it  inoon- 
sistent  with  either  of  them  :  6ut  I  have  k)oked 
upon  his  trial  since,  and  there  he  does  declare, 
that  the  being  condemned  by  two  witnesses, 
is  the  law  of  Ck»d,  and  the  law  of  man ;  thejust 
law  that  is  observed  by  all  meu,  and  in  all 
places  ;  it  is  certain  he  reached  even  by  these 
words,  the' power  of  parliament;  when.  1  do 
say  power,  I  do  not  mean,  but  that  when  such 
a  law  is  passed,  all  are  bound  by  it ;  but  in 
some  sense  we  may  say,  you  cannot  do  what  is 
not  just  for  you  to  do  ;  you  can  do  but  what  i« 
just  and  agreeable  to  the  trust  repotied  in  you. 
— The  gentleman  says,  he  thinks  it  a  strange 
opinion  of  him  that  said,  he  had  rather  be  tried 
Of  a  jury  than  the  house  of  commons :  Indeed, 
it  be  could  be  sure  of  such  a  house  of  eommont 
as  tiiis,  he  might  retract  what  he  bad  said :  But 
I  have  seen  that  done  in  the  house  of  com- 
mons, which  hath  not  made  me  extremely  fond 
of  that  trial.  I  have  sat  here  when  6  or  7  no- 
blemen have  been  declared  enemies  to  tiM 
kingdom  without  any  evidence  at  all,  and  Um 
reason  was  somewhat  like  what  it  n  now.  The 
power  of  parliaments  was  brought  in  as  an  ar- 
gument then  ;  and  it  was  said,  it  was  enly  ia 
order  to  an  impeachment,  but  no  impeachDMsnt 
followed  ;  j^et  these  noblemen  went  whh  that 
brand  in  their  foreheads ;  and  if  any  distnrbanoe 
had  been,  they  had  been  exposed  to  the  fary  ef 
the  people :  And  though  we  are  sure  of  this 
House  of  Commons,  and  may  be  of  all  in  this 
reign,  yet  I  know  not  how  facts  may  arise,  and 
what  parliaments  we  may  have ;  and  upon  that 
account  1  am  very  unwillmg.a  precedent  shoohl 
be  made,  at  least  contrary  to  the  usage  in  all 
manner  of  courts  whatsoever. 

Sir  Tko,  Littleton,  Sir,  I  shall  not  troubia 
you  lonff  in  this  ddMle,  that  hath  taken  up  se^ 
much  of  your  time  already,  in  the  consideration 
of  some  matters  we  have  been  upon ;  though  I 
did  think  your  time  not  very  regularly  spent, 
tili  this  occasion  offered  itself :  1  hope,  there- 
fore, now  it  will  take  up  k'ss  of  your  time.  I 
see  the  great  matter  that  was  insisted  on  be- 
fore, is  insisted  upon  still ;  and  I  do  think  we 
may  say  it  among  ourselves,  though  we  would 
not  let  the  counsel,  that  we  are  ti^  up  in  this 
case  by  the  rules  of  Westminser-hall ;  but  I 
believe  if  that  was  the  case,  and  the  question 
was  no  otherwise,  than,  whether  or  no  we  are 
tied  up  by  the  rules  of*  Westminster  hall  ?  I  be- 
lieve it  would  receive  a  determination,  that  vre 
are  not  bound  up  to  those  rules. — But  1  will 
take  leave  to  tell  you  what  I  think  is  proper  for 
us  to  ground  our  judgment  on :  I  think  one 
great  reason  even  of  those  who  are  aeainst  the 
precedent,  why  they  did  admit  sir  J.  F.  to  have 
coonsel,  and  to  examine  witnesses,  if  he  had 
any,  and  to  cro^  examine  the  witnesses,  and 
why  they  were  wiUing  to  hear  evidence  on  both 
sides  in  the  nature  of  a  trial ;  the  great  reason 
was,  because  that  in  a  case  of  so  great  conse- 

?|uence  as  this  is,  they  would  have  the  host  in- 
ormation  they  cciold  obtain.    Why  did  they 


8  WILLUM  III. 


TR 


679] 

de^^ri!  tf>  lie  iiiform^r  but  that  afterwards  Ui^y 
tniM  hy  ihdr  Ua^nd^  upon  their  b^ar^i,  iinil 
gi^i!  ilielr juiTgitjetit  itjHJii  iheirpritale  oj^inion, 
\vlidt*cr  Jfc(5  w  II  ji  guilty  or  no?  They  sity  we  are 
ftOl  U*  {fivf?  oyr  jiidg:a]ftitu{t'>n  our  ]inv;t^te  ojii* 
11  Jfij*,  I  id\f  II v^  witt  (J  I V,  as  not  long  tkgo  i^«  were? 
fiot  to  liiWe  oyrreljj^iw  up  m  our  private  opi- 
niu'ii  iidUji:r  ;)  And  ivheu  |  am  jutstLiit:d  in  tbat/ 
r  will  i-ely  »po;i  il.  WUellaer  tbb  be  sirietly 
)i:^il  i!f  iJcoc^i  I  do  not  lay  so  iiiutjh  wei||ht 
tijion  il|  iie»  whaber  It  bath  fcatistied  my  con- 
sul en  ee  ;  ftfid  1  beliefs  ther#  b  etot  a  man  in 
the  llotiGe  but  b  so  (upon  what  lie  bath  lieKnl,) 
{Still  datli  ticlleve  that  tiir  J,  F.  is  |f  uilCy  ;  and  if 
we  believe  be  ta  guilty,  1  would  be  glad  to 
know  by  what  rules  in  ihe  world  jiny  man  can 
gtr«?  hU  rot€  Et^in^t  ibis  biH,  b^ng  uf  tbai  be- 
E^r.  And  1  lell  you  wby  I  ihxnk  every  man 
bt'li^res  so ;  be  cause  erery  map  iu  the  kb^ilocti 
tbat  haib  not  heard  scimueh  %&  we  hare  beard^ 
doe^  believe  him  tiA  1>eso ;  oo'd  I  cannDtthiuk  Limt 
tbelr  repi<esenta tires  only  should  be  of  another 
opt iii 0 n ,  —  \V b at  c V  ideoce  b a r e  y 0 u  b ad  f  Yon 
liare  had  eapt.  Porter's  e%'ideucef  Eind  that  woald 
be  gaiod  «veu.  in  iiirerior  eonrls  ;  and  b^des 
fhali  you  have  the  evidi^uee  of  what  GiKidmaQ 
iljd  a  Wear  beJbre  the  gfrand-jur^  ;  you  have 
bearti  ii'hat  be  did  s^v^eiir,  anu  the  gmnd-jury 
dUI  bcUefe  bia» ;  you  have  heard  hkewiiie  ^vhal 
Uti'  did  »w tear  ill  another  cause  t^lhc  petir-jury^ 
nnd  tJiey  belief  cd  h\m^  and  eonfi<ited  the  pri- 
HotHu*  upon  it :    And  though  this  be  nat  legal 

ft(mi\  atrictly  speaking  ^  wUl  any  body  &ay  tnat 
llEive  tttiaou  lu  disbelleire  this  luan,  and  thinly 
|ie  had  sworn  talse  f — Ay,  but  here  h  but  otie 
M'ilot^t  g^enUernen  tell  ^ou.  I  ivill  put  you  a 
casti  where  1  believe  this  hiiuse  woultl  attaiut  a 
inan  without  aoy  Witness.  Suppose  two  per- 
sons had  seen  sir  John  Fenwick  kill  the  king 
{ I  believe  we  should  not  hsTe  pulled  him  in 
pieces  in  a  barbarous  manner,  but  he  would 
nave  bad  a  trial)  and  suppose  before  his  trial 
'they  had  been  conveyed  away,  if  before  they 
hadswomthis  to  ajg^rand-^ury,  and  they  had 
found  the  bill,  [  beheve  this  bouse  would  have 
attainted  him  for  it.— Sir,  I  do  not  ihip^  that 
We  should  stand  upon  these  little  niceties,  nor 
|be  hound  by .  the  little  formal  proceedings  of 
other  courts,  when  the  government  is  at  stake. 
We  are  sent  hither  to  take  care  that  the  public 
nfety  do  not  suffer  any  mischief  from  the 
enemies  of  it :  We  have  had  plot  upon  dot, 
and  I  have  heard  so  much  said  on  behalf  or  th^ 
Lancashire  plot  without  doors,  that  I  wish  we 
(do'not'get  an  ill  name  uoon  ourselves  before  we 
)iave  doae.  We  have  tnis  power  to  exert  upon 
jBxtraordinary  occasions ;  and  here  is  a  inan 
that' hath  endeavoured  to  subvert  the  govern - 
yaeni  and  well-being  of  them  that  sent  you  hi- 
gher.    1  hope  you  will  use  it  now  ;  ana  if  they 


1 


)cnew  who  were  not  of  that  opinion,  I  believe 
those  tha^  sept  them  would  banjly  seqd  them 
JMiy  more. 

Mr.  Howe,  Sir,  as  to  the  argument, .  that  if 
it  was  known  bow  we  gave  our  opinion,  those 
^ai  are  against  this  hilf,  the.  people  would  not 
pb'usethei^ai^:  lampotftfraidoflhat;   I 


Proc^dmgM  againd  Sir  JoJm  Ffntdck^ 

havcf  been  t*dd  so  oiVu,  and  vH  I  flf^J  Oir  \^r^^ 
pie  I  live  ftfo«n:^st^  uae  ine  Wtler   aim   ^  \\*\ 
fvery  tlay  ;  and  I  believe,  air,  tbtiy  v  : 
III  i^  me  I  when  I  bey  vviU  Iwy  *ilhtr  tr 
I  tuusiiii  some  ineai^nrr     i,  nrit  what  w;  mr{\ 
tu  be  rellrcltd  oti  aii  Ir  '^'^etiiltman,  m 

thirt  be  taid,  be  bad' r.«i<.(^ .  ^^  Mi*d  hy  12  \.\\^n 
40Q.  I  Hill  of  bi^  npiniuOt  Eind  thkni  m  my  u-^* 
*ou  for  it;  1  ha*i  ^.v  liiwr-il  vXiAli^vrv-  in  tJi-kit 
oftl^e  n\  and  iT  .11 

have  offended t  J  .  .  ;  .:  .,*  n;^  i.;  j  t  ..  .Lii- 
drawt^,  aud  that  i-auuuL  be  dtxie  in  any  case 
here, — But  genlbmen  piU  the  %tre^  of  their 
ar|2^uiiii'i)t  n^kin  ihalwbieb  nob^MJy  dt.-nit^  ^M 
prove  it  hjwjdsutndy  ;  and  well  ttiey  nmy  ;  kt 
it  is  self-evident^  ibe  powtrrof  p^irliameut  tbey 
insist  on,  when  iii*bfrdy  preUnids  biU  we  bavf 
u  puner  i<*  do  what  wre  piVaT»e  ;  but  I  muL^say 
(if  their  power,  what  Brat-UJfi  jWiys  of  theking'f 
poweiv  *■  tfoc  tamen  nan  uote^t  facere^  i)w»4 
'  noil  potest  justfe  factre.'  it  ia  saiij«  \Veare 
no  I  tied  up  10  the  rutes  uf  lVestmhi»ier4iall ; 
^ve  are  not  m  ;  but  1  beg  leave  to  id}  ibem,  tj)^ 
what  is  reason  aiidjuitiee  in  \Vciitmit^titer^b>4 
is  so  every  where*  And  I  do  take  these  pir- 
tieular  paints  we  speak  of,  to  be  grounded  upoo 
reason  and  justice,  Qiid  si>  far  we  are  to  pa^tif 
tliem. — Twi>  evidences  waa  not  given  as  a  r»-  ' 
$U'flint  upon  W*pslminster<hall,  for  feox  iky 
should  do  aomeibiij^  that  is  ill,  for  they  are  u« 
awtrahU^  f^r  erery  lb  Lug  they  do  ill  i  but  ibey 
were  allowetl  tt)  Ihe  people  of  England,  tltuS 
they  might  have  a  fair  trial ;  and  it  wna  lltiiu^lit 
conformable  to  the  laws  of  Ood,  the  law  uf 
rea^ou,  and  the  law  of  all  couiiliicfs,  that  csj 
mattes  titie  shall  be  taken  away  upun  aoy  pani- 
cular  occasion.  And  iur  to  say,  that  a  mim'f 
lilti  may  be  takeu  away  by  tv^o  v^iiue!£se!»  ia  m^ 
place,  and  hy  one  in  another i  b  to  w^y^  ibut 
there  is  no  certain  rule  lo  prove  a  vaM\  g nikj 
of  a  crime  that  may  forfeit  tiis  Ilt^^  which  is  u^^t 
adfuilted  in  aoy  country  wbauoever,— Bu| 
truly,  sir^  we  are  going  a  little  further  ;  f«r  tlie 
geiitlemeu  befure  told  you,  there  was  no  npt:J 
of  livo  witue^se^,  one  would  serve  i  but  ii{>w 
{bey  go  a  little  fui  dibr,  for  they  tell  you,  ibcre 
tieeda  nerer  a  one  al  all ;  ibr  I  do  say^  if  every 
gentleman  here  ij^  to  be  guided  hy  bis  private 
upiuioi?,  tjieraia  no  man  but  before  he  biactl  t 
this  cause  did  conceive  in  their  opiuiou  sopf . 
Judgmeutof  bia  guilL  And,  sir,  J  tuink  no  uma 
but  would  bale  told  you«  that  would  have  k^eo 
au  unjust  judgment. — But  they  do  say,  Tliat 
tiie  bill  ot  tretrsou  that  was  made  last  sressiijns 
of  parliameat  waa  to  Itiuit  VVestuiinster*  ball : 
and  that  [  will  tru$t  iliat  with  mysielf,  wbidJ  I 
will  not  trust  with  my  Kervaut.  W  hy  tndy^  if 
t^or  my  servant,  was  to  commit  an  error/ ur  a 
great  erime,  1  bad  mther  my  ^rvaiit  did  itf 
Uian  myself :  but  1  do  not  think  that  my  s^t* 
vant  should  be  hound  up  from  duing  an  ui^ 


just  things  and  myself  shuuUl  have  the  liberty 
\ii  do  it.  Another  tbin^  that  Uw  providcfl 
againat  was,  that  people  stiould  not  b«  han^ 
witbuut  sumeient  evident^,  and  tlieae  tbiogf 
have  been  loug  complaiueil  oi :  bur  I  never 
thought  that  }£^  eYideoce  of  ojie  witness,  mi 

.4t  ^ 


681} 


*vpon  a  BiU  of  Aitakideu 


«ic»  witoeMi  woiiM  be  sujiport^il  in  ibe^e  Oays, 
«— liut^  mr,  wimt  ha*e  ^oii  dune?    We  have 
^pt  '     bein^  <^3crciite(i  by  an  arbi- 

Kb  .n  aD  tinkwi'til  way  in  Ue^t* 

TSiu'iirf  jiau  :  i  kit  if  you  give  Ibis  cxoniple,  yon 
bate  broughl  tbe  same  pEXHrt-eilitig^  mto  Uits 
^^use,  anil  ijiat  ihey  mfty  be  perpeiuuijy  exe- 
^Bleii  here,  auil  so  tbe  sttljject  \\l\l  be  nt^rtT 
^Be  .s,iii  r  for  ih^  bill  oi'  treason. — kmi  \  k\q  be- 
%  ^e,  Tbal  It  is  btUer   ibal  a  very 

bei '  i,t,  or  a  mistake,  sbould  be  com- 

Weii  ill  VVesltQiiiiiter-hail  lor  icu  years  fo- 
Lbtrr,  ibnn  once  peqietrated  in  t bis  house: 
1  my  reanati  is  liiia,  because  We^^l minster- 
bare  a  taw  to  be  tried  by,  if'lbey  transgres-s 
|t  lav«  ]  and  there  is  a  wuy  by  turning-  out  of 
^,  and  other  things  ;  audtbis  boiisie  hatb 
riur  pow<rr  ;    and  \4  beii  they  do  a  thing, 
|Ue  i»  tt  Uw  J    s^  tbut  this  houM*  (as  it 
leu    bet"t»  observed)  can   make  this  na* 
$\    milin^uty,  liecause    this    hotlse  cMi  oidy 
^^hli^ih  aruitfiiry  power  and  misery  upon  this 
|ji>n  by  a  law. — 8ir,  as  to  the  evidence,  to 
ftunietbini^  to  it,   sinc«  every    botty  hath 
ke  t<i  it ;  fur  my  part,  I  do  confess  lo  you. 
Ioniser  I  sit  here,    aod  the  more  I  hare 
Urd  of  this  trial,  ibe  ks;*  I  have  bi*en  con- 
witbiii  myself,  thai  these  w  itnesses  can 
pw  any  tiling  of  sir  J,  Fenwick's  guilt.     I 
re  heard  captain  Porter  jiive  his  evidence  ; 
:  that  i^  DO  liufiicient  proof  to  rne :   I   have 
heard  what  evidence  Guocbnan  did  i^ive  to  ibe 
nd  jury  ;   l>nt  whether  they  did  ask  such 
qtions  as  1  i^huiild,  tf    1  hail  been  of  the 
I  jmy  ;  or  vt  bcihcr  llicy  did  confrtmt  him 
ill  €\  idence,  I  caiinol  telb    'rhcrulbre  though 
l^rand  jury  %va»  convinced  by  it,  it  bi  no 
un  \Q  convince  us  9  because  we  mi^j^ht  not 
[convinced  by  the  same  evidence — But  to 
further  ;    there  is  very  great  reai*ou  to  be- 
te that  (jiHiilinan  was  not  then  at  this  place, 
th^t  hot  onti  word  tbut  (joodnian  says  is 
1  iiaie  stich  rea.son  for  what  I  say,  that 
Dk*s  trial  had  been  before  this  liouse  (not 
(D  arraign  Westminster -hull,  1  hough   I  think 
|i^e  are  ti  nujR'rtor  ^Kiwer^  and  I  muy  say  »  hat  I 
fiteastf  Qf  thitt  trial)  ;   1  s»y,  if  Cook*s 'trial  had 
beeu  before  it)i^  house,  and  what  I  have  ticard 
be  true^  1  do  tliink  tlicy  would   bardly  have 
iwuml  Cook  guilty  np^m  Uooihiian^s  evidence : 
■r  there  Here  three  as   positive  evidence  a? 
^pihl  h4^  that  he  wus  not  at  the  place  when 
^E  -  was.     And  I  observe  a  little  failure 

H  1  '  »r(i;r'ii  evidence  in  that  point ;  for 

T  0'»    iJ"t   I  lank  it  proved  hy  captain  Porter, 
tlfttt  Goodiiiun  was  by  whe^  ifns  discourse  wa^ : 
he  says,  he  fepake  of   thi^  ihtng  at  Mrs. 
Ia/j03\s,  and  dined  there.     \^Manbcrs.    No, 
" ,  W416  at  ihc  Rtng's-head.]     Well,  there 
t  one  place  where  it  was.     Now  whether 
Porter  heard  them  talk   of  it  before 
I  oame  to,  or  whether  Goodman  be  a 

he  having  been    ihere  but  the 

'  part  fjif  the  lime,  which  seemed  to  nie  to 

lime  ihcy  should  have  given  over  their 

"lie  buainess,  they  lii&ving  been  so  long 

ll^VA'e  I    but  it  du^eM  uol  lippear  ,lo  oie 


A.  IX  J  686. 

that  Goodman  ean  l>e  a  good  witnes^^.-^Bot  I  < 
take  it,  that  it  is  not  junt  nor  reasonable  to  Bnd^ 
a  man  guilty  upon  one  witness,  and  circuin^  1 
slaoUal  evidence.     I  did  inentinn  a  case  whefi^ 
ihere  was  a    positive  witness,  and  a  ch'cum-*! 
srauiial  witness,  it  was  in  my  lord  JDelanjere'^j 
trinl;    anJ  yet  that  was  not  thought  a  con- 
vincing ari^ument   by  the  lords   to   fnni  hini 
guilty  ;  and  \  hope  no  c(»nsideralion  will  oblige 
us  to  do  that,  which  I  am  sure  we  should  hlain^  \ 
them  lor  doirifj. — -Tlie  consequence  of  thiis,  gen- 
tlemen say,  they  df>  not  fear.  J  believe,  if  sir  J.  ^ 
F.  bad  bet  n  told,  when  he  waii  major-general  of  \ 
king  Jameses  army,  tbal  I  should  come  here  ta 
sit  upon  bis  life,  be  would  have  laughed  at  it« 
and  Umu^ltt  it  impossible  ;  but  the  contrary  haf  1 
hapjieoed:  And  1  have  seen  parties  hang  onfi 
ancnber  with  such  violence,    I  pray  God  wp 
may  keep  from  it :  1  do  noi  know  ;  we  are  al| 
eonrerni'd  in  some  measure,  it  having  been  thfltl 
unhappiness  of  this  naiion,  that  at  one  time  nip  I 
another  every  body  halli  been  concerned,  that  * 
they  may  have  a  proceeding  of  this  sort  again^  , 
lliem  ;  and  this  surmounts  al)  tbat  at  present  , 
gentlemen  can  do;  for  it  extends  beyond  all 
pardons,  and  will  reach  beyond  the  act  of  In- 
dcQinity.     God  knows  who  may  lie  served  so^ 
notwilhstandiog  all  the  act   of  Indemnity.—  1 
Sir,  there  is  one  thing  that  is  said  further,  wbicli  ( 
the  gentlemen  at  tlie  bar  conclude  with  as  a 
substantial  argnment,  tbat  we  do  not  aim  ajfe  1 
sir  J.  F.'s  blood  (Gnd  forlnd  we  shouhl),  but  a| 
his  confcsiioo  :    Vou   will   bear   read  the  biU  , 
once,  and  twice,  will  commit  and  pass  the  bill, 
(sir  J.  F«  not  confessing),  and  f^till  tliis  is  not  to 
aim  at  his  blood.— But  it  ha}i|jcns,    perhaps, 
that  this  man  knows  no  more  of  this  matter  ; 
and  this  man  is  racked  in  a  manner  to  dealh» 
from  reading  to  reading,  because  be  dues  cot  • 
confess  ;  and  at  last  he  comes  to  be  hangeif, 
drawn  and  cjunrlered  (instead  of  high-t  eason) 
for  not  c^'ufesstng  i I. —This  I  lake  to  he  ihf 
dangeronsest  part  of  all  the  arguments  thai 
have  been  nrgeil:    For  ibis  I  must  tell  you. 
That  according  to   my  private  opinion,  I  do 
beheve  thai  sir  J    F/does  know  of  no  more*! 
persons  concerned  (nor  do  1  beliuve  he  knowa 
all  that  he  jays)  ihun  be  tells  you.     He  hatb 
not  hten  a  man  that  havb  kept  company  with 
gi'eat  men  :    lie  liaib    generulty  relfeved  the 
^oor  Jiicobite  otBcers  :  Ther*  are  five  people^  1 
as  1  lake  it,  he  hath  told  you  he  did  converse 
with  :   I  would  fain  know  iu  what  plot  any  maa 
converses  with    abciva    five    of  tlie    plotters^.] 
There  may  be  a  plot  tbat  may  be  most  danger* 
oLis,  and  yet  a  person  ibal  knows  of  this  ptpt,. 
may  not  know  iibove  two  or  three  others  iha| 
are  concerned  iu  il.— -But  the  great  arguntenX 
ln^  Take  care  of   your  government.     In  tt^ 
lirst  plut^e,  ibe}^  must  suppose  the  safety  of  ih^  * 
gavernment  depends   npno    his  execution,  of' 
why  do  they  u>e  it  ax;  an  argument  ?  Bui  I  wit^|| 
iJicy  would  shew  me  the  government  would  b^ 
one  penny  the  worse,  if  the  bill  does  not  pass^ 
Do  you  want  examples  of  nunislmient  to  detar 
men.     No ;  you  had  lawful  proof  against  fout 
or  tiye  pervouB^  aad  tbej  baje  been  tyecuied  | 


683] 


S  WILLIAM  III.         'Proceedings  against  Sir  John  Tenmckf        [0BI 


Here  are  examples  made,  that  nobody  for  the 
fUtnre  raay  presume  to  plot  tog^ether,  aod  not  be 
executed.— VV hat  is  the  reason  of  this  bill 
then  ? .  Why,  there  is  a  plot  going*  on.  Sir  J.  F. 
hath  been  impri^oneil  this  six  months  or  more  \ 
and  will  vou  hang  him  because  there  is  a  plot 
going  oar  What  coaseqnence  is  thai?  Do  you 
think  that  he  knows  any  thing  of  it,  or  that  he 
can  discover  itP  It  hath  been  startf^l  since  bis 
confinement,  it  may  be,  and  be  knows  nothing 
(»f  it :  So  that  as  to  what  is  pressed  of  his  con- 
lession,  I  know  no  one  thing  would  be  gained 
by  it,  that  could  be  useful  to  the  gorernDoent ; 
for  I  believe  all  hath  been  discorcrad  already 
that  he  knows,  and  that  plot  bath  been  utterly 
disappointed,  and  they  have  been  fain  to  make 
a  new  one.  Will  you  proceed  in  a  bill  of  at* 
tainder,  unless  the  matter  be  of  tlie  createst 
consequence  ?  The  nreamble  of  the  bill  fur 
attainting  the  duke  ot  Monmouth,  gave  a  sub- 
■taDtial  reason  for  it;  That  he  was  in  arms, 
and  could  not  be  brought  to  ju&tice.  That  im- 
plied, That  if  he  coiud  have  been  brounrht  to 
justice,  they  would  not  have  attainted  him. — 
I  think  I  need  not  give  you  mora  arguments  in 
this  matter;  1  wish  1  could  hear  those  that  have 
been  cnven,  well  answered.  1  shall  say  no 
more,  out  1  know  this,  that  my  private  opmion 
ahall  never  guide  me  in  this  case.  It  is  not 
the  same  thing  with  the  case  my  worthy  coun- 
tr^^man  put :  In  the  case  of  religion,  my  private 
opinion  does  not  affect  other  persons ;  indeed 
it  does  the  papists,  where  they  will  murder 
others  that  are  not  of  that  religion. 


evaded  the  co<;fnizance  of  Westminster-hall,  be 
is  now  brought  before  you  ;  and  there  are 
several  instances,  where  this  House  hatbtakn 
notice  of  offences  of  a  less  nature,  and  for  t 
less  reason  than  this  is  brou||fht  befota  yon.— 
To  quote  precedents  is  a  little  drysubiect; 
but  however,  I  will  instance  in  one,  that  (I 
think)  does  assert  the  power  of  parliaments  id 
this  cdse,  which  has  not  been  mentioned  jit; 
and  that  was  (as  I  remember)  in  3  Rich.  S,  of 
an  agent  that  came  from  Genona,  who  wai,  kf 
a  misfortune,  killed  upon  a  quarrel  that  hip 
pened  in  the  streets ;  he  that  killed  hin  wh 
brought  tr#  his  trial ;  it  could  not  be  bitnfk 
williin  the  statute  of  25  Ed-  3,  hut  be  «« 
Crought  to  his  trial,  and  it  was  found  only  m  if 
fendendo ;  but  he  being  a  public  muttter,  k 
'was  thought  fit  that  the  nation  should  lakcBMK 
notice  of  it :  and  he  was  attainted  afkernHb 
by  parliament,  and  there  is  a  record  of  ii: 
they  did  not  think  fit  to  make  a  general  Imr, 
but  they  made  an  example  of  the  roan  tlitf 
committed  this  fact.— A  great  many  gentfcMi 
have  supposed  this,  and  supposed  that,  ui 
what  ought  not  to  be  supposed ;  but  1  wl 
make  an  easy  Kupposiiion  ;  I  will  suppose  dut 
we  are  the  Commons  of  England  in  parliasMil 
assembled ;  and  if  so,  sir,  we  have  a  diwre- 
tionary  power  to  do  whatsoever  we  see  b  fir 
the  good  of  the  kingdom  ;  and  if  we  are  to 
be  circumscribed  by  tlie  rules  of  Westminster- 
hall,  and  we  are  to  do  nothing  but  what  tbef 
wouUi  do,  to  w|iat  purpose  do  we  sit  here ;  If 
we  are  intrusted  with  this  power,  and  i 


Mr.  A'brm.  This  is  a  very  solemn  debate,  j  exert  it,  I  think  here  is  a  fit  occasion  for  jot 

and  it  is  upon  a  very  solemn  occasion.    It  ns  a     * '  '* " *»-:*-      »2: »-  "■-'  - 

case  of  blood  ;  it  is  a  case  that  in  my  life-time, 
I  thank  God,  I  never  had  to  do  with  yet ;  and 
in  this  matter  wherein  I  am  now  to  be  judge,  I 
will  use  as  much  caution  as  any  gentleman 
within  these  walls-  I  am  so  conscious  to  iny 
own  inability  in  what  I  have  to  say,  that  I 
cannnt  expect  to  convince  any  hoAy  ;  Gut  what  I 
say,  is  to  dischari^o  my  own  duty,  and  satisfy 
my  conscience  in  that.  I  doubt  not  but  every 
gentleman  considers  the  station  that  he  is  in, 
and  the  trust  reposed  in  hiui  by  tliose  that  sent 
him  hither:  we  are  intrusted  with  the  lives, 
liberties,  and  proiierties  of  every  man  in  Eng- 
land ;  and  we  are  answerable  for  them  to  those 
that  sent  us  hither,  to  our  posterity,  and  to 
ourselves.  In  this  matter,  many  things  of  great 
weight  and  importance  are  before  you :  here  is 
thchfc  of  a  man,  the  preservation  of  the  king 
and  govenunent,  and  the  power  of  parliaments 
to  be  considered.  Sir,  as  I  shall  be  cautious 
of  taking  away  the  life  of  a  man,  so  I  shall  be 
careful  of  the  preservation  of  the  king  and 
government,  and  the  power  of  parliament ;  and 

though  I  do  not  think  it  requisite,  nor  never  I  That  he  does  not  believe^  captain  Porter  if  a 
will  give  my  ronsrnt  to  support  the  government 
or  honour  of  this  Hou«:e  atthe  expeuce  of  inno- 
cent blood  ;  yet  I  shall  not  he  afraid  of  giving 
iny  opinion  in  this  matter,  to  bring  a  crimmal  to 
punisnment :  besides  the  treason  he  hath  com- 
mitted, he  hath  crimes  of  a  nature  almost  equal 
to  treason ;  and  for  which,  because  he  hath 


to  exert  this  authority. — Sir,  give  me  leave  to 
take  notice,  that  the  strain  of  argument  tint 
w  as  used  some  years  ago,  is  very  niuch  altered 
by  the  same  gentlemen;  (I  wiCl  mention  it)  I 
think  it  was  1678,  when  the  bill  of  ExcluMoa 
was  brought  within  these  walls ;  tlie  arguuieats 
run  then  (for  I  have  seen  them  in  print)  tbotf 
that  were  against  that  hill ;  What  will  you  iJo? 
say  they  ;  Will  you  do  this  thing?  Pass'ajodg- 
ment  against  a  man  without  hearing  of  bin? 
Hath  he  been  brought  to  your  bar,  to  aoswer 
what  you  have  to  say  against  him  ?  How  4i 
you  understand  that  he  is  guilty  of  the  criiflct 
you  accuse  him  of?  And  they  did. not  on 
those  arguments  against  them  that  were  for 
disinheriting  the  duke  of  York :  But  the  answer 
then  was.  Do  you  dispute  the  power  of  parlii- 
nients?  Is  there  not  a  discretionary  peiweria 
the  parliament  ?  I  do  take  notice,  that  thoie 
gentlemen  that  used  that  argument  for  the 
bill  of  Exclusion,  now  use  it  a  quite  oootrvj 
way.  Sir,  1  think  the  fiower  of  parliament  ■ 
not  to  he  trilled  with. — It  hath  been  uigedy 
and  said  a  little  while  ago  by  a  gent! 


good  witness.     I  will  give  you  a  good  i 

why  I  do  think  ho  is 

they  at  the  bar  think 

would  have  given  a  great  i 

him  off;  and  for  the  same  reason,  I  I 

Goodman  to  be  a  good  witness  too:  SirJ.F* 

was  satisfied,  that  Goodman  dkl  know  htv  fhr 


a  very  good  one,  M 
;  so  too,  becaose  Ih^ 
at  rewaid  to  hate  lahci 


■»} 


t^n  a  Bill  ofAUaindeu 


was  concerned,  and  be  hath  been  prevailed 
h  to  be  out  of  the  way.— Sir,  here  are  a 
at  many  circnmatancea  that  agree  so  well 
:ethLT,  that  (I  think)  no  person  can  doubt  of 
J.  F.*s  guilt ;  and,  1  think,  it  is  in  this  cose 
ibe  body  polittc,  as  in  the  bod}'  natural,  when 
uau  is  almost  past  tlie  cure  of  physicians, 
ipn  a  man  hath  a  ping^ne,  or  a  rotten 
Hnber.  which  the  physicians  by  the  ordinary 
•ans  cannot.cure,  the  remedy  the  ctdle<Te  of 
lysicians  themselves  in  that  case  would  use 
,thev  would  say,  *  Immcdicabile  vulnusensc 
-ecidenduin  est/ — I  am  of  opinion,  that  the 
gidativc  hath  this  power,  and  that  this  is 
-oper  occasion  to  exert  it ;  and  to  compare 
nail  thinjrs  with  great,  it  is  like  thunder  and 
engeance  in  the  hands  of  Providence,  that  is 
N  used  but  upon  extraordinary  occasions ; 
ad  then  it  ought  not  to  fail,  for  that  makes  a 
an  trifle  with,  and  despise  that  power  that  is 
M  effectually  able  to  exert  itself;  and  if  the 
sord  of  justice  be  drawn,  if  they  find  it  rusty 
nd  will  not  cut,  they  will  have  a  mean  opinion 
r  jour  power  for  the  future. — Gentlemen  arc 
Tiiid  of  precedents  in  this  case ;  for  that  rea- 
BB 1  am  for  committing  this  bill,  because  I 
wild  make  this  a  precMent ;  and  I  will  tell 
OQ  why  ;  Because  it  may  happen  in  future 
^,  tliat  ministers  of  state,  and  persons  con- 
mmi  in  the  government,  may  be  faulty,  (I 
lunk  I  miy  suppose  that) ;  and  as  the  law 
liads  now,  be  is  but  a  bungling  politician  that 
iDAot  ruin  the  government,  and  yet  not  come 
riihia  the  bill  of  treason  to  be  hanged  for  it : 
ind  therefore  tor  the  keeping  an  awe  upon 
loiitcira  of  state,  and  because  I  would  have 
bii  House  always  have  it  in  their  power  to 
visli  future  offenders,  as  they  shall  see  cause, 
■  well  as  this  unfortunate  gentleman  at  the 
v,  I  am  for  committing  this  bill. 
Mr.  Finch.  Sir,  tiic  question  now  before 
<ii,arises  upon  acase  wherein^'ou  have  a  man 
eoKed  of  high-treason,  and  tur  that  there  i& 
«  one  witness,  which  by  the  rules  of  West- 
■iner-hall  is  confessed  by  every  gentleman 
Mt  legal  evidence.  1  remember  the  other 
fj  when  this  evidence  was  offered,  and  an  ob- 
aioD  madb  to  it,  the  answer  was,  Tliat  wc 
^t  to  hear  it  (thougti  in  Westminster- hall 

Eild  not  do  it),  because  we  sit  here  as 
ind  we  can  distinguish  what  is  legal 
,  mnd  what  is  not  legal  evidence,  and 
I  ffire  iti  just  vreight  to  every  part  of  it.  I 
oMcrve  now,  in  this  debate,  some  part  of 
\  eridenct,  which  no  man  can  say  could 
re  heen  given  according  to  the  rules  of  law, 
inasted  upon,  and  weight  laid  upon  it. — And 
re  they  have  taken  mto  consideration  the 
wcr  oT parliaments ;  and  the  method  of  par- 
mcDls  has  been  insisted  upon.  As  to  the 
vcr  of  parliament,  Whether  the  parliament 
i  do  it?  And  whether,  if  the  parliament 
iJMlo  do  it,  they  are  tied  up,  as  gentlemen 
I  ficued  to  express  it,  to  tlie  rules  of  West- 
■Her-baJl  ?  That  the  parliament  can  do  it, 
if  a  bard  matter  to  ^rain-say,  That  any  thing 
Mi€f  the  reach  of  the  sdpreme  power  of  a 


A.  D.  1696.  {^66 

nation,  the  Iccrislative  authority  can  do  every 
thing:  Yet,  though  gentlemen' have  said  this, 
and  others  have  ob^rvcd.  That  there  wanted 
no  authority  to  prove  this,  being  self-ciident; 
yet  give  me  leave  to  instance  in  some  par- 
ticniars  in  tills  case,  with  the  authority  of  the 
judges  upon  it,  where  the  parliament  have  pro- 
ceeded according  to  tlicruUni  of  Westminster- 
hall.— We  read  in  Hen.  Uth's  time.  That  the 
lord  Cromwell,  earl  of  Kssex,  was  attainted  in 
p.irliament ;  and  history  tells  us.  That  he  was 
attainted  by  a  law  of  Ins  own  making.  Now, 
says  my  lord  Q.oke,  That  seems  strauge ;  but 
enquiring  of  an  ancient  person  that  lived  in. 
tliosc  days,  he  told  him  the  meaning  of  it ;  that 
lord  had  consulted  with  the  judges,  Whether 
or  no,  if  a  man  was  attainted  by  parliament^ 
and  was  not  brought  to  lie  heard,  such  attainder 
would  be  good  in  law?  The  judges  started  at 
tlie  question,  but  could  give  no  other  answer 
than  this ;  Truly,  if  such  attainder  lie  made,  we 
know  no  law  to  find  fault  with  it,  for  it  is  done 
by  the  legislative  authority.  It  fell  out,  that 
the  instance  of  condemning  a  person  in  parlia- 
ment (not  according  to  the  rules  in  Westmin- 
ster-hall) fell  out  to  be  the  nobleman's  case  ; 
fur  he  himself  was  so  attainted  immediately 
after .^-Oivc  me  leave  to  instance  in  another 
kind  of  authority,  the  authority  of  parliament 
touching  these  attainders,  and  what  has  been 
the  consequence  of  them ;  If  you  w  ill  look  into 
the  reconl  of  Rich.  2d's  time,  I  do  not  mean 
the  record  that  bath  been  quoted,  nor  the  case 
of  John  Imperiall,  for  killing  the  Genona  am* 
bassador,  which  was  declared  treason  in  pariia* 
ment  ten  years  after  the  man  had  been  tried  in 
.  Westminster- hall  for  it ;  but  I  mean  the  11 
Rich.  8,  how  many  were  attaintc^d  by  tlie  pro- 
ceedings of  those  Umes ;  I  do  not  mean  by  acta 
of  parUament,  but  those  attainders  were  in  ad 
extraordinary  manner,  not  according  to  the 
rules  of  Westminster- hall :  And  21  Rich.  2, 
the  whole  parliament,  and  its  whole  proceinl- 
ings  were  reversed,  and  the  parLament  annull- 
ed :  In  that  year  were  the  persecutors  of  the 
1  Uh  ^'ear  tliemselves  attainted :  And  31st  year 
of  Rich.  2,  the  act  that  repealed  that  pariia- 
ment  repealed  the  pardon  too ;  but  in  order  to 
come  to  the  attainder  of  those  |iersons:  that 
being  done,  was  not  enough;  for  the  lord 
Arundel  had  a  pardon  the  17tli  of  Rich.  S. 
Upon  that  they  made  a  law  to  repeal  his  paidon 
bj^  patent,  that  they  might  come  to  the  attainder 
of  that  lord;  and  that  lord  was  attainted  by 
act  of  parliament.  But  I  must  observe  one 
thmg  a  little  further,  that  that  very  parlia- 
ment, that  doubtless  knew  their  own  |H>wer 
well  enough,  and  that  their  attainders  were 
firm,  being  made  by  the  legislative  power,  yet 
they  bad  a  little  jealousy  themselves  of  their 
proceedings ;  for  they  passed  an  act  to  make  it 
capital  to  go  about  to  reverse  any  of  those 
laws ;  and  another  act,  that  all  the  lords  and 
bishops  should  be  sworn.  Now  see  what  fell 
out  after:  Rich.  2,  was  deposed,  for  consenting 
to  those  laws ;  and  Henry  4th,  in  the  first  year 
of  his  reigU|  abrogated  the  whole  parliaraenty 


es7] 


S  WILLIAJf  III.  Proceedings  against  Sir  John  FenxKteh^ 


And  repealed  all  those  laws.  These  tarns  have 
b!leen  upon  these  extraonlltiary  proceedings  of 
parliament. — Give  me  leave  to  frive  you  an- 
other inRfance,  and  that  in  another  > case,  as 
oHioas  as  possible  could  be.  In  the  na order  of 
£dur.  2,  there  was  Roger  Mortimer  attainted 
in  the  first  year  of  Edw.  3,  and  the  record  says, 
That  it  was  notorious  to  them  all :  and  wnat 
then?  They  adjudged  him  to  be  attainted  in 
parliament.  VVhen  time  had  a  litile  worn  off 
that  extraordinary  zeal  (wfiich  truly  was  com- 
itiendablc,  tliough  it  had  transported  them  a 
little  too  far  beyond  the  rules  if  justice)',  and 
they  came  to  consider  what  precedent  they  had 
ihade  for  posterity,  it  had  another  face;  for  in 
98  Edw.  3,  was  thatattifinder  reversed,  bccanse 
he  was  not  brought  to  answer  as  he  ought  to 
liave  been.  There  was  also  an  act  for  attaint- 
ipiT  the  earl  of  /Vnindel,  which  in  the  same  98 
.  Edw.  3,  was  reversed,  because  he  was  not 
brought  to  judgment  by  due  process  of  law. — 
$ut  non^  wea^  told,  we  are  not  tied  here  to 
-  the  rules  of  VVc^tminster-hall.  Gentlemen  do 
not  enough  distinguish  in  this  matter ;  the  forms 
of  Westminster-hall,  sa}r  some;  the  rules,  say 
Others;  and  others  say,* there  is  no  difference 
between  the  form  of  proceedings,  and  the' rules, 
of  Westminster- hall ;  but  I  hope  no  cenllemen 
do  think  but  the  parliament, ihou|rh  they  have  a 
liowerto  act  as  they  think  fit  (as  instances  have 
been  given),  yet  the  parliament  itself  are  tied  by 
the  rules  of  common  justice.  Now  I  would  have 
gentlemen  that  say  we  are  not  tied  by  the  rules 
uf  Westminster -hall  a  little  to  consider  the 
matter.  Are  the  riiles  of  Westminster- hall  no 
either  than  what  are  necessary  for  the  executing 
of  justice  ?  I  f  they  are  no  other,  how  can  we  be 
said  to  go  according  to  justice,  when  we  go  be- 
side those  rules?  I  desire  them  to  consider  of 
the  consequence 'of  this  proceeding;  there  is 
no  danger,  I  hope,  of  this  parliament:  but  if  we 
shall  say,  that  the  rules  of  Westminster- hall 
are  not  such  as  are  necessary  for  the  proceed- 
ings in  a  course  of  iuslice,  we  shall  shake  those 
barriers  uf  our  liberty  and  property,  I  am 
afraid,  a  little  more  tlian  gentlemen 'think  of 
at  present :  and  shall  we  declare  they  are  not 
necessary,  when  our  ancestors  have  thought 
them  so,  and  their  wisdom  hath  dc-rired  them 
to  us,  and  the  wisdom  of  the  nation  in  parlia- 
ment hath  established  these  rules? — I  cant  say 
what  consequence  may  follow  upon  this.  This 
parliament  can  never  do  any  thing  to  endanger 
the  lives  of  the  peopleof  Encrland;  but  hereto- 
fore parliaments  have  been  damned  with*  seve- 
ral brands,  set  upon  them  by  succeeding  parlia- 
ihents:  as  for  instance,  one,  I  think,  in  the 
afR  H.  6,  39.  That  parliament  was  wholly  rc- 
pealcil,  as  packed,  and  passing  laws  throiigti 
i^ncour  and  malice,  and  having  passed  no 
good  ones.  Now,  suppose  a  parliament  slionid 
com6,  that  should  not  be  so  tender  of  t!ie  liber- 
ties of  the  people  as  this ;  and  they  should  be 
io  bold  as  to  snake  those  laws  that  are  made 
for  the  rules  of  justice,  if  they  have  so  good  a 

Earliameut  to  guide  them  in  it.:    will  not  this 
Ban  ^duoement  to  such  a  parliament  as  that, 


to  shake  all  our  laws  and  liberties  ?  Dol 
trouble  you  any  longer,  my  h^ad  will  i 
me  leave.  I  inn  against  the  bill,  anfl  have 
you  my  reasons. 

€l)l.  M'harion.  I  hope  gentlemen,  in 
ter  of  this  moment,  wdl  have  patience 
one  another;  and  since  e\'ery  geoileni 
give  his  vote  in  this  matter,  I  desire  to  \ 
reasons  for  my  vote :  I  am  of  the  opi 
another  gentleman,  that  we  ha^  not  i 
the  sore  yet ;  yet  I  do  not  think,  that  tl 
/or  Westminster-hall  are  rules  for  ua 
gentleman  that  sjiake  last,  as  he  alwa} 
made  a  very  florid  and  elegant  spe» 
brought  you  several  examples  of  ati 
that  nave  been  condemned  from  one  par 
to  another,  in  several  reigns :  but  I 
wonder  at  that,  wl^n  the  crown  wentfi 
to  another.  An  instance  was  given 
case  of  the  lord  Cromwell,  which  wa 
tb  from  the  bar ;  and  sir  Thomas  Powy 
great  stress  upon  it,  that  this  was  conder 
a  wrong  judgment,  because  be  was  not 
I  believe  that  may  be  a  reason  why  n 
those  attainders  were  condemned  ;  pei 
might  be  a  custom  uf  our  ancestors 
bills  of  attainder  without  hearing  the 
This  person,  hatli  been  heard,  and  fully 
and  I  believe  no  person,  that  hath  been 
ed,  hath  had  so  fair  a  trial ;  and  tb^reft 
liaments  having  condemnc«l  bills  of  ati 
because  the  persons  have  not  been  heai 
will  be  no  reason  why  any  parliament 
condemn  us.  A  gentleman  told  you,  t 
law  of  God  and  man  was,  not  to  condemi 
but  upon  two  witnesses  ;  but  there  an 
instances  to  the  contrary. — It  is  told  \t 
Porter,  here  before  you,  is  not  a  good  ev 
because  he  is  not  sworn ;  and  that  yoi 
go  by  the  rules  of  Westminster- hall.  S 
gentleman  that  spake  last,  yuu  are  tc 
their  rules,  but  not  by  their  forms :  I  mi 
less  there  is  a  groat  diflfercnce  bet  wee 
two ;  lor  a  form  is  only  the  manner  ai 
thod  by  which  we  proceed  in  doing 
thing ;  but  the  rale  is  the  foundation  we 
to  err  from ;  but  1  can't  agree  we  jare  u 
same  rules  as  Westminster  hall  is :  the  i 
Westminster-hall  are,  when  a  man  is  1 
upon  his  trial,  the  jury  are  all  to  be  um 
oaths  ;  b}'  which  oath  they  are  to  maK< 
judgment  according  to  law.  This  is 
ease  here  :  if  I  was  a  juryman,  and  wa 
a  man,  and  one  witness  swore  against  tb 
and  no  other  witness;  though  I  did 
conscience  believe  him  to  be  guilty,  yet 
case  my  conscience  is  discharged,  and 
find  him  not  gudtv :  but  no  man  can  i 
is  the  case  here. — ■\\'hat  are  we  now  a- 
flere  is  a  bill  to  attaint  sir  Johfa  Fen' 
hig^li-treason  :  if  1  reject  the  bill,  I  do ' 
him  not  guilty  ;  and  if  I  do  thidk  hiu  g 
do  declare  against  my  own  judgment ; 
judgment  here  is  not  bound  up  as  a  man* 
rneiu  upon  a  jury :  for  his  judgibeiit  d 
up  to  proof,  according  to  law ;  aiid  n] 
ment  b  l^und  up  by  my  oifli  Ufitf : 
3 


upon  a  BiU  ofAiia 


the  (irogf  i  rouKt^o  by  ;  atid  I  tliink  every  ni«Q 
U  bouoil  in  ^itr^licti  antl  ilutv  to  Uis  oimiilry,  as 
he  believes  »it  Jolm  Feiiuick  in  be  i^mhy  ^  to  be 
for  tbe  eotarnitlQierit  of  thU  bJl ;  huiI  tiE{  utiy 
genLlemAti  frilt  cauvincc  me,  that  tub  is  w^i  a 
rule  1  am  to  go  by,  1  inu^l  conriaue  m  ibis 
opmion. 

Mr.  Boy/tf.  The  disonler  that  worthy  qfcn* 
UeioAa  WAS  in,  makes  me  the  uiorf*  L-uuceroed 
for  (ear  of  fallmg  into  it  mysulf.  I  hope,  in  this 
deflate y  genltemea  will  be  very  eautioui*  of 
using  it  as  an  arfrutnent,  what  applicatioD  our 
votes  ^ball  have  without  iloonif  aucl  with  tha^e 
we  represent^  wheo  we  are  to  ijiie  juilginfcnt,  as 
far  as  in  us  lies,  for  the  hJe  anU  dejith  of  a 
naftn :  and  therefore  I  must  (observe,  that  the 
eftgeroesa  thatisjus^tifiable  upon  irn  peach  me  uts, 
may  not  look  «o  well  now  we  are  ju<l|fe*  upo 
a  Vill  of  attainder.  Von  have  gone  over  the 
whole  course  of  the  evidefice,  and  I  belie tre 
liiat  this  debate  will  shew  you  pretty  plainly, 
^ftat  is  to  be  the  fule  uf  this  bill ;  for  1  believe 
^p  the  argumeDtji  will  now  be  useil  that  can  be  : 
9M  to  what  hatli  been  said  of  extortiog-  a  coo- 
fenion,  I  take  it  to  be  quite  out  of  the  ca^^e,  1 
am  sorry  to  be  engag^^eil  ooe  way  or  another  r  I 
would  not,  if  I  cuiild  help  it,  out  of  the  house, 
be  upon  a  jury  of  life  and  death ;  yet  in  that 
case,  1  should  know  the  law,  or  be  told  it  by 
the  judg^« :  But  in  this  case^  we  are  both  j  ury - 
men  and  judges,  and  know  not  what  rules  we 
t  to  go  by;  but  set  up  a  court  of  eipjity, 
ch  hath  no  bounils  but  our  own  conseiences. 
^  to  sir  John  Feawick,  I  know  htm  noi; 
I  his  cauiie,  1  am  sure  1  am  a^fainst  it ;  but 
'  far  I  tbink  him  guilty  or  not,  1  think  is  not 
\  tingle  point  to  he  considered  :  1  must  eon- 
,  lliere  have  been  several  people  accused  of 
t  couspiracVf  and  have  been  named  by  tlie 
nee  at  the  ti-iats;  and  I  believe  tliey  are 
ch  alike  guilty,  bein^  nptin  lbe«ximeevi- 
pce ;  but  as  to  all  that  bath  bei^n  opened  he* 
>  you,  and  proved,  it  can  amount  to  no  itiore 
llian  this:  There  is  but  one  evidence,  whieh  by 
the  law  would  ii(»t  be  a  good  evidence  to  con- 
vict him  lit  iinoUjer  place:  and  therefore  I  da 
;ree  with  the  ^;entleinan  lb  at  Rjiake  under  the 
Uery,  that  this  is  a  very  extraordinary  case; 
one  witnessi  is  not  Kutficient  at  law  to  cou- 
biin^  and  the  taw  W(»nld  be  very  ditfui-ent 
of  I  am  tu  judge  according  to  my  own 
Bnion,  and  nut  by  the  rules  ^Tt'Siribed  by  the 
f  ;  but  thuu^h  tbi«  proceeding  is  not  stnelly 
girding  to  the  law  of  the  bntl^  yet  if  it  was 
Bh  au  extraordinary  case  that  refpnred  you 
[jdispeuat'  v^ith  those  farms  ^ud  come  to  this 
r^ordinary  mnnuer  ol  pvcH'et-ding ;  I  thiuk, 
*  my  own  part,  it  mi^;hi  be  supported  by  the 
»ity  of  it  I  for  it  is  impowihlr  that  it  should 
[olherwiv«  iu  practice.  Thus  when  the  go- 
Dfli*fitt  i«  dt  Hlake^  and  nothing  will  pre^t^'rve 
bat  the  breaking  thj  on^rh  the  settled  forms, 
flieathe  governiaenl  wilt  lireak  ibrough  ihern  : 
0ik»i  wh  ttever  rule  ynu  prescriJH.',  it  will  ;dwny» 
^Bu^i  S4K— There  is  a  very  exiraordinury 
^Be  and  that  was  ni  the  conspiracy  of  the 
^lOe  uf  Venice,  above  100  yaan  ago/l  lliixikj 


A.  D*  1696, 


[COO 


set  00  foot  by  the  Spaniiirds  :  Thea  the  state, 
to  get  the  nttole  mutt^^r  ottt,   protniseil  a  par> 
don  to  as  uutiiy  as  were  coiiccf  ue^l  in  it  -  and 
after  they  hml  pro  mi  sett  it,  and  tfeiiteil  with 
them  about    it,    they    ihiuight    it    necessary, 
t(jr  the  preservation    of  the  wb«de,    to  break 
their  fuith,  and  they  were  all  put   to  death. 
This  was  u|k»ii  point  of  preservalHui  ol  the  go* 
vernmeiii. — Hut  sir,  as  to  precede utn,  give  me 
leave  to  .say,  I  do  nut  give  that  authority  tu 
tbem,  unle^  I  know  all  the  springs  and  secret 
histories,  and  trausaclions  that  were  their  guide 
in  making  those  precedents  ;  and  us  to  prece* 
dentil  ttiiit  have  been  quoted,  when  the  parlia-» 
meut  has  declaretl  what  nas  treason,  and  w  bat 
was  not  treason,  or  have  declared  constructive 
treason,  they  may  he  grounded  upou  the  statute 
of  25  Ed.  3.  But  I  think  there  is  no  statute  upon 
which  tbcy  can  groutid  the  condemnaticm  of  a 
man  u|ion  one  witness, — In  the  case  of  my  lord 
t*traliord*  upon  constructive  trea*sfius,  it  wai 
there  said,  tliat  it  was  a  fire  that  had  tain  bid 
for  240  years,  and  that  it  never  broke  out  be- 
fore, but  to  consume  him  and  his  panterily.     Jt 
was  answered  by  Pym,  If  that  was  the  case^  it 
was  not  for  want  oi'  law  to  justify  »iich  a  pro- 
ceeding,   but  ull  that  time  had  not  produced 
inch  an  offender,— I  do  not  doubt,  but  if  any  one 
will  consider  the  late  conspiracy  ;  and  it  that  < 
was  the  question,  but  it  was  aa  extraordinary 
as  any  thiug  can  happen  ;  for  it  was  to  subject  I 
their  country  to  a  foreign  power,  which  is  very 
extraordinary,  and  several  persons  were  con- 
cerned in  it  r   But  there  is  <ma  extraordinary 
part  which  I  do  not  remember  tins  gentleman 
IS  accused  of;  and  that  is,  the  assassination. 
Treason  itself  is  a  very  extraordinary  crime| 
but  ^ive  me  leave  to  say,  that  extraordinary 
part  la  not  alledged  against  this  gentleman  | 
and  this  bill  does  not  seem  to  be  brought  in  fo^ 
that,  wherein  he  is  conceroed  in  comn^on  with  i 
some  others,  but  for  the  subsequent  matter  al- 
ledged In  the  bill.     This  bill  is  gmunded  noti 
much  upon  tbm  he  is  guilty,  as  a  great  maiij,  ^ 
raoie  are,  qa  upon  several  cireum^taucef  wbicb  i 
have    happened    to    nobody  else.      Give    m«  ! 
leave  to  uistauce  in  a  case,  now  in  my  head  (t  j 
beg  y^iur  pardon  tli*ii  I  ramble,  it  itVrom  tlic 
awe   I   have  U|ion   me  from  this  assembly),  i 
Catiline's  conspiracy  ;  and  if  that  w  as  our  case, 
no  doubt  there  would  be  another  sort  of  argu- 
ment tor  it;  titere  they  consulted  what  to  do' 
with  Cetliegus,and  the  other  conspirators:  b# 
was  at  the  head  of  so  army,  which  only  expect- 
ed his  orders  to  lay  Home  in  aiihes;  the  ques-^  ] 
tiou  was,  Whether  thev  should  l>reak  the  For- 
cian  law ;  and  for  the  safety  ol  the  senate  they, 
were  put  to  death  beft>re  the  asBemldy  rose.— 
Now  to  ot>me  to  this  pai  t  of  it :    Though  sir  J. 
F.  is  a  great  offentler,  yet  I  think  his  ca^e  is  not  I 
so  extraonltnary,  as  to  make  you  priKieed  upoi^  j 
this  hill,     J  do  lake  bis  living  or  dying  not  to 
Ije  of  that  consequence  as  this  biil  of  aiiainder^ 
I  know  not  how  he  comev  to  be  so  considerable  ] 
when  in  hold  ;  for  when  he  walked  about  towa, 
{  never  heard  he  was  led  red  or  regarded  at"  ^ 
tbst  lime. — But  to  came  to  the  alleipitioos  ie' 


691] 


8  WILLIAM  III.         Proeee£ngi  aganui  Sir  John  Fenwick^        [fiSK 


your  bill,  apon  which  they  are  to  gproond  your 
judfrmeDt :  The  first  part  is  a  iieir  conspi- 
racy, that  is,  foi'  intending^  to  create  a  jealousy 
between  the  kinjp:  and  these  noble  persons.  As 
to  them,  vou  hare  already  passed  a  rote  in 
their  Justification ;  and  I  think  their  actions 
may  justify  them  to  the  world,  aa  much  as  any 
vote  of  the  house  of  commons ;  bnt  whatever 
that  may  be,  I  think  it  was  a  foolish  (uece  of 
conspiracy,  as  well  as  an  iJI  one,  lor  one  when  he 
was  m  danger  of  being  honored  for  one  plot,  to 
venture  ujion  another:  and  I  thing,  there  was 
at  that  time  two  witnesses  to  bring  him  to  bia 
trial,  and  that  is  an  alleeation  in  the  bill.  And 
as  to  the  protracting  of  his  trials  it  is  natural, 
and  so  justifiable,  whether  innocent  or  no,  and 
what  every  body  attempts ;  and  nobody  can 
wonder  al  it ;  but  in  one  case  or  the  other  it 
can  be  no  sufficient  ground  to  attaint  him.— 
The  next  thing  that  is  said  iti,  that  he  hath 
been  the  occasion  of  the  withdrawing  of  the 
evidence.  Now  I  must  observe,  that  is  not 
aHedged  in  the  bill,  and  is  proved  but  by  hear- 
say :  But  suppose  it  was  true,  and  alleilged ;  if 
any  man  concemeil  in  treason  shall  endeavour, 
by  friends,  or  otherwise,  to  get  off  an  evidence, 
can  that  amount  to  that  which  is  designed  to 
be  punished  by  this  bill,  to  high-treason?  It 
is  the  part  of  those  that  are  intrusted  with  those 
matters,  to  be  in  expectation  of  such  practices. 
What  are  gaols  for,  but  to  keep  them  in  cus- 
tody ?  And  the  people  employed  in  those  bu- 
sinesses are  to  take  care  of  it.  Are  we  to  sup- 
ply a  defect  of  what  ouifht  to  have  been  done 
m  another  place  ? — So  that  I  do  say,  that  a 

Srecedent  in  an  extraonlinary  cuse  is  no  prece- 
ent  to  be  used  in  a  little  "^case.  It  may  be 
urged,  but  it  is  but  a  pretence,  when  you  have 
jxassed  this  bill,  which  is  the  record,  the  matter 
will  appear  no  otherwise  than  are  the  sw^f^es- 
tions  ot  your  bill.  A  man  hnth  as^iersed  great 
persons,  which  is  a  gfreat  fault  indeed,  (for  he 
IS  not  charpred  with  the  withdrawing  of  the  evi- 
dence) therefurc  attaint  him  upon  one  evidence. 
1  think  by  tliis  bill  you  will  open  a  door  for  a 
precedent  of  all  treasons  of  tliu  same  nature. 
Sir,  there  have  been  many  precedents  men- 
tione<l ;  I  will  trouble  you  with  none,  bccunse 
mo«t  gentlemen  have  read  the  argument  of  Mr. 
St.  John's  in  this  case.  I  must  confess,  unless 
there  was  that  necessity  as  is  pretended,  which 
I  do  not  see,  I  do  not  see  how  yon  can  justify 
pa&ingthis  bill  of  attaMider,  cither  by  the  law 
Of  God  or  man,  in  any  nation  allowed.  I  must 
confess,  I  have  nn  manner  of  concern  how  this 
question  goes;  what  i  have  said  is  more  to 
satisfy  my  own  jud^^mcnt,  than  work  upon 
other  |K'i>|>lc.  I  am  not  satisfied  there  is  that 
necessity  that  is  prt'tendf.'d ;  and  therefore  as 
my  jndjj^mrni  is  now  informed.  I  can't  give  my 
vote  for  c-oiuiiiiitin^  of  this  hill. 

.'Hr.  Smith.  Sir,  I  own  iinsolf  to  be  very 
unfit  to  speak  in  this  arcnment ;  but  since  I 
am  to  give  my  vote  in  a  matter  of  this  conse- 
«[iience,  I  he|^  leavu  to  give  my  rer'smi  why  I 
give  my  vote,  n^  I  intend  to  do.  1  know  *the 
matter  liefort  u«».  both  in  tin*  unti:re  of  the 


crime  and  punishment,  at  wdl  as  the  conse- 
quence of  it,  requires  a  very  ddibermte  oonri- 
deratron  ;  but,  at  the  same  time,  I  do  take  the 
hazard  and  danger  of  this  goTeminefit  to  be  a 
matter  of  great  comeqnenoe  toOd— Tboogh 
there  have  been  several  precedenti  instanoed 
in  relation  to  attainders ;  and  though  I  have 
obierfeil,  that  most  have  acknowlef^,  thit 
they  might  be  justified  upon  extnorduiary  >n- 
casions;  yet  when  they  h«vo  atsnted  thU, 
they  have  tobl  you,  they  were  upon  a  wrooe 
foundation,  aisd  so  were  laid  aside.  Now,  1 
think  it  no  great  matter  to  say,  that  those  it- 
tainders  that  were  made  in  raneoor  apon  ooo- 
tended  titles,  were  re\  ersed  when  the  opponle 
[Nirty  got  the  power,  no  more  than  if  any  ac- 
tion, be  it  never  so  justifiable,  should  be  reven- 
ed  when  king  James  comes  again,  which  1 
hope  will  never  be.  Is  it  any  argument,  tbft 
when  Hen.  4,  came  to  the  crov^n,  and  deJMieA 
king  nichard,  that  he  reversed  all  the  aUiii- 
ders  in  his  time?  There  might  be  resMt 
might  sway  with  persons  for  reveraiog  ptiti* 
cular  acta  of  parliament,  wliich  might  be  vciy 
good,  or  might  be  not  so,  tliere  was  tach  i 
change  of  government  at  that  time ;  bat  tliey 
take  notice,  it  was  made  a  particular  article 
against  Richard  3,  as  if  when  the  power  «ns 
come  to  other  hands,  they  would  not  have  de- 
posed him  if  they  had  not  had  that  arj         '~ 


Neither  do  I  take  that  argument  to  be  of  aiv 
weight,  That  attainders  have  been  rcvened, 
because  the  people  have  not  lieen  heard ;  wim 
this  gentleman  hath  had  as  full  a  heariag  is 
ever  any  person  had  upon  any  Dill  of  Attainder, 
or  impeachment  whatsoever ;  and  he  hath  bid 
the  advantage  of  counsel  in  this  case,  i^birh,lf 
bus  been  told  you,  was  excepted  out  of  tk 
late  act  of  parliament,  and  of  the  most  eWf 
couusel  too. — It  is  said  this  is  a  matter  of  oe 
great  consequence,  because  it  concerns  sir  J. 
F.'s  life  singly;  and  he  is  not  ihouglit  to  be 
so  considerable,  as  by  his  escape  to  nrii^  A* 
public  in  danger.  Now  it  hath  been  alwaii 
one  principle  1  have  laid  down,  that  if  a  pW 
be  discovered,  and  not  thoroughly  prosecoieil, 
it  strengthens  and  grows  upon  you,  and  tea  !• 
one  if  it  does  not  subvert  the  govcmnient-- 
Now,  God  be  thanked,  that  we  have  P"**"}*} 
the  design  upon  the  king's  |>erson,  and  scvcm 
have  belli  punished  for  it;  but  I  think  •» 
are  not  got  to  the  bottom  of  it,  and  that  we 
ought  to  provide  ag^ainst  it  in  a  mui^  otbfr 
manner.  Can  any  one  think  that  air  W«. 
Parky ns,  or  sir  Jolm  Freind,  and  the  rest  tbrt 
are  (Uscovcred,  were  the  only  |)eraoA8  conceii- 
al  in  this  conspiracy  ?  1  take  it,  that  theit 
have  been  much  greater  men  in  it ;  and  wbM 
I  see  such  a  struggle  both  to  eet  people  ool  a 
gaol,  and  send  people  out  of  the  way,  aad^M 
sirts  used  that  can  be,  I  must  suppose,  irtit 
such  extraordinary  courses  are  taken,  ill 
there  is  something  extraordinary  itin  MR 
done ;  and  I  would  not  have  men  by  bribtaff v 
witnesses  think  to  secure  themselves:  It  I 
been  used  as  an  argument  to  lessen  the  I 
that  tliii  was  a  little  after  the  act  of  I 


E; 


ty.    Qui  any  Ibingf  a^^^ravaie  a  thine;  nioref 
Ir,  these  ?ery  ar^tneuti*  tarn  aijain^t  liicin. 
We  4ikre  told  here,  tli&t  ne  itiiist  tiut  coui^ult  our 
own  jirifat*  iuilgmeuLi  in  the  uiatttr;  and  we 
are  told,  at  tbe  same  tinier  if  there  were  t^io 
witneasea  thjit  we  did  not  bt^lieve,  we  must 
not  find  Uini  guilty^     We  are  to)d  uFa  judgie, 
that  though  he  knew  a  (K;r«an  to  be  not  guilty, 
ytet  it  wai  a  com  ui  end  a  hi  c  action  in  him,  that 
■e  coodrm lied  the  man  :    But  that  hndi  been 
very   well  aoswered  already,  and  I  sh»U  not 
meddle  with  it  iinlher ;    <m!y  this  J   ii'iH  say, 
ibat  I  never  ^vi!|  m  any  case  be  a  juryman  or 
ftjudgef  where  the  convictions  ni'  my  uwn  con* 
•oieiice  «hnll  not  govern  me,   hut  an  evidence 
Climt  I  do  not  ht'lieve.     And  because  that  titory 
was  told  you,  I  will  tell  you  another,  ihail 
think  more  commendable:     And  that  was;    a 
lan  was  tried  for  a  rnurdt^,  and  lh<^re  was  |»o- 
Tlvc  evidence  ngHiust  him.     TUe  Jury  wAnt 
fetf  and  stayed  a   ffrt^at  while-     Tlu'rt;  wns 
«l«vefi  a^init 4)110  tor  iiuilin^  Uim  i^»ilty ;  but 
at  last  the  one  almost  atarved  tliem,  and  titey 
AfOOgbt  tbe  roan  in  Not  Guilty.     The  judg* 
flaol  for  the  gentleman,  and  di.*«iretl  to  know 
■lb  raaaoaa  tor  did^ring  with  the  rc$t:    And,  at 
^Klt   npon  assurance  that  nothing  shotdi  be 
^bneto  him,  Why*  says  he,  would  you  havi; 
Aie  find  the  man  j^yihy,  when  I  was  be  that 
kilted  the  oiun,  and  he  was  innocent  P    Then, 
•ir,  if  you  take  the  evidence  as  it  is;    I  (hiok, 
int,  here  ii  captain  Parter  ;    I  do  not  find  aoy 
body  excepts  to  him  ;    and  hia  i^vidt'tice  hath 
lHi«li  approved  ol  hy  sev^ritl  jurirs,  and  several 
per&ons  execute*!  upon  it,  and  nothing  m#ie- 
liai  bath  bt^eo  objected  ag^in^t  it*     I   will  not 
myt  "1^1*^^  ^ir  ^-  F'  hath  owned  a  g^rpat  deal  ol' 
thm  Uimseif ;    be  hath  given  i^very  bmly  salia- 
iacCioo  how  tiir  he  stands  g'uilty  in  hin  <i^unioii ; 
Imt  it  it»  brought  so  far  home,  thut  there  u«s 
«ir  J*  F/s  own  ietter  was  to  convey  him  abroad. 
Ifare  hath  been  atiera|kta  ujion  other  |ier«ona ; 
yofi  hear  what  hath  been  done  by  the  solicitor. 
They  «ay,  be  was  not  bis  f!oticit<ir  at  that  lime. 
Here  are  very  pre^uaut  circumstances.     One 
Eian  SiLid,  you  ovg^lit  not  to  make  use  of 
Dan'a  et id^ce  here ;    and  yet  he  ould 
t  of  erery  ibio^  to  dispara^  hitn;  for 
ba  coolil  tay,  there  were  three  jiositive  wit- 
■anca  against  Uira. — Now  wheti  it  ia  so  noto* 
liaaa  mmX  |iarties  there  are  for  king*  James, 
and  we  tlnd  persons  plotiinc;  in  every  paii  of 
Iba  kingdom  :    when  you  have  an  open  inva- 
•fan   before  you,  and  when  designs  are  laid 
agahnt  tbe  king^a  lil^  every  day :  if  this  be  not 
a  luaa  to  exert  an  extraordinary  power,  i  aub-^ 
mik  «i  to  jQu* 

Bur  Hd,  Temple,  Sir,  1  shall  not  trouble 
TOO  with  any  thing  that  bath  been  offered  lo- 
aaj.  That  winch  calls  me  up,  is  the  danger  of 
llMpfeoedent  you  art^  about  to  make,  and  the 
Mnneiita  tliat  have  been  ased  to  support  it ; 
UMi^  1  tbink,  are  more  dangerous  than  that. 
IflMlt^ODleBS  it  is  a  new  doctrine  to  me,  That 
tka  kwa  tbat  ore  made  by  the  jmrliaTnent,  are 
•a  be  no  rule  and  g^ide  to  this  house.  Sir, 
Iha  birtb-n|^|  we  bare  u  in  our  laws ;   aad  I 


did  ever  think  till  now,  that  the  laws  were  not 
only  made  for  Westminster  hall,  hut  for  all  tbf 
subjects  of  England ;  and  espermlly,  that  they 
were  to  he  a  rule  to  tiie  parliament  that  made 
them,  till  they  should  think  tit  to  alter  them  — 
Here  have  been  great  mistakes  between   the 
power  ot^  parliament  and  ibe  jurii^dictton  of  it: 
ibe  {K)wrr  of  parliament  is  to  make  any  law^ 
hut  the  juri^iciion  of  |uiriiament  is  to  govern 
itself  by  the  law ;  and  this,  give  me  leave  to 
say  it  to  you,  hath  Veea  ibe  opinion  of  all  yonr 
ancestors,   and   the  method   tliey  erer   aaed. 
Shall  we  make  a  law  here  in  a  (particular  cosa 
against  all  the  laws  otXnglaod  ?  ft  is*  ultimum 
remedium  et  pessimum  ;*  yon  may  mte  it  in  a 
ca«e  of  ubsiilutenecess^ity,  out  otherwise  it  may 
he  a   prece<lent   to   overturn  all, — There  are 
several  things  iu  tiiakin;^  this  precedent,  that 
overthrow  al;  the  laws  tmd  liberties  of  Eng- 
luid:    tirst,  you  are  pas»in|r  judgment  upon  a 
man  u|}on  one  witnes?;.     I  have  heani  a  strange 
debate  to-day,  that  there  was  but  one  witness 
ill  treason^  before  the  statute  of  Edw.  0.      Yoa 
know,  that  in  ca'se  of  treason,  there  was  by 
the  common  law  required  two  witnesses:   for 
if  there  was  hut  one,  the  party  might  demand 
trial  by  battle,  and  thut  was  tbe  common  law 
of  England. — There  is  another  thing  that  is  ex* 
traonimary  :    here  you  are  going  to  pass  a  a 
act  without  any  trial  at  all :    for  to  say  this  it 
a  triul  before  \ou,  the  commons,  is  a  mistakefl 
yoii  never  dirf  assume  a  jmistliclion  of  trytn#] 
nny  pc-rson,  nor  cnn  you:    you  may  for  you" 
own  ir.tummtion  hear  what  can  be  <>4)ered,  bu 
it  [^  not  a  trial,  where  witneiisesi  are  not  up 
their  ouihs.     There  ts  no  manner  of  power  i 
jurisdiction  can  be  pretended  for  you  to  try^'l 
iu  that  is  a  t>ec4tnd  thin^'*.     All  ibe  bills  of  al^ji 
tuindoryou  bafc  ha«l,  liavebecn  in  three  ( 
[  where  the  persons  have  been  either  dead^  i 
flefl,  or  have  been  without  the  compass  of  thfl 
law,  and  could  iKit  lie  brought  to  answer :    and*^ 
you  bare   had   snme  bills  of  atttiioder  ulVef'^ 
trials  had   in  Westroinslet-hall  ^    but  never  a| 
one  o^' those  have  been  called  triaL«,  but  thejd 
h  Live  been  generally  rev erseil ;  and  for  whntlJ 
They  tell  you,  that  they  have  been  reversed  by  I 
one  party,'  and  another  iiarty :    it  was  in  tbt'i 
same  king's  reign,  in  Rich.  9's  reign,  they  wera^ 
forward  and  backward,  as  the  court  party  or  (^ 
the  country  party  were  up[»erroost. — There  ii  < 
another  thing  in  this,  that  1  think  of  a  mosli 
dangerous  conaeqnence  ;  and  that  i»,  that  yott  ^ 
are  for  making  way,  for  what  I  know,  by  thisl 
precedent,  for  a  rack,  for  so  it  is  said;  this  it 
to  force  a  man  to  be  an  evidence.     Why,  giva 
me  leave  to  say  to  you,  it  is  a  new  way  not 
known  in  England,  that  you  will  hang  a  man 
unless  he  \^  il)  confess  or  give  evidence ;   but  I 
think  it  is  something  more  than  a  rack,  for  hero  ^ 
is  hanging,  drawing  and  quartering  in  the  case  5 
and  I  do  not  think  this  proi^eediug  will  maka 
him  an  evidence  with  any  credit  or  repaiatian 
to  this  bouse,  nor  am  I  of  ojnaion,  that  he  can 
diaoover  any  thing  worth  such  a  preoedent.^^ 
Now  give  me  leave  10  say  one  thing  as  to  tha 
juriidiclioD   of  parliament.     It  batb 


60S] 


8WILUAM  HL 


iiare  lor  current,  Ihat  the  pariUment  hatb  a 
power  to  dedara  what  Ibey  will  treaioo,  tkougii 
ao  by  no  other  law ;    it  is  the  greatest  mistake 
in  the  world:    I  heard  a  fc^^ni  debate  D|ion 
thia,  u{MHi  my  lord  Clarendon's  Case ;  and  it  ia 
plain»  that  ataiule  relatea  only  to  casea  bronght 
mm  ttTertor  courts  to  parliament;  foritsajra, 
Ifattt  if  any  other  case  supposed  treasoui  which 
is  not  in  that  statute  specined,  doth  happen  be- 
Ibce  any  justices,  the  justices  shall  tarry,  with- 
out going  to  judgment  of  the  treasiin,  till  the 
caiiae  be  shewed  and  declared  before  the  king 
Mid  his  parliament,  whether   it  ought  to  he 
judged  treason,  or  other  fekmy  ?  I  speak  to  the 
jurisdiction   that  the  parliament  has  by  that 
atatute :   it  is,  that  if  the  like  treaaon,  for  at 
common  law  there  was  a  great  many  treasons, 
ahootd  fall  out,  and  be  bronght  before  interior 
csourts,  of  which  they  doubted,  -whether  they 
were  treasons  or  no?    then  they  should  Iks 
brought  before  ihe  parliament,  to  judge  whe- 
ther Uiey  were  treasons  or  felony :    Bui  how 
■hall  they  judge  ?  By  the  laws  iu  being.    Aud 
who  is  this  judgment  in  ?  Not  in  the  parliament 
by  bill,  but  only  in  the  house  of  lords :  Much 
leas  is  it,  that  you  may  judge  that  to  be  trea- 
aon in  this  house,  that  was  not  so  by  the  com- 
mon law  before.    So  that,  give  me  leave  to 
Bay,  therefote  there  is  no  such  power  resened 
to  the  parliament,  to  declare  any  thing  treason 
that  is  not  treason  before.^1  must  say,  it  is  of 
the  last  consequence,  that  we  should  make  a 
law  in  a  particular  case,  to  take  away  from 
him  all  the  liberty  that  belongs  to  a  sul»jeot. 
Home  gentlemen  talk  of  the  great  lavour  he 
hath  had  at  this  bar:    1   know   not  what  to 
think  of  it ;  1  am  sure  you  allowed  the  kinj^^s 
counsel  such  privileges  as  I  never  saw  before, 
and  that  was,  to  offer  that  for  evidence  that 
every  body  acknowledged  was  not  so ;  and  I  do 
not  think  any  body  would  think  it  a  grejit  fa- 
vour to  be  heanl  iu  this  mauntr,  especially  tu 
things  not  in  the  bill.— It  is  said,  every  man 
must  ifo  according  to  his  private  opinion,  it  is 
not  said  judg[ment  neither ;  the  instanceei  that 
have  been  given  are  of  a  (jnite  different  nature : 
A  man  is  not  to  give  his  judgment  against  his 
knowledge  :    I  think  that  judge  ou^ht  rather 
not  to  have  tried  the  cause  at  all ;  but  if  we  sit 
here  to  judge,  \se  sit  to  judge  him  acconling 
to  the  law  ot  £ngland,  and  then  we  must  judge 
him  according  to  legal  proof.      Will  you  ait 
upon  a  judgment  that  is  not  only  not  tied  to 
the  rules  of  Westminster- hall,   but  is  not  tied 
to  the  Uws  of  the  land  :    and  attaint  a  man 
without  a  legal  trial,  without  legal  evidence, 
and  upon  one  wimess,  when  the  law  says,  you 
shall  have  two ;  and  after  all,  say  it  is  a  reatmn- 
able  proceeding?    1    know  not  how  it  came 
about,  that  the  act  of  grace  was  iiassed  ;    it  did 
not  rise  from  this  house;    If  it  hath  any  ill 
consequence,  let  them  answer  for  it  that  were 
the  cause  of  it. — ^They  say  the  government  is 
at  stake,  bccauae  the  plot  hath  not  been  found 
out  to  the  bottom.     That  ia  not  onr  fault : 
Tliis  man  hath  been  Ions'  enough  in  custody  ;  if 
i.^  U-.1.  ._r^_j     ■..   ^^  government,  1  a 


lie  bath  trifled  with 


Proaedinff  agai$ut  Sir  John  Fervanckf         [I 

sorry  he  hath  imposed  upon  them  ;  bat  if  i 
so,  1  think  there  is  nothing  in  this  cast 
that  omsequence,  as  to  make  you  make 
precedent. 

Sir  Wm.  Siricklaud.  Mr.  Speaker,  I  « 
not  make  use  of  any  ill  precedent:  And  y 
the  present  occasion,  and  the  neoeasity  ot' 
kingdom  required  it,  I  would  maiie  a  pr 
dent.  1  am  glad  tlie  several  ill  precedents 
avoided  in  this  case,  and  1  would  lie  bol 
say,  whether  this  gentlemen  auffera  or  no 
man  can  say  that  he  hatb  been  bared  to  d 
by  counsel. — Sir,  1  shoukl  be  aa  tende 
point  of  blood  as  any  man  ;  but  I  do  thiol 
the  safety  of  the  king  and  kingdom  is  cone 
ed,  it  is  not  one  private  man  that  we  i 
have  respect  for,  so  as  to  let  the  public  si 
by  it  1  do  think,  that  upon  this  occi 
there  have  so  extraonlinary  things  ha|i|K 
aa  have  hardly  happened  in  former  ages  ; 
oue  who  is  known  to  be  in  a  conspiracy 
liringover  a  French  |)ower  witha  Piipisb  ai 
tu  destroy  our  lives  and  liberties,  alter  bi  i 
haa  been  deferred  by  his  equivocatioas 
pretences  to  make  a  great  diacovery  ;  fihr 
comes  to  make  it  out,  he  accuses  the  be 
your  friends ;  and  this  is  only  an  artitice  U 
time  till  they  could  get  the  evidence  out  (4 
wav ;  think,  if  you  do  not  take  notice  i 
and  let  the  legislative  supply  that  deht 
may  be  of  ill  constKfuence,  aud  may  enooa 
any  one  to  commit  the  worst  of  mischieft, ' 
hopes,  that  if  they  can  iret  the  evidence  a 
the  way,  they  shall  go  unpnniahed. 

^ir  Fr.  Winnington.  1  shall  trouliie 
hut  a  little  wliilo,  ii  being  late  ;  but  gentli 
sa\  ing  it  is  an  extratNrdiuary  case,  1  ^liall 
my  reasons  why  this  hill  ought  uut  to  be  i 
nutted  ;  for  every  menther  here  now  isaji 
and  he  must  take  the  Idood  of  this  gcuth 
upon  him  in  judgment,  either  to  condeni 
acquit  him  ;  and  I  must  confess,  I  have 
much  adinire<l,  to  hear  that  doctrine  presi 
that  every  man,  as  he  is  satisfied  in  his  ui 
conscience,  ought  to  judge  this  man  guilty 
desire  to  know  by  what  autliority  v^e  sit  I 
We  sit  here  anil  have  a  legislative  autb( 
and  it  is  by  the  king's  command  v^e  come 
ther  ;  but  at  this  time  we  are  jutUcially  t 
this  man  for  his  life ;  and  therefore  1  b« 
conceive,  that  we  ought  to  proceed  *  accn 
*  allegata  et  probata  ;*  and  tor  any  maa 
private  opinion  to  aa^^  he  is  guilty,  he  do 
act  by  the  commisaion  he  sits  here.  1 
tell  you  of  the  Lancashire  Plot,  or  that  i 
shall  not  be  chosen  hereafter,  seems  to  b 
gument  to  enflame,  but  nothing  to  tbeqac 
— Now,  sir,  I  will  humbly  omr  to  ywu 
si<leration,  and  the  judgment  of  the  I 
1  think  we  cannot  judicially 
man,  for  I  think  the  question  of 
to  he  the  aame  as  of  bis  life  and 
agree  u|K»n  all  the  precedents  good  « 
that  have  been  cited,  and  doubt  uoc  h«t  i 
traordinary  cases,  it  is  m  the  li'girfrffi  i 
of  the  parliament  to  look  after  tbafM! 

"    '   *s* 


am 


k'mgdom ;   but  1  shall  ofier  why 


upon  a  Bill  ofAUainden 


A.  J>.  1696. 


[fiSfti 


mme  to  that  case. — 1  humbly  cxincdve  in  this 
&mmf  fur  i  **ill  uot  efie^k  tn  the  ruJes  of  We«|- 
MttMlfrhaMt  hut  n|iot»  tht*  ntrltt  tvAsnu  ut  ihe 
JMliff  ;  for  if  it  be  rex^jon  in  WestmiusUrhiiVl, 
^ktmv  Im  w%  ht-rp,  aiitl  ihal  ou^tit  to  overcome 
^kiythiti;^;  But  wlifrea^  ^ni1emt!Q  say  you 
have  onr  witiiesii,  I  do  uot  appnrhend  ym  have 
uue  iffHid  MrirnesMf  ami  t  will  g-ive  you' my  rea- 
ioii  Ibr  it,  for  ytni  must  take  rapl.  Porter  upon 
(lis  p«rt»te,  aiirt  i.H>nai<ler  what  he  says  upon  his 
wonif  au«t  then  I  do  appeal,  if  you  take  what 
be  says  upon  his  «  ord,  *i  lielher  e»er  tt»ey  did 
koovv  that  a  bill  of  atlaiodcr  proceeded  ftj^ainat 
any  man  upon  bare  affirtimtiou  P  No  ;  in  that 
c^ne  you  ihoutd  hare  turneil  it  into  aoimpe^'tcli- 
ment*  if  the  thiiijf  looked  prolmhle,  and   then 

Ehad  the  wrtnesii  iipfui  o&tli  *  and  the  aU' 
I  method  of  hilU  of  atlaincier  used  to  Ije 
by  ihe  im^teachment  of  the  person,  and 
Itieo  tu  I  urn  it  mto  a  hiU  of  uttaisider. — Then 
me  what  it  i»  that  is  insistetl  on  by  the  king-V 

Sti»rl,  and  recited  in  the  bill,  that  there  was 
ill  i»f  indictment  found  by  the  oath  i>f  two 
Mssses,  thiit  is,  Porter  and  Good  man :  Un- 
iler  favour^  I  ihitik  tbey  are  ni»t  In  be  connted 
t  m  the  jHimt ;  and  I  otfer  this  as  a 
ftn*!^  I  Ihinkf  it  is  natural  justice  in  all 
«Biirls  of  the  worlds  that  if  a  man  be  accused 
10  a  malefactor,  he  hatb  the  liberty  to  cross- 
^■imtne  the  person  that  aecu$t?f»  bim.     Now 
^m  fcry  Weil  koow^  ihnt  in  ca«e  of  hills  of  in- 
^■ifneut,  »  ben  they  are  touud  by  the  gfratid- 
^M,  they  never  admit   the   prifioner   to    put 
Hbas-questions,  Itfcnuse  the  bill  of  indictment 
ii  but  Che  ac^usuiiun  ;  and  if  an  accunation  be 
«WMigh,  who  can  be  innoceot  ?  Why^  then,  if  il 
Mk  so,  then  this  uatb    thai  was  ^iven  to  the 
^^ti'Ujury^  is  not  sucb  an  oath  upon  u  hich  you 
«ao  put  auch  a  value. — Tlieu,  8ir,  ^u  bithe 
paper  of  Giiodmoo,  which  you  would  read,  and 
eOfisidrr  the  vatidily  of  that;  Goodman  beingf 
now  absent,  the  prifconer  hath  no  oppvrtimity 
19 croii- examine  biiu  ;  and  1  beieecb  the  hotisfl 
In  e^maidet*  i be  ill  consequence  of  it:     Any  mi 
oiater  of  state  may  come  and  g-et  an  examt* 
mtioo  before  a  Justice  of  [»eace,  or  aecretary  of 
MBte*  ami  the  man  is  conveyed  away,  and  a 
bill  of  tttiaioder  is  clapped  upon  his  back,  aod 
lliia  aball  be  read  as  eviil^nce  a^inst  him  :  He 
b  but  half  a  witue«a,  and  a  witness  u^iou  an 
4WCiiiiation,  ihU  upon  a  trial. — Then  come  to  sir 
^hbii  Frnwick'ii  particular  case  ;  sir  J,  F.  in  in- 
^ketl,  issue  is  joined,  and  be  hath  Dotice  of  his 
vinl »  »ii«4  «ine  of  the  witnesses  (foca  away,  no 
mma  on  14*11  upon  what  account  be  went ;  I 
itmj  believe  why,  in  my  private  opinion,  but 
ibM  if  M>i  our  judicial  kitou  led^ :  Then  tf  that 
be  aOt  wa%  it  e%er  known,  thai  when  aoy  man 
wi«  imlkncd,  and    issue  joined,    because   his 
ttrittl  W9M  defrned,  therefore  a  bill  of  aiiaioiler 
m0^  be  broui^ht  a^imthim?  LI e re  u re  plots 
Hgiimit  the  i^ovemnjeot,  and  it  may  be  tbrty 
■my  be  taken  u|i  for  it ;  and  as  to  twenty^  there 
■lay  be  two  witnc^isef,   and   the  oiliers  may 
kave  llie  ^ood  luck  to  hare  but  a  single  viitness 
1  ibem  \  will  you  bare  acts  of  attainder 
;  ftU  Ihe  real  f  If  this  bid  been  an  exlra* 
3 


ordinary  case,  wherein   the   gorernment  had. 

been  particularly  concerned,  it  mi;ifht  haven  | 
weighed  with  you;  fin-  no  man  can  shew  me 
any  precedent  uf  a  hdl  of  attainder,  but  wheio 
there  was  open  act  of  hoMtliiy>  or  men  ol  ijreat.  * 
relation  and  power  were  coocerneil  to  subvert 
the  government.  But  what  i^  «ir  J .  F.*t  >raae  ?♦*! 
He  18  in  custody,  and  the  plot  m  deieclod  ;  if:  I 
he  was  runaway,  you  miuhtsttll  suppose  he 
was  plottinii^  against  the  govenimeni,  because^ 
be  was  fleil  from  justice.  Gentleuicn  say  tbfh 
^oiernmcDt  in  concerned  ;  so  it  is  io  every  fe* 
k»ny  and  iiartieidar  ii'ea*on;  but  must  there 
therefore  he  a  hill  of  uttaiuder  to  punish  it  ? 
When  there  is  a  M  of  atiainder,  u  must  be 
fit>m  ao  immediate  danger  thui  tlirtMitens  the 
government  eKtablisheiL  liidt  such  a  luiiu  is  at- 
tainted. Hut  1  do  not  ^ue  that  sir  J.  F.  hatll 
any  of  these  circuntstances  All  men  agree, 
Thntthis  is  an  extraordinwrv  way  td' proceed* 
ii*g:  Thin  the  quei^tion  j*i,  \Vhfiber  sir  J,  F-'« 
case  he  fxtraoedinaiy  i'  or,  W  liplhtr  he  be  • 
more  than  a  f^ommoo  malefactor  that  is  in 
wicked  conspiracy  ?  I  do  not  sec  that  this  case 
of  sir  J  F/ats  m*  extraordinary,  that  if  he  be 
not  hanged,  the  government  mu$»t  tail. — And, 
ii.tid«^  favour,  a  prect-deut,  when  it  is  once 
made,  1  know  noi  uhat  time  may  lu'odtice 
from  it:  It  may  be,  after  the  death  of  Sus  ma* 
jeaty,  that  came  u*  restore  our  liberties,  ue  njay 
haf  e  wicked  members,  and  m«rmben»  cbo«efi 
as  lu  Hen.  6>h*s  time.  It  mny  be  the  con- 
dition of  every  subject  iu  England.  The  powec 
of  piHt^mrtil  we  must  gnvero  by  rea5<on  and 
com 1 1 »un  justice  ;  and  if  there  be  noi  so  urgeul  i 
necessity  to  use  tbu*  extra  or  «lin«ry  re»inHlj,  be- 
cause it  may  be  dangerous  to  poileriiy,  tJiere* 
fore  I  am  iigainst  this  bill. 

8i»*  Tho.  Ltttlt.fon,     The  worthy  gentleman 
took    notice,    that    the   Lfloc-iiihire  PAoi,    tnd 
stime  tvords  1  used,  were  used  t^uiy  u*  ind^mi^  |  , 
1  can't  ao  welt  gue«sat  his  tlurugUts.  but  1  have  ^ 
lieard  liim  streral   times    bring    \\\»  wite  and  , 
children  into  his  speech*^,  to  no  (lurpw^e  at  alL 

Sir  Fr.  Winmnfiton,  I  liave  a  wilt?  and 
elii'di  en,  and  that  gentleinau  iiooe  ;  Uierelore  E 
think  I  may  make  use  of  ihatcxpr  ssion. 

8ir  Thti.  Seymour,     Mr  Kpeaker,  I  have  at- 
tended your  debate  with  the  b*^i  aU(*nlion  1 
cjm  ;  and  1  liuve  beard  a  great  manv  ai-MlltDentl^ 
and  some  very  wild   out^  loo.     t  hope,  how 
frig'tilfnl  ?w}ever  thio|;N  h'»*e  Iwt'Ti  opnuetU  they 
will   not   leatl  your  undristauilmg  inii   of  the  i 
methods  and  rule»  of  justice.     I  will  not  take 
U|K»n  me  to  (ell  you,  tUiut  is  nolhuig  to  the  ] 
qtn^srion,  as,  that  treason  i^  a  ^ery  givai  ctime^  J 
or,  thai  the  parliuini.nt  hath   an   mdHHindeil  of'i 
unlimited  prnier,  and  «tre  out  tied   m  the  ruteej 
of  Wciilmiiisrer  liall;  I  think  that  m  no  port  ot| 
the  suliject  metier  l»efi» re  jdu. — Thaiuoihing] 
bounds  or  can   hoiit  the  patliuineut,   is  what  I 
every  hotly  doe«  a  Imit ;  hut  il  is  the  right  ap-»  I 
pliration  of  that  pn^rer  \i  Inch  is  now  to  l>e  uoiiiti 
hideiedof:    Fur  yni  may  judife  the  prisoner,  [ 
and  i»thers  will  |ud;:e  you.     Toe  norld  wi||J 
judge  you,  if  you  do  not   apply  that  power  ' 
aright. — For  tny  part,  I  sbill  avoid  as  much  as 


8WILLIAiM 


I 


CM)  be,  Uie  saving  i>f  any  tWm^  that  hath  been 
•aid ;  and  tlierelbre  I  hope  y<m  will  belierp 
that  my  <lis<j!<iurse  mitfit  be  very  short :  But 
Uml  which  doe*  inov«  me  in  llm  question,  b 
in  flbort  tbii,  that  I  iln  not  give  oiv  juri<riiient 
la  C!Ontlemn  any  man  otherwise  dmii  Ui«  la«v 
directs  haw,  unil  upon  whint  term*  1  miMt^Te 
it.  ti*  llic  Uw  hath  saul,  fhat  Ijeason  is  not 
to  be  IreaHon,  tintcss  ii  he  proved  bv  two  wvif. 
H^  I  fim  nev«T  loyfiic  my  judgrnentio  that 
e,  when  theie  a^»jM»rs  heil  one, — And  ibis  I 
take  to  k'  the  state  of  the  case^  not  lo  enter 
into  inuftttr^  ol'  prec^nlent  of  attainders  ;  IWr 
ihme  are  only  mi^taivces  of  fo  many  facts  that 
hwre  been  done.  And  io  all  those  instances 
that  have  been  iircr^d  and  qvioled,  when  liraes 
have  been  seitat«*  and  cjuiet,  iimrks  have  bet?D 
put  upon  them,  os  was  hiutHl  by  a  j^cntleman 
that  spake  very  inj^eniously  ut>on  this  Btit»ject 
at  the  be^iuning  of  this  debate  ^  I  say,  marks 
have  been  put  upon  tliein  for  you  to  aVoid,  hut 
not  to  imitate,  J  take  it,  that* the  law  hath  de- 
tmrtnined  that  there  shii!l  be  two  witnesses  to 
Ihe  pftiof  of  treason,  and  there  is  no  ti^ason 
that  hath  not  two  witnesses  to  it, — There  if*  but 
^nt  attainder  that  wc  nieet  wiiItsI  in  sacred 
bialory  and  ttiat  h  the  attainder  of  Naboth  ; 
lie  was  aitftinted,  and  we  know  what  inducec) 
that  attainder  ;  be  had  nothing  to  object  as  to 
the  forinatity  of  the  procecihng^^  there  was  set 
op  tfatn^t  h'im  :  And  tlioui;h  Jezabel's  letter 
IimI  oisposed  tbe  rulers  to  deal  by  him  a»  they 
<lid|  yet  there  were  two  witnesses  that  did  an- 
|sear  against  him.— I  take  i%  that  two  wit- 
nesses are  rt^iuisite  for  the  knouled)fe  of  the 
truth,  that  you  may  make  a  right  judgrnient 
whether  they  swear  right  or  no,  I  will  g-ive 
you  but  one  small  instance  more  :  I  mnst  tell 
j^ou,  Susannah  had  Itocu  but  in  a  Ixul  condi- 
tion, if  one  witness  or  circuinftanlial  evidence 
would  hnire  made  her  fr«dty,— A  (fentlenum 
liere  says,  it  b  Apocrypha  :*  bnt  that  which 
w^i^ha  \*ii!i  me  is,  that  there  mt»y  be  inconve- 
Qiences  on  one  side,  and  there  are  no  inconve- 
niences on  the  other.  1  know  not  wb:)t  may 
be  the  cousefpienre  of  this  preicilent,  nor 
w  here  it  may  brinn;'  you :  I  know  the  conse- 
quence, if  ilr  J.  F.  be  not  eitecuted  upon  a  bill 
of  attainder  1  for  noboily  wiil  beh^ive  there  is  a 
neeefl.<:tty  for  thi«i  cxiruordinnry  remedy  to  be 
appli«  d  frn  an  otf'rnce,  a  year  anil  a  IihU' after  h« 
balh  been  indri'it*d  and*  arraiy-ncd  for  it,  and 
they  mii'ht  ba»e  proceedeil  tt>  his  trial ;  and  f 
know  nor  Hbelh*T  it  i»  his  fmdt  that  they  did 
not ;  for  it  was  not  in  his  power  to  present  it : 
and  if  you,  upon  every  occasion,  come  to  sup- 
ply the  ddeci^  of  them  that  are  remiss  in  the 
(roreromrot,  it  will  make  them  more  so.— As 
to  the  matter  of  prcf^edtni^  ;  Why,  it  may  f<ill 
out,  that  by  thi»  precfNient  an  innocent  man 
may  be  punished,  and  then  we  that  make  thiA 
precedent  are  guilty  of  his  blood  ;  and  if  he 
snflFer  never  so  remotely,  ii  will  be  i^qnirpd  of 
iifi,  if  they  pri>ceiHl  from'thin  preiedtnt.  Nnw, 
if  sir  J,  r,  be  not  executed,  uidesa  in  a  legal 
way,  what  is  the  ct»iise«ink:nce  ol  that  ?  Is  it 
thai  «ir  J,  F.  shall  ^^  unpunished  f    Though 


Prac0B&igi  mgemst  Sir  J^hn  Femwkl\         [TOO] 

tfaev  are  deprited  of  one  evidenec*  that  woi 
make  it  tre«9on,  be  may  Iks  pcmiahed  fur  a 
demeanor,  and  iniphaoned  tor  his  Iffit ;  aad 
had  much  ratlier  be  did  laniriii«ih  in  that 
tioii,  and  I  am  aore  it ii^  ni  >  ! «tr  you*  It 

uu  in oon%'etii<iii€y  QUI  ariKi  ^     -^y  {  *«**^ 

take  it  tint  when  those  tbiit   ^re  «Mir 
disptUe  which  is  the  way,  wc  are  Uf  tnki 
whuii  i*^t.— The  learn-  '»(  ' 

ed,  ^i  i>  matter,  as  no^ 

upon  sir  ,t .  r  .  he  trsason  ;  I  h  tli  not  Ukc 
me  to  determine  it ;  tliey  drfler  about  it : 
when  Uiey  cannot  dettmiine  it,  will  f  < 
question  deUnuine  it  absolutely  ? — \j 
wliole,  there  hath  been  j*u  much  mid 
counsel  fur  the  prisoner,  and  s'l  little 
tl»e  cunnsel  ai^tUMt  liim,  andsu  few  w.  _ 
ur^ed  against  him,  that  I  tnusl  sfilJ  retai&tW 
opinion  J  had.  that  there  is  not  evHli«ei 
enou|;^h  for  you  to  proceed  u^ion  this  biM  ol* at- 
tainder. 

Mr.  Boicawerir  Sir,  {  desire  to  give  mf 
i^ea^ons  for  my  opinion  in  this  matter.  I  bsri 
DO  personal  disigust  at^inst  Ur  J.  F.  ThegrM 
argument  ^r  sir  i.  F.  against  this  biU  ts,  Ibt 
this  is  an  extraordinary  proceetL  >  '  t Iimv- 

foreshouhl  beagntostatiextrao^  noo; 

and  iu  the  next  place,  tfiat  it  •>  ^^^nui^i  lb* 
rules  of  law.  The  rule  of  tlie  law  ia/thaltberi 
must  be  two  1i«in^  witnesses  :  ai^  to  that 
ler,  g^eutlemen  generally  a^ree,  tliat  it  is 
the  law  of  parliament  to  attaint  |<NipJe 
oi  attainder ;  but  they  say  they  hut e  bean 


I 


mi&apptied  ;  whicli  I  do  easily,  beheve,  I 
some  nave  been  attaintetf,  and  liave 
heard;     and  some   have  lieeu  in  tum< 
times  :  bat  this  gentleman  hath  had  a  fair  m 
and  a  debate  in  this  bouse;    tiut  f  woald   liiia 
know*  thonf^i  tliey  confess  tiilU  ttf  attaii 
may  lie,  bow  it  ean  possibly  be,  if  the  law_ 
at  the  bur  say  true,  that  it  must  be  uponi 
and  ymi  *^iveno  oath  Y    To  say  il  may  ' 
the  houMe  of  lords ;     under  favour,  1 
that  a  hit  I  Ajvuinst  a  commoner  cannot 
the  ImiJ^  uf  lords.     And  if  you  catiitol 
witnesses  ii|Hin  oath,  yon  loust  have  as 
eviilence  as  the  nature  of  the  thiu^  will  aflbfi 
that  i«,  yuM  must  have  witnesses  to  coo?iiot 
}our  oonscieiices  in  the  things;    for  if  all  thia 
threat  assemblv  are  satisfied  in  their  con*«ci 
that  ho  is  gniUy  of  ini  iting  an  army  of  Fr 
to  come  intii  England,  I  am  a»t<>^  •  ^  t' 

that  you  shonld  not  pass  thi«  h  i 

I  think,  as  to  this  witness,   Portef,  tney 
not  endeavoured  to  blemish  htm  ;     but 
argument  sei-ms  to  run  more  npnn  Goodi 
not  being  present.     I  would  know,  if  tliere  ara^ 
two   wiiueiseii,  snd  I  do  not  believe  them 
my  conscience^  whether  I  can  pass  ihfs  bill  f  J 
But  f  a|»peal  in  this   case  res  iput  loquii 
the  ibinj;  is  so  phiw.     How  many  have 
attaitilid  and  sutfered  for  the  samecrimi 
have  nckoiiwledg^  sir  John  Fen  wick  to  Itl^ 
been  present  I  There  were  several  membefa 
the  house  sent  toei&amine  sir  John  Frein^ 
sir  VV.   Parkyoa  in  Newgate^  and  they 
sent  with  this  ioteatioo,  that  the  house' 


)1J 


upon  a  BUI  of  Atlaviikr, 


tercetle  with  tbe  king  for  a  purdon  for  them, 
they  discovered  tlie  full  of  tlie  plot  (it  was 
it  tli«  death  of  sir  W.  Parfcynsand  sir  John 
reind  that  waa  aimed  at,  but  the  preservation 
the  public) ;  and  vrhen  they  vrerc  examined, 
ley  did  ackuomied^fe,  that  they  were  privy  to 
le  calliiij;  in  of  the  French,  and  that  air'W. 
^yns  was  to  have  a  troop  of  hone ;  there 
as  to  be  2,000  liorse :  but  he  would  not  re- 
feni  his  own  life  with  the  blood  of  others, 
kow  I  do  Uke  it,  that  there  is  evidence  against 
ir  J.  F.  sufficient,  in  a  parliamentary  way,  to 
ittoiot  him.— The  gentleman  says,  the  con- 
ic^upiice  of  throwing  out  th»  bill  would  be 
wiliintr,  and  that  sir  J.  F.  is  a  little  man :  I 
igree  he  is,  but  ii  is  the  consequence  of  bring- 
m  ID  a  French  army  that  is  to  be  considered. 
Would  you  pave  the  way  for  them  to  come 
over,  ind  rn^e  their  entrance  easy  ?  I  hope 
the  people  of  England  are  concerned  in  the 
tasty  as  well  as  their  wifes  and  children.  If 
\<n  let  hiiu  go,  what  will  be  said  P  1  have  not 
Lianl  one  say,  that  he  believes  he  is  not  guilty  ; 
there  is  none  but  think  him  gnihy ;  and  yet 
irill  you  let  him  escape?  What  encouragement 
vili  tbi«  b«f  to  your  enemies  ?  He  hath  not  de- 
DMil  till.'  matter  himself:  navi  he  hath  not 
hnNigbt  one  gentleman  to  vindicate  him,  that 
heisK  wan  of  a  hehaTiour  not  to  be  believed 
ta  be  ifuilty  of  such  a  thing,  which  was  done  in 
other  trials.  I  desire  you  would  consider  what 
the  French  king  said  of  his  brother  king  James ; 
Wvieoald  he  think  to  bring  innopery  witlia 
frelatant  army  ?  1  am  sure  the  bnnguig  in  of 
iFreoch  army  must  be  for  the  destruction  of 
^  people  of  England,  and  the  protestant  re- 
Ifioa,  and  will  bring  your  people  to  go  in 
^en  shoes.  It  is  the  example  of  this  thing 
79B  sre  to  consider.  It  was  said  at  the  destruc- 
tas  of  Carthage,  that  the  commonwealth  was 
>tn)-8  to  be  minded.  I  think  you  ought  always 
h  he  mindful  for  the  |ireservatk>n  of  England  ; 
^  I  believe  he  is  guilty,  and  I  am  therefore 
k  tbe  bill, 
bvd  Dighy.  1  shall  trouble  you  but  with  a 
Nrd  or  two.  1  suppose,  aj»  long  as  we  act  by 
^knouu  rules  of  justice,  and  the  laws  of  our 
isrf,  we  shall  not  need  to  fear  any  censure  in 
IV  oirn  kingdom,  or  any  where  else  ;  but  it  is 
^  very  nncertaiu  thing  for  gentlemen  to  be 
nd^in  ibecase  of  life  and  death,  without 
•y  rule  to  walk  by  ;  a  great  many  will  not 
How  us  any  rule  at  all :  I  alwa\M  took  our  rule 
t  be  the  law  of  the  land,  and  *that  evoii  our- 
elves  are  bound  by  the  laws  nur  ancestors 
laie  nude,  until  we  think  fit  to  repeal  tlicm  ; 
ad  I  MB  confirme«l  in  this  case  by  one  imrti- 
■Isr  anrument  from  the  bill  of  trea£:on  tiiat 
used  lent  sessions,  in  which  there  is  a  clansi*, 
hat  it  should  not  extend  to  future  parliaments. 
1m  only  argument  for  exercising  of  this  power, 
k  Ike  extnuwdinary  case  of  this  gentleman. 
Vhto  a  gentleman  raeaksof  the  power  of  par- 
■•■eat,  1  take  it  to  be  the  just  power  of  par- 
Msent :  I  think  a  man  may  say,  a  parliament 
itiBot  do  what  they  cannot  justly  do.  fiut  all 
ntleiDcii  nlkiw,  that  this  |iower  ought  not  to 


A.  I>.  1696.  [702 

be  exercisedbut  in  an  extraordinary  ca«e  where- 
in the  government  is  nearly  concerned.  I 
believe  very  few  but  think,  that  if  it  had  not 
been  for  the  vindication  of  some  particular  gen- 
tlemen we  never  had  liad  this  matter  I>efore  us ; 
and  then  1  will  leave  it  to  gentlemen  to  consi- 
der, if  the  government  can  be  in  so  much  danger 
if  sir  John  Fcnwick  docs  escape  ? 

Mr.  Brothcrton.  Mr.  Speaker,  I  perceive 
the  question,  Whether  this  bill  shall  be  com- 
mitted, arises  very  much  upon  a  supposition 
that  seems  to  be  granted,  that  there  is  no  other 
law  to  try  this  person  by  ;  and  it  hath  been 
hinted,  that  before  tbe  statute  of  Edw.  G,  one 
witness  was  sufKcient :  Now,  if  I  shew  yon 
that  here  is  a  law  in  being,  and  hath  con- 
tinued for  several  hundred  years,  whereby  a 
man  ma^  lie  tried,  and  that  by  one  witness,  1 
think  it  is  something  that  hath  not  been  spoke 
to  yet. — Sir,  I  ground  my  reason  and  opmion 
upon  the  authority  of  the  law,  and  upon  the 
historians  of  all  times,  who  agree  in  the  thing, 
and  come  down  to  my  lord  Coke,  which  is 
printed  by  authority  ;  and  he  is  express,  that 
where  there  is  but  one  witness  (he  treats  of 
what  witnesses  are  necessary,  and  he  tells  you 
two  witnesses  were  required  by  the  common  law 
of  treason,  if  the  person  was  tried  by  a  jury  ;) 
but,  says  lie,  if  there  be  but  one  witness  mease 
of  treason,  he  shall  be  tried  before  the  constable 
and  uiaRshal.  And  in  treating  of  the  statute 
of  Hen.  8,  which  does  appoint  how  treason  be- 
yond sea  shall  be  tried  ;  says  he,  that  is  only 
where  there  are  only  two  witnesses;  but  if 
there  is  but  one  witness,  be  shall  be  tried  before 
the  constable  and  marshal ;  because,  says  he, 
the  statute  of  Hen  8,  does  not  take  away  that 
trial  before  the  constable  and  marshal ;  and 
for  that.  Sir,  there  are  several  precedents  in 
this  case,  of  persons  that  have  been  attainted 
by  a  court-marshal ;  and  if  the  accuser  was 
vanquished,  he  was  to  suffer  the  same  judg- 
ment the  defendant  whs  if  he  was  found  guu- 
ty.  I  am  upon  a  gentleman's  life,  and  never 
was  .so  before,  and  desire  to  be  never  so  again  ; 
there  have  been  several  precedents,  I  say,  in 
t}iis  case,  and  my  lord  Coke  is  express  in  the 
|Miint;  and  I  desire  any  gentleman  to  shew  me 
any  law  that  hath  repealed  this.  In  case  of 
nnn'dcr  ;  suppo<(c  a  man  he  wounded  upon  the 
land  and  die  nnnii  tht»  si>:i,  :uiil  1  could  shew 
several  cases  wherr  the  common  law  cannot  try 
a  man  l>y  jury,  but  he  shall  be  tried  by  the  cus- 
tom of  literchants  belhrp  the  statute  oV  Edw.  G. 
If  a  man  was  wounded  in  one  country,  and 
died  in  another,  he  -cotild  not  be  tried.  That 
wliirli  I  aim  at  im  to  shew  you,  that  though  the 
c;onnni)ii  la»  sIkmiM  fail,  }et  they  need  not  come 
with  a  bill  ill  this  case,  if  two  Englishmen 
beyond  sea  tight,  ami  one  kill  the  other,  it 
caimot  be  tried  by  the  common  law  ;  how  then 
shall  it  be  trieil  ?  It  must  be  tried  by  thccourt- 
mai-shal.  It  was  sir  John  AmesUry 's  case  in 
Hicli.  Sd'«  time;  and  Wells's  case,  and  lord 
Herbert^  case  in  II.  6th*s  time,  who,  there 
being  but  one  witin^ss,  was  accused  before  the 
constable  and  marshal. — [Mr.  Urotherton  was 


70S]  8  WILLIAM  IIL         ProesetOigt  ng^but  Sir  John  Femiei,        [7M 

fVorcnimeot;  because  it  b  Mid,  the  pufinip  of 
U  is  w  necessary  for  the  su|iport  of  tlie  goveni- 
oieiit.    Ami  I  was  the  more  willing  to  oner  yua 
ray  ressoDs,  because^  as  tbe  nalnre  of  this  de- 
bate  has  been,  I  cannot  satisfy  myself  where  my 
judgment  and  opiuion  shall  rest:    for  if  it  lie 
so,  that  you  are  not  tied  to  have  as  noeb 
etideuce  as  inferior  courts,  and,  as  tliey  nj, 
one  evidence  is  enough,  and  my  jud|fmeiit  is  tn 
be  guided  by  papers ;  then  they,  without  idt 
evioenoe,  may  be  enough  to  a^isfy:  snd  if 
you  take  up  with  less  eridence  than  iofa-ior 
courts,  I  cannot  come  to  declare  how  little  eii- 
dence  msv  take  away  a  man's  life.--- As  to  tbe 
urisouer,  I  know  him  not ;  but  I  think  ibis  bill 
IS  for  all  that  he  hath  to  lose,  and  is  for  all  tbe 
best  Englishman  can  lose  upon  the  like  occa- 
sion.—Sir,  I  shall  be  very  tender  in  giTing  mj 
opinion  for  the  bill,  unless  it  was  very  deirM 
me  that  it  was  reasonable.    Truly,  I  here  )mi 
very  little  of  tbe  whole  plot,  or  of  this  naHer 
tliat  hadi  been  examined,  or  for  which  olbers 
have  been  executed ;  my  life  has  been  genenllj 
in  tbe  country,  and  1  have  not  had  tbe  curioiilj 
to  buy  the  trials ;  and  as  this  is  the  first  penw 
that  hath  been  called  before  me,  to  gire  mj 
judgment  on,  I  hope  1  may  be  excused  for  tak- 
ing th'is  liberty,  upon  such  evidence  as  appcvf 
before  us,  to  tdl  you,  I  cannot  give  my  ooosnt 
to  this  bill. 

Sir  W.  Lowiker.  Sir,  you  have  hadawrr 
long  debate  in  thia  house,  and  king  disooane 
from  the  bar ;  and  though  the  counsel  w» 
directed  that  they  should  not  dispute  tbe  piivi- 
le^^es  and  authority  of  this  houso,  yet,  as  ftri« 
my  judgment  carries  me,  their  whole  disoouns 
was  against  it ;  and  most  of  the  gentkocs 
that  have  spoke  against  the  bill,  it  hath  ben, 
because  it  hath  not  been  adequate  to  the  pun 
oeedings  in  Westminster-ball,  because  tfccis 
hath  been  but  one  witness.  Sir,  if  there  bad 
been  two  witnesses,  this  house  had  not  bees 
troubled  with  it :  it  is  a  case  of  a  very  am- 
ordhiary  nature,  and  so  required  an  extraer* 
dinary  proceeding. — It  hath  been  questiooed 
by  some  gentlemen,  Wlietber  one  wiuiew  be 
sufficient  in  this  case  or  nof  Which  I  ^<|P^ 
at,  since  a  great  many  have  been  confided 
upon  his  evidence,  and  every  one  of  them  bis 
confess!  »  which  shewa  it  to  be  a  notoriofl* 
tnith.— There  is  another  inference  they  dis* 
from  the  proceedings  here:  because  a  p«^ 
many  of  those  presents  of  atuinders  avt 
been  rcvensed,  and  those  with  notes  of  i^" 
nominy.  If  they  did  consider  the  time*  tbef 
were  made  in,  and  the  times  they  were  r^ 
versed  in,  there  nu(|rht  be  a  great  deal  of  cause 
for  it:  wc  fiiul  that  it  was  contrary  factiois 
tlidt  rerersed  thorn,  and  that  makes  it  nC' 
the  w<»rsp.  Ami  truly.  Sir,  I  do  not  know  bal 
where  cir(?umstjnices  art-  &o  mUorifius,  but  tbfj 
are  tantanioutit  to  a  SfcumI  wituoss,  as  I  l»»* 
heani  in  \Vi«stininstpr-haU,  and  in  cases  of  B* 
too.  If  a  man  he  murdered,  ami  two  is  ■ 
rooni,  an«l  <»nt*  conies  out  uith  a  blwoily  bwoi% 
the  law  «lops  |ii'(^unip  that  man  munleicd  him 
though  there  is  no  particular  evidancolhitbt 


here  interrupted  by  tbe  great  noise  the  house 
made  upon  the  novelty  of  the  argament,  and  did 
not  go  on  further  with  it.] 

Mr.  PafiCi.  Sir,  I  attended  to  the  debate  of 
this  day,  and  have  not  hitherto  troubled  you 
myself,  because  I  did  expect  to  be  better  in- 
formed by  this  debate.  I  think  the  tnbstance 
of  the  debate  of  this  day  hath  been,  not  so 
much  to  shew  us  by  what  rule  we  are  to  go,  as 
to  shew  us  that  we  have  no  rule  to  so  by  but 
our  judgments.  Sir,  I  never  had  the  honour 
to  sit  in  parliament  before  this  time,  and  there- 
fore cannot  quote  precedents  of  what  hath  been 
done  in  former  paniaments ;  others  have  taken 
a  great  deal  of  nains  to  shew  you,  that  it  is  in 
tlie  discretion  or  gentlemen,  and  they  are  only 
to  be  satisfied  in  their  consciences.  I  am  not 
fond  to  hear  myself  sneak,  and  therefore  I  hope 
I  shall  be  favourably  neard  at  this  time ;  and  I 
do  think  1  have  the  more  reason  to  speak  at 
this  time,  from  something  that  fell  from  a  very 
honourable  gentleman  at  the  bar :  If  I  do  mis- 
repeat  him,  1  hope  he  will  excuse  me,  for  1  do 
not  do  it  with  an  ill  design :  But  1  think  his 
words  were  to  this  effect;  that  he  dkl  not 
know,  but  if  it  was  known  in  the  cnnrtry,  that 
^ntlemen  did  give  their  judgment  against  pass- 
ing of  this  bill,'  it  might  hinder  the  election  in 
future  parliamentN.  Sir,  since  there  seems  to 
be  so  great  stress  iiuon  our  determination  in 
this  matter,  I  liope  1  may  at  this  time  sliew 
vou  my  reasuus  why  I  cannot  come  up  to  agree 
in  thisbill ;  and  I  sfiall  submit  it  to  them,  wbev 
ther  they  will  do  me  the  honour  to  chuse  me 
again  ?  I  most  confess,  1  do  think  this  is  as 
nice  a  ca^e  as  1  can  pretend  to  give  my 
opinion  in ;  and  a^  it  is  so,  I  shall  desire  the 
best  assurance  of  the  truth  of  this  matter, 
before  I  give  my  opinion  for  the  passing  of 
this  bill.— Sir,  \ou  have  liad  before  you  one 
evidence  :  1  wiU  admit  liini  to  be  as  much  aS  a 
sin;^ie  evidence  can  be:  as  to  the  paper  of 
Goodman^s  czamination,  I  have  heanl  that  and 
other  matters  too,  which  I  shall  not  repeat. 
But  1  do  remember,  tliat,  in  the  debate  of 
yesterday,  it  wus  nut  insisted  on  to  be  evidence : 
and  if  not  so,  I  shall  only  take  the  matter  as 
dependino^  I>efon'  yoTi  upon  one  evidence  only. 
— Sir,  it  is  true,  I  hfclicve  this  house,  as  to  its  le- 
gislative proceeding,  is  nol  tiinl  by  the  methods 
of  interior  courts :  but  1  hopi^  I  shall  be  ex- 
cused, if  in  the  methods  of  prosL'tution  and 
conviction  of  offenders,  after  they  have  been 
prescribed  by  the  wisdom  of  the  pailininent,  I 
hope  I  shall  be  excused,  if  I  believe  this  house 
cannot  take  away  any  pi  rsoii's  lii'r  upon  less 
evidence  tlian  inferior  courts  could  do. — And, 
Sir,  I  shall  not  enier  iali»  any  very  lo.  ^  viiidicH- 
tion  of  m\self.  and  my  /cat  and  \v:'lin;;H(.ss  to 
serve  the  govcriiuiirnt ;  I  ncvei-  wua  imij. loved 
i')  any  other  i^overnnteot ;  and  I  tlilnk  my  ac- 
ti  ius'iiu\r  bu(  n  such  that  nohiiil\  ran  ui^tancc 
in  smy  one  thinjf  that  liath  lot#k«^l  Mherwise; 
and  \vhen  I  ha\e  >aid  this,  I  shall  trouble  you 
no  further  about  that:  hut  there  hath  lieon  so 
much  stress  laid  uimn  this  bill,  that  whtmoever 
speaks  against  it,  seems  to.  s|ieak  against  the 


705] 


upon  a  Bill  of  Attainder. 


A.  D.  1696. 


[706 


niurderei]  him,  bat  only  tbii  circumstance ;  and 
yet  the  man's  life  is  concerned  in  that  case. 
So  that  upon  the  whole,  it  appears  lo  mo  that 
iie  is  guilty,  and,  I  think,  nothing  can  be  plainer. 
^-Tliere  is  another  circumstance,  that  ne  fled 
ibr  it ;  and  that  is  a  presumption  of  a  uian^s 
ZuWi :  for  a  man  loses  his  goods,  if  he  llies  for 
lelony. 

Mr.  Harleif.  It  irould  be  rery  unreasonable 
and  impertinent  to  trouble  you  lowr  aAer  such 
a  debate :  1  shall  avoid  repetition  of  what  hath 
been  siigpfestcd  to  you  much  better  from  other 
persons  than  woidd  ha?e  been  from  me.  J 
own  it  is  a  case  of  great  concern ,  and  it  is  my 
mi»fortUBe  that  1  should  ever  sit  up<»n  a  thing 
of  this  nature;  but  I  will  discharge  my  con- 
science always,  and  giro  what  arguments  occur 
to  me,  why  I  am  against  this  bill.  Gentlemen 
have  been  ideascd  in  their  arguments  tu  enter 
upon  the  debate  of  your  power  and  authority, 
and  have  made  that  a  part  of  their  argument : 
but  I  think,  with  submission,  we  need  not  dis- 
pute that  at  all :  it  is  admitted,  that  there  have 
been   bills  of  attainder  passed  formerly,  and 

{^our  autliority  is  not  under  dispute ;  for  the 
egisiativc  in  all  nations  have  a  power  lodged 
ui  them,  for  the  safety  of  the  whole. — But  your 
profier  enquiry  is,  Whether  this  is  such  a  case 
as  you  ought  to  exercise  this  extraordinary 
power ;  omne  regnum  sub  ^raviore  r€{;no : 
riiough  you  have  this  absolute  authority,  yet 
i£  is  to  lie  executed  by  the  rules  of  reason,  and 
by  the  rules  (for  such  there  ^re)  of  etenial  jus- 
tice ;  and  I  look  upon  this  as  one  that  is  invio- 
lable, that  no  man  can  forfeit  his  lite,  in  such 
a  case  as  this  is,  without  two  witnesses.  I  must 
adhere  to  that,  because  I  have  heard  nothing 
in  this  debate  that  can  make  me  qtiit  that 
raaxiiii :  And  it  is  such  an  ancient  land -mark, 
that  1  will  never  draw  a  curse  upon  me,  and 
my  posterity,  for  removing  of  it.  I  beg  leave 
that  1  speak  with  this  earnestness  to  you. — Gen- 
tlemen hare  been  pleased  to  make  it  part  of 
their  arguments,  the  great  danger  the  govern- 
ment is  in  if  this  bill  ddcs  not  succeed. — I  will 
not  use  many  words,  but  I  think  that  argument 
ought  not  to  be  token  in  the  gross,  but  to  be  ex- 
amined, Whether  this  argument,  of  the  hazard 
of  the  government,  is  of  e(|ual  poize  for  you  to 
break  the  eternal  rules  of  justice  ?  1  viou't  quote 
the  case  before ;  every  gentleman  knows  it, 
(though  there  was  two  witnesses  in  that  case  lo 
put  an  innocent  person  to  death)  where  it  is 
urged,  the  Romans  will  come  and  take  our  state 
and  nation :  But  with  how  much  reason  that 
was  urged,  every  body  knows ;  and  how  iiir 
the  government  is  now  in  danger.  Let  us 
consider.  Is  this  gentleman  out  of  your  power  f 
\b  the  gmernment  in  danger  of  a  man  that  is 
your  prisoner  ^  Is  he  in  open  rebellion  against 
you  P  If  this  law  does  not  pass,  if  you  have  not 
your  hands  in  his  blood,  is  he  not  under  the 
power  of  the  law  ?  Did  not  he  tell  you  so  him- 
■clf  ?  Every  gentleman  ought  to  have  a  zeal  for 
the  government,  and  I  wish  it  was  visible  in 
very  tbinf  else ;  but  if  that  be  so,  give  us  leave 
iboio  spedc  with  zeal  for  our  liberty,  and  aDciwt 
VOL.  XIII. 


constitiltion.  The  argument  is  turned  two  ways : 
On  one  side  you  are  told,  that  this  probably 
may  make  him  confess  something ;  aud  by 
others,  he  is  to  be  mode  an  example  of  punish- 
ment. This  is  the  first  beginning  of  a  bill  of 
this  nature  :  but  the  same  reason  that  leads  you 
to  this,  must  lead  you  to  all  the  rcNt :  The  same 
reason  thai  is  urged  for  this  hiH  to  make  him 
confess,  will  lead  you  to  bring  in  a  bill  to  make 
him  a  gooil  evidenee :  this  every  body  must 
allow  to  be  the  consequence  of  ic. — How  does 
this  bill  come  before  you  ?  It  comes  before  you 
upon  a  \illainims,  scandalous  aspersion  of  soma 
great  men ;  though  I  know  them  not  all,  yet  I 
have  a  great  value  for  them,  and  I  would  make 
their  case  my  own :  but  if  they  were  the  nearest 
relations  I  had,  I  would  be  against  this  bill  upon 
their  account ;  and  let  any  one  examine  the 
reason  of  it. — Sir,  I  will  not  run  into  prece- 
dents ;  but,  only  because  it  hath  been  told  you, 
that  the  precedents  uere  made  in  one  reign  by 
one  faction,  and  then  the  attainders  were^  re- 
versed in  another  reign  by  another  faction: 
There  is  one  occurs  to  my  mind,  which  hath 
been  touched  at,  and  is  at  least  of  infitruction  to 
me.  There  was  a  case  in  Ed.  d's  time ;  there 
was  the  deposition  of  a  king,  a  king  barbarously 
murdered,  and  his  son  uiK>n  the  throne ;  and 
there  was  the  notoriety  ot  the  fact,  for  which  a 
great  man  was  attainted  in  his  son's  reign,  and 
no  diHerent  title ;  and  four  years  after,  a  bill 
was  brougiit  in  against  the  earl  of  March :  And 
one  of  the  articles  against  him  was,  that  he 
had  procured  that  attainder  of  that  noble  lord, 
under  prt^tcnce  of  some  letter,  or  paper,  that 
was  signed  by  him  ;  which,  if  it  was  so,  says 
the  recinl,  was  no  evidence. — I  say  this  be- 
fore gentlemen,  to  shew  them  how  thmgs  have 
tiiruMl,  and  procedents  that  have  been  mado 
very  unanimously  ;  but  in  bad  times  have  been 
turned  to  shed  the  bc5^  blood  in  England.  It 
grieves  me  to  my  soul  to  hear  of  i^Ir.  Cornish^ 
whoso  attainder'  you  have  reversed,  to  hear 
that  quoted  as  a  precedent  in  this  house :  It  is 
not  whether  two  \%  ituesses  be  the  rule  of  West- 
minster-liall,  it  is  the  rule  of  right  reason ;  and 
it  is  a  maxim  in  your  law,  make  what  law  you 
will  against  the  law  of  God,  it  is  void  :  And  this 
is  the  law  of  God,  and  right  reason.— Yon  must 
provide  for  the  government;  and  when  you 
connot  do  it  by  course  of  law,  then  armies  must 
do  it,  when  the  courts  are  shut.  1  hoi>e  gen* 
tlemeii  will  not  put  a  hard  cunstniction  upon 
what  I  have  said ;  I  have  done  it  to  discharge 
a  good  conscience. 

Mr.  Chanc.  of  the  Etch,  Sir,  I  am  for  the 
commitment  ot*  this  bill,  because  in  my  con- 
science I  think  sir  John  Fenwick  is  guilty  ;  and 
because  I  think  the  |iuwer  of  |iarliaiiients  may* 
interpose  in  this  matter:  Anil  if  they  have  such 
a  ^)ower,  I  think  they  may  justly  exercise  it  in 
thiscasi\  Gentli'iuen  say,  they  %vill  notilispute 
the  po\«  er  of  parlianient ;  and  yet  in  their  argu- 
ments they  tell  us,  we  are  not  to  proceed 
otherwise  than  aec«»r(ling  to  the  forms  of  inferior 
courts.  And  if  ihe  parliament  is  not  to  pro- 
ceed without  two  witnesses  in  th«  case  of  trva-. 


8  WILLIAM  in.         Proceeditigs  agaiust  Sir  John  Femaidc,         [70S 


707] 

lOD,  gi?e  me  leave  to  any,  there  is  do  room  left 
lor  a  bill  of  nttain<ler,  unless  yon  will  take  the 
bosIuesB  of  inferior  courts  upon  yourselves :  And 
I  am  oonfident,  several  gentlemen,  if  there  were 
two  witnesses,  would  use  it  as  an  argument, 
^hat  have  you  to  do  with  it  ?  Rcl'er  it  to  the 
ordinary-courts  of  justice  ;  and  I  am  sure  that 
wouhl  be  very  reasonable.  But  1  do  think  that 
parliaments  have  that  power,  nnd  they  have 
always  used  it;  and  1  litlievc  it  is  for  the  ad- 
vantage* of  your  constitution.  The  inferior 
courts  are  to  go  by  the  letter  of  the  law  ;  and 
whoever  cau  avoid  that,  is  to  escniie  punish- 
ment there;  but  the  legislntivc  is  not  to  be 
dallied  with  :  And  if  the  otfence  be  of  that  na- 
ture, that  inferior  courts  cannot  reach  it,  they 
can  go  beyond  all  foi-ms  to  preserve  the  govern- 
ment. This  they  have  done,  and  upon  that 
principle  you  sit  here.  Was  it  by  the  forms  of 
common  justice  below,  th:^t  you  declared  the 
throne  to  be  vacant,  aud  king  William  to  be 
Jawful  king  P  Is  it  upon  the  ordinary  rules  of 
Westminster-hall,  that  his  title  does  depend  ? 
No,  it  depends  upon  this  maxim,  that  the  par- 
liament of  Entrland  are  intrusted  for  the  whole, 
and  may  coiisiitute  a  government  for  the  pre- 
flervotion  of  the  whole.  And  upon  the  same 
right  principle  that  1  gave  my  vote  to  declare 
bini  rightful  and  lawfulking,  by  the  same  prin- 
ciples I  declare  his  enemies  to  be  traitors. — 
V ou  are  told  here,  it  is  according  to  the  law  of 
God  and  natur<.^,  that  there  must  be  two  wit- 
nesses in  cases  of  treason :  I  do  net  pretend 
much  skill  in  other  parts  of  the  world,  l  think 
it  is  our  pHr!iruI:ir  linnviness  to  lnv(»  this  way 
<d' trial  :  I  thiuk  in  auy  <*Uu'r  pr*rt  of  the  woild, 
if  he  had  vloalt  thus  uilli  the  government,  he 
"Would  iiiivc  hail  auothcr  lur.'.irier  of  procecdipg 
agaiust  hiui,  than  to  Lc  (.oiulcnDr.tMl  hy  kin*,'-, 
loni?,  nud  cr.inmous:  I'ut  that  is  }OUi*c.)n."*iitu- 
tion,  but  it  iloi^  not  hold  in  olh^jr  paris  of  toe 
world. — S'Uiie  ''.v-itli^iui^u  lay  the  stress  of  their 
tirgunuMit  unou  the  i!l  co:isctjiienro  it  may  hare 
ill  anotlKi'  rci^u :  i  would  avoid  ill  rnnso- 
fiueuccs  in  auothiT  rei^ii  as  much  us  I  could, 
but  our  iuiuu^diatc  care  is  tin?  preserving  of  the 
present  ':nns:i»ution. — Hut  if  gentleuien  ere 
apprchei.sivr,  tlr.it  b\  such  an  e.\aiupk%  it  lan^ 
•lames  slmuM  ivturn,  others  niny  he  punished; 
if  «r  may  j»ii!:>v  what  lie  would  do,  by  what  he 
hath  doi.e,  lu*  uouI<l  go  ainUlier  uay  to  v.urlv  ; 
if  he  cfiU'f  t(»  liOndoii,  he  would  |trnct»L'd  as  his 
party  diil  at  DuMiu,  .'mmI  attaint  all  the  nrolos- 
tants  i:)  oi.e  couiuuhi  bill ;  that  is  the  pnTLilent 
he  h.'ith  sit,  aiid  he  will  tolluu'.  And  therdnrc 
in  order  to  juxACMt  lh:it,  and  in  oril.t-  to  punish 
our  t':i('m>s-,  :jrid  to  |»  •( -.  .-rvc  our  eonstilutiun 
i\\i\\  prero^ali\(^  cf  pniiianK'nt  in  all  ptiints  ;  and 
iKfausc  I  ;ni  coiuincod  in  my  iMiiScivrice  ho 
is  guilty,  I  »;!iall  irivcMny  coucurruito  for  roni- 
liiitniitil  of  tliis  hill. 

r'i'l.  (ritinf'.ir.  Sir,  I  wmdd  not  prosumo  to 
troult!'?  ;(>u  at  this  lime  of  ui^hl,  uas  the  do- 
bato  upon  r.  less  snhjrci  than  it  is;  hut  siuco 
30U  nrp  g:iiugt(»  i}:-unouiv*eju:!guu'nt  in  a  casi- 
of  hie  and  death,  and  that  tiiis  honst>  i>  ahovo 
HUJ^  taiiftf  and  vo  Lave  uu  piccudLUi  ior  it,  but 


every  gentleman  is  to  find  out  privatA  ralaio 
walk  by ;  the  nilc  that  I  shall  take  to  is,  that  I 
would  deal  with  sir  John  Peowick  ai  I  would 
have  mankind  to  deal  with  me :  if  I  was  in  nr 
J<dm  Fenwick's  place,  and-  were  indicted  cf 
high-treason,  and  were  not  alkiwed  any  trill, 
nor  the  benefit  of  making  my  defence,  accordiM' 
to  the  known  laws  of  the  land ;  I  should  tkhik 
my  blood  unjustly  spilt,  let  roe  Be  never  so  guilty. 
— ^Tbe  laws  are  what  are  set  np  for  the  Mnte 
of  every  man ;  and  when  once  we  break  througli 
them,  whatever  our  end  may  be  at  that  time, 
and  though  it  may  in  some  manner  seem  10 
justify  us,  because  it  is  to  come  at  an  ill  nan; 
yet  pray  consider,  the  best  of  men  may  be 
come  at  as  easily  as  the  worst  of  men.    Aid 
what  makes  roe  cautious  is,  that  my  bands  ire 
giiihiess  of  blood  yet,  and  1  will  take  cans  bsv 
1  begin  to  dip  them  in  it.    Aud  that  which  will 
make  me  cautious  in  any  case  of  this  nature  ii, 
what  1  reail  in  tiie  story  of  the  late  time,  tbit 
whcu  once  a  set  of  people  had  begun  to  die 
their  liands  in  the  blood  of  m v  lord  HinJbn, 
nothing  would  quiet  them  till  they  had  staisid 
their  hands  with  royal  blood.    The  laws  lit 
the  common  detencc  between  the  king  and  ibe 
licople ;  but  the  king  is  safest  when  the  lavi 
are  most  strictly  observed. — I  shall  not  prettsi 
to  talk  of  your  power,  which  hath  no  eibtf 
bounds  but  your  justice  and  discretion ;  uA 
what  you  think  so,  will,  1  ho])e,  meet  with  ap- 
probation abroad.     And  in  this  case  1  ibal 
always  be  against  what  is  calle<l  a  trial  to-daj: 
But  I  do  not  think  it  any:  for  Idothiokwtf 
are  an  unfit  couit  to  determine  this  matlfr. 
\Vc  sit  in  so  many  capacities,  it  is  hard  todii- 
tini^uish  in  what  capucily  we  are  here:  some 
arc  accused  ;  it  is  hard  to  be  accused,  and  to  be 
a  judi^e  at  ihe  same  time.     1  am  sure  I  am  H 
uiuoh  concerned  as  if  1  was  accused  mvftlf; 
and  it  is  for  my  innocence  and  honour  tbal  I 
think  myself  hound  to  sfieak  against  this  bill. 
For  as  no  rcseutnient  shall  make  me  do  any 
thing  that  is  unjust,  so  I  fear  noltiiug  that  M 
can  bay  :  and  I  will  never  ^o  alxiut  to  stopbii    , 
cvideni'o,  by  cranuniug  a  bill  uf  attainder dowo 
his  throat. — Besides,  it  is  an  unlit  thing  for  any 
•^viitleinan  w  ho  is  obliged  to  be  of  couoael  for 
the  king;  it  is  haid  for  him  to  be  so,  aad  ait 
here  as  a  judge :  I  think  also  to  proceed  ia 
this  manner,  is  a  disrespectful  thing  to  thekii^ 
hiinstlf ;  fur  iu  this  case  you  turn  the  thnnt 
of  increy  into  the  veat  of  judgment.     The  kin^f 
who  should  hare  all  the  ways  to  ingratiate bioH 
S(df  \«ilh  his  subjects;  you  make  him,  bytbi* 
pnK'CLiling,  to   pruuuuure  the  sentence  liiiS' 
self  upon  the  life  of  a  subject;  and  it  is  haid 
to  oi^'er  a  bill  to  the  king  in  such  a  manner,  bf 
uhirh  ymi  oMige  him  either  to  reject  it(whicl 
>«as  always  looked  upon  as  an  hanlship)orta 
pass  sentence  upon  this  geutleman,  which  l^r*' 
haps  his  <:raei<Mjs  ten)|HT  and  his  mercy  niha 
him  avifrse  ti». — Sir,  it  is  too  late  to  give  yo^ 
other  arguments ;  you  have  heard  a  ^at  msi^ 
h(  Iter  than  I  can  gi^e  :  but  I  think  tbisbill  isoft^ 
pist  iu  itsvit',  and  dangerous  in  its  conse<|neaeiff' 
aud  therdbrc  I  hope  you  will  not  cumiut  iU     ' 


709] 


lyNifi  a  Bill  ef  Attainder, 


A.  D.  169fi. 


[710 


Sir  Herbert  Crofts.  Sir,  1  did  not  think  to 
trouble  you  io  this  dehate,  but  only  tor  the 
argtunenti  that  have  been  usdd  by  some  that 
8|>ake  lately,  who  seem  to  lay  a  g^reat  load  upon 
meo,  according  aa  they  ^ve  their  vote  in  this 
matter,  because  it  is  in  relation  to  tlie  blood  of 
a  man.  I  have  considerpd  the  point,  I  hope, 
vith  as  much  caution  as  any  man  within  these 
walls,  and  hope  to  act  with  as  strict  a  consci- 
ence as  an^  man  whatsoaver ;  and  shall  be  g^lad 
to  be  informed  from  those  gfentlemen,  that 
have  laid  the  stress  so  bard  upon  religion,  how 
they  can  shew  me,  that  I  do  not  as  strictly,  as 
to  all  points  of  religion,  give  my  vote  for  pass- 
inn^  of  this  bill,  as  they  would  excnse  themselves 
from  it.  I  must  agree  with  thos»  crentlemcn, 
that  you  are  no  ways  bound  or  limited  to  t!ie 
rules  of  Westminster- iial I ;  and  therefore  what 
was  said  upon  that,  I  did  not  think  worth  taking; 
notice  of;  but  when  wc  are  told,  we  are  boimd 
up  by  tlie  laws  of  nature  and  relt^on,  and  the 
law  of  (9od,  in  this  matter,  this  touches  me  so 
nearly,  that  I  must  desire  those  cfentlcmen  to 
shew'  me  in  scripture  the  law  they  quote.— 
If  it  be  the  law  of  nature,  and  the  law  of  Go<1, 
that  every  man  that  dies  must  be  convicted  by 
two  witnesses,  as  au  honourable  person  oh- 
serveil,  I  wonder  it  is-  not  observed  by  all 
Chriatidu  nations  and  (ifovemments,  that  they 
are  not  all  governed  by  this  law ;  if  there  be 
any  direction  from  the  law  of  God,  that  no 
inau  is  to  die  for  treason  without  two  witnesses, 
but  he  may  suffer  for  murder,  and  felony  with 
one  witness.  Now,  1  say,  I  rnnst  desire  the 
geotleman  that  asserts  it,  that  he  would  be 
pleased  to  shew  me  it  in  scri|itnre,  and  I  will 
be  entirely  of  his  opinion ;  but  till  I  hear  that 
very  pkiniy  proved,  it  is  not  within  my  reading 
or  remembrance,  and  therefore  I  desire  it  may 
have  no  wei|(ht.    And  now  I  am  up,  I  shall 

S've  my  reasons,  why  I  shall  ffive  my  vote  for 
is  bill. — ^Tbe  reason  that  governs  me,  is  the 
preservation  of  the  government,  and  the  com- 
monwealth under  which  I  live;  and  which  I 
think  lam  in  the  station  wherein  I  stand  bound 
,to  preserve  b^  all  the  rules  of  iustice  imagina- 
ble. Now  it  your  law  liath  hounded  inferior 
courta,  but  hath  not  bounded  you  in  this  mat- 
ter, though  you  have  said  inferior  courts  shall 
not  determine  and  give  juiigmeiit  in  such  a 
case  ;  yet,  I  think,  you  arc  not  bound  up  so 
here  :  Dui  if  the  matter  lie  pn>vcd  to  my  satis- 
faction, 1  may  give  my  judgment  according  to 
the  evidence  tliat  comes  Mure  me,  without 
that  restriction..~But,  sir,  this  ought  not  to  be 
done,  it  is  said,  but  u|>on  extraordinary  occa- 
sions. You  were  told  some  time  since  of  the 
case  of  the  duke  of  MoimiouUi ;  but  it  was 
^d,.  that  he  was  attainted  I>ecau8e  he  was  in 
arms,  and  could  not  be  come  at  otherwise: 
^t  I  think  this  i^t  a  parallel  case  to  that,  if  not 
much  stronger :  for  here  is  a  nerson  that  hath 
been  accused,  and  fully  proved  to  have  been  in 
rebel iion,  and  in  treasonable  practices  with 
yeur  cneriies,  to  bring  an  invasion  upon  you, 
and  to  subvert  yonr  government ;  and  though 
Jie  bath  not  been  proved  to  havs  been  in  that 


single  act  of  the  asrassination,  yet  there  is  such 
a  correspondency  betweeu  one  and  the  other, 
that  I  do  look  upon  him  as  equally  guilty  of 
both.  Thrretbre  this  having  been  so  fully 
proved,  and  the  person  that  Ftamls  accuscNl 
being  out  of  the  reach  of  the  connnon  course 
of  the  law ;  what  remedy  have  you,  but  to  fly 
to  your  legislative  power,  to  attaint  him  upon 
the  grounds  and  allegations  of  your  bill,  that 
one  witness  is  withdrawn  ?  And  1  am  very  well 
satislicd,  and  I  tliiuk  we  may  presume  it  is  by 
his  own,  or  Wis  friends  encouragemeut  and  pro- 
curement. And  I  do  take  this  to  be  as  rea- 
sonable a  ground  for  your  bill,  as  any  thing  in 
the  other  case ;  and  1  know  not  what  is  an  ex- 
traordinary case,  if  ttiis  be  not  one :  is  it  not 
an  entmonlinary  .cascj  for  a  plot  to  be  laid  ibr 
tlio  total  subversion  of  this  constituliou,  and  our 
relii^'ion  for  ever,  and  wc  cannot  come  at  it  to 
punish  it  another  way?  But  it  hath  beensatd, 
the  safety  of  the  g<ivemment  docs  not  depend 
upon  him :  if  we  acquit  him,  we  are  to  acquit 
every  one  «like  :  I  hope  the  government  does 
not  depend  upon  him  alooe ;  but  if  you  cleai* 
him,  there  is  the  same  right  to  elear  any  cri- 
minal whatsoever.  »Sir,  since  1  am  brought 
up  upon  fifiving  my  jud>rment  in  this  matter, 
(though  1  come  as  unwillingly  as  any  body  to 
it)  I  must  go  according  to  my  conscience;  and 
till  I  can  see  something  of  the  law  of  God,  that 
has  been  hinted  at,  made  out,  I  must  go  accord- 
ing to  the  law  of  mv -reason ;  and  that  is,  that  I 
must  be  for  the  bill. 

Lord  Norrcifs.  J  will  not  pretend  to  tell  yon 
what  the  authority  of  this  itouse  is,  it  is  what 
they  please  to  make  it ;  but  I  am  sure  thev 
will  gniuud  it  upon  good  reason^  but  I  think 
the  reason  chiefly  given  for  the  commitment  of 
this  bill,  leaves  you  a  latitude  to  do  what  yoa 
please,  and  give  no  reason  at  all ;  for  it  is  only 
to  say,  I  am  convinced  in  my  conscience  thin 
man  is  guilty ;  no  matter  upon  what  proof,  no 
matter  whether  any  proof  or  not :  ^ou  may  be- 
lieve it  from  his  life  and  conversation,  and  tha 
company  he  keeps,  or  from  his  interest ;  and 
that  may  be  argument  enough  to  find  a  maa 
guilty.  But  till  I  know  a  reason  better 
gn)unded  than  this,  I  cannot  be  for  the  com- 
mitment of  this  bill. 

Sir  Christ,  Musgrave,  I  am  sure  at  this 
time  of  night  I  am  unfit  to  speak  in  so  great  a 
matter :  1  must  confess  I  should  not  liave  trou- 
bletl  you,  if  it  had  not  been  iu  the  case  of 
blood. — You  have  had  a  great  dcliate  before 
vou  of  the  power  of  parliaments,  and  that  hatl» 
let  if^ufHcientl^  argued;  and  I  have  not  learn- 
ing enough  togive  you  any  precetlenls  that  have 
not  hfen  already  quoteil :  but  every  body  does 
agree  io  this,  that  what  i^ower  you  have  of  this 
kind^  is  not  to  be  exercised  but  upon  extraor* 
dinary  occasions.  Now  I  would  be  glad  to 
know,  what  this  extraonlinary  occasion  is  ?— 
Every  body  allows,  that  treason  is  the  greatest 
j  crime  amuu  can  be  guilty  of;'  and  the  charge 
of  this  gentleman  is  high-treasun:  but  there- 
fore, in  tUi^  ciso,  roust  you  exercise  this  au- 
thority?   iV^y,  wht.-c'in  dow  tl.is  casediffi^r 


711] 


8  WILLIAM  III.         Proceedingt  against  &r  John  Fenwick^ 


Inmi  any  other  case  ofhif^b-tniisoTi,'  tbat  any  ]  penob,  to  condemn  him  that  was 
other  |H*rs<in  will  be  iiractiunf;;-  against  the  that  trial  ?  If  there  he  no  such  la 
sri»venimeiit?  All  the  tlitference  I  can  make  ofit,  I  rule  is  t'ouiidcd  upon  justice  and  coi 
coii9i<is  in  two  points  ;  the  (»ne  is,  that  he  hath  |  that  nothing  shall  be  brought  ag 
pri'vaiiriitetl  %«ith  the  ffovernmrnt;  and  the  |  when  a  man  %va8  not  a  |>arty  win 
viIk^I',  that  gentlomrn  say  he  hath  been  a 
iiH^aiis  of  pnHTastinaiing  his  trial,  in  which  | 
lime  an  cvidcnre  hath  made  his  escape.  I  will 
allow  you,  thnt  it  is  a  very  ureat  crime  for  any  ; 
one  to  HS|ierse  so  gr«>at  inen  as  he  haih  done  ; 
but  1  wonM  be  glad  to  know,  whether  there 
be in^  such  an  ingre<lieiit,  it  be  siifiicient  to  i 
aiuint  him  upon  higli-trcason  upon  that  ac- 
e«>unt.— Then  as  to  that  of  a  witness  being 
g%me,  gentlemen  ha?e  said,  they  are  apt  to  be- 
lieve, ami  there  is  great  presumption  that  he  i  ll'*"  •*"  ^  _■  ■  ,i  u* 
b.lh  b«en  the  c^o^oKhis  witnesH  beine  i  ^„"  l'»«^"  '"'''*  ««'""•!';: '"■. 
g,...o.  I.  that  an  ingredient  safficlent.  th..u«fi  J"^  ""'""'"'^  '*  "  Co.».miKee  ol 
at  present  it  hatli  not  been  proved  to  you  ?  But  ^ 
if  It  had  been  proved,  I  should  not  however 
think  that  is  treason.  Then  if  this  be  the  only 
difference   between  this   gentleman  and  any 


was  made,  anil  he  had  no  opportui 
mine  him. — 1  thought  it  uiy  duty 
that  when  you  have  made  this  pi 
any  person  shall  Ul  uccusefl  of  trvi 
one  whness,  there  will  be  the  sara 
proceed  thus  against  him. 

Then  (being  a  little  befcire  elevei 
nighl)  ihi'  question  was  put. 

Whether  the  bill  shuu'd  be  comr 
the  house  dividcil :     A\»-s^  132. 


Nov.  25.  The  house  resolved  ii 
mitteeof  the  whole  house,  u|ion  tl 
and  several  wurdn  being  tiflered  a> 


other  person  that  shall  be  practisinsf  to  subvert    ment  to  the  said  bill,  to  import  sii 


the  government,  I  would  know,  if  there  be  but 
one  witness  against  any  man,  for  conspiring 
■gainst  the  king,  if  they  may  not  have  recourse 
to  this  precedent,  to  proceed  against  him  by  a 
bill  of  attainder?  For  the  argument  is.  Who- 
soever is  endeavouring  to  subvert  the  goveru- 
ment,  provided  titere  be  bnt  one  witness,  you 
arc  oldiged,  by  virtue  of  your  legislative  power, 
to  bring  a  bill  of  attainder  against  him.  And 
what  then .'  Of  what  use  is  the  great  care  and 
wisdom  of  your  ancestors,  and  yourselves,  that 
where  a  crune  is  so  trreat,  and  the  punishment 
so  grrat,  there  should  l>e  two  witnesses? — 1  was 
mightily  surprized  to  hear  gentlemen  tell  you, 
that  two  witnesses  is  a  form  in  your  law,  and  a 
form  in  inferior  courts.  I  never  could  believe 
that  was  a  form  ;  for  according  to  your  law,  no 
man  shall  be  <leclared  guilty  of  treason,  unless 
lliert*  he  two  \utnesses  against  him ;  so  that  it 
i;ives,  in  a  manner,  a  determination  to  the 
rrime  ;  that  I  t«ike  to  he  the  case. — \  geutle- 
luan  told  you  that  he  was  fully  satistied  by  the 
pnH>f,  that  this  gentleman  is  guilty :  But  how 
ran  a  man  satisfy  his  own  conscience,  to  con- 
demn any  man  by  a  hiw,  that  is  subsequent  to 
the  fwl  f*     Tor  that  is  the  case ;  and  pray  see 


wick*s  being  guilty  ;  at  lust  the 
were  agreetl  on,  we're  thrse, '  Of  wl 
*  the  said  sir  John  Fen  wick  is  guilt 
aL«o  proposed  to  the  consideraiion 
Committee,  wheihiT  ihe  lords  spir 
stand  in  the  enacting  p^rt?  Kut  u 
into  the  several  acts  of  attainder, 
they  were  unconcerned  in  all  lhu^e 
tainder,  in  the  enacting  part ;  and  i 
mittee  was  satisfied  in  that  poict,  ar 
left  to  stand  io  the  hill  by  general  c 
the  bill  was  ordered  to  bt-  reported  t< 
and  afterwanls,  u|>ou  tlu*  lepori. 
agreed  with  the  Committee  in  il 
ainendmeni  of  the  words,  import 
Fenwick's  being  guilty. 

Mov.   Q't.      The  saUl  bill  ac;aii: 
Fenwick  was  read  the  third  iline. 

Mr.  Mathii  en,  Mr.  Speaker, 
troubled  you  in  any  ot"  this  lonu  dt 
it  unuilbngly  uow  :  but  I  do  tlii 
mau's  duty,  in  a  rase  of  this  trrrat 
iVetly  to  own  his  opinion,  and  •;«>* 
for  it.  Tlie  grrati-st  part  of  tbe 
run  upon  two  things;  the  ineomeii 


thi'  danger  of  pivecilrnts:    It  now  will  ajipenr  ;  of  attainder,  and  the  liavinir  thciu  ti 


upon  your  jonrnnls,  thai  you  ha\e  caused  to  be 
read  n  deposition  of  a  person  that  was  abst-nt, 
taken  before  a  justice  of  peaci',  whrn  the  per- 
son aocus«Ml  had  no  op|H>rtutitty  to  iiitenogate 
him ;  and  likrwiso,  that  yiui  have  lieard  a  wit- 
ness as  to  what  a  man  swore  in  the  trial  of  ano- 
ther man:  All  this  will  appear  upon  your 
books. — And  truly,  I  wonld  In*  «;lail  to  kn  •«', 
if  another  age  may  not  be  apt  to  think,  that 
you  took  theseto  make  ifmid  tltr  delect  t»t' ano- 
ther witness;  and  tlien  I  niu.-^t  a)tpeal  to  you, 
if  yon  have  not  admitted  of  a  teMnnon\ .  wbieh 
ne'cording  to  no  law  is  aduuited.— 'fhey  s:iy 
\ou  are  not  tied  to  the  rules  of  Wevtiiiinster- 
liall,  nor  their  ftnius.  Is  there  any  law  iu 
being,  that  say;),  a  judge  may  lieara  witness  ns 
to  what  was*  iworu  upon  the  trial  of  another 


that  it  is  necessary  to  have  them 
that  any  person  mi'^ht  not  think  tl 
out  of  reach,  if  tbty  could  evade  tl 
were  maile  to  pnUect  the  people.- 
t^eneral,  that  this  bill,  as  every  oth 
have  its  fate  upon  tbe  paviieuiar  cii 
before  you  ;  and  wboe\er  gives  hi: 
to  this  bill,  ouifbt  t«>  be  coiiviucefl 
F.  is  guilty  ot  bii:h  treason ;  an 
there  arc  txlrat»rdindry  retisons  wh 
does  pmsecntf^  biin  in  so  extraon 
ner  ;  and  I  do  tbink  one  of  these  i 
eieni  alone.  If  between  the  indi 
arraiifnuieut,  or  trial,  Goodman  i 
died,  and  there  had  been  no  oth< 
altaintintr  sir  J.  F.  on))  the  defect 
dcQcc,  I  shouUl  uut  have  tliougliC  il 


IS] 


upon  a  Bill  of  Attainder. 


A.  D.  1696. 


[714 


fason,  though  we  should  hare  had  an  oppor-  * 
inity  of  brinff  informed  of  bis  particular  evi- 
ence,  and  believed  him  guilty  ;  and  if  sir  J. 
'.  does  not  appear  guilty,  I  do  not  think  any 
sason  of  stnte,  tlious^li  he  hath  prevaricated, 
ad  behaved  himself  to  the  dissatisfaction  of 
very  body  ;  therefore,  I  think,  there  must  be 
K>th  these. — You  have  heard  the  evidence ;  I 
•hall  not  repeat  it,  but  rather  come  to  these 
;hin{;s  that  distinj^uish  sir  J.  F.*s  case;  only 
tlius,  ynu  have  received  the  evidence  against 
sir  J.  F.  and  ^\^en  him  liberty  to  make  his 
defence,  and  have  fully  heard  him ;  Hhich  I 
think  bath  altereil  the  reason  of  a  g^reat  many 
precedents  cited  from  my  loni  Coke,  and  other 
tutiiors. — That  which  distinguishes  this  case 
is,  the  great  danger  the  nation  was  in  from  this 
conxpiracv,  and  the  sense  the  nation  hath  had 
ot'it;  and  i  find,  by  the  general  opinion  of  all 
persoDs,  t\iis  danger  is  not  at  an  end.    There 
leems  likewise  to  be  an  opinion  as  general,  that 
nr  J.  F.  could  have  contributed  to  your  safety 
bv  «  discovery . — ^Thc  next  circumstance,  that 
w  J.  F.  knowing  of  this,  and  the  expectation 
tbe  nation  had  from  him,  for  that  he  could 
btve  contributed  to  your  safety,  hath  made  use 
ofdiat  to  put  oflT  his'trial ;  and  at  last,  has  made 
wth  a  paper,  as  does  shew  an  inclination  to  do 
Tou  all  the  prejudice  he  can,  and  tended  to  the 
creatinsjf  of  new  dangers ;  and  by  this  means 
«r  J.  F.  against  whom  there  was  two  witnesses 
when  be  was  indictct),  hatli  delayed  his  trial, 
n  iliat  now  there  is  but  one ;  and  there  is  a  vio- 
kot  |)resaniption,that  this  person  is  withdrawn 
by  the  practice  of  sir  J.  F.*8  friends.— There 
fnnains  vet  with  roc  as  great  a  consideration 
•I  any  of*  these  :  the  public  resentment  of  the 
wtion  for  such  his  behaviour,  is  the  only  means 
^is  practictrhas  letl  you  ;  and  it  seems  neces- 
■■r?  for  your  safety,  to  come  the  next  lH»st  waj 
to  what  he  could  have  done.     Against  the  evi- 
fa»ce  that  bath  been  given,  there  have  been 
pcatifoubts  raised  ;  not  so  much  whether  it 
K  loch  evidence  as  may  incline  ns  to  bt* lieve 
Uffl  to  be  guilty  ;  bnt  whether  it  be  such  as 
yw  should  hear  in  the  capacity  you  are  in ; 
fiJ  whether,  after  it  is  found,  such  as  it  is,  that 
*  Dqt  snch  as  would  convict  him  iipon  another 
•rial.    W bether  you  ought  to  cre<lit  it,  and  that 
*onM  io6uencc  yon  to  give  your  vote  for  this 
Ul  of  attainder ;' this  is  a  tloubt  that  1  find 
*eia;tis generally  with  them  that  differ  from  me 
n  wioion  about  this  bill ;  and  therefore  I  de- 
tin  (cave  to  apeak  to  that  |mrticular. — It  is  said,' 
fbt  you  are  trying  of  air  J.  F.  that  you  are 
Hfes,  and  that  you  are  bntli  judges  and  jury  ; 
■•4  that  you  are*obltge<l  to  proceed  according 
to  the  same  rule,  though  not  the  methods,  of 
Wawninster-liall ;  terundum  allegata  et  pro- 
^s.— ihit  the  state  of  the  matter,  as  it  appears 
I*  me,  is,  that  you  are  here  in  your  legislative 
pover,  making  a  new  law  for  the  attainting  of 
tir  J.  F. ;  and  for  exempting  his  particular 
«K,aBd  trying  of  it,  (if  you  will  use  that  word, 
**Hjh  inproperiy);  in  which  case  the  methods 
Mer  fnifu  what  tlie  law  requires  in  other  cases ; 
faUw  ii  aflffcr  to  b^a  law  for  any  other  after- 


wards. Methinks  this  being  the  stpte  of  the 
case,  it  quite  puts  us  out  of  the  method  of  trials, 
and  all  the  laws  that  arc  for  limiting  roles  for 
evidence  at  trials  in  Westminster-hall,  and 
other  judicatures ;  for  it  must  be  agreed,  the 
same  rule  of  evidence  must  l>e  observed  in  other 
places  as  well  as  Westminster- hall,  I  mean  in 
impeachments,  and  it  has  always  lieen  so  taken. 
— This  notion  of  two  witnesses  has  so  much 
gained  upon  some  gentlemen,  that  we  have  had 
some  gentlemen  say,  that  this  is  required  by  the 
law  of  nature,  the  universal  law  of  nature,  nay, 
by  the  law  of  God.  And  1  think,  if  it  was 
so,  there  would  be  no  doubt  but  it  will  oblige 
us.~But  therefore  I  go  to  the  bottom  of  tne 
matter :  that  any  man  deserves  to  be  punished, 
is  because  be  is  criminal:  that  this  or  that  man 
deserves  it,  is  because  he  is  guilty  of  a  crime, 
let  his  crime  be  made  evident  any  way  whatso- 
ever ;  for  whatsoever  makes  the  truth  evident, 
is  and  is  accounted  in  all  laws  to  be  evidence.-^ 
Now  as  to  the  rules  for  examining  any  person, 
whether  he  is  guilty  or  not,  and  the  evidence 
that  is  allowed  in  all  nations,  no  two  Dations 
agree  in  the  same  evidence  for  the  trial  of  cri- 
minals, nor  in  the  manner  of  giving  the  evidence 
against  tliem.  Your  trials  differ  from  all  other 
nations  ;  not  only  that  you  are  tried  by  a  jury, 
which  is  particular  to  you  ;  but  that  the  wit- 
nesses arc  to  be  produced  face  to  face  before 
t  tie  offender;  and  you  have  made  laws,  that 
there  shall  be  two'  witnesses  in  cases  of  high 
treason ;  and  herein  you  are  the  envy  of  all 
other  nations. — Sir,  the  evidence  that  is  to  b« 
given  against  criminals,  differs  in  the  same  na- 
tion where  the  otfenccs  differ  :  there  is  a  dift'er- 
ence  lietween  the  evidence  that  will  convict  a 
man  of  felony,  and  the  evidence  that  is  to  con- 
vict a  man  of  treason ;  and  the  evidence  to 
convict  a  man  of  the  same  crime,  hath  been 
diirercnt  in  the  same  nation,  acconiing  to  the 
reason  of  the  law.  No  doub^,  by  the  common 
law  of  Kngland,  that  evidence  was  sufficient, 
which  was  sufficient  to  incline  the  jury  to  be- 
lieve the  person  gnilty.  This  before  the  statute 
of  Edward  6,  though  that  was  made  upon  great 
reason,  and  appears  to  he  for  the  public  good, 
by  the  general  approbation  it  hath  received  ; 
but  1  do  not  think  in  your  jiroceedings  here,  you 
are  liound  hy  it. — But,  sir,  it  is  said,  shall  we 
that  are  the  supreme  authority  (as  we  are  part 
of  it)  go  upon  less  evidence  to  satisfy  ourselves 
of  sir  John  Fenwick*s  guilt,  than  the  other 
courts  ?  and  shall  we  r«^ort  to  this  extraordinary 
way  in  this  <rase  ? — Truly,  if  it  did  shake  the 
manner  of  trials  below,  I  should  be  very  unwil- 
ting  to  do  it ;  but  f  do  take  it  clearly,  that  it 
cannot :  but  on  the  contrary,  1  think  there  is 
no  stronger  argunrrnt  for  your  resorting  to  this 
extraonlinary  way,  like  to  that  of  the  caution 
which  your  law  hath  provided  for  theiunocency 
of  all  persons.  For  if  we  consider  all  those 
laws  that  have  been  made,  it  in  plain  it  must  be 
in  the  view  of  our  ancestors,  that  criminals 
might  not  escape :  and  the  laws  are  made  for 
your  ordinary  trials,  and  for  those  things  that 
happen  usually ;  and  your  government  hath 


715] 


8  \VILLIAM  III.         Proceedingt  against  Sir  Join  Fentdck^        [716 


thi<»  a<lTanta<;;c,  that  tliey  can  keep  to  that  which 
othcr»  cauijot :  for  in  a  very  wise  gofernQieut 
Taa  %ias  obscrvtHl  by  a  person  that  sat  in  this 
Hou<ie  the  last  time  this  was  deluiteil)  the  ways 
of  [MUiiaihiDd^  crimes  of  this  nature  are  extraor- 
dinary, when  persons  are  condeinned  :  they  are 
not  only  unheard,  but  they  are  coitiienined  be- 
fore they  arc  accusetl ;  and  that  ia  thoui^ht  ne- 
cessary there,  which  will  not  be  endured  here: 
and  yet  that  government  hatli  continued  so 
loDf;;',  and  no  einleavours  have  been  to  alter  it, 
though  so  many  noble  families  have  suffered  by 
it,  because  they  are  convinced,  as  to  their  con- 
stitution, it  is  necessary. — The  next  argument 
is  fmm  the  precedent  we  are  aliout  to  make ; 
und  whatever  the  other  precedents  have  been, 
ivhat  you  do  now  will  bi'  a  precedent  for  you 
and  your  posterity ;  and  whilst  that  is  used  in 
make  you  cautious,  and  tends  to  make  you  con- 


Sir  Godfrey  Cople^f.  Sir,  I  am  vcrj  sniaiUe 
a  grreat  deal  hath  been  said  upon  tliis  sulgect  \ 
but  I  think  there  is  somethiu^  in  duty  incum- 
bent upon  every  man,  especially  upoa  me,  who 
cannot  concur  with  the  gfeocral  sense  of  the 
House,  to  give  my  reasons  for  ray  disagreeoieot; 
and  I  will  make  no  uscofariirunrieots  but  such  at 
1  cannot  aoswerinyself.  A  great  deal  bath  been 
said  upon  this  debate  by  gentlemen  learned  in 
the  law  :  and  many  of  Uiesc,  though  they  haie 
said  they  would  not  speak  as  to  the  power  uf 
parliaments,  yet  the  greatest  part  of  their  ar«ni« 
ments  have  touched  upon  yonrmethoil  of  pro- 
ceedings, and  to  shew  you  how  they  interfierv 
with  the  rules  of  Westminster- hall ;  sogrcatis 
the  foi*ce  of  custom  and  e<hicatiou  :  but  I  ac- 
knowl'jdge  some  have  brnii^lu  us  argumeuti 
quite  of  another  strain. — ^Tiiis  is  a  matter  of  jo 
extraordinary  importance,  that  1  think  it  proper 


iiider  well,  whether  it  isacconlingto  the  duty  to  j  to  consider  what  rules  we  have  tor  go  by ;  but  J 
your  country  to  pass  this  vote  (which  no  doubt  i  take  the  punishment  of  oH'euders  and  criniiiiaK 
IS  the  only  question  before  you),  it  i-f  a  good  ar-  j  to  be  the  necessar}'  support  of  all  guveromniti 
gument. — ISir,  if  this  precedent  shuU  appear  to  |  what';Gever,  without  which  no  government  cat 

continue;  but  all  societies  of  men  have  sup- 


posterity  to  lie  a  pri'ceilent  concerning  un  inno-  i 
cent  man,  or  a  person  whose  gr.ilt  was  doubted  ! 
uf,  or  one  whose  guilt  did  not  appear,  and  this 
bill  shoidd  be  carried  by  a  prevailing  party,  I 
tlo  :ut:rec  it  was  a  very  ill  preceilcnt :  but  if  the 
cuso  Im',  that  this  precedent  will  appear  to  pos- 
t'Tily,  upon  the  truth  of  the  tliinff,  to  be  a  j»ro- 
ced'.-iit  made  id'ii  man  notoriously  guilty;  of  a 
man  that  had  drserved  this  evtraordinary  w:.v 
uf  proivediiig,  this  extraordinary  resentment  ui' 
the  nation;  and  that  noihing  could  have  hin- 
dered this  man  tVom  the  ccMumon  Justice  of  (he 
iialiiiii,  liiii  Ills  havin'r  «  mlt  a^oiirt-il  to  « In<\^  it 
ui  lliiN  ikkaidi- ;  aiiil  li  ii  ap|i(>ar>  that  yon  wcnld 
not  hi-  put  iifi'Mi.  Imi  ikKidc  ail  r\aiiip!e  id  this  | 
in.iii,  I  shall  I. Ill  lir  s(in'\  it  stioiiid  appear  In  i 
posterity  ;  Inil  1  hrliru- poNii'rit\  wiii  (as  I  think  j 
liir\  itiiL;Ui)  lliaiik  MtiitiMii.  -  Sir.  I  dos:)y  iiM-  , 
ni\  own  p:ii  (irnl.ir,  \\  liiU- 1  a;ii  liinorriit.  1  should 
nnl  iImiiIv  iii\  lilr  iinlaiiijt no  Im- iud;;td  l»\  'H"» 
I  .ii'^lisli  t^i'iillrincii.aiKlllh'  pt<'r.ii;;rot  I'.niilaiid, 
With  (lie  iii\al  asvc.it  ;  and  wlini  1  nthct.  I 
iMiiiioi  Im'oI  iipmioii,  tli.it  tii(  uoveriiiiHiit  (MuM 
hair  prii«-iir«'l  a  p.iriiainciit  to  have  parsed  a 
hill  ol  atta'p'.T  a^iMiisi  iu\  lord  iJiisst'l,  or  Mr. 
i'oniisli.  or  Mr.  ( 'tdU  (Il^i-,  1  do  not  tliink  all  tlic 
poi\«'r  t»l  till-  tfoM  rniiuMit  iimhl  havr  p't'^aihsl 
with  the parliainciiL  to  havr  lione  it :  and  line  1 
sot?  that  a  j;ro:it  many  Lri'iitU-iiu'ii  have  opposed 
ivcry  step  ot' this  hill,  for  I'tar  of  iiiakinir  an  ill 
prfTcdriit ;  yet  those  ;ionllrniiMi  <lo  luditAe  in 
thrir  own  eonscitMicrs,  that  he  is  «xiiill\  ;  and  I 
raniiot  tliiiik  that  any  person  can  ho  in  dani|cr  hy 
surh  a  hill,  when  gentlemen  oppost^  this  hill 
only  iip<»n  tin?  prudential  jiart,  thouijh  tlu-y  still 
confess  hini  to  hei^-uilty. — All  the  eoneliisioii  [ 
make  toni\stlf  is,  that  1  do  helieve,  I  am  con- 
vinced in  my  et)nseience  (which  I  think  is  miI- 
fieiiMit,  when  I  act  in  the  ea|>acity  1  now  iU») 
that  sir  .1 .  F.  is  guilty  :  but  there  are  reaii<njs  m) 
exlraordiii.'iry  to  support  this  bill  of  attainder, 
that  I  do  not  see  how  any  person,  that  is  m> 
conviiieed,  can  refuse  to  give  his  atlirmati\u  to 
this  bill. 


Koseil  to  themselves  some  rules,  whereby  it  may 
c  known,  whether  offenders  are  guilty  or  no. 
— It  is  the  custom  of  our  nation,  to  have  tvo 
nositive  witnesses  to  prove  treason.  Now  h  may 
oe  imagined,  that  1  make  use  of  this  asaa 
nrgumcnr,  that  we  are  tied  up  to  these  rules: 
No,  I  am  not  of  that  opincim,  tJiat  wc  are 
I'onnd  b;^  the  rules  of  any  society  whatsoerer. 
'flic  pariiameot  have  power  to  alirogate  all  law« 
thutthey  have  passe«l,  if  they  think  good ;  aud 
so  certanily  caimot  he  liul  up  hy  any  rules  now 
ill  I't.nic.  l>ut,  sir,  there  arc  the  ettnial  ruk? 
('t'  e(|nity,  and  ju«»iii'e,  and  riuht  reason,  and 
eoiiscit.iii'e;  andlheje,  1  think,  are  nnaheruMi, 
and  iH*\er  to  he  swerved  frtjui;  ar-«i  theretuit  I 
shall  take  the  lilu  rty  to  see  how  fur  ai^Tetable 
<iiir  proc«  ediiiiTs  aie  to  these  rules. — ^Sir,  1  ih 
look  i;pon  it,  that  it  is  a  rule  a^T'-^'^'able  to  uhat 
I  s|>(  uk  of,  that  no  man  shall  he  aieiisi d  by  he 
knows  not  whom  ;  and  that  no  man  shall  be 
aeciistd,  hut  thai  the  r\idrnce  against  him,  and 
he,  shonltl  he  t  (iidVonled,  :Mul  brought  l;nf  to 
face. —  I  am  one  of  those  ihat  believe  sir.l.  F. 
to  he  guilty  ;  aiul  there  is  elewr  proof  of  ii  by 
one  witness;  and}  on  h.i\e  addt-d  to  ihisan  lU- 
dietnu  (It  that  is  (ound :  hui  I  lllll^t  iireiis  ut»n. 
that  1  think  that  to  he  so  lar  t'lom  giving  any 
aiMition  orstreiii:lij  to  iho  ev:dtiice,  that  v»hea 
that  is  hrou«:ht  i.i,  1  look  u;ion  the  scales  to  be 
liL;hterthantt»e>  w*  i.;  deline  :  l'i>r  if  any  record 
or  wrilini^  tl.a:  issworntolM^hind  a  niairs  hack, 
shall  he  hrouuht  lu  re  lo  supply  another  part  ut 
the  evidtnef*:  (iiid  ifnol  so,  wh^  i?,  it  hroni:lit 
lure!')  and  it  tiMt  h.'  lo  he  interpreted  to  make 
up  a  part  of  the  evi'K;::(  t,  I  do,  hy  paralUI  rea- 
son, aigii".  that  the  like  may  make  up  the  whole 
at  one  timeoraiioiher  ;  .u;:!  may  ho  so  fir  mjide 
use  ol",  that  an\  piisll.^.ite  kn.i\e,  t'lat  giiesin- 
tormation  Uiore  a  iii>aie  olpiace,  or  «»  Mcre- 
tuiy  of  stale,  ih;-;  iiin^  rist«  a'^ainst  ;•  ,  in.m 
whatsoe'.e:-  wh'':i  h.'.-so'moxi-.ins  iii  •}•  .•  ;.•.•> em- 
inent;  or  a  |»LM»«»n  iii;.\  ookm  'iv  ,!'■..■  niSii.KKl 
service  in  thii»  ni.;p.j  ;ii.d  ihi*  inciy  ?;«  set  up 


^]  upon  a  Bill  ofAllnindeu 

inst  him,  and  be  run  the  haamrd  of  his  life. 
Then,  sir,  u  to  the  necessity  of  this  matter, 
iiist  ooni^,  that  tlHMe  thatbrouc^ht  this  mat- 
before  us,  are  miich  wiser  tliaii  1 1  and 
refore  I  will  not  examine  what  reason  they 

I  to  do  it:  but  it  is  so  little  agreeable  to  me, 
rish  it  had  not  come  here.  But  is  it  to  be 
iposed,  that  yourffovemment  is  in  hazard  of 
^  man  that  is  fast  m  Newsi^ateP  Can  any  man 
nk,  that  sir  John  Feowick  can  do  any  thing 
bis  condition  to  hazard  it  ?  Can  you  expect 
It  a  man  that  hath  been  six  months  in  prison, 
A  nobody  came  at  him,  that  he  may  make 
ch  a  discovery  as  may  be  worth  your  while  ? 
t  suppose  you  had  a  man  of  invention  and 
letice,  what  a  spur  do  vou  put  to  it  i*  May 
<a  man  of  parts,  when  he  hath  no  other  way 
nve  himself,  may  not  he  frame  such  a  plot, 
may  make  the  b^tsubjccts  in  Eni^^ond  trem- 
e?— Why  then,  sir,  I  do  say,  by  this  yuu  are 
a  very  dangerous  way  tosuflcr  by  the  inven  • 
»  of  any  man  :  and  suppose  he  should  be  so 
iMraat,  as  to  know  nothing ;  or  so  great  a 
^bead,  to  be  able  to  invent  nothing,  would 
Ml  hang  him  either  for  ignorance  or  insufiici- 
wy :  I  must  confess,  1  dread  the  consequence 
r  this  for  the  nation  in  general,  and  fur  our 
«erjtv.  It  is  not  sir  John  Fen  wick's  life  1 
rpie  ibr :  I  do  not  think  it  worth  a  debate  in 
n  house,  nor  the  consideration  of  so  great  an 
■cmbly  ;  bat  I  do  say,  if  thismethod  of  pro- 
icdioghe  warranted  by  an  English  parliament, 
fre  is  an  end  to  the  defence  of  any  man  liv- 
if,  be  he  never  so  innocent. — Sir,  I  remember 
keani  it  mentioned  on  the  other  side  of  the 
ly,  by  an  honourable  person,  who  never  lets 
X  argument  want  its  weifrht,  that  king  James 
aioted  a  great  number  ot  persons  in  a  cata- 
rne,  in  a  lump.  feSir,  I  am  not  afraid  of  what 
Mrary  princes  do,  nor  an  Irish  parliament ; 

I I  am  afraid  of  what  shall  he  done  here:  1 
I  eoocemed  for  the  honour  of  }  our  procecd- 
>!,  tliat  it  may  not  l»e  a  precedent  to  a  future 
rfaaiettt  in  an  ill  reign,  which  I  am  sstislied 

0  would  not  do.  I  had  some  other  thouj^hts, 
lich  I  cannot  recollect,  Aec 
Mr.  Foley  (the  Speaker's  son).  Sir,  the  wor- 
F  gentleman  tliat  spake  first  upon  this  debate, 
h  me  up :  he  said,  that  he  thought  in  this 
liter,  every  one  ought  to  give  the  reasons  of 

1  opinion  :  and  in  givhig  the  reasons  of  my 
aion,  1  do  solemnly  protest,  I  do  it  with  the 
■e  sincerity  as  J  would  do,  if  I  was  upon  my 
tb,  and  of  a  jury. — ^I'be  worthy  gen  tie  man 
4,  that  if  there  could  be  any  danger  fmui 


A.  D.  169& 


[718 


a  jireeeilenr,  that  an  innocent  nimi  uiiglii  lose 
I  lifi*,  he  would  not  be  for  it.  1  desire  that 
would  consiiler,  whether  there  be  almost  any 
itaaeesof  any  innocent  men  that  have  lost 
eir  lives,  but  what  has  proceeded  from  prece- 
Bls  ibat  have  begun  upon  guilty  men.  The 
■egntlemaii  told  you,  that  if  we  did  not  be- 
vcsir  J.  F.  to  be  goilty,  no  other  considera- 
B ought  to  move  us  to  be  for  this  bill. — Now 
'  reason  I  am  against  this  bill  is,  because  it 
■  Boc  app«ar  te  loe,  from  the  evidence  that 
lb  beso  gives  at  tbe  bur,  that  sir  J.  F.  is 


guilty.  And  I  do  think,  that  which  is  not  legal 
evidence  is  no  evidence  ;  and  1  do  think,  thai 
all  the  lawyers  that  have  spoke  in  this  matter, 
have  allowed  it  to  be  no  legal  ev  idence.  And  I 
desire  gentlemen  will  consider,  if  it  has  not  been 
thought  reasonable,  that  men  should  be  000-* 
victed  upon  such  evi«leuce,  why  now  it  should 
be  said  to  be  uecessary  ?  I  think  the  saying  of 
mv  lord  StrafTurd  upon  his  trial  was  this :  if  the 
pilot  was  to  direct  a  ship  in  a  dangerous  sea^ 
and  there  was  no  buoy  to  direct  his  course,  if 
he  there  split  his  ship,  it  was  excusable ;  but  if 
there  was  a  buoy  up,  then  he  was  accountable 
for  it. — Now,  comparing  our  government  to  tbe 
sea,  there  hath  been  many  recks  and  sands,  and 
many  men  have  lost  their  lives  by  them :  but 
the  treason  bill  seems  to  be  set  as  a  buoy  to 
avoid  that  mischief  for  the  future.  Now  it  we 
split  upon  these  rocks,  I  shall  think  we  are  but 
ill  pilots.— Upon  a  former  debate  we  were  told, 
we  are  not  tied  up  to  the  rules  of  Wpstminster- 
hall,  and  it  was  sufficient  to  justify  a  man  \% 
giving  his  vote  for  this  bill,  that  he  was  satisfied 
that  sir  J.  F.  was  guilty :  see  the  consequence 
of  that,  in  things  that  1  have  as  much  believed 
as  I  do  this,  I  have  foimd  myself  mistaken.-^ 
When  a  jury  acts  according  to  legal  evidence, 
that  they  have  no  reason  to  mistrust :  when  a 
jury  finds  according  to  legal  evidence,  they  are  in 
no  manner  of  blame:  aud  if  this  man  be  inno- 
cent, when  you  have  taken  away  his  life,  and  his 
estate,  and  ruined  his  family,  all  that  you  have 
to  say  for  it  is,  that  you  have  acted  afcording* 
to  the  best  of  your  own  understandings,  guided 
by  your  own  private  opinion. — Were  this  the 
case  of  sir  J.  t .  only,  and  I  not  to  give  my  vote, 
I  reckon  him  so  despicable,  and  because  I  be- 
lieve him  to  be  a  traitor,  and  1  think  the  worse 
of  him  for  the  paii  he  hath  acted  since  he  was 
in  custody,  1  should  not  concern  myself  about 
it.  But  wh(Mi  J  speak  against  i\\\%  bill,  I  speak 
on  the  behalf  of  all  those  that  may  hereafter 
suiFcr  by  such  a  precedent  as  this.  Those  pre* 
cedents  thai  have  been  urged,  do  not  come  near 
this  point.  Audtliou<;h  the  powerof  the  par- 
liament is  above  that  of  other  courts,  yet  tnere 
hath  been  no  precedent  that  comes  up  to  this, 
that  wc  should  pass  a  bill  to  attaint  sir  J.  F. 
because  he  will  not  give  evidence,  or  there  is 
no  evidence  a|Li;ainst  him.  If  sir  J.  F.  be  to  be 
hanged,  liocause  there  is  but  one  evidence 
ai;niiist  him,  any  man  in  the  world  may  ;  aud 
thfu  1  think  every  man's  hie  depends  upon  it, 
whtthcr  this  house  do  like  him  or  not.  Consi- 
der what  a  reverse  of  opinion  this  will  be,  to 
what  former  parliaments  have  given  in  cases  of 
the  like  tiature.  I  think  if  this  bill  does  pass, 
every  mauS  lifo  will  be  as  precarious  as  his 
election. — We  have  lieen  told,  how  much  dan» 
ger  the  govcnmient  \iill  be  in,  if  this  bill  does 
not  pass.  I  have  as  much  zeal  for  this  govern- 
ment as  any  man ;  but  all  tho  government  is 
coiH-rrntMl,  is,  that  a  man  that  you  think  4 
traitor  should  live.  And  1  do  ihink  the  govern- 
ment is  no  Hiort>  Cf»ii(Terni*d  in  this  life,  than  iH  ' 
the  living  of  any  Jacobite  in  England.  But  on 
the  othei:  huud,  I  thiuk  the  lives  and  liberties  of 


719J 


«  WILLIAM  IIL  Proceedings  agahist  Sir  John  Fentoidt,        [71 


tilt!  siil»jecU  of  En^^Iand  arc  concerned ;  and,  by 
tills  bill,  you  will  make  all  their  lives  and  IIIkt- 
tics  |)rccanoiis. — 1  am  not  tor  briugingf  the  hlocMl 
of  sir  J.  1*.  ui>OD  me,  or  my  posterity  ;  nor  can 
1  consent  for  to  make  a  precedent,  that  a  man 
may  be  lianpfcd  without  eTidence. 

fiord  Cutts,  The  ivortliy  member  that  spake 
last  but  one,  told  you,  that  he  thou^rht  the  liie 
of  sir  J .  F.  was  nut  worth  the  consideration  of 
this  assembly  :  1  do  difler  from  him  in  that.  If 
the  Scripture  tells  us,  that  the  mOi!t  insignificant 
creature  docs  not  fall  without  God  Almighty's 
consideration,  1  think  the  life  of  a  gentleman 
may  be  tliou^^ht  worth  ours.  The  wurihy  ;;en- 
tlciuan  that  S|>ake  last,  told  us,  that  he  did  be- 
lieve hi  his  conscience  sir  J.  F.  to  be  guilty  : 
but  iKtAUse  he  hath  found  himself  mistaken 
formerly,  nhen  he  believed  things  with  tlie 
same  appearing  certainty,  therefore  he  may  be 
mistaken  now.  i  hope  gfentlemen  \t-illnot  press 
au  argument  upon  our  judgments,  from  prece- 
dents tliat  are  only  mistakes :  1  do  agree,  that 
any  man  may  be  mistaken  in  a  thing  which  at 
thalitime  he  thinks  himself mostcerlain  of:  but 
till  tliat  mistake  appears,  I  say,  it  ought  not  to 
inake  liim  doubt  of  any  thing  that  he  does 
clearly  and  distinct!  v  perceive  :  if  othenvise, 
tliere  is  an  end  of  all  religion  and  law  ;  and  it 
shakes  the  foundation  of  tlie  most  certain  belief 
a  man  can  entertain. — As  it  appears  to  me, 
some  gentlemen  seem  to  lay  a  greater  stress  on 
some  things  than  they  deserve,  and  are  not 
pleased  to  answer  some  arguments  :  and  there- 
fore I  dt'sirc  leave  to  speak  to  two  or  three 
points  in  sliurl.  I  shall  not  say  any  thing  of 
the  authority  of  pnrlianuiits,  it  speaks  itself; 
nor  of  the  ditiiTi'iil  funsideratiuu  of  our  ]iro- 
ciH'diugs,  and  that  (►fiiifi  rior  coarls  ;  tiiatset*  nis 
to  be  agreed  :  but  I  sliall  apply  myself  parli- 
eulariy  to  luentioii  some  lliiiiL^s  upon  sir  .1.  F.\ 
case,  and  in  that  t;ik<*  care,  as  mar  as  1  can, 
not  to  tn>ul>le  yui  uiilianv  \W\i\iX  llia\esaiil 
upon  this  snl)|i(>i. — I  caniMit  hut  i»!)sorve,  tiiat 
v\vr\  *;iM)tli  Mian  li.ai  s|i.'ak««  against  tliis  bill, 
lM't*iiis  \M\\i  ill)  ii)(rii«!(irliiiii.  that  ho  hillcu's 
hull  t'limiual  ;  uliicli  (UK's  M>iut-\>iiat  astoitisii 
iiK' :  I  hopr  ilivx  uill  ixplaiu  thiMiisoUes  a 
Jittli\  Hill  to  till'  point  :  as  lu  sir  .1.  F.'si'aso, 
I  <li(l  takr  iht*  lilu  ri\  in  a  rriauif!«  l.aiott*  ol»- 
MiAt',  ih.il  II  was  iidi  nplya  roii?  t».i;.c\  a:,ainst 
rill-  Kiul'iil  kili:r  **f  l''ilu^l.>:)il.  .sihl  !i.;  1  siu'l.  niii^ 
in  it.  Iml  also  ui  lM-iii:;:i)>^  in  a  i\  rauu.t  ai  ami  tn- 
nign  pi»\\i  I-  iip«Mi  \t>u.  Ui;l  tin  r.*  i*  our  m;;- 
MtliM-atiiMi  I  (Ii«l  im!  uu'iuioii  ih«  i).  lu-i.ni»o  [ 
thiMi;;4lil  uliat  I  vaul  canu-i]  so  ^iv.it  \\v  i>:iii.  it 
hvi\U  il  M  iu»t  :  I  ilo  .^.i> .  ii-.'t  »'ii1\  a^a  t'ii.  ivii.in, 
as  an  l'.iij;li'«ljiiian,  an. I  as  a  "-mI-.h'S  il  1..:^  -o- 
Vi-riiiiinii.  ;ii;a.iiNi  \t  l.i.'h  lu'  liatli  (\>!.uiiii.i  il  a 
«'riiuo  olilu*  lui^lu -^liLiiiMT  ;  l'.;i  1  ^w.l^aN...* 
.1  mail  (tf  lioii<uii'.  tiial  li.  li.i'.li  ..«:..:  vo,.trai\ 
ft»  llu*  riili  s  »it'  hotut'.ir.  I  lli,.;L  s  I  J.  I',',.,..,! 
Ill  i.lr  a  iiiiu'i  lu'llii  i":;.i;!v.  ii  lu'  l.a  1  a;  ,  .  and 
iii.iim-.  r.i  riaiu'ii^,  \iIuio  ho  iii.^lii  haw 
(*hai;;(  .1  r.i.s  pinuT  ;il  llio  luMit  oi'  ii.>  lu  ,i;*-5. 
than  tt.ixlv  haio  coiitnveti  his  diath  la  ilus 
I",  iiuui  Sir,  I  hat%oiii_\  one  ihin^  tii*^!'o  that 
I   'i  >.u*  lospvak  l*»  i  lor  \«hat  1  >.iv  i>  iu.».c  tor 


my  own  inforniation  than  to  desire  any  maa 
opinion  further  than  he  agrees  with  it :  1  saj 
most  gentlemen  have  likewise  owned,  tliat 
they  Uiought  this  an  extraordinary  cise,  the 
would  be  lor  this  bill.  I  do  say,  as  it  appeal 
to  me,  I  do  think,  if  ever  there  was  au  eitn 
ordinary  case,  this  is  one ;  and  if  ever  any  go 
▼crnment  was  in  danger,  this  is,  or  may  be 
upon  your  resolution  to  day.  A  great  (kal  a 
stress  hath  been  laid  upoo  this  argument,  tin 
sir  J.  F.  is  in  hold :  I  take  that  to  be  nutbiag 
for  they  keep  a  combination  together  still.  1 
is  by  rewards  and  punishments  that  all  goven 
ments  are  supported.  Uobberics,  that  were  v. 
common  in  France,  iat  you  could  nut  »aU 
aAer  it  was  dark,  by  punishments  they  ban 
been  brou(rht  to  that,  that  you  may  nde  fnia 
one  end  of  it  to  another  with  a  purse  of  gold  ia 
your  hand.  And  if  you  think  it  a  trifling  nut- 
ter, that  wicked  men  that  ha?e  such  indinatioiu 
should  escape,  I  do  not  doubt  but  you  may  bare 
plots  every  day. — 1  do  not  doubt  but  this  gentlr- 
man  knows  a  great  deal  that  he  bath  ncter  hiil 
before  you.  1  would  not  be  tlmught  to  pr«s6  it 
as  an  argument  that  he  should  be  conderoMil, 
liecause  he  would  not  confess  ;  but  I  irill  be 
bold  tosav,  if  he  does  know  of  a  great  oaov 
persons  that  have  been  concerned  in  this  ban- 
ness ;  if  he  knows  of  a  rising  that  was  desiiSDnl 
when  this  conspiracy  waste  be  executed  (aotli' 
may  be  executed  still,  if  things  shall  be  riperfM 
it) ;  I  say,  though  you  keep  him  in  hold,  itwil 
be  an  encouragement  to  them  to  go  in  the  ca- 
ImiIs,  in  buying  of  arms,  kc.  I  think  the  mat' 
tor  before  \  on  is  no  less  than  the  fate  of  Eog- 
lanil,  and  the  fate  of  Europe,  and  of  all  voiii 
posiirity  ;  1  am  sure  it  is  :  and  give  mefw-T^ 
to  say  to  you  one  thing  that  is  matter  ol'  l'iii< 
there* are  those  stories  insinuated  abniad,  auil 
those  mattei-s  of  facts  asserted,  with  relalioiH'' 
a  conspiracy,  and  reviling  this  hoiuse,  tlialt^ 
not  tit  lor  me  to  reju-at.  But  your  cnenm' 
last  \oar.  betore  tiie  Ineakin^"  out  of  tliisrwi- 
spiracy,  had  the  sanu*  sort  **i'  iiioftin;;s,  anu 
tin-  saiiie  sort  o\'  discourse,  as  tluy  liau-  now. 
I  will  cnil  uiiii  protesting  tii  you^  that  I  dia^ 
with  sir  J.  {'.  with  the  same  candour  aiHJ  li*** 
Hour,  as  1  shall  always  desire  t»>  Imi  dealt  wiiJ" 
n)\  M  W 

Nil-  tr.»//',  /  Co:>hy.  That  noble  lord  mi** 
uii>!i*'stin».l  what  1  saiil,  as  to  tlic  siiiail  ralur  I 
pill  iip«iii  >ir  J.  r. ;  1  did  say,  that  sir  J.  t« 
iMMsi.kuil  in  his  single  capacity,  1  tliJ  "^^ 
iluak  It  uas  woiili  the  while  of  ifiis  House  W 
ait  in  ilitir  K-iri'^lative  capacity  upon  him. 

S.rC  V.  t.  i,inufit.  1  think  this  bill  is  « 
vn A  unai  iiionuiii.  and  ou;;ht  well  lobecflJ- 
s;.:!!..!  Iicioro  it  parses  ;  for  when  it  ispissw 
il  xmU  hi'  loo  lato  to  rtiriive  the  ill  ct»iiK' 
«jv:rL^'o  w liAii  II n\  attend  it ;  there  is  m tuvca 
I'lUiUiV  ra  ilic  \i«ti«l,  1  think  it  hard  matter t* 
aiT.vc  .It  tj"o  truth.  It  is  nut  long  ago  tb»« 
\^:.s  a  ]  loi  v.i;.iri\iHl  by  one  Vouiig,  aiidotbefii 
.i:..iiaxi  ilir  l»i>hop  of  Ui.H'hestcT  ;  and  focdi' 
nwd,  that  it  a  bill  of  attainder  bw 


vc:i 


!.:,.ii;;lii  in  against  the  bishop  of  Boeb*" 
iiok'c  ihc  iruiU  Udd  been  discorcrali  1^ 


rai] 


upon  a  Bill  of  Attainder* 


A.  D.  1696. 


[72S 


lol  know  what  might  ha?e  been  the  conse- 
inence  of  it.  I  suppose  nobody  ({uestioDS  the 
nith  of  this  nlot ;  lot  God  forbid  that  every 
Kidy  that  hatn  been  named  for  it  bliould  be 
•:uiity.  it  naay  be  true,  that  there  was  such  a 
neetjng  that  sir  J.  F.  is  accused  of  bcincr  at, 
mi  yet  sir  J.  F.  niifjrbt  not  lie  there  ;  and  I  do 
lot  think  it  sufficiently  proved,  and  therefore  I 
!annot  i;ive  nay  conseut  to  this  hill. 

Mr.  Alanicy,  Sir,  I  have,  as  well  as  I  could, 
ittended  to  this  debate  in  tliis  matter  ;  au<l  I 
Jtd  not  trouble  you  in  the  last  debate,  because 
I  was  willing  to  take  all  the  opportunities  I 
could  to  inform  myself.  It  is  to  me  an  extra- 
•rdinary  thiofp,  not  only  ibr  the*  matter,  but 
maoner  of  your  proceedi'ugs  ;  which,  coiisider- 
in'jr  all  circumstances,  appears  to  me  to  be  not 
only  not  common,  hut  unprecedented  ;  and  as 
we  are  all  in  this  matter  judges,  so  I  hope  we 
shall  apply  ourselves  to  consider  of  it  with  that 
temper,  as  may  lead  us  to  give  a  right  judg- 
nent.  And  if  I  had  never  so  great  obligations 
opoD  me,  and  dependencies,  though  from  the 
crown,  1  would  fay  them  by,  at  least  they 
iboald  not  influence  my  judgment  in  this 
natter.  We  are  to  pass  judgment  in  a  matter 
flf  life  and  death  upon  this  person ;  and  it  is 
urged  we  should  do  it,  because  the  common 
conrse  of  justice  will  not  reach  him  for  the 
crime  objected  against  him,  which  is  high- 
tnisaoD;  and  the  species  of  that  treason,  as 
it  if  laid  in  the  indictment,  is,  &c.— Sir,  the 
evidence  that  hath  been  given  to  support  it, 
hath  been  the  afiirmation  of  a  singte  witness  at 
tke  bar ;  indeed  other  things  have  been  al  • 
Hged  in  the  bill ;  but,  as  bath  been  said  in 
Wtttminster-hall  upon  another  occasion,  they 
I<Kik  like  pep|)er  and  salt  to  me ;  for  in  tbeni- 
idrff]  they  are  not  crimes  (1  speak  with  sub- 
iiiMion  to  your  judgments),  at  least  to  bear 
Gonpaoy  with  an  accusation  of  hiirh- treason. 
—U  to  tlie  evidence ;  first,  capt.  Porter  tells 
yN,  That  sir  J.  F.  was  at  n  meeting  at  the 
King's- head,  and  at  Mrs.  Mouiitjoy's  aAer- 
«ards,  when  there  were  treasonable  iliscourses 
UDOugst  them,  and  Charnock  was  directed  to 
go  into  Fr:nce ;  but  the  end  of  that  is  not 
prored ;  for  the  witness  that  told  you  <if  those 
neetings,  did  not  tell  you,  as  1  observed,  that 
Charnock  did  go  lo  France ;  and  what  he  said 
<ipoo  other  occasions,  is  no  evidence  to  me. 
And  lliough  we  are  not  tied  up  to  the  niics  of 
We4tmiui>ter-halL  I  am  so  young  a  member,  I 
know  not  what  methods  are  observed  in  par- 
Kunent,  that  1  may  in  some  measure  make 
khem  a  rule  to  me.-— The  law  of  England  re- 
quires two  witnesses  upon  the  greatest  reason  ; 
sad  it  is  not  only  the  policy  of  England,  but 
iHe  isfeoeral  consent  (in  this  case)  of  the  whole 
«orb,  and  it  is  grouiuled  upon  the  law  of  Gcul. 
Uwas  objectetl  by  au  honourable  gentleman 
>be  other  day,  to  a  gentleman,  that  he  said 
*he  Jaw  of  Gwl  required  two  witnesses.  A 
ftalleman  who  is  ver^  near  allied  to  rtno,  from 
*boiB  be  might  have  early  informed  hinisell', 
nade  us  a  challenge,  to  shew  him  where  it  was 
to  be  found :  if  he  will  look  into  Numbers  and 
VOL.  XIII. 


Deuteronomy,  there  are  three  particular  texts 
very  plain  in  it.  The  reason  of  this  is  illus- 
trated in  the  story  of  Susannah ;  her  safety  de- 
pended upon  it:  and  the  Jews,  when  they  pro- 
secute«l  our  Saviour,  though  they  wanted  no 
malice,  nor  nothing  to  animate  them  to  nut 
him  to  death,  yet  St.  Matthew  tells  us,  at  last 
there  was  two  witnesses  found  against  him : 
and  this  being  the  law  of  the  land,  and  the 
law  of  God,  must  be  my  rule ;  1  must  have. 
this  matter  proved  against  sir  J.  F.  as  full  as 
the  law  of  the  land,  and  the  law  of  God  re- 
quires. The  other  evidence  brought  to  main- 
tain this  hill,  is  what  Ls  sworn  by  Goodman  be- 
fore a  justice  of  peace,  and  the  account  of  thit 
evidence  given  by  Goodman  to  the  Grand- Jury, 
which,  I  must  confess,  1  declare  1  am  very  far 
from  beinor  convinced  ought  to  have  weight 
with  us :  hut,  I  think,  they  must  lay  a  great 
weight  upon  it,  who  give  their  vote  for  this  bill ; 
or  otherwise  they  must  give  their  vote  upon  tlie 
testimony  of  one  witness. — The  reason  tor  tliis 
extraordinary  proceeding  is,  it  is  urged,  thera 
is  a  necessity  fur  it ;  the  plot  will  be  lost  else, 
say  some;  sir  J.  F.  says  others,  will  escape 
else.  As  for  the  plot,  I  wish  to  God  tliere  wai 
no  such  thing ;  but  it  is  probable  the  best  way 
of  ending  this  plot  would  be,  if  his  majesty  in 
his  wisdom  tliought  fit  to  interpose  with  his 
mercy  and  ^race  at  this  time ;  and  better  than 
for  the  legislative  power,  in  an  extraordinary 
manner,  to  take  off  a  person  against  whom 
there  is  not  a  legal  evidence.  Gentlemen  say, 
they  are  convinced  in  their  consciences ;  but'l 
VI  ill  appeal  to  their  consciences,  whether  there 
be  legal  proof  against  him  ;  and  shall  we  then 
intcriiose,  in  an  extraordinary  manner,  to  take 
away  his  life  !* — Mo  man  pietends  to  answer, 
but  that  tliis  proceeding  may  he  dangerous  to 
posterity  :  if  he  had  any  security  this  might  be 
done  without  that  danger,  it  might  be  some  enr 
coiiragenient  to  gentlemen  to  come  into  it, 
hut  since  it  may  be  dangerous,  are  not  we, 
who  are  eniruslod  by  the  people,  to  have  an 
equal  care  for  the  liberty  of  the  pi-ople?  Wo 
arc  to  t'lke  care  of  his  majesty's  lite  and  go- 
vernment ;  and  the  rcascm  is,  because  upon 
him,  and  his  govermnent,  tlie  public  safety 
docK  depend,  it  is  talus  populi,  is  the  ^at 
reason  that  the  law  takes  Huch  care  of  tho 
king ;  and  as  we  are  to  do  notliing  to  the  de- 
triment of  the  king,  so  we  are  to  do  nothing  for 
the  kinsr  that  may  lie  of  detriment  to  the  peo- 
ple.-^An  honourable  lord  hath  been  pleased  to 
say,  we  are  not  yet  out  of  danger:  I  am  sorry 
to  hear  it,  and  could  not  think  it,  when  so 
noble  a  lord  is  so  near  the  king,  and  hath  so 
great  a  share  in  taking  care  of  the  public 
safety.  But  sure,  nothing  can  happen  from 
this  person ;  there  hath  been  care  taken  he 
should  have  no  conversation  with  any  Imdy: 
If  1  thoiu;ht  there  was  a  haxard  to  the  goveni- 
mrnt,  or  to  the  kinir,  and  no  way  to  secure  us, 
hut  taking  away  this  gentleman's  hfe  ;  such  a 
reason  a<4  tliut  would  make  me  go  counter  to 
my  own  reason  and  judgment,  ijut  I  cannot 
be  of  opinion,  that  a  man  of  sir  ,|ohi|  V^XK- 
8  A 


7S3]  8  WILLIAAi  IIL  Proceedings  against  Sir  John  Fewvicl^ 

itick'fl  size,  who  in  his  best  cirouimUnces,  in- 
deed, is  a  ifentlenMn  by  birth,  and  hath  a  geu- 
tleimin's  fortune,  but  is  nonr  in  a  great  mea- 
sure withoot  his  estate ;  so  his  fortune  cannot 
do  any  hart,  and  his  alliance,  I  suppose,  is  tM>t 
considerable  enough  to  do  any  neituer. — Then 
aff  his  circumstances. do  not  make  him  so  con- 
siderable as  to  do  us  any  hurt,  let  us  take  care, 
that  we  do  not  in  any  case,  by  his  blood,  wound 
ourseWes.  Gentlemen  lay  but  little  stress 
vipon  the  dangeroosness  of  the  precedent :  I  do 
lay  more ;  and  it  is  chiefly  upon  that  reason  I 
cannot  come  up  to  be  for  this  bill.  I  would 
not  that  so  fipnod  a  parliament  should  lay  the 
foundation  of  any,  by  which,  in  after-ages,  the 
best  men  in  England  may  suffer.  It  is  said, 
an  ill  parliament  will  not  want  a  precedent,  but 
will  nuike  use  of  their  power ;  but  they  will 
fall  sooner  into,  if  led  by  a  good  parliament. — 
Sir,  this  is  a  matter  1  woukl  not  ha?e  presumed 
to  ha?e  troubled  you  in :  for  I  cannot  think 
any  thing  1  can  say,  will  have  any  weight  with 
any  one  that  is  not  of  my  opinion :  but  as  nn 
Englishman,  ns  I  ha?e  the  honour  to  be  of  this 
House,  when  a  thing  of  this  nature  comes  be- 
Ibre  us,  and  I  am  to  gi?e  my  opinion  as  a  judge 
in  it,  1  was  willing  to  give  mj  reasons  for  my 
opinion.  I  think  this  hill  is  unpreceilented ; 
and  yoo  will  give  me  leave  to  say,  it  appears 
to  roe  to  be  imronsonable ;  1  think  it  contrary 
to  the  fundamental  rules  of  reason  and  justice ; 

1  doubt  it  may  be  dangerous  to  our  constitu- 
tion ;  and  I  frar  future  age.s  may  have  reason  to 

repent  what  we  do ;  and  therefore  I  am  against 

this  bill,  and  hope  it  will  not  fmss. 
Sir  If ';«.  Strickland,     Sir,  I  do  assnrc  you,  I 

shall  not  in  nny  thing  of  this  bill,  or  any'tlti ng 

dw,  fun  countcM*  to  my  conscience  of  judg- 
ment;   bnt  i  do  think,  and  1  think  t'vw  deny 

it,  I  do  think  in  niv  conscience  that  sir  J.  I*. 

is  guilty  ;  and  thiiiungso,  I  uught  to  condemn 

him.    1  do  think,  if  we  should  s|)are  this  ^rn- 

tlcmon  tor  uant  of  form,  as  they  call  it,  now 

we  ai-e  in  our  lf^islati>e  capacity,  and  there 

should  he  any  ill  t  Ifccts  of  ii ;  and  oilici*  peo- 
ple, by  tiiiukin^^  they  might  avoid  punishment 

by  the  forms  t.f  Wehiinhister-liQll,  should  have 

the  like  imau:itiaiiun  against  his  majesty,  and 

they  slioiild  take  eft'ect ;    I  shoiilil  think  myself 

in  a  great  lutasure  guilty  of  that  misfortune. 

I  think  tlie  kingdom  is   concerned,  and   the 

king's  preservation,  in  this  bill ;    and  I  hope 

you  will  pass  it. 

Mr.  Doflcn.     I  am  against  passing  of  this 

hill;   and  I  shall,  with  as  mucn  bre\ity  as  1 

can,   Is^^  before  you  my  reasons  why  I  am 

agauist  it;    and  pnibabfy  I  should  not  have 

troubled  the  hou&c  with  them,  but  that  I  think 

it  necessary  to  justify  my  opinion  in  a  case  of 

this  imporUmee.     1  do  admit  that  the  fact  that 

is  charged  upon  sir  «f.  F.  is  an  overt-act  of 

high -treason,    within  the    25th  of   Edw.  3, 

though  1  must  take  leave  to  say  that  a  judf- 

ment  upon  a  case,  at  least  as  strong  as  this. 

Las  lately  been  very  much  arraigned  and  con- 

trovcrtetf :    hut  it  is  not  my  intent  to  dispute 

the  nature  of  this  fiict ;   for  I  am  persuaded, 


[7fl 


that  to  consult  how  to  procore  ffi  inwioa  of 
this  kingdom  with  fordgn  fivreea,  it  an  overt- 
act  of  compawhig  the  death  of  the  king ;  and 
I  do  think  this  cnarge  does  aminmt  to  lach  in 
overt- act.  Bnt  1  oe^  leave  to  reflect,  bow 
far  overt- acts  of  this  nature,  which  fall  dheet- 
1 V  within  any  species  of  treaaon  roentroncd  in 
the  25th  of  Edw.  3,  bow  far  such  treaaom  art 
cognizable  in  pariianent,  and  within  the  hi- 
tention  of  that  statntej  indeed,  that  Ihcy  are 
cognizable  by  the  absolute  power  of  parlia- 
ment, there  is  no  doubt  Sh-,  that  tfie  ititate 
doth  first  enumerate  several  speciei  or  branches 
of  facts,  which  it  says  shall  be  irijadged  trea- 
son, that  is,  in  the  courts  of  judicature ;  and 
then  afterwards  it  goes  on,  and  nya,  •  If  aaj 
'  other  case  supposed  treason,  not  specified 

*  in  that  act,  dotn  happen  before  any  jnstier, 

*  the  justices  shall  tarry  without  any  going  lo 
'judgement  of  the  treason  till  the  caose  he 

*  shewed  and  declared  before  the  king  and  hk 

*  pariiament,  whether  it  ooffht  to  be  yiAgtA 

*  treason  or  fckmy.'    Now,  Sir,  wteh  anbiiiB- 
sinn,  this  is  a  great  argument,  that  the  intea- 
tbn  of  those  that  made  this  law  was,  fbit 
these  treasons,  which  were  directly  undtf  ay 
of  these  particulars  ennmerated  by  thestrftie, 
that  they  should  he  leff^  and  be  appfopriHedH 
the  decision  of  the  infterior  oourta :    but  that 
facts  of  another  nature,  which  did  wti  earn 
under  the  particulars  eiramerated  in  the  let,  is 
extraordinary  offences,  and  misbehavianr  of 
magistrates  and  great  men,  and  the  like ;  Aeic 
indeed  should  be  reserved  for  the  considentiQa 
and  judgment  of  the  parliament,  who  are  ooly 
a  match  for   powerful   oflenders,  whom  tu 
common  justice  of  the  kingdom  cannot  grap- 
ple with.     And  as  this  seems  to  he  the  ioten- 
tinn  of  the  makers  of  the  aet,  so  I  think  tbe 
instances  generally  have  been  pursuant  to  that 
institution  ;  for  I'know  of  hut  one  single  in- 
stance  of  any  one  that  ever  was  attainted  by 
bill  for  any  treason  that  is  contained  uader 
any  species  enumerated  in  the  25th  Edw.  S. 
It  is  true,  where  persons  have  been  out  of  the 
reach  of  the  law,  in  open  rebellion,  or  M 
from  justice  ;    in  these  cases  the  parliameot 
have  thought  fit  to  attaint  them  ;    as  in  the 
case  of  sir  John  Mortimer,  and  others  wbo 
made  an  escajie  out  of  the  Tower ;    and  the 
case  of  the  regicides,  and  likewise  the  case  of 
the  dnke  of  Afonmouth,  who  was  in  open  re- 
bellion :  but  I  say,  that  I  have  not  found  in  my 
reading,  upon  the  best  search  1  could  make, 
where  any  that  were  in  custody  were  attainted 
by  bill  for  any  treason  within  *25  Edw.  3,  and 
that  was  the  case  of  Ferliam ;  but  1  think  there 
is  nn  precedent  of  any  man,  who  is  nut  only  ia 
custody,  but  hath  been  indi<!ted,  arraigned,  and 
issue  joined,  and  he  hath  put  himselfopon  bis 
country  for  his  trial :    and  the  person  accused 
was  to  be  convicted,  or  acquitted,  by  the  ver- 
dict of  twelve  men  ;  1  never  heard  of  any  hh 
stance,  when  after  all  this  proceedinsf  a  pcrMi 
was  taken  off  from  his  trial,  and  doarred  tb^ 
benefit  of  the  judgment  of  his  peers,  and  At 
benefit  of  his  chaUengers,  and  dettroyid,  Add 


r25] 


upon  a  BUlj^AUaMmr. 


A.IX  1096. 


prsG 


wt  •ff  cxtnyttdicitUy  by  an  aet  nuide  an  par* 
liaae,  ts  potifscto:  i  nercr  mat  with  any  in- 
ilaace  like  it«  nnleas  it  be  that  of  my  lord 
toakbnl ;  and  I  believe  nobody  will  cite  that, 
if  they  reflect  a|ioD  tiie  preamble  of  tlie  act 
for  rerersin|y  his  altaiuder:   tor  in  tlie  pre- 
amble it  is  said,  that  the  turbulent  party  «lid 
attempt  the  iirocnrinsf  of  that  act, on  purpose  to 
condemn  bim.    This  sliews  the  opinion  of  our 
|irrdec6SBors  in  rdation  to  proeecdiaufs  of  this 
sort ;  they  astpem  it  contrary  to  tlie  funila- 
mental  nues  of  justice  and  rigbt,  which  padia- 
ments,  as  well  as  other  courts,  must  be  gOTern- 
ed  by.     Roger  Mortimer  was  attainted,  and 
afterwanb  his  attainder  was  reversod ;  and  the 
reason    ileclared,   because  he  was    attainted 
against  the  good  laws  and  customs  of  the  king- 
doa.    Ferham'a,  that  I  meutionod  before;  and 
deckired  lor  the  future,  that  it  shouki  be,  8cc. — 
Anolhtr  attainder  tliore  was  of  sir  Tliorass 
Hazey ;  but  that  was  leiersed,  and  declared  to 
he  againat  all  bw.    Then  there  are  the  attain- 
den  af  H.  S's  time ;  I  shall  not  paiticidurize 
them ;  hot  besides  that,  all  the  history  of  tliosc 
times,  and  law-books,  condemued  lliem,  as 
praeeedings  againstall  law  and  justice.    There 
IS  tbeauinte  ^  1  Edw.  6,  c'  IS,  seems  directly 
jar eUed  against  those  attainders  in  the  ureced- 
iag  seigv ;    far  it  says,  that  the  prooeadings  in 
king  H.  S*alime,  were  grounded  upon  biwa  that 
were  artreme  and  terrible ;   and  tneielbre  that 
tbcra  migfat  be  no  proceedings  of  that  kind  for 
the  teufe,  it  raduoes  all  treasons  to  the  ancient 
ttandud  of  QS  Edw.  3,  and  g^oes  on,  and 
caadsthai  bo  man  shall  be  convicted  or  con- 
demned for  treason,  but  upon  the  testimony  of 
two  lawful  witnessL'S. — Now,  I  tske  that  to  be 
a  general  law,  and  to  ezteod  to  all  convictions 
vSA  oonderonatioua  for  treason ;  and  cairootbot 
dechre  my  opinkin  of  it,  that  it  mart  extend  to 
bib  of  atiainder,  aiuce  these  are  Uie  principal 
uifBuutt  powerful  oonvictiotts  andcondemna- 
liMB ;  and  if  that  statute  does  extend  to  bills  of 
MHader,  than  pray  consider,  whether  this  bill 
•f  sttainder  now  be  supported  by  such  evidence 
IS  the  slalnte  raqnires  ?  There  was  indeed  one 
hvfiil  witness  produced  :   but  instead  of  the 
Mhsr,  they  have  only  produced  a  record  be- 
tesea  parties  not  concerned  in  this  bill,  and 
tJK  depositions  of  a  peraon,  whether  living  or 
4eid,  nameamsiat;  aiui  I  believe  nobody  will 
Wf  these  deiMwltioos  will  be  equivaleut  to  a 
■ttoad  witness.— i  do  believe  a  great  many 
fltttlameo  are  of  opinion,  that  those  rules  of 
Cfidsnee  are  not  to  guide  you  here :  Dut  1  beg 
pardon  thai  I  cannot  poaaibly  be  of  that  opinion ; 
1  mhar  ineline  to  my  L.  C  J.  Vau^^han's  no- 
liis,  that  though  we  are  not  bound  bv  the  forms 
if  liw,  yet  we  are  bound  by  the  rules  of  Uw  : 
tmj  body  allows  we  are  bound  as  to  the  nature 
if  the  Uka  :  every  bodv  will  take  himself  bound 
^  the  statute  of  36  lulw.  3,  to  form  bis  judg- 
■eslas  to  the  Cm;!:   Why  are  not  we  then 
bmnd  by  these  acta  f    likewise  aH  to  the  evi- 
dace,  mad  the  proof  of  tlie  fact :  if  05  Edw.  3 
Ai  kinding  to  nn,  so  aa  to  psescrihe  us  a  rule 
•lijndg&lhelMlJiy,  wbyamuoi  the  atotutes 


of  Edw.  6  binding  to  us  as  to  the  evidence  of 
that  fact  f^But  say  some  gontlemeti,  if  there 
be  not  two  witnesses,  that  is  from  sir  J.  P.  or 
his  agenU.  Sir,  no  gentleman  will  say,  that 
ther^hath  been  any  proof  of  that:  the  verv  biH 
docs  not  charge  him  with  it ;  But  taking  it  for 
granted,  what  shall  follow  upon  that  P  8hall  if 
theretbre  follow,  thatsir  J.  ¥.  shall  immediately 
be  put  to  dbath  Y  No,  God  forbid !  i  tliiok  there 
is  no  parity  between  the  crime  of  seducing 
away  a  witness,  and  the  judgment  of  death: 
But  I  think  this  a  more  reasonable  and  naturdl 
inference  to  be  made,  that  beeause  sir  J.  F. 
hath  sedoeed  away  a  witness,  tlierefore  it  is 
just  to  make  a  law,  tliat  the  depositions  of  that 
witness  dtould  be  of  as  good  force  and  effect 
ak  if  Goodman  was  here  to  give  it  viva  voce  ; 
for  then  you  will  net  take  from  him  the  benefit 
of  his  tnal,  nor  the  benefit  of  his  challenges, 
which  is  the  birth-right  of  every  Englishman. — 
And  one  thing  1  will  say  further :  These  bills 
of  attainder  are  likeSisiphiis's  stone,  they  have 
rolled  back  upon  those  rhat  have  been  the  pro- 
moter* of  them.  It  is  known,  that  my  lord 
Cromwell  was  the  first  man  that  promoted 
tlicm  in  H.  8's  time :  and  tlie  lulvii.'ethRt  he  gave 
his  master  tor  the  ruin  of  others,  provinl  fotal  to 
himself.— Sir,  this  is  the  last  time  we  shall  have 
the  opportunity  of  considering  this  matter.  1 
must  take  leave  to  declare,  that  my  opinion  is, 
that  if  1  consent  to  tlic  passini;  of  this  bill  against 
air  John  Fenwick's  life,  u|)on  any  other  grounds 
than  such  as  are  entirely  agreeable,  and  justi- 
ftaUe  bv  the  laws  of  God  and  man,  1  am  guilty 
of  the  death  of  sir  John  Fenwick.  I  am  not 
satisfied  that  I  can  give  mv  consent  to  this  bill 
upon  those  grounds,  and  therefore  1  beg  leave 
to  be  against  it. 

Sir  Edw.  Seffmour,  You  all  know  I  have 
borne  my  testimony  against  this  bill,  being  not 
persuaded  that  it  fs  just :  Now  we  are  come 
to  the  finishing  part  of  it :  and  I  shall  lay  be- 
fiwe  you  those  reasons  that  prevail  wil  h  me,  and 
submit  them  to  the  jwlgment  of  the  hoiiw ; 
and  if  I  am  more  te^lious  than  1  used  to  lie,  I 
ho|M;  the  occasion  is  such,  thai  yo\i  will  pardon 
me :  for  1  will  endeavour  to  contract  mvKclf 
into  as  near  a  compass  as  1  can — 1  6hafl  not 
trouble  you  with  any  arguments  that  hivve  been 
laid  before  you  alreaily  ;  nor  shall  1  outer  into 
the  examination  of  prpcedciits ;  a  great  many 
have  been  laid  beforeyou,  and  ntrrciit  mauy  of 
th^m  iMve  been  reveinied,  most  of  them  ;  and 
tlie  reasons  why  they  have  lieen  rcvented^ 
because  the  persons  condeiiiiied  have  tint  had 
the  due  benefit  of  the  law  :  And  if  that  he  a 
jrood  reason  for  reversing  of  siicli  an  attainder. 
It  is  a  good  reason  why  you  should  not  do  it.  1 
cauiiot  but  take  notice,  that  tlie  beginning  of  this 
bill  in  the  iiouseof  comiuuns,  is  the  first  step  of 
this  kind  that  hath  been  made  in  parliament, 
exce|it  that  of  the  duke  of  Monmouth  :  and 
the  reason  of  it  I  take  to  be  this,  because  you 
h«ir  not  upon  oath  ;  you  condemn  not  upon 
oath :  You,  nor  the  itany  under  accusation 
have  that  advantage  against  a  forsworn  evi- 
dcnoe,  aa  there  it  m  the  other  house  \  the  me- 


727J 


8  WILLIAM  IIL  Proceedhgt  agnnU  Sir  Jckn  Fenwick, 


[7» 
Id  hii 


tbod  bai  beeo  to  pais  such  bills  in  the  bonsii  of 
lords,  and  transmit  tbem  hither,  upon  which 
jfou  then  judge.  1  think,  in  this  case  you  have 
no  evidence;  and  instead  of  two  witnesses,  you 
have  no  witnesses  at  all ;  for  as  to  Goodman, 
*  De  nun  apparentibus  et  non  existentihiu 
'  eadeni  est  ratio.*  As  to  Porter,  he  hath  been 
examined :  But  when  vou  consider  that  he  was 
a  persiin  eofraged  in  this  conspiracy,  and  that 
he  hsd  no  rppentauoe  of  his  crime  till  he  was 
discovered,  and  then  he  comes  to  be  au  evi- 
dence ;    how  far  that  shall  sway,  every  man 

must  allow  ;    that  I  must  submit  to  you  :    But      ^   , 

thus  much  i  may  nay,  every  man  uiust  allow    he  had  done  a  ;fOod  thing;  and  I  may  say  this 


admitted,  that  a  man  shall  act  i 
conscience,  and  not  accordiofp  to  the  ] 
are  prcscrilied  him,  I  know  not  who  is  safe ; 
for  how  can  an  innocent  man  make  hb  dcftaee 
upon  that  principle  P  It  is  a  safe  eonsideniioa 
lor  them  that  take  U|ioo  tbem  that  way  of 
judifiufr,  because  they  are  bound  by  no  riues ; 
but  what  hath  nut  tliatdone  almost  within  me- 
mory !  Felton,  Uiat  killed  the  duke  of  Buck- 
ingham, wliatwas  his  justification,  but  he  w« 
iiersua<lcd  in  conscience  be  did  well  in  so  do- 
m^  P  llavillac,  thai  killed  Hen.  4,  in  Fnuwe,  he 
justified  the  same  by  his  < 


me,  that  in  f.ir  les»  cases  no  man  that  does 
swear  for  hiinsi  If,  or  upou  his  own  account,  is 
to  bc'admitttd  as  uii  evidi^nce.  11'  a  robbery 
be  commiitsd  in  an  hundred,  tliou^h  a  man  be 
but  to  pay  a  ;;roat  towards  it,  be  shall  not  be 
nn  evidence ;  how  much  more  then  in  a  case, 
when  a  man  comes  tiisnear  to  take  away  ano- 
ther's hie  to  save  his  own  ?  For  he  is  not  in  the 
condition  of  a  freeman  :  who  ^\\'t&  his  evidence 
wit! tout  check  or  conlronl,  but  lie  i«>  duidj^in'v 
on  for  his  pardon,  as  the  counsel  tuld  you, 
which  depends  uccordinc^  to  the  cvidimce  he 
docs  give  or  not  give. — Fur  my  part,  I  cannot 
^  so  far  as  some  gentle  lueu  have  done,  to  say 
sir  J.  F.  is  guilty  :  For  where  there  i«  no  law, 
there  is  no  transgression ;  a  man  that  is  gnihy, 
must  be  guilty  acconling  to  tlie  law :  and  the 
law  hath  required  and  said,  that  there  shall 
be  no  treason  but  what  is  proved  by  two  wit- 
nesses ;  and  here  it  appears  tiiat  you  have  not 
one.  The  sarnie  law  thai  calls  it  treason,  says 
it  shall  l>e  sopro%eil;  Then  if  you  pass  this 
hill,  you  make  that  treason  whirh  bct'oru  was 
Mi»t  treason. — Sir,  ihe  l.!W  docs  require  tv*o 
witnesses,  and  the  re  is  diviu'i  aulhorit\'  lor  it 


argument  of  conscience  hath  acted  all  the  vil- 
lainy of  the  last  age,  and  I  am  afraid  bilk 
gone  a  great  way  to  disturb  the  bappincn  if 
this.  For  if  this  be  a  rubs  to  this  bouse,  how  ii 
the  king  bound  ?  I  thought  he  bad  been  boad 
by  law ;  but  it' this  shall  be  admitted  as  an  ir- 
giiment,  it  is  enough  to  say,  if  thishouse  bear- 
'is.    I  do  not  reflect  opM  tkii 


bitrary,  thekin«^... 

reign ;  but  it  will  be  enough  to  say,  tboogfa  he 
act  against  law,  and  turn  twenty  colleges  sot 
of  doors>  his  conscience  persuades  him  is  it 
We  see  how  unboundeil  liberty  the  lonls  take, 
they  are  become  masters  of  all  our  eslitei ; 
and  I  ivouU  be  very  loth  for  m  v  estate  Is  de- 
pend upon  the  feeble  tenure  of  a  lord's  een* 
science.  If  then  this  be  the  case,  as  it  is,  se- 
cording  to  this  method,  I  desire  to  know  isto 
what  condition  we  shall  bring  ourselves  f— Yes 
have  been  tobl,  it  is  expected  ftom  vso  by 
your  country,  that  yen  should  exert  toil  as- 
thority  and  power  :  Sir,  I  would  have  bees  gU 
that  in  cascb  mure  reasonable  we  had  exem 
this  niithority  and  power  of  parliament ;  Iwibli 
it  had  i^ouu  tu  the  priveiitin;?  the  debasing  aori 
ahtisiog  your  coin ;  1  uish  it  could  be  exerted, 
that  wc  might  nut  see  oui>>elvcs  cheated  undcf 
countenance  of  nn  act  o\'  |>arliamcnt;  but  cos- 
tiary  to  that,  you  arc  fund  of  being  sprinkled 
hud  I  \utli  the  bloutl  of  sir  John  Fcnwick.  As  hx^ 
as  the  &>overnmeut  is  not  in  danger,  I  belieit 
the  country  would  he  glad  that  their  bloeJ 
ini;;ht  run  secure  in  their  veins,  and  not  betapi 
upun  tM^ry  occasiuii  U)  serve  a  turn ;  for  if 
vi)U  hreak  the  laws,  what  man  can  pruiuisie 
Iiiin&elf  security  ^  We  know  the  f»>nse(jueiioe, 
it' this  bill  does  not  pass  ;  sir  J.  F.  may  live  is 
uiiktry  all  \m  time.— But  what  this  preceilest 


too :  It  bath  been  hinted  at,  the  ])lact?  in  Num- 
bers, •  No  man  is  to  die  uj)on  sia^rte  evidence  ;* 
and  it  says,  <  Tliesc  urc  the  staiuics  you  shall 

*  observe  throughout  your  generations  hui 
'  dwellings.*  But  I  will  go  a  little  further,  be- 
cause a  worthy  (;i.iitlcman  declared,  there  was 
no  such  law  of  God.  He  \»iilfiD(l,iii  the  lyih 
of  Dfcutcronojuy,  a  case  just  as  it  is  here  ;  tor 
the  case  of  hiy:li-ucason  was  idolatry  at  that 
time  ;  and  tin;  law  says,  *  W  hosDuvcr  shall  set 

*  up  idols  shall  be  siiitieil  to  death ;  hut  it  says, 

*  No  man  shall  bo  condcmntd  to  die  by  the  ,  ^ 

*  inouih  of  one  winu'ss,  but  hy  two  or  three  '  may  liiake,  no  man  can  foresee.     This  biili* 

*  witnesses  he  •hall  suJlVr :'  1  think  tliis  is  po-  \  anrainst  the  law  of  God  ;  against  the  law  of  the 
sitive  enough.  I  shall  not  tmuhie  you  with  I  laud ;  it  docs  contribute  to  the  subversiua  of 
more  instances,  thou'^h  I  could  rciuat  seveiaj.  '  ilie  constitution,  and  to  the  subversion  of  iH 
Sir,  the  law  enjoins  lorn  is  «liictlv,  cvc  n  to  the  I  ufovcrnment ;  for  if  there  be  rules  to  be  ob« 
leabt  circninstance :  If  u  man  be  eondeinned  \  served  in  all  governments,  and  no  goveraiscBt 
to  die,  and  after  he  is  condemned  tu  die,  an-  I  ean  be  without  them,  if  you  subvert  those 
other  take  away  the  lift-  of  that  man,  it  is  mur-  .  rules,  you  destroy  the  government ;  and  there^ 

fore,  for  these  e(insidcraii<ms,  noboily  wiH 
think  it  strange,  if  I  <^ive  my  negative  to  thii 
hill. 

Mr.  Chanc.  ij'thv.  Kichrq.  Sir.  thegentleaas 
that  spake  hist,  hath  carried  the  reason  agaitft 
this  hill  a  little  further  than  s«Hne  others ;  ftril 
seems  now,  we  are  nut  to  reject  the  biU  ^ 
want  of  one  witness  tliat  is  l^gal  in  J^cspur 


der.  I  will  ^o  furthi-r :  If  the  uHicer  that  is  t« 
do  exccuiion,  if  a  man  be  cuiuU  mned  to  be 
liangeij,  I'rawn  and  quartered  ;  if  the  nflicer 
shot  him,  it  is  murder  in  him ;  so  that  men 
are  not  left  tu  a  discretionary  power  to  act  ac- 
cording to  their  consciences.  1  take  the  rea- 
son bv  which  this  hill  is  supported,  to  be  de- 
structive fo  all  human  society  j  lor  if  that  be 


7^]  upon  aim  of  Attainder. 

Mer-hiJIy  but  it  leeiDi  iiiere  is  no  evidence  at 
all ;  andl  by  ca|it.  Porter'a  not  being  pantoned, 
and  yet  drudging  tor  bia  pardon ;  aa  to  all  that 
have  been  condemned  upon  bia  teatiniony,  be 
iiatb  arcmigned  tbe  evidence  aa  not  sufficient, 
aad  bopes  that  will  be  the  iudgment  of  tbe 
house  upon  this  bill.    I  tliink  if  tbe  house  re- 
jtcitbis  bill  upon  that  argument,  it  will  go 
farther  than  many  mean  that  oppose  it. — An- 
other thing  lie  says,  be  comparea  tbe  conric- 
tious  that  I  hare  upon  my  judgment,  and  of 
trery  body  else  that  speaks  from  the  proofs 
that  are  made,  that  be  is  guilty,  to  the  whimsey 
«f  two  or  three  madmen ;  whereas  we  gu  ac- 
cording to  the  evidence  brought  at  the  bar  ; 
wf  do  not  iroupon  the  whimsies  of  Uavilisc 
•id  Fdlon,  Dot  upon  tbe  proofs  that  have  been 
Bade  here ;  and  though  tuere  are  not  two  wit- 


1,  yet  upon  what  appears  in  iiroof,  1  am 
ctovioced,  that  be  is  gudty;    and  upon  that 
convictiua,  I  think,  acoording  to  the  duty  I 
see  ny  country,  and  the  constitution  of  £ug- 
luid,  when  a  bill  does  come  to  punish  the  man 
whom  1  think  guilty,  I  think  I  ought  to  be  for 
Ike  bill.     As  to  what  is  said  out  of  Deuterono- 
my, that  tbe  law  of  God  was  against  it,  if  you 
Will  arpie  ^  fortiori,  it  is  literally  true  in  the 
ease  of  murder ;  but  whether  murder  or  trea- 
aoo,  there  is  the  life  of  a  man  concerned ;  and 
it  is  not  the  punishment,  whether  to  be  hanged, 
or  banged,  drawui  and  quartered,  that  makes 
"any  great  difference ;  and  give  me  leave  to  say, 
if  you  go  to  make  orecedenU  from  the  Jewish 
Hv,  tlm,  I  say,  the  law  of  England  is  against 
thai  law,  in  case  of  murder:  and  by  tbe  same 
reason  you  may  deaire  leave  to  bring  in  a  bill 
to  repeal  all  tiMMe  laws.— Sir,  if  this  was  the 
«tonal  law  of  God  and  man,  where  was  this 
eternal  law  in  England  before  Edward  Gth's 
liner  If  it  be  the  eterual  law,  that  there  must 
be  two  witnesses,  why  does  it  not  hoM  in  Eiig- 
laad  even  in  some  caaes  of  treason  to  this  day  ; 
I  mean  the  treason  of  clipping  and  coining? 
l5o,  ibal  if  gentlemen  will  argue  the  nature  of 
these  faults  arc  what  the  law  of  every  country 
onlaina,  and  that  ia  the  law.— And  the  way  of 
«ndsnoe  and  proof  too  differs  in  every  coun- 
trj ;  and  |  may  affirm,  that  there  never  was 
any  gvremment  in  which  there  was  not  a 
Vswcr  lodged  somewhere  to  be  exerted  upon 
«Anordinary  occasious,  beyond  the  legal  way 
«f  |ir88ecution,^l  don't  care  to  travel  lutn  the 
«!vcral  oiHintriea  to  see  how  their  constitution 
ill  but  I  believe  tliere  is  not  one  phice  in  £o- 
npe  ia  which  it  is  strictly  necessary  there 
mssM  be  two  witnesses  to  take  away  the  life 
^a  man ;  but  it  is  generally  so  as  it  is  here  in 
^^t^mtfY'  cases,  but  in  this  very  law:  this 
w  h*  does  nut  go  upon  two  witnesses,  but 
}n  have  a  proviso  in  it  does  absolutely  exempt 
l*«eecdings  in  parliament:  I  do  not  infer  from 
wvnee,  that  you  should  not  have  two  witnesws, 
^j9Ki  proceed  by  way  of  impeachnient,    1 
ttiik  you  oaght ;   and  so  for  having  witnesses 
|iNoath,&c.    When  these  proc^ings  are 
there  is  a  direct  proviso,  by 
ia  exempted  from  those 


"•hidillM 


A.  D.  1696-  [730 

rules.  Upon  the  whole  matter,  I  think  this 
man  is  guilty ;  I  think  the  precedent  would  be 
more  fatal,  to  say,  that  a  parliament  can't  pro- 
ceed in  such  a  case,  than  that  a  guilty  man 
shouki  suffer.  I  think  this  bill  coiues  before 
you  with  more  circumstances  and  reason  to 
justify  it,  than  any  that  hath  been  brought 
here  before ;  here  is  a  bill  found  against  him 
by  his  country,  the  evidence  of  his  friends  hav- 
ing tampered  with  one  of  the  witnesses,  con- 
6rmed  by  a  jury,  &c. — A  learned  gentleman 
says,  he  would  come  up  to  make  this  paper 
evidence;  but  can't  come  up  to  make  such  a 
law,  by  whicli  every  man  tliat  is  concerned  in 
that  Jeposition  would  be  affected :  but  here  is 
something  particular  in  this  case,  a  man  that 
hath  been  abroad,  and  hath  not  used  tbe  like 
artifice,  I  think  you  ought  not  to  use  the  like 
iiower  to  punish  him,  that  is  not  guilty  of  the 
like  crime.  And  therefore  I  shall  conclude  ^ 
but  I  must  take  notice  of  one  thing :  it  was 
said,  that  this  was  the  first  precedent  of  this 
kind  begun  in  this  House,  but  that  of  tbe  duke 
of'  Aloumouth :  but  I  believe,  if  this  bill  of  at- 
tainder is  not  to  be  begun  in  this  House,  il  ia 
not  tu  be  brought  in  at  all ;  for  I  believe  there 
is  a  statute,  tliat  the  life  of  a  commoner  is 
never  to  be  meddled  with  by  the  lords  orisnn- 
ally.  I  will  not  trouble  you  any  further:  I  do 
in  mv  conscience  think  that  sur  J.  F.  is  guilty, 
and  therefore  1  am  for  this  bill. 

Mr.  Jfelham.  I  did  not  think  to  have 
troubled  you  this  day  :  I  did  rather  iotcnd  to 
have  left  it  to  others  that  can  speak  better,  or 
have  not  spoken  upon  this  subject;  but  that 
which  hath  been  mentioned  by  several,  as  if 
they  did  thipk  that  we  who  mentioned  the  law 
of  God  upon  this  occasion,  did  it  as  if  we  did 
think  the  law  of  God  was  binding  to  you  at  this 
day :  I  never  thought  any  such  thmg,  other- 
wise than  as  to  the  morality  of  it,  so  far  forth 
as  it  is  grounded  upon  reason  and  justice,  and 
tends  to  the  clearing  of  an  innocent  man ;  and 
so  far  we  and  all  mankind  are  bound  by  it ;  and 
that  law  having  been  afterwards  confiimcdin 
the  New  Testament  by  our  Saviour  and  bis 
apostles,  at  least  approved  of  by  them ;  and 
this  having  been  confirmed  by  the  bw  of  Eng- 
land likewise ;  1  do  not  think  this  is  a  fit  occa- 
sion for  you  to  pass  by  so  fundamental  a  law  as 
that  is :  and  I  conclude  with  this,  that  I  can  not 
satisfy  myself  in  my  conscience,  and  should 
think  some  misfbitune  might  follow  me  and  my 
posterity,  if  I  passed  sentence  upon  sir  J.  F.'s 
life,  u|H)n  less  evidence  than  the  law  of  England 
requireH. 

Sir  H,  Crofts,  f  shall  endeavour,  as  much 
as  I  can,  to  give  you  little  trouble  in  this  mat- 
ter. But  because  it  bath  beeu  hinted  and  re- 
marked so  particularly  upon  me,  I  must  beg 
leave  to  discharvre  my  duty,  as  well  as  my  con- 
science, as  to  what  I  said  hore  the  other  day. — 
isir,  I  do  very  much  forget  myself,  if  J  did 
assert,  that  there  was  no  such  place  in  scrip- 
ture that  required  two  witnesses:  the  thing 
that  1  said,  was  this,  that  if  'any  gentleman 
could  shew  me  any  rule  from  scripture  that  re* 


7SIJ 


8  WILLIAM  m. 


^iiiredi  tw  witoeMes,  mora  in  the  eaae  oftrei- 
•00  Um  io  the  cue  of  murder  and  felony,  I 
should  be  fflad  to  lee  k.  I  do  my,  that  the 
■criptare  ■hall  be  a  rule  to  me,  aa  far  aa  the 
•criiptare  reauiret ;  but  I  do  Uko  the  Jewiah 
Jaw  DOt  to  be  so  absolutely  literally  binding 
upon  OB  here.  And  as  to  the  text  out  of  Num- 
bem,  that  Tery  text  of  acriptore  is  particularly 
and  literally  applicable  to  UMirder ;  and  if  that 
be  binding  now,  we  have  been  rery  much  mia- 
gnided  by  oiur  predccesson,  and  I  think  we  are 
hound  to  take  it  iu  baud,  to  repeal  all  laws 
that  are  o^ainst  it.— Sir,  lie  is  pleased  to  deny 
U8|  in  some  measure,  the  liberty  of  being  guided 
by  our  consciences ;  truly,  1  douU  know  what 
be  would  liare  gentlemen  go  by ;  truly,  let  him 
go  by  what  rule  he  pleases,  I  wiU  eo  by  the  rule 
of  my  conscience,  and  will  not  do  any  thing 
•gainst  it  upon  any  consideration  or  conse- 
eoenoe  whatsoerer ;  nor  will  I  part  from  the  li- 
berty and  power  of  parliaments,  for  any  rule  or 
law  of  inferior  courts  whatsoever. — Sir,  you 
ara  toMy  you  ought  to  be  guided  by  the  rules  of 
law,  thai  is,  not  ihe  tonus  of  law,  but  the  rules 
of  law.  Sir,  I  say,  if  these  rules  were  made  to 
bind  parliaments,  it  was  reasonable  they  should 
>c  bound  by  them;  but  if  they  were  made 
only  to  bind  inferior  courts,  they  were  far 
enough  from  being  intended  to  put  a  cramp 
Hpon  the  proceedings  of  parliament ;  and  if  you 
aoall  subject  yourselves  to  them,  you  give  the 
Uw^crs  such  a  power,  Oial  I  do  not  doubt,  but 
llictf  books  will  be  of  greater  authority  than 
your  journals ;  therefore,  in  coosideration  of 
that,  and  because  I  would  leave  that  which  is 
the  right  of  parliaments  to  my  successors,  I 
jthall  not  subuiit  to  that. — ^Therefore,  I  say,  I 
come  clear  to  the  point,  whether  bir  J.  F.'  be 
guilty  or  not ;  only  I  roust  observe  a  little  hack. 
Sot  as  to  those  instances  that  the  worthy  mem- 
ber was  ulcased  to  m:ike  use  of,  of  Kav  iliac 
and  of  Feltou  ;  shall  those  extraordinary  cases, 
that  which  nteu  did  in  heat  of  hluod  and  pri- 
vate malice :  shall  these  be  brouij^ht  to  bear  a 
parallel  with  what  is  done  in  parliament  for  the 


l^roc^eHiigi  againtt  Sir  John  Feuidckt        [TSS 

vation  of  die  natkw,  and  all  ow  paHarity : 
tbev  that  made  this  attmapC,  made  il  «|ian  yon 
and  y 


tere,  and  ffave  testimony  againit  him,  if  I 
t  believe  him  to  be  cuilty,  I  wonld  ksc 
B  rather  tlian  vote  bim  ao ;   but  oa  the 


lyour  posterity  forever:  itiaaetaoi 
a  matter  as  none  ranrcwot  it;  k  ia  bqc  lbs 
petaoB,  to  much  ea  tfie  natgne  of  the  lad  wc 
are  to  oonsider ;  and  we  are  nol  to  let  wen  es- 
cape punishment  aooording  V>  their  greatecsi 
or  their  smallness,  but  according  to  the  Baton 
of  the  fact^d  their  guilt.  I  Ihmk  I  baveibil 
freedom,  and  I  am  so  little  bound  by  those  roki 
that  have  been  urged,  that  if  both 
were  liere, 
did  not  I 
my  life  i 

contrary,  if  here  be  sulBcieot  evidence  to  em- 
vince  me,  though  not  according  to  the  raka  «f 
inferior  courts,  I  will  not  snlgect  the  firesdsM 
of  parliaments  to  those  rulea.— ^r,  youhaie 
been  told  formeriy,  and  I  think  it  a  matter  sf 
that  weight,  I  beg  leave  to  urge  at  i^pua,  be- 
cause it  IS  a  great  reasoe  that  guides  me  in  tbii 
matter;  if  you  lay  it  down  tor  a  doctrine  ia 
this  house  (for  a  reMdutkm  here  taken  is  m 
much  a  rule  aa  a  bw,  for  it  ahall  be  bcuegbtai 
a  preoedent;)  and  therefore,  if  it  shall  be  bid 
down  as  a  rule-here,  tliat  vou  will  never  atleiol 
any  man,  or  find  him  guilty,  but  upon  Ufo  wil^ 
nessea,  I  think  the  government,  and  aM  yeu  bare^ 
stands  upon  a  tottering  foundatioo:  be  nait 
be  a  very  ordinary  staieeman,  that  cannet  bjr 
his  plot  fo,  as  yon  shall  not  reach  him  by  Iva 
witnesses.^— Therefore,  I  say,  I  think  H  b^ 
I  oomes  the  wisdom  of  parliament,  uottodeubR 
I  tliemsolves  bound  in  tJuit  respect ;  I  would  bms 
them  bouud  hy  justice,  but  nut  by  the  cumami 
rule  of  the  law. 

I*^ir  Ruber t  Cotton.  Sir,  I  do  find  tluitgca- 
tleinen  do  very  much  iiisisit  in  this  case,  UmI  if 
a  gentleman  does  believe  that  sir  J.  F.  is  guikvi 
he  must  give  his  vote  for  the  iiasaiug  of  this  bil : 
if  that  be  so,  I  am  glad  that  o|uuiou  did  eat 
take  place  in  the  last  reign  ;  if  it  had,  I  em  of 
opinion  I  should  not  have  been  here  now,  and 
I  believe  my  lord  Warrington,  who  was  rcty 
instrumental   in    promoting:    this   revoh  ' 


justice  of  the  nation  ?    I  do  not  doubt  but  there  I  would  not  have  dieil  in  his  bed.      My  lard 


arc  men  enough,  in  their  consciences,  at  least 
with  pretence  of  it,  will  justify  the  destruction 
of  your  government  and  reli&^iiui,  and  every 
thing  else :  all  those  men  thai  deny  the  right 
of  your  government,  liave  conscience  and  jus- 
tice enough  to  subvert  it,  if  thev  could  ;  and 
therefore  I  do  not  so  much  wonder,  tliai  many 
men  without  doors  have  argued  in  that  nature. 
—But  I  say,  my  tvinscience  is  the  rule  I  must 
go  by  ;  and  to  uiu  the  question  is  only,  whether 
air  J.  F.  he  guilty  or  nut  guilty,  anil  am  called 
to  give  my  judgment  in  it ;   and  I  think  1  am 


1  were  accused  of  a  crime,  wliicli,  1  believe,  if 

proved  by  two  witnesses,  had  been  treason.  J 

have  heard  some  gentlemen  say  in  tliis  hove 

they  did  believe  my  lord  VVarringtou  was  |piiltj 

I  (though  he  was  not  guilty  of  the  i'act  u  it  vn 

'  laid).    There  was  a  man  swore,  &c.  and  tbos 

;  was  some  corroborating  evidence;   but  esiB 

I  11  r.  Fley,  and  myself,  there  was  none,  but  this 

I  particular  person,  anil  thev  indicted  usof  tfii* 

!  demeanor ;  though  it  would  have  been  trcassi, 

if  there  had  been  two  witnesses.    Now  if  ibe 

same  fact  was  treason  when  proved  by  tt* 


bound  by  the  law  of  nature,  by  the  law  of  the  i  witnesses,  and  but  misdemeanor  when 


nation,  and  I  see  nothing  in  tlie  law  of  God 
that  prohibiu  me,  to  give  my  jud^ucnt  accord- 
ing to  the  evidence,  and  the  o|»inion  I  have  in 
my  conscience  of  the  tnith  of  it. — If  there  be 
no  such  rule  that  requires  two  witnesses  binding 
U|>on  iiie :  if  1  may  go  upon  one  witness ;  if  i 
believe  he  s|ieaks  true,  and  that  the  person  is 
guilty  I  then  i  am  bound  to  act  for  the  preser- 


by  one,  methiuks  we  are  doingan  ex 
thing  ;  we  are  going,  after  llie  ftct  < 
to  make  that  which  is  hut  a  iuisdemeBnor,iali 
treason.  And  for  these  and  other  reaaivibi 
caimot  agree  to  the  passing  of  tliia  bilL 

Lord  Norrei/s,  Sir,  thongli  I  hail  elvnyt  • 
apprehension  of  the  ill  coMMuewMeTlhliUli 
yet  never  60  muqb  as  now  ;  fori 


J3] 


upon  a  Bill  of  Attainder. 


A.  D.  1656. 


173* 


ith  givcB  arptiments  that  shake  me  more  than 
I  that  I  hate  heard  htfore ;  for  he  says,  there 
V  a  ^^reat  many  men,  if  they  may  proceed  ac- 
irding  to  their  consciences,  wiH  suhrert  this 
ifTcmment,  and  brin^  in  khig  James  and  arbi- 
ary  power:  and  he  tells  you,  that  every  pre- 
■dent  in  this  honse  is  equal  to  a  law,  and  will 
ifltify  the  like  for  the  future.  1  am  sure  I  am 
ery  unwilling  to  make  a  precedent  that  shall 
■ti^  men  in  snch  ill  actions,  in  saying  tbehr 
■        ^  prompted  them  to  it. 


[Then  a  (|uestion  was  pat  for  bringing  in 
aodles ;  which  passed  in  the  atfirmatiTey  and 
hey  were  brought  in.] 

Mr.  Hamond.  I  do  not  think  the  power  of 
■riiaments  in  qfiestion  in  this  case ;  bnt  then, 
tf  all  other  powen,  it  mast  be  founded  upon 
Mice,  and  oerer  osed  bnt  upon  extraordinary 
wcasions,  and  when  criminab  are  not  to  be 
OKI  with  otherwise.  The  power  of  parliaments 
B  not  lessened,  if  this  bill  does  not  pass :  hot 
the  qui!Stion  is,  Whether  this  power  shall  be 
ottitcd  in  this  case  ?  What  gentlemen  say  of 
hong  guided  by  conscience,  hath  no  weight 
with  ma,  farther  than  that  is  gOTcmed  by  the 
hv  of  the  land :  if  it  be  to  be  admitted  in  the 
cue  of  life  aud  blood,  why  not  In  mevm  et 
(im  f  Why  was  he  broaght  to  the  bar  then, 
if,  according  to  our  private  judgment,  we  are 
^  deiemiine  this  matter  ?  No  man  thonght  but 
he  vas  guilty.— I  beg  leaTc  to  mention  one 
^  that  it  cometo  my  knowledge :  After  the 
trid  aod  condemnation  of  Mr.  Cook,  I  had  an 
*der  sent  me,  that  I  might  see  him  ;  and  I 
vent  to  him  by  virtue  of  that  order  ;  aud  the 
pMleit  part  oi^the  time  I  spent  with  him,  he 
Oak  op  in  declaring  against  the  evidence  of 
^^•sdwan,  and  that  he  would  receive  tliesa- 
QamcDt  Qpon  it,  and  give  it  in  writing,  as  his 
TiBg  wonls.  I  saw  also  three  positive  wit- 
iCMea  confront  him  at  his  trial  ;  and  when  I 
•eanf  him  say  this,  it  weighed  so  much  with 
le^  that  1  have  very  great  ground  of  suspicion, 
htt  Goodman  was  perjured  in  the  case  of 
ioakd — Here  hath  been  popular  expressions  of 
loli,  and  Jacobites,  that  no  man  can  apply  to 
his  partieinar  case,  or  say,  this  a  case  where- 
I  We  onfj^t  to  use  this  extraordinary  power : 
le  WIS  m  the  hands  of  the  law,  and  nobody 
it  say,  that  the  government  mu&t  sink,  if  he 
aes  not  die.  I''  we  go  from  the  niles  of  jus- 
lee,  1  briieve  it  willgive  a  great  blow  to  the 


Mr.  rcraoR.  Sir,  I  rise  op  only  upon  what 
bat  worthy  gentleman  hath  offered  unto  you  ; 
sr  I  did  not  think  to  trouble  you  with  any 
hiBf  of  tbit  nature.  But  if  you  will  give  me 
eavcto  aeauaiDt  ywa  with  what  I  believe  who 
tare  been  later  with  him  than  tliis  gentleman, 
m  modi  cdtener.  Sir,  he  does  tell  me,  that  he 
^^^yj^^  ftom  denying  what  hath  been  sworn 
ifriHl  air  J.  F.  and  himself,  concerning  the 
jiwawdliliiin  to  bring  ovar  the  French ;  for  he 
Mb  a  Tcryparticatar  remembrance  of  it:  And 
f  fhit  gcMieman  was  to  speak  with  him  now, 
t«  WMd  satisfy  him,  I  bdiere,  in  thai  point 

4 


And  since  I  am  up,  1  think  avery  man  that 
speaks  upon  this  occasion,  should  likewise  give 
some  account  of  lirmsetf,  in  what  manner,  and 
for  what  reason,  he  discharges  his  conscience 
here :  I  hope  I  may  use  that  word,  since  gen- 
tlemen make  use  of  conscience  for  his  acquittal ; 
and  a  man  ought  to  have  a  very  good  consci- 
ence for  his  condemnation. — As  to  sir  J.  F.'s 
innocence,  1  wish  he  had  given  no  occasion  to 
have  it  called  in  question  :  And  since  he  did 
fall  under  this  accusation,  I  wish  he,  or  his 
counsel  for  him,  would  have  taken  some  pains 
to  have  made  his  innocency  app<;ar :  Bnt  1  do 
not  find  the  question  is,  whether  sir  J.  F.  is 
guilty  ?  Bnt  whether  there  be  any  evidence  of 
bis  ^uilt  ?  And  I  shall  tell  3*ou,  ni  short,  my 
opinion  of  that :  I  take  the  proof  of  the  fact  to 
be,  in  general,  such  a  demonstration,  as  the  na- 
ture of  the  thing  is  capable  of ;  and  that  is  suf- 
ficient, and  capable  to  convince  a  reasonable, 
honest,  unprejudiced  man,  of  the  truth  of  what 
is  asserted.  And  there  is  no  niauner  of  doubt 
left,  whether  it  is  so  or  no  ;  nor  appearance  of 
any  possibility,  tliat  it  could  be  otherwise.  I 
think  there  hath  been  that  proof  in  this  case, 
and  nothing  attempted  to  disprove  it,  and  no- 
thing hath  been  uroved  on  sir  J.  F.'s  behalf, 
that  any  wrong  hatn  been  done  him :  And  there- 
fore, in  short,  my  sense  is,  that  whereas  some 
gentlemen  think  nim  guilty,  but  the  matter  not 
proved,  I  think  him  guilty,  bccauseit  is  proved, 
and  there  hath  been  no  offer  made  to  dis- 
prove it. 

Mr.  Bramlej/  Warr,  Some  gentlemen  have 
S|N)ke  of  the  power  of  parliaments ;  but  I  shall 
say  nothing  to  their  power,  which  1  have  learn* 
ed  from  my  lord  Coke,  is  so  transcendant  and 
absolute,  that  it  cannot  lie  confined  within  any 
bounds:  But  the  more  jnst  and  honourable  U 
ooght  to  1)0  in  its  proceedings,  to  give  an  ex- 
ample to  inferior  courts.  And  though  their 
power  cannot  be  denied,  yet  the  exercise  of  it 
hath  been  oflen  censured  and  condemned ;  and 
acts  that  have  passed  in  one  parliament,  have 
been  in  the  same  reign  repealed,  and  sometimes 
severely  branded, '  Id  possumus,  quod  jure  pos- 
*  sumus.'  It  is  certain,  here  is  a  defect  of  legal 
evidence  :  ^Ve  are  not  ticti  here  to  the  forms 
of  Westminster-hall ;  but  certainly  with  sub- 
mission, wc  ought  to  tie  ourselves  ui>  to  the 
rules  of  Wcstmiuster-hall,  es^iecially  wnen  they 
arc  founded  upon  common  justice,  whieh  is  the 
same,  is  not  mutable,  and  ought  to  be  universal. 
— By  the  law  of  the  land,  no  person  ought  to 
be  convicted  in  cases  of  treason,  but  upon  two 
witnesses ;  the  law  of  God  is  the  same.  How- 
ever, if  you  will  pass  this  bill,  all  persons  must 
acquiesce  ;  and  there  is  no  disputing  of  your 
power  afterwards.  It  hath  l>een  an  argument 
used  to  day,  that  the  security  of  the  govern- 
ment requires  the  passing  of  this  bill ;  which  1 
think  to  be  a  good  one  too,  if  they  can  make  it 
appear,  that  unless  you  proceed  in  this  way, 
the  government  is  in  danger  :  Though  1  must 
observe,  it  was  not  that  consideration,  hut  the 
vindication  of  an  honourable  person*s  reputar 
tioD,  that  brodght  this  matter  first  before  you. 


735] 


8  WILLIAM  III.         Proceedings  against  Sir  John  Fentciekf         [ 


— It  does  not  appear  to  me,  that  sir  J.  F.'s  life 
or  deatb  can  endanger  the  gOTernment.  You 
have  been  told  of  a  design  that  he  hath  been 
engaged  in,  and  is  carried  on  at  this  time :  That 
an  mvasion  from  France  seems  to  threaten  us  : 
The  former  design  hath  been  happily  disco? ered 
and  defeated  ;  and  it  is  not  probable  that  sir 
J.  F.  should  have  any  great  share  in  any  that 
is  carrying  on  at  present :  And,  as  fir  as  I  can 
learn,  he  is  not  so  considerable  a  man  in  his 
own  person  or  interest,  that  we  need  fear  hiro. 
— An  honourable  person  said,  if  we  do  not 
pass  this  bill,  they  that  sent  us  here  would  fiwe 
us  no  thanks.  It  is  not  a  good  way  of  arguing; 
but,  I  believe,  if  those  look  forward,  they  will 
thank  us.  Sir,  in  the  act  for  declaring  the 
rights  and  liberties  of  the  people,  you  have  it 
aaid,  that  the  late  king  James,  by  the  assistance 
of  divers  evil  counsellors,  &c.  How  comes  it 
to  pass,  that  we  never  have  attainted  any  of 
them  ?  And  if  we  arc  for  proceeding  in  this  way 
of' attainder,  because  it  pifases  them  that  sent 
us  hither,  I  daresay,  the  attainting  one  of  those 
.men  would  gratify  those  that  sent  us  hither, 
more  than  the  attainting  twenty  such  as  sir  J. 
F.  It  was  pretty  well  known  what  share  some 

gentlemen  had  m  bringing  in  of  popery  and  ar- 
trary  power ;  and  I  will  take  the  liberty  to  say, 
that  there  is  never  a  gentleman  in  this  House, 
but  believes  them  to  1^  the  worst  of  criminals. 
•—Upon  the  whole  matter,  I  do  not  think  you 
have  any  occasion  to  exert  a  power,  that 
nobody  denies:  I  sec  no  security  this  will  be  to 
the  government,  and  consequently,  no  necessity 
of  it.  1  think  yon  are  making  a  most  dano:cr- 
ous  precedent,  and  that  it  will  be  of  ill  consc  ■ 
quence  to  you;  and  therefore  i  am  against 
this  bill. 

Mr.  Smith.  Sir,  I  will  be  as  short  as  I  ran  ; 
and  if  it  had  not  been  fur  somclliiiig  in  this 
day's  debatP,  1  should  not  have  troubled  you. 
As  to  what  was  said  by  the  gentleman  that  spake 
last,  of  making  examples  of  some  that  had 
been  criminal  in  the  last  reign^  how  that  came 


exceptions  to  that  evidence  which  the  k 
England  allows  to  be  good !  For  it  is  Dd 
ous,  it  hath  been  admitted  in  Westmini 
hall :  and  gentlemen  might  as  well  b%ve 
you,  that  tliose  men  that  safTered  died  u 
cent,  as  to  have  denied  iL  And  I  think  t1 
is  a  further  strengthening  of  his  eviilence; 
there  is  not  one  man,  wno  hatb  died  upoi 
evidence,  but  hath  ackoowledgetl  himteligi 
Qf  what  he  hath  charged  him  witli. — ^As  to 
matter  of  the  other  evidence^  sir,  I  do  not 
that  it  is  evidence  that  will  come  at  Westc 
ster-hall ;  hut  at  the  same  time,  give  me  h 
to  tell  you,  they  seem  to  lay  a  little  stress  a 
it,  when  thoy  tell  you,  they  bdieve  it  was  i 
evidence,  and  instance  in  what  Cook  said 
gentleman  of  this  House,  after  his  condeic 
tion  ;  but  I  think  thus  far  I  may  say, 
when  you  sent  some  of  your  memliers  to  i 
niinv  sir  J.  Friend,  he  did  own  all  those  | 
sons  to  be  at  that  place :  and  that  is  a  n 
better  argument  for  the  validity  of  Goodmi 
testimony.  But  as  to  the  matter  before  ] 
some  gentlemen  hare  made  it  a  Quc24ion,« 
ther  sir  J.  Fenwick  be  so  considerable  a  v 
as  you  should  proceed  in  this  cxtraordioai 
manner  with  ?  Though  they  all  say,  you  i 
do  it ;  yet  at  tlie  same  time,  they  tell  ytm  i 
was  never  put  in  execution,  but  they  wen 
the  wrong  that  did  it — Now,  sir,  the  qum 
is,  wliether  yon  should  make  use  of  this  po* 
at  this  time*?  Say  some,  the  plot  is  over 
wish  it  was :  but  when  a  conspiracy  hath  b 
laid  so  deep  and  general  as  this  was,  it  if 
the  hanging  of  one  or  two  that  will  make 
safe ;  wJieu  it  is  apparent  to  yuu,  here  is  all 
artifice  in  the  world,  all  the*^ciuIearour8  in 
world,  by  sir  J.  F.'s  friends,  to  remove  Go 
man  out  of  the  %vay  ;  it  is  some  argiimeiit  l 
lie  had  something  to  say  to  him :  and  wlien 
see  prisons  broke  open  daily  ;  we  liave  knf 
persons  murdered  in  the  streets  for  glvipg  < 
dcnce.     Very  notorious  is  the  case  of  Dc 


worth :  you  fiave  plots  all  about  you ;  and 
can  you'think  there  is  no  occasion  tu  make 
of  this  extraordinary  power? — 1  would  ban 
xrcat   a  ronviction  u|)on  my  conscience  i 


to  happen,  that  no  such  examples  were  made, 
I  shall  not  now  entertain  you;  hut  [  believe 

roost  of   the  gentlemen    in   the  House  knotv    ^ , 

pretty  well.     But  1  take  the  matter  Mors  you  |  could ;  but  it  is  very'hiinl  u  man  niu!«t  tb 

IS,  What  evidence  you  have  tu  proi  e  bir  John    his  conscience  aside  in  the  case :  it  is  %ery  li 

Fenwick  to  be  iruiliy  i*   and  whether  there  be  ;  to  beli<;ve,  that  if  there  l»e  twf>  witnesses  \ 

not  an  extraordinary  occasion  at  this  lime  to 

exert  the  legislative  power  ?   I  shall  not  entcr 

into  the  matter  of  precedents,  those  are  out  <if 

my  province;  but  I  have  read  some:  however, 

it  shall  not  pass  ii|>on  me  for  a  rule,  becjiuse 

some  bills  have  been  reversed,  no  others  shall 

lie  brought  in ;  it  is  possible,  that  the  reversing 

of  them  may  be  worse  than  the  first  bringing 

of  them  in. — But  to  apply  myself  to  the  evi- 

dence ;    I  cannot  but  oliserve  one  thiiiir,  that 

seems  this  day  extraordinary  :   we  are  told  l>y 

some  gentlemen  they  are  against  our  proecLul- 

ing  upon  this  bill,  because  it  does  not  quadrate 

to  the  rules  of  Westminster* hall ;  and  at  tho 

same  time,  gentlemen  take  liberty  to  maket.'x- 

ceptions  here  against  that  evidence  that  West- 

iQinster-hall  hat  allowed :  tbiit  they  shouUi  take 


duced,  thou^ii  1  do  not  believe  the  witnesses, 
I  am  safe  if  1  condemn  the  mrin ;  and  if  tl 
he  but  one  witness,  I  am  to  acquit  the  no 
though  1  believe  him  to  lie  guilty. — .And  tboi 
they  (c^  to  scripture,  to  tell  you  there  mnst 
two  witnesses,  yet  Uiey  do  not  go  so  far  a 
tell  ynn  there  have  hijen  very  extraordiu 
thini^s  dom»,  even  by  C»o«l  himself,  for  the  | 
sen  iii'^  a  coninuinity. — And  there  is  the  m 
of  it,  that  one  witness  inu}'  take  away  aoM 
lii'e  in  (;ne  case,  and  not  in  another.  TbCK* 
a  thini^  said,  that  was  one  thing  thatocetsii 
my  s1ar.«li:ii^  U|) :  a  gentleman  said,  tmly 
>e(Mnetl  In  him  to  he  a  better  way  to  pit 
(Mid  to  the  plot  to  have  an  act  of  indew 
liian  the  conviction  of  sir  J.  F*  woaU  h 
Sir,  (here  seems  very  httle  reason  ftrtCti 


iif} 


vpon  a  BUI  of  Aitaind^. 


A,  0.  1096. 


[738 


ioilieinDity^  when  we  ba^e  seen  an  ad  passed 
•o  laleljt'wlitci)  bas  not  refitraineil  fkersotis,  nor 
liftMi^ht  them  to  a  sense  of  their  duty  ;  ^nrl  %ve 
liave  heard  persons  own  at  vmir  bar,  that  the 
fact  was  committed  ja«t  after  the  act  af  in- 
fSemtitty.  Str«  1  do  heartilya  according  to  my 
eoitsciiince,  vote  tbr  thit  bilL 

Blr.  Hariourt.  Sir,  I  am  seniible  it  is  fcry 
•  n ,  .h  to  &ay  any  things  and  not  ieetn  tedious 
time  of  tiif^ht ;  but  1  lake  it  to  be  my 
nuiy  not  to  t>e  silefit  in  this  matter.  All  the 
afj^iimeDts  that  1  rememWr  have  \*^tn  made 
we  of  in  any  former  debate,  or  in  this  dny's^ 
titay  i*e  rt^duccd,  io  abort,  to  these  tivo  headsi  ; 
thr  ilitv.-^n  of  tbef^vernnient,  and  g^'nllemen^s 
pr  "io* — Sir,  as  to  the  danger  of  the 

Ifiis  I  !,  if  any  body  will  confince  me 
tUcrc  iM  buth  danger,  (I  promise  him,  if  it  be 
worth  his  while  $o  to  do)  I  will  he  hi&  proselyte, 
and  vote  Ibr  this  bill:  but  to  tfll  me,  the  c^overn* 
ment  19  in  danger^  and  that  the  fate  of  En^anfl 
aufl  £iirn|ie  depends  upon  this  bilU  is  certainly 
nlber  offered  to  amuse,  than  to  coonncc. — ft 
batli  been  askH^  Can  the  circumstances  thai 
sir  J,  F.  is  in  admit  of  any  danger  to  the  pro- 
fifrnm.  nt  « hicU  hath  power  over  his  liberty 
«i  I  ,nd  may  restrain  him  of  his  liberty 

d\Ti  ^  iile  ?  A  roan,  by  the  account  1  hafc 
had  of  him,  i>f  little  interest,  not  worth  nine- 
*  (t  have  no  acquaintance  with  him,  and 
mi.y  easily  mistake  his  circumstances.) 
whatever  his  circumstances  are,  he  is 
fe  custody,  and  no  doulH  there  he  will  be 
and  to  iny  the  government  is  in  dsnjrer 
a  is!tB,  sure,  that  cannot  be  thouifht 
bian  hving  :  and  God  forbid  this  should 
ease  of  the  government  that  i^  cannot 
itself  without  taking  away  this  unfor- 
gentleman's  hfe,  contrary  to  the  rules 
For  the  argument  of  private  opinion, 
it  as  dancferous  as  the  precedent  you 
making,  I  will  not  arg'ue  it  from  the  case 
be  people,  enlhuKiast*  and  madmen  ;  but  1 
II  urge  it  in  the  case  of  men  that  sat  in  jiidg- 
ii^nt  If  opinion  is  to  Justify  the  coudemning 
man*  let  u^  never  more  cull  thr  verdicts 
linst  Mr.  Cornish,  Mr.  Sidney,  lord  E{usse1, 
■|en»,  miinlers.  Ask  the  jury  ;  no  doubt 
them  are  so  siUy,  but  in  his  opinion, 
iity,  0ut  ifopiuiou  may  condemn  a 
iin)of,  w by  not  acquit  him  as  weU» 
It  proof?  Such  a  practice,  1  am 
wouM  never  be  endured.  The  projierest 
od,  I  think,  was  proposed  hv  the  gt-ntle- 
thai  began  the  debate ;  and  (  beg  leave  to 
f(Ollow  the  same  stA'ps,  tu  consider  his  guilt,  how 
it  appears  to  us»  and  ^^heiher  there  be  any 
TMMOit  fttr  I  Ilia  extraordiiihrv  miinuer  of  jiro- 
cvB^Mtf  .^ — The  recital  of  Uiat  bill  are  the  argu- 
nMOiiror  it ;  and  those  we  send  up  to  the  house 
i«flor^  for  th*' pn^stngvif  this  hill;  and  first, 
it  mf\  tbut  ftir  J.  F.  \\uh  indicted  by  the 
HwliiiKitiv  nf  Pari*  r  :uid  frfiodmiin,  i5fC  It 
iay»,  ti>  were  appttirMed  for  his 

bki,  a  iK^e  davs  the  trial  bud 

€0m9  <.>"  I  uoi  been  (or  the  diaeofery 

tiki-  i  10  make  i  but  il  does  not  aay 

VOL.  XilL 


it  was  put  off  at  any  other  days  or  times,  for 
that  rciison  :  but  it  i^Ws  on,  andfsays,  he  hatli 
made  several  rtflcntious,  \'c*  instead  «d'  making 
an  ingenoons  disenvery ;  and  then  it  reciter 
how  that  Goodman  is  withdrawn.— I  wonld  beg 
leave  to  pat  gentlemen  in  mind  of  what  was  a 
great  inrhicemeot  to  bring  this  bill  in :  it  was 
saidj  thai  sir  J.  F.  and  his  relations  had  done 
it ;  that  they  would  prove  that  Goodman  was 
withdrawn  by  his  means.  Give  me  leave  to 
say,  that  there  was  no  proof  of  it,  mitess  the 
liearsay  of  Clancy,  and  the  actions  of  my  lady 
Fenwick,  are  to  he  evidence,  contrary  to  the 
known  laws  of  England,  to  affect  this  unhappy 
gentleman  in  the  c;ise  of  bis  lift* :  I  say^  if  any 
gentleman  had  been  of  another  opiiUon,  cio 
doubt,  he  would  have  ofTered  that  amendmetit 
to  the  committee. — As  to  the  (|iscovery  that 
sir  J.  F.  hath  maile,  it  does  not  appear  to  me, 
whether  it  be  true  or  fiilse :  it  is  one  thiocr  to 
give  a  vole  to  clear  a  gentleman's  reputation, 
and  another  thing  to  carry  it  so  far,  as  to  give 
juilgmeut,  th»t  the  f»er«oii  that  made  those 
reflections  shall  die,  and  that  before  any  proof 
of  their  lalshood. — Here  is  an  indictment 
foundnv  and  here  is  tm  evidence  withdrawn  ; 
that  iii  all  I  am  satisfied  in  :  and  supposing  tbc 
pernon  guilty,  it  is  no  manner  of  inducement 
I'rom  these  arguments,  to  proceed  in  this  extra- 
orflinary  manner,  fiut  I  would  consider  the 
matter  of  the  amendment  made  at  the  com- 
tnittee  [  *  Of  which  treasons  he  the  said  sir  , 
John  Fenwick  is  guilty,']  1  can*tsay  that ;  and 
therefore  i  cannot  vole  lor  the  bilL  If  he  be 
guilty,  it  does  not  appear  so  by  legal  evidence  ; 
and  therefore  I  am  to  judge  htm,  as  he  appears 
to  me,  and  an  innocent  man.  The  law  requires 
two  witnesses  to  convict  a  muu  of  this  crime* 
It  is  the  greatest  crime,  and  the  law  is  so  mer- 
ciful, that  it  will  not  eJcpos«  a  man  to  such  great 
penalties,  without  demonstrative  evidence. — 
The  first  act  of  parliament  tliat  requires  two 
witnesses  is,  1  Kaw,  6.  The  next  is  5  Edw.  6. 
And  upon  that  act,  give  me  leave  to  take  notice, 
that  act  goes  a  little  further  than  the  first ;  for 
tlie  5  E(hv.  6.  does  not  only  say  there  shall  be 
two  witnesses,  but  it  goes  on,  and  says,— 
which  two  witnesses,  (they  are  there  cat kd  ac- 
cusers, but  mean  the  same  thing,)  shall  be  pro- 
duced in  pei-son  before  the  party  at  his  arraign- 
ment, and  shall  there,  before  hfs  face,  maintain 
and  avow  w  hat  they  have  in  say.  So  the  par- 
liament  particularly  provided,  iiiat  there  should 
not  only  be  two  wiinesaes,  hnt  that  they  shouM 
appear  in  proper  person,  in  open  court — I  beg 
lea^e  to  oljserve,  that  aAer  the  making  of  the 
first  act,  in  the  2nd  or  3d  year  of  Edward  6, 
there  was  an  attainder  of  sir  Tho,  Seymour,  in 
parliament,  without  ht*ariog  of  him  ;  and  that 
very  self  f>atne  |iarliament,  within  two  ye^rf 
afterwarils,  seems  so  to  have  resented  that  mat- 
ter, that  they  made  that  provision,  1  have  men- 
tioned, ill  tbe  5  Edw.  0  and  to  secure,  that^  " 
that  ill  precedent  shoidd  «lt»  no  harm,  they  put 
ill  that  clause,  1  f  ihis  act  passes^  1  wi&h  we  dii 
not  repent  it  in  lesv  time  than  that  parliament 
did  tbe  attainder  id  sir  Tbo.  Seyaiour.     1^  us 


fm 


8  WILLIAM 


ProcMik^  tgaim  Sir  Jokm  Faimd^         [T4I 


the  g:ui4led  bv  the  roMon,  ihejiMttce,  and  the  dii- 

tcrtttao  of  tW  act,  though  we  mre  doi  boiMKl  in 

^<Mir  ligislfttif  e  capacity  by  the  power  of  it,     I 

DQOt  hot  ohserve,  that  from  the  cnakiDg-  of  that 

>  na  persou  has  been  attainted  in  any  other 

r,  litl  the  duke  of  Monmouth  :  to  gre^l 

teOCTAtton  has  that  law  always  had  io  all 

f ,  lbo4ic^h  a  mo Ititwie  of  coc«ijMniciea  lia?e 

[luutienoriY  in  tUem  all,    1  do  not  think  it  «o 

1 1  at  there  fbiNild  be  two  witiienea, 

1  ^e  witneuea  iboutd  be  beard  lace  to 

,  and  cro«H*examined.     It  halh  been  toM 

,  that  (t  ia  natural  justice  and  reason  that 

ahould  lie  two  witueaset.    A  gentleman 

k#d  you,  %vhcrc  that  natural  jyftice  was  be* 

ore  the  ttatule  of  Ed,  6.  ?  Sir,  the  atatuie  of 

15  Edw«  i^,  aaya,  that  every  person  that  is  at- 

kin  ted.  abaii  be  «  provable  rneut  attaint  ;*  and 

»what  may  be  from  thence  iufenred  K>orc 

baa  thai  the  critne  should  he  proved,  for  so 

jcnme.  But  as  to  the  proof  required 

ly  that  «ct,  aud  tiie  acts  of  £d.  0,  all  tfaose 

eta,   by   rery  karuod    opinions^    have  been 


bought  dedarative  of  the  common  law  :  but    Pny  roosider  first »  bow  tbia 


that  ij*  acarce  vvorth  the  enquiry,  lincc  it  is  cer- 
tai4i  huw  the  l«w  stands  ai  tbia  day.— An  bon. 
IgmtL  took  notice,  that  auch  evidence  as  we 
have  bad,  and  such  proceeding's  as  theaet  woukl 
not  he  reasonable  in  caac  of  impeachment ;  but, 
disiicig^ashed  lietween  that  pmceeding'  aiui 
thia.  But  ccilainly  the  reason  is  the  aamc  ft 
is  Ime^  the  sanie  fiersons  that  accuse  in  otic 
case,  give  ihcir  judgrnent  in  Ibc  other ;  but  in 
cacb  case,  anch  piivilem  aa  tr«  jmt  asd  raft- 
aonable,  atijf ht  to  l>e  iBoifed  to  the  ferty  ac- 
cia««d. — I  ahall  add  no  more,  ttut  that  we  arc 
making  |a  precedent,  which  cannot  he  made 
iviihoul  breaking:  throngh  oil  the  fences  of  ibe 
law  ;  and  when  it  is  made,  we  know  not  who 
may  aufler  by  it. 

&T  Rd.  Taapk.  Ai  lo  the  evidence  you 
have  before  yoo,  I  appeal  to  any  man,  whe- 
itier  at  the  common  law,  if  there  waa  hut 
fuie  witness  a^in^t  a  man,  whether  he  was 
not  at  liberty  of  demanding  trial  by  battle  ? 
Tboae  acts  that  have  been  made  atnce,  arc 
made  eertaiaty  to  provide,  that  in  no  caae 
wbatseef  er,  a  man  should  be  so  much  as  ae- 
without  two  witneMea  of  the  treaaou. 
( to  what  iiath  been  aaid  of  the  particular 
evidence  before  you  \  whM  batb  been  ob- 
aerred  here,  is  a  good  objection  in  the  courts 
t»elow.  J  4k>  not  say  it  dc^  disable  a  man 
Irom  lietng  an  evidence,  becanie  be  is  not  par- 
duoed ;  but  he  is  not  ao  giMid  an  evidence  aa  if 
Jie  waa  paidoocd ;  but  &at  I  atauti  upon  is 
Ibia ;  aball  you  come  here,  and  make  a  prece* 
dent  io  this  place  to  condemn  a  man  to  the 
hi^heal  jienaltiea,  uinm  leia  evidence  tlian  you 
Will  allow  any  body  eKae  to  do  it  ?  That  is 
Hhat  was  nevtr  done  in  narliament  before. 
^  ^  ill  you  make  a  precedent  m  parhajnetit,  thai 
^  i  airy  time  they  mar  bring  in  a  liitl  here,  and 
judge  a  n»aii  to  death  tor  tfeason  apoii  no  evi- 
dence ?— Aa  to  llua  bill  itself,  conaider  what  a 
precedent  yoo  will  make :  there  is  nothing  that 
ftoy  bill  waa  condemned  tor  in  paih^uij^oli  that 


is  not  intliiabilh    AQ 
that  yoo  have  hut  one  cvideaeei  aai  tiMli  » 
as  I  bife  lokl  yon:  end  wbaleMT esjr  iMei^ 
privfttt  pefveiioQ  ia»  it  is  tbe  proof  lUNIft 
vern  vou,    Ttien  this  is  »  faiw  cr  patijm{ 
and  that  liath  alwayi  b«i«i  oonAeoiiM ' 
make  that  evidence,  tbet  wna  mA,  «o 
Sir,  this  ia,;beside^t  making  a  law  in  a 
oaae,  against  the  oofnaioolaw  of  Eoglatid,  atH 
tbe  right  that  ereryiBbieet  baa:  iliamakisy 
law  to  bang  a  man  wilboula  trial ;  iila  maka 
a  law  here,  that  waa  uKiiduoed  here  ufwi 
pr&tence  to  make  bim  m  mrfoDoe.     Every  at 
said,  thai  they  did  »et  leek  bia  blood ;    ao4 
that  be  the  secret  tttdooeoicnit  to  tbia  eaea,  it| 
ed«ag«foiis  preeedent.    The  earl  of  Esito 
when  be  broogbt  the  rack  into  the  Tower,  «fir 
body  knows  the  Ible  that  oMMriipon  bim  al""^ 
wanls.~Le4  eftj  body  Aiw  ido  tiMro  waa 
reason  for  reverBing  Miv  act  of  pmrfiMnent'  ' 
are  all  agiiinst  thiii  bilt— Then  to  ibe 
of  it ;  1  cartU  iina^hije  any  thing  thaii 
said  to  y<Mi  upon  tliat,  it  a  ipoytid  fW 


lore  you;  it  was  for  an  boootiraUej 
vindtcaliim,  and  it  wai  eot  traa 
by  Ibe  king,  but  by  the  hoeoorabte  i 
be  told  you,  that  if  you  had  ft  itiiM 
these  p«ner$,  and  rfftuired  tt,  he  bed  1 
k^  Tou  bavetbem;  Wif  itbedtkeraat 
of  this  conse^ueooei  lAiet  the  fo««iiai 
been  in  the  utmest  dittgri.  would  iihafi 
tranamitted  oofvettbe  request  of  a  piivi 
ttfjwan,  and  M\  unto  you,  whetlter  you  j 
proceed  upon  it  or  no  ^— But  itiaoba 
the  plot  wuv  go  on  itill :  pray  if  tbia  i 
he  cut  off,  does  that  cure  it  ?  You  are  i 
bim  now,  tliat  he  can't  act  in  it ;  so.tbiU  ] 
not  heard  ilie  least  ground  to  oeovii 
that  ibe  goTemment  would  be  in  kas  d 
this  ^enAeman  was  cut  oE— Sir,  we  < 
bere  of  going  eoeerding  to  emr 
^ire  me  leave  to  say  to  you  wImI  i 
m  the  other  day :  that  tn  the  woret  of  1 
when  tbey  did  nut  slick  at  murderiog  of  I 
king,  yet  they  stuck  at  this  y  thwy  woo&d  i 
allow  any  man  to  suffer  upon  one  witaeaai 
tliey  did*  not  admit  of  dt?[)ositiooi*  agaixiat  ii| 
lord  Alordauttt ;  and  my  lord  Mordaunt  say 
his  life  bv  it.  Vou  have  deposed  kii 
James  for  Dreakiug  in  nponlbe  law  j  audd 
any  body  believe  that  Blr.  Hampden  waa 
guilty  ot  the  treason  he  waa  charged  with  7 
owned  it  before  ihia  Huuse;  and  yet  be  ^ 
tried  only  Ibr  miademeanor,  llMfe  beia|[l 
one  wimese  against  bim ;  eftd  tbey  that  enai' 
all  other  laws,  stuck  at  this,  and  would  ael  \ 
late  this  law  ;  so  that  I  think  tlkere  is  oo  i 
cessity  for  making  such  aprecedenty  and 
think  it  would  be  the  worst  of  precedeala, 

Mr.  BoKQwcn.  f  have  obserted  itpan  I 
defaale  that  some  persons  de^y  that  it  is  jai 
able  at  any  lime  lo  proceetl  upon  balls  of  l. 
Uinder,  and  yet  Ihe^^  donU  diapme  lliepow4 
parUaments;  bta  at  the  same  time  aay.  T 
ought  to  go  aoeorditig  to  the  mbsB  of  We 
tt«r-h&lL*-iAMlker  t^rui  it  ti  llie  saim 


?4IJ 


tqion  a  BiU  of  AHautder* 

'  ipe  ptoeeed  hj  war  of  impeachment, 
or  mt  of  atl&mdrr  i  I  thtnl  Mm  much  out  of 
iHe  way  ;  for  in  that  rase,  the  kirtls  only  ire 
jadgMi  ti4!  you  ar«  th^  prosecutors ;  aoi) 
jOQ  doa*t  use  your  le^isUtlrr  power  iu  thai. 
— A  worthy  mem}  oT  mine  Miid»  h«  hail 
fifWn  been  mistaken  m  his  own  conscience, 
when  he  thou^f»t  himseif  very  fxiuch  tn  the 
ri^ht.  That  ini2jht  be  so ;  and  rFtlunc  was  any 
RMifD  ratiooally  to  suppose,  that  sir  John  Fen* 
wtek  was  not  gfuHty,  1  should  he  of  oj union  to 
be  of  the  more  faronrable  side  ;  but  1  take  it, 
ih/tre  h  00  room  for  any  man  to  bdiei  e  bot  he 
is  guilty,  ^N^ow  1  wonKle^Eamitte  whatgrotinds 
we  hare  to  beliere  him  g'uilty.  Upon  trials^ 
when  ibey  charge  a  jury  with  a  prisoner,  one 

Sof  their  charge  is  to  enijuire,  whether  he 
fyr  it  Of  110  ?  It  is  notorious  that  sir  J.  F. 
fhr  thb(,  wliich  is  no  small  argument  of  his 
Anotlfer  \n^  that  he  was  here  at  the  bar, 
did  Bot  deny  the  fact ;  if  he  had  confessed 
no  doubt  but  you  would  hnre  concluded  him 
y  J  and  w"i»en  he  do*?s  not  dany  il,  this  h 
mad  door  to  it. — ^It  hath  bven  told  you, 
y  hilU  of  attainder  hare  been  reversed  as 
iual ;  it  hath  been  as  Qoiorious,  that  the  ver- 
of  twelve  men,  and  wheti  men  have  been 
hy  their  jieers,  have  been  reveraed  too, 
1  wHl  instance  tn  two  or  three.  Ttie  6nit  t  be- 
gin with^  was  that  of  the  duke  of  Somerset ;  but 
QiOlio^  coutd  say  but  he  was  guilty  of  the 
Sm:!,  f>T  he  confessed  it;  but  there  was  a  now- 
offW  enemy,  the  duke  of  Northumbenand. 
The  next  is' the  duke  of  Norfolk,  who  was  at* 
in  queen  Elizabeth's  time;  and  they 
not  by  parlbmeut,  and  yet  both  were 
And  1  tliink,  as  this  matter  stands 
\  mme  [^ntternen  are  of  opinion,  by  the 
evidence  they  have  heard,  that  he  is  ^iUy  ; 
but  I  think  nobody  hath  said,  that  it  appears  to 
bim,  by  the  evidence  he  hath  heard,  that  be  is 
iofioeept.  Now  I  desire  to  know,  whether 
eteiy  man  must  not  use  bis  conscience,  to 
}mAgp  whether  there  be  sufficient  evidence  ?  I 
adknowtedge  there  is  ih)  sufficient  evidence  to 
cdovict  him  in  Westminsler-haU  ;  hut  there  is 
IBore  to  saiiafv  my  conscience,  and  the  world 
abroad,  than  iV  Goodman  was  here ;  besides  bis 
Dot  denying'  it,  you  have  the  evidence  of  the 
liertona  that  died,  who  owned  the  same  tiling ; 
aiMl  1  mention  that  tlie  rather,  because  tbey 
OnfeBsed  it  to  persons  sent  from  this  house ; 
ami  did  not  oaly  confess  themselves  to  be 
guilty,  hut  acknowledged,  that  there  was  such 
a  cofiapiracy  ;  and  sir  Wm.  l*arkyns  acknow- 
ledged iu  particuUir,  tbs^t  he  was  to  raise  a 
trtMp  of  hoi'iie,  and  that  the  French  were  to  be 
invited  over  :  is  this  nolliing  for  the  ley;isbtive 
pnwer,  that  is  to  secure  the  peace  and  welfare 
of  the  Ernvernment? — Gentlemen  say  there  is 
1  gnsti  oeat  of  danger  in  this  matter :  some,  if 
vQu  acqoH  hrm,  others,  if  you  condemn  htm. 
If  you  are  latisded  hi'  is  guilty,  by  thi;^  bill 
jQQ  t^  tp  a  land -mark,  that  others  may  take 
— «  tbey  do  not  come  into  this  i>reil»ciiment  i 
the  other  hand,  if  you  reject  this  bill,  you 
I  give  adv«ot«ge  to  your  enemies  j  when 


A.  D,  1#M.  [f  49 

tbey  shtdS  see  a  id«ii  that  is  so  notoriausly 
eoncemed  in  calltttff  ii>  a  Fmrk  army,  th« 
wurst  of  your  eneratea,  tm  be  aeot-l^ee*  If  he 
be  guilty,  what  danger  is  there  of  the  pre- 
cedent ?  When  a  person  in  the  like  naflnrei 
that  hath  fled  for  it,  tliut  lUn^n  not  deny  rl ; 
when  Hvrn^  persons  conl^ss  it^  and  dying  per- 
sons confirm  it^  then  there  will  be  danger  in 
such  a  person.— Upon  the  whole  matter,  t 
think  there  is  no  man  that  ever  I  lieardt  lliut 
does  not  believe  him  to  be  guilty  ;  siid  il  is 
!»trange  you  should  want  eviilence,  and  yet 
efery  one  think  hiia  guilty ;  and  I  tlunk'no 
man  must  be  acquitted  or  cxtodemuetl,  but  ac- 
cording to  a  man^a  conscience. — An  hon,  per- 
son said,  Porter  was  do  good  witness :  if  Good' 
man  was  here,  he  woulil  not  be  so  much  \  anil 
yet  we  must  acuuit  him  because  Gooilmao  is 
not  here:  ami  therdore,  upon  the  whole,  I 
think  you  will  give  your  etremies  a  great  ad* 
vantage,  if  you  acfjiiit  bim  ;  and  if  you  coit* 
demn  htm,  you  will  do  yourselves  right. 

Mr.  Cowper*  Sir,  teinff  concerned  in  pro* 
secutions  of  this  nature  wi£owt  doors,  I  have 
hitherto  decKned  concerning  myself  in  any  de- 
bate of  this  evidence,  though  unconcerned  in 
Ibe  condurt  of  the  evidence  against  sir  John 
Fenwrck  ;  but  beiiiff  to  give  my  opinion  and 
vote  as  a  judge,  I  shall  crave  leave  ta  give  my 
sense  of  this  matter.— I  wmibl  beg  leave,  lit 
the  first  place,  to  make  ui^e  of  a  distinction, 
which,  1  think,  will  serve  to  answer  set eral  of 
the  arguments  that  have  been  made  use  of:  I 
think  there  are  two  things  to  be  considered  % 
first,  hia  crime,  and  the  proof  of  that  crime  ; 
and  then  the  other  matters  done  by  him  subse- 
quent, ^c. — ^Tbe  crime  and  proof  of  it  that  bath 
been   given  against  him  at  your  bar,  is  the 

frmmd  by  which,  I  ihiok,  l>efore  God  anfl  man, 
ouciit  to  give  my  alfirmative  to  this  bill,  by 
whictt  you  judge  him  to  die.  What  he  hatli 
done  stibsequeot,  coovinces  me  in  my  judg- 
ment, thai  we  are  here  in  a  pnmer  method  and 
course  of  proceeding  against  him  ;  therefore 
tet  no  man  say,  lliat  you  have  condenmed 
him  because  he  hath  protracted  his  tnal :  no, 
you  have  condemned  him  for  having  been 
guilty  of  high  treason,  mnntfcatly  praved 
against  him :  then  let  them  not  say,  on  the 
other  hand,  will  you  condenm  any  maa  that  ia 
at  any  time  [guilty  of  biif h  treason  ?  |9o  |  btH 
when  a  man  is  guilty  ol  the  wor«t  of  ireaeon*, 
and  this  would  have  been  manifestly  proved 
against  him  iu  the  ordinary  C4jiir«e  of  proceed-* 
ings,  but  that  he,  undertaking  to  atone  for  his  - 
cnme,  and  serve  his  country,  hath  jirotracted 
his  trial  till  one  of  the  evidence  is*  gooe; 
and  then,  though  he  preten<h?d  to  have  a  re- 
serve, which  he  wouM  make  known  to  the 
kiiig^s  person,  yet  when  he  Uiinks  he  »  out 
of  the  ordinary  reach  of  justice,  he  sets  the 
justice  of  hia  country  at  defiance.  Tb««  are. 
gvounds,  not  why  he  l<  to  die,  but  to  justtly 
our  jjroceeding  m  this  iwiiwner. — Sir,  1  wouki 
beg  leave,  in  a  few  words,  to  take  notice  of  • 
few  thtnga  said  in  this  matter:  genttemcn  are 
atrti<l,  ibAt  tUt  vriH  be  iBftde  tite  of  by  pot* 


n3] 


S  WILLIAM  III.  Proceeding  eguimt  SfV  Jekn  Fmwki,         [1M 


Uniy  to  the  dij«adraDtiig«  of  boneit  men  ;  ^ml 
yi»tt    hiive    be*?n   tf>l<l^   that   prei^dentii   hay© 

anti  tlijen  h  a  vt;  bevn  carrktl  o  n  lo  the  jfti  mm  meal 
'  «f  tbwit!  ibai  liave  not  been  so.  It  h  true, 
||»r^  batli  hteu  a  very  bad  die  made  of  very 
jlisl  acii  Iq  relaliou  to  the  pab[ic:  bul  Hbat 
do  gentlemen  infer  from  tbatP  Must  wt 
ti4Ve  no  such  thin^  m  justiuet"  1^1  us(  not 
the  j^mUy  he  paoisUed,  because  I  be  s&me  me- 
th(Nl«  nioy  tie  fnafle  use  of  for  the  punishing 
<?f  hones!  mati  ?  I  am  o^jt  afmitl  of  what  ii»e 
posterity  wih  make  of  it ;  if  there  eome  time* 
of  violence  nhen  there  are  no  p^rli^intfiUft, 
Ibcy  will  not  iraat  Ih La  precedent ;  thei**  are 
others  that  have  been  eited^  lb  at  will  tmmU 
Jiioi-e  justify  tijose  ppoceedinga  ;  nay,  this  may 
l^roiect  tlie  innocent.  If  a  bill  come  lo  li 
pfpceefjed  tn  a§^in&t  another,  he  may  say,  sir 
J.  F.  was  heard  |>ers«>naUy*  and  by  his  etmnsd i 
that  the  <>iriJi^nce  was  produced  before  kiim^ 
imd  €otifn>oled  with  him.  An  iu»ocent  man 
Baiy  say,  there  was  lliat  e^rtraoitllnarv  m  his 
crime,  vFhiob  is  not  in  mine :  he  wtmid  have 
introdticed  a  fo  rei^pi  army,  and  nfttTtvards 
tiavu  ngs^rirated  h'ls  crime,  by  end«;avourmg 
to  aliu<ie  the  king,  and  creatin|f'  a  jtffilousy  bc^ 
iwet-n  I  be  bin^  and  hia  nr}ints|ers.«^8tr«  ia  the 
next  place  it  is  »aid^  tliat  ber^  it  not  legal  ev t- 
deaee ;  which  I  thifik  k  a  mistake :  and,  say 
bame,  though  hen*  b  an  evidence,  ibat  really 
Ipcinvlntres  them  in  Ibeir  cou^lc-uct^  (1  am  not 
^  asliaintil  to  make  ii^  of  tli^ii  word)»  ytt  itiey 
m&  not  for  pasFu^j;'  thi$  hiD,  hecanse  thcfe  is 
not  a  Itr^Eil  evidence .  Wilh  submiH«Lun,  thai  ia 
a  ms  lake  j  before  1  Ed.  6,  one  witness  wa»  b 
good  evidi  nee  in  liigh-li"eas45n  ;  but  there  was 
tarifty  of  fipriiiun^  touching  treason  before 
that  time ;  but  nciUtet  the  first  tior  Hte  5th  Ed. 
6f  ia  the  peiming  or  tvordin^  of  theBi,  nor  in 
I  be  reason  of  thcuOi  were  intended  lo  extend 
to  the  Jiigh'COiirt  of  parliament ;  so  thai  for 
augbi  that  hatlt  been  Kaid,  tbougb  one  witness 
conoharated  by  circumatancesi  us  this  cjase  is, 
and  the  coufe&^ion  of  the  party^  would  not  be 
legal  evidenrie  heluw ;  yet  witn  submi^ion,  it 
is  a  Ir^al  i'vidence  iu  p a rhu infant,  even  a^^c^ord- 
jn;^  tu  the  strict  rules  of  law  ;  heoauae  no  Jaw 
haUi  made  mo  witnesses  requisite  in  this  case ; 
s»o  that  it  U  a  coniiDciof  evidt^nce  ;  ]  think  it 
may  b«  justifi<^d  to  be  a  legd  evideoee  ^  and  as 
It  cofk^iuGc^  me,  that  I  cannot  rejii^t  the  belief 
of  it,  I  mmit  be  Ibr  this  bill,  nutwithstanding 
Mfhat  some  gentlemen  bafe  liaid,  by  way  ofen- 
dearourinif  to  explode  conscience  as  a  rnle  nut 
to  walk  by  in  this  case.  One  instance  given 
a^lbst  it  was,  because  a  lian^^an  lias  not  a 
iliscretboary  power  to  execute  a  man  occOnling 
to  his  cronieience,  and  out  him  to  vvhat  aort 
uf  death  he  p^eo^es  ;  as  it  we  had  not  a  beUer^ 
and  more  leg^iil,  and  discretionary  power  in  the 
high  i^ourt  of  parUamt-nt  than  the  hno^mao 
has.— Hut  we  are  toUl  of  se^oml  inf^tancpa, 
vhere  mail,  and  iiair- brain e^l  mi:?n  have  m^de 
mte  of  ibeir  coa^cience  Ut  pidliate  their  exira- 
lag^ncies.  No  doubt  it  hath  ,  and  let  me  tell 
you,  i^igii^a  hath  beeti  mad«  u^e  ot  4s  a  m^ 

-     -  --       -    v  -  •-  ~ 


tetice  lo  tlie  worst  of  riJJanieft  in  til  ttfH  i  and 
yet  I  tiofie  tbffy  will  not  ftr|^tie,  thalthcT»0Q;,% 

to  1m  no  relij^ioo  miither^  fur  a  gtmb  lo  mtia** 
actiom*.  IV ben  mfrti  come  u*  be  jwlgei,  I 
wTJuhJ  know  what  rule  they  culo  hare  faetiit 
I  ban  a  sedate^  well-iotbrme*J  r4>nK^i*iK»f  Be'* 
low>  wbeoa  legal  eiridcoce  is  given,  jtt  Iffte 
jury  are  noibotmd  to  go  by  thftt  N'^l  #tideiM»; 
they  arc  when  they  liavo  heorii  U,  i«d^  oj 
the  fact,  an4  ave  to  go  by  uo  other  rob,  tka 
what  is  ridieuled  bc^re,  evao  the  rule  of  lintr 
own  conicieuce*  it  wm  said  e«rly  in  the  de- 
bate^  by  a  member  of  ^rvil  reputaLion^  tbit 
thisi  (exempt  Moooio nib's  case)  i»  tlie  tinl  pn* 
cedent  ut  a  bill  of  altaiuder  tb^l  bcg^o  in  fb^ 
linii««}.  It  M^ema  the  ancient  way  waa,  for  dki* 
lofYli  tn  give  tlie  tiiljie$&c»  thetr  ottjJtaE,  «o4 
when  they  lhoo|fht  lil^  they  ieut  down  a  ^11, 
and  the  cntximons  were  to  pmeeeil  upim  it: 
but  t  tbmkj  with  iubmi^sioui  fhis  ia  a  raocK 
hetfer  way  }  and  1  bad  much  rather  gift  my 
conBcoi  U|ion  bearing;  eonvini-iiig  etid^ncier  iod 
that  the  party  b^  noibtn^  to  say  for  himiitf, 
than  upo0  any  hill  lavDamitled  Irotti  tht^  lodfi 
and  no  other  rri<leiici^  than  that  they  lli0tt|lA 
i\t  lapAs^  it.  Home  gentlemen  huvc^fetagiwt 
Wfigbt,  or  rather  mi&takeci  the  ary^nmcnt  f  nj 
ihey,  sir  John  FenvTick  is  ooi  a  jnau  so  €OQii< 
derable  aj  la  endanger  the  o^ovcrmnent^  Ad- 
mit that  those  tliat  hare  i^poke  for  the  bill,  hun 
not  made  that  u^  of  the  aq^ument ;  bat  tbii 
h  that  t  lay  my  5n^er  U|ioit  in  particolari  ili» 
plain  he  wVi  to  be  geueral,  and  knew  a  mi 
many  of  the  otEcers,  1  am  satisfied  he  lull 
not  made  that  atnoement  i(>  \m  iajurcd  ootiv* 
try,  that  he  oug'ht  to  hare  done.  I  am  si^- 
Red  that  unless  this  bill  proL-eed  ^teatiily  agaixat 
him,  you  will  have  none  of  that  discoTery.^^ 
[Here  he  nasintt^rruptcd  by  the  uoise  of  soise 
g'eotlemen«  shewing:  dissatistiiciion  at  that  way 
of  ar^  i  ngjj  M  r .  Cow  per  prrt  cec4«.  Do  Offi 
let  getillemen  pervert  this  argument,  and  sct, 
wilt  yoy  hang  a  man  if  hedo  not  confer?  fi^: 
hut  when  I  have  heard  proot^  that  be  ia  guiltj 
of  tite  worst  of  treas^onSj  and  hath  agigrarattd 
his  crime  in  that  manner  which  he  haih  ikiat;, 
ho  do^rveK  to  die ;  an  less  he  will  merrl  his 
hie  by  a  dti^corery  of  what  be  knows.  I  thifik 
it  isi  (jjf  the  highest  importance  to  you,  tliai  can 
be,  that  you  should  come  to  the  further  koon* 
ledge  of  the  othur  branch  of  the  conspiracy  ; 
the  meeting  of  the  French  ktng*6  forces^  in  Eng- 
land, J  think  you  are  iu  a  proper  method, 
and  perhaus  may  have  a  better  issue  of  iWm 
bill  than  his  death ;    but  if  not,  ho    will  but 

ftay  tlie  debt  which  he  owes  to  lluj  justice  of 
liii  country. 

Mr.  Pag€i.  Sir,  I  caouoi  beliefe  bat  t  shall 
be  heard,  as  to  the  little  1  tiar«  to  say,  witli 
some  unc^^nebs,  ufter  so  long  a  debate.  Bat, 
sir,  iincc  I  did  tAe  the  liberty  to  give  my  »pi- 
nion,  why  J  was  a;;autsl  this  hill  before  :  i 
think  It  as  reasonable  lo  i^ive  you  my  reasons^ 
IK  by  ]  do  not  stand  conriuced  by  toe  argumenis 
1  buFe  yet  heard.  And  that  1  may  the  beCto' 
give  you  my  reasouic^  I  Mbali,  as  well  as  1  can 
reioembcr,  rep^t  lotue  of  tbe  at^ujuentt  tli«t 


'45] 


upon  a  Bill  ofAUainder* 


A.  D.  1696. 


[746 


lave  been  ur[;;ed-for  the  passinpf  of  it.      If  1 
nislake  oot,  somp  of  the  aryrumeuts  liave  run 
ipon  the  power  and  preru^tive  of  parliament ; 
lome  u|K>n  what  was  proper  eridenre  in  this 
li^  court  of  parliament,    other  than  what 
A-ould  be  in  other  places  ;  others  upon  the  es- 
Tjiinlinariness  of  the  occasion.     As  to  the  iirst 
)f  ttiese  ar|;uments ;  since  gentlemen,  much 
more  experienced  in  rules  of  parliament,  do  not 
think  fit  to  deliver  their  private  opinion,  what 
rules    parliaments    may   in    reason  he    sup- 
posed to  have,  1  shall  not  say  any  thini;  to  that. 
—As  to  the  ai^uments,  of  what  evidence  shall 
be  sufficient  t»  adjudge  a  man  to  death  in  this 
kouse  :    1  confess,  1  shall  at  all  times  be  very 
orefnl  how  1  give  my  opinion  in  matters  of 
life  and  death  ;  because  I  think  the  greatest 
cautioo  is  to  be  used  in  that  case ;    and  for  this 
tretsou,  1  cannot  consent  to  pve  my  opinion  in 
one  case,  that  I  bliall  think  ht  to  retract  in  any 
case  afterwards.    If  1  understand  the  meaninir 
of  the  house,  it  is  not  in  favour  to  sir  J.  F. 
himself  that  gentlemen  oppose  this  bill,  but  for 
Ictr  of  ushering  in  a  precedent,  that  may  be 
made  use  of  against  a  better  man.      I  confess, 
here  is  a  worthy  member  that  spake  last,  said 
something  in  bis  argument  that  hath  some 
wciffbt  with  me.     I  did  apprehend  by  tlie  ge- 
Doil  debate  of  the  house,  that  the  |>arliament 
had  no  rules  at  all,  but  what  they  would  fix  to 
themselves  :  but  1  have  a goodregani  for  his 
opinkn :   but  if  he  says  true,  the  evidence  be- 
foK  you  is  not  legal  evidence  in  Westminster- 
hall  ;   but  it  is  legal  evidence  according  to  the 
rales  of  proceeding  in  the  high  court  of  parlia- 
meot :   but  I  think,  truly,  if  they  mav  be  nre- 
MiBKd  to  have  any  rules  to  go  bv,  notuing  is  so 
plain  to  me,  as  that  a  nde  of  their  own  of  so 
hie  date,  as  the  act  for  regulating  trials  in 
cues  of  treason,  should  be  a  rule  to  them: 
aa^  it  is  said  in  that  act,  that  after  such  a  day 
M  person  shall  be  brought  to  trial  in  any  case 
of  treason,  &c.  but  he  shall  be  condemned 
upon  the  evidence  of  two  witnesses;    and  I 
noit  needs  say,  that  act  that  was  passed  last 
*Mins,  is  so  much  for  the  liberty  of  the  peo- 
ple of  England,  that  1  think  it  will  be  very 
bard  to  repeal  that  substantial  part  of  the  law 
M  Mon  alter  it  was  made. — As  to  the  cxtraor- 
diaariness  of  the  case,   I  am  sensible  wliat 
ttresi  hath  been  laid  on  that  argument,  as  il* 
ue  stiengtli  of  this  government  did  in  some 
nuasore  depend   upon  your  disposal  of  this 
aattcr  one  way  or  the  other :  and  since  that  is 
the  case,  I  shall  speak  tenderly  of  it ;  for  1  do 
*•  much  abhor  acts  of  treas<m  against  the  go- 
^eramenl,  as  any  man  that  hath  sitoke  for  this 
Ufl:  I  think  as  the  crime  is  to  be  distinguished 
ftam  all  others,  as  being  a  more  than  ordinary 
crime,  so  1  think  the  person  that  is  concerned, 
must  be  extraordinary  :  and  I  think,  with  siib- 
Aisiion,  there  ia  some  difft*rence  between  prin- 
cipal%  and  seconds  in  an  act  of  treason.     When 
ytu  cauoot  come  at  a  man  being  at  the  head  of 
■  itbeUioo,  it  may  he  reasonable  to  proceed  by 
kill  id  attauvler;  but  I  think  it  is  not  to  be 
Med  vpoB  all  occuioiis,  or  when  yoa  may 


come  at  a  person  another  way ;  which,  I 
think,  is  the  case  of  this  gentleman.  I  am  of 
opinion,  that  there  does  not  depend  more  upon 
sir  J.  F.  now,  than  when  he  was  first  taken. 
Why  he  was  not  tried,  1  shall  not  examine  the 
reason  ;  1  suppose  it  was  because  he  gave  some 
assurance  of  his  confession ;  truly,  I  have 
heard  no  other  reason  for  proceeding  against 
him  now,  but  those  papers  which  have  been 
adjudged  scandalous,  and  are  so  to  all  intents 
and  pur{K>ses,  1  do  think  truly  ;  but  the  liberty 
of  the  peojile  of  Enj^land  is  very  much  con- 
cerned in  the  revocation  of  that  act,  which  was 
promoted  for  the  liberty  of  the  people ;  and 
none  of  the  ai^uments  tliat  have  licen  used  can 
convince  me,  tliat  1  ought  to  give  judgment 
upon  less  evidence,  than  is  provided  by  that 
act. 

Mr.  Shane,  Sir,  I  hardly  thought  I  should 
have  needed  to  have  troubled  you  with  my 
thoughts  in  this  matter,  but  that  this  honour- 
able gentleman  that  spake  last,  has  gone  so  far 
in  his  reason,  as  to  speak  to  matter  of  law  :  he 
seems  to  extenuate  the  fault  of  sir  J.  F. ;  and 
gives  it  as  a  reason  why  he  should  not  be  at- 
tainted! by  this  bill,  for  that  he  was  none  of  the 
principals,  but  only  an  accessary  ;  there  is  no 
gentleman  of  the  gown  but  will  tell  you,  that 
there  is  no  accessaries  in  cases  of  treason,  but 
they  are  all  principals,  and  equally  guilty  ;  and 
there  is  no  evidence  in  this  case  to  make  him 
accessary,  but  he  is  either  principal  or  nothing. 
— When  1  have  made  this  observation,  give 
mc  leave  to  tell  you  my  own  thoughts :  as  every 
man  i:^  to  be  saved  by  his  own  faith,  so  may 
my  salvation  depend  upon  my  opinion,  accord- 
ing to  my  conscience  in  this  matter,  which  is 
for  passing  this  hill. — The  last  time,  I  gave  you 
my  reasons  why  1  was  for  this  bill ;  and  yet  I 
have  not  heard  them  answered,  thou<>;h  a  gen- 
tleman said  1  answered  myself;  but  1  will 
state  the  case,  and  desire  him  to  reply  to  me. 
1  did  say  then,  sir,  and  do(  so  again,  that  I  do 
not  think  those  scandalous  papers  any  reason 
to  provoke  yon  to  pass  this  bill ;  and  I  do 
think,  if  he  should  be  threatened,  it  would  be 
a  blemish  upon  his  confession.  Another  thing 
I  put  out  of  the  case,  that  he  is  a  man  so  dan- 
gerous to  the  government,  that  if  he  esca|»e,  we 
are  all  undone.  1  do  take  him,  that  in  his 
person,  interest  and  friends,  he  is  not  so  ;  ami 
would  not  have  that  be  a  motive  for  the  pass- 
ing of  this  hill ;  but  take  it  upon  the  evidence 
that  ia  before  us,  and  the  nature  of  our  pro- 
ceedings ;  then  1  will  say,  we  have  great  reason 
to  proceed  upon  this  bill,  for  the  preservation  of 
the  government,  and  for  this  reason  ;  whereas  it 
is  insisieil  on  one  side,  that  here  are  the  laws  and 
liberties  of  England  at  stake,  and  nobody  knows 
whose  case  may  lie  next.  Sir,  if  vi  c  do  not  go 
upon  good  grouuds  anil  reasons,  that  we  do  not 
fear  any  bmly's  following,  God  forbid  we  should 
make  this  a  prece«lent!  liut  pray  turn  the 
tables  on  the  other  side,  and  see  \\  hat  the  case 
will  be ;  that  here  is  a  genileuian  that  e%ery 
body  of  the  house  does  believe  guilty  ;  that  he 
liath  been  in  a  conspiracy  to  bring  in  the  French, 


and  depose  thfi  king;  and  the  niaa  came  before 
us,  ana  we  had  no  power  to  reach  him  ; 


what 


will  be  the  precedent  on  the  other  side?  It 
will  be  easy  to  take  off  one  of  the  witnesses  bj 
men  of  great  estates,  and  then  there  is  no  com- 
ing at  them,  even  by  the  parliament  themselves : 
this  parliament  was  of  opinion,  that  they 
conid  not  come  at  sir  J.  F.  though  they  were 
of  opinion  that  be  was  guilty  .^Bnt  now,  8ir, 
to  that  which  is  the  question :  it  is  allowed  by 
wry  body,  you  may  do  what  yon  please ;  but 
without  straining  your  legislatire  power,  I  shall 
ofierroy  thoughts  and  reasons  for  it,  upon  these 
three  points:  that  the  fact  is  treason;  that 
he  is  plainljr  guilty ;  and  that  we  have  a  phin 
jurisdiction  in  thiscase,  iu  the  ordinary  methods 
and  proceedings  of  parliament.--Sir,the  fact  is 
treason,  the  meeting  at  several  times,  and  con- 
spiriug  and  consulting  to  bring  in  a  French 
power  to  depose  the  king.  You  have  been 
told  by  several  persons,  and  the  counsel  at  the 
bar,  tnat  such  meetings  without  some  other 
overt-act,  is  not  treason  ;  but  I  affirm  the  con- 
trary, for  that  is  an  overt-act  of  compassing  the 
death  of  the  kinj^ :  and  sir  Barth.  Shower,  who 
did  insist  upon  it  at  the  bar,  did  otherwise  act 
bis  part  u|K>n  it  at  the  trial  of  Mr.  Cook ;  for 
he  offered  it  at  first,  but  aOerwards  he  deserted 
it,  as  a  thing  he  could  not  stand  upon ;  for  it  is 
tlM  opinion  of  all  the  judges,  upon  a  Ute  reoolu- 
tioo.-^Then,  Sir,  the  fact  being  treason,  is  no 
act  er  nntfticia.  We  are  not  making  that  trea- 
son wnich  was  not  so,  but  we  are  only  judging 
•of  the  fhct  that  was  treason  before;  thougli  if 
it  was  a  doubt  whether  it  was  treason  or  no,  the 
parliament  hath  a  power  by  S5  £div.  3,  to  judge 
that  treason,  that  the  courts  below  have  no 
power  of.  The  next  thing  is,  whether  there 
DC  sufficient  evidence  of  his  treason  before  us  P 
I  will  put  it  out  of  the  case  as  no  conclusive 
evidence  at  all,  what  Goodman  hath  said  upon 
his  oath  (further  than  that  there  was  such  a 
witness  that  did  and  could  swear  such  a  thing, 
and  that  he  was  cscamined  before  the  jury  ;) 
and  this  i  will  take  u[)on  me  to  say  (and  I  will 
(j^fve  my  reason  for  my  opinion},  that  the  par- 
lumcnt  is  not  obliged  to  two  witnesses  by  any 
law  now  in  being.  It  hath  been  told  you,  that 
from  the  time  of  Edw.  3,  one  witness  was  suffi- 
cient till  the  statute  of  Edw.  6.  Now  I  will 
Snwe  to  you,  from  the  statute  of  Phil,  and 
lary,  that,  by  the  common  law,  and  all  the 
time  between  the  reign  of  Edw.  3.  and  Edw.  6. 
one  witness  was  sufficient  for  this  treason.  For 
that  statute  of  Phil,  and  Mar^  does  say,  that 
any  person  that  shall  brin^  from  beyond  sea 
any  false  and  counterfeit  com,  or  be  accused  or 
impeached  of  any  offence  concerning  the  im- 
pairing, counterfeiting,  or  forging  of  any  coin 
current  within  this  realm,  shall,  and  may  be  in- 
dicted, anaigned,  convicted,  or  attainted  by 
such- like  evidence,  and  in  such-like  manner  as 
was  accustomed  before  the  first  year  of  king 
Edw.  6.  Now,  wliat  was  the  reason  of  that 
statute  before  the  statute  of  Edw.  6?  Those 
counterfeits  were  to  be  tried  by  one  witness ; 
and  therefore  at  this  day  all  the  counterfeiters 


747J  8  WILLIAM  HI.         Proceedings  agMmsl  Sir  JtJm  Fentad,        [7tt 

and  ntterersof  &lse  coin  have  been  Mamled  by 
ooewitnesa.  It  is  said  again,  that  then  ■  the 
law  of  natioDs,  and  the  law  of  God,  to  the  esn- 
trarv.  Gentlemen  have  said  several  tines  al- 
ready, that  in  murder  and  fklooy  eee  wit- 
ness is  sufficient ;  which,  saving  sooie  fiMls 
parts  of  the  judgment  as  to  the  roifcitBie  ssd 
attainting  of  the  blood,  is  the  suae  pflnaVtm. 
We  are  not  In  the  land  wbeiiB  that  law  wen  ia  Ibicp, 
for  bjT  that  law,  as  to  common  Mont,  th«e  vm 
a  restitutran  only :  But  1  woold  put  a  fettk- 
man  that  sits  by  the  bar  tbb  case ;  Ey  ths 

ICfS>  HHt 


same  hiw  of  Deuteronomy  and  Nnmberi, 
he  hath  qnoted,  adultery  it  death :  wiH  jmhi 
contented  that  that  should  be  to  here  T  Thtj 
are  either  all  of  them  in  force,  or  none  oftboi 
in  force.  I  do  say,  that  by  the  aUtole  of  Edir. 
3.  and  ever  afler,  till  the  statote  of  Edw.  6,  aas 
witness  was  sufficient  to  ooovict  any  mt  if 
treason.  And  1  de  say,  that  the  tialelst  if 
Edw.  0  do  not  preclude  the  pariiimcit  hm 


any  method  of  proceedings.  The  alatule  siji, 
that  no  man  snail  be  Indieted,  &c.  nar  ibd 
thev  oroceed  upon  such   indietment    Froa- 


the^  proceed  upon  tuch 
which  words  in  thettatote,  T  do  phdniyMb 
it  appear  to  any  gsntleraaa  that  wiH  read  it,  H 
is  confined  only  to  the  eourts  of  WealBlBite^ 
lialt:  For  certainly,  yon  cannot  caH  a  WB  if 
attainder  to  be  a  proceeding  upon  an  indkl* 
ment  What  I  say,  is  only  to  ditcbaigeaf 
own  conscience,  and  to  salve  the  tender  en* 
sciences  of  them  that  hear  me ;  and  tboffwi^ 
I  desire  them  never  lo  say,  tliet  Ibere  engkl 
to  be  two  witnesses,  belbre  they  answer  whsl  I 
have  said  upon  that  statute.  Then,  Sir,  rw 
have  need  but  of  one  witness,  and  you  haveaii 
captain  i  Porter  before  yon ;  who,  I  think,  set- 
withstanding  all  that  hath  been  said,  is  a  oe- 
dible  witness.  A  gentleman  macle  some  sbJM- 
tions  to  his  credit,  and  told  you,  he  was  net  is 
be  believed,  because  lie  was  in  the  same  ees- 
spiracy,  and  had  been  in  such  a  Tillainoos  u- 
tion :  But,  Sir,  the  same  gentleman  hath  sAcs 
confined  you  to  the  roles  of  Westminster-hsl ; 
and  he  hath  told  you,  it  is  a  wrong  place  hm, 
and  that  a  man  has  not  so  g(oo«l  a  trial  bereil 
in  Westminster-hall.  Why  ?  the  thinff  tbit 
was  spoke  of,  of  his  being  concerned  in  tbeii- 
sassination,  and  of  his  being  a  teHow-conspiia- 
tor  with  them,  which  is  now  ur^  as  an  obi0^ 
tion  before  you,  is  no  objection  in  Westminslff- 
hall.  1  would  only  take  notice  of  another  vb- 
jection  this  gentleman  made  to  the  wibMS, 
which  he  said  he  had  from  the  bar;  which  wu, 
that  captain  Porter  was  not  pardoned,  and  bt 
was  now  drudpng  for  his  paidon  :  Butthst  is 
so  far  from  what  ought  to  be  quoted,  that  to 
that  said  it  ought  to  be  repnmanded  for  it 
He  made  another  objection  against  his  beinf  i 
good  witness,  and  compared  it  to  the  case  sna 
hundredor :  but  he  did  not  remember,  thatlto 
man  that  was  robbed  is  a  good  witness ;  aadM 
reason  is,  because  of  the  necessity  of  the  t 
and  that  no  others  can  be ;  and  the  i'  ' 

in  an  humlred  cannot  be  a  witneai 

there  may  be  others ;  and  that  it  the  leawpw 
this  case.    And  for  the  preoedenti  is  R.  SA 


upon  a  Bill  qfAilainden 

D*  4lli*i  time,  no  gentlemen  can  inskt 
em,  ooosMering  the  diflferences  of  the 
■nd  tli«  one  attainted  the  other :  and 
>re  not  re? ened  upon  the  point  of  ju- 
«,  but  bocaiMe  of  tne  different  rig^hts  of 
gB ;  and  nobody  bad  pretended  to 
the  caae  of  the  Regicides;  they  were 
to  tbe  law,  I  mean  such  as  were  acta- 
d  beforathe  parliament ;  buttbeparlia- 
taaed  diflerent  judgment  on  them  ;  and 
r  them  were  in  custody.  What  was 
I  of  Cromwdl'i  case  and  others,  they  go 
B  same  reason,  that  they  were  not  heard, 
Ibey  were  in  custody. 
Wkmrtm,  A  gentleman  lately  told  yon, 
lately  passed  an  act  lor  trials  in  cases 
m,  and  now  we  are  in  this  proceeding, 
oing  something  that  is  contrary  to  it: 
a  thing  thai  would  stick  with  me,  if  I 
fot  answer  it ;  but  I  appeal  to  every 
an  in  this  house,  whether  that  act  hath 
t  of  rdalion  to  trials  in  parliament ;  for 
•ly  to  direct  the  courts  m  Westminster- 
haye  only  this  Id  say ;  f  think  the  evi* 
ary  fuU  before  you.  I  think  you  hare 
very  good  witness,  and  the  connsel  for 
Mier  had  liberty  to  confront  him :  If  he 
.  been  guilty,  the  prisoner  at  the  bar 
lave  dttied  it :  1  am  convinced  of  the 
r  it,  and  my  oonscieiice  is  to  make  a 
St  upon  it,  and  that  is  all  we  can 

hffrtyu  A  worthy  gentleman  of  the 
be  bath  taken  pains  to  find  out  prece- 
jnstify  our  proceedings ;  and  another 
ere  is  no  not  to  circumscribe  our  pro- 
I.  But  since  gsntleroendifier  so  much, 
me  a  great  deal  of  caution.  This  1 
ibcve  is  a  law  of  the  land  by  which 
ought  to  be  governed :  I  takie  this  to 
Etrnordinary  method  of  proceeding,  and 
Iba  lords  will  take  more  care  of  the 
lian  the  oonunoDS. 

Id.  HmHey.  8ir,  I  cannot  saiisty  mysdf 
r  this  bill ;  and  in  a  fiew  words,  I  shall 
ricamalbrit  It  bath  beeu  said, -that 
iament  is  unlimited.  I  do  agree,  that 
Ml  tied  to  the  rules  of  Westminster- 
shall  only  mentkm  the  reason  why 
aeMes  are  required  in  cases  of  higb- 
If  any  will  kwk  into  the  history  of 
I,  tiiey  will  find  it  hath  been  often  the 
nf  the  crown  to  trump  up  plou  upon 
set;  and  thevefbre  these  acta  took  par- 
an  dMR  should  be  two  witnesses  to 
cfrct:  Thio  is  the  reason  of  the  law, 
hink,  upon  it  the  liberty  of  the  subject 
ad  ;  and  tbereibre  1  cannot  be  for  this 


A.  D.  1696. 


[750 


PaoCEEDIMOS  IN  TIIE  HODSE  OF  LoROS. 


the  question  for  |»asing  this  Bill  was 
I  the  House  divided.      Ayes,   189; 


I  the  affirmative,  the 
op  to  At  Lords  for  their  con- 


The  Lords  took  a  voy  extraordinary  method 
to  force  their  absent  members  to  come  to  town. 
They  sent  messengers  tor  them  to  bring  them 
up;  which  seemed  to  be  a  great  breach  on  their 
dignity ;  for  the  privilege  of  making  a  proxy 
was  an  undoubted  right  belonging  to  that 
peera^jne ;  but  those,  who  intendedto  throw  out 
the  bdl,  resolved  to  have  a  full  House.  The 
bill  met  with  great  opposition ;  and  tlie  debates 
were  the  warmest,  and  lasted  the  longest^  of 
anv  that  had  «ver  been. 

The  substance  of  tlie  arguments  in  the  House 
of  LrfNrds,  brought  against  tliis  way  of  proceed- 
ing by  bill  of  attainder,  was,  that  the  law  wss 
all  men's  security,  as  well  as  it  ought  to  be 
their  rule ;  If  this  was  once  broke  through,  no 
man  was  sale :  men  would  be  presumed  giuhy 
without  legal  proofs,  and  be  run  down,  and 
destroyed  by  a  torrent :  two  witnesses  seemed 
necessary,  by  an  indisputable  law  of  justice,  td 
urove  a  man  guilty :  the  law  of  God  given  to 
Moses,  as  well  as  the  law  of  England,  made  this 
necessary :  And,  besides  all  former  ones,  the 
law  lately  made  for  trials  in  cases  of  treason 
was  such  a  sacred  one,  that  it  was  to  be  hoped, 
that  even  a  pai^iament  would  not  make  a  bfeach 
upon  it.  A  written  deposition  was  no  evi- 
denoe,  because  the  person  accused  could  not  have 
the  benefit  of  cross  interrogatiog  the  witness, 
by  which  much  false  swearing  was  often  detect- 
ed :  Nor  could  the  evidence  given  in  one  trial 
be  brought  against  a  man,  who  was  not  a  party 
in  that  trial :  the  evklence,  that  was  ofiered  to 
a  grand  jury,  was  to  be  examined  all  over 
again,  at  the  trial ;  till  that  was  done,  it  was 
not  evidence.  It  did  not  appear,  that  Fenwick 
himself  was  oonoemed  in  the  practice  upon 
Porter:  What  his  lady  did,  could  not  be 
charged  on  him.  No  evklence  was  brought, 
that  Goodman  was  practised  on  ;  so  hxi  with- 
drawing himself  could  not  be  charged  on  Fen- 
wick. 8ome  very  black  things  were  proved 
against  Goodman,  which  would  be  strong 
enough  to  set  aside  his  testimonv,  thoiu^h  be 
were  present ;  and  that  proof,  which  luulbeen 
brought  in  Cook's  trial,  against  Porter's  evi- 
dence, was  agmn  made  use  of,  to  prove,  that, 
as  he  was  the  single  witness,  so  he  was  a  doubt- 
ful  and  suspected  one :  nor  was  it  proper,  that 
a  bill  of  this  nature  shoidd  begin  in  the  House 
of  Commons,  which  could  not  take  examinationa 
upon  oath.  These  were  the  aigumenta  used  by 
the  I^rds,  as  well  as  the  Commons,  against  the 
bill. 

On  the  other  ride,  bishop  Burnet  being  con* 
vinced,  that  Fenwick  was  guilty,  and  that  the 
method  of  proceeding  by  way  of  attainder  was 
not  only  lawful,  but,  in  some  cases,  necessary, 
and  having,  moreover,  by  bis  search  into  par- 
liamentary proceedings,  on  sucli  occasions, 
when  he  wrote  the  History  of  the  lUfonnatioii, 
seen  further  into  those  matters  than  otherwise 
he  should  ever  have  done,  he  thought  it  incum- 
bent upon  him,  when  his  opinion  determined 
hiiii  to  the  severer  ride,  to  open  his  reasinu  in 


751] 


8  WILLIAM  IIL         Proceedings  against  Sir  John  Fenxaickf 


pK 


justification  of.  his  fote ;   which  he  did,  to  this 
effect : 

«(  The  natare  of  goverameot  required,  that 
the  le^j^islature  should  be  recurred  to,  io  extra- 
ordinary cases,  for  which  effectual  provision 
could  not  be  made  by  fixed  and  standing*  laws. 
Oar  common  law  grew  up  out  of  the  proceed- 
ings of  the  courts  of  law :  afterwards  this,  in 
cases  of  treason,  was  thought  too  loose ;  so  the 
law,  in  this  point,  was  limite<l,  first,  by  the  fa- 
mous statute  in  Edw.  3d'8  time ;  and 'then,  by 
the  statute  of  £d.  4th's  time,  the  two  witnesses 
were  to  be  brought  face  to  face  with  the  person 
accused ;  and  the  law,  lately  made,  bad  brought 
the  method  of  treason  to  a  yet  further  certainty. 
Yet,  in  that,  as  well  as  in  the  statute  of  £dw. 
3,  parliamentary  proceedings  were  still  except- 
ed. And,  iud^,  though  no  such  provision 
had  been  expressly  made  in  the  acts  themselves, 
the  nature  of  government  puts  always  an  ex- 
ception in  iavour  of  the  legislative  a'uthority. 
The  legislature  was,  indee<l,  bound  to  observe 
justice  and  e<juity,  as  much  if  not  more,  than 
the  inferior  courts ;  because  the  supreme  conrt 
ought  to  set  an  example  to  all  others,  liut 
they  might  see  cause  to  |niss  over  forms,  as 
occasion  should  require.  This  was  the  more 
reasonable  among  us,  because  there  was  no  na- 
tion in  the  world,  besides  England,  that  bad 
not  recourse  to  torture,  when  the  evidence  was 
probable,  but  defective.  That  was  a  inij^hty 
restraint,  and  struck  a  terror  into  all  people : 
and  the  freest  government,  both  ancient  und 
modern,  thought  they  could  not  subsist  without 
it.  At  present,  the  Venetians  have  the  ir  civil 
jurisdictions,  and  the  (Jrisons  havu  their  high 
courts  of  justice,  which  act  without  the  Ibrnis 
of  law,  by  the  absolute  trust  that  is  reposed  in 
them ;  such  as  the  Uoniaus  reposed  in  dictators, 
in  the  time  ot'thcir  liberty.  England  had  nei- 
ther torture,  nor  any  unlimited  magistrate  in  its 
constitution  ;  and  therefore  upon  frreat  emer- 
gencies, recourse  must  be  had  to  the  supreme 
fegisiaturc.  Forms  are  necessary  in  suhortli- 
nate  cases  ;  but  there  is  no  reason  to  tie  up  the 
supreme  one  by  them.  This  method  of  attain- 
der had  been  practised  among  ns  at  all  times. 
It  is  true,  what  was  done  in  this  way  at  one 
time,  was  often  revei-beil  at  another  ;*  but  that 
was  the  effect  of  the  violence  of  the  times,  and 
was  occasioned  often  by  the  injustice  of  those 
attainders.  The  attainders  of  inferior  courts 
were,  upon  the  like  account,  otlen  reversed  : 
But,  when  parliamentary  attainders  went  uj)on 
good  grounds,  though  without  observing  the 
forms  of  law,  they  were  never  blamed,  not  to 
say  condemned.  When  poisoning  was  first 
pntctised  in  England,  and  put  in  a  pot  of 
porridge  in  the  bishop  of  Rochester's  house, 
this,  ivhich  was  only  felony,  was,  by  a  special 
law,  made  to  be  hi^h  treason ;  and  a  new  pu- 
nishment was  appomtcd  by  act  of  parliament. 
The  poisoner  was  boiled  alive.  When  the  nun 
of  Kent  pretended  to  visions,  to  oppose  Henry 
8N  divorce,  and  his  second  marriage ;  and  sain, 
if  he  married  again,  he  should  not  live  lon^ 
after  it,  but  should  die  a  ? iUain'a  death  ;  this 
4 


was  judged  in  parliament  to  be  hu^ 
and  she  and  her  accomplices  suffmd  aecnid- 
ingly.  After  that,  tliens  passed  many  atlui* 
ders  in  that  reign,  only  apoD  depoutiooiy  thit 
were  read  in  both  houses  of  parliament.  Iiii 
true,  these  were  much  blamed ;  sod  there  mi 
great  cause  for  it :  There  were  too  masy  of 
them;  for  this  extreme  way  of  proceeding  is 
to  be  put  in  practice  but  seldom,  nnd  upoa 
great  occasions  ;  whereas  many  (rf*  these  wtnl 
upon  slight  grounds,  such  as  thesufleringmM 
fKissionate  and  indecent  words,  or  the  misf 
some  embroidery  ingarments  and  coats  of  arm 
whh  an  ill  intent.  But  that,  which  was  iodeed 
execrable,  was,  that  persons  in  prison  wtic 
attainte<1,  without  being  heard  in  their  d^ 
fence.  Tliis  was  so  contrary  to  natural  jintice, 
that  it  copM  not  be  enough  condcnmi 
In  Edward  6*8  time,  the  lonl  Seymour  ms 
attainted  in  the  same  nmnner,  only  with  tbii 
difference,  that  the  witnesses  were  brooglitli 
the  bar,  and  there  examined  ;  whereas  fiirnci^ 
they  proceeded  upon  some  depositioDS,  n 
were  read  to  them.  At  the  iluke  of  Smmt* 
set's  trial,  which  was  both  for  high 
and  for  felony,  in  which  he  was  ac, 
of  tlie  treason,  but  found  guilty  of  the  Mi- 
uy ,  depositions  were  only  read  agaimt  kia ; 
but  the  witnesses  were 'not  brought  ftoe  to 
face,  as  he  presseil  they  might  oe.  Upoi 
which  it  was,  that  the  following  parliamenttf* 
acted,  that  the  accusers  (that  is,  the  witoam) 
should  be  examined  face  to  face,  if  they  «nt 
alive.  In  Elizabeth's  time,  the  parhaoKrt 
went  out  of  the  methml  of  hw,  in  all  the  itffl 
ot'their  proceedings  against  the  queen  of  Scoik 
It  is  true,  there  were  no  parliamentary  attain- 
ders in  England  during  that  long  and  gkniov 
reign,  u|)on  which  those,  who  op(tosed  the  kill 
had  inbisled  much  ;  yet  that  was  only,bectu« 
there  then  was  no  occasion  here  in  EngUndiv 
an^'  such  bill.  But  in  Ireland,  where  ink 
things  were  notoriously  true,  which  yeteooU 
not  lie  legally  proved,  that  government  wtf 
forced  to  have,  on  many  different  occasiotfi 
recourse  to  this  method.  In  James  rsliuMi 
those,  who  were  concerned  in  the  Gunpowder 
Plot,  and  chose  to  be  killeil,  rather  than  takes, 
were  by  act  of  parliament  attainted  athir  dnir 
deatli  ;  which  the  courts  of  law  ctmid  not  da, 
since,  by  our  law  a  man's  crimes  die  with  hisi* 
self;  for  this  reason,  because  he  cannot  nnkc 
his  own  defence,  nor  can  his  children  do  it  iir 
him.  TJic  famous  attainder  of  the  earl  <f 
Strafford,  in  king  Charles  I's  time,  has  ben 
much  and  justly  censured,  not  so  much  be- 
cause it  passed  by  bill,  as  because  of  tbeiiyiu^ 
tice  of  it.  He  was  accusetl  for  having  A 
upon  the  house  of  commons  rcfusinir  to  gruj 
thesultsidies,  which  the  king  had  asked,  *  Thtf 

*  the  king  was  absolved  from  all  the  ruleill 

*  governntent,  and  might  make  use  of  force  H 

*  subdue  tliis  kingdom.'    These  Mords  *«• 
proved  only  by  one  witness,  all  the  rest  of  Ihi  « 
council  who  were  present,  deposing,  that  th^ 
reniembeivtl  no  such  words,  and  were  |    ** 
that  the  debate  ran  only,  upon  the  h 


a  Bin  nf  AHuintieT. 


A.  D.  169S, 


[T5i 


fbolHiti^  r  m  tlidd  tliovgH  *  this  kingdom/ 
•Itol^jr  0k^»f  must  be  roeani  of  En^fland,  yet  it 
ifHf  lit  well  lie  meant  of  » that  kmi»dom/  which 
r  tbc  subject  then  ©f  the  debate.  Since  then 
words  were  capaWe  of  that  faTOuraMc 
e,  and  that  both  he,  who  spoke  thenVf  ami 

KVf  wbo  heard  them,  affirmed^  that  they  were 
uU  imd  uoderstuoil  in  that  sense,  it  w&ji  a 
MMwt  |»ernicious  precedent,  first  to  take  them 
to  the  matt  udious  sense  (possible,  and  then  Ui 
flggtpoy  bin),  ivbo  ssLid  tbf^ti,  upuo  the  testi- 
mom/  «f  ooe  sini^le  ejsecjiiionable  witness. 
Wbereaiif,  np^n  the  cornnioivs  refusipg-togront 
ibeldiig^s  denittiuL  he  hnd  pl^iinly  Qchk^efl  tl»e 
kltvg  W  sttbduo  hi«  people  by  forc^  it  is  Lard  to 
telly  what  the  portiament  might  not  josttj  hnvit 
dtnie,  vr  would  not  ilo  aguiti  io  lUe  like  c!ase. 
In  ChaH«i  'Xia  tiuiesoiae  of  tl^  most  emtaeat 
nfilMt  regicides  were  fUtainted,  a<W  they  were 

tl  ;  and  in  kio^  James's  tinoe  thednkeot* 
Etmaiitb  Will  attainted  by  bilL    These  hist 
icJers    Imd  their   first   be(fifiak>g  to   the 
hoisao:  <»r  cnitiinoss.     I'hns  it  appeart^  thai, 
tbeae  bst  two  hundred  years,  not  to  luention 
iQiidj  antieiiLcr  (irecetleiTtSf    the  nation   had 
^MMpitraordinary  uci^aslooB  pmeeeded  in  this 
^^^^P^lAfy  way  by  bilL     There  were  also 
^li^^r«cetfent9  of  this  iQ<?thod,    And  where- 
i0  iiiAus  said,   (hat  nu   i\\  fkaHianicnt  might 
f  r  V  thtif*  tiHi  far,  it  i$  certaiu,  that  the  oatkio^ 
,  ^Tscm  in  it,   must  be  safe,  when 
:i<m  own  hands,  or  in  tho^ofa  re- 
iiive  chosen  by   liieinselv^es.     As,  on 
!  oltiKr  hand,  if  that  be  ill  chosen^  there  is 
hti|t  <br  it  ;  the  nalioti  must  perish,  for  it  is 
'  their  own  f»iu)L     'I*bey  have  already  loo 
t^uts  for  Uiis  way  ol^' proceeding,  if 
h>  make  an  il}  use  of  them.    Bnt  a 
HI  1&  ttoly  a  ground  or  warrant  for  the 
lififf  upon  the  like  occasion.    Two 
!  laiiT down  for  all  hills  ot  this  nature  ; 
;  the  naatter  be  of  a  very  ejiiraorthiuu-y 
JHB|&     Lester  critDes  bad  better  be  jm^sifd 
^^^H^n  j^onifihed  by  the  leglshtare,      llf  al) 
^^^BleSt  that  cai^  he  contrived  against  the 
sfi^lt,  eet tainly  the  most  heitiaus  one  is«  that 
<if  briDfilog  in  \  torei^i  force  to  QafK)uer  us, 
Ttiis  ruias  both  us  and  our  po«terity  for  ever. 
Pistractioiif  al  home,  liow  mxX  soerer,  eTcn 
f  should  end  erer  so  tragically,  as 
iftd  in  the  murder  of  the  kitij^  and  m 
usur|iatian,  yet  were  capable  of  a 
chsja  ajad  a  cnre.     In  the  year  1660,  we  came 
\  to  our  wivs,  and  all  was  set  rij^ht  agfain. 
new  there  is  no  prospect,  afWr  a  foreign 
eaaqacBi^  but  of  slavery  and   misery.      Aqd, 
bow  black  s>oever  the  s)i^itii>inatiii0'  a  king'  must 
need  appc*ar,  yet  a  foreljjn  conquest  is  worse ; 
li*  ritmjr  thekioffdora;   and  therefore 

and  contriving  that  must  be  the 
cktLSt  ol  crimes.     But,  as  the  importance  of 
l^maiter  ou^bt  to  he  ectual  toi»uch  an  unusual 
foceedingf,  so  the  certainty  of  the  facts 
b'  be  such,  that,  if  tiie  defects  in  le^l 
*to  be  supplied,  yet  thiii  ought  to  b*^ 
stun  sitch  groumfs,  a«   make"  the   fact 


a  co«rt  (Vf  taw  eodhi  not  proceed  open  it,  yet 

uo  man  could  raise  m  hiinHelt'a  doubt  coricetn- 
m^  it.  Antieotly  tieason  was  jud|^cd  as  a  fe- 
lotiy  still  is,  upon  such  {nesumptions,  as  natis^ 
^efi  the  jury.  The  law  has  now  hmitfd  this  tit 
two  witnesses  hroug^ht  face  to  face.  Bnt  the 
pari  lament  may  still  take  that  hherty,.  which  j4 
denied  to  inferior  courts,  «f  judging-  this  mat* 
ter*  as  an  ordinary  jury  does  in  a  case  of  |elony« 
fu  the  present  case  tliere  was  one  witness  viva 
tfDtr,  upon  whose  testimony  several  pr  ^    T 

lieen  condemned,  atid  ha<l  suffered  ; 
neither  at  their  trki,  nor  at  their  deiKu,  lus- 
prored  or'denimi  aov  circumstance  of  his  depo-* 
sition«.  *lfbe  had  been  too  much  a  libertme 
in  the  cmrm  of  his  life,  that  did  mit  destroy 
hiR  credit  as  a  witness.  In  the  (ii-sC  trie)  thi4 
niijL^ht  have  made  him  adonbtitil  witness  ;  ^iti 
what  >»ad  happened  since  liad  destroy eil  tha 
pos<R(rtlifv  eren  of  suspeeliiig  bis  e*n)eirce,  A 
party  had  been  in  intefcfft  cpneerned  to  inf^nirw 
into 'his  whole  h|!e,  and  in  the  present  ease  bad 
fuK  tiitie  for  it ;  ami  every  circiratstaiice  of  hr» 
depostlioB  iuid  been  exuniiiieiV;  and  y^A  ao* 
thin^'had  been  discovered,  th  tt  couM  ^o  inoelt| 
as  create  a  doubt.  Ail  was  still  u(^toiYtiha<i9y 
sound,  and  true.  The  only  circwiia|pwci?v  m 
which  the  dyinsf  specchesi'*  »ti'^f  i*k.i  «i,iflEpifle4 
oij  his  evidence,  secnied  to  was 

conrernin^kinij  JanTcs*scnu  rtone 

*rf  them  denirti  reafly  what  Fort^  had  depsa- 
eil,  whirh  was,  tlwu  Ctmrnoek  told  him,  thai 
there  was  h  commission  come  from  king  Jamei 
for  attack  m^  the  pfcee  af  tJranjare's  ^rards. 
Tfley  fmlfileoied,  that  there  was  a  corwmisskiii 
fbr  assawtoatmgf  him-  Sir  John  Friend  and  aTf 
Wm.  Perkina  were  cowdemoed  for  the  eooaul-*- 
fatii^D  uow  given  jn  evidence  sj^nst  sir  Jukn 
Fen  wick.  They  died  not  denyinjf  it.  m»  tha 
contrary  they  justified  all  they  Inid  done.  It 
cottkl  not  be  supposed,  that,  if  there  had  beeci 
a  tittle  in  the  e?iden<je  ibat  was  false,  titej 
should  both  have  been  sa  far  wanting  la  tbeift*' 
selves  and  to  tlunr  friends,  who  were  to  be  tried 
ttpoo  tbe  same  ev^idetiee,  as  not  lo  hare  declar- 
ed it  in  the  soleamest  manner.  These  thing* 
were  more  andemably  certain  than  the  eW- 
denee  o4*  t^n  witnesses  could  possibly  bt% 
^Yiinesses  mi*  ht  conspire  to  swear  a  falci^hrkod ; 
bnt,  in  this  casej  the  circumstances  look  away 
the  posiribihty  M'  a  doubt*  And  therefore  the 
porliament,  withtrnt  tftk-inij  any  notice  of  fJootl*  * 
man's  evidence,  nii^jht  well" judge  Fenwick  - 
guilty ;  for  na  man  eould  doubt  of  it  in  his  owu  - 
inind.  Tlie  antient  RaBiaiiB  were  very  jealoua 
of  ftK-ir  lITjerty ;  but,  bow  eataet  foeter  thej 
u  i  ordinary  eawa,  y«t,  when  any  of 

11  u^  seemed  to  hare  a  dasf 271  af  mak- 

ing himself  kinsf,  they  either  created  a  dictator^ 
to  su|ipress  or  destroy  him,  or  else  the  people 
proceeded  a^inst  him  in  a  summary  way.  By 
the  Porcian  law,  no  citizen  coulil  be  put  to 
death  for  any  crime  whatsoever ;  yet  such  re- 
gard did  the  Romans  pay  to  justice,  even  abore 
law,  that,  when  the  Cam|>anian  legion  had 
perfidiously  broke  in  upon  Ithegium,  and  piU 


^UL,  Xtll. 


appear  90  rridei^iij  true,  that  thoogb  J  lageil  it,  tliey  put  lUeiu  all  to  death  for  it.     in 


I      3  C 


T553  8  WILLIAM  IIL         ProceetKngi  against  Sir  JohnFenwick^        [ISG 

the  famou.  case  of  Catilioe's  conspiracy,  as  I  ford  VVeymouth,  ^^^^^J^^  wuSSS  ff 

tbeeYidencewaackar.andthedangerexireine,    Eresby    Ferrers,  ^.tzwa^tw.   \VU1^^ 

Se  accomplice,  in  Ulcere  executed,  notwth.    Brook,  ^^{'^"f^'v K^^^ 

9Undioir  the  iVcian  law.    And  tliis  was  done    Jerroyn,  By'^"^.,^^^f'*^'l?.^™^^^^^^^ 

by  the  Srder  ot  ihe  mmte,  witUoii^  eiitier  hear-  |  Dartmoulh,    Guilford,    Godolphii*,   Jeffmci, 

ioffthein  raake  their  own  defencp,  or  admitting 

them  to  ciaim  the  right,  which  the  Valerian 


Lemster,  Pawlet.    lu  all  tiO. 

Protest  thereon.— The  Ijards  who  were  for 
the negntjre  entered  the  followiag  Vmtm : 

"  Because  lills  oraitaiuilernj^amst  nertoni 
ia  prison,  aiwl  who  are  lliercCoFf  lialls  to  be 
tried  by  Jaw  ate  of  dangerous  consequeDce  to 
the  tires  of  tha  sutycci,  and,  a*  we  camlte, 
may  f^nd  to  the  sulivcrsion  oflhelawf  ofthii 
kiti(|dom.— Becaiise    the   evidence   of  grand 


egaid  he  had,  either  to  law  j^j^j.^a^,,^  of  ^  hat  was  Bwnra  before  them  tgauiit 
I,  upon  ihls  tfccasioQ,  he  had  ;  ^^  j  p  ^  ^\^^  ^y^^  evUletice  ofihe  pettj  jurr- 
DC  to  protect  those,  who  were  |  ^^^^^  ^^  ^.^^^^  ^^^^  s\*orD  at  the  trial  of  ot1i« 

..»A4lkAi>>*  ^    ^.l^.!!*,!^!    kdi-i»-     knth    which  ire 


law  jfave  them,  of  an  appeal  to  the  people,  yet 
that  ttliiile  ^Moceedlngr  was  chiefly  directed  by 
the  two  ffrealest  as&eit^rs  of  piil*lic  liberty,  thai 
ever  lived,  Cato  and  Cicero.  And  Ciesar,  who 
opposed  it  on  pictence  of  its  being  agfainstihe 
Porcian  law,  was  for  that  reason  suspected  of 
bciD«  in  the  comtedtraey.  It  appeared  atWr- 
wavds,  how  litile  regard  he  bad,  either  to  law 
orlibcarty,  thoug^h,        "  ^'  ~  " 

■uide  use  of  the  one 
in  a  plot  against  the  other. 

ThitJ  last  ejipn;s*ion  was  much  resented  by 
those,  who  were  against  the  bill,  as  carrying  a 
severe  reflection  11^011  them  for  opposing  it; 
anil  JDdttMl  tilt:  bislu»|p.  though  be  only  offered 
what  rea^Oiis  occurred  to  him  to  justify  his 
TOtin^for  the  bill,  fell  under  a  great  load  of 
censure  on  this  occa.sron  In  condusiion,  the 
bill  passed  by  a  sniall  ratijoritj  of  seven  voices 
•nly,  there  being  G6  for  it,  and  60  against  it. 

A  List  of  the  Lords  for  and  against  the  BiU. 
Bishops  for  the  B«//.— Canterbury,  Litch- 

lleld,  Sarum,  CheMrr  Ely    Oxon,,  Nonvich. 

Peterborou»h,   Gloucester,   Bristol,  Lincoln, 

Chichester*. 

Lords  Temporal  for  the  BiJil— Prince  George, 

Norfolk,  Siitithampion,  Ricbmr>nd,  Sl  Albans, 

Bolton,  Schomberg,  Newcastle,  Usfnrd  Der- 
by, SulFolk,  Bridgpwater,  Boliiitf broke,  Man- 
chester, Rivers,  Slattitbrd,  Sunderland,  Siind- 

wicb,  Essex.  Waccleafield,  lUdnor  Portland, 

Monmoutli,  3IoiTlii^iie,  Marlborough,  Scaf^o- 

tongh,  Wurrinjrtou,  Bradford,  Komney,  Tan- 

kervillc,     Abt-rgavenny      Dtlawar     Berkley, 

Morley,    Kwre,    Wharton,  Sidney,  Iiovelace, 

Howard,  Rubv,  VangUan,  Ward,   Culpeper, 

l^ucas,  Uockiughafti,  lierkiey,  Cortiwalhsj^Os 

born  I  0      '  —    *        ii  -     A -1.1 

"IViiSton 

Wmton,  * ,  " jv.  nam  a.„.   ,w-..-,  - -t  — -        ^  - 

ford,  Bath  and  Wdls  i^^m,  H.  London,  Uil       erfford    W  illouj;bl)T, 

Lords  Temporal  againii  the  i?i//.— I x?e<ls,  j^^^,^  [i,  Ferrers,  Ciraiiville,  Fitzwalter,  llalU- 
Pembroke,  Somerset,  Ormoird,  xNoUhumber-  f^^^^^  LiniUey,  P.  \VJuloii\  Arundell,  Lempsto', 
land  DeTonshire,  HalilaXT  Normanby,  Und-  Hertfon^  Camarvonj  JmmU  Exon\  Jefliff|% 
Ruv,  Dorset,  Knit,  Huntington,  Northampton,  Northumberland,  AUiiigttHi,lunsdim,Ch*Wi^ 
Bristol,  Winchelsea,  Kingston,  Carmarthen,  Scarsdale,  Normanby  VVev mouth,  Tho.  Me- 
Thanct,  Scarsdale,  Balh,  Craven,  Uurlm^ion,  ^^^.i^  Dartmouth  8u&sC]i,  Northampton,  Bath, 
Fcvei-shanv, Sussex,  Berkley,  Nottingham,  Uu-  |  rj,^^^,  Tt,iffeii  Bristol,  Leeds,  Uochester,  Uigb, 
Chester,  Abin|,noB,  CarliaJe,  Toriingtoo       crc-  j  >\  ipbyde  Broke." 

'T"as  to  Bishops  .oim  upon  Bills  of  At-  j  ^  The' king  u^avo  the  royal  assent  to  this  bU 
taindfr,  seeVat'b^^   ila;.k;  and   the  books    Jamiary  the  lllh,  lo97. 
lirt^tr^tlS^pe^rS^^^^     1  Tbe  WRIT  ..  I^-utin,  sir  John  FenwiJ 
b^  ;ops  lot  v^  hi  case  of  blU  upon  cnrcaMon  !>einp  under  the  whole  Bi-oad  8«l,i« 

.f  lorll  Danbv' s  impeachment.    Sec  also.  Bar-  enclosed  m  .t. 

rinijlon'sOirservatiouf  on  Magna  thftrta,  and 


men,  were  admltteil  here;    both  which  ire 
against  the  rules  of  law    besides  that  they  €\^ 
agreed  in  their  testimony.-^Becaiisc-  ibr  mkt- 
mation  of  Goodman  in  wrilintj  was  receir«d, 
which  \%  not  by  law  to  be  admitted ;  and  tbe 
prisoner  for  want  of  his  appearing  face  to  lict, 
as  is  ret^uired  by  law,  could  not  have  iheadvin- 
tage  of  cross-examining  him.— And  it  did  not 
appear  by  any  efideucej  that  sir  J.  F.,  or  aay 
other  person"  employed  by  him,  had  any  wv 
persuaded  Go  oil  man  to  withdraw  himself;  and 
it  wi>nld  h^  of  very  danjjerous  conueqneoce, 
that  any  iicrson  so  ^ccusetf  shouUl  bt;  condeim- 
ed ;  ior  by  this  means  a  witness,  who  rtiU 
be  found  insuflicient  to  convict  a  >na>M»^ 
have  more  power  to  hurt  him  by  his  abscncr, 
than  he  conlil  have  if  he  were  nroduced  tira 
voce  a;,'ainst  him.— And  if  Gowlman  W  ip- 
pearcd  against  him,  \et  he  xuas  so  iidamom  in 
the  whole  ct.ursc  vt  his  Hff,  and  particularly 
for  the  most  liorrid   blasphemy    which  wai 
proved  ajjainst  him,  that  no  evidence  for  him 
could  or  ou;;ht  to  have  any  credit,  esi»eciaUy  m 
the  case  of  blood.     So  that  in  this  case,  tbwe 
was  but  one  witness,  viz.  Porter ;  and  he.  as 
we  conceive,  a  very   doubtful   «»ne.— La>uy. 
because  sir  J.  F.  is  so  inconsidcrablii  a  uian,» 


t^/»lut.  i37  Udw.  1. 


"  Gulielmus   terlins   Dei   Gratiit  Airfj 
Scotiic,  Fiaacise,  et  Uibernifie|  ReX|  FiM  9* 


757] 


vpon  a  BiU  of  AUainder. 


1696. 


[753 


&c.  Tic,  Cora*  London »  el  Fic,  Com*  Midjc, 
fialut^m:  Cum  Joh«nn«»s  Fenwick,  bar,  fer 
fMieniiain  mlurti  ad  sej^ianem  pmet^entis  noslri 
ParliameDti  a^iuil  Westiiijost,  super  TicestmuiQ 
diem  OctubhSf  AiiDO  RegDi  nostri  octavo,  |>er 
prorogationfm  leat.  edit,  dc  alia  |irodilione  |H:r 
H^Bum  perpetraL  et  commiss.  atttnctus  iuit,  et 
^^ecutio  auper  inde  adimc  restat  faciend.  el 
^ia  pro  cerii^  eau^is  et  ^oosideratioulbus  iios 
^)eciatiter  movfntiUuSjtotamexecutiomjm  actus 
attinciiifDe  pi-^edict.  super  dtci.  Joliannem  Feu- 
wiek,  imeter  amputaltoiiom  Ca|ntis  sut,  otnilti 
¥id(oitiu5;  ideo  prteclpimus  vobi«  ct  per  pro?- 
•emes  Brrolter  injiingendo  mandamus,  quod  in 
€t  super  viceaiinum  tertium  diem  iusteutb 
inensis  Jatmar.  inter  horns  nonam  et  nndccU 
mam  ante  meridiem  ejusdem  dtei  dictum  Jo- 
JujiQem  Fen  wick  in  Goal  a  nostra  de  Newgale 
cub  Cuslodia  vestra  nunc  existent  a  Goal  a 
|iMedicL  unique  ad  Tower  Oill|  ducatiSf  et  Caput 
ipisauB  Jobannifi  Feuwick  ad  tuuc  et  ibidem  nm* 
fkutaj-i  el  a  Corpore  sue  omnino  sepamri  facia- 
lis. Teste  me  ipso  apud  Westmotmat,  decimo 
Ilayo  die  Jauuar.  Anno  Keg^ui  nosiri  octavii, 
Tbc  Label.  CHtrrL.*' 

Fie.  Com » l^od,  et  ftlidx,  de  esfccutione 
lacicrul,  Jobn  Fen  wick,  bar.  aulbori'- 
t^le  Pari,  Aitinct-     Chdtl.'* 


AH  the  Punishment  being  remitted  but  Be- 
oil  the    2flth  of  Jatiuaty  1697,  iir 
Isn  l^enwick   was    brougbt    to   a    ^ajfold 
etud    on   Tower  Hill,  whtre  he  deliirGred 

PAPER  tu  the  Sberiffa. 
**  Speaking  nor  writing  was  never  my  talent: 
1  Bhall  tbei^tbre  give  a  very  short,  but  tuithtul 
ount,  tirst,  of  my  »elig:iou,  and  next,  what  1 
■  rao*l  innTteenily  ri>r,  to  avoid  the  ealnm- 
.  1  may  reasonably  expect  my  enemies  will 
upon  me  when  d«'ad;    since  they  have 
faJsely    and   maliciously    aspersed    me, 
bi!st  uiidi^r  my  miKtortunes. 

As  tbr  my  r^li^rioQ,  I  was  brouglit  up  in 
i  churcli  uf  England,  as  it  is  eslablisbed  by 
r,  and  hate  ever  professtid  it ;  though  I  con- 
I  bave  been  an  unworthy  member  of  it,  in 
living  up  to  the  strict  and  t^xcellent  rules 
eivf ;  for  which  I  take  shame  to  myself, 
I  humbly  asik  forgiveness  of 'God.  I  come 
'  to  die  in  that  C'ommunion)  trusting,  as  an 
and  beurty  penitent,  to  be  received  by 
f  mercy  of  Godj  tbrougb  the  merits  of  Jesus 
my  Saviour. 
ly  religion  taught  me  my  loyalty^  which 
i^od  is  untainted;  and  I  have  ever  en- 
in  the  station  wherein  I  have  been 
if  to  the  tjtmost  of  my  power,  to  support 
\  of  England  in  the  true  and  hneal 
arse  of  descent,  without  interruption. 
^  An  for  what  1  am  now  to  die,  1  call  God 
witness,  1  went  not  to  that  meetiug  In 
Leiden  ball  street  with  any  such  intentiou  as  to 
iDviLe  king  James  Liy  force  to  invade  this  na- 
ilACi ;  Dor  \tas  I  myself  provided  with  either 
Jione  or  arms,  or  engagetl  tor  any  number  of 
mcD^  or  gave  particular  consent  for  any  sneb 
|Ytti^,  fts  is  most  faUly  iworu  against  me. 


■mble 


linst 


**  I  do  al^  declare,  in  the  presence  of  God,  ^ 
that  1  knew  nothtog  of  king  Jameses  coming 
to  Calaifit  nor  of  any  tiivasiun  intended  froia. 
iheuce,  till  it  was  publicly   known:     And  th«i 
only  notion  I  htid^  that  (iomtlhing  might  be  < 
attempted,  was  from  the  Toulon  tleet  coming'  j 
to  Brest. 

'*  I  also  call  God  to  witness  that  1  received  the 
knowlalge  of  what  is  contained  in  those  papers 
that  [  gave  to  a  great  man»  that  came  to  me  tn 
the  Tower,  both  from  letters  and  messages  that  j 
came  from  France;  and  he  told  mej  when  I  ^ 
read  them  to  him^  that  the  priikce  of  Orange 
had  been  acquainted  with  most  of  those  thinge 
before. 

**  f  might  have  expected  mercy  from  thatj 

Iirince,  because  I  wa^  instruuicntal  in  savnr^^ 
via  life:  For  when,  about  April  1695,  an  at*  ! 
tempt  formed  against  him  come  to  my  know*  J 
ledge,  I  did,  partly  by  disstiaiiions,  and  partl/.^ 
by  delays,  prevent  that  design ;  which,  1  sup* 
pose,  was  tbe  rearion  that  the  la&t  villainous  pro*^ 
ject  was  concealetl  from  me. 

**'  U  there  be  any  persons  whom  1  have  in- 
jured in  word  or  ileeil,  I  heartily  pray  llieir  \ 
tuirdon,  and  l>eg  of  Ood  to  pardon  those  who^i 
lave  injured  me ;  particularly  those  who  with  , 
great  zeal  have  souglit  my  life,  and  broui;Ut^ 
the  guilt  wf  my  innrtcent  blood  upon  this  nation,  j 
no  treason  being  proved  iijion  me, 

**  I  return  my  most  hearty  thanks  to  thoiffi 
noble  and  worthy  persons  wlio  gave  me  tbdr  ] 
assistance  by  o|ipc>siiig  this  hill  of  attuinder,! 
without  wliicb,  It  had  been  im|K»Si«ib1e  1  eould 
bare  fallen  under  the  sentence  of  death.  G*m1^ 
bless  them  and  their  pijslerity ;  though  1  anL.i 
fully  satjslieil  they  pleaded  tiieir  own  cause,  j 
while  tbey  *lefeuded  miue.  ) 

*'  1  pmy  God  to  hle^^  my  true  and  lawful)^ 
sovereign    king  Janus,  tbe   queen,  and    tbe^ 
prince  of  Waits,  and  restore  him  and  bis  p09» 
terity  to  this  throne  again,  for  the  peace  and^ 
prosperity  of  this  naiion  ;  which  is  impossibU 
to  prosper,  till  tbe  govertimeot  is  »ottled  a|>OD  i 
right  foot. 

**  And  now,  O  God  1  I  do  with  all  humblej 
devotion  commend  my  soul  into  thy  bands,  tht 
great  Maker  and  Frcsffrver  of  men,  and  lover ^ 
ot  souls;  beseecliin^  thee  that  it  may  be  al*J 
ways  dear  and  precious  in  thy  sight,  through  J 
the  merits  of  my  Saviour  Jesus  Christ,  Amen.*^ 
«*  John  Fenwick,** 

Then  be  submitled  to  the  blocks  and  the 
executioner  severeil  hia  bead  from  his  body. 


ikCm> 


watJ 


*  In  tbe  Harleian  Misc.  01dy<i  republish e 
**  Contemplations  upon  Life  and  Deatli," 
as  tbe  composition  ot'  sir  John  Fenwick.   Mr.j 
P^rk,  1  Had.  ."Ilisc.  54*2,  ed    l»Oti,  states  that  J 
Philip  de  Moroay  lord  of  Plessii  Marley, 
the  author  of  those  Contemplations,  which  we 

Srintcd  in  1576,  and  translated  fmm  the  French 
y  the  celebriiled  countpss  ol  Pembroke  in 
15Q0.  Qu.  If  sir  John  Fen  wick  were  not  ihi 
maker  of  tbe  trauilatioa  publi^beii  to  the  il%rly 
Miicellany  I 


W] 


8  WILLIAM  III.  ProceedingB  agdnji  Jchm  Bammdi  and  oAtn,  \70 


John  began  to  entertain  thovfrhti  of  feUaf 
from  under  his  father's  diseipliiiey  who  imI 


393.  Tlie  Case^  with  the  Proceedings  against  Major  JoHir  Ber- 
XAHDi,*  Mr.  CouvT£B»  Mr.  Blackbukk,  Mr.  Cassels,  Mr. 
Chambers^  and  Mr.  MzldruMi  on  Account  of  th6  Assassi* 
nation-Plot ;  8  William  III.  a.  d.  1696.  [Written  by  Major 
John  Bernardiy  in  Newgate,  after  he  had  been  there  near 
thirty-three  Years  a  Prisoner,  (though  in  the  Historical  Part 
abridged)  without  any  Allowance  from  the  Goveromenti  and 
who  could  never  be  admitted  to  Bail^  or  take  his  TriaLf] 

Major  John  Ikmardf  was  the  son  of 
Francis  Bemanii,  descended  of  an  ancient 
noble  family,  counts  of  the  holy  empire,  ^c. 
This  Francis  was  sent  to  £n|;fland  by  the  serene 
rcpi^dio  of  Genoa,  witii  credentials  from  the 
duke  and  jSfovcrnors  of  that  sute,  in  the  cha- 
racter of  agent,  and  aflerwards  of  tliat  of  resi- 
dent, from  1651,  until  after  the  happy  restora- 
tion of  kin^  Charles  2.  We  And,  that  on 
Tuesday,  Sent.  16, 1651,  on  a  Re|M)rt  from  the- 
Speaker,  **  It  was  re6<dved  by  tlic  parliament  to 
reoeire  Francis  Bernanli,  aj«;ent  Irom  the  com- 
monw-ealth  of  Genua,  aocordiog  to  the  rule  for 
reoeivini^  agrents.'*  And  on  the  £2d  of  June, 
1660,  siffnior  Francis  Bernard!  was  appointed 
resident  tVom  the  said  commonwealth  to  £iig- 
laud,  to  congratulate  his  majesty  on  his  happy 
return  to  hi:;  kincfdoms.  But  about  two  }'cars 
al\eiwards  the  rcnullic  sciit  over  another  per- 
son to  succeed  the  said  siLjnior  Francis  Ber- 
nard! ;  and  as  lie  was  born  in  Kn<;land,  at  the 
time  whtn  his  father  count  Fhilij)  dc  Bej-iiardi 
was  here  also  in  riiibassy,  and  lovinj^thc  ooim- 
try  as  the  place  of  his  nativity,  he  livid  and 
died  in  this  kin:;dr>ni,  havini^f  sjient  near  thirty  I 
thousand  pounds  in  ho.«{)itality,  and  in  indnt<ri{i^ 
a  particular  lastu  in  i^ardc-niii;,*-.  hi  iis'^-  the  mo.st 
famous  •^(-iitluriian  in  the  kin^^dom  ol'  his  time 
for  fine  cjardcns.  He  live<l  some  tiin;  near 
Windsor,  when  tiist  out  (d'his  ministry  ;  but  i-e- 
nioved  alWrwards  into  Worcestrrsliire,  to  he 
more   remote  and  unknown.     Iloi-e  his  son 


*  Johnson,  in  his  Life  of  Pope,  ha:^  jri-aiitied 
his  dtblike  of  kinif  William  by  mention  of  »*  liio 
iwor  conspirator  who  died  lately"  [nearly  half 
a  evntury  before  the  time  when  Johnson  was 
writiujr]  "in  prison,  nfur  a  continement  of 
more  than  lo  \ears  wii!u>iit  any  cricie  proved 
aqTiinst  him."*  JJcrn:!ri!i  Inm  «n  article  in  the 
Bio&fraphia,  and  an  account  is  ^\\ei\  of  him  in 
the  Gcntkinan's  ^lag^azine  for  the  year  1780. 

f  **  As  many  pc«>ple  arc  unacipiaintcd  wiili 
the  reasons  why  those  persons,  Ruspec^ed  of 
beings  con ceruetl  in  the  a^ssssination-idot,  lay  so 
hn\g  in  New^ie,  without  beii»f|^  either  baded, 
tried,  or  disi'liar^ed ;  this  account,  wrote  by 
major  Beniardi,  (one  of  tliosc  taken  up  and 
confined)  will  exiiUiin  the  cause  of  it"  Former 
Edition. 


him  with  great  sererity ;  sometin 
him  like  a  criminal  in  a  little  dark  roov  fir 
trifles,  allowing  him  only  bread  and  «nl 
beer ;  and  whilst  so  confined,  nobody  dunt  r^ 
lieve  him,  or  let  him  oat.  Thus  this  John  Ber-' 
nardi  was  unhappily  destined  to  confinemcBliB^ 
his  youth  by  an  unkind  father,  and  in  km  oU' 
age  to  uoderro  the  like  rigid  fate  by  wDpifSS- 
deutod  acU  of  parKatneut,  wilhimt  efer  bsi^i 
heard,  or  prof^l  crimiDal  by  any  court  iatti 
khigdom. 

Acoordingly  John  ficmardi  escaped  fkm 
his  father  in  tlie  year  1670,  leaving  hin  ariNf 
in  his  be«l ;  and  going  out  of  hii  gale,  M 
kneeled  down  on  the  ground,  protestiaff  ssl 
pruying,  that  he  might  never  return  wbiMbii 
fattier  lived.  He  began  his  journey  towsidi 
Cuvculry,  and,  though  pursued,  had  the  good 
luck  to  escai)e,  and  got  to  sir  Clement  Fisber^ 
scat  at  Packington,  near  that  city,  wliose  bdy 
was  the  heroic  Mrs.  Jane  Lane,  who  prolectfd 
and  conducted  king  Charles  2,  after  the  badr 
of  Worcester,  (so  otten  mentioned  in  the  bistarT 
of  those  times)  and  who  was  very  intimate  wiui 
voun'^-  liernardi's  father :  But  sir  Clement  aid 
Fiis  Ldy  were  gone  to  London  two  days  beibit, 
whither  young  Bemardi  followed  them.  Os 
hearing  his  case,  they  did  not  persuade  bim  ts 
return  ;  but  recommended  him  by  letter  is 
captain  Littleton  Cient,  a  relation  of  her  bdy- 
shi|)*s,  then  in  garrison  at  Fortsmoutb,  asd 
equipped  him  with  neci'ssaries  and  money  tor 
his  journey.  On  his  arrival  at  I\>nsnioudl 
the  captain  received  him  very  obligmgly,  sad 
entered  him  in  his  own  company,  and  tan^ 
him  all  the  duty  and  exercise  of  a  sokfair. 
'rhis  life  young  Hernardi  was  very  tbnd  if| 
and  passetl  through  various  posts  (in  UoHsnd) 
in  the  army ;  for  he  had  seven  commissions  ia 
all,  tivc  of  \«hich  were  conierrcd  on  him  by  hil 
highness  the  prince  of  Orange,  the  sixth  kj  I^J. 
Ntates- General  and  the  prince  of  OrangTt  ■■■ 
the  seventh  by  king  James  2,  before  therevt* 
lotion.  He  attained  the  rank  of  a  captain lA 
H  7  years  of  age.  At  the  siege  of  fifacstriehC  ka 
lost  an  eye,  and  was  shot  through  one  of  ■> 
anns,  the  bones  of  which  were  dMbed  to 
spUntors;  aikr  wiappiog  hia  arm  in  Ike  if 


Ml  Account  of  the  Assasiimaton  Ploi^ 


A.  D.  1696. 


[7» 


soit,  he  crowded  \oxk  to  the  breach,  and 
WB  to  the  bottom  amongst  the  dead,  (the 
1  beiojgf  eofered  if ith  them ;)  when  a  aol- 
ider  his  eommand  seeing  him  fall,  jumped 
im,  took  him  up  in  his  arms,  and  ran  to 
aches  with  him,  where  surgeons  are  al- 
waitin^  on  those  occasions :  and  thus 
Ills  ensign  finom  Ueeding  to  death.    The 

of  Orange  hearing  of  it,  immediately 
ted  Bemardt,  and  ordered  him,  with  the 
woanded  offic^,  to  be  conducted  to 
i-doc:  bnt  Bemairdi  not  being  able  to 
!  the  jolting  of  the  carriage,  wa%  laid  on 
>und,  tHI  his  servant  went  to  ^t  men  to 
bira  back  to  the  hospital.  When  he  was 
well  reoof  ered,  he  went  with  his  arm  in 
:  to  Utrecht:  but  not  being  able  to  do 
Mr  some  time  in  his  regiment,  he  made 
iresses  to  a  maiden  lady,  well  bom  and 
HU  near  twice  as  oM  as  himself,  he  being 
boni  CO ;  but  her  fortune  being  consider- 
»r  one  in  so  low  a  post,  he  married  her  in 
167r,  and  lired  with  her  11  years.  In 
when  kiMT  James  2  demanded  the  six 
ents  he  had  lent  the  Dntch,  and  they.re- 
»  return  them,  about  sixty  officers  quitted 
NT? ice ;  amongst  whom  was  captain  Ber- 

wbo  thinking  it  his  duty  to  obey  the 
ands  of  his  prince,  came  to  £ng1and[.  I  n 
when  the  prince  of  Oran|^e  landed  in 
nd,  and  succeeding  in  his  enterprize, 
James  3,  after  many  difficulties  and 
ti  riaqued  by  him,  got  privately  away 
2ochasierovertato France;  when  major- 
il  Kirk  was  sent  by  the  prince  of  Orange 
the  regiments  then  in  England,  with  an 
■tioB  \o  be  signed  by  all  the  officers,  the 
III  of  which  were  tD  bind  them  under  their 
to  stand  by  and  defend  the  prince  against 
sons  whatsoever^  and  all  the  officers  that 
d  to  ngn  it,  were  orilere<l  to  quit  their 
ands.  Captain  Bernardi  refused  to  sign 
iBWciation,  and  quitted  his  employ,  went 
nden,  and  solicited  for  the  prmcc  of 
It's  pass  for  himself  and  family,  being  six 
nber,  to  {i;o  out  of  the  kingdom,  the  only 
'  he  desired,  which  was  granted  biin  ; 
persons  that  went  witliout  a  pass  being  in 
r  of  their  lives,  or  being  plundered  by  the 

Captain  Bernardi  got  safe  to  Calain,  and 
inany  English  gentlemen  arrived  there 
:  him,  some  of  whom  were  liis  acquaint- 
and  in  great  distress  for  want  of  money 
ir  their  charges  to  Paris,  having  bveu 
ed  of  all  tbcv  bad  by  the  tumults  in  Eng- 

Bemvdi  naving  gut  to  the  value  of 
100/.  in  cloaths,  linen,  tent  and  field  cqui- 
pawned  them  all  to  a  broker  for  less  thau 
brir  value,  to  assist  some  of  those  ^j^entle- 

wboraby  he  lost  his  goods,  not  havuig  an 
tuily  cfredeeroing  them  in  time.  Cap- 
Scmardi  arriving  at  St,  Germaius,  king 
I  t  vM  him,  that  he  was  just  croing  to 
d«  awl  had  tlien  about  12,300  of  his  sub- 
trrived  at  Ht.  Germain's.  Tlie  French 
;n«led  orders  for  them  to  march  to  Brest, 
( tha  Itto  carl  of  Do? cr  was  ordarcd  to 


meet  and  receive  them  :  In  the  mean  time  king* 
James  went  to  Brest,  where  the  French  king 
had  ordered  a  large  fleet,  of  about  thirtv-five 
nil,  to  receive  him  and  his  soldiers,  and  land 
them  in  Ireland  ;  and  in  getting  thither  was  the.  . 
fhmoos  battle  with  admind  Hmert  in  Bantry- 
Bay .  But  king  James's  affiurs  growing  bad  in 
Ireland,  he  sent  major  Bernardi  (made  a  major 
in  Ireland^  to  Scotland,  to  accompany  the  earf 
of  Seefortn,  then  ifome  to  raise  men  for  king 
James :  but  receiving  Uie  news  of  king  James% 
being  defeated  at  the  battle  of  the  Boyne,  the 
earl  of  Seafbrth  dismissed  his  forces,  and  sent 
them  to  their  places  of  abode,  without  consult- 
ing his.  uncle,  his  officers,  &c.  who  were 
greatJy  exasperated:  whereiipon  major  Ber- 
nardi desired  to  go  to  England,  which  major^ 
C^neral  Bouchan  approveo  of,  and  sent  for  the 
mini  of  GUincoe*  to  come  with  forty  of  hie 
vassals  to  receive  Bernardi  at  luvergan^,  and  to 
conduct  him  to  the  braes  of  Monteth,  which  wae 
performed  in  the  night-time,  for  fear  of  the  gar- 
risons that  lay  ui  the  way. 

Bernardi  proceeded  on  his  jonroey  from  the 
braes  of  Monteth,  under  the  conduct  of  a  guide, 
appointed  him  by  colonel  Graham,  and  arrivedt 
at  Edinburgh  in  the  month  of  November  1601* 
The  rulers  of  that  city  having  heard  that  some 
gentlemen  were  come  from  ue  highlands,  or^ 
dered  tlieir  gates  to  be  shut,  and  a  general, 
search  to  be  made  for  them.  Bernardi^s  land-* 
lord  getting  notice  of  it,  conducted  him  out  of 
town,  but  half  an  hour  before  that  order  wae 
pui  in  execution ;  otherwise  his  journey  at  that, 
time  had  terminated  in  tlic  Tolbooth,  or  some 
other  prison  in  Edinburgh  ;  but  escaping  that, 
and  other  dangers,  he  travelled  on  from  thence 
to  Loudon,  meeting  witli  no  more  difficulties  at 
that  time,  than  those  of  a  long  winter  journey. 
But  misfortunes  way  be  compared  with  evil 
habits,  it  being  no  easy  task  to  ^t  out  of  either, 
when  once  unhappily  fallen  into  the  road  of 
them.  And  this  |>roved  to  be  Bemardi^s  case :. 
for,  having  finished  his  aifairs  in  London,  by 
dij»j)08ing  of  some  effects  he  had  left  with  it 
friend  when  he  went  out  of  England,  and  by 
selling  his  Scotch  horses,  he  purposed  to  go 
over  into  Flanders ;  and  meeting  with  two  gen* 
tlenien  of  his  acf^uaintance  ready  to  go  out  of 
town,  in  order  to  make  tlie  same  voyage,  he 
went  with  them  to  Colchester,  where  they  were 
recommended  to  a  master  of  a  ship,  who  was  in 
a  short  timdKo  carry  over  a  lady  of  great  qua- 
lity to  Ostend ;  but  the  wind  happening  to  be 
fixed  in  the  east,  the  lady  ordered  her  trunks  to 
be  put  on  shiphnani,  and  then  went  to  a  gentle- 
man's house  about  Ave  miles  ofl',  charging  the. 
master  to  send  for  her  as  soon  as  the  wind  camo 


*  <*This  Uird  of  Glencoe  was  a  little  while 
afterwards,  with  his  lady  and  vassals,  barba- 
rously munlered.  See  a  4to  Pamphlet,  intituled, 
*  Mur<ler  will  out.*  The  English  |>arliament  voted 
this  <  a  barbarous  Massacre.' "  Former  Edit 
For  the  Proceedings  in  the  Parliament  of  Scot- 
land respecting  the  Masaacrc  of  GkucoOi  ae^ 
the  preaent  volume,  poi^ 


763J 


5  WILLIAM  III.  Proceeditigiagainst  John  Bemardi  and  xakerSf  pfil 


fair.  Bernard!  and  liis  two  friends  met  with 
two  other  ^tUlemen,  who  were  strang^ers  to 
ihero,  and  uso  unknown  in  the  town,  wbo  were 
come  thither  to  get  a  passage  over  in  the  same 
ship.  They  joined  company,  and  lodg^ed  all 
together  for  some  nifj^hts  at  Mr.  Cook's,  then 
postmaster  in  Colchester ;  but  having  notice  of 
«onie  busy  peo[i1e's  inquiiiitivencss  about  them, 
Ikrnardi  and  his  two  friends  went  to  a  gentle- 
man's house,  alMHit  a  mile  out  of  the  town,  and 
the  other  two  gentlemen  went  to  the  master  of 
ilie  ship's  house.  The  second  night  afler  Bcr- 
nardi  and  his  two  friends  went  into  tlie  country, 
intimation  was  given  to  them,  that  sir  Isaac 
Itebow,  a  justice  of  the  prace,  had  iKsueil  out 
Lis  warrant  to  apprehend  them,  and  bring  them 
before  him ;  and  tlie  wind  coming  fair  the 
same  night,  they  went  directly  to  the  master  of 
tlie  ship's  house,  in  order  to  go  on  board.  The 
master  of  tlic  ship  told  them,  that  he  had  sent 


judge,  to  appear  in  the  court  of  King's-Bench 
the  then  next  term.  Before  the  term  two  of 
the  five  went  off,  either  by  composition  or  bilk- 
ing their  bail ;  but  Bernanli  and  bis  two  friend* 
ap|>earcd,  in  hopes  and  expectatiiNi  of  being 
discharged  by  the  court :  but  the  Attorney  Ge- 
neral opposM  their  being  discharged,  nuva^ 
instructions  from  the  Secretary  of  8tate  so  ta 
do,  al lodging  that  they  were  guilty  of  tretsoa. 
The  court  ordered  them  into  custody  of  a  mo- 
sengcr,  where  they  remained  confined  nev 
seven  months.  Bemardi  having  for  many  yean 
been  well  known  to  my  lord  I&mney ,  who  vm 
the  other  princip^  Secretary  of  State,  writ  a 
letter  to  his  lordship :  and,  by  his  favour,  tbey 
all  three  were  admitted  to  bail  again  upon  the 
first  day  of  Michaelmas  term,  to  appear  oo  tbe 
last  day  of  the  same  term.  They  apiiearedae* 
cordingly ;  but  the  Attorney  General  still  went 
on  with  his  charge  against  tlicra,  and  affirmed 


a  messenger  for  the  lady  two  hours  bclbrc,  and    to  the  court,  that  the  treasonable  pajiera  found 
xix-.t<M.»A<i  ii,...  :»  »t^  i.^..l.n/^»o.  ..wi  <.»..♦  ^..<>  <%»' i  in  |],g  lady's  trunk,  together  with  such  otber 


expected  her  in  an  hour  more ;  and  sent  one  of 
liis  men  to  conduct  them  on  shin-board,  and 
•aifl  he  would  follow  them,  with  the  other  two 
gentlemen  at  his  house,  as  soon  as  the  lady 
came.  A  message  came  from  the  lady,  that 
she  could  not  possibly  come  before  the  next  i\:iy 
in  the  aflemoon.  Bernardi  and  his  two  friends 
continued  on  ship-board  to  avoid  the  justice's 
The  next  day  towards  the  evening, 


warrant 

came  a /company  of  trziin-bands,  with  five  hun- 
dred mob,  to  the  quay,  where  the  ship  lay  dry, 

at  low  water,  about  two  miles  from  the  town.  !  down,  and  to  attend  and  bring  them  back  agiio. 
This  captain  of  the  train-bands  commanded  his  |  The  day  before  the  assizes  began,  thev  went 
men  to  go  on  board,  and  to  bring  all  the  persons    down  with  thfir  counsel,  sir  Creswell  LeviDi, 


evidence  as  would  be  produced  in  Essex,  was 
sufficient  to  bring  them  to  their  trial ;  and 
therefore  he  inov^  tlie  court  to  bind  them  over 
to  Chelmsford  assizes,  and  they  were  botiod 
over  accordingly,  twelve  of  their  friends  giiio; 
500/.  security  c*ach  fur  tlieir  appearance ;  asd 
ill  order  to  tlieir  defence,  thev  applied  them- 
selves to  four  eminent  counsel  in  London,  aid 
gave  them  broviates  and  large  fees  to  pleid 
their  cause,  and  provided  coaches  to  carry  them 


they  found  in  tlie  sliip  to  liini.  These  unlors 
were  obeyed  ;  and  Btn'nnrdi,  and  the  two  fjcn- 
tlemen  with  him,  were  seized  nud  carrie.t  di- 
rectly to  Colcliestrr  gaol,  w  here  the  otiier  two 
centlemen  and  the  nraslcr  of  the  sliip  had  be- 
fore been  made  prisoners.  The  lady  had  set 
out  ill  order  to  go  on  board,  but  being  told  what 
had  hnpiiened,  she  returned  back,  and  ne%er 
appeared  ;    u))on  uiiich  six  justices  assembled 


sir  Bartholomew  Shower,  counsellor  liolben, 
and  another  whose  name  the  author  halh  for- 
^(»t.  The  six  prosecuiing  jusiiecs  were  g<il 
thci-e  before  thcni,  with  their  suhpa»natd  wit- 
nesses, who  were  all  heard  by  the  grand  jury 
the  next  day,  upon  an  indictment  prefcrrra 
against  thcni  ;  but  for  want  of  suffieient  evi- 
dence to  find  the  hill,  the  prantl  jury  rejected 
it,  and  j^avcin  tlieir  verdict  I'lnonwms;  uhtre- 


to  break  o|)en  and  search  her  trunks,  exposing  I  upt)n  they  were  diseharired  in  court  by  procla- 
even  her  foul  linen  to  the  view  of  hundreds  of.  niation  ;  and  the  ^iix  justices  gallo|)eff  home  to 
people  ;  but  their  worships  could  not  discover  :  ('(dehester  in  all  haste,  as  soon  as  they  heard 
who  she  was,  neither  had  Bernanli  or  any  of!  that  the  grand  jury  had  thrown  out  the  bill  of 
tlie  other  four  gentlemen  the  least  know  ledge  I  indietiiKrnt.       i'his    prosecution,  umler   close 


of  her,  but  by  name  and  title,  which  was  the 
countess  of  Errol  ;  having  ne^er  seen  her. 
When  the  six  wise  men  had  finished  their 
search  of  the  lady's  goods,  they  strictly  exa- 
mined and  searchetl  their  five  prisoners  sepa- 
rately, and  charged  them  with  having  treason- 
able papers  and  pamphlets,  thoui^li  no  such 
were  found  about  them,  neither  had  tluy  any  ; 
but  some  such  things  were  found  amongst  the 
lady's  goods.  These  jnstiees  sent  an  acconnt 
of  their  proceedings  to  the  earl  of  Nottingham, 
then  secretary  of  sUite,  anil  thereby  repre- 
sented major  iSernardi  and  the  other  f<mr  gen- 
tlemen to  be  nreompliees  with  the  said  lady, 
and  committed  them  to  the  county  gaol  at 
Chelmsford  %  from  hence  they  writ  to  their 
friends,  nnd  got  themselves  removed  by  Ha- 
lirss  Corpus  to  London,  and  gave  bail  before  a 


eonlincinent  sometimes,  and  under  IkiII  at  other 
times,  continued  al»out  a  year  and  a  half,  wliicb 
nut  major  Bernardi  to  the  expence  of  some 
hundreds  of  pounds,  and  his  two  fellow  suficrent 
to  as  much. 

Major  Bernardi,  soon  after  he  wasdischarj^, 
went  over  to  Holland  with  the  earl  of  Notting- 
ham's pass,  and  returned  again  within  the  tiiue 
limited  hy  the  pass,  and  appeared  at  the  secre- 
tary's olfice  as  he  was  enjoined,  that  my  lord 
mit^ht  know  he  had  not  exeeeiled  the  lime  pre- 
scribed him  to  return  in  ;  and  by  so  doing  be 
obtained  some  favoui's  from  his  lordship  after- 
wards. Not  long  after  his  return  from  Flan- 
ders, he  jndgetl  it  to  suit  best  with  his  circuiB* 
stances  at  that  time  to  retire  into  the  countrTv 
to  be  out  of  harm's  way,  and  less  liable  U» 
company  and  cxpence  \  tor  his  five  buiHM 


5] 


QH  Account  of  the  Assassinaihn  Plot. 


A.D.  1696. 


[768 


!es  jonroey  from  tbe  hitrhlands  of  Scotland 
London,  with  the  undeserved  imprisonment 
1  prosecution  which  he  suffered  by  the  offi- 
us  justices,  had  very  much  impaired  hissub- 
Dce.  And  althou}(h  nothinsr  less  than  his 
was  aimed  at  by  tlie  Essex  justices,  yet  his 
feriufrs  then  were  but  flea-  bites,  in  compari- 
I  to  the  unprecedented  hardships  laid  upon 
D  soon  after.  He  returned  from  a  pleasant 
intrv-hnuse  near  Brentford,  where  he  had 
ided  alNUit  a  year  and  a  half,  and  where  he 
iployed  much  of  his  time,  and  some  expcoce, 
impro^ing^  and  beautifying  the  gardens 
*re ;  but  the  premises  ueing  made  over  to 
ctor  Ward,  prebend  of  Salisbury,  in  part  of 
» laily's  |K>rtion,  tiernardi  was  ublige<l  to  cjuit 
e  Imuse  on  that  account,  and  came  to  London 
Christmas  1695 :  a  fatal  remove  from  a  ouiet 
untry- abode  to  a  sea  of  troubles,  which  in 
"eat  measure  is  to  be  imputcti  to  his  misfor- 
ne  iu  meeting  with  one  captain  Ilookwood  by 
xidcnt  at  a  Uvcrn !  Captain  iUokwoofI  was 
ten  huely  come  from  France,  and  had  been  an 
aiaaiDtance  of  Bemardi*s  of  about  seven  years 
iiading,  though  they  had  not  seen  each  other 
ir  some  years  then  last  past.  Kookwood 
nokly  told  Bernanli,  that  he  was  quite  tired 
lit  in  foreign  service,  that  his  brother  had  a 
jDoJ  estate,  and  interest  enough  to  obtain  leave- 
whim  to  come  home ;  and  that  he  was  come 
»er  tothat  end,  but  kept  himself  a  little  private, 
intil  hii  brother  bad  gained  him  a  licence  to 
ip|iear ;  it  being  theu  made  criminal  by  a  law, 
lor  luy  subject  to  come  from  FranceVithout 
leave  from  the  government.  Witliin  two 
uiODtbs  or  thereabouts  after  Bcmardi's  arrival 
A  town,  a  horrid  conspiracy  to  assassinate  and 
■ounier  hit  late  majesty  king  William  was 
■Inoovered,  and  many  proclamations  came 
Ml  offering  1,000/.  reward  for  securing  each 
Ms  inserlCM  in  those  proclamations.  Several 
Hre  taken  up  on  the  nrst,  and  more  were  ap* 
Ijrebeuded  daily  upon  the  repeated  proclama- 
iiflii.  Captain  R(»okwood  came  to  Bemardi 
A  i  Satunlay,  soon  after  the  horrid  plot  broke 
Ml,  and  his  countenance  and  behaviour  seem- 
ed to  discover  him  to  be  under  some  disturb- 
•Ke  of  mind.  Bemardi  thereupon  asked  him, 
if  any  evil  liad  happened  to  him  ?  To  which 
be  tn^wered,  No ;  but  said,  that  if  any  body 
tbould  be  so  malicious  as  to  give  information 
»f  his  being  come  over  at  that  time,  he  should 
certainly  be  taken  up.  But  it  seems  bis  name 
*tt  in  m  iiroclamation,  which  came  out  upon 
tint  very  day,  to  seize  him  as  one  of  th(»se  who 
"We  concerned  in  the  said  assassination -plot, 
^beogh  Bemardi  had  not  then  heard  any  thing 
of  tae  matter,  and  Uookwood  concealed  it  from 
wttf  intending,  as  appeared  by  his  behaviour 
vicrwards,  lo  spend  that  evening  with  Ber- 
■evdii  hut  Bemardi  told  him,  that  he  was 
*f^  a  promise  and  engagement  to  sup  that 
yy  at  a  Uvera  on  Tower-hill.  Captain 
■••kwood  thereupon  earnestly  replied,  that  if 
"e  meHing  there  was  not  uiion  private  busi- 
■>»,  be  desired  he  might  be  one  of  the  com- 
f^l  i  Willi  wbiofa  Bcnacdi  readily  complied, 


and  he  and  Rookwood,  with  other  company, 
supped  there  accordingly  ;  and  making  it  too 
late  to  go  home  to  their  lodgings,  Rookwood 
and  Bernanli  stayed  all  night  at  the  tavern,  und 
went  to  bed  together  there.  The  next  morning, 
being  tSunday,  some  constables  and  other  armed 
men  came  mto  tiie  house,  and  entered  the 
room  where  Bemardi  and  Rookwood  were  in 
bed,  and  producing  their  warrant  to  search  for 
and  seize  them,  they  demanded  submission 
thereto.  Bemardi  and  Rookwofiil  readily 
yielded  to  their  authority,  not  makin<|^  the  least 
resistance,  and  got  up  and  dressed  themselves 
as  soou  as  possibly  they  could  ;  but  the  consta- 
bles' orders  being  to  c^rry  them,  and  nil  the 
people  belonging  to  the  tavern  before  the  re- 
corder of  Loudon,  who  was  then  gone  to 
church,  they  were  obliged  to  remain  in  tlie  ta- 
vern until  noon,  guarded  by  twenty  men.  This 
delay  gave  Bernardi  time  and  opportunity  to 
make  some  imjuiry  into  the  cause  of  all  that 
hurly-burly.  The* senior  constable  told  him, 
that  a  neighbour's  senaut-maid  came  to  the 
tavern  the  night  before,  and  seeing  some  gen- 
tlemen at  suiiper,  she  asked  a  drawer  who  they 
were  ?  Anil  he  making  her  a  surly  answer, 
she  went  with  her  brother,  a  joumeyman  shoe- 
maker, directly  to  the  recorder,  and  gave  inlbr- 
mution,  tliatsome  evil-minded  men  were  at  the 
tavern,  and  that  the  people  of  the  hoiuie  refused 
to  discover  who  they  were ;  and  therefore  it 
was  reasonable  to  believe,  that  they  might  be 
such  persons  as  the  government  then  sought 
for,  by  divo-s  proclamations.  It  was  then  near 
tlie  latter  end  of  February,  and  the  bcforc- 
menfioncd  horrid  conspiracy  was  discovered 
about  the  middle  of  the  same  month.  The 
constables  having  notice  of  the  recorder's  beinjjr 
at  home,  they  carried  Bemardi  and  Rookwood^ 
with  all  the  tavern  family,  before  him,  who  ex- 
amined tliem  very  strictly  and  separately*,  .and 
told  them  that  he  could  do  no  less  than  commit 
them  at  that  disturbed  time,  though  he  found 
no  other  cause  than  suspicion  for  so  doing ; 
and  therefore,  as  a  favour,  would  send  them  to 
tbe  two  Compters,  and  not  to  Newgate,  that 
they  might  with  less  diflictdty  and  expenci:  ob- 
tain tlieir  liberty,  when  the  storm  %i  as  blown 
over.  He  ordered  the  tavem  fiimily  to  give 
bail  the  next  day.  Bernardi  and  ftookwiNNl 
remained  quiet  under  their  respective  and  dif- 
ferent conhnements  near  a  month,  without  any 
communication  with  each  other,  either  by  letter 
or  mesmge,  in  all  that  time.  Captain  Char- 
nock,  King,  and  Keys,  were  taken  up  on  the 
first  proclamation,  which  came  forth  on  or 
about  the  3Sfl  day  of  Febmary ;  and  were  tried 
and  convicted  of  high -treason  March  11,  1695* 
6,  and  were  all  three  executed  on  the  l&th. 

Upon  the  93d  of  March  came  forth  another 
proclamation,  in  which  Bernanli*s  name  was 
inserted,  and  a  reward  of  1,000/.  was  thereby 
oflf?rcd  to  apprehend  him.  Captain  Rookwood 
re|>08ing  an  entire  confidence  in  the  friendsbin 
of  one  Mr.  George  Harris,  intrusted  him  with 
the  knowledge  of  his  and  Bcmardi*s  beiuff 
prisoner^  in  the  compters,  as  before  ce\iVi£, 


I 


I 


76T] 

Ami  litre  U  w  to  be  otnerred,  that  alUioog^b 
c»ptftiii  Rookwood  was  m  a  pn>clAination, 
vaicli  came  forth  but  the  day  befoi-e  he  attil 
BeroAfiii  kvenl  together  to  theiivern  onTuwirr- 
hillf  Ma4  of  which,  wtthout  doubt,  he  had  lieeo 
»|ifHrtsefJ  ai  Uie  time  of  his  ft  list  coming^  tu  Bet- 
iMU'Ui,  who  then  knew  nothioir  of  tbe  mailer  ; 
grel  c44itiAm  Hook  wood  thoag^bt  lit  to  conceal 
the  same  fmm  the  knowledge  of  BeroiLrdifts 
loB^  as  he  cotild,  and  jud^ii|^  it  otindiidre  to 
Itta  aafety,  he  chanq^ed  bis  Dame^  aud  pii>Taikd 
011  Ber nanb,  by  earliest  intrealy,  to  do  tbe  hke ; 
Imt  wilbout  aeqiiaintiiig  hioi  with  tlie  proctama* 
tjoo,  as  a  reason  for  bis  so  duing^.  CaptaiR 
HookHOod  ^vaa  often  vihiied  iu  the  compter  by 
hta  minion  (be  said  Mr.  llams  to  ^hom  he 
liatl  e«mimunicatct1  iltese  particulars  :  And  as 
aooa  a>t  U)e  proclatnaiinn  of  tbe  23d  of  March 
«amo  fortb,  wbicb  was  the  iast  that  waji  pub- 
lished to  apprebeofi  conspirators,  and  was  pnb- 
llshed  at  some  weeks  distance  from  tlie  rest, 
Harris  went  and  discovered  captain  Rook  wood 
and  Btmanli  for  the  reward,  and  ibey  wei"e 
t«keti  out  of  the  coctiptera  by  a  detaehmetu  of 
tbe  guards,  in  the  Dig'bliif  tbe  S4th  of  the  name 
iBOuth  of  March,  and  were  carried  to  (he  'VWi- 
yttitd  ppard,  and  eiBmtned  by  the  lords  of  tlie 
council  tbe  nejctday,  ami  commiUed  Mui*cli  35, 
1696,  cUise  prisoners  tu  Newgale,  bmded  with 
Jisaf  y  imus,  and  put  into  separate,  dismal,  dark 
and  altakiug  ipartments,  not  being  atlovred  to 
affteak  to  each  other  from  the  time  of  their  lietn^ 
lakci»outof  the  two  compters.  BemanU  did 
isever  see  Rook  wood  afterwards,  who  was  soon 
after  trt^  and  condemnet),  and  was  executed 
at  Tyb«rti  with  Cranboi-ue  dud  Lowtck^  on  ilie 
3dth  day  of  ApKl  followiug. 

It  may  be  here  demanded,  how  came  Ber- 
oardi  not  to  uoderi^  tbe  like  hte  with  Rook- 
ifvod  ?  To  which  he  answers,  that  it  was  not 
by  favour,  bat  for  »vant  of  evidence  to  haoj^ 
Hemardi ;  though  k>  have  takeu  awuy  liis  lite 
at  that  tiicewiUioul  |>roaf,  had  beau  tender 
mercy,  compared  to  the  ornelty  of  Iha  aatere 
and  \(m^  coufinemeot  he  has  since  endarcd. 
None  of  tbe  dtsceverers  of  tl»e  said  horrid  plot, 
who  were  ubonl  ten  or  twelfc  in  number,  ever 
act  much  ah  mentioned  Bemardi^s  uatne,  iuiless 
Harris  migrht  make  some  mention  of  him,  w  bo 
bad  no  other  ktmw ledge  of  him,  but  by  seeing 
him  atnl  his  fritnid  iiookwo<>d  sometimes  to§fe- 
ther ;  in  .which  ease  he  mig-ht  speak  titith  with 
respect  to  Bernanli,  but  no  fnrthcr.  Harris's 
riew  wss  th«^  3,000^.  reward,  which  he  receited, 
aad  which  must  no  doubt  with  bim  have  been  a 
consideration  hijj^bU'  preferabte  to  captain  Rook* 
irood*s  friendship,  tbousrb  the  captam  had  been 
alrtie  friend  to  Harris  mr  many  years,  and  ac^ 
corditagtoaU  acootmls,  as  kind*  to  [urn  as  a 
mMl  father  could  aoaiibly  be  to  a  betored  son. 
Caf>tain  Hnokwood  was  prored,  by  one  of  tbe 
chief  discoverers  of  tlie  conspiracy^  to  tiave 
been  one  night  in  their  assembly  ami  enoncils, 
and  then  unhappily  to  bare  giren  his  co»s«fnt 
to  tkedeaigned  blooidy  act  apiinst  kiti^r  WiDinm, 
which  CQSi  him  bis  lile.  Had  or  could  Der- 
aardi  at  tbal  liitte  iiava  keen  Af9/s%n  into  then- 


ruf-il 


8  WILLIAM  III.  ProetiMngi  mganH  John  BemartB  and  ptien,  pB 


file  and  pern  iciooa  coiWKfla,  iHtb  f wipict  te  ihit  i 
horrid  and  m^H  Mktmmmwklm  dai^»^  hia 
and  loiifr  aefTice  naal  iMriraa^ij  ban 
dered  bim  a  welcetne  g'oest  animi|^  tike 
Bpirators,  and  conseciuentty  be  uosl  have  ikii 
captain  Hcmkwotxl's  fate,  wiilioul  aaj 
means  of  eficapiag  ii,  Thoat  wlla 
death  upon  the  sccvtmt  of 
conspiracy,  were  ei|rht  in  nu  tuber,  _ 
ea|ilain  ^'harnock,  Kiii^  aad  Keyti 
Lowick,  captain  Rookwood.  and  I'raji 
and  sir  William  Perkins  and  sir  John 
^r  John  Fen  wick  satfiered  faratHytber 
oftreason,  as  shall  bereiaaAerba  psHif-ubrlyl 
related  and  expbined.  Tbe  ame  belinrt- 
tioned  beiii|r executed,  there  still  rematnc^l 
dose  prisooeri  in  Newi^ate  upon  iltat 
but  cTidenGe  kein^  warned  to  conirMA 
oftbeoi,  the  Habeas  Cor  pits  net  woa 
tor  nine  months,  to  prevetit  tlkcfii  frmn  g^\ 
their  lilieity  by  law  ;  snd  this  was  dime 
view  of  tin  Jiikg  out  evidence  a^ainsi  thetii 
1  hat  lime.  The  suspension  S[  the  acl 
scveml  of  Ihettaatered  their  prayer  at 
neiEt  sessions  and  torm,  to  he  iried  ami 
to  bait.  The  first  wImi  entered  i»uch  thevr 
were  tliree  gisnt|eiin;n  h  ho  were  bmtbera, 
related  to  the  earl  of  Balli,  capt^o  8tnw, 
tain  Wslbank,  and  Mr.  Blsdcbitm,  ai»d 
others,  and  they  vvfre  all  Uiiled  oot  andij 
chargtfd,  tbou^b  tbt'V  *vere  taken  by  iiri. 
lion,  apd  a  thousand  pouudsf  rewara  wj 
tor  eacit  of  the  first  five  peraoot*  The 
iu^  ndmber  in  coniaeaeat  tbeni  Wf 
Bifmurdi,  csplnin  f'ounler,  Mr.  C 
Meldrum,  and  Chambers ;  and  thry 
locked  u|>  close  in  separate  dissnal  parta 
^ol,  and  most  of  them  unknown  toaach 
Gouki  nether  comimaiioate  or  ik>  soy  thbf 
thamaelYes  in  ontrr  to  their  Itbi^rt  v ,'  nor  eeirtf 
know  wlial  had  been  itone  tor  others ;  But  Ibf 
good  success  of  those  before  mentioned  oumI 
their  IfWnds  abroad  oCcioosly  to  rni«<r  pnryfii 
tor  tWm  at  the  second  sessMoa  atW  tbe  HiMa 
Cor(»as  act  came  in  three;  wher«?\i|»oa  iktf 
were  all  of  them  taken  out  of  their  cCoae  bolei^ 
and  were  carried  to  IlieOtd-Bailry,  in  oi 
be  tried  or  bailed.  Mr.  Conatauifoe 
(who  was  uAerwards  lord  chancelkvr  «kf  li 
was  appdntcd  their  oounsd  to  mova  fbr  iMl^ 
atid  asked  Bemardif  if  sny  apphcation  bad  bsia 
made  to  the  solicitoi^  of  the  Ireaauqp  f  B«r* 
nardi  answered,  ao ;  allfH%fa|f,  that  as  fbrftf 
was  no  hiw  to  keep  tkem  any  lamgti  eonlinMl| 
Ihctr  friends  I  udgred  it  ncedlaas  to  apply  to  sat 
body  ^  favour ;  little  dreamiRef  thai  i 
parbamcnt  would  be  aktaMMOtn  aai 
continne  their  furthsr  aaafluauni  tit|  a 
never  known  or  heard  of  bafttre.  At 
they  were  produced  in  eoart  tonrder  ti» 


or  bailed,  the  solicitor  of  the  treasarjr  stnod^l 
and  whispere<l  the  jadf  es  npau  the  beoob  t  an  I 
tliou^Hi  that  sessioms  beiur  a  acMiiMia  of  mI*  | 
delivery,  conld  act  lawfutly  ba  deter— ^' 
without  etlhcf^  ^'ytttfT  ^^  badtng^  tbeae 
prisoners,  the  jodges  being;  obliged  hf 
deliver  the  gaol ;  yat  ujkiu  the  wi  ^ 


769] 


on  Acarnni  of  Hie  AstasmaHon  Plot. 


A.D.  169^. 


tioQ  of  tbe  solicitor  of  Uie  treasury,  the  judges 
•djouroed  the  court  fur  a  fortni^dt,  and  iHiiiie- 
OUtely  «frer  a  biJI  was  biQU^Iil  into  paHiarnear j 
and  an  act  pas^t'd  within  that  tiiDc  to  cuuHne 
them  for  a  twelvetnonthT  on  u  supposed  proha- 
biUty  ^ill  of  finding-  oat  &orac>  evidence  a^minst 
tfaem  ia  that  tirue.*  Hut  bow  came  it  tliat  the 
aKOkc  prudwrit  precantioa  for  the  tiafety  of  the 

tltCt  and  to  brings  vile  conspirators  to  condry^n 
iQishment,  i^-asDOt  made  use  of  against  tho5e 
at  prayed  their  trial  at  the  sessiotis  btibre, 
mud  thenHiy  obtained  their  discbarge,  and  some 

«vihorti  rtei'e  cotnmitled  upon  tbe  oath  of  one 
Hi«ss?  Jt  will  not  sure  be  difficult  to  solve 
s  i)ii«stion.  Mr.  Sohcitor  of  the  treasury 
nettber  spoke  idond  nor  sodly  ag^aioat  tliein  ; 
and  why  be  n^asso  good-nalured  may  be  easily 
undeif^ood,  havint]^  no  doubt,  been  properly 
Jkt  J  v\iih  by  thera  j  irhtch  was  a  very  unfbrlti- 
41  minion  in  tbe  comloft  of  Bernard i  and 
I  fetlow  sufferers,  in  not  properly  bespeaking^ 
Solicitor's  favour  for  them.  Anil  here  a 
'  singular  and  deplorable  passag^e  happened^ 
itingf  to  Mr,  Blackburn,  who  beiug^  bailed 
aod  discharged,  with  those  who  had  first 
ered  their  prayers  to  be  tried,  was  taken  up 
an  %ipon  t!ie  same  account,  aud,  without 
My  fr<*«h  charge  or  tnfbn nation  a<^Kmst  biin, 
put  into  ihe  custody  of  a  messenger,  at  the  time 
wlien  tbe  House  of  Commons  were  passing  tbe 
hill  Ibr  coiitinutng  tbe  conUoement  of  the  fire 
Qtioued  state- prisoners;  and  tbe  bill 
led  up  to  the  House  of  Lords  for  their 
tnce  thereto,  Mr.  BUckburn  was  added 
iid  fatal  uumlicr  in  ih«  lords  house,  by 
FamendnienL  to  tbe  bill,  and  sent  again  to 
il<?,  Mr.  ChnoiFierSi  another  of  the  last- 
stiotied  state -prisoners,  who  bad  also  en> 
'  bis  prayer  at  tbe  term  with  tbe  first  to  be 

By  an  act  B  W,  3.  **  to  aitaim  such  of  the 
persouM  cDooerned  in  tbe  bte  bnrrid  conspiracy 
*^  '^~'   uuale  bis  majesty  *(»  royal  person  who  are 
I  jiurticc,  unkiis  Uiey  rendtr  themseUes 
cc,  and   tor  cnnlimiiay  st>v€r^l  <itbers 
ke^aidconspiratorK  in  custody  ;''  in  the  last 
'  of  which  are  these  words  :  *♦  And  wher&- 

>  per^ns  bei-eafter  nam^^Jviz. Coua- 

Jobu  Uenuirdi,  Robert  Cassels,  Itobert 
ijflrnm^  James  Chumbers^  ami  Rolierl  Black- 
^m,  bavL*  been  committed,  and  are  sidl  in  cus* 
lody  I  a  Ncw^tv,  for  the  said  conspiracy  and 
kti:   fie  it  enacted  by  tbe  authorUy  ^fore- 

ibat  the  said ^Counier,  Jolm   Ber* 

pih,  Robert  CasseU,  Robert  Meklrum,  James 

abers,  and  Kobcit  Btarkburn,  artd  such 

^whci  shall  hereafter  render  them- 

^pf  «bi«ll  be  apprehemled,  ami  ajjrsin.*it 

fe  shall  beevtdenise  upon  oath  ol' their 

NiciirQed  iu    tbe  ^^aiti  barbarous  anil 

ta^  of  assassinatiii^  tbe  persuu  of 

•  imgciity,  shali  be  detained  and  kepi 

ily,  withoitl  bait  or  mmnprize,  uiitilthc 

m  January   I69T,  iinh^jw  th<*Y  shall  br 

'tiled  by  ord^irof  t  .ued  by 

fnij«sly'«  must  i  ptivy- 

VOL,  XIII. 


tried  or  hailed,  was  brought  up  to  tlie  court  of 
KiDgf*8- bench  by  Habeas.  Corpus,  in  order  to  be 
haded ;  but  one  of  his  bail  rmiaingf  to  sweftt 
him^lf  worth  MH)/.,  Cliambers  was  rctnunded 
back  to  Newjj-aie,  where  he  remained  with  the 
restf  under  the  parliament's  confinement,  till 
released  by  death.  The  first  act  expirini^, 
second  (9  W.  5,  c.  4.)  was  soon  passed  to  cod 
tjoue  them  in  prison  another  year ;  unless,  a_ 
in  the  finmer  act,  they  should  scKiner  be  bailed! 
or  discharged  hy  order  of  council,  sif^^oed  by  siac 
privy- counseltors.  Aod  at  the  end  thereof,  all 
prospectof  finding  outany  evidence  Dj^inst  ibetn 
se<?minsr  ^o  be  entirely  vanished,  a  thiril  art  (lo 
and  11  W.  3.C.  13.)  was  passed,  con  I  tri""  •!  ri 
during  the  pleasure  of  his  late  mi  x 

William.     And  even  some  of  the  ui- ._  jf 

that  parliament  afterwards  told  Bernardi,  qihI] 
others  of  the  nunrther  so  miscraldy  cohliue(f,f 
that  the  very  iulcniion  of  that  act  was  pureljrl 
to  lay  them  under  dutiful  oMii;aLions  to  kin|pl 
William  for  their  liberty,  and  tliereby  also  at  | 
the  same  time  to  pny  bis  niaJMty  a  com  pit* 
ment ;  and  that  the  members  did  not  in  thft  j 
l«ast  doubt  of  his  mafesty^  clemency  to  tbem,  i 
but  that  in  a  little  time  be  would* set  tbendi 
free.       K.ini^'    William    was    afterwards    ac»  f 
c^>rdin""ly  applied  to  in  their  favour,  n<n  loir^  | 
before  hfs  death,  by  the  late  eail  of  Bnrling^tO!) ; 
and  hihi  majr  sty  was  graciously  pleojicil  to  nrn*  I 
inise  his  lord:>hip,  that  he  would  deliver  Inein  ] 
in  a  short  lime.     But  the  kin|j*s  illness  an^ 
death  following  soon  afterwards,  aod  before  i 
any  order  was  given  for  their  fljstbarg-e,  tbe  i 
f^ood  and  gracious  design  oC  his  majesty  for  * 
the  deliverance  of  these  unhappy  men  (if  be 
really  iotende*!  it)  was  most  uidortunately  frus- 
trated and  prevented.     The  act  fiir  tlten*  con* 
fineraenf,  by  tlife  demise  of  king  William,  be- 
ing determined,  (as  they  were  advised)  they 
entered  their  prayer  at  the  next  sessions  to  be 
tried  or  bailed,  but  were  opposeil  by  the  at- 
torney-gene  »*a1,  and  neither  was  granted.     Af- 
lerwanls  another  act  of  parliament  (1  Ann.  st. 
1.  0.  29,)  was  procured  to  be  passed,   confinin^f 
them  during  tbe  pleasure  of  queen  Anne.    Her 
majesty  was  graciously  pleased  to  release  cap* 
tain  Counter,  the  first  named  in  the  said  act« 
of  confinement.      Major   Bernard i  thereupon 
petitioned  the  queen  tin'  his  liberty,  and   pre- 
vailed upon  his  £frace  the  late  duke  of  Buck* 
ingham,  then  lord  president  of  the  council,  to 
deliver  his  petition  to  her  majesty  ;  which  was 
so   done  at  tlie  intercession  of  ber  grace  tho 
duchess  id'  Buckiugbani  bis  consort,  and  ber 
lady  mother  the  late  countess  of  Dorchester, 
both  of  them  being  so  very  good  as  strenuottsly 
to  move  bis  grace  to  undtitake  it,  uiiging  that 
such  acts  of  compassion  and  charity  were  ge- 
nerous and  excellent  in  persons  of  quality,  and 
w  ell  becoming  a  good  ami  gj-cat  mim  in  hrt;h 
slfttion.      The  queen  was  grucionsly  |»leased, 
upon  tbe  duLe's  motion,  lo  oonsent  to   Ber* 
nai^i's  liberty  ;  but  his  ^^ice  afterwards  cait* 
tioiislj^  laying  the   j)et]tiou  liefoi-e  the  privy 
ceitncil,  it  wan  by  them  referred  to  sir  Ed- 
ward Ntrrth^y;,  tliftllietiftUonTey-genenil.  wbicK 
3D 


TH]  8  WILLIAM  IIL    Proceedings  against  John  Bernardi  and  others^  [778 


might  give  liim  an  opportunity  to  obstruct  the 
•queen's  intended  cicmeDcy,  for  politic  or  other 
reasons.  U|H)n  this  reference,  it  took  up  some 
time  and  expence  to  attend  and  solicit  the  dis- 
patch of  Mr.  Attorney's  report,  which,  when 
made,  nevertheless  appeared  to  be  in  Ber- 
nardi's  favour.  The  lord  president  called  (or 
the  report,  in  un!er  to  have  the  sentiments  of 
all  the  lords  in  council,  how  and  in  what 
muuner  Bernardi  should  be  delivered  and  dis- 
chargk^ :  but  the  late  earl  of  Oxford,  then 
lord  treasurer,  at  the  same  time  t(M>k  the  op- 
portunity to  move  that  Mr.  Blackburn  mignt 
have  his  liberty  as  well  us  livrnanli ;  and 
thereupon  his  grace  the  president,  and  his 
lonlship  the  treasurer,  differed  in  council  about 
the  respective  discharges  of  Bernardi  and 
Blackburn,  whorcby  both  their  pretensions  to 
their  Jibtrty,  though  so  near  succeeding  (to 
all  appearJiice)  dro[>peil,  and  never  could  be 
revived  agtiiu  t  j  the  ijueen's  death.  How  far 
those  tuo  great  stalesmeu  were  sincere  in 
iittempting  the  liberty  of  Bernardi  and  Black- 
burn, or  either  of  them,  or  played  booty,  God 
alone  knows:  the  wiiulings,  turnings,  and  la- 
byrinths of  poUliciaiis  not  being  easily  traced 
and  found  out  by  a  well-meaning,  honest  man. 
The  earl  of  OxPoiil  afterwards  was  often  ap- 
plied to  in  their  behalf,  and,  sometimes  by  per- 
sons of  greater  honour  and  quality  than  him- 
self;  and  his  lordship  made  more  promises 
than  he  had  buttons  unon  his  coat,  waistcoat, 
and  cloak,  an<l  some  of  them  upon  his  honour, 
thatthese  prisoners  should  soon  beset  at  liberty, 
if  they  would  byt  bave  a  little  more  pulicnre  ; 
but  all  his  loiil.sh!i»'s  promises  were  by  him 
either  fon^ot,  or,  lljroiij;U  his  most  refined  po- 
licy, neglected  to  be  j.erlonned. 

By  the  dcinisr  of  I  he  queen  they  hud  again 
liberty,  by  viituf  of  the  Habeas  Corpus 
act,  to  pray  i'or  tliiir  trial  or  to  be  bailed  ; 
and  in  ortlor  thereunto  they  entered  their 
prayer  acc»inli:i,ny,  ul  the  ilr^t  Old  Bailey 
scssiMus,  and  \U'rc  by  that  court  referred. to 
i\Iiehaehnn.j  Wr\\\  {\}\\i\\\\\\<^.  They  retain- 
4id  thrie  or  loui*  euiiiieiit  coiuisel  at  law,  and 
feeil  tli(  Ul  to  uw.M-  nint  plead  fur  them.  Seven 
or  eight  molions  v.  i  re  made  tluit  term,  at  dif- 
ferent tinie.N,  in  th.ir  luliuli',  and  several  rules 
of  court  were  olitaiue«l  at  y:reat  expence,  l)e- 
fore  they  could  li:  ing  the  then  attoniey-general, 
sir  Edward  Nortiiey,  to  appear  and  di'lend  their 
motions.  At  last  tlie  then  lord  chief  justice 
Parker  told  serjeiiiit  >\  ebb,  (one  of  the'  coun- 
sel for  the  prisoners)  that  the  court  consented 
It)  their  being  brought  to  the  bar  by  Habeas 
Corpus  on  the  Moiiilay  following,  l»eing  the 
last  day  of  the  term,  in  order  to  admit  lljeui  to 
bail,  bidding  the  Serjeant  in  the  mean  time  to 
direct  his  clients  to  give  in  the  names  of  such 
substantial  men  as  they  intended  to  bring  into 
court  to  bail  them.  This  glimmering  favour 
proved  oiify  as  a  little  enliv^hteuing  before  death, 
as  Mill  appear  by  the  setpiei.  The  prisonei's 
were  aeeo:  dinivly  brought  up  by  their  ki>epers 
from  Newgale  lo  tbe  court  of  Kujg's-lwnch, 
the  last  day  of  the  term,  when  the  chief  jus- 


tice before -named,  having  notice  of  their  be- 
ing there,  was  pleased  to  ask  serJeaDt  Webb, 
their  counsel,  if  they  had  bail  ready  in  court? 
And  being  answered  in   the  affirmatife,  bit 
lordship  was  pleased  to  reply,  that  wonders  wert 
to  be  done  presently ;  wonders  indeed,  and  sucb 
as  were  never  heard  of  before !    The  prisonert 
were  called  and  brought  into  court,  and  there- 
upon the  same  gentleman  made  an  liarangue 
against  tliem  of  above  an  hour  long :    and  al- 
though towards  the  end  of  his  very  bitter  and 
invective  speech  againstthose  helpless  wretches, 
who  were  obliged  to  receive  all  his  tire  and 
bulls,  he  was  so  ingenuous  as  to  declare,  that 
he  had  never  heardof  any  evidcuoe cliaigii^ 
them  with  the  crime  they  were  committed  fiv; 
yet  he  was  pleased  also  to  declare,  that  he  was 
very  well  satisfied  of  their  guilt,  by  the  pnh 
ceeding  of  the  first  parliament  against  theu, 
and  wouhl  therefore  remand  them  hack  to  New- 
gate, which  accordingly  he  did.  At  the  meetiar 
of  the  next  parliament  matters  were  so  ordeifd, 
that  another  act  (1  Geo.  1,  st  2,  c.  7,)  waspn- 
pare«l  and  procured  to  pass  both  houses  very  a- 
pediliously,  to  continue  them  in  prison  duiiugbii 
late  majesty  king  George's  pleasure.    If  it  vM 
intended  stiU  to  debar  these  unhappy  men  fron 
the  benefit  of  the  law,  it  would  have  been  cbari^ 
to  have  told  them  so,  when  they  entered  tbor 
prayer  to  take  their  trial  or  be  bailed  at  Ike 
demise  of  queen  Anne,  and  not  to  have  drilled 
them  on  with  hopes  of  relief  all  that  long  tern, 
when  none  was  intended  them ;  impovsrifhiBp 
them  at  the  same  time  by  great  expence  m 
counsel's  fees,  and  otherwise,  iu  attempting  it, 
to  the  reducing  and  bringing  them  into  a  starr- 
ing condition  iu  gaol.     Several  petitions  wert 
aften^ards  delivered  to  his  iatc  majesi)-  kin; 
George  in  the   name    and    behalf  of  tbcse 
wretches,  imploring  his  sovereign  compassion, 
and  setting  forth,  as  an  instance  of  his  grtrat 
merc3%  upon  another  occasion,  his  pardoning 
many  condemned  for  actual  treason  a^ut 
his  majesty's  jiersen  ;  whereas  these  hail  been 
long  miserably  confine<l  as  prisoners  of  state, 
purely  upon  bare  suspicion  only  of  being  con- 
cerned iu  a  conspiracy  against  a  deceased  mo- 
narch, of  which  tlie  least  proof  could  never  be 
made  out  against  them  ;    yet  their  petitions 
were. not  minded.    The  court  of  England  balk 
the  least  regard  to  |»etitions  of  any  court  ii 
Europe,  and  so  it  hath  been  for  many  return 
past ;  which  neglect  is  chiefly  to  be  imputed  ta 
the  prime  ministers  and  other  great  men  :  fail 
majesty  having  a  petition  put  into  his  hand,  gis 
nerally  gives  it  to  one  of  the  lords  near  bim, 
where  it  is  too  often  thrown  aside,  and  never 
heard  of  more.     In  most  other  courts  partiOH 
lar  days  are  appointed  to  read  petitioiu»,  ia- 
serting  in  the  margin  of  each  petition,  to  tht 
efl'eet  following,  \i/..  Consented  to,  or  not  «•• 
senteil  to  ;  ami  an  otKce  is.  settled  wliercia  H 
lodge  petitions,  m  here  the  deliverers  take  tbea 
out,  and  by  that  means  all  petitioners  laiil 
know  how  iar  they  are,  or  are  not,  to  prefti 
upon  such  their  submissive  aud 
application. 


CH  Account  of  the  Assassination  Plot. 

demise  of  his  late  majesty  king 
i  first,  which  happened  at  Hanover, 
t  the  11th  day  of  June,  1727,  Ber- 
his  two  fellow -sufferers,  being  all 
rs  of  the  said  miserable  state-monu- 

again  liberty^  by  law  to  pray  for  a 
le  admitted  to  bail ;  whereu|)Oo  Ber- 
he  IGth  day  of  June,  1727,  moved 
of  King^s- bench  by  his  counsel  for 
Corpus  to  brinff  him  up,  in  order  to 
Jailed,  or  discharged,  acoordinf]^  to 
1  counsel  at  the  same  time  apprinng' 
that  Bernardi  had,  so  long  ago  as  the 
f  March,  1696,  been  committed  to 
y  the  late  duke  of  Shrewsbury,  then 
of  state,  on  suspicion  of  being  con- 
.  horrid  conspiracy  to  assassinate  his 
y  king  William  3,  but  without  any 
e  not  being  so  much  as  the  oath  of 
witness  made  against  him,  nor  was 
1  in  his  commitment  that  he  was 
)on  oath  ;  and  no  proof  at  any  time 
ever  appearing  against  him,  to  in- 
ringing  him  to  a  trial,  several  acts  of 

had  been  made  to  keep  him  in  pri- 
Y  the  last  of  them  he  was  confined 
:  pleasure  of  his  said  late  majesty 
ge  1,  by  whose  decease  Bernardi 
e  intituled  to  his  liberty,  there  beiig 
n  in  force  to  detain  him  in  prison  ; 
jrt  then  made  a  rule  for  such  Habeas 
cordingtv ;  though  the  motion  was 
pposed  by  the  attorney- general  sir 
rke,  who,  though  a  young  nuin,  had 
I  quickly  to  that  great  post  in  the 
;h  the  early  favour  and  countenance 
lire- mentioned  chief  justice,  and  his 
Dg  merit,  built  upon  so  nursing  and 
}us  a  foundation.  Mr.  Attorney- 
ut  sure  he  was  only  in  jest)  objected 
ar  to  the  motion  as  not  proper  or  re- 
lout  producing  the  original  commit- 
eh,  for  want  ot  due  care  in  keeping 
ring  the  records  of  Newgratc,  after 
if  dl  years,  and  the  change  of  the 
epen  witliin  that  time,  was  not  then 
1 ;  but  that  weighty  objection  was 
I  by  the  court  Afterwards  sir  John 
Aland,  then  one  of  the  judges  of  the 
Dg's-bench,  and  now  one  of  the  judges 
esty's  court  of  Common- pleas,  de- 
Dourt,  that  the  same  matter  had  been 
m  the  demise  of  queen  Anne,  when 
justice  Parker  before-mentioned  de- 

opinion,  that  the  court  had  a  discre- 
wer  either  to  bail  or  discharce  the  pri- 
n  bnmght  up  to  the  court  of  King^s- 
Hibeas  Corpus  in  the  like  case ;  }  et 
M,  at  the  tame  time,  he  remanded 
I  to  Newffate.  Bernardi's  counsel 
waved  the  Habeas  Corpus,  and  desir- 
DOtfaiog  by  his  motion,  as  conceiving 
sei^Bly  certain,  (which  Bernardi  was 
Mtr)  and  the  aueeess  doubtful ;  and 
e  jo4rM  commissions  were  not  then 
vbo  or  themselvea  could  not  subsist 
m  mt  nontht  from  bis  present  ma- 


A.  D.  1696.  [774 

jesty's  accession  to  the  crown.  It  was  tliet^- 
fore  thought  expedient  and  more  adviseable  for 
Bernardi  to  seek  relief  by  petitioning  the  king 
for  his  royal  favour  and  clemency,  than  to 
make  any  farther  trial  to  be  discharged  or 
bailed  by  the  court  of  King's-bench.  A  bill, 
was  soon  after  brought  into  parliament,  and 
speedily  passed  into  an  act  (1  Geo.  S,  st.  1, 
c.  4,)  to  continue  his  imprisonment,  with  his 
other  two  fellow-sufferers,  Blackburn  and  CaS' 
sels,  during  his  present  majesty's  pleasure.  A 
printed  Case  was  deliv^ered  to  all  the  lonis  and* 
commons  against  the  bill,  while  the  same  was 
under  the  consideration  of  the  two  houses,  as  i»- 
hereinafter  set  forth.  And  Bernardi  preferred; 
several  Petitions  to  the  king  and  queen,  both 
before  and  afler  the  said  last- mentioned  act 
passed^;  the  tenor  or  puriiopt  of  which  Case  and- 
Petitions  are  as  foUoweth,  \iz^ 

The  most  sad  and  deplorable  Case  of  Robert. 
Blackburn,  John  Bernardi,  and  Robert 
Cassels,  humbl;^  offered  against  the  Bill 
now  depending  in  Parliament  Cor  conti- 
nuing tncir  Imprisonment,  nf)cr  a  Con- 
finement worse  than  Death  by  them  al- 
ready undergone,  of  upwards  of  one-and- 
thirty  Years  in  Newgate. 
"  In  March  and  April  1696,  they  were  com- 
mitted :  the  crime  they  were  charged  with  in 
their  respective  commitments  was  high-treasooy 
in  conspiring  the  murder  and  assassination  of 
his  late  majesty  king  William  3,  but  without 
proof,  there  being  not  so  much  as  the  oath  of 
one  single  witness  made  against  any  of  them, 
nor  is  it  specified  in  their  commitments,  that 
they  were  charged  upon  oath :  that  no  proof 
appearing  against  them  whereby  to  bring  them 
to  a  triul,  several  acts  of  parliament  had  been 
made  to  keep  them  in  prison,  tlie  last  of  which 
lefl  them  to  his  late  majesty's  pleasure,  and 
then  by  the  demise  of  the  kmg  they  were  be- 
come mtituled  to  ibeir  liberty :  that  the  |ier- 
sons  charged  with  this  most  horrid  and  de- 
testable crime  were  originally  six,  namely, 
James  Counter,  Rob.  Meldnim,  James  Cham- 
bers, Robert  Blackburn,  John  Bernardi,  and 
Robert  Cassels :  (/ouuter  was  set  at  liberty  by 
queen  Anne,  and  Meidruui  and  Chambers  die«l 
in  prison ;  so  that  there  were  then  remaining 
only  the  last  three  of  these  miserable,  wretcbi-il 
and  most  unfortunate  prisoners,  who  solemnly 
disclaim,  ami  from  their  liearts  ever  did  nnd  do 
abhor  and  detest,  the  said  villainous  crime  so 
laid  to  their  charge  as  afiiresaid  :  and  ultbough 
their  number  was  then  rcduceil  to  three  as  be- 
fore-mentioned, yet  nevertheless  by  tliat  bill 
they  were  intended  to  be  further  conliiied :  that 
they  were  reduced  to  extreme  miseries  by  their 
said  tedious  confinement  of  onc-and-tbirty 
years  and  upwards,  in  a  melancholy,  dismal, 
and  loathsome  gaol,  and  by  tlieir  great  age,  in- 
firmity, and  poverty;  and  though  they  had 
been  confined  close  prisoners  of  suite  in  New- 
gate for  upwards  of  onc-and- thirty  years  as 
aforesaid,  yet  they  bad  never  bad  one  penny 
allowance  from  the  government*^ 
4 


775]  8  WILLIAM  III.    ProeeeeHngs  against  John  Bmmrdi  aiid  oihert^   [771 


**  Wherefore,  and  in  regard  to  the  unprece- 
«)eiited  and  unparalleled  hardships  of  their  case, 
it  was  humbly  hoped  the  said  bill  should  not 
pass.  (Subscribed)     Robert  Blackborn. 

**  Newflrate,  John  Bernarim. 

July  5,  1727."  Robert  Cassels." 

Copies  of  comnaitinents  follow,  whereby  it 
•plainly  appears  that  none  of  the  said  three  pri- 
soners were  committed  upon  oath. 

"  These  are,  in  his  majesty's  name,  to  au-< 
tborise  and  require  you  to  receive  into  your 

custody  the  body  of Bemardi,  herewith 

sent  you  for  high  treason,  in  conspiring  the 
assassination  and  murder  of  the  kinff ;  ami  you 
are  to  keep  him  safe  until  he  vhali  be  delivered 
by  due  course  of  law ;  and  for  so  doing  this 
ahall  he  vour  warrant.  Giren  at  the  court  at 
Whitehall,  the  25th  of  March,  1696. 

<>  Shrewsbury." 
'*  To  the  Keeper  of  Newgate, 
or  his  Deputy." 

N.  B.  The  commitments  of  Mr.  Blackburn 
and  Cassels  are  to  the  same  effect  with  Ber- 
uardi's. 

None  .of  the  said  six  prisoners  were  com- 
mitted u|ion  any  oath,  except  Counter,  who  was 
dliar)((M  upon  the  oath  of  one  witness,  as  may 
appear  by  the  following  true  copy  of  his  com- 
mitment : 

<«  Middlesex. 

"  Receive  into  your  custody  the  body  of 
John  alias  Jame*;  Gunter,  alias  Counter,  alias 
Rumsey,  herewith  sent  you,  chartred  before 
mo,  u|^^  the  oath  of  Gcot-^o  Harris,  t;ent.  for 
high  treason,  in  co:iK|)iring  to  assa;;sinatp  his 
majesty,  and  to  procure  an  invasion  oi'  this 
kinirdoni  b^'  the  French,  being  the  person  men- 
tioned in  his  majesty *s  proclaniatiun,  and  there 
ca'.led  Counter,  alias  Runisey ;  and  in  order  to 
u  further  exriininalion,  you  are  him  safely  to 
keep,  until  lie  shall  be  disehavged  by  due  course 
or:a\^';  and  for  so  doing  this  shall  be  your 
>%iirriint.  Given  under  my  hand  and  seal,  this 
!l9ih  (lay  ol' May,  160{i. 

"  S.  LoTELL,  Hocorder.*' 

A  Ccpy  of  the  Keepei^s  Ceutificaie,  setting 
I'orili  that  none  of  the  said  three  prisoiient 
wire  coinitiJLled  upon  oi^th  ;  which  Cer- 
tificate was  iinoexed  to  one  of  Bernard i's 
l\'titiuus  to  the  king : 
"  V»|j;  i-cis  .'f.nits  (.luntcr,  alias  Counter, 
all :1b  Um.iiVjv.  .Jani«'s  Chunibtrs,  I{«b«.rt  Mei- 
drum,  K>ti:i;i't  i!i;M*ki»iini,  Kobort  ('uNsels,  and 
John  Ucriiiiriii.  wt^v  lo-.nuiilied  to  Newgilein 
loP''*,  furcon'^iMrini^  to  assassinate  his  lale  lua-  i 
jcsty  kiii;^  Wililaiii  the  3;l,  as  appetus  by  co- 
jitcs  oi'  tlicir  SI  >  oral  coiuniiimeius,  sij^T'ied  by 


.lusn.a  i'\-II,  Pit'  keep;T  of  Ne-.vi,ate,  anr'  b> 
hih  In^atl  Um'.jKi  V  Iio(!(.oliiim  itouse,  Mhicli  I 
iKivespMi  ami  c-jainlnel ;  I  hereby  certily,  that 
none  of  the  lu'ItM\.-nuinrd  fk»i*sons  are  ciiargcd 
upon  any  oath  spi»citiK<l  in  the  suid  copies  of 
thei:'  re^j.wtivi*  coinniiliiienis,  except  tlie  alxive- 
said  Counter,  who  stands  charged  in  his  com- 


mitment for  the  said  crime,  upon  the  oath  o 
one  George  Harris,  gent.  Given  oMer  bj 
hand  tliis  15th  day  of  August,  1747. 

"  Tbomas  Auxk." 

True  Copies  of  Petitions  to  the  King  sat 
Queen,  and  of  an  Affidavit  of  two  eminent  sur- 
geons, are  hereinafter  set  forth  as  foUowetb: 

To  the  King's  Blost  Excellent  Majesty  : 

The  most  humble  PExmuN  of  Major  Jobs 
Bernai^)!, 
«  Sheweth, 

**  That  your  petitioner  now  is,  and  for  op- 
wards  of  one-and- thirty  vears  last  past  hu 
been  a  state  prisoner  in  Newgate,  cominitlri 
the  25th  of  March,  1696,  by  the  then  earl  of 
Shrewsbury's  warrant,  as  secretary  of  iisk^ 
and  therein  charged  with  high-treason,  in  oos- 
spiring  the  murder  and  assassination  of  his  bto 
luajesty  king  William ;  but  witliout  any  pmf, 
or  so  mochasanyinl'ormatk>n  upon  the  oHib 
of  one  single  witness,  that  your  petitioner  could 
ever  hear  of:  neither  hath,  in  all  the  said  tine 
of  thirty-one  years  and  upwards,  any  proK- 
cution  been  hail  against  your  pttiiiooer  tor  ibe 
said  horrid  supposed  crime,  which  your  peti- 
tioner doth  disclaim,  and  i'rom  his  heart  eik 
did  and  doth  abhor  and  detest. 

"  That  by  two  acts  of  indemnity,  tbcsof  is 
the  third,  and  the  other  in  the  seventh  ycsr  if 
the  reign  of  his  late  majesty  your  most  |ia- 
cions  father  king  George  the  iinsr,  the  cnne 
alledged  against  your  petitioner  in  his  com- 
mitment is  paidoned  ;  bnt  by  the  said  acts  the 
imprisonment  of  your  }ietitioncr  was  contiDonl 
during  his  late  mMJesty 's  pleasure. 

**  That  your  |K-iiiionerisa<hised,  thatbytlif 
demise  of  liis  sui>t  Utc  majesty,  your  petiuooer 
became  intituled  to  his  li burly,  and  ou^bt  not 
to  be  detained  in  prison  by  any  law  now  iu 
bein«j^  ;  .lud  has  ver}'  lately  applied  to  yoor 
m»jesty\  judges  of  ilie  court  of  KingVBcocb 
to  l>c  discharged  from  his  confinement,  but 
without  success. 

*<  That  your  petitioner,  by  his  so  long  in- 
prisonment,  is  reduced  to  great  straits  nA 
Maut,  and  great  iiifirmity  of  body  ;  and  his  lite 
is  in  danger  by  his  cUise  confinement  in  Nen- 
ifAU\  as  by  afiidavit  of  two  eminent  sargfosf, 
herewith  produced,  and  sworn  beibre  ooeof 
youi-  majesty's  judges  of  the  KingVbrocfc. 
and  fded  in  the  said  court,  may  appear.  Aok 
your  petitioner  is  now  upwards  of  sercDlT 
years  of  age,  great  and  the  best  part  of  vIhci 
time  has  been  very  uncomfortably  worn  trt 
i>y  your  petitioner,  in  a  melancholy,  disfflili 
and  loathsome  gaol,  where  it  has  cost  yov 
petitioner  abo\e  7^0/.  for  his  lodging. 

**  That  ill  regard  to  all  such  y our  petitiOBV^ 
sad  and  deplorable  cin'umstances,  and  dl- 
vanced  nl«i  age,  your  petitioner  most  hinill| 
lio|>es  he  may  be  deemeii  a  fit  obfed  ofyMI 
majesty's  charity  and  clemency,  and  nNratH 
peciaUy  at  this  juneture  of  yoar  mi^atj^M' 
cession  to  the  throne. 

*<  Wherefore  your  petitUNicr  4oCh  bmmI^MI 


7773  on  Acdmmt  qflhe  Asiauimlum  Plot. 

Hy  hesetxlh  your  n>;iresly^  that  be  miiyf  fWr  Ihe 
prtsetilt  for  ikir  beoeht  of  \\i&  Ut^ailb,  and  lo  suve 
cJtp€*iicc,  he  rriDuved  Trom  Ncwjpil^  to  U»e 
iLiair's-bench  prlion,  tilt  such  tiiue  »»  your 
m^i  ly  see  ettu^e  tx)  onkr 

3fo«.  u  ttiKcbarge. 

•*  <ii«J  your  pcuuuuui*  shall  c*t  r  [iray,  &c. 
**  Ex  Parte  Jqhanwh  BERNAHOi  Ar* 
iu  Banco  Hc^iii/^ 

*•  Jobn  l^ie^kr  ihe  t?l(!er,  and  Julm  Wheeler 
the  ynntigcT,  his  son,  both  »jf  ihe  vd\  of  Lon* 
don,  surgeons,  jointly  and  aeieralJy  make 
oalh,  that  major  J  oho*  Bernartti,  \\\m  now  is, 
^d  forupwanls  of  ooe-aud-thirty  \env3t  Wt 
past,  as  these  deponents  have  been  informed, 
and  Tcniy  bt'licFe,  haih  lieen  a  Blale  prisoner 
io  Newgale^  hath  frequently  liud  Tery  jU  tits, 
occasiani'd  hy  a  miserable  tarneneas  ftinUweU- 
mg  in  bi$  arm,  by  bumoiirs  f^uwint?  to  an  old 
wound.  And  these  deponmrs  further  say* 
tbac  tliey  bare  attendeci  him  many  time*  m 
tticU  illm;s<,  for  al>out  twelre  years  bst  past, 
aet  bis  surgeons,  layiofj  bis  ami  otWn  o|»en  in 
ihcf  bone  by  1ar§:e  indstoris,  which  have  con- 
linoed  open  and  runninq^  wounds  for  several 
uiunths  alter  every  sucti  operation  ;  and  his 
iorTue»t*i  occasioned  thereby  ba\e  frei^ticntfy 
brought  fevers  upon  hini^  to  the  enduu^ering 
hi*  liTe.  And  these depnntnls  furiher  say,  that 
in  these  deponents'  judgment,  the  cause  of 
eautractingsuch  ^hnrpitud^ross  buinours  hath 
proceeded,  and  duth  proceed  from  the  length 
snd  closeness  of  \iia  cuntuiement;  %vhieh,  if 
pttjnuiL  nil!  still  endansrer  his  hie,  in  Ibese 
>^ment ;  and  t)i€{ra(hcr  by  reaaon 
I  old  age,  he  being  now,  as  these 
^  deponent jj  lia»e  been  intbrraed,  and  do  btbeve, 
["tipwards  of  seventy  years  of  a^. 

»*  Jon\  Wheeler. 
**  JoilN  Whceleh^  JUB/' 
f*^  Jurat'  apod  SeijeantS'lun,  in 
Cb^in eery  Lane,  15  Die 
Junii^  17^/7,  coram        J  a.  Revnolps/* 


To  tbe  King's  Most  Exeellont  Majesty  : 
|*r!ie  humble  Petition  of  Major  Jews  Dernakdi, 
'« 8bevretb  $ 
'*  That  your  petitioner,  by  an  t\ei  of  parlia- 
ifttely  inaile,  being  entirely  Mt  to  your 
>ty*a  most  (pmoua  pleasure,  at\er  having 
id  aear  thirty- two  ytars  clo^w  ion  prison* 
n  Newgale,  on  sospicion  of  being  con- 
ned hi  a  moat  horrid  conspiracy  against  his 
Mnajesty  king  Wilbam. 
>  That  your  petitioner  hatb  alurtys  prayed 
[  sod  (jftitionevl  to  be  tried,  as  o^ten  as  he  eould 
I  tin  ft  by  bw,  to  b«  ac4pii4ted  or  contleiuDed ; 
i-y^  ^  eoM  uerer  be  besf  d  or  brought  befofe 
\mmf  court,  la  have   his  guilt   or    ionoceiioe 


**  That  yotir  petitioner  was  not  obarged  upon 
.   mmf  oath,  ot  Uw    being  a    cons^pirutor   in  that 

flltmd  plot^  which  is  evident  by  [m  cHiuutit^ 
mm^t  ii»'|Mli  cfer  boing  tiikea  up  for  high 
irsAiCMi^  aiul  m  chiurged,  but  ihc«iti|«  waa  al- 


A,  V.  1696.  [77S 

ways  sonified  and  expressed  in  liia  commit* 
ment  (as  your  petitiotter  ia  advised).  For  in* 
stance,  Mr,  Counter  h  only  ehargfd  upon  the 
oath  of  one  evidence  ;  thedtBttoclioDsuAicieirtiy 
appeareth  by  the  copy  of  his  cniniaitineDt* 
and  that  of  your  petitioner,  hcicuoto  an- 
aeiced. 

*^  That  your  petitioner  haib  humbly  set  forth 
his  great  age,    infirmity   and  poverlVt  hy  « 
former  peiitiua  delivered   into   your  u^njt^ sty's 
most   gracious    band  -,    yttn^    ■  •  »■♦—  -n'  I 
above  seventy  years  old,  su  ipp^ 

bio    miseries  by   frequent   ni.   .m  la 

limbs,  oeeaaiocitti  by  bis  long  nod  close 
fioenieat,  tUtBted  upon  the  oath  of  two 
nent  surgenns,  and  annexeii  lo  his  fbrroer  p«il* 
tion  to  your  majesiy. 

**  Y(W  petinoner  therefore  most  humbly  im- 
plores anil  supplicates  your  majesty,  in  your 
siivereigo  comiiaaeiioo  and  great  goodness,  lo 
tfrant  that  your  petitioner  may  be  retnoved 
from  Newgate  to  your  majesty':^  Bench  prison 
for  the  present,  ibr  the  benefit  of  luore  air, 
and  less  expence,  until  your  majesty  may  be- 
graciously  pleased  to  grant  your  peii^ioner  entire 
liberty, 

**  iod  your  petitioner  shall  cirer  pny,  Ate,'* 


siy'i 

i 


To  the  QoeeD'ft  Most  £xoelleiU  Majstly  ; 
The  humble  PmnoN  of  Major  John  Bernakdi, 

**  ^bevretb  ; 

"  That  your  petitioner  bath  been  a  dost  pri- 
soner of  state  in  Newgate  itear  thirty- two  years^ 
and  is  now  destioed  to  a  longer  Ofinfiikeiiieftl, 
by  an  act  of  parliament  laidy  made  to  that' 
end,  leaving  jour  petitioner  to  kis  majesty's 
DMist  gracious  pleasure. 

"  'I'hat  your  petitioner  was  not  eommiU^d 
upon  the  oath  of  any  e%idence,  asappeareth  by 
the  copy  of  his  commitment  annexeid  to  his  pe^ 
tition,  delivered  alao  to  his  majesty's  most  gr»> 
cious  band  this  day. 

'^  That  your  petitioner  and  the  rest  had  their 
Case  delivered  to  tbe  members  of  bfitb  Houses 
of  pariiament,  whilst  tlie  act  fur  their  longer 
imprisonment  was  under  their  consideration  ;  a 
eo|iy  of  which  is  hereunto  animwd. 

'**Tbat  your  petitioner  is  mm  vf  the  oldest 
comraisaiou  otficers  in  tbe  kmgdoiD,  having 
served  the  stutes  of  Holland  fifteen  years  by 
tbe  king  of  £ngland*6  consent  and  approba- 
tion ;  your  pciiUoncr  bearing  five  of  his  then 
bigbnesa  tbe  pnnce  of  Grangers  commissions 
in  sevemi  stations  of  honour,  the  first  of  which 
liears  date  above  tifty*four  yean  ago  ,  and 
your  petitioner  halh  been  siuch  wouikM  is 
theaaidaervioe, 

*^  That  your  petitk»u0r't  mndfatber  «iid 
fktber  were  both  «*oiMiia  ef  Ate  empire,  dee. 
tboucb  his  said  father  and  yonr  )»etitroarr  were 
both  boru  luhjects  nfthm  kiiigdrim. 

<'  Thai  your  jM^iuouet  hutb  bii  beforetnm- 
iioned  eominijuiiuoK,  anti  iho  iinp«frijil  patent, 
te  priHlttce  iu  ieaUmouy  of  the  truth  cher^if 

«'  That  your  petktiooer  hath  already  coflared 
1  puaiahnMnl  m  ibmgmt^M^iMSS^  thitt  a 


779] 


8  WILLIAM  IIL 


Froceedingi  ttgaimi  John  Bernardi  and  tdhtrif 


ptest^t  or  Ttokat  death,  and  nevi^r  could  «>btaij) 
'  ibe  farour  to  be  brought  before  atij  cotirt  of 
jufiticet  U)  have  his  guilt  or  inDOceQCe  proved  ; 
kepi  in  priwm  dear  thirty -two  y^^ra,  by 
ifi«lhml»  never  h^ani  of  beibre  ;  ami  U  now 
Rjgli  wovn  out  with  oi^J  age,  doere(>i(lne^!f,  and 
poverty^ 

**  Ywiir  |M*lilioner  tbcrefore   most  hundily 

i[ii|il<irc*  And  lH*sc!Pchei4  your  majesty,  in  ytmr 

•   ncfVerriffi  ciinipaisssicm  »tid  pity,   lo'^iuove  the 

king^  to  i,*^rai»t  ihe  prayer  of  your  moat  (uisera- 

bic  petiljoner^  whieli  h  but  one  priaoo  for  ano* 

ther,  utitil  the  iking  of  Kings,  m  \m  divine  pro- 

▼tdence^  shall  dtjUver  your  peiitiouer  out  of  this* 

-'  changeibN  ivorld,  or ^  that  his  cnajr«ty  n:iny  be 

graciously  pleased  to  grant  hina  inor^  liberty 

iu  it. 

^•»  And  your  petiiiooer  shall  ever  pray,  Stc.*^* 

^To  the  Queen's  Most  Eiccelkut  Mnje^ty  : 

The  bumble  PmTio?j  of  Ajiigail  Beanahi^Ii 
^  Wife  to  ttie  nii>jit  unfortunate  Major  John 
H  Bernard),  wbo  bath  for  upwards  of  ont^ 
^^  and « thirty  year&  last  past  been  oon^ned  a 
^p    State -Prmont^r  in  Newgaie. 

B     "  Sbeweth ; 

P  **  That  vour  petitioner  oo  tbe  95th  of  June 
last,  did  treliver  to  the  king't«  niost  e^ccellent 
m^esly  mn  biuuble  peiitirm  on  tlie  behalf  of  the 

*  To  Blackburn 'a  Petition^  to  ^e  same  effect, 
was  addetl  the  fuUowin^  cer tipcat e  t 

**  Middie«e.if^  *f.  These  are  to  certify,  That 
upQD  isifarch  made  ainong^tit  the  records  ^f  the 
B^sionsi  of  gaol -df  lively  of  NevT^ate,  held  ibr 
the  county  of  Middlesex,  it  appears  by  the  said 
records,  that  on  the  Snd  day  of  April,  169d, 
Robert  Blaekburti  was  comuutted  to  the  Miid 
gaol  of  Newgate,  by  the  right  honourable  ih^ 
duke  of  Bhrews^bury,  principal  secretary  of 
AtatSf  for  high  treason,  in  conspiring  the  as- 
Eassjnation  ot  the  late  king.  And  1  do  further 
certify  s  that  at  the  sej^sions  of  gaol -delivery  of 
Newgate,  h^ld  for  the  ^aid  county,  at  Justice- 
hall  in  the  OldrBfiiley,  in  the  suburbfi  of  the 
city  of  Lfitidi>n>  on  the  9th  day  of  September^ 
1696,  the  said  Hubert  Blackburn  wa»  dehvered 
to  bail  by  ihe  couit,  iW  his  iiersonal  appeurunce 
at  the  next  sessinns  of  ^ol  -delivery^  to  be  held 
§ot  the  said  county,  to  answer  to  all  such  mat- 
ters, as  on  hm  said  late  niajc«ly^s  behalf  should 
be  objected  against  him  ;  and  not  to  depart  Ibe 
court  wiihout  licence  ;  and  in  the  tneau  time, 
to  be  of  his  ^ood  bebaf  iour  ;  that  then,  i!kc. 
At  which  smd  neit  sesaions  of  gaol-delivery, 
to  wit,  at  the  sessions  of  gaol^delivery  of  New- 
gate, held  for  the  said  county,  at  Justice-ball 
atbrt^aid,  on  the  14tb  day  of  October,  lOOtjj 
the  said  Robert  Blackburn  personally  appeared 
in  apen  court  ;  and  vvas.  by  the  said  court  itia- 
charged  of  bis  recognizance.  And  1  do  hereby 
further  certify,  that  it  appears  by  the  taid 
records,  that  on  the  7th  day  of  January,  1696-T, 
the  said  Rfdiert  Blatkburrt  was  committed  to 
the  ^aid  gaol  of  Newgate,  by  sir  Wilham 
Tfombal),  kmgbi,  one  oif  bii  late  iQi^ealy'i 


said  unfurinaate  pri&uuar,  llif«reMf  pr^ying^,  f«r 
the  reasotia  tbereiti  contained,  that  ht  m^aHit 
for  the  present,  for  the  benefit  luf  hU  b^aUh, 
ond  to  a^vG  eirpenee,  be  ren%ove4  iWtin   Nr«* 
gate  to  the  Kuig's-beocli  pris<jij,  till  sucU  lime 
as  his  majesty  should  graciously  aee  cause  to 
order  hl;^  abso I nte  discbarge,  »%  by  tlie  said  pe- 
tition,   tclerenee  being  thert^umo  had,  more 
fully  luay  appear.    That  ni  the  reign  ol  liis  hit 
majesty,'  in  the  time  nf  the  Preston  rebeiiiiHi, 
many  prisoners  undef  condemnation  and  sctt- 
tcnce  of  death  for  high  tr^joh,  (but  reprieved!) 
foi'  the  sake  of  their  uaahh  obtaiued  an  indaU 
gence  of  a  reoioinl  from  one  prison  to  an^bcr, 
^liere  the  closeness  uf  ibeir  ciu^ti^fieraent  rw* 
dangered  their  li^es,  as  is  nott  the  ca^  of  tbe 
said  uti fortunate  Bernard i,  who,  although  lid 
bath  already  undergone  a  confiuement  HDr«if 
than  death,  was  eommittudonly  upon  sti«pict<?n 
ot  a  vi.y  horrid  and  tnost  deiealaole  rrime,  ia 
con        iig  the  mnnler  ainl  assassination  of  lui 
je*ty  king  WiUiom,  hut  without  amr 
»r  as  much  as  the  oath  uf  one  siof^fr 
against  him  i  neither  li;ith  any  pnxtf 
jnd  againjst  biin,  or  he  brought  to  auy 
Ik    npwsirds    of   one-mnMhirty    yrsrf 
ind  as  he  hath  been  always  rrady  sod 
i  to  take  his  tiial,  be  hath,  from  ihut 
reguUly  entered  bis  prayer  to  be  UiM, 
ur  petitiouer  there  tore  doih  most  huoi- 

inonrabk  priry-couneii,  principal  s«w» 
stale,  for  hi^b  trt^ason,  in  conspirifi^ 
tiii^  niurdpr  and  assassination  of  the  i^aid  kiog. 
Dated  this  10th  day  of  Augui^t,  1708,  tn  tbe 
Tth  year  nl  our  sofereigu  lady  Anne,  by  Ills 
grace  of  God  queen  of  C<  re  at  Britain,  5cc. 

"  B.  Hj^acoiRT,  clerk  of  the  (;eaer, 
and  gaol -deli  very  of  Newgate, 
fnr  the  couiiiy  ot  MiddlesejiL*' 
It  appears  I  by  the  foregom^  Ceititicate,  that 
Robert  Blackburn  was  eommilted  the  2nd  uf 
April,  1696.  That  on  the  9ili  of  Septemlier 
following,  be  was  admitted  to  baiL  1  hat  tbe 
14th  of  October,  1696,  he  was  di^bar^eif. 
The  7th  of  January  committed  again  Jbr  tlie 
same  fact ;  thuugn  taken  up  at  the  Buoy  sitil 
Nore,  by  one  captain  Naab,  for  attempting  ly 
go  to  Flaudtfrs  without  a  paSs.  By  eapioia 
Nash  lel\  to  custody  of  a  messenger  nine 
weeks.  Then  committed  by  eir  WUllam  Truo»~ 
bait,  knight,  to  Newj^aie,  and  never  ejcamind, 
or  any  oath  against  faun,  that  ever  he  beard  ol ; 
andtnen  detained  till  ao  act  passed  toimprisw 
Couuteti  Meldrum,  Cbambera,  Bertiardt  and 
Cassels,  who  were  all  sti'angers  to,  and  never 
seen  by  Blackburn,  till  in  Newgate  ;  and  then 
he  was  inierted  in  the  amcniiTtd  tnil,  whiclh 
came  down  from  the  Lords  to  the  Commons, 
He  has  been  now  almost  thirty -three  yea^s  la 
prison,  aiid  no  allowance  from  the  goTemment^ 
though  a  state -prisoner.  He  was  not  one  of 
those,  for  whom  the  thousand  pounds  trat  of- 
fet^ed.   These  several  allegations  have  been  re-- 

Siorted  true,  by  sir  Ed^vard  Northey,  and  sir 
tobert  Itaymond  ;  thcrcfoie  he  hopes  to  bav^ 
bis  m^esty'i  relief..  f 


on  Account  of  the  Assassination  Plot* 


A.D.  1696. 


[782 


«h  anil  supplicate  your  majestv,  iu 
ereign  compassion  and  gi-eat  gooifnf*sfi, 
«de  with  the  king's  most  excellent 
for  the  removal  of  your  petitioner's  un- 
husbanil,  the  said  major  John  Ber- 
om   Newgate   to    the  Kiug^-hench 

your  petitioner  shall  ever  pray,  &c." 

nclude  this  point,  it  is  manifest  by  the 
icited  copies  of  petitions,  cases  and 
es,  and  distinct  allegations  of  the  said 
ihn  Bemardi,  that  he  \%as  not  guilty 
is  much  as  misprision  of  treason,  hav- 
r  had,  directly  or  indirectly,  ahyknow- 
the  said  horrid  conspiracy, 
ire  two  passages  to  be  curiously  en- 
nto  ;  the  first  of  which  is,  how'Ber- 
ne  to  be  nut  into  a  proclamation  P  The 
to  this  is  not  at  all  difficult.  Un- 
y  it  was  by  reason  of  George  Harris's 
ion  of  his  being  then  in  the  Compter 
taio  Rookwood  ;  which  Rookwood  was 
upon  oath,  though  Bernardi  never  was., 
seems  to  be  more  unquestionably  evi- 
regard  the  proclamation,  wherein  Ber- 
named,  did  not  come  out  until  the 
ming  before  Bemardi  and  Rookwood 
:en  out  of  the  Compter  by  the  Guards 
ght,  upon  Harris's  inibrmation,  which 
weeks  ai^  the  discovery  of  the  Plot, 
nardi's  name  was  never  inserted  in  any 
iroclamation. 

text  and  second  question  is.  On  what 
he  was  first  confined  by  act  of  parlia- 
To  which  Bernardi  answers,  that  the 
'  Shrewsbury  having  inserted  in  his 
nent  tl>c  following  positive  words,  viz. 
If  concerned  in  the  horrid  conspiracy, 
igh  not  a  syllable  of  any  charge  upon 
\  grace's  word  under  his  hand  was  not 
lied  in  question  by  the  parliament,  in 
f  a  poor,  inferior,  supposed  enemy  to 
Tiiment :  and  how  IJernardi,  or  any 
lan,  could  have  the  confidence  to  set 
'  |iositively,  by  petitions  to  the  king, 
jse  to  the  imrliameot,  that  he  was  never 
upon  oath,  if  he  had  ever  known  or 
f  any  evidence  against  him,  and  in 
f  the  contrary  had  been  fact)  he  might 
ave  been  contradicted,  is  not  to  be  ac- 
for.  He  affirms,  and  with  great  truth, 
never  lay  under  the  odium  of  being 
f  any  base  or  dishonourable  act  in  the 
ourse  of  his  life,  until  the  commcncc- 
f  his  present  deplorable  sufferings  ; 
nay  gain  some  cr^it  from  his  several 
Dns  in  commission  from  time  to  time, 
■oad  and  at  home  :  and  laying  aside  all 
ions  of  honour,  no  man  m  his  senses, 
capacity  or  common  sense  enough  to 
r  his  owo  interest,  could  sure  bese  in- 
I M  to  engage  in  so  horrid  an  action  ; 
no  iiriDce  upon  earth,  being  a  Chris- 
rid  or  wouki  ever  countenance  such  a 
cnnrdt,  though  what  he  did  might 
nek  frinoe'f  terviee.    Wc  have  an 


instance  of  it  at  home,  of  one  sir  Paul  Whit- 
ford,  who  murdered  Ilorislaus,  Oliver  Crom- 
well's ambassador  at  the  Hague.  This  base 
and  wicke<l  act  might  tend  to  the  service  of 
king  Charles  2,  wlieu  in  exile  ;  however  the 
kin^,  af\er  the  restoration,  never  suffered 
Whitford  to  appear  in  his  presence,  though  he 
had  been  a  fiivourite  liefore ;  and  if  his  ma- 
jesty allowed  him  any  thing,  it  was  done  so 
privatel  V,  that  nobody  knew  it,  and  he  liTed 
and  died  in  a  remote  part  of  the  kingdom. 

Bemardi  quitted  to  the  amount  of  «bout  500/. 
a-year,  which  he  had  coming  in  by  employs, 
and  by  his  wife's  fortune,  upon  kin^  James's 
demanding  his  subjects  home  from  the  Dutch 
service ;  and  it  may  be  therefore  reasonable  to 
believe,  that  Bernardi  was  in  some  esteem 
with  the  king  as  long  as  his  majesty  lived ; 
and  nothing  but  a  fool  or  a  madman  could  be 
so  stupid  as  to  forfeit  such  an  advantage,  by 
engaging  in  a  vile,  wicked,  and  most  disho* 
nourable  action,  which  neither  king  nor  sub- 
ject could  justify. 

It  may  not  be  improper  here,  for  manifesting 
and  clearing  up  Bemardi's  innocence  beyonu 
all  contradiction,  to  give  a  particular  relation  of 
what  passed  before  tlie  lord  chief  justice  Holt, 
upon  the  evidence  given  before  his  lordship, 
upon  Bemardi's  beinjj^  suspected  to  be  coa- 
ceraed  in  the  said  horrid  and  detestable  conroi* 
racy,  the  witnesses  and  discoverers  of  whidi 
were  captain  George  Porter,*  Mr.  Le  Rue, 


*  This  George  Porter,  the  principal  evi- 
dence in  the  Assassination  Plot,  and  affainst  sir 
John  Fenwick  and  the  rest,  was  tried  for  the 
murder  of  sir  James  Hacket ;  and  his  Trial  is 
here  inserted. 

The  Trial  of  George  Porter,  esq.  for  the  mur- 
der of  sir  James  Hacket,  of  Scotland,  knt. 
at  the  sessions  of  the  peace,  Oyer  and 
Terminer,  held  at  Justice-hall  in  the  Old- 
Bailey,  London,  on  Wednesday , Thursday, 
Friday,  and  Saturday,  the  10th,  11th,  letb, 
and  13th  days  of  December,  1684,  before 
the  honourable  sir  James.  Smith,  Lord- 
Mayor  of  the  City  of  London,  air  Thomas 
Jenner,  knt  one  of  his  Majesty's  Se^nts 
at  Law,  and  Recorder  of  the  aforesaid 
City ;  together  with  other  Justices  of  Lon* 
don  and  Middlesex. 

Jury.— Ralph  Box,  William  Moyer,  Walter 
Coventry,  Jacob  David,  John  Palmer,  Ralph 
Izzard,  John  Easton,  John  Fauster^  '^^ff^ 
Attley,  Thomas  Harrison,  Francis  Smith,  Wil- 
liam Drink  water. 

George  Porter,  of  IiOndon,esq.  was  indicted 
for  killing  sir  James  Hacket,  in  the  parish  eC 
8t.  Bride's,  London,  on  the  11th  of  October, 
iri84,  in  the  36tb  year  of  his  majesty's  reign. 
The  case  and  circumstances  ap|iearing  on  the 
Trial  were,  that  the  decease<l  and  the  prisoner, 
being  at  the  Duke's  theatre  in  Salisbury- 
Court,  afler  the  play  endtid,  a  great  crowd 
hapjiening  upon  their  coming  out,  and  sir  James 


783J 


8  WILLIAM  III.    Proceedings  agaitut  John  Bernardi  and  others^  [78( 


captaiu  BUir,  captaio  Fisher,  Mr.  Ubank  or 
Hewbank,  BJb-.  Bartram,  captain  Boyce,  and 
Home  others,  whose  natnea  have  escaped  the 
author's  memory:  they  were  all  urvlcred  to 
assemble  at  the  said  k)rd  chief  justice's  cham- 
bers in  Serjeaiits-imi  in  Chancery -lane,  which 
they  did,  and  were  there  exanuued  upon  oath 
by  his  lordship,  in  order  to  the  trials  of  major 
liowick,  major  Bernardi,  captain  Knis^htly, 
and  captain  Rookwood,  which  tour  were  de- 
sif^foed  to  be  tried  next  after  the  condemnation 
and  execution  of  captain  Charnock,  Mr.  King, 
Mr.  Keys,  sir  William  Perkins,  and  sir  John 
Freind,  for  being  concerned  in  tlie  said  vile  and 
villainous  plot.  Captain  Boyce  deposed  upon 
bis  examination,  that  he  had  known  major  Ber- 
uardi  a  captain  in  the  Dutch  service,  where  be 
bore  a  very  good  character,  but  that  he  had  not 
aeen  him  in  live  years  then  last  past.  Mr.  Le 
Rue  deposed,  that  he  also  knew  major  Ber- 
nardi, but  could  lay  nothing  to  his  diarge ;  and 
that  the  last  time  he  was  in  bis  company,  to 
the  best  of  bis  remembrance,  was  at  least  two 
years  before  the  assassination-plot  was  disco- 
vered.   Captain  Porter  and  tiie  rest  declared, 

endeavouring  to  make  way  for  his  children 
with  his  cane,  gently  moving  it,  hap|iened  to 
push  Mr.  Porter  on  the  back;  who  asked. 
What  the  meaning  of  it  was?  But  sir  James, 
as  he  designed  him  no  aflVont,  took  no  notice 
of  what  he  said ;  and  still  pressing  for  more 
room,  accidentally  hit  Mr.  Porter  on  the  nose 
or  mouth,  and  made  it  bleed  ;  u{)on  whidi  the 
prisoner  supposing  himself  to  be  aifronted,  and 
jostletl  or  brushed  by  the  deceased,  (who  iiad 
the  cane  still  in  his  hand)  drew  his  sword,  and, 
without  further  cousidei-ation,  run  tlledeccu^cd 
into  the  thigh,  so  that  the  weapon  appeared 
both  ways,  cutting  likewise  his  fingers,  whilst 
he  struggled  to  draw  it  forth  ;  whereupon  the 
prisoner  recovered  his  sword,  (the  deceusied  at 
that  time  sinking  down)  hut  had  no  further  op- 
portunity to  push  at  sir  James,  here  it  was 
seized  by  a  gentleman  present ;  whereat  tlie 
prisoner  expressed  much  indignation,  and  get- 
ting it  once  more  at  liberty,  stood  upon  his 
guard,  saying,  he  had  served  one  already  as 
he  liatl  deserved,  oi*  to  that  efiect  ;  yet  the  de- 
ceased, after  the  wound  received,  went  home 
in  a  coach,  and  lived  till  the  26th  following, 
and  then  died  in  the  parish  of  8t.  Martin's  in 

the  Fields. The  defence  the  prisoner  made, 

was,  tliat  he  had  received  a  push  in  the  mouth, 
as  he  verily  believed,  from  the  deceased,  and 
by  that  means  became  so  rashly  unfortunate, 
as  to  nm  him  through  the  thigh ;  adding, 
that  he  knew  not  the  person  that  fell  througli 
this  occasion,  and  therefore  could  have  no  pre- 
meditated malice  against  him,  l^c.  whereuiK>n 
the  jury  returning  their  verdict,  found  him 
guilty  of  manslaughter  only ;  by  which  mcaos 
he  was  not  found  guilty  upon  the  statute  of 
stabbing  ;  upon  which  statute  he  was  charged 
with  a  second  indictment :  Imt  the  next  heir 
brought  tta appeal.  At  the  next  sessions,  held 
tbe  16th  aod  I7th  of  JMuaryi    1684,  Mr. 


that  they  never  had  any  knowledge  of  majv 
Bernardi.  Thereupon  luajor  Bernanii  was 
struck  out  of  the  number  or  list  of  the  lour  de- 
signed for  trial,  and  Mr.  Cranbume  was  ap* 
pointetl  to  be  tried  in  his  room,  to  make  up 
number  four.  They  were  all  four  tried  aocanl- 
ingly,  and  condemned.  Three  of  them,  vii. 
M^r  Lnwick,  captain  Uookwood,  and  Mr. 
Cranburne,  were  executed  soon  after.  Captaio 
Knightly,  who  pleaded  gxiiity,  was  by  gfeat 
intercession  reprieved,  and  some    time  afia 

Jiardoned  upon  the  terms  of  banish  meot.  Ntv 
blloweth  a  remark  upon  a  mistaken  noiioB 
frequently  broached  and  argued  abroad,  totk 
great  prejudice  atid  wrong  of  major  Bemirdi 
and  his  two  remaining  feliow-sufferers,  Bhek- 
bum  and  Cassels,  viz.  That  there  was  oae 
evidence  against  them,  ami  only  one  to  h 
come  at,  they  having  artfully  apirited  amy 
and  dccoved  out  of  the  kingdom  one  other  cffi* 
dence,  who  could  have  proved  them  conetiaed 
in  the  fact,  nhich  was  the  ground  andHwi- 
dation  of  the  parliament's  passing  the  first  Ml 
for  their  confinement.  Major  Bernardi  tikfi 
upon  him  positively  to  deny  that  tJM^,  and  to 

Porter  prayed  the  court,  that  he  might  he  iri- 
mitted  to  his  clergy ;  but  was  answered,  tbM 
an  appeal  being  already  hrought  and  alkmei 
it  could  not  be  granted,  llien  he  desired  he 
migtit  have  hia  prayer  recorded  ;  but  that  ail 
bein^  practicable  in  such  cases,  he  vraaoaly 
admitted  to  bail,  liimself  entering  into  a  fMif- 
nizance  of  1,000/.  and  his  sureties  500/.  each ; 
and  ordered  to  move  it  by  his  counsel  the  foc- 
eeeding  term,  at  the  King's-benrh  bar.  Tliongh 
ut  the  next  sessioiLs  held  at  (he  01dHailey,dw 
:25th  of  February  following,  Mr.  Porter  |ilpadd 
his  majesty's  most  gracious  pardiMt  for  killiat 
sir  James  Hacket,  which  was  read  andalkim, 
aiifl  he  discharged.^ 

This  captain  Porter,  as  a  rewani  for  givio? 
evidence  against  Charnock,  King,  and  KfjF^ 
(his  servant),  sir  John  Freind,  sir  nilliam  Per- 
kins, Hrij^adier  Rookwood,  )lr.  Cranburue,  sir 
John  Fenwick,  6cc.  had  a  pension  setlM  on 
him  of  *2G0L  per  annum,  \ihich  he  enjoyed  till 
about  June  1728:  for  the  probate  of  tlici»ill 
of  this  George  Porter,  late  of  the  parish  of  St. 
James's,  Westminster,  esH].  was  granted  in  the 
prerogative-court  of  Canterbury,  July  4,  17OTi 
uuto  Elixabetii  Porter,  his  widow  anti  excca- 
trix;  so  entered  in  the  Pension- ofiicc  bnokf, 
and  in  auditor  llarley's  and  auditor  Foley^ 
office,  July  1728.  Captain  Fisher  had  like- 
wise a  pension  of  2(>0c.  per  annum  tor  beinf 
an  evidence  in  that  Plot,  as  had  others,  but 
less  sums. 


*  Captain  Porter,  in  Rookwood's  TnA 
(see  p.  182,)  was  excepted  against  by  thcpn- 
soner*s  counsel,  as  incapable  of* being  a  wilutf|» 
standing  convicted  of  felony,  for  killing  ar 
James  Hacket,  knt.  ^  Car.  9.  BMt  hu"- 
got  the  kieg's  pardon,  wasaiUowed  A  legal  i 
ness,  Ihough  uot  burnt  ia  the  ^niL 


r857 


on  Account  of  the  Assassination  Plot* 


A.  D.  1696^. 


[786 


iffirm  that  nothing  can  be  more  falife  and  un- 
rnie:  for  no  one  eridcnce  or  fUscorerer  of  that 
abominable  conspiracy  was  ever  pre%'ailed  on 
to  abscond  or  quit  the  lund,  or  e^er  absented 
himself,  while  the  gnTernmcnt  had  any  use  or 
occasion  for  him.  Mr.  Goodman  indeed,  the 
itase-player,  had  bc'en  a  copartner  eridence 
vritri  captain  George  Porter  ajsfainst  sir  John 
FenwicK,  who  was  chartjcd  by  them  with 
being  concerned  in  a  diflerent  S])ccics  of  trea- 
son, with  other  persons  of  quality,  by  cndea- 
Tourin"^  to  procure  an  invasion  from  France, 
two  years  before  the  assas-sination-plot  lirnke 
out,  thonp^h  tiir  John  Fen  wick  was  not  acciiFefl 
by  Gooilman  and  Porter  till  that  lime.  True 
it  is,  that  the  said  Goodman  was  soon  afrcr  iii> 
6ttenced  by  a  biibe  and  fair  promises  (as  is 
snppo?M>d)  to  quit  the  kih:^dom,  thereby  to' pre- 
vent sir  John  Trnwick's  beings  convirtcd  of 
hi^  treason  by  the  common  law  ;'wliicli  oc- 
casioned the  parliament's  passin<^  a  l>iil  of  at- 
tainder ag^ainst  him,  which  took  awayjils  lite. 
But  that  was  not  the  case,  in  anv  respect, 
of  Bernardi,  Counter,  Meldrum,  Cliamboi's, 
Blackbimi,  and  Cusscis,  or  any  of  them  :  nei- 
ther was  Goodman  e%er  so  much  as  mcntiuncd 
or  charged  with  the  knowlctlge  of,  or  of  lieiug 
in  any  maiuicr  concnnicd  in  the  assassination - 
plot  ;  so  that  he  neither  was,  nor.  could  be  ^n 
evidence  against  any  one  upon  that  account. 

Pro\  ideiice  was  so  gracious,  merciful  and  in- 
dulgent to  major  Bernanii,  in  the  midst  of  his 
misc'ries  and  afflictions  in  Newq^ate,  as  to  pro- 
vide him  a  second  virtuous,  kind  and  fovincf 
wife,  in  the  year  of  our  Lord  1710,  who  hath 
provetl  to  him  a  true  helpmeet,  havin^r  by  her 
good  mauaj^oment  and  iiidostry,  and  great  and 
kind  care  of'  him,  contributed  much  tu  his  sup- 
port and  comfort,  and  to  the  keeping  of  his 
iieart  from  breaking,  tindei;  the  worst  of  .his 
hardships,  difficulties  and  distress.  And  by  her 
lie  bath  had,  during  his  cnnfinemeni  in  iVew-> 
gate,  ten  children,  who  in  respect  of  charge  and 
expcnce  under  his  strait  and  ^narrow  circum- 
stances, an<l  under  his  immurement,  or  being 
buried  alive,  have  been  no  small  burthen  to  him  ; 
yet  he  esteems  them  great  blessings  bestowed 
upon  him  by  Almighty  God,  at  whrisetribunal, 
after  this  miserable  aiifl  wretched  life  ended,  he 
knows  he  shall  appear  innocent  of  the  heinous 
and  monstrous  crime  laid  to  his  charge ;  and 
forthe  bare  mistaken  suspicion  of  which  he  hath 


not  put  in  dun^ns,  or  otherwise  ill  used  In 
prison  ;  but  he  is  always  handsomely  provided 
for,  and  allpwed  a  liberal  subsistence  by  the 
government  according  to  his  rank  and  degree : 
But  in  our  said  English  Bastile  no  state- prisoner 
has  any  allowance  made  him  from  the  govern- 
ment, and  in  case  he  hath  not  of  his  own,  he 
must  lire  upon  charity,  if  he  can  l>eso  happy 
as  to  meet  with  it,  or  starve :    and  in  case  ne 
hath  any  known  substance^'  he  must  expect  to 
he  squeezed  out  of  a  great  part  of  it,  or  he  shall 
have  much  worse  losing  than  many  a  tolera- 
ble dog-kennel  of  a  kind  good-nnturcd  country 
.csiqnire  would  make,  be  loaded  w-liU  irons,  and 
used  worse  than  a  dog.     And  u\\  tlii<i  is  per- 
niitted  or  conhivcd  at,  uitdcr  a  government,  the 
voicQ  of  whose  people  is  alinost  per))clually 
l)oasting  of  liherlyand  property,  tlic  words  li- 
berty and  property  being  ever  uppermost,  and 
at  their  tongues  cltd,  and  they  cons'. ant ly  ex-, 
clairning  against  arbitrary  power :    But  God 
ulonc  knows  the  sincerity  and  soundness,  orthe 
holloivness  and  deceit  fulness  of  nicn's  hearts. 
Can  it  be  accounted  for,  that  so  much  oppres- 
sion should' be  suffered  to  be  practised  in  a  free 
amrChristian  nation  (as  Fngland  is) ;  and,  on 
the  contrary,  that  so  much  humanity  and  refief 
should  be  sliewn  and  used  to  state- prisoners  in. 
distress  in  France,  under  an  absolute  and  arbi- 
trary government  ?  Sure  it  cannot  proceed  from 
the  trench  being  more  honest,  more  polite, 
more  humane,  less  malicious  and  revengeful, 
or  of  a  more  generous  and  Christian  temper, 
than  the  English.     VoY  my  part,  1  ani'so  fer 
from  asserting  it,  tlmt  I  u-i!l  nut  so  much  as 
think  it.     But  this  I  will  afHrm,  that  what  I 
have  liefore  observed  with  respect  to  the  differ- 
ent usage  of  prisoners,  in  the  two  several  bas- 
tiles  of    the  different  nations,  is    not    more 
strange  than  true.    Ai:d  now  1  have  notliing 
more  to  add  hereunto,  but  my  hope  and  eaniest 
desire,  that  such  as,  out  of  curiosity  or  other- 
wise, shall  give  themselves  the  trouble  to  read 
this  small  tract,  willbd'  pleased  to  judge  fa- 
vourably of  me.;  tq  which  intent  I  was  chiefly 
'  moved  nni)  induced  to  the  pains  of  writing  it  in 
my  old  age,  and  to  {yrevcnt  an  infamous  and 
(xfious  character  of  me  from  being  wrongfully 
and  injuriously  handed  down  and  transmitted 
ttj  posterity  ;  the  very  thoughts  of  which  ha^e 
been  more  grievous  to  my  mind,   and  mora 
piercing  and  wounding  to  my  spirit,  than  all 


in  three  reigns  (and  for  near  a  year  and  three     the  rest  of  my  hardships  and  sufl'erings,  which 


«|uarters  in  a  fourth)  been  so  severely  treated 
and  then  heshall,ifuot  sooner  delivered  by  any 
king  upon  earth,  God  Almighty's  vicegerent 
liere  below,  be  delivered  irom  the  English 
bastile  (vulgarly  called  Newgate)  by  the  great 
and  roercil'ul  God  himself  above,  the  king  of 
kin^,  and  only  ruler  of  princes.  It  may  not 
lie  improper  here  to  ilistinguish  our  said  Eng- 
lish bastile  from  that  in  France,  and  to  shew  in 
what  circumstances  they  materially  differ.  To 
which  ond  know,  cantkid  reader,  that  a  state- 
prisoner  in  the  Bastile  in  France  pays  not,  nor 
19  8qiiee7.cd  out  of  any  thing  for  his  lodi'tng, 
.meal,  drink,  or  ease,  nov  in  loaded  >vitb  irons, 
VOL.  XIII. 


Will  ever  be  the  case  of  a  man  well  b»»fn,  having 
an  honest  heart,  a  soldier,  anil  a  man  of  ho- 
nour. 8uch  a  man* can  ill  bear  reproach  and 
disgrace,  not  having  deserved  it,  and  to  whom 
his  good  name  and  fame  must  bu  ever  dearer, 
and  by  him  held  in  much  greater  esteem, 
than  any  other  thing  in  life,  nay,  even  than 
life  itself,  and  the  author  being  old,  as  be- 
fore mentioned,  and  (as  he  doth  hereby  frankly 
own)  unlearnctl,  and  not  skiljeil  in  letten**, 
bavins:  chieHy  been  trained  up  in  war,  and  not 
muchinschofarsliip,  he  humbly  hopes  the  same 
may  in  some  measure  plead  his  excuse  for  such 
defective  words  us  may  be  found  in  this  lils 
3E 


I  JAl^Il^  IL    Pr(^e«K%it  <wsi^  Ijfm 

iD'nlpr^uiMLto  hiiD,  ibt  am^  t^imn^  m.ikiff 
ihU  he  hath  UMrdbgr  fumtc^  ah^oit^l-bu 
co^tviiiporBirie«»  frietMit,  and  fjUpaiirtMyr,  WW 
hare  contribntfil  to  his  fappQCt  AirfU  mam 
~  niMer  o 


ihoi^  9lin«tire»  anclfocthe  plainiiw^.  aoJ  mn* 
ittoomctness  of  its  stib.  Vntnitbs  or  inisrv- 
|vinMi)tatiuiis  there  are  aone  in  it,  to  the  be:st  of 
m9  knowledge  and  memory ;  uor  hath  be  in- 
t^tjoDiiHy,  oVatallt  tpthebestof  hiaiudgm^iiti 
liSereiiMTflected  upon  any  persoo  wbonisoerer 
19  any  wise,  or  apoo  the  power,  justice,  or  wis- 
dpm  of  the  aereral  paiii^ents,  by  wjioie  re- 
newed actfs,  from  tin^e  to  time,  hi*  coofinemenl 
in  prison  hath  beeo  spun  ovt.  to  so  gre&t  a 
lapg^lfa :  Dor  upon' th^  courts  of  justice  aod 
IJarufd  judiges  presiding  therein,  who  bare  had 
the  several  opportonitieB  befoire-nentiDned  «f 
dpcharging  of  bailins  him  according  to  Jaw, 
liirtfaer  or  otherwise  than  as  any.  reflection  upon 


•H^ 


One  Tery  great  misfbrtoiie.  it.  hajji  beenlo 
the  author,  aM  the  last  that  he  wiH  tirooble  hii 
s^l^  withal ;  and  which  would  scarce,  in  tbe 
eUe^f  another,  be  deemed  m.mvMbctiinek  k|t 
rlLtber  on  the  eontriry.be  esteemed  a  very  greai 
Uessing.  fix.  That  he  hath  lired  to  so  gremt  an 
a^ysVK^  old  age,  which  most  peonle  woald  nsr 
tftiially  desire  to  do,  life  gensrallv  speskiDgi 
IteSng  sweet,  and  the  f  ery  thoughts  of  d^tb 
aohorrent  and  shocking  to  nature;  Ihoii^b 
(^»th,  when  all  other  friends  fml,  is  most  cer- 
tainly a  kind  and  sure  friend  anddeliferor  is 
^ff^  of  need,  from  chains  and  gaob,  sn  hell 
dpon  ea^th :  But  to  expbuo  and  make  out*  tbiit 
tfif  author's  baring,  lived  so  long  hath  been  a 


tQo  late  in  the  .day,  and  1 

him  to  hope  or  expect  to.malco  any.  aew  as- 

qpainlanoe  or. friends,  wherahy  homqf.nip 


iny  adraiitage  or  as^istiDoa 
Kfficttlt  circim 


di&ttlt  circumstances,^  wileH  An.  his  liNla 
tract  mav.  perchance  m^ho  bin  «ne  HmmIi 
among  tBo  geod^nat«rcd,  jpbubiom,  aaid  d^ 
TitaHe  part  of  mankind,  mm  ilbaUjBoihs  nd. 
«r  aH^  sense,  nstioa^  and.  feUowrfctHnf  of  mr 
other's  suffixing ;  nor  bo  peHhoC  tmimn  U 
a|l  humanity*  pityt  rmnmisiwHinii  nna  cmi- 
isioi»;  nor  piofane  that  saorad  pdilio^ii  thi 
inl'spraj[cr»viSf  Foigireiis.oorl 
we  rorgire  them  that  tn 


OS  jt  iSkloibe  feared  maoy  do,  by  hatmg  ilii^ 
their  mo«th9»  when  they  tkempeires,  with. 
haidea^  bef^  c»nnot  wtgif c  oyea  llw  imj 
cent  and  guiltless,  who  hate  not  tretpasni 
aoaiosl  theqi.  And  so  the  .author  coaBladfi 
with  biddiog  his  reader  heartily  AmwaiiSsA. 
in  a^ti^tation  of  the  truth  of  wihat  he  haowai^ 
hetakestbeixeedomtoaubacribe  hisnaioa. 
Newgate,  JoHWlttiWiMfc 

Miureli.],  17S8^ 

He  died  at  his  chambers  in  the  Pm^yadii. 
NewgiiV^  thebUer  end  of  Sc^Membcr,  iTMiii 
the  ^1  ycfkr  of  his  ag^  hovmg  beeo  ftsl*^ 
inrisoper  about  4a  yean  in  that  gaol,  «itbiil> 
trial  or  any  allowance  from  the  gowiHmsit 


396.  Proceedmgs  against  Sir  Duncan  Campbell,  and  other  H^ 
ritors  of  the  Shire  of  Argylc,  for  High-Treason  :*  1  &  « 
James.  VII.  (of  Scotland)  a.  p.  1686—1687.  [Now  firrt 
printed  from  the  Records  of  Justiciary  in  Edinburgh.} 


CvB^A.  JusTioiARiJE,  S.  D^  N^  Regis  tenta.  in. 
Pretorio  BurgI  de  Edinburgh,  quarlQ  die 
roeosis  January  1686,  per  nobilcm  et  po- 
tentem  comitem  Georgium  Comitcm  de 
Linlhli^w,  JusticiariuQi  Generalem,  et 
honorabiles  viros,  Jscobum  Foulis  dc  Col- 
lintouiie,  Justiciaiioe  Clcricum ;  DaTidem 
Baltbur  de  Forret;  llogerum  Hoge  de 
Uarciirss  ;  Johanem  Lockbart  de  Castle - 
hill ;  et  AlexaQdruin  Seattoune  de  Pit- 
meddcn  ;  Comissionarios  Jusiticiariie  dictc 
S.  D.  N.  UegU. 

Curia  legitime  aflfinnata. 

I/HE  said  day  anent  our  soTerait^ne  lords 
crimiiiall  letters  raised,  used,  and  execute  at 

•  "  Oct.  12,  ir>a5.  Sir  Duncan  Campbell,  of 
Aucliiubreck;  Air.  Alexander  Campliell,  Ad- 
vocate, and  many  other!*  of  tbat  birnanie,  are 
cited  on  GO  day  s  fur  j  aiuing  wiib  Argy  le.  A  ud 
being  called  at  Crimiual  Court  ou  Uie  Htb  of 


tbe  instance  off  sir  George  M*KeBBi%  if 
Rosebaugli,  liis  roajestie's  adrocate,  for  itf 
hip^hnes  entreat  ogainst  sir  Duncan  Cam|MI« 
of  Aucbinbrcck ;  Archibald  Campbell,  sons  ts 
the  lord  Neill  Campbell;  Donald  Campbd, 
elder,  of  Barbreck ;  John  Canu)beU,  yonagsr, 
off  Melibrt ;  Archibald  Campbell,  off  Daas 
(prisoner) ;  John  Campbell,  of  Knap ;  mankr 
Alexander  Campbell,  aidvocat ;  Dougall  Camp- 
bell, off  Kelbeme,  younger ;  tbe  deeeast  Alex- 
ander M*c  Millan,  of  Drumore,  DomU  H'i 
Ncill,  of  Crier;  Collen  and  Duncan  Canp- 
bells  elder  and  youn<;er,  of  lllairintibert;  Due- 
can  Campbell,  of  Carridell,  elder;  Ajetandtf 
Campbell,  of  Marr ;  major  ■ 
son ;  captaine  John  Foulertouue ;  Mr. 


Decenil>er  to  be  forfeited  on  probatioD,  wa0 
continued  to  the  6lh  of  January,  1686* 

"Jan.  5tb,  16i!6.    At  Criminal  Co«fl»  li 
Duncan  Campbell,  of  Aucbinbreck,  and  I 
two  o^ore,  Arg^-leabice  heritoi^,  1 
2 


^  High  Trms6n» 

Hit,  minyirttT ;   Mr.   Gedrge  Wisbwrt, 
rber ;  Mr.  AteXiirid^r  If  •»»>  ;     -  *  r^ 

John    GvUhrif'; -i-^—  John    Rcwtg^r, 

^otti^tjtne  ill  Uorronstotin^St  Ouner;   Watter 


A.  D.  1^6, 


[TOO, 


4lci<**f,  1686 »  «»«  torleittil  for  joiiiifi^  iHlh 
Argytit  in  bis  f«b^llidti.  Ttie  witoesses  ti^'nst 
itiens  v^er«  the  taird  i»r  EHan^rcig^,  ^c.  tli^o^h 
^mthr  ffocMB  or  Ireason  iheittM'Wcs.  Ammi  jf 
«t#>f*f«i,  wm  Om^MI,  of  Otter,  i»  hbse  estate 

H»  Ai^yle.     Tliffe  were  sundry 

•ppnrfiu  nejrs  nnriofrgf  the  foHi'ited,  ivhofie  stT- 
4X>nd  brotJicri  i^ere  on  the  kin^^«  side  wKh 
^tJiale,  It  were  but  charily  tr*  enco«f»g€  tfjetti, 
€d  nmke  them  dontt^m  to  tbeir  bfolfaers  Ibr- 

^^d|r^  is  forf'eiteil  ft>r  Mi^  With  Ar^yh ;  but 
^K  relies  on  a  promise  of  the  maix^tir^.  of  Athde's 
^P  gtet  turn  a  remis^on.*'     FoimiainhAlI. 

*'  J«D.  i,  t686.  The  Adrncate  pmdti<*e()  ati 
id^ictmptit  upon  the  stf  it'C  of  rebel Mon  ag^amst 
Campheit  and  oihan.     Tlrerc  are  a  ia«t  tj^niiy 

A^iMincpm  t'  _    'i  "■"    ■  .■^'  :::..:..,.,- 

1  Ihifit^ol  I 

the  lianie  tit  'L-i;hjkjiii.      i  iiuiiu:  imil  muiiiu  <iit 

m  of  must  note :  Sir  Duttean  Campbell,  of 
brcck ;  ^^  Campbell,  of  Btrbrt-ck ; 
h,  Cttn»|ib€;ll,  scVft  to  lord  Neil  Cariip- 
lom  we  had  forft*iied  brfbro,  and  h«uv 
IricQinpikin  ay^aiii  her*?  I  know  not;  CnmjiFjcllj 

JQfing:er,  of  M'elfort ;  Cam pbcll^  ot  Ktmn  i  M  r* 
lexiinder  Campbell,  AdTocaic;  Campbell,  of 
*ilberry,  yonnij^r;  Alexander  ManjiUlan,  nf 
lutnmorir;  David  McNeil,  of  Crer;  Duncait 
ini^bdt^  of  Carridel;  Alexander  Camplicll, 
^'  lleoryson;  captain  Joliti  Ful- 

Ui  Wishai-t,  (1  fancy  it  ought  tn 

Ik-  '  '^T      Alexander  llaj^tie, 

ftf '  1 ,  of  Lapness ;  cap- 

lai.*^<M.L4  iji^i.i  ^  ,  i  ,t  ,>.  n  CtiupbelUentutiitHjly 
called  liluck  Ktrif'k;  I'ntrick  M^Rater,  of 
loeLffeAnie;  AichTbald  M*LevennK"k,  of  Otib  ; 

iTer  M*Iver  alias  Canipbetl,  of  Aishness  ; 

GbuOiptt^^  of  Earnathen  ;    Campbell,  of 

Sifdaf eti ;  — «^  Ker,  of  Kerstand^  >oun;;cr ; 
f^hn  Campbell,  of  Darj^adiie;  lit.  Cumpbelf, 
'  >Thcr;  DiigJii  >!actarish,  of  DuDBrdrie; 

^Jacarter,  esptain  of  the  late  Argyle. 
'*  there  is  nothing  of  probation  against  those 
fenons  in  the  Heg-isters  ;  hut  tliuy  are  remitted 
fti  tlie  sssize,  who  bring  them  in  aa  beingf  g'uitiy 
IB  the  rebellion  witb  the  eafi  of  Argyte,  and  the 
Lofdi  sentenced  Ibem  to  be  executed  and  de- 
ioittaud  is  traitors  when  apprehended  in  cuan- 


Jaif,  l&tb.  Duncan  Campbell,  of  AUeu- 
greng,  youngfer,  coofeisetti  bis  acce«aion  to  the 
bit  earl  of  Ar^^yle's  rebeUion,  caats  bimself 
•poti  the  king^V  mercy.  He,  with  bis  father 
Cf'  Ml,  of  Allengreig",  are  sentenced  to 

,ht\y  (^,  at  rhe<%x>s<j  of  Edinburi^h, 
inc.    And  l>e- 
i;  Canipliel), 
;  Can'p'Jeir,  ct  0aigdjtru  i  Maokchlao, 


Bfo#ae:  " ^  Holiiert  Efphiwrnne,   pCj 

Lapness ;  captain ■ — - —  capmin  John  fl"* 

dry,    in    UorrousUiunea ;     Puirick    Camn 
eatfed  DIack  Falrick,  %oae  to  Mr.  John  Vn 


of  Bamaj^pid  ;  M^clachlan,  of  Dtinad  ;  Catnb*  j 
}^II,  of  Blairin-tibbert,  were  sentenced  to  be] 
executed  and  denieaaed,  (§tc.  in  cemmon  for^,  I 
"i^hift  Fs  all  I  meet  with  as  to  the  ^ntlememj 
cboeerned  #itb  Argyle  Ibta  year:  we  shkUJ 
meet  with  some  more  next  jear  ;  it  wai  their  ] 
estates  now  tUey  were  «!eekiiTSf  for  more  tliaQ  j 
iLeir blood.**    S  Wodrow,  587. 

I  h*-    "  *  rtiserred  that  these  proceed ingi  I 
arc  I  hy  Burnet  (who,  indeed^  wai  ] 

upon  ;;iK  ^^...luient  of  Europe  when  tliey  oie* 
curred)  or  by  Mr*  Laing:  yet  several  parti* 
culars  in  these  proreedlu^s,   biy:hly   illustrate  i 
the  cliaractfer  as  to  statt  proseeutious,  of  kin^  J 
J^mes  tlie  Fth*s  ^ovemnietit  tu  Scotland  ;  ana  j 
<!»f  the  pannds  Included  in  the  dittay  of  tbis  fiiit^ 
caie,  some  were  absent,  and  some  were  dead  i  \ 
of  some  the  abodes,   of  some  the  Christian  ] 
miines,  aild  of  some  the  surnames  nre  ontitted^ 
•     '    '       nnccedin^s  '      t  'Us,  ofj 

;,  exhibit  a  i  lucle,  i 

nrci^  (III    nil'  iKui    id    tlit^ 


rri;  us'TU 


mm  to  eonvu  i 


crown,  of  two  persun^j  charged  uiih  rebellion, 
who  ^ere  tried  witbin  a   forlnf)**   •>'^■'^  the  \ 
crown  bad  bad  Uie  l>enefit  of  t  nony 

fur  the  conviction  rd'  others  *%li'  j  irgt'4 

to  be  tlieir  a«;8oci:ttes,  and  who  it  should  seecit 
were  their  utr^bbour^,  tht^tr  friends,  and  thc(r 
rein  lives. 

In  the  flr^t  act  of  the  second  ^ssion  of  the 
first  (and  only)  parliament  <»f  Ling  Jan^es  tbo 
7th,  ldS6,  (.ict  of  Dissolutiou  of  the  Lauds  df  | 
Cesnock  and  Duclml) ;  and  also  in  the  uinili 
act  of  the  same  se!*;ion  (Act  of  Annescation  oi  | 
the  Baronies  of  Muirhall  und  ^letfort  to  the 
crown)  it  appears  that  Jamek  had  (March  iQib, 
itjS6j  jifraiiud  to  MeUbrl  the  lands  of  sir  Duu- 
cau  Cnmpbell  and  other  pannels  named  in  tbim 
tirst  dittav;  nnd  also  of  Culin  Campbell,  elder, 
of  Allen flfreig^,  and  Duncan  Cftmph<dl,  youngcrf 
thereof,  *'  which  fell  in  his  majesty's  bands  by 
the  foifeitnre  of  the  forenjimed  persons/*  Tbb 
unspurinsj'  rajiacity  of  the  court  devoured  at 
oil  re  the  jackal  I  and  bis  prey* 

See,  also.  Act  18,    uf  the  sec<md  seasiofi  of  i 
the  first  (and  only)  parliament  of  king  Wdliaitt 
and  queen  Mary,"  4.  d.  1(590:  '  Act  rencindin^  1 
*■  the  Forfeitures  and  pine«  past  since  1665,' 

Patrick  Campbell,  vvho  was  produced  as  % 
witness  on  the  part  of  the  crown,  upon  the 
trial  of  Campbell,  of  f>ah,  aud  others,  was,  ii 
appears,  at  that  time  himself  under  ^enietice  of 
death.  In  the  act  rescinding  tbe  forfeiture  of 
Fletcher  of  Multoun  (chap.  16,  of  king  VVilliaiit , 
and  queen  Mary 'ft  first  parliament)  on«;  of  the  4 
grounds  of  rerersiug  tbejudijment  of  Mr.  Flet- 
cher is  stated  to  be,  that  me  witness  against 
him  *vas  under  the  terror  ol^  death,  and  tcmp« 
tation  of  a  remission  aa  staodiog  charged  witli 
and  prisoner  for  tbe  iame  alte^  Crimea)  and 
not  pardoned  tOl  be  had  depontd  10  r 


I  JAMES>  II.    Proceedings  MgaiuH  Sfr D.  Campbell  and'otherSf-  [7R 

F^if vit  to  admitt  the  sainen  to. the  kM»M||re 
.off.  line  assize,  and  upoo'  tlie  yerdivt  of  tbe  io- 

3 ucst. finding  the  samcp  to  be  protine,  tbe 
oum  and  sentence  of  fortiuiltiire  onghito  prs- 
ceeti,  and  be  ^iven  and  prouounoed  in  tbe  mat 
nianner  as  iff  tbe  penons  accused  bade  cen- 
peired  and  were  present:  Nevertheless,  il  isof 
veritiej  that  the  saids  sir  Dancan  CampbaU, 
A rchilNLid  Campbell,  and  haiU  remaneDt  nr- 
sons  defenders,  shackeing  off  all  fear  of  U«d, 
respect  and  regaird  to  his  raajestte*8  antbarilii 
and  laws,  have  presumed  to  oomitte  and  are 
guiltie  off  the  saids  cry mes  in  aiia  farr  as  tbjtr 
being  in  tbe  year  1683  years,  ane  hellisb  aad 
damnable  plott  and  couspimcie  entered  into 
by  the  late.earles  of  8hattsberry,  Essex,  ir- 
l?yll,  and   other  rebells,  subjects  of  this  Im 
inajeslie*s  kingdomes  of  Scotland  and  Enghod, 
fur  killing  and  murdering,  at  least  wtmf 
upon  his  majestie's  sacred   persone  and  hi 
royaH  brother,  our  latte  gracious  soreraq||t 
king  Charles  the  second,'  and  for  raiwiog  dfii 
i«  arr  and  rebellion  in  both  kingdomes,  ud  Jbr 
iurnishing  men,  mouev>  ships,  and  armci  to 
the  laite  earle  of  Argyle,  for  that  effect,  Mi 
accordingly  tlie  said  laite  earle  of  ATfvk^ni 
severall  others,  rebells  and  traitors  with  tliai« 
did  most  trcasonablie  inxade  this  his  majttte^ 
kingdome  with  men,  shi|>s,  armes,  and  anooi* 
tione,  and  landed  with  them  in  the  west  high- 
lands off  Scotland,  upon  tlie  day  af 
May  last;   and  no  sooner  bade  they  lioM 
then  the  hail  I  remanent  persons  defenders  nm 
and  joyned  in  open  armes  and  rehellione  wiik 
them,  and  did  convocat  and  gather  togeUief 
his  majestic's  leidircs  to  the  number  off 

thousands,  wiiliin  the  shyres  of  Argylle 
Tdrbat  hiLrhJands,  and  isles  therabout,  against 
his  majestic  and  his  autUoritie,  did  issue  I'uitli 
treasonable  proclamations  and  declarations,  did 
take  in  and  inaintaiiie  forts,  strengths,  and  gar- 
risons against  his  niajcstie  and  his  forces,  did 
robb  and  jil  under  the  goods  and  houss  of  his  omp 
Jestie's  guod  subjects,  randevouzeil  and  exer* 
cised  themselvia,  did  scouit  lurth,  kill  aad 
murder  severails  otf  his  niajeatie's  good  sub- 
jects, and  did  continew  in  oj>en  and  aroued 
rebellion  against  his  majestieand  his  autboritie, 
comilling  all  acts  of  hostilitie  and  hi^h  trca- 
sone,  untill  at  leuth  ihey  were  dissipat  and 
defoate  ;  and  tbe  saids  liaill  foruamed  persons 
did  most  trcasonablie  harbour,  recept,  inber- 
comon,  converse,  and  correspond  with,  and  did 
abaite,  assist,  suiilie,  gave  help,  redd,  couodll, 
mcatt  and  drink,  releiffe  and  contort  to  difi 
saids  luitc  eartoil'Argyle,  sir  John  Cochran,  uff 
Ochihrie;  sir  I'alrick  Hume,  of  Pol  wart; 
Denholme,  off  Weslsheills ;  and  others,  forfault 
and  declareil  traitors,  in  company  with  bim  ill 
the  said  moneth  of  Alay  and  June  last,  witbia 
the  saitis  western  highlands  and,  isles  did  not 
exact  dilligence  in  searching  and  appreliendiog 
of  them,  and  expelling  them  furth  of  the  coon- 
trey,  nor  gave  not  tymeous  notice  nor  intelli- 
gence to  our  niinysters  and  oflicers  for  ibit 
effect,  Tbrow  the  docing  and  committim^ 
whereof,  or  auc  or  other  of  the  saids  dcedllM 


T91]     . 

bell;  Donald  Campbell,  of  Relnab- 

bie,,youngei  ;  : l*atrick|]U^'lj'tbur, 

.of  Inchrine;  Arcbibald  l\I*Ilvcmoch,  of 
Oattcr;  Alexander  Forrester,  of  Knockreoch-' 
lieg;  ]vor  Al^lvcr. alios  Campbt'll,  of' Asknish  ; 
the  deceased  'Diigall  M'Avish,  of  Dunai^drie ; 
.  >li)exander  Campl.)cil,  of  Cunachan;  the  de- 
ceased Dugall  Campbell,  of  Auchterearlie ;  — 

.  •= off  Mielvemochi  I^cill  Campbell,  of  En- 

sachan;    Collioe  .Camnhell,  pf   Allangreig^ 
elder ;    Archibald  Campneli,  sone  to  Mr.Vohn 

Campbell ;  John  Campbell,  of  Kildalvie ;  

Kerr,  of  KerslantI,  younger ; , John  Nisbct ;  — 

• Fleming;  — < John  Jamesone, 

..ill  Borrowstounes;  Archibald  Cam|)bell,  off 
Auchtermore;  John  Campbell,  of  Dargachic; 
.  Jtobert,  Donald,  Archibald  and  Hugh  Campr 
bells,  iiis  brethren ;  Alexander  M* Arthur,  cap- 
.  tain  to  the  late.Argyle  ;  John  Gilisone,  son  to 
Andrew  Gibsone,  mercband,  in  Glasgow  ; 
Donald  M*lIvornock,  off  Ardmacbrcck ;*  make 
and  nientione,  That  where  notwithstanding  be 
the  common  law,  laws  an<!  acts  off  parliament 
off  this  his  raajestie's  kingdome,  and  cumstant 
pracltq  thereof,  particularlic  be  the. third  act 
first  parliament  and  tbrettie  sevcnt  act  second 
parliament  of  king  James  the  first,  and  be  the 
foiirteinth  act,  sixt  parliament  and  fburtie  nynt 
act  tweht  parliament  king  James  the  second, 
'.  nyntie  scrent  act  scyent  parliament  king  James 
thefylh,  and  ane  hundred  and  fourtie  fonrtact 
.twelt  parliament  king  James  the  sixt,  and  fyi\h 
act  iirst  sessione  first  parliament  king  Charles 
.  the  second,  the  ryseing  of  his  majesiie's  sub- 
jects, or  any  number  off  them,  the  joyneing  and 
.assembling  tonrcther  in  armes,  without  and 
contrary  to  his  majestic's  coiuand,  warrand, 
and  authoritie,  and  the  abaitteing,  reccpting, 
assisteing,  intercomoning,  and  kcciiing  cor- 
resnundcnce  with  such  rebells,  supplieiug  them 
with  rcil,  help  or  councill,  or  giveintf  them 
any  relieife  or  comfort,  or  the  not  searching  tor 
or  not  apprehending  of  them,  or  not  expelling 
them  forth  off  the  counlrey,  or  not  giving 
tymeoHs  intelligence  off  thcni  to  that  effect, 
are  most  detestable,  horrid,  heynous,  and  abo- 
minable crymcs  oif  rebellione,  troasone,  and 
lese  mnjestie,  and  arr  punishable  by  forfaulture 
off  lyfe,  lands,  and  goods ;  and  be  the  eleventh 
act  first  sessi'uie  second  parliament  king 
Charles  the  second,  it  is  statute  and  ordained, 
that  in  tjme  coming  in  all  cases  of  treasonable 
ryseing  ui  amies,  and  open  and  manifest  re- 
hellione, against  his  majestic,  his  advocat  ifor 
the  tyme  may,  and  ought  to  insist  against,  and 
prosecute  snch  pei-sons  as  he  shall  be  ordered 
be  his  inajcstie  or  his  pri\ic  councill  lo  {lersue; 
and  iff  the^  be  cited  and  doe  not  compear,  the 
justices,  notwithstanding  of  iher  abs4'nces,  may 
and  ought  to  proceed  to  consider  and  give  tlicr 
iiitcilocutor  upon  the  lyhcll,  and  iff  it  bv.  found 

*  Tiic  same  names  appear  in  different  places 
lo  hi'  didcTenlly  spelled  in  the  originals. 
It  is  not  al\va\'s  easy  to  decypher  the  MS. 
Where  blank  spaces  appear  in  this  text  ihc-y 
occur  in  the  originals. 


for  High  Treason. 

lir  Dancan  Campbell  and  Archibald 
ell,  and  liaill  remanent  {lersons  above 
hare  comitted  the  cryines  and  paines 
li  treaaone,  rebeUione,  and  lease  ma- 
nd  ar  actors  airt  and  pairt  theroff,  which 
)uml  by  ane  assyse,  ttiey  ought  to  be 
nI  with  lyt'e,  lands,  and  goods,  to  tlie 
,nd  example  off  others  to  committ  the 
irefter. 

Uipettie^sAdvocai  produced  the  criminal 
with  the  executions  theroff,  duly  exe- 
id  indorsit  against  the  saids  deicndera, 
nearest  of  kine  of  such  of  them  as  ar 
y  a  puraevant  and  trumpeter,  with  dis- 
coat,  sound  of  trumpett,  oppen  piocla- 
i,  and  useingother  solieinnitics  necessar ; 
red  lykwayes  Patrick  Wilsone  Carrick 
ot  executor  of  the  saids  letters  with 
I  Hoome  pursevant  and  Alcx- 

I'Naughtoune,  indwaller  in  Edinburgh ; 
L^lle  Chapman,  iu  Leith  ;  James  Keilo, 
er,  in  Edinburgh ;  James  Leith,  coach- 
rounger;  and  John  Goodwillie,  trum- 
bis  witness,  and  being  solemn! ie  sworne 
»ce  of  the  justices  and  assyse  made  faith 
« truth  and  Teritie  off  the  samen  in  all 

MajeslicU  Advocat  l^kways  produced 
of  his  majestie's  pri?ic  council  1  for  per- 
the  persons  ly belled,  wberoff  the  ten- 
)ws: 

Edinburgh,  September  11,  1685. 
Lords  of  the  cumittc  of  his  majes- 
'ivie  counriU  for  publict  affairs,  doe 
gi?e  order  and  warrand  to  his  ma- 
ul vocat  for  processing  befor  tiic  jus- 
lir    Duncan    Campbell,    off   Auchin- 

■  Campbell,  off  Barhreok  ; 

mpbell,  of  Knap  ;  and  all  otlicr  persons 
informed  to  have  been  engad;;ed  with 
in  the  laite  rebelliouc,  befor  the  lord 
^nerall,  justice  clerk,  and  rnnnnent 
sioiiers  of  justiciarie,  upon  the  head  off 
.'  and  rebeliinne,  and  pioviously  to  cxa- 
Ittuesses  therranent  befor  the  saids 
•nfornic  to  his  mnjcstios  letter.  Ex- 
by  me.  Sic  Suhcrifii/ur^ 

CoLUNE  M*Kenzie,  CI.  St.  Con. 

laill  persona  insisted  against  by  his  ma- 
adfocate,  7)rfV/io  /oco,  ffor  thor  ibrfanl- 
his  dyctt  li«)llow :  sir  Duncan  Cninphell, 
linbreck  ;  Donald  Campbt^ll,  oiF  liur- 
3Jr.  Archibald  C!umpbell,  .son  to  ihe 
li  Campbell ;  John  CamplK-tl,  younger, 
fort;  John  Cambell,  of  Knap;  Air. 
er  Campbell,  advocat ;  l)ug:ill  Cain- 
ff  Kilberry,  younger;  Alexander 
in,  off  Drumoir  ;  Donald  M-Neili,  of 
Duncan  Campliell,  off  Carridell  ;  Alox- 

ampbcll,  off  Oatler ;    Major 

one  ;  captaiuv  John  Foulcrloiino ;  Mr. 
Wishart,  preacher;  Air.  Alexander 
;  Robert  Elphingstouno,  olf  Lapncs  ; 
i  John  Henry  ;  Patrick  Campbell,  sone 
Jobo  CmBi£>bell,  called  Black  Patrick ; 


A.  D.  1G88. 


FTM 


Patrick  M<Arthur,  off  Inchrenie,  John  M<  11- 
bernock,  of  Oab,  Jver  M^Iver  alias  Campbell, 
off  Asknish  ;  Dugall  M^Tavish,  off  Dunardre  ; 
Neill   Campbell,  off  £?narchan;  *  ■    - 

Campbell,   of  KilMavin ; Kerr,  dS 

Kersland,  younger ;  ■  Fley meing ;  John 

Jamesone,  in  Borrowstonnes  ;  John  Campbell^ 
off  Dargashie ;  Robert  Campbell,  his  brother; 
Alexander  M'Arthur,  captaiue  to  the  late  Ar- 
gyle ;  John  Roger,  guner,  sometyme  in  Bor^- 
rowstoones;  and  Walter  Brown.  His  m^- 
jeslie's  advocat  declares  he  insists  against  the 
fornamed  persons  for  their  being  in  rebellione 
with  the  late  Argy  Ie  in  maner  mentioned  in  their 
dittay.  And  the  saiils  haill  fornamed  persons,  as 
also  Mr.  Thomas  Forrester,  minister  ;  John 
Guthrie,  Alexander  Campbell,  off  Sonnachan; 
John  Nisliitt ;  and  Donald  M'  Ilvernick,  of  Ard- 
mabrick ;  being  oft  tymesi called  to  have  com<> 
peired  befor  the  saids  lords  this  day  and  place 
m  the  hour  of  canse,  to  have  underly  en  the  law 
for  the  treason  above  specified,  mentioned  ia 
ther  dittay,  as  they  who  wer  lawfullie  for 
that  effect  lawfull  tyme  of  day  bidden,  and 
they  nor  non  of  them  comiieired.  The  lords  jus- 
tice general!  and  justice  clerk,  and  remanent 
commissioners  of  iusticiarie,  therfor  be  the 
mouth  of  John  M'Kenzie,  macer  to  the  court, 
decerned  and  adjudged  the  haill  fornamed  per- 
sons to  be  ontlyes  and  fugitives  from  his  raa- 
jestie^s  lawes,  and  ordained  them  to  be  put  to 
the  home,  and  all  ther  moveable  goods  and 
gear  to  be  escheat  and  inbrought  to  his  ma* 
jeslic'suse,  for  ther  contempt  and  disobedience, 
which  was  pronounced  for  doome. 

Interloquitor. 
The  Lords,  conforme.to  the  tenor  t)ff  the  for* 
said  elcvent  act,  first  sessione,  second  |»arlia- 
ment  king  Charles  the  tiJecond,  did  proceed  to 
consider  and  give  ther  Interlocutor  upon  the 
lybel  against  the  persons  insisted  against, 
wheroff  the  tenor  ffoik^wes : — ^The  Lords  Jus- 
lice  Cenerall,  Justice  Clerk,  and  Commission- 
ers off  Justiciarie,  haveing  considered  tlie  ly- 
l»cll  pcrsowed  by  his  majestie's  advocat  against 
the  |>ersons  alime  named,  with  his  majestie's 
ailvfirates  declaration,  wherby  he  rettncts  the 
lybell  in  ther  being  in  the  reheltione  with  the 
late  Argyle  relivant,  and  reraitts  the  samen  t» 
the  knowledge  of  ane  Assyse. 

AssisA. 
Sir  Wm.  Hop,  off  Grantoun; 
Francis  Ross,  off  Auchlossio  ; 
Robert  Hcpburne,  off  Barfoord  ; 
John  Skeen,  off  Hallyairds ; 
Alexander  llenrysone,  off  Newhavin; 
Sir  Wm.  Moray,  of  Newtounc ; 
Sir  John  Ramsay,  off  Why  thill ; 
Sir  Jas.  Riichardsone,  off  Smittoune; 
Walter  Scrot,  of  Lethan  ; 
David  llepburne,  of  Randefoord  ; 
Patrick  Skir%ine,  of  St.  Kaitliernf  ; 
James  Kerr,  Barber ; 
Joh:i  Lindsay,  Merlchand ; 
-William  Browne,  Baxter; 
James  Bickertouoe,  Wright 


«l] 


fl  JAMES  n.     Proceedings  4ffma  Sir  D.  Campbell  and  oAe 


Whe  Amy^  ]Awrullie«wonie,  ao  oUigadOM  off 
4iw  in  l£e  contrair. 

His  A[ajeUie*t  Advocate  fw  jMrobalioqe  ad- 
minced  the  wittnesaes,  efter  depaoii^,  who  wer 
jiil  lawl'iillie  sivorne,  purged  off  malioe,  pr^u- 
4ioe,  iU-\iill,  bataac),  aod  j;iartiaU  oounoiil,  -tliey 
aretoaaj-: 

Duncan  Campbell,  younger,  off  Allangreig, 
aged  tweotie- eight  yean,  or  tberiiy,  marrieil, 
.pureed  aod  swome,  depons,  That  ^e  did  see 
air  Duoean  Oainubdl,  off  Anehinbreck,  in  com- 
.pany  with  Anrbioaid  laite  eaile  off  Argyle,  and 
witli  the  oiher  rebel  Is,  in  June  last ;  and  that 
be  did  see  him  in  armesy^nd  particularlie  at 
■Tarbit,  and  tlie  castle  ot""  Allaiigrde ;  depons 
'that  he  did  see  Donald  Campbell,  offBarbneck, 
in  company  with  the  saids  rebells,  i«  jirroes  at 
Tarfiat;  depones  he  saw  Mr.  ArchbaldCamp- 
beli,  sone'  to  the  lord  Neill  Campbell,  armed 
with  a  sword,  with  the  rebells  at  Tarlwt,  and 
4hat  he  did  see  John  Campliell,  younger,  off 
^elforty  in  company  with  the  ribefls,  and  lyk- 

Vays  sawe Campbell,  of  Knap,  in  cora- 

jiany  with  the  rebells,  in  armes  at  the  place  ; 
depones,  he  saw  Mr.  Alexander  C^impbnl,  ad- 
Tocat,  in  company  with  the  rebells,  in  armes  at 
Tarbat;  depones  he  saw  Dugall  Cambell,  of 
fUUberry ;  Alexander  McMillan,  off  Dunmoir ; 
Donald  M'Ncill,  of  Creir ;  Duncan  Campbell, 
off  Carridell  *,  Alexander  Campbell,  of  Ottar ; 
Captaine  John  Fouiertoone ;  llobert  Elpbins- 
tounoy  of  Lapnes ;  Pattrick  Campbell,  called 
Black  Patrick,  soiie  to  Mr.  John  Campbell ; 
Jubu  M'Artnre,  of  Inshrciiie;  Archibald  M^II- 
Tfiriiocli,  of  Oab;  JverM'lver,  allias  Camp- 
bell, off  Aishneitkb  ;  Dugall  M^Avisli,  off  Dru- 

nanirie  ;    Neill  CamMl,  off  J'^unachaii ;  

Campliell,  off  KilUleviu  ;  Ker,  of  Kers- 

wald,  younger;  John  Campbell,  off  Darga- 
shie ;  aud  Robeit  Campbell,  his  brother ; 
Alexander  M*Arturc,  captuiiie  to  the  laite  Ar- 
gyle ;  all  off  them  in  company  with  the  late 
Arg>lc,  auil  the  other  rebells,  in  armes,  in  June 
last,  in  the  West  ]Iighlands ;  particularlie  some 
cK  them  he  sawe  at  Turbat,  and  the  rest  off 
them  with  Allangreig,  cauia  patet ;  for  be  was 
present  and  saw  what  he  has  deponed,  aud 
lliis  is  tbe  truth  as  he  shall  answer  to  God  ; 
depones  he  knowcs  the  haill  persons  above 
named.  (Signed)  Duncan  Campbell. 
LiNLmiGOw,  I.  P.  D.  Com. 

Duncan  Campbell,  elder,  off  Allangreig,  aged 
fifiie-six  years,  or  therby,  maried,  purj^  and 
sworne,  fle[ioncs  that  he  sawe  sir  Duncan  Camp- 
bell, off  Auchinbreck;  Donahl  Cambell,  off 
Barbrcck ;  Mr.  Archibald  Cambell,  sone  to  the 
lord  Neill  Cambell;  John  Campbell,  younger, 
off  Mellbrt;  John  Cambell,  of  Knap;  Mr. 
Alexander  Cambell,  adrucat;  Duncan  Camp- 
bell, of  Kilberry,  younger  ;  Alexander  McMil- 
lan, off  Drumoir;  DenaM  McNeill,  off 
Crier ;  Duncan  Campbell,  of  Carriddl ;  Alex- 
ander Campbell   off  Oatter  ;   Major   

Henrysone;  captaine  John  Foulertoune ;  Mr. 
(jcorg  Wisbart;  Mr.AlexABderHMstiej  R«bert 


ElphiilMDc,  off  Lapnes;  cafrtaiBeJcfl 
Patrick  Cambell,  calM  Blaek  PMrk 
Mr.  Jobn  Campboll;  Ptelriok  M'i 
Inchretiy;  Ivor  M4ver,  nUiaa-Oan 
Asbnish;  Dueall  M'Anab,  «ff  1 
Neill  CampbelT,  off  Eonaehan  ;   Jo 

bell  of  JLildalivine ; Kerr,  off 

voDog^r;  JolmCanpbell,  off  Dares 
bert  Cambell,  his  brother ;  aM 
M^Arture,  captaine  to  tbe  laite  Argyl 
them  in  armes,  with  ArcfabaM  late  « 
cyle,  and  with  tbe  rest  off  tbe  rebell 
bat ;  and  att  aereraU  other  places,  ii 
highlands, tbe  tyme  ly belled;  dene 
ander  N*Artur  was  captaine  off  tbe 
Allangreig,  which  Argyle  keept  out  i 
king,  cauta  tecuritate  [poaaibly  fCM 
sawe  as  be  heir  deponed  ;  and  thui  a 
as  be  shall  answer  to  God, 

Sic  SubicribUur,        Collcc  Ca 
LdMLimoowy  1.  P.  I 

Archbald  M^ibban,  in  Cowall, 
dewell  parocb,  aged  46  years,  « 
maryed,  purged,  sworn ;  depons  be  \ 
Duncan  Campbell,  off  Anehinbreck 
Cambell,  of  Barbrrck;  Mr.  Arcbbs 
bell,  sone  to  tbe  lonl  Neill  Campbc 
CampbelF,  younger,  off  Melfort;  ^— 
boll,  of  Knap ;  Mr.  Alexander  Cam 
▼ocat;  Du^IICampbell,  off  Kilberry, 
Alexander  M*Millan,  off  Drummoir 
McNeill,  off  Crier;  Duncan  Campbe! 
ridell ;  Alexander  Campbell,  off  Date 

Ilenrysone;    Fuulertoune,  wl 

captaine ;  Mr.  Alexander  Haislie  ; 
Cambell  called  Black  Patrick,  son 
John  Campbell ;  Patrick  M'Arture,  <] 
nie ;  Archbald  M'llvernock,  off  (J 
M*Iver,  allias  Campbell,  off  Ashuisb 
MMvish,  off  Dunardric ;  Neill  Car 
Kuuachan ;  John  Cambell,  off  Ki 
John  Campbell  off  Dnrgabhie  ;  Hul 
bell,  his  brother ;  all  of  them  in 
with  Archibald  laite  earle  of  Argyle, 
rebells,  in  armes  in  Gleudewill,  *in  t 
June  last ;  and  this  is  the  truth,  a! 
answer  to  God.  Archibald  M'( 

LiNLnnGow,  1.  P.  D. 

William  Stcvinsone,  seaman,  in 
stouues,  aged  aughtein  yeares,  i 
pulled  and  sworne ;  depons,  that  he  i 
in  the  ship  called  the  Anna,  with  tbe 
off  Argyle,  and  the  other  rebells  in 
pany,  and  that  ther  came  alongst  n 
HI  tlic  ship  captaine  John  Henry, 
mate  to  the  shipe;  Mr.  Georg 
Kone  to  Mr.  William  Wishart,  mi 
Kioneill ;  Mr.  Alexander  Haistie,  a  ] 

Major Henrysoiit;  John  Rodg 

tyme  in  Borroustounes ;  Walter 
cnuper,  in  Kincanlin,  on  the  north 
Forth;  John  Jamesooc,  in  Bom 
whom  he  thinks  did  dwell  in  Ike  ft 


*  InprsesentiaJloimBMiuiij 
Oram. 


^  High  Trensom, 

wlien  Ai^lc  tftDtljt,  90fne  oirUn?ni  tanded  wiih 
liiin  to  sctW  him  Uy  laiiit^  oixl  lt>«  rest  keep«U 
the  shififi  ;  Mud  tliit  if  the  tnUb,  as  he  shuti  an- 
surer  la  Go<i  cauiA. 

Sk  Sitb§€rihiiur,      William  Stevi^nstoke* 
LiKUTH(H)tv,  I.  P,D.  Com* 

Arckbaid  Camphlt,  ofl^Datm,  aq^ed  29  ycnrs, 
ortli^by,  i«*rVfd,  jiurgc*!  iind  sworn,  depones 
h€  dill  see  sir  Duncan  Cam|i1»t]l|  off  Aticbin- 
brvcis ;  Dvri  ■ ''  itt>€ll,  oiF  Barbreck  ;  Mr. 
ArchidTild  1  neto  the  Inrd  Neill  Cam- 

bcl!;J'»lnidiii|Hirii,  >oirnger^ofr,Me1forl;  JolxD 
Camphell,  oftKtiatirMr.  A lexnnikr Campbell, 
adrocA^  D»HjnM  CamjiMI,  of  Kilberi  \%  jr.; 
Aiexinder  31*MUba,  off  Drumoir  ;  *Doija!il 
H'Neill,  off  Cri^r ;  Diincaa  CamplwH,  off 
ttrrid^ll  :  Alexander  Campbell,  off  Oiitler  ; 
Major  Hcnry!»anc;  captiine  Jt>hn  Foukrtoune  ; 
Robert  El{*tiiuc:»»ouf)e,  off  Lapaes  ;  Patrick 
Cuinbeti  called  Black  Patrick,  sotie  to  Mr, 
Jolin  CawiptK-U  ;  M*Artur,  off  Incbrenie  \ 
AlexaMrr  !>Mlverno€k,  off  Oab  ;  Iver  M*lvtr 
all  r  ;  !idl,off  Arsboish  ;  DuffaU  M'Avish, 
«it  ne  ;  Neill  Cariibell,  off  Eunachan  j 

John  tnupix'll,  off  Killilahine  ;  John  Camp- 
Wl,  off  Djirifashie ;  Ilobert  Cnmjiliell,  his 
bff  '^'  '  '  'Mil,  Alexander  M^Arture,  captatnc  off 
h\  ,  under  Arsryle  ;  and  all  off  them  in 

[\i  llie   laite'Argylo,   and  the  other 
t\\^t  »tl  Tai  halt  and  all  \{m  way  they  ivent 
|6  last ;  and  this  i^  the  truth  a«  he  shall 
i  to  God. 

iHcrihitur^  Arcudald  Cakbell. 

LDiLFTBcow,  I.  P.  J>.  Com. 

lit  M^Ittr^  in  ,  in  Glasric  parish, 

lonrtie  vears,  or  therby^  nia;rif.4l,  piir^^ed 
e,  deponent  he  did  see  Maj<w  Hen- 
ryvoiiein  company  with  therrbells,  in  Jimelast, 
ill  Af|fylc  shvre,  in  Cowall,  tnanneF,  on  horse 
tuiclc  t  and  lh»  is  the  truth,  a«i  he  shall  ansiver 
^  G^  ;   Depones  be  caimot  wreitL 

LiNUTHcow,  L  P,  D.  Com. 

^f'^Gibhon^m  Kilhnichael  Jo  Cowan, 

Lii^s,  unmarried,  pur^edand  s«vorn(^, 

he  did  sec  captaiuf  Jrihn  Henrysonp, 

_         ilb  Arg-yle^  and  llie  other  rebel  Is,  alt 

o<*h-head,  and  all  allong's  uiih  the  rebells 

last,  and  lykewajes  that  be  did  see 

John  Hrorysooe  in  armes  with  the  said 

atl  alloncpi ;  and   als^»  he  did   see  ca|»- 

Fimlkrtoune,  and Campbell, 

IKilldalf  ine,  all  allougjil  in  arme^  ^viih  the 

'  t  rebdU  ill  June  lost ;  and  this  is  the  truiii 

\  lie  shall  answer  to  God. 

^ic  SubicnbUur^  DttQALL  M 'Gibon, 

LwLrrriGow,  L  P.  D.  Com. 

Slier  leading  and  adduoelogf  off  the  qUk  pro- 
ne, the  lords  onlaines  the  assyseto  inclose, 
;  Iber  rerdktto  HMHTOir'at  two  o'ehiek 


il.  D;  1688. 


[7»- 


^liftfila  h»ir**intr  frtn^ulf nil  tln^  scTerall 
I  af  council!  |  f  Collin 

IkfOffBlni  I  !  ^  ampb«llf 

tiiw;  Aficbibiiid  OuDpbell^  ultDaaa^  Af^ 


chibAld  CafnpML  of  Aucblimmr  %   Archibak 
C*ampbeU  brother  lo  Dargvsliie,  defricfned  in 
the  act  of  couDdlt  in  Auchinbreck  ;  Donald 
Camplieil,   also    brother    to    D»n[ra^hie. 
^i^fOfd   in   the  act  off  cotineill   in  Stroudavin  ; 
with  ane  act  off  the  Leivtf?neiit  cotirt  of  Arpryt 
andTarbaf,  reJaicinf|'  to  ane  act  off  coonctirin 
favours  off  Hugh  Campbell^  anc  other  brotlieii 
off  Dargashtes,  desifjcaed  in  the  forc*soid  act  in 
Airdtarish,  ii]«on  the  cleariotf'  off  q'lk  designa 
tioue  ther  wes  wittiurss  swome  ;  they  for  tb» 
causs  and  eon  si  derations  nien1ione<]  in  the  saitf^ 
acts,  with  consent  off  his  niajesties  ad? ocat  ex-  * 
coses  tber  abstnce,  ami  continew  the    dyet 
against  Hugh  Cainpl>ell  till  the  twelt  instam-J 
and  aj^ainst  the  hiiill  other  persons  till  the  finst 
i\:\y  ot^  February  ni.tt  to  oi>tiie.  And  ako,  *^  itU  ' 
consent  off  his  majesties  advocat,  continews  the 
rlyett  against  Donald  Campbell,  of  Eafnahie, 
who  is  an  islamaii,  and  wns  not  citled  aithcr 
pergonallie  or  at  his  d walling^  house,  and  ag^uinsf  > 
whom  ther  is  no  sufficient  prohutione,  tillttie' 
said  first  day  of  February  nixt  to  come,  and  ez«  ' 
ctises  his  alienee. 

Tlie  Lonls  conti newest thed  yet  as  to  tlie  for« 
fanltures  off  Mr.  Thomas  Forrester,  minister  ; 
John  Guthrie  ;  Alexander  Campbell^  off  Bona* 
clian  ;  John  Nisl^ett  and  Donald  M'ltTcrnick,  j 
off  Ardmabreck  ;  and  the  deceast  Dugall  Camp- 
belli  off  Auchtcrharle,  till  Miinday  nixt,  and] 
lykwayes  Alexander  Forrester,  off  Koock-^ 
reocldicgf ;  till  the  said  dvet. 

The  said  day  anent  t\ic  criminal  proces  ofl 
treasooe  persewed  at  the  instance  off  sir  Gorg^J 
M'Kcnzie,  off  Rosebaugh,  his  fi«ij  est  ie's  ad - 
vocat,   against  the  deceast  Du^l I  Campliefl  ■ 
designed  off  Atighterhnrlie,  and  his  nearest  o| 
kine,  for  his  interest,  for  hisbetngaccessoriis^ 
to  or  engaijed  in  the  late  reliellione  with  Arch* 
baid  sometyme  earfe  of  Argyle,  io  manner  nieu«  j 
lioned  in  the  dlttay»  compeirand  his  roajestie*9{ 
[advocate]  for  his*  interest  as  persewer  on  the] 
one  pairt,  and  on  the  other  pairt  compeiredl 
Iver  M'lver  allia* Campbell,  brother  and  near*? 
est  off  kine off  the  said  defunct,  with  Mr.  Collin 
M'Kcuzie,  advocat,  hts  procurator,   and  gave 
in  a  (ictitione  to  the  sai«k  lords,  represcniing* 
and  declareiug  that   his  ehlcst  brother,  John  ] 
Campbell,  was  the  unconlrarerted  heritor  and  j 
proprietor  off  the  hiudii  off  Auchlerharlie,  rx- 
tending  to  a  merk  Uinil  holden  off  the  lafe  Ar* 
ejle,  and  haveing  laiily  dye<i  immeiHately  be- 
for  the  rubellione,  without  aires  off  his  own#  i 
body,  bis  second  hrollier,  who  ii  now  lyke-^ 
way es  dead,  is  indytcd  to  this  dyet^  and  tho'l 
petitioner  is  as  nearest  of  kine  cUted  fi*r  his  in-  . 
terest,  and  since  the  said  Dngall  bis  secoiiil  1 
brother  was  nether  infeO,  seasit,  nor  in  ma*  ' 
sessione  of  the  said  estaite,  and  that  the  relieU  j 
lione  fidlowed  imefliatly  eftcr  his  eldest  brd* 
thers  decease,  and  that  he  himself,  whoM 
la  we    is  uncomi*nverte<lfie  to  succcecJ  lo  hn 
eldest  brother  wuo  dyed  ln5»t,  rest  and  seascil, 
is  a  loyal  mthI  Imu  ,i  suhipot,  and  was  actuallie 
in  bis  nil  as  by  a  cerlificate^" 

nnder  the  ti  ck  Stewart,  ttff  BtiT*^ 

<  lachsDy  cgcDOflMkr '  tlT  the*  nuffiui^rt 


t 


799] 


1  JAMES  II. 


Proceedings  agai}:\! 


tirst  regiment,  and  daited  the  fy  tli  day  off  De- 
cember last  was  instructed,  therfor  he  craved 
that  since  tlio  his  said  brother  were  guihie,  yet 
that  his  forfuulture  could  produce  nothing  to 
liis  majestie,  he  huveing  nothing  in  his  iier^one' 
hut  mirrhttend  to  the  prejudice  off  the  peti- 
tioner ane  honest  and  loyall  subject.  That  thrr 
lo'ps  would  onlaine  ther  name  to  be  delete  out 
oft*  the  sumouds  and  sist  all  larder  prouedur 
against  him. 

The  lords  justice  general!  and  justice  clerk, 
and  commissioners  off  justiciarie,  haTeingcon- 
<i(lere<l  the  said  petiiione  and  disyre  thernf, 
•lelav  to  give  answer  therto,  but  remitt  the- 
civil!  interest  to  the  judge  ordinar  as  accords. 

Januarys,  16B7. 

The  pcr^ns  who  past  uf*on  the  Ass^'sim  .• 
the  An^ylc  heritors  Returned  ther  Venlict  . 
presence' oflT  the  saids  lords^  wherofl*tbe  tcii 
I'allowes  : 

Tlie  A^yse  haveing  elected  and  choscsi 
John    Hamsay  above  designed    chancd: 
tlicy  all  in  on  voice  ffind  sir  Duncan  Cam 
oft*  Auchinbreck  ;  Donald  Canipbel],  oU 
brock  ;  Mr.  Archibald  Campbell,  sonc 
lord  Neill  Campbell;  John  Canipl>e1l,  \" 
oH'  MelloH ;  John  Campbell,  of  Kii:.; 
Alexander  CampMI,  advocat ;  Dtii;:.!' 
bell,  of  Kill  berry  ;  Mr.  Alexander  91-' 
Dumoir;  Donald  M*Neill,  off  Crier  • 
Campbell,  ofl'  Carridell ;  Alexander  » 

offOattcr;  major Ilcnryso:' 

John     Foiilcrtouiie ;    Mr.    Cieo*. 
preacher;  Mr.  Alexander  Ilcasti« 
jdiistoune,  oin^apnes;  captainc 
Fatrick  Campbell,  sone  to  Mr.  .1 
called   BUick  Patrick;  ratiif!. 
Inchrcnie  ;   Archibald  M*llv« . 
Iver    M^Iver    alias  Campln- 
Diioall  M'Avish,  oif  Dunan 

bell,  off  Kvnaehan  ;  i 

dill  vine  ;  Kerr,  off  K- 

('ani|il)ell,  off  Dargashie  : 
his  brollier  ;  .ilexander  !M 
the  laile  ArgyU*,  (luiltit'  • 
trcasone  and  rebt'llione  l\ 
ill  respci'tthey  find  thesii. 
viiic,    and    lykwayes  lis 
John    Jamc>son,     in     l> 
Uoil;jiT,  (gunner, s<imet\  i- 
aii'd  Waller  Browne,  eh* 
not  guiltie ;  in  rcspfct   * 
probatione  led  against  ' 
wherof  this'  our   veni- 
named  sir  John  Hnm*-- 
bnri^b,  the  fburth  day  • 

Sic  SnOscribiluri 

The  Tx)rds  justice  v.  • 
commissioners  oft'juM 
tlie  vt'nhct  oft'  a^sysv 
sir  Dmu'ai)  Campbi'l 
nutd  Canipbell,  off  I 

liamplitll,  sone  tt»  i                             ^^^^ 
Julni  i-amplifll,  yois                               '   ^^,^,^,0-^ 
C>mpbcU,  ofl'  Kuapi  


youii-,  • 
off  V 
Diii:-.- 
CauMil" 
r-ijii  .•>:•• 
\\ish:..- 

J.::!:  . 
t  r   .'■ 
IV:. 

'•■! 
{     • 


Ml] 


fvt  High  Treason. 


A.  D.  1696. 


[8n« 


Che  samen  \n  recordit  upon  the  ffourtli  uf  Jan- 
uary instant. 

P^r JCBW— Sir  Georg  M'Kenzit,  of  Ros- 
hau|^li,  bit  mi^iflgtie's  ml?ocat. 

His  majestic*s  advocat  dccbires  be  insists 
a^inst  the  paunall  flTor  joynein^  with  the  hite 
earle  of  Argyle  in  inaner  mentioned  in  hiscon- 
lessione. 

The  lords  fQuds  the  dittay  roliTant  as  thr 
same  is  foundit  on  bis  confessione,  and  remiiUj 
the  same  to  the  knowledge  off  an  assj'se. 

ASSISA. 

Sir  William  H))pe,  of  Grantoune. 
Francis  Ross,  of  Aucblossin. 
Robert  Ifepurnc,  of  Bairford. 
John  Skeen,  of  Halyairds. 
Alex.  Henderson,  ot  Newha^en. 
Sir  Wm.  Murray,  of  Newtowne. 
Sir  John  Kamsav,  of  Why  thill. 
l4'alter  Scot,  of  Letham. 
David  Hepbnm,  of  Randerstonn. 
Andrew  Ker,  glofer. 
Flitrick  Skinrine,  of  St  Katherini. 
Janses  Ker,  barber, 
jfobn  Lindsay,  merchand. 
William  Browne,  baxter. 
James  Backertoune,  wright. 

Ti^e  Assyse  lawfuUie  swornc ;  no  objectione 
in  the  eootrair. 

His  Maje$tie*s  Advocat  for  probatione  ad- 
duced the  pannell's  owne  Confessione  and  the 
witnesses  efter  named,  wheroff  the  tenour  fol- 
lowes: 

Edinburgh,  Janwary  11,  1686. 

Id  presence  of  the  justices  and  assyse,  Col- 
lin Cambell,  elder,  off  Allangreig,  being  exa- 
mined, confesses.  That  he  uas  present  with 
the  late  earle  of  Argyle  and  the  other  rebells  in 
May  and  June  last,  m  Argyle,  Bute,  and  Tar- 
bat,  and  seTerall  other  places,  and  that  he  hade 
a  carrabine,  and  declares  he  is  heartilie  sorrie, 
and  kiees  God  and  his  majcstie  panloune  there- 
for, and  that  he  never  hade  designe  off  rebel - 
Kone  against  the  king's  majestie,  but  was 
abnsed  and  misled  by  bis  chieflfthe  lat  Argyle. 
Sk  Snbscribitur,  Collin  Campbell. — 

James  Ftbulit,  J.  Lockhart,  Dafid 
Balfour,  Roger  Hoge,  Alexander  Seat- 
toune,  Pattrick  Lyone. 

LiNLmioow. 

Arckbald  M^Gibbone,  in  the  paroch  of 
Glendewell,  aged  46  or  therby,  man-ied,  purg- 
ed, and  ewome,  depones  he  saw  Collin  Camp- 
belly  off  Allangreig,  elder,  in  company  with 
the  late  Argyle,  and  the  other  rebeiis  within 
the  isle  of  Bute,  in  June  last,  walking  up  and 
downe  and  conrersing  with  them ;  depones  he 
did  not  see  him  have  armes ;  and  tins  is  the 
truth  as  be  shall  answer  to  Gud. 

Sk  Subtcribitur^       Archbald  M'Gibcon. 

Hertor  M^Gibbon^  in  Cowall,  ajrpd  26,  or 
therby,  nnmarried,  purged  and  sworne,  de- 
VOL.  Xllf. 


pones  he  saw  CoUine  Campbell,  off  Allangreig« 
elder,  in  company  with  the  late  Argyle  and  the 
other  rebells,  within  the  isle  of  Bute,  in  Juna 
last,  walking  up  and  downe  conversing  with 
them,  but  remembers  not  iff  he  hade  any 
armes  ;  and  this  is  the  truth  as  he  shall  answer 
to  God. 

Sic  Subscribitur,  IIsctoR  M'GiBBON. 

LiNLrrHGow,  1.  P.  D.  Com. 

The  Lonis  ordaincs  the  assyse  to  inclose  and 
to  returnc  ther  verdict  the  morrow  at  twelve  &- 
clock. 

The  Lords  having  considred  ane  act  of  coun- 
cill  presented  for  Alexander  Forrester,  off 
Knock reocbbeg,  they  with  his  owne  and  his 
roajestie's  advocats  consent  continew  the  dyet 
against  him  ffor  his  alleadged  acccssione  to  the 
late  Argyll's  rebellione  till  the  last  Munday^  off 
March  nixt,  and  ordaines  him  to  find  cautione 
ffor  his  appearance  at  that  dyett,  and  therfor 
grants  him  letters  off  exculpatione  ffor  preveing 
his  defenss  against  the  said  day. 

The  Lords  continew  the  criminall  actione 
and  cause  depending  at  his  majestie's  aidvocata 
instance  agamst  Mr.  Thomas  Forrester,  mi- 
nister ;  John  Gutlirie  ;  Alexander  Campbell,  of 

Sonachan;    JohnNisbitt;  Dugall  M'll- 

vernock,  off  Ardmacbreck ;  the  deceast  Dugall 
Campbell,  off  Auchterharlie ;  ffor  ther  al- 
leadged accessione  to  the  late  Argyll's  rebel- 
lione, till  the  last  Munday  off  March  nizt. 

January  13<A,  1686. 

The  Persons  who  past  upon  the  Assyse  of 
Colline  Campbell,  of  Allangreg,  elder,  returned 
ther  Verdict  m  presence  of  the  lords,  wherof  the 
tenor  followes : 

The  Assyse  having  unanimously  elected  sir 
John  Ramsay,  off  Whythill,  ther  chancelar, 
flinds  Collin  Campbell,  elder,  of  Allangreg,  by 
bis  own  judiciall  confessione,  guiltv  off  being 
present  with  the  late  Argyle  ancf  the  other 
rebells,  in  May  and  June  last,  in  Argyle,  Bute, 
Tarbat,  and  severall  other  places,  and  that  he 
hade  a  carrabine,  and  off  conversing  with  the 
tbrsaids  rebells  in  Bute,  in  regaird  they  find 
the  same  sufficiently  provui,  they  purged  witt- 
nesses:  in  verficatione  wherof,  this  our  ver- 
dict written  be  Walter  Scot,  of  Letham,  is  sub- 
scry  bit  be  the  above-named  chancellour  at 
Edmburgh,  the  eleventh  day  off  January,  1686 
yeares. 

Sic  Subscribitur^        John  Ramsay,  Chan. 

The  Lorils  continew  the  pronunceing  off  doom 
and  sentence  against  the  said  Collin  Campbell, 
ofi'  Allangreig,  elder,  till  Munday  nixt 
Intra  n* 

Hugh  Campbell,  brother  to  John  Campbell, 
of  Dargashie,indyted  and  accused  ffor  ryseing 
and  joyneing  in  arms  and  oppen  rebellion  with 
Archbald  sometyme  earle  off  Argyle,  and  other 
rt'belU  and  traitors,  in  the  moneth  off  May  and 
June  last,  in  maner  mentioned  in  his  dittay. 

Persewer, — Ilis  Majestie's  Advocat. 

Procurator  in  Defence, — ^Mr.Johu Stewart. 
SF 


807] 


1  JAMES  II.    Proceedings  against  Sir  D.  Campbell  and  others^   [EM 


majestie's  sobjects,  or  any  Dumber  oflT  them, 
the  joyneing  aud  assembliny^  tofj^ther  in  armes 
without  or  cootrarj^  to  his  majestie*8  command, 
warrand  or  authoritie,  and  the  abaitteing,  as- 
sistcing.  receptingf,  intercomoneinif,  or  keeiiing 
corrcsipondence  with  Kuch  rebells,  siipl ycing  of 
them  with*  help,  red  or  councill,  or'i^iveiiig 
them  ravatt  or  drink,  or  any  releiflfe  or  confort, 
or  the  not  searchiiigf  fur  or  aprehendinsf  off 
them,  or  not  ex(»ellin:;  off  thciu  fiirth  off  the 
country,  or  not  ^ivein^c  ty  meoiis  intelligence  off 
them  tor  that  effect,  ar  most  detestable,  horrid, 
hynous,  ani  abominable  crymcs  of  rebellione, 
treasone,  an<l  lose  majestie,  and  ar  nunishuble 
by  furfaulture  off  lyfp,  land  and  ^rwnh ;  and  be 
the  eleventh  act  first  sessinne  off  the  Sfcnuii 
parliament  of  kinQr  Charles  the  second,  it  is  sta- 
tute and  ordained,  that  io  tyme  comeinsr*  in  all 
cases  of  treasonable  ryseinpr  in  armes  and  oppen 
and  maniffst  rebellione  at^ainst  the  kini;*8  ma- 
jestic, his  atlvocat  ffor  the  tyme  may  andousfht 
to  insist  against  nnd  present  such  persons  as  he 
shall  l>e  ordered  be  liis  mnjcstie  or  his  privie 
councill  to  pcrseiv,  and  if  they  be  cited  and  doe 
not  compeir,  his  majesties  justices,  notwith- 
standini;  off  ther  alisf  nee,  may  and  ou^^ht  to 
proceed  to  consider  an<l  give  their  interloquitor 
upon  the  lyhell,  and  iff  it  be  fcumd  relivant  to 
iidniitt  the' same  to  the  knowledge  off  the  as- 
\VH<s  and  upon  the  verdict  off  the  inquest  ftiud- 
i.'ig  the  sauit;  to  be  proviiie,tlie  dooine  uml  sen- 
lanee  off  forfaulter  <Hiuht  to  proceed,  and  be 
given  and  pi-onunced  in  the  same  maner  as  iff 
the  persons  accu>ied  hade  comprnred  and  were 
pn'sent.  Nrveitln  l«*.ss,  it  is  off  \ciiiie,  that  the 
saiils  Donald,  Arrliiliald,  Collin,  and  Duncan 
Campbells  and  tht* oilier  persons  above  rom- 
pliaiK'd  upone,  Kliarki-inif  off  a!l  fear  of  (Jdd. 
respect  and  re/aiid  to  I/ik  niaii'.stie's  aiillioritv 
and  lanes,  lr»\e  |Mr^iiiiied  to  eomioitt,  and  ;;V 
umlty  olf  iho  saiils  er\  n»rs,  i.i  sua  fair  as  tin  r 
l»ein:^  in  the  year  \u'.)V,^  ant:  lit-liisli  and  damna- 
ble plolt  and  eorispiraeie,  enteied  in^o  hu  tl.c 
late  earles  oil*  Sliaftshimie,  Ksst  x,  Aif^yle  and 
othi Ts,  i,'..v*l!s  and  traitor^,  siibjeels  %\\\  ii;i; 
kin;«tl.inu'  a:id  eii'  Kdl'-I.im.I,  Hor  hi!Il.  'i*  .<j:.i 
nuiid<  rinu, at  h.ivl  >:  ir/cd  npcii  his  s:u".e'l  i.i-i- 
jeslici's  pfisnii  ainl  his  i(>ya!l  iuolliLr,  llier  luTe 
graei<)ns  s  )Vfraii,i-  kin-.V  i'liaiivN  tlie  yvr\;iiil, 
and  for  r.>.iMMiiLr  (ii.i:.-M  v.arr  aad  i<  lyi'lll.m  in 
both  kin:;ilcii;!s,a:id  Um-  iii;  ni.^l.J!)^"  tiu  n,nni.:'\v, 
s;hi|)s  and  arnu  s.  to  the  h-.te  eaiiL  «i'  Art  Oe  for 
thitt  etfcet ;  atid  aer»inliniil;:\  t!;e  saiJ  laili- 
f arle  (iff  \iLr\  le  ant!  seviriJI  (»tti.- ...,  i<  :;i';U  aud 
traitors,  uitli  him,  diil  ini»t  lreas(i..ahii.'  iow.ile 
this  ills  iiia;«  siie's  ancient  l;;nj;donK\  uiih  iij»-n. 
.ships,  ainus,  and  ainoniltone,  and  iaii.lt.l  uiih 
tin  ui  in  the  west  hiohIan«!s  oif  Seoih»n»!,  npon 
the  day  (»ff  >Jay,  loJio  years  ;  and  i!.» 

sotiner  hade  they  landit,*ilK  n  the  saids  l)w..aM. 
Arehihahl,  C'olline,  and  Dunean  Cani|.heils, 
an<l  the  haill  remanent  per^oiis  above  enni- 
pleaiied  npon,  rose  aud  joy  netl  iu  open  amies 
and  rebeliiiMie,  and  did  convocat  and  jjuthcr 
tojjpther  his  majt  stie's  Uidges  to  the  nundwr 
off  ffi.nr  or  ffyve  thousand  men,  within  the 
shyrcs  off  Argyle,  Tarbat,  highlands,  and  isles 


therabout,  in  oppen  rebellion  agviust  bis  ma- 
jeslie  and  his  authority,  and  did  issue  fuith 
treasonable  declarations  and  proclamations,  and 
did  take  in  and  maintaiue  forts,  strengths,  and 
garrisons,  against  his  majestie  and  h»  furce>, 
did  robb  aud  plund«T  the  goods  and^  houss  off 
bis  majestie's  good  subjects,  randerouzed  aaJ 
exercised  themselves,  did  scoutt  furth,  kil!  and 
murder  severall  of  his  majestie's  good  snljecbi 
and  souldiours,  and  did  continew,  in  open  aud 
avowed  rebellione  against  his  mujeslie  and  his 
authoritie,  comiitriog  all  acts  off  hostillitie  and 
liii^h  treasune,  untill  they  were  disipate  and 
(!e:rat ;  nnd  the  saids  hadi  fornamed  persnoc, 
did  treasonabliu  harbour,  recrpt,  iuiercoiiiOD, 
converjse  and  corres(K)nd  with,  did  abaite,  as- 
si*.t,  suplie,  \(\\t  help,  redil,  councill,  nieatl, 
drink,  rL'leihe,  aud  confort,  to  the  said  laite 
carle  off  Argyle,  sir  John  Cochran,  sometime 
olf  Ochiitrie  ;  sir  Patrick  Fhnne,  off  Pollwort; 
William  Denholme,uff  Westsheills;  aDduiben, 
fortaulted  anil  di;claretl  traitors,  in  company 
with  him  in  the  saids  inoneths  off  Nay  aiu 
June,  16ii5  yeares,  within  the  saids  M'ositre 
highlands  and  isles,  di<l  not  exact  dilligpocr  ia 
searching  and  aprehending  off  them,  and  ex- 
pelliug  off  them  furlh  off  the  countrey,  Mr 
gave  uot  tymiMuis  notice  nur  intelligence  to  aor 
miiiistei-s  or  officers  ffor  that  effect,  throne  the 
d:>eir.g  and  committing  wheroffor  oneorotlKr 
of  the  snids  deeds,  the  s:iids  Donald,  Arcfahild, 
Cohiii,  and  Duncan  Camnbells,  and  tbeotber 
IM'rsons  above  complcaned  U|ion,  have  con- 
initted  the  crynus  and  incurred  the  painnaf 
hii»h  treason/ rebellion,  and  l»  so  majestie,  ami 
ar  uetor  airt  and  paiit  theroif,  which  briog 
foniid  be  nne  a>s\se,  they  onght  t<»  be  puaisM 
vviih  lyfe,  land-s',  aud  goads,  to  the  teircw  and 
<'\anijd(;  off  iniit rs  lo  coniil  the  lyke  heirefirf; 
ComjH'ired  th<?  saids  sir  RoiirrrColt  ami  Mr 
(>L(iii>f  l)an:uiuian,  his  majestie's  srdicitu'S. as 
pei-euc:s,  and  produce*!  tlio  lori-jiitls  rrimiual 
leltrrs  (!c:\v1m!  execute  ^nd  indor*-it  agaicst  lb? 
hn!':  pei»;)t'>  dcfcinle; j,  an«l  a^;li!l^t  tlit  nearwt 
(Jii"  Ki;ie  to  t!ir>  »;aid  dtceasl  J>ona!d  rnui|»lifl> 
yc.uu-ti,  o:r  Druintiiir,  hy  a  pursev.vnt  diid 
tiuiiipeltrr,  uiili  his  majestie's  coat  oir«rft>e* 
iIi-:,l;.\Ml,  .  •  i.d  eif  trumpet!,  open  prociaiua- 
liiij.  ii:id  i:- ii»'^*  oilu-r  solemnities  ntrfs^iar- 
C'o.o|»i\r,:d  !;.  Ixuiiyes  Pal.::*',;  AVjUonr,  Car- 
riek  purs  n:  ■:,  executor  <»ti'  the  saiils  lii'.fr*, 
N«  !I  AlNti.i.  Milter,  in  K(iinhu:gh;  J«'li3 
I?:  i.^las  ;:.'.«1  ,lames  Kelle,  rtsidentirs  tlicfv; 
Ju'-.jts  .""i^'liaM-dn  and  James  Fergusone, «ir- 
\itrist.)  t'atiiiU  Stewart,  off  IJalaeJian,  wilin'tf 
il:»rio,  i.'.id  lH.ini»"  snienmlie  sworn<;  in  pifscijcc 
«:.'!'  the  jnsliees  -..ntl  ass\serssitland  in  ju'L'incnl 
made  laith  upon  the  truth  and  veiilie  olf  tliC 
san.en  in  all  poiuis.  His  majeMie's  [stiliritorsj 
pHMlnced  ane  act  of  privie  conneill,  »»nininjf 
theui  to  perse w  a  proees  off  fforfiiultnr  asja^o** 
the  persons  above  named,  wheroff  the  teas*' 
folluvts: 

KniNCLRC.u,  September  16,  1036. 

The   Lords  of  his  majestie's  privie  coiioo* 
being  iuformed  that  the  |)eraons  uiulcr  writteOf 


far  High  Treasofi. 

oM  Campbell,  of  Oab  ;  Archibald 
II,  off  Daaa;  CoHin  Campbell,  of 
btrt ;  DiincaD  Campbell,  off  Cullgra- 
k»oald  Caropl>ell,  of  Belloabie ;  Dud- 
mpbell,  off  Drumfme;  and  Donald 
II,  bis  sone ;  Aoo^iis  Campbell,  of  Dal- 
Jobn  CaropbelT,  off  Ul?a;  Ang^us 
blan,  off  Barnagad  ;  and  Alland 
hlao,  off  Dcmade,  were  actually  in,  or 
ie  to,  or  airt  or  pairt  off  the  late  Ar- 
bellionc,  doe  therlor  heirby  give  order 
rraod  to  his  majestie's  sollicitora,  with 
ence  to  persewe  a  proces  off  forefalture 
the  aaiiU  persons  before  the  lords 
iiooers  of  his  majestie's  justiciary  for 
les  foresaid,  and  that  at  the  publick 
and  take  recognitione  if  the  witnesses 
in.  Extracted  by  me, 
William  PAiTEBiONE,  Clk.  Sci.  Cli. 

(eared  the  said  Duncan  Campbell,  of 
,  and  Donald  Campbell,  of  Balnabe; 
M*Lauchlan,  of  Balnagado ;  Allan 
:hlane,  off  Dunade,  defenders,  and  en- 
lemselres  in  pannel  and  humblie  and 
slie  confrst  their  guiltines  of  the  crymes 
ipecified  in  manner  after  mentioned ; 
said  Archibald  Campbell,  of  Danna ; 
Canrij)bell,  off  Blairintibert ;  Duncan 
!ll,  off  Dramfunie;  Angus  Campbell, 
9ut ;  John  Campbell*  of  Ulva ;  being 
es  called  to  have  compaired  before  the 
ords,  this  day  and  place,  in  the  hour 
e.to  have  underlyen  the  law  for  the 
alMve  spcoitied,and  the  saids  defenders 
nearest  of  kine  of  the  decease<l  Do- 
impbell,  off  Dramfunie,  to  have  iciren 
defences  against  the  lybell,  and  objec- 
ainst  the  witnesses  and  assysors,  if  they 
I,  lawful  tyme  €ff  day  bidden,  and  none 
compearaod,  the  saidn  Lords  therefore, 
mouth  of  John  IV]*Kenzie,  macer  of 
leoeroetl  and  adjudged  the  said  Archi- 
sllin,  Angus,  and  John  Campl>ells,  to 
meed  our  sovereigne  Lord's  rebells,  and 
the  horn,  and  all  their  moveables, 
ind  gear,  to  be  escheat  and  inbrought 
Dajestie's  use,  for  their  being  outlaws 
ptives  from  the  laws  for  the  crimes 
lecifyed ;  thereafter  the  saids  I^rds  did 
to  consider  and  give  their  Interlocutor 
e  lybell,  whereof  the  tenor  follows: 

lords  justice  general,  justice  clerk, 
imissioners  off  justiciary,  having  con- 
the  lybell  ftersewed  be  his  majesties  so- 
igaiost  Donald  Campbell,  of  Balnabie  ; 
Id  Campbell,  of  Danna ;  Duncan  Camp- 
r.^ulgatro ;  the  deceased  Donald  Camp- 
Drurofnne  ;  Angus  M^Lauchlane  off 
id ;  Allan  M'Lachlane,  off  Dunade  ; 
'ambell  off  Blairintibert ;  ^against  whom 
estiea  sollicitors  <lifl  insist  in  the  first 
bey  find  the  said  lybell  relerant,  and 
tlie  same  to  the  knowledge  of  an  assize. 

AiSISA. 

ii  <if  Mcthreii. 


A.  IX  1686.  [810 

Robert  Hephume,  of  Bearfood. 

John  Muir,  of  Park. 

Major  James  Murray,  in  Potter  row. 

Alexander  Henrysoo,  off  Newhaten. 

And.  Cassie,  of 

James  £llies,  of  Soothsyde. 

John  Scott,  of  Vogrra. 

Lauohlan  lirPherson. 

Alexander  Hunter,  of  Morrays. 

Henry  Joysie,  merchant. 

James  Murdoch,  taizlour. 

Alexander  Scot,  stabler. 

James  Dykes,  shoemaker, 

Robert  Young,  wright. 

Sir  Robert  Colt,  his  majestie's  solidtor, 
craved  the  dyet  against  Oab  may  be  continued 
'till  the  first  Thursday  off  March  next,  and  h« 
put  under  caution  for  his  appearance  then  ; 
and  craved  as  to  Duncan  Campbell,  elder,  of 
Drumfunie ;  Angus  Campbell,  of  Dakout ; 
and  John  Campbell,  of  Ulva  ;  who  are  da- 
xslared  fugitives,  that  the  process  of  forfaolturs 
against  them  may  be  continued  to  the  sam* 
day,  which  the  L^rds  accordingly  did. 

The  Probation. 

Duncan  Campbell,  of  Culgatro  ;  Donakl 
Campbell,  off  Belnabie;  Angus  M^Lauch- 
lane,  of  Barnagad  ;  and  Allan  M'Lacblane,  of 
Dunade ;  being  interrogate  what  they  had  to 
say  against  the  lybell  raisetl  against  them,  fi>r 
being  in  rebellion  with  the  laite  Argyle,  they 
judiciallie  in  presence  of  justices  and  assysem 
humblie  and  ingenouslie  acknowledges  and 
confesses  thev  rose  and  joyne<l  with  the  late 
Argyle  anil  the  other  rebells,  in  the  highlands, 
in  >iay  and  June,  1685,  conferand  to  the  lybeU, 
and  humblie  beggs  and  throwes  themselves 
upon  his  majestie's  mercy. 

Sic  Subscribitur^ 
Duncan  Campbell,  Donald  Campbell, 
Angus  M'Laculane,  Allan  M^Lachlans. 
LiNLrrHGow,  L  P.  D. 

Donald  McNeill,  of  Dallgasseck,  aged 
thretie-three  years,  married,  purged,  and 
snom  ;  depones  that  the  tyme  libelled  he  sawe 
Angus  M*Laachlane,  of  Barnagad ;  and  Allan 
M*Lauchlane,  of  Dunad ;  in  company  with 
the  rebells  in  Argyle  shire,  when  they  were  in 
armes  and  rebellion  against  the  king's  miyestic 
and  his  forces  ;  depones  that  he  did  see  Collin 
Campbell,  of  Blairintibert  deliver  up  the 
castle  of  Camsooth,  which  castle  he  had  kecpt 
as  a  garrison  for  the  rebells  against  the  king's 
■forces  the  tyme  ly belled  ;  and  that  this  is  we 
truth  as  he  shall  answer  to  God ;  causa  seientut^ 
he  was  in  tiie  king's  service  against  them,  and 
received  the  castle  from  Belnabie. 

Sie  Subscribiturj        Donald  M^eill. 

Alexander  Campbell,  off  in  Kirkmichall 

of  Glastrie,  aged  32  years,  married,  purged  and 
sworn,  depones  be  did  see  Duncan  Campliell, 
of  Culgatro ;  Angus  M'Lauchlao,  of  Barna- 
gad ;  and  Allan  M'Lauchlan,  of  Dunado ; 
three  of  the  panncls  preient,  and  Archibald 


KIIJ 


1  JAMES  II.    ProccediJigs  against  Sir  D,  Ca-iKjibeil  and  other^t   [915 


Campbell,  off  Danna,   tho  dcceasrd  Donald 
Campbell,  youni^rer,  oflf  DnimCiinli'- ;  in  coiii- 

fmiy  with  the  rcbclls  in  Argylesbire  the  tyme 
y belled ;  and  this  is  the  truth  aa  he  shall" an- 
sivcr  to  God  ;  depones  he  caunot  uritt. 

Sic  SuyscribUur^     Linlithuow,  I.  P.  J). 

Anf^u$  Camphtllj  of  Tunnns,  af<fefl  fourtic 
years,  married,  piwcfl,  and  sn-orne  ;  dopiKios 
no  did  see  Donald  Campbell,  of  Culgatro  ; 
An.srns  M'LachUne,  of  Barna<j;ad  ;  Allan 
M^Lauchlanc,  ofDunnailo,  three  of  the  paniiels 
present,  and  Archibald  Campbell,  of  Danna  ; 
and  ilie  deceast  Donald  (/ampbcll,  youii<;er  (df 
Drumfunie ;  in  company  with  the  rcijcils  in 
Irgyleshire  the  tyme  lybelled  ;  and  this  is  the 
truth  as  he  shall  answer  to  (jiod  ;  depones  he 
cannot  writt.  Linlithgow,  J.  P.  D. 

Mr.  John  Campbell^  son  to  Baibreck,  age<1 
<wenty-two  years,  unmanieil,  piirgeil,  and 
8Wonie;  de|Kine9  that  (-ollin  Cumpbdl  of 
Blairintibert  was  captain  of  the  cnstle  of  (^ar- 
nasereth  the  tyme  of  the  late  Aryfvle's  rebellion, 
and  keep!  out  the  castle  f<>r  the  rebells  ai^ainst 
the  king  8  forces,  and  tkUer  their  deleate  he  de- 
livered up  the  same ;  ilcpunes  he  saw e  Archi- 
bald Campbell,  of  IMniia,  in  company  with 
the  rebells,  and  Donahl  Campbell,  of  Bclna- 
bie ;  Duncan  Campbell,  of  Cnli^^atro ;  Aureus 
M'Lauchlane,  of  Barnagad ;  Allan  31*Lauch- 
lane,  off  Dunnado ;  all  of  them  in  company 
with  the  rebells  in  Arj'yh'Khire,  in  armcs,  the 
tyme  lybelled  ;  and  tbis'is  the  truth  as  he  bhall 
aoiiwer  to  God. 

Sic  Siibsaibilury  Jons  Campdi:ll. 

TI'.'j  liOnh  or.'airicd  thu  Apsi/.ft  to  iiivl;--" 
anil  rf'lurne  llu;ir  veitlict to  iiiorrow  alt..i*I..- 
o'clock. 

The  Lnnls  havinj^  oril;:inf:!  llic  p^rr..:! ;  t:>  1^- 
rarryeil  |ni<(»ncr-!  lo  ihr  Tol'mMth  (»lJM:'iiiiii'J>. 
31r.  John  Stewart  a<i\iK;ilc;  iis  iin:(".iu....:  •..:;• 
them,  pnuliufil  an  act  of  iJiivy  couiiril,  u  Ik  i .  ^i" 
the  tv-nor  folUnvs  : 

Kr»iNiii:iJi:i,  Ticcan'.'-r  (i,  1  ?;.".;";. 

The  [.'Mils  ori»i.sn»aj.'^-.tIi-\i);i\i'.-  coiuuii '  ir- 
inij  iiiloinicd  that  tlicie  aii^scvml  ;kis(.:j  ;  iiiis 
fhiy  indicted  Inrfori'  tlu'  lords  c.inuiiiN.^linius  oil' 
his   innjoslie's  juslici<iry   lor   t!i'»    (Tmiicn   iA\' \ 
trca«"«Mi,  as  JKuiisi;  l;i  ;*n  in  llu*   lait*   icIk  lli»)n 
with  t!jc  Idle  rai!«' ni"  .\r:j\lc,  ;;inl   cn;^idtriiii;- 
that  Dimcaii  ('ai»:}»l ell.  si«i:u'i\iiif  (.fClui^atro;  • 
Ant^Mis  >I*Lauid>i:iri,  suinc  tMnc  ot  iJainaufad  ; 
Allan  >I>L:iwchlai)e,  suite  iMiic  of   Duindi!; 
and  Doiialil  Cainpln  11,  stunt-'tN me  Icuar  of  Hul- 
nahii*  ;  have  saifU*  coiidncts  lor  stui;et\ii'.e  not 
yet  oxpyrt'd,  <loe   llicri  lore   rc(  (aiitiid    lo  tlu' 
lords  roinmissioners  of  ju>ticiary  iliat  in  ca.so 
tho  saiiU  persons,  or  any   ot'  thnn,  he  lociud  . 
puilty  of  the  saids  <'i-\  nit- *•  by  the  \enlict  o|  ] 
A*isiz<',  that  in  rcspici  of  the  >aids  NaitVu  con-  j 
ducts  Vi't  ilc))C'ndni^-,  th(>>  lie  not  couiinlttcd  to  < 
prison  ;  hut  piiinilled  to  i;o  from    the  liar  lo  i 
nijoy   the   benetit   of  the  saiii    saille    tondiicl;,  | 
for  tliiftwne  reniainin:;  ;  in  respret  the  lonis  , 
of  councili  is  to  rccontiud  them  to  his  sacred  , 


iiiaje.stie  for  his  royal  remission  totbem  for 
their  lives  only.     Kxlracted  be  me. 
•Sir  Subseribitur^ 
Will.  Patterson,  Cl.^$c.  Con. 

Then  follows  a  continuation  apun!4  tlip 
other  Campbell,  &c.  to  3rd  March  next. 
Absent  witnesses  fined. 

Verdict  of  Asiize. 

The  s.'-iid  day  the  pcrsones  w  ho  pa.ssed  iipoti 
the  ass\se  otf  Archibald  Camphell,  of  Danna, 
and  others,  returned  their  verdict  in  preftcnce 
of  the  saids  lords,  whereof  the  tenor  folloirs: 
the  suisyse  haling  elected  and  cho>-en  Patrick 
Smith,  of  Bracco,  their  chunctllor,  they  all  in 
one  voice  fiindrs  the  l^licll  sufliciently  prxiveu 
nti^ainst  Ar(!hibald  Cainpbcll,  of  Danua ;  Collin 
('ampbell,  of  Blairintibert;  Dnncan  Campbell, 
of  Culj^tro  ;  Donald  Campbell,  uf  Beluabte ; 
the  deceased  Donald  Campbell,  sone  to  Duncan 
Campbell,  of  Drumfunie;  An<;us  M*Laucb- 
lane,  ott*  Barna^ad  ;  and  Allan  .^I'LaucliUne, 
otf  Dunnado  ;  and  that  ibr  their  beinj;  in  re- 
bellion with  tlie  late  earl  of  Arg-yle,  and  ibc 
other  rebells,  with  hitn  in  the  highlands,  in 
May  and  June,  1083  yean?,  and  being  in  armes 
with  them,  the  which  verdict  is  suliscrilied  be 
the  foresaid  chancellor  in  name  of  the  inqunt, 
and  written  by  Henry  Jessie  clerk  elected. 
SicSubscribiiur^  PATRicivS.Mmi,  Br.  Cban. 

The  Lords  having  considered  the  venlict  of 
a^rsize  returned  against  the  persons  above 
named,  they,  in  res{»ect thereof,  deceni  and  ail- 
j.nds:e  tho  said  Donald  Campbell,  oiT  Italnabie; 
.\i(.iiii)alil  Can'.jibell,  of  Dana  ;  DnncanCiin])- 
l;iii,  (»f  (.'uly;atro  ;  .\!»un>  'irLaiicldanr,  iS 
l».':'..;.;4.»,d  ;  Allan  !M'Lachlani>,  of  J)ui>na'i!»; 
v.\'.i\  ("liii  (\im|il/('ll,  (d*  Bi:iirintib<?rt  ;  to  I 
( MiMii  I )  tlh*  i!e;tth,  deiuaiued  as  traitors,  a.Mi 
tj  uud''.^o  the  p-iincs  of  i:cason  juul  utt". 
(ii;ni»liiiiir.l  a()|»oynted  by  the  laws  od'  il)i* 
riMihi,  at  sncli  lynies  and  placcN  and  in  such 
w.  11:. .''i-,  ;!s  onr  si»vcre:;^n  lord  the  Kinj^'s  iiii-it 
sac  it'll  n.;:";cstie  shall  :i;»poynt  ;  and  urdainc* 
I'nrir  na:nv>.,  lanu'*:.  memory,  anil  honoursS.  n!f 
tin-  ile<:t;'st  Donald  Canipb.  II,  oirUinm,  to  !*<* 
extinct,  lb' r  idooil  t(»  be  tainted,  ::nd  tliur  ant.  * 
to  be  riveii  lirlli  and  delete  out  of  the  boi.k:?! :. 
arnus,  so  tbat  their  posieritie  may  never  Ii.'Vi 
p!:Mc  nor  i.c-.'-le  to  l-rnikor  joyseuny  hoe.f.i..-. 
otlieos,  tilles,  or  <lii(nirK  s  hereafter  wiihin  l!i:* 
n  ahn,  and  in  tyme  comeinij  and  to  ha^e  i:";  - 
fanit'.d,  ommii:ed,  and  tint  all  au«I  sinuliieiian 
lanils.  lit  ritaoi  s,  la\f  s,  sleaJiiiiis,  r.-oins.  |»i<- 
sessie.n^i,  tlik"-,  <  li'eeis,  irooils,  and  j^ear,  wUaI 
sojiio^r  |K'rlaiiii:»:;' to  tliein,  to  ovir  so^erti;:' 
lord,  r.nd  to  remi-.in  pjrpetuallie  with  his  i.ii- 
jis'.ie  in  propi-rt.'e.  \\  hieli  xta.^  pronounce!  I  ■" 
doom.  \\  In  renpoM  hh  majesties  soliciturs  a:>keii 
anil  took  inNiroaieiiiN. 


M:ic'i  :»,  1(io7. 

,  :::•<  n'.  tiu"  eriminai  aetiono  a'A 
n,  liirmulie  insisted  and  n«^w 
;;etaMeeot  l:i«*  luijistie's  «•!■ 
Uoiiaid  CaiiJi^bell,    oil'   t.)u'>  i 


The  said  ibp. 
proees  ol"  ma-. 
peiM'U<*'i  at  t!.. 
voeat,    a 


^t 


for  High  Tteasort. 

?r,  of  Dninifunic ;  Anffus  Camp- 
)t;  ami  John  Cainpbel!  of  Ulva  ; 
zw'*  aud  jovncing  in  armes  and  in 
ith  the  !aite  Ai^j'le  and  other 
D&ner  tuentioned   m  thcr  dittay, 

the  fmnier  procedur  thereanont> 
he  sixt  of  December  last,  which 
ion  being  this  day  callctl,  conaiieired 
ihymple,  younger,  otF  Stair,  his 
•Ivocat,  with  btr  Robert  Colt  and 
^annerman,  advocats,  his  niajestics 

perse wers  on  the  one  pairt,  and 
■  pairt  compeired  the  said  Donald 
F  Oab  ;  who  deny ed  the  dittay,  and 
.'Ued,  and  An&rus  Campbell,  ot*  Dal- 
ohn  Campbell,  of  UWa ;  whocon- 
r  eilcr  specifit. 

itys  Advocat  declares  he  restricts 

0  the  |>annalls  joyning  with  the 
>nresponding  or  conversing  with,  or 

recepting,  or  assisting  them,  or 
pairt  off  the  rebellione  lybelled. 

Steuarty  advocat,  as  procurator  fibr 
,  alleadges,  that  that  pairt  off  the 
be  pannall  Oab  was  perhaps  once 
pan^'  with  the  rebells,  that  per  se 
It ;  because  in  this  iiarticular  case, 
made  appear  that  tne  pannall  was 
npany  with  the  rcbclls,  which  is 
is  oriered  to  be  provine  by  the  per- 
ness,  that  the  pannall  hade  a 
ad,  to  be  bnrried  to-morrow  efter 
awe  the  rebelU ;  and  it  was  goeing 
Tillage  to  gett  some  nccessarys  for 
;  fiardcr  alleadges,  that  wearrcinsc 
r  fc'is  not  relivant,  and  particularlie 

1  sword,  alwayes  denyein^  that  the 
le  any  or  wore  any  sword,  at  any 
ever  they  rancountered  with  the 
luse  in  that  conntrey,  and  at  the 
L  horrid  rebellione,  thcr  was  no  man 
sword,  but  he  hade  it  about  him  to 
icatione  off  the  loyalttc  and  depen- 
his  majestic  iff  the  occasione  should 
•  defend  themselves  against  the  vio- 

rebells,  which  cannot  in  no  seucc 
ane  abominable  guilt  as  that  off 
>ff  treasone  lybelled. 

t  Colty  ane  of  his  majestie's  8o]<- 
HIS  tlie  lybel  which  is  most  rcli- 
lled  upon  tlie  invasione  by  the  late 
that  the  pannalls  are  airt  and  |iairt 
rebellione  as  being  eyr  actuallie  in 
the  late  Argyle  or  those  that  roso 
ellione,  or  as  assistors  thcroff,  or 
nders  with,  and  in  company  with 
is,  whither  in  armes  or  without 
that  the  lybel  beinri^  relivant  in 
members  theroff,  and  the  defence 
n  a  naked  denyal  off  the  lybell ;  and 
if  Oab,  fur  whom  this  defence  is  pro- 
'eiog  raised  no  exculpatioiic,  and 
dgeS  nothing  that  can  eleid  the  rcli* 
loence  ought  to  be  repelled  and  the 
ted  to  the  knowledge  off  ane  inquest. 


A.  D.  168& 


[814 


tn  order  to  its  being  provine  or  not,  and  taks 
instraments  upon  the  pannalls  procaraton  ac- 
knowledgeing  the  pannalls  being  present  with 
the  rebells  Tolmitariie  at  that  same  place  men^ 
tioned  in  the  defence. 

Mr.  Jokn  Stewart  oppoos  the  defence, 
which  is  no  aduiowledceinent,  but  upon  the 
contrairOy  ane  expresse  cfenyall  off  all  the  arti- 
cles off  the  lybell,  and  that  which  is  alleadged 
against  the  relivance  is  nowayes  answered,  nor 
could  a  lybell  of  that  nature  be  sustained  sup* 
poseing  it  were  proven  that  whicli  is  insinuate 
and  the  defence,  because  the  pannall  peihapo 
one  single  tyme,  the  tyme  off  the  whole  re- 
bellione, was  seen  in  a  kttell  clachan  or  village 
wher  the  rebells  was,  about  such  a  necessary 
duty,  and  never  heing  seen  with  them  befor  or 
efter,  or  in  company  with  any  of  them,  albeit 
he  hade  a  sword  about  him  at  that  tyme  it  can- 
not inferre  the  treasonable  convene lybeUtd. 

iNTERLOQUrrOR. 

The  lords  justice  general,  justice  derk  and 
commisssioners  off  justidarie,  haveing  consi- 
dered the  lybell  penewod  at  the  instance  off 
his  nuijestie's  advocat  Imd  solicitor!  ag^nst 
Donald  Campbell,  off  Oab ;  Duncan  Campbell, 
elder  of  Dramfnnie;  Angus  Campbell,  of 
Daltout ;  John  Campbell,  of  iTlvft ;  with  the  de- 
bate above  written,  they  find  the  lybell  as  h  in 
restricted,  viz.  that  the  pannalls,.  joy ned  with 
the  rebells,  er  oorresponifed  or  conversed  with, 
or  harboured  or  recept,  or  aniBted  them,  or 
was  airt  of  pairt  off  the  rebeltione  lybelled,  re- 
levant separatim  to  inler  tbe  crime  and  peine  of 
treasone,  anji  remitts  thesamento  the  know- 
ledge of  the  assyae. 

AssttA. 

Patrick  Smith,  ofMethven. 
David  Hepbume,  of  Randentomie« 
John  Mnir,  of  Park. 
Major  James  Murray. 
Alexander  Hume,  off  Mnrrayet . 
John  AVint,  cordiner. 
John  Sandilands,  brewer. 
Alexander  Douglas,  felt  maker. 
Archbald  Douglas,  armorer. 
8amwell  M*I^an,  merchaud. 
Alexander  Scot,  stabler. 
Gcorg  Watsonj  taizlor. 
James  Murdocli,  taizlor. 
Robert  Young,  wright. 
Lauchlan  M'Phersou,  taizlor. 

Angus  Campbell,  of  Daltout,  and  John 
Campi)ell,  of  Ulvar,  doe  judiciallic  in  the  pre- 
sence of  the  justices  and  assy  scr^ acknowledge 
and  confess  that  they  were  in  r%!l>cllione  with 
the  late  Argyle  the  tyme  lybelled ;  dedaire 
they  cannot  wreitt  nor  speakc  Inglish,  and 
therfor  his  confessione  is  signed  by  my  lord 
justice  gcnerall,  and  John  M'Kenzie,  macer, 
who  was  judicialle  sworue  interpreter. 

Sic  Suifscribilur,  LiNLfnicow 

JouN  M'Kbnzib,  inter|iretQr« 


816] 


1  JAMES  II.    ProceedtHgt  againH  Sir  D,  Camphell and etAtn,  [ftMf 


I 
I 
I 


I 
I 


Martin  Sinduir  alias  M^Nakaird^  iii  KiU- 
ftistiaiie,  ai^ed  ihrettie  aujght  yemra^  or  lht:rbv, 
fnarrieii>pur^C4J,  and  sworne  ;  depons  l\\M  ifie 
tymc  ty belled  of  Ar|fyirs  relKjllioiie,  lie  did  see 
Jlooald  Cain^jWI^  nif  Oab,  in  cfiinpnny  Mfilb 
the  rebel U  at  KilliinchaLlli  o^Gliisrie,  at  Ihi^ 
tyme  mIich  I^li.  C'bailes  Ciim|diell  was  tlieri 
urttbalxiultbe  nMnd»vr  *»<'  tH'i>  hiimlnt'lb  rebelb 
^illi  liim,  nitil  Uitil  he  did  see  hi«ti  vvalkiii|;  up 
lUid  downe  with  tlittii  as  f»thir.>i  diil  ;  and  thsit 
l^ithin  a  day  or  twii  efter  ihat  he  did  see  him 
al  EiUniichaell,  of  invertjbssie^  wher  Mr. 
Charles  CampJH'll,  wilh  Ihc  rebclls,  wpnt  to 
imniediatlte  out  Af  Killttiichadl  ulf  Glasrie, 
and  that  he  did  sec  him  i^onverse  with  Mr. 
Charles  Campbell  anil  wilh  others  off  the  re- 
Mb,  as  the  re^t  of  them  did  ;  and  that  he  hade 
a  Buord  about  htm  ;  de}>ons  that  he  did  see 
Dancan  Camnlieil,  elder,  offDrumfuoie,  ryd- 
iDg  from  Killmichaell  off  loTerlessiei  wilh  a 
sword  about  him,  in  company  with  Mr.  Charlen 
Campbeil,  aotl  the  rebells  at  that  time,  when 
the  rebells  came  back  fmrn  RiUraichaell  off  lu* 
TerIesai«to  Kilmichaell  off  Glasrie  ;  depones 
he  did  see  An^ua  Campbell,  of  DallotU,  in 
company  with  the  rebells  the  tyme  labelled 
at  Killmichaell  offGlQsrie,at  ther  first  ryseing^, 
unA  that  he  heard  that  John  Campbell  off  Ulva 
was  ther,  but  did  not  know  him  ^  aud  ihLs  is 
the  truth  as  he  shall  answer  to  God. 

Sic  Subscribiturf  MABTm  SfMCLAiR. 

John  M'Ltwchlitn^  id  Mlcbnan,  agedthrettic 
yeares,  or  Iherby ^  aiarrte<l,  pureed,  and  suome; 
ilepons  that  the  tyme  off  the  late  Argytls  re- 
bellione  lybelled,  he  sawe  the  pannall  Donald 
Campbell,  of  Oab,  in  Killmichael  of  loverlas* 
tie,  where  Mr.  Charles  Campbell  and  a  pairlte 
of  the  rebells  were  far  the  tyme,  and  <awe  Oab 
sjfeake  to  some  off  the  rebells,  and  does  not 
knowe  what  was  the  subject  of  ther  discourse, 
and  that  he  sawe  him  walk  two  or  three 
with  the  rebells,  hut  does  not  kuow  how  lon^ 
lie  itayed  with  them,  and  suwe  him  Htand- 
wg  within  tfte  breadth  off  hts  house  to  the 
place  wher  Mr.  Charles  Campbell  was  ;  de- 
|}ons  that  he  knows  that  Oabs  naturall  sonc 
was  in  the  rehellion,  but  kuttws  not  if  his  taiiier 
recept  or  conversed  with  him  after  he  was  in 
the  rebellionc,  depones  that  he  the  denonent 
went  to  Oab  his  maisler,to«artls  the  beginning: 
of  the  rebellion,  and  asked  hirn  whut  he  and  the 
oilier  tenants  should  do ;  anil  Ojb answered,  that 
lie  did  not  know,  but  thouf^ht  they  should  do  as 
tlie  rest  of  the  country  did  ;  and  depones  that 
tbe  greatest  pairty  oH  the  country  thereabout, 
went  to  to  Mr,  Charles,  after  Mr.  (Uiarles  bad 
threatened  to  bume  their  houaea,  and  hade  burnt 
one  house,  and  the  deponent  himself,  and 
OaJw  natural  sooe  and  M'Re^oer,  bis  domes- 
tic serTAut,  and  four  or  tive  of  O^Wa  tenants, 
as  he  remembers,  went  to  Mr.  Chai  lea  ;  de- 
pones that  he  sawe  fing^us  Campbell,  of  DuU 
tout,  aud  Animus  CampWll,  of  Ulva,  with  the 
rebells  at  the  Tnrbat  and  Bute,  and  they  hade 
armea  ^  and  that  hf^  sawe  Campbell,  off  Urum- 
funiei  at    IsurkmichaeU,  off    Invcrloiisie;    in 


company  with  the  i'cd>etts  wher  Mr.  Ctiaria 
wasthcr,  aud  thai  be  hade  a  sworil  ;  and  llfii 
is  the  truth  as  he  »hall  answer  to  God,  deycnctf 
he  cannot  wreitt, 

aicSuhictthitur^  Li^iLlTllGOW,  L  P.  D. 
Jonti  MvRenzie^  Jiiterprei<>r. ' 

Fairkk  CampltU,  Called  Blark  P^trkk^ 
some  tyme  ffuctor  to  Auchinhreck^  a^-ed  thi 
yciires,  niTiniid  purg^ed  and  ««w(»rne  ;  riepoil 
that  the  lyn>e  lybelhd,  he  did  ^ee  D<mtM 
Campbell,  of  (lab,  in  company  with  iherrbelft 
in  Kifktnichaell  of  Glasrie,  when  Mr.  Cbarb* 
Campbell  was  ther ;  and  dcpous  that  ih 
he  sawe  him  ut  K^irkmichaell  off  Inr 
on  horse  back,  rydein^  doune  tmm  a 
hight  above  the  towne,  wher  Mr 
Campl>cll  and  two  hundreth  »»l  (! 
and  depons  that  be  did  see  Du 
elder,  off  Drum  lunie,  at  Rirkm. 
with  Mr.  Charles  CampML  tl 
and  fyve  hundreth  of  tne  rebc!i^.  ..,^,  ..  r, 
pones  he  sawe  Ang^n<*  Campbell,  of  Oultoot, 
and  John  Campbell  of  Ulva  all  allonge  liilk 
the  relwils  in  armes,  and  partjcnlarlte  ti 
Bute^  Rosa,  Tarbal  and  Cowalt  ;  and  thU  ii 
the  truth  as  he  shall  answer  to  God, 

Sic  Su bs€ ri biiur^  Fixaicit  C \m%uL 

John  Polluck,  in  Rinmithaelt,  off  Glum, 
aged  sixtie  yeai^es,  married,  purjfed  andsuwKr 
depons  that  he  did  sec  Ihincan  Carnptiell,  t-lder, 
off  Drumfunie,  in  company  with  the  rtlidlait 
Killmichaell  of  Glasrie,  aJd  aawe  hitn  ryiltif 
into  the  town  with  severalla  of  them,  tbr'rytot 
of  Arij^'IPs  rebelliooe ;  depones  he  sane  Ansfw 
Camphell,  of  DAllont,  in  company  viitb  tht 
rebells  walking  with  a  swonl  tl»e 'same  t|nii 
and  places,  aud  in  armes  ;  and  this  is  the  Utri^ 
as  he  shall  answer  to  God. 

Sic  Subxribitur^         Jobk  Poixogi* 

Robert  M'Indocrf  sone  to  Leugas  M*Ijido(r, 
in  Kiltchuwne,  agetl  seventeen  yeares«  oa> 
married,  purged,  and  s WO)  '  ^aitie 

tvme  lybelleil,  he  aawe  1  I,  «l 

Oab,  at  KiUmichaell  of  * «..»..,.,  ,.  ,  j  v^ 
ami  down  the  toivne,  when  Mr.  ChaTn  (  m  . 
bell  aud  the  rebells  were  ihere  ;  depun?-  Lt  rjAi 
A  nit  us  Campbell,  oi'  Daliout,  and  Jidiu  CAaip- 
liell  of  Ulva,  walking  up  and  duwne  wilh  iht 
rebellji  and  cnnversinj;  with  them,  when  Mr, 
Charles  Camplien  was  at  KiiUnichotll  off  Glai* 
rie  ;  aud  this  is  the  tralh  as  he  shall  answer  \» 

God.  RuD£RT  M*lN{>OKa. 

The  Lords  onlainea  the  assy ae  to  inclose  Mil 
returne  ther  verdict  to-morrow  at  ten  o*dock. 

March  4iK  lf»Br, 

Tlie  said  day  the  persons  wbn  past 
the  a«:^5se  off  iiouahl  Caropltell,  of  Oab;  _^^ 
can  Campbell,  elder,  off  Urumfunie ;  AsfSt 
Campbtdl,  «>ff  Dahout;  J<dm  Campbell,  o* 
Ulvu  ;  returned  ther  verdict  in  presence  of  Ui* 
saids  lords,  whej-off  tlie  tenor  ttullowes  : 

The  Asuvse  haveing  electH  and  cbOltB 
PnU-ick  Smith,  of  MdUircn,  chancelh»r»  U>»y 


)     Pmeedings  agaitut  Viscoutit  Dundee  and  othen.    At  D.  1690. 


tsid- 


one  Toioeffiod  Donald  Campbell,  of  Oab ; 
»n  Campbell,  elder  of  Dnimfunie ;  Angus 
pbeli,  onDallout ;  and  Jobo  Campbell,  off 
,  were  persewed  fibr  the  cryme  off  trea- 
,  that  the  same  is  safficiend^  provine,  ac- 
.rtg:  to  the  interloquitor  off  the  lorde  off 
^rie,  and  thir  presents  ar  written  be  John 
iilands  clerk,  and  signed  be  the  forsaid 
eellor,  at  Edinburgh,  the  third  day  off 
eh,  1687. 

Sic  Subscribiturf    Patrick  SMrm  Bracco, 
Chancellor. 

Her  oppeing  and  reading  of  the  whilk  yer- 
off  Assyse,  The  lords  joslice  gcncrall,  jus- 
clerk,  and  commissioners  of  justiciary, 
fore  be  the  mouth  off  John  Leslie,)  demp- 
of  court,  decerned  and  adjudged  the  said 
aM  Campbell,  of  Oab;  Duncan  Campbell, 
r,  of  Dmrofunic ;  Angus  Campbell,  off 
boot ;  and  John  Campbell,  of  Ulva ;    to  be 


execute  to  tlie  death,  demained  as  traitors,  and 
to  underlye  tlie  paines  off  treasone  and  utter 
punishment  apoynted  be  the  lawes  off  this 
realme,  at  such  tymes  and  places  and  in  such 
maner  as  our  sovcraine  lord  the  king's  most  ex- 
cellent majestic  shall  appoynt,  and  ordaines 
ther  name,  fame,  memorie,  and  honors,  tu  be 
extinct ;  ther  blood  to  be  tainted,  and  ther 
armes  to  be  riven  furth  and  delatte  out  off  the 
book  of  armes,  so  tliat  tber  posteritie  may 
never  ha?e  place,  nor  be  able  heirefter  to 
bruike  or  joyse  any  honours,  offices,  titles,  or 
dignities,  within  this  realme,  in  tyme  coming, 
and  to  have  forfaultcd,  ominitted,  and  tint,  all 
and  sundric  ther  lands,  heritages,  tacks,  stead- 
ings, rowmes.  possessions,  titles,  offices,  goods, 
and  gear,  wbatsoinc?er  pertaineing  to  them 
to  our  soveraine  lords  use  to  reraaine  per- 
pctoallte  with  his  liigbnes  in  propertie.  Wbidi 
was  pronounced  for  doom.  \\  hereupon  his  ma* 
jestie's  advocate  asked  and  took  instruments. 


7.  Proceedings  in  the  Parliament  of  Scotland  against  the  Viscount 
of  Dundee*  and  others,  for  High  Treason:  2  William  & 
Mauy,  a.  d.  1690.  [Now  first  printed  from  the  Parliamen- 
tary Records  at  Edinburgh.] 


Edinburgh,  Jufy  14,  1690. 

NENT  the  ly belled  summonds  and  indyte- 
it  for  hi^  treasoue  raised  and  persewed 
ore  the  km^  and  queen's  majasties  and  the 
iMof  parliiunent  writttn  in  Latine,  aud  ex- 
le  under  the  band  of  the  deput  of  the  direc- 
lofcbanoellary,  keeper  or  the  (quarter  seall 
rfbrme  to  ane  warrand  and  act  of  parliament 
v-Benttoned ;  att  the  instance  of  sir  John 
ikymple,  younger,  of  Stair,  tlieir  ma- 
tics  td¥Ocat  for  their  highnes  interest 
the  matter  underwrytten  against  John, 
osont  of  Dundee ;   James,  earle  of  Dum  • 

'  The  celebrated  Graham,  of  ClaTerhouse, 
a  fonna  a  very  conspicuous  figure  in  the 
ittSsb  Ilialory  in  Uie  seYenteenth  century. 
BD  the  meeting  of  the  Convention  of  Estates, 
0  went"  Dairy mple  instructs  us,  **  wherever 
sprit  of  Montrose  should  direct  him,"  a 
loB  flctiOD,  aavs  Laing,  exceedeil  only  by 
tbcTi  that  his  neroism  was  caught  from  the 
ilation  of  Ossian- s  Poems.  He  was  killed  in 
hMlle  of  Killycranky,  (June  17th,  1689), 
eve  be  had  beaten  the  troops  of  king  AVilliam 
Icr  Mackay.  Phcaim  has  honoured  him 
b  tfMS  fiiilowing  epitaph : 

mt  Sootoram,  potuit  quo  totpite  i olo 
■IBS  Patriae  salva  fuiiie  tu« : 
■oriente,  Dorai  accepit  Sootie  ciTe«, 
spiti|oe  DOTos,  te  moriente,  Deiv. 
tibi  sapefffsse  negat,  tu  eon  potes  illi : 
9  Galedoois  nqmea  inane  vale. 
|aa  Tale,  gaotis  prisea  fortinsime  dnctor, 
■c  ScolsnnD,  atqya  vltinw  Grane,  vale. 

rou  mi. 


fermling ; 


■-  viscount  of  Prendraught ; 
lord  Duukcld ;  major  William 
Grahame,  of  Balwhaple;  CoDonell  Alezan* 
der  Cannan ;  John  Cleilland,  of  Fasken  ;  Mr. 
Colin  M*Kenzie,  uncle  to  the  carle  of  Sea- 
forth ;  sir  John  Drumniond,  of  Machany ; 
William  Crawford,  younger,  of  Ardmillan ; 
James Crawfurd,  his  brother;  Ro- 
bertson, of  Strowsn  ;  David  Grahame,  brother 
to  the  deceist  John  viscount  of  Dundee,  for 
himsclfe,  and  as  representing  the  said  viscount 
Haly burton n,  of  Pitcurr;  and  ■ 


Haly  burton,  as  air  to  the  said  deceist 
Halyburton,  of  Pitcurr;    his  father,  Jamei 

Which  Dryden  did  not  disdain  to  translate 
as  follows : 

"  Oh,  last  aud  best  of  Scots  !  who  did  maintain 
Thy  country's  fVeedoui  from  a  foreifnn  reign ; 
New  people  fill  the  land,  now  thou  art  gone. 
New  Gods  the  temples,  and  new  kings  the  throne. 
Scotland  and  thou  did  each  in  other  live,  • 
Nor  wouldsl  thou  her,  nor  could  the  thee  survive. 
Farewell,  who  dying  didst  support  the  state, 
And  coutdit  not  fall  but  with  thy  country's  fate.** 

See  in  Laing,  vol.  4,  p.  i222,  2d  c<l.  the  de« 
tcction  of  a  misrepresentation  of  Dairy  male's 
relating  to  the  battle  of  Killycranky. 

Dairy  mple  has  printed  the  following  Corret* 
pondence,  furnished  to  him,  he  says,  by  sirDa« 
vid  Dalrymple  (Lord  Ilailcs) : 

Lord  SCrathnavcr  to  Lord  Dundee, 
«  My  lord ;  The  concern  that  many  equally 
interested  in  us  both,  has  for  your  lordship,  ah* 
3G 


> 


S  W.  *  M.     ProceedSngs  agf^imt  Visecunt  Dundee  enj  athertf     [!fiO 

i-i.^l>elts  I  BQtl  by  tlie  tiitt  »nd  Utii  acti  padi»- 
Qii^nl  6ih  Iff  km^  Jantoc  ibe  tt«eMii,  md  pti- 
H*iii<*Qi  iH^Itb  kitig  Jantci  Uie  M*Atit  oipm  m 
btuidr^d  &nt]  four! j-»rx,  the  ry«emg  k  t«tr  ol 
weare,  orsiip»1^i(ig  the  rebelfs  in  help,  r«|^«t 
eouticilU  ^r  tiHs  «t»ff«in^  of  hDu«e&  fuc  lb 
ftirthermgof  tlie  iifijf*!  m)elt»«  irv  crjma  ibr 
which  I  be  peri(>a««&r«  piiubtkible  at  umiloim, 
againet  whom  n&t  00!?  fnH^ultikres  ^xn  ajtowii 
lo  pr]c«4^  in  «b(iencebv  the  d(>reiitli  act  «f  tht 
ttrs^  s0$iion  second  parhanirrit  of  kitig  CLkrki 
2iid,  but  Jilur)  by  the  ^gtii  »ct  paflitiiiftit 
6tb  kiii^  J(iane«^lic  fyfth,  the  suminiiQdvol' 
treftwue  tiu^^  be  per»ewei1  agaiost  t|i«  tir  6r 
the  trcfiiton  committed  hy  ^is  prtiltcoBBr 
Wverthek'S*  it  is  of  ferity  jh  at  tH«d«c«ulMii 
t'hentint  of  Dundee,  auJ  Jaiiues^irteofOu^ 

fetmYm^ ;  rkcouDt  of  Fc^dntugbt ; 

^ —  lard  Dnnk^ld;  muor  WiUiani  Crahiaw, 

off  Bt'ttiohajde;  colloudl  Alejoindcr  CunaMmi 
John  f :knlUtidi  afF Aiken;  flit,  CoHti  M^KeniUf, 
uncfe  to  tlie  cnrk  of  8eafortb ;  sir  Joliii  Drucn* 
inoiid,  of  MarU&ny;  Williiini  CMfrfur^^ 
votini^^r,  of  ilidaulbti ;    Jaid^  Crmwfurvi,  hii 

broibei;' ;  — ffAmwm^  «f  ^^trtiifai ; 

J^lr.  Diivid  Grahame^  brMbcr  to  tlie  ttEt^ouot 
of  Dundee;  ihodccdgt'      i      r    HftI)- bitri^R, 

of  PitcMrr^  a  Eld Hadybuitoo,  IbU  ««mc  ^ 

Jam€>ii  KdmoD^:utm,  of  Newtooiii  ofUnim; 
nk  EwQQ  Canter^n,  of  LodlpueU  ^  «^^ — 


»I9} 

BdtiKiriiitfftin,i>fNe«iotitt,6f  Drum  |  sirEfrafi 

Camermi^  of  l*o<^K/wlI*i Cameron, 

hi«  cld^t  «one  ;    ))onah1  Bl^Dooatd,  youngff, 

of  HcJail« ;  the  (^irJ  i*f  >I*Nii*gto(i ; 

Grtpti  of  BalbjidaMocb  :  — Htewarl,  of 

Appjrr;  M*K*»ttti,  alias  HMJooald, 

^^1  nf  Glc^oie;  Aleicmivder  M'DoqaMj 
yoiingfpr,  of  Gleogary  5  Donald  M*NriU,  of 
UaltiibrUie;  and  sir  John  M'lcan,  of  Dowart, 
aoildiverti  others  thdr  ^fod«tt  ant!  accom- 
pli cf!S.  The  aiiib  c  utick  cnpte  vf  hereof,  i  a  E  ng- 
lieh,  i>roth*rrd  in  man ti«*r  after  tpecilied  maketb 
menlMHi,  Thai  vvhcre  the  rrjmes  of  irbelUowe 
end  tp«jwiOfte»rjjidn^and<*imiinowitigiti  ariiies 
agminst  their  majesties  ami  therT  highne^  au- 
^ority  iud  ^pOTfrntnent,  and  the  aasaulting  of 

hifitaissi  and  rtreogihs^  Uie  harbouiring-,  corres- 
pondirtj^  ind  asiocialitig  With  open  rebetls  and 
tralcotint;  the  falfioij  upon,  woiinrfebg  or 
Toy^rinij  their  nihjestics  ft»rces  in  iheir  recreate, 
are hijfh  cTyme*!^  pursijiiiittble  with  forfeiture  of 
lyt^^  bnd^,  auil  uooys ;  and  fay  the  third  act 
first  parliament  kiii!^  Jamt^  the  Rr^it,  it  is  sta* 
iuVt  am)  ordmned,  Tbai  no  luan  nottoitrly  relieil 
agtknit  tl>«  kiri^^s  periion«,  under  the  [lain  of 
f^aplliii§f  of  lyft^,  hn^9-  aod  ^u<kIs  ;  and  by 
the  tbreity-sererith  act  of  his  second  parSia-- 
m^t^it  is  !$tAiiita,  Ihiit  roe  man  wilfully  rtaHU 
CDtcrtidne^  or  doe  faroom  to  open  and  mafufest 

stractiog  from  that  ?eapect  which  your  own 
merit  made  tuts  tmve.  cs^imol  but  occasion  re* 
grate  in  tne,  to  see  that  the  courses  you  take, 
tend  inevtia.bTy  to  the  luln  of  you  and  your^,  if 
persisted  in.  I  cannot  ibereitire  bat  wish,  that 
yon  woidd  follow  tlio  dnke  of  Gordon- s  e^mu- 
pie,  and  ]  am  persuaded  it  will  be  found  the 
be$t  course  i  nritlier  shall  yoiiv  friends  Mio  at 
this  time  dai-e  not  Mell  meddle,  bo  Mrauting  ta 
■how  thdr  alTeciion  to  you,  ajid  mtcrest  iu  the 
stand Sn^  of  your  family ^  and  f  ho^io  you  niil 
do  me  tlie  juHtic4i  lo  b^lic^o  thiit  noue  wi^fhes  it 
better,  or  will  more  effectually  lay  binuielf  out 
iti  it,  than^  my  lord,  Sec,  irtBArmhvm*'^ 
"  Inverness*,  1 

"3d  of  J  lily,  1639." 

Lord  DtiYtdt£  in  Lord  BU^ihn&vtr^ 

*'  My  lord  ;  Your  lordship^i,  dated  the  3d,  I 
receiTed  t!*e  iSlb^  ami  uould  ha%e  returned  an 
answer  liefbre  now,  bad  I  not  been  called  sud- 
denly to  Eiiverlochic,  to  triTe  ordtfre  anent  tlie 
forces,  arms,  and  a  munition  acut  from  Irknd. 
My  lonif  I  am  ej^treamly  sensible  of  the  obli- 
g^tiou  i  have  to  you,  for  offer! n|^  your  endea- 
vours for  me,  and  giving-  me  adf^ice  in  ibe  des- 
feraie  estate  yon  u]ou|^ht  onr  aflairs  were  in* 
am  ^lersuaded  it  flows  from  your  eincere 
goodnest  and  concern  for  me  and  mine,  and  in 
return,  I  assure  your  lordship,  1  ha?e  had  no 
Uaa  concern  for  you,  and  was  thinking  of  mak- 
ing the  bkf>  address  to  yon  j  but  delayed  it  till 
thmp  (»Jiould  appear  more  clear  to  you,  I  iliu 
aorrv  your  iordibip  should  be  so  far  abuied  as 
to  think,  thiit  ihere  is  any  shadow  \if  appear- 
.anccaf  itability  iti  tUhinew  itruciura  of  go- 


vernment these  men  hai^^e  framed  lo  than* 
selves  I  ihey  made  you,  I  donlit  not,  bchrw-, 
tkai  Darie  (Londonderry)  was  rejieted  tlijce 
inceks  ago.  By  piiuted  accountf,  and  1  ou 
a^$ur«  you^  it  never  wa^  idiertd,  and  daw  U 
taken.  They  told  you,  the  Ingtish  deetai^ 
Dutjch  were  ma&t£rs  ol'  ibtf  ^ea^  i  know  hi 
eeitain  the  French  is,  and  in  the  Chanel ;  ia 
l4^tiiuonv  whereof  they  havedeTeMefimirSopU 
ihiid*  Pm  as  they  came  alongst  tliey  i^l  «ii 
the  two  friff]::,^ts,  killed  the  captains ,  and  setii^ 
tlie  &hip^,  and  brought  tlie  tneu  priionen  t^ 
MulL  Tljey  tell  you  Shrrmberfr  is  g^iiig  to  Ir- 
laud  to  cany  the  i^ar  tHitlicr.  I  assui^  you  tha 
king  has  lunded  a  conaiderabfe  body  of  liotiqei 
there,  and  will  bnd  himself  am oogat  our  ^en^ 
in  the  west  {whom  I  am  iorry  mr)  rerj'  sooa, 
80,  my  lord  J  having  given  you  a  clear  and  trui 
proipect  of  affiiirG,  which  I  am  afraid  amoagil 
your  folks  you  are  not  used  with,  I  leave  yon  to 
judge  if  J  or  you,  your  tamily  or  myn,  be  m^ 
in  danger.  However,  I  acknowlcft*  frandj, 
I  am  no  lesa  obligei]  to  vonr  lordship,  seeing 
you  made  me  an  offer  of  your  assistance  in  a 
tyme  when  you  thought  I  needed  lU  Whereia 
t  can  serve  your  lordshtp  or  family  at  any  tifDC 
you  think  convenient,  you  may  freely  employ 
mc.  For,  m  far  as  my  duty  will  al[ow  me  ia 
the  circumitancca  we  stand,  I  will  study  yaar 
well  aa  becouies^  my  lord,  your  most  laumbla 
senant,  D^rMdE^*^ 

'*  Struan, 

"  mh  July,  leso  " 

8ee,  in  this  ^oUectinni  other  particultra  ^ti« 
ceniing  Dundee,  roL  ll«  p.  945,  fiiseq. 


8S1} 


f^  High  Ttraion. 

t  hm  eldest  sone;  Donftlr)  r^I'Donald^ 

T,  of  Sdait ;  the  laird  of  M^Nauetitoun  j 

t    ■  Grant,   of  Ballindallcicii ;  -       ■    -- 

Stewart*  of  Apptn  ; M'Le&Q,  dHa5 

M*Dt»ijaI«l,  cliier,  of  Glencoe ;  Alexander 
M*Donaldf  youn«^er,  of  Glen^crric  ;  DnnaM 
McNeil),  of  Galenbellie  ;  atid  sir  Jobti  >1  *  Kean, 
of  Dow  art,  with  diverse  others  4  heir  associats 
attd  acoonnpUce^,  haveing^  shaken  off  ult  fear  of 
God  and  reguird  to  tbcir  maHicsand  their  lands, 
and  lore  to  th^^ir  nai'ive  counirey,  they  did 
Iryse  and  conlinow  in  open  armea  against  their 
majesties  autbonty  aood  t^ovemment,  the  tii^t, 
second,  thrid^  or  ane  or  other  of  the  dnyes  of 
the  inonetli  of  April!,  t6H9  years,  nr  ane  or 
«rtber  of  the  dayes  of  the  rnoiielli  of  May  ther- 
uheTt  the  said  year ;  and  iijioti  the  ■  ^  -  day 
€f  May  or  ane  or  other  of  the  daje^  of  tli?  s^id 
1B4Mieth  and  year  of  God  ftir:^id,  the  said  de* 
cifist  John,  Tiscount  of  Dnqdee,  and  the  other 
penofis  a^tneolirvDed,  did  come  to  the  toiinc  cif 
nrth  tn  fear  of  wear,  aud  therein  in  atie  hos- 
tile manner  did  seize  and  carry  away  the  de- 
[  laird  of  Blair,  and  other  ufllirei'i  of  their 
i  forcea,  and  detained  the  laird  of  Bbir 
•  10  the  castle  of  Dowart,  in  a  crnelt 
and  tad  cnnditione,  tiki  he  dye^l  ;  ^ml  ujion  the 
■  day  of  June,  one  thousand  six  htindrcd 

and  eig-hty  nyne  year«,  or  ane  or  other  of  the 
ilayaa  of  the  said  moneth,  the  perBones  abote« 
flftined  and  olhera,  being-  all  armed,  marthtog 
to  joy  tie  the  rebel  Is,  did  attack  a  certain  nam- 
'  of  their  maje&lies  force*  under  the  com- 
1  of  captain  Alexandor  Youngs,  in  Kyn 
lyre;  as  al%K>  the  said  John,  viMcount  of  Dun- 
Jeei  James,  earle  of  Dnmfi^rmljn|.%  and  the 
•ilicrpenHmesalKiTenamifd,  ha veing- raised  and 
mmtmbM  tc?erall  thousands  of  rcbellSf  and 
iMUuMi  rehells,  [sic  in  orif,^.]  they  had  the 
Mdiieuto  march  throw  thecountrey,  opprc^^- 
ifi|^  and  destroying  tbetr  maj(?stres  good  and 
loyall  sulj}ect»,  and  to  opjio^e  their  forces  ;  and 
I  the  26th  day  of  Jnlly,  I669»  or  ane  or 
'  ol'ibe  dayes  of  the  said  inonetb,  the  said 
[)*U  Johoy  viscount  of  Dundie,  as  generall  or 
ttiadisr  of  the  per!ioiis  forsaidif,  and  oih^r  rebel  Is, 
did  in  a  j>l»io  battle  attack  their  mujegties 
e,  betwixt  t!ie  blair  of  Atliole  and  the  pass 
ilieobrankie,  and  did  kill  and  wound  :jeve- 
r  majestjes  forces  and  gaoil  subjects  ; 

upon  the dayes  of  August^ 

I  or  otiier  of  the  dayes  of  the  said 

^  or  ane  or  other  of  the  nvonetln  of  the 

ar,  the  said  James  enrle  of  Dumferni- 

the  othiT  persons  Ibreaids,  and  their 

)  did  attack  their  majesties  ibrces  at 

uretbey  did  kill  henenentcidlonell 

Uajjd,  major- — Hendcrsoner 

dt  others  uf  their  majesties  officers 

bfiill  souldiers  ;  and  haveinqf  niett  and 

id  at  Innerlochie  u|ion  tht:  firsts  second, 

day  en  of  tlic  mooih  of  and  year 

lid,  or  ane  or  other  of  the  dayes  of 

•  111'  they  entered  into 

lie  conafiifadnSi  (Kinds,  and  ossivcia- 

ifibr  furnish  in*;  of  certain  numbers  aud  pro- 

]  men  for  the  niaintetiance  and 


A.  D.  1890.  [822 

support  of  tbe  rebellion,  ami  sent  ODt  parlies  tit 
murder  ami  destroy  Ihftir  majeftirs  jtoimI  sub- 
jects, and  to  mbb  and  herrit  thetn  of  Ih'eir  i»^iind«|  I 
and   the  particular  arts  of  rebellion^  lrca?iotf,  1 
ry«einf|ri  and  eontinueing  in  Afines  agaitist  their  1 
niajesttes  authority  and  g^overninent,  the  as-  1 
faulting  of  iheir  foroes*  th»^  c^rrisonein^  dfl 
houses,  and  stiiength<f,  the  harbotireinflf,   cor»-  j 
respondinif  with  open  rehfllB  aud  triiitonr<f,  and 
the  fiillinf^  upon,   nonndin"'  or   lotthing  their  J 
tna'ties  ftbrces,  and  the  other  crimes  ahote- I 
mentioned,  opon  the  dayes  rex'iVe  of  the  s«jw  i 
verall  months  of  the  saul  year,  on<3  thonsitnA 
six  hundreil  and  eighty  njne,  or  upon  ane  of 
other  of  the  dayes  of  one  or  other  of  tne  mondlw 
of  the  «;iid  year  1689,  oft' the  which  horrid  and  \ 
treasonable  crymes  above  specified,  or  auc  or  j 
other  of  them,  the  baill  forenamed  persones,] 
and  ilk  ane  of  tbeiu  are  actors  ajrt  and  piiirt|  j 
which  being-  Ibnnd  by  their  msjesties  and  lh«  I 
estates  of  parliaiuent,  they  iiuqi\n  to  be  piw  | 
Tiished  as  horrid  traitors  and  rebclls,  with  for-  ( 
fanlture  of  lyfe,   lands,  honour,  and  ^oods,  tt^A 
the  terror  of  others  to  coiiimilt  the  lyke  in  ty mt  j 
cnmeincf ;  and  therefore  tlie  saids  baill  defen- 
ders abovenameii,  to   have  compeared  beforft 
thttir  uiaje^^ties  and  I  he  three  eisitate^i  of  narlia* 
ment  within  the  parliaineiti  house  of  Edinburcfli,  i 
at  ane  certane  daye  bygone,  to  hate  heard  and 
seen   sentence    iind   decreet,  ^\ea  and  pro- 
noyncf?d  a^rajnst  thern  in  the  satne  matter,   at  I 
ut  more  length  is  contained  in  thes^iiilprincfpatl  I 
summonds  which  containes  therern  n  warraiitl  j 
for  executing;  thereof,  with  the  usimll  solivuiot-  ( 
ties  necessar  itpon  twenty  I'yve  days  warnint^,  i 
at  the  niercat  cross  of  the  head  Imreh  of  thft  j 
shyre,  where  the  fomameil  persone^live  ;  and 
in  casi^  there  be  not  tutus  acctssus  thereto  at  the  ] 
bend  hurgh  of  the  next  adj  iccnt   shyre  where 
they  lite,  oonfonneio  ane  act  of  the  first  sessions  | 
of  yonr  uioiesucs  first  parlinincnt,  daited  tha 
first  day  or  Aug'ust,  1689  years,  as  tho  said., 
suminonds  naised  and  dewly  execute  ai|fain.'4 
the  hail  I  fornamed  person  es  more  fully  pro  portly 
Thesaid  sir  John  Datrym]de,thtir  in.tjcstic«  ad- J 
voeat,  compeared  person  ally,  who  desyred  that  1 
the  said  proces  of  treason c  raised  brfnre  tlie  paf- 
liament  at  his  instance  agf/anst  the  repre^ientattvcfl  j 

of  the  viscount  of  tinndee,  and  — Halybur-  j 

ton,  of  l*itrtjrir  j   and  ai^atiiHt  the  said  JtiinrMi 
earle  of  Diifufermling,  and  tbe  persons  above-  , 
named,  and  oibcrs  in  this  kiniifdom,   who  ro«»e  ^ 
in  actual  1  rebellion  ayain.'ii  their  miije«jtits,  auflj 
still  contii>ow   in  arines,   tnifrhl  he  colled,  and  J 
aeconliij-^ly    all   the    persons    agiiinst     whottt] 
the  lyheil  or  indytcmejit  of  high  lreas<»ne  ia  ^ 
raised   were  thryce  pnblicly  called  by   mea* 
eers  at   the  barr  and  at  the  g^rcat  dotjr  of  iho  J 
bouse,  aud  notie  of  tkeiu  coni|iearinjLj'»  tliu  saidi 
sir  John   Dalrymple,    their  uia'ties  advocat,  | 
produced  in  present^i  of  the  esiaies  of  pari i a* 
ment,  the  letters  and  ind^tcmcul  of  hiyb  trea- 
sone  wryttcn  in  Latiue  U[K)n  parch metit,  under  | 
the  band  and  subscriptione  of   the  dtpnt  direc- 
tor of  the  chancelary,  keeper  of  the  <ptartcrJ 
■«all,  tojijelher  with  ane  other  dnplicat  there-  , 
of,  tinder  tha  hand  ;vud  subscriptlone  of  th« 


2  W.  ^  M»     Prmeedings  againsi  Viicmni  Dundte  and  oihirtf 


fi89] 

.fl^y  dep^i  dire<?ior  of  the  Cliancery,  keeper 
U  the  mid  quarter  seiJi,  ttem,  4iie  aath^fouek 
copies  (»f  the  &aid  letters  ol'  ireasone  traosLated 
lalci  BugU^ii  tO{^ttht:r  wUb  the  rfirftairl  act  of 
|«irii«ni^nlf  cJiitml  tlie  firal  day  of  August ,  li89 
jriitfVf  whtrby  ilie  king  «utl  qtieep'a  m»je!tlie«i 
AOd  th#  «Htat^  ul'  |>iirliiiUkelit  fkie  gr^itit  warrand 
to  bii  mi^wttei  advcicikt  to  mUe  a  tit?  imlytemetit 
of  hif^li  trt^iurazie  betor  the  [lariiaiuenti  agaioist 
tilt  vitfiount  of  Ditudcef  the  earKe  of  Dutntertu- 
lingi  mid  otUei*  |M?r£U^e««  whit  arc  in  opeo  re* 
WLUuu  against  their  nis^ettiaei  aad  Ivk^rays 
agfalA^t  all  «ucb  ftrmu^  u  inlctxreptm  any  of 
hm  msk'tien  Hmcvf  under  iho  eomtntind  of  Eunjor 
gciiernU  J!ll*Kay  in  their  relreat,  nud  kiUed^ 
wavttid«d,  or  rolihed  them  of  their  cloatlis, 
tiursif»f  aud  anuvt ;  atid  iti^eby  tbey  deiilar« 
thai  a  ctUiion  RST'^^n^^  the  saidt  pernouef^  at 
Ih^  tniircait  croKjs  of  the  htad  kirgh  ot  liie  shy  ru 
whmv  tiiify  iluifll;  or  in  cave  th^  benot  ittiys 
m^'Cuvi  tlinrto  ftt  thf^  meroil  croia  of  the  b<^d 
bur^b  of  tUti  ot^t  ncLjatf^ni  iihyt<  shall  be  auAi- 
ci«n|  I  md  ofWr  production  aud  re:iihtig  of  th» 
■Ibid  indy1«iiiimt|  in  t^avit^^  ivhemf  ihctr.  was 
l^o  pruicipalb  tiroducird  and  ane  authf^utiak 
coi^rtij  tbt'ruof  in  kti]i»^liAh»  and  the  act  of  parlia- 
inrnt  at>n%L'ini'rrUiTniHi^  Vf\mh  vvofc  read  in  au- 
dien^ci  uf  thar  ni.ij«i!KtIcs  high  oommissiouer 
find  tlic  ^ttiutiiKnf  ^miltninFiit,  tUdr  ma^iies  ssiid 
Adiucat  did  pritduct^  (mr  f^ircnttae  of  tli€  i^aid 
aiio\iuouili,  diitt?d  iht^  ?th,  ath,  imb,  IStli, 
t:)th,    l^li,  and    J  Itti   dayi  of  March,  iCi^ 

Jf'tar*,  uoilrr  tht*  Imnfl  of  George  Oijilry^  AK 
mny  beraidd  )  h«nrn>er  thi^t  the  iaid  Ciiittrfife 
0|{i1vi',  Aih^ny  hcrauhl,  aU  cummaud  of  tfic 
li^idsi  uHUirsof  trccisoui;  raiiticd  at  tbe  iuKtanee  uf 
llirir  niiytGitif^s  fluid  itdvfjcat  a^irn^t  thti  said^ 
di  IfiMkr*,  and  by  vcriew  thereof,  Wilh  *jne  of 
thi  ir  nia'uc*!  lLn(npetet*s,  and  witne->fi  tlierc*<^ 
inttii  iubKCfy  vcin^,  jmiit  ujion  the  bdid  7tli  dfty 
4)f  Marv^hf  to  the  oiercat  ci^m^i  of  Coupar^  in 
Fylftf  ht'^il  bnr|rh  of  this  sVefdame  thereof ; 
And  u|ion  t)i«  »aid  ol|rht  day,  to  the  merest  cross 
of  Fui  iar,  ht^ad  burgli  of  I  he  aVefdonie  thtireof ; 
und  UjHui  the  &ii\i\  liith  day^totlia  Qiercalcr^)^ 
off  Abi^rdm'n  ;  and  unnn  tlW  iiiid  ISU*  day,  to 
Iht'  nu  teat  cfiiKM  of  bunUT ;  and  upon  the  i^aid 
VMh  d(iy ,  III  the  njcrcut  crossi  of  KIgiiie  of  For* 
xtMi  and  nnoti  thi^  laid  Hth  du^y  to  the  mervi^t 
rruMatw  of  Kainii"  and  tui ernes  rox^i^e;  aud 
upon  till*  auid  ^4ih  diky^  to  tlie  mercut  crovai  of 
Perth,  liaad  hur(;Ui(  of  tbn  ptVefiiomos  thert^of, 
ttn<l  llnircnt  ilk  aue  at'  itio  Haid^  crocBs  rex^Wt 
and  KUt-cei%ive  in  thttr  ma'ti^a  uatne*  atid  ay- 
itiority  ^itb  tliiiii-  iinnttii  of  an»es  dupkyed, 
•iinndof  tr-um)H!t,  and  other  aol tumult ita  reoui- 
mitf  II nd  lu^oeaiar  t^pwi  proclaniatign  and  puhltck 
readiucf  uf  tbt  aaid  iutttmouda  of  traasou«,  he 
luwliiiry  Hmirjjisd  tbo  liaiM  peraonos  above  and 
atWtuimitiont'dt  ^i£.  dulin  vlfscouaiof  Dundee  | 
J  Hint**  em  Im  of  Unnitrrmlin^;: ;  v  Iscoimt  of  Freii- 
dranifliit  bid  Dunkrtd ',  inujor  William  Gra-' 
hiiin,  vt  Uat)nliH]>k  i  collantll  Akxander  Can- 
tian  I  Jtihn  ClftlmKU  of  ft'iiRtkcn;  Mr.  Colin 
M'Rinii^it*,  utji'b  tn  ilu^  tarJe  of  tseaforth  ;  air 
John  nrinnunMiil,  of  Mftchany ;  William 
<;fawfnrd»    yQ4M^ar,  of   Ardmilfaii  i   James 


bia    bmtlier  ;  — 

fitrowan  ;    David 


son«   of 

to  itie  d«eei§l  Joho»  riaeouat  of  Uctadeff  lur 

bimnetff  and  na  repr««eatinff  tbe  »ftid  f  iicoim  ^ 

• Ualy  burton ,  of  Pilcurr  ;  and « 

lUlyhurton^  m  aina  the  said  dei^kt 

tlaly  burton,  nf  Pitcurr,  liis  falitt^r  ;  James  £<- 
uionmount  of  Neirtoun,  of  Downt' ;  »r  Emm 

Cantt-ron,   of  LochEeei  i Canteen, 

hit  eldciai  gofii^  ;  Donahi  Hl'^DoDaJd,  yooapf, 

of  Hilate ;  the  laird  of  M'Nayg^hl&uii  ;-^ ^^ 

Grant,  of  BaUindalloeh  ;^i • • — Stewart,  ef 

Appjn  ;  -^ M'Leiui,    alias    Af 'Dooaiit, 

elder^  of  "Glencoe  ;  Aleivander  JU^tkiMld^ 
yoong^,  of  Gleoi^rie  ;  Donald  M'NihII,  of 
Gal h hell ie  ;  and  6i»  Jobo  M*  fweuti,  ©f  [ii>«iHSTt, 
and  div^raeoihers,  lh€tf  assac'iata,  and  ac^ia* 
pi  ices  ;  aod  all  oih«n  the  succeieiiwm  ot'sudi  a( 
thefD  as  ar^  dead,  nnd  your  tu tiara  atid  cutitwi^ 
it  thev  »ny  havr^  fur  iheir  in  treat ;  to  |i«r«  oe»« 
pi'iriL^ij  liL'ior  the  higii  court  of  parlHtteil^ 
wUh^n  the  parliatnent  bouse  of  EdiolHiifii, 
itpon  the  ihy%  particularly  meu tinned  iu  dii 
Si  id  lanumotidji,  and  that  he  made  c^t  liticatHHii 
oudaHixtand  left  auihentiek  doubles^  withaii 
fif  the  witiii'^v  ^t  und  U]ioo  dk  ane  of  tbe  laida 
mercat  crosaes,  hcfor  ;^nd  in  proiffioe  «f  ll^ 
wjinesa  meiUioued,  in  and  »ub&crymiag  miU 
uem  to  the  aaid  c-xerutiiiofr ;  ifi^elber 
antsibcr  exuutanc  mider  tht>  band  of  II  f 
Glover^  Hutheaay  berauld*  bearing^  that 
the  mid  tiighi,  li^nih)  tu^lt,  foortein,  aiidfj 
day»  mx'iti^  of  the  mouth  of  March, 
years,  Iho  said  VViHinm  Glover  lo  bate 
oomiuauii  of  tbp&ak)  ^nmrnond^of  irpasuite, 
the  instance  of  tbf  mid  sir  Johti  Dairy ni^, 
their  oiaji^tics  advocat,  lor  ther  hig^haes  in* 
tr^l^  against  tbf?  baiil  dclendtrs  ahovenained, 
and  tbetr  aceonijdieej,  \et^i  witb  ane  trarope- 
tcf,  npon  the  suid  Htk  Uiiy  of  ^areh,  and  yor 
of  (iod  forsaiij,  to  the  mercat  crofs  of  Lm* 
nerk^  head  burirh  of  the  G^retdome  ibrr^off  and 
upon  the  tt'ntli  day  uf  Mareb,  and  year  ol  Gad 
above  wry  ten,  to  the  mercat  cross  of  Air,  hei4 
burgb  of  the  a^reldome  thereof;  and  alaenpcm 
the  aaid  lith  day  of  i^t^rchi  and  year  oj  God, 
fortaid,  to  tht^  mercjkt  cross  of  Interadft 
head  burgh  of  tbes^retdome  of  Arg^yle  ;  aad 
tifion  the  iburteeJi  day  of  I^larcb,  anil  ytaf 
of  God  abof  e  wr)  tin,  to  the  mei-cat  rros  of 
Renfrew,  head  bnrgb  of  the  a^refdcaie  tkoifli^ 
and  (ipc»n  the  fyfieen  day  of  March,  aud  fern 
of  Goo  fan^aidf  to  the  mei^ai  cross  of  Slertin^, 
head  burgh  of  the  sVefdome  thereof ;  and  tljere 
at  ilk  ane  of  tlic!  ^id^  eroisei},  r€9p«i;tif e  aod 
succe£!>if  c ;  in  their  majesties  name  and  autbo- 
rity,  tbc  aaid  \l  jtliam  Gbafer,  Rothesay  ha- 
ranhl,  bfvfuHy  ssummoned,  warned,  and  cliat^' 
ad)  ilk  ane  of  ihe  lornLtnjed  person«fl  i 
named,  and  others  contained  in  the  sumo 
of  treasone,  and  ilk  ane  of  tbeni,  ;ind  the  sna- 
cessfint  of  such  of  them  as  are  dead,  be  sound 
of  trujnpet^  thfee  sereralltymeft,  fiitli  displayed 
cj^iatt,  he  opt-n  proclam^itione,  and  publiet  read- 
ing of  the  said  sumuioods  of  trt^sone,  sad 
u&ing  other  solemnities,  nrcessar  to  comprnr 
bdbr  thm  m^esti^  high  C4>urt  of  parliaiiiit^ 


itjMiJ 

latc  il    I 
iune,  at    I 

■vrnri*        ' 


fl 


ISi]  for  High  Treason, 

'  be  holdeo  witbio  tbe  parliament  house  of 
dinbargb,  at  one  certain  <lay  b;^'gone,  in  the 
9ur   of  cause  without  coutinuation  of  da^es, 

I  tbeetTect  for  the  causs't  and  made  certihca- 
DD  as  is  eznrestin  tbe  said  summonds  of  trea- 
me,  and  aifaxt  and  left  ane  just  and  autlientick 
jpie  upon  i)k  ane  of  the  saids  mercat  crosses, 
»|iecti?e  and  successive,  upon  the  dayes  re- 
irctif  e  above  specified,  together  with  a  list 
t'tbe  witness  names  hetbr,  and  in  presence  of 
le  witness  mentioned,  and  desiprncd  in  the  ex- 
7atton  and  subscryveing  witnci$s  therto,  as 
le  saids  executions  more  fully  bears.  Ther- 
fter  the  saids  Georjirc  O^ilvie,  Alban  v  herauld, 
ittd  the  said  William  Glover,  Uotiiesay  he- 
inld,  who  did  execute-  the  saids  letters  of 
itasooe,  and  th(>  witness  ins'rt  and  sub- 
cryvin^  witness  to  their  saids  cxecutioues 
?eipective  tiirsaids,  compeared  personally  in 
pKseBce  of  their  majesties  high  commissioner 
Bad  the  estates  of  parliament ;  and  after  publict 
mdiiif(  of  the  said  lybell  of  treasone  in  Hcots, 
awl  the  execntiones  of  the  samcn  ;  the  saiils 
beranlds  and  witness,  l>eing  solemnly  sworiic, 
and  interrogat,  dcponetl  that  the  saids  cxecu- 
liensformeriy  subscribed  by  the  saids  heraulds 
nA  witness,  were  trew  executions  in  all  poynts, 
is  manner  therin  contained,  and  that  the 
Mien  was  true,  as  they  should  answer  to  God, 

II  their  oaths  and  denosttiones,  wryten  upon 
tte  back  of  the  saids  respective  executions 
Mtf  fabacry  ved  by  them,  and  by  the  president 
of  jwrliament.  more  fullv  bears.  Therafter 
Aor  roajeKtics  advocnt  did  obviat  three  objec- 
tim  which  mi^ht  be  made ;  Prime,  that 
«bm  the  executions  does  not  bear  that  the 

Cm  were  ceited  at  their  duolUng  houses, 
only  at  tbe  mercat  cross  of  the  head  burgh 
iftbe  sbyrea,  he  represented  that  the  warrand 
pren  by  the  parliament  for  raising  the  proces, 
to  expressly  allow  that  manner  of  citation  ; 
^ndtf,  Albeit  the  persons  cited  be  absent, 
^t  the  leading  of  probation  against  them, 
lUw  absent,  is  expressly  warranted  by  the 

act  of  the  session  of 

piriiunent,  king  Charles  the  second,  in  anno 
IW;  Tertio,  the  deduceing  of  probation 
tpMMt  perMns  guilty  of  treason  after  their 
tob,  is  confbrra  to  the  sexty  nynth  act,  sext 
Miaineot  of  king  James  the  fyfth,  which 
*cta  were  read  in  audience  of  their  majesties 
^|[fa  eammitsioner  and  the  estates  of  parlia- 
tal,  ind  then  their  majesties  advncat  de- 
slarerf,  that  he  restricted  tlic  lybell  to  the 
kfeodera  their  being  actually  in  armes  amnst 
heir  majesties,  after  tlie  fourth  day  of  May, 
1089  years,  (which  was  twenty  one  days  after 
he  pvodamation  of  their  maiestiea  king  Wil- 
iui  aiMl  queen  Marv,  to  be  king  and  queen  of 
hii  mime)  or  such  of  the  saids  defenders 
rbe  joyned  with  any  of  the  rebells  who  were 
I  sriBes  after  the  said  day;  and  the  said 
iHWfl  eerie  of  Dumfermliug ;  — ^-  vis- 

Mat  of  Frendraught ; loni   Dun- 

wU  ;  mftjor  William  Grahame,  of  Baquhanle ; 
eUMMll  Alexander  Camian  ;  John  Cleil- 
nd,  of  FaakcD ;  Mr.  Colin  M'&cnzie,  uncle 


A.  D.  1690.  [dS6 

to  the  earle  of  Seaforth;  sir  John  Dram- 
mond,  of  Nachannie;  VVilliam  Craufurd, 
younger,  of  Arduiillan ;  James  Craufurd,  his 
Brother ;  ■  Robertsoue,  of  Strowan  ; 
James  Kdmonston,  of  Newton,  of  Doune; 
sir  Ewau  Cameron,  of  Lochzeel ; Ca- 
meron, his  eldest  sone;  Donald  I^I'Donald, 
younger,  of  8clait ;   The  luird  of  lVl*Naugh- 

toun;— ^-Grant,  of  Hullindulloch  ; . 

Stewart,    of  Appin ; M*Kean    alias 

3I*Donald  elder  of  Glcncoe  ;  Alexander  McDo- 
nald, younger,  of  Glengaric;  Donald  M*Ncill, 
of  (vallalieilic ;  and  sir  John  N*Lean,  of  Do- 
wart,  and  also  the  said  David  Grahume,  for 
himself,  and  as  successor  to  the  late  viisfouiit  of 

Dunden  ;  and Halyburtone,  of  Pit- 

ciirr,  son  to  the  said Ualyburtou,  of 

L*itcurr,  his  father;  being  lawfully  fiummoned 
by  hpraulds,  witli  displayed  coatts,  and  sound 
of  trumpet,  and  other  bolcmnities  requisite, 
to  have  answered  to  the  forsaid  indytement ; 
and  being  oft  and  diverse  tymes  called  by  niacers 
in  the  parliament  house,  and  at  the  great  door 
which  was  cast  open  as  use  is  and  not  com- 
pearand,  the  which  lybell  and  indytement  o^ 
treasone  persewcd  by  their  majesties  advocat 
against  the  deceast  viscount  of  Dundee,  and  his 
representatives,  tlie  earle  of  Dumfermllng,  and 
others  contained  in  the  lybell,  with  the  execur 
tions  thereof,  with  the  principall  iudytement, 
and  the  authentic  double  of  the  samyne,  in 
English,  with  the  forsaid  act  of  pari  lament, 
impowcring  and  granting  warrand  to  the  said 
sir  John  DalrymuTe,  their  majesties  advocat,  to 
intent,  raise,  and  prosecute,  the  forsaid  lybell 
of  treasone  against  the  saids  defenders  in  tbe 
I  way  and  manner  abovementioned,   being  at 
I  leni^h  heard,  seen  and  considered  by  their  ma- 
jesties and  the  estates  otf  parliament;    and 
they  therewith  well  and  ripely  advysed.  They 
by    their  vote    and  interI<»cutor,     fand     the 
lybell  relevant  in  thir  termes,  that  these  per- 
sons were  actually  in  armes  against  their  ma- 
jesties after  the  fourth  day  of  May,  16i'9yean, 
or  joyned  with  any  of  the  rebells,  who  were 
iu  armes  after  the  said  day  relevant  to  inferr 
the  pain  of  treasone ;    Aner  pronounceing  of 
which  interlocutor  their  majesties  advocat  per- 
sewer  did  adduce  diverse  famous  witnesses^ 
lawfully  ceited  for  proveing  the  povnts  oi'the 
lybell  admitteil  to  his  probatione,  wbo  haveinff 
compeared  in  presence  of  their  majesties  high 
commissioner  and  the  estates  of  parliament, 
and  being  solemnly  sworne,  purge<l  of  partial! 
councill,  examined,  and  interrogat,  upon  the 
i  poynts  of  the  lybell  and  indytement  of  treasone, 
I  admitted  to  the  perscwars  probatione,  dep<ined 
I  in  manner  mentioned  in  their  oaths  and  de- 
;  positions,  as  the  samen  8ubscryv«ftl  by  them 
i  and  the  president  of  |>arliaineut  extant  in  the 
.  proces  fully  bears  ;    and  sicklyke,  their  ma- 
jesties advocat  profluccd  the  wiei'N  aftermen- 
;  ti(»neil,  viz.    Ane  bond  of   asMtciatinu  entred 
j  into  by  the  laird  of  Lochzeell,  Donald  ftJ^Do- 
'  naki  yonnger,  of  Sclail,  and  other  highlanders, 
wherby  they  bind  and  obleidge  themselves,  lor 
his  majesties  (the  late  king  James)  service  and 


¥n 


»W.*|t 


the 
uidto 


loieor 


piiti- 


ihmr^wn  mftiy,  lo  meet  9k 
*     day  af  Bqvtembei*,   If" 
brin|&JOQ|^  with  tbem  th« 
feambie  men  \  that  is  to  imjri  < 
UteLr  proportionmlL   fiirt  iLiid 
ciilarly  yViu  eDUmf^mt,  Inil  pt  is 
cUr^a,  ttial  in  cuse  &rjy  of  theidbells  thaUas* 
g«ii!i  t>r  SLUitck  «rij  <j(  I  tie  penoocf  miliDBed 
H  ID  the  saiil  bond  u^'  as^Hnatm,  betwizjt  the 
ijale  therenraovJ  tbr  for^aiildeyofNUidBMHise, 
they  dc^e  aukmuly  iirunilsetp  aMlit  one  ewN 
ther  lo  ilie  oiumcisi  of  tiieir  yewer  ; '  datad  the 
2iil)  day  of  Augtifi^t,  Xtm  yeeif  ;  lleni.aiio- 
Iber  bt»»i|  of  i&uudiilioiie  bellHail  ike  vbcouiit 
Qf  Frendrauglti,  J<thn  Grait,  of  BaUindifcltot^li, 
and  olhers,  dated  citt  ^  i^tii  day  of 

January  1690year%  wher«by,  M  tliey  pretead 
in  lestimonifi  ol'  tb4;ir  Idyamr  to  ih(?ir  tacred 
snd  dread  ^oreraign  ;  iiQdnird^e  ^^urjiy  of 
tbtir  tVemds  aod  gtiad  n^^ighboor^i  tliey  tow 
mild  prates t  befor  ifae  AJniMrhty  Qod^  eedott 
tlicir  salvatioa  ^i  the  greal  daj^  to  gee  oa  ao* 
cretly  imd  niib  ill  thfy  powir awl  alwtfth  tfaej 
have  t9  »tlck  and  by  do  by  one  anoliiar,  awl 


wbeji  aoy  ^f  theoi  shall  |m 
ivay^  tiM^ksled  by  any  paicty 
Bamererf  Ibey  fibaJl 


^oraoy 


repair  to  thair  aid  with 

aU  iWr  streo^b  and  po«ir|.  aad  thiA  upda 
Anthar  JDi 
iaafar  bel 


tbe  lirst  caU  wit  bout  any 

lay  ;   and  di»t  thry  i^hiill  aofar  be  fayaoMder. 

<ioofieat  tif  bi»  m»je£tie'i  ffoenill  aad  the  bm» 
jofT  [tairt  q1'  tbetuMib^si,  So  hdl^  Aan  God  ; 
as  aW  produced  ane  letter  wiytM  by  the  .aiid 
sjr  Kvi^^n  Canicrori^  nf  Lootmll;  Mr.  Colillr 
VKenxie,  uiide  to  the  earle  of  Seafbrth; 
John  Graot,  of  BalliodaUoch ;  tbe  Uiird  of 
H'Nangfatoua ;  sir  John  M'Lane,  of  Dovarl ; 
and  odiers  of  the  bighlaad  cbiDS»  direct  to 
major  Geoei'mll  H'Kay  from  Birso*  tbe  17th 
day  of  August  1689»  in  anawer  to  his  q'by 
they  ackoovi  ledjg^e  tbe  recept  of  the  m^or  ge- 
nerall'a  letter  fni  Stratbb^^  and  they  said 
that  he  gave  acooQQt  to  hrif^deer  Camam  from 
St.  I'natooe,  to  wbicb  be  gave  a  ciiiU  ratom, 
lor  by  tdling  that  they  aupport  themselves  by 
fictions  and  stories  (a  ming  known  all  tbe  world 
over)  is  no  railleing ;  awi  that  the  Christian 
means  ^  the  major  geaerall  said  in  hia  last) 
they  make  use  of  to  advance  their  good  cause 
by,  is  evident  to  all  the  world,  and  the  argi»- 
ment  they  use  to  move  them  to  address  to  their 
ffovemment,  is  consequential!  to  the  whole ; 
fill,  instead  of  telling  them  wbat  Christians, 
men  of  honour,  good  sobjecti,  and  good  neigh- 
bours, ougbt  to  £e,  he  tells  them  m  both^  let- 
ters that  his  nuuestie  (the  late  lung)  hes  hott 
warrs  in  Ireland  and  cannot  in  haste  come  to 
them,  which  tbo  it  were  else  trew,  as  they 
know  it  is  not,  is  onely  ane  aigumeni  from 
safety  and  enterest;  and  that  he  might 
know  the  sentimi^nts  of  men  of  honour,  they 
declare  to  him  and  all  the  worM,  they  scome 


aeaaiif 


his  usurper  and  the  indemnities  of  hisgoverm> 
roent,  and  to  save  his  further  trouble  by  his 
*    ''  IS, the  ..      .       . 

rking 


Ugmui  Vmrnini  I^undte  and  others,     \W$ 

way  lo  tnun^tli/e  im  iloruiuLoDi  and  piYninh  h$ 
rebelU  ;  mui  allpcil  he  should  ^ecd  u^  aictiluiet 
to  tlitin  Hi  iib«  they  wiU  all  d^«  \^ilb  ikpr 
svraiid&  ui  ibi^ir  h^ds  befur  ibey  M\  m  1km  , 
loyalty  ;  and  awore  ulleadgeoooe  ta  Uieir  sii««-   i 
rrV^  f  nn^  dtsyrcs  he  amy  then  Jtt4ge  eliit  ] 
eiiWlduki'  H.-4uiiltou'i  ktbef  bes  npsetlteB|  j 
but  that  Utfiy  had  gotten  aiie  banou myt  i^illlv  ] 
for  that  »t«>rjc  irotii  Irdaud,  and  aJibo  ihav  Cii 
blotter  ti^il  i)im  U^w  luatterii  goc  io  Irdan^aRd  * 
tJiAt  tb«y  \Hiy  tbofic  ou  wbom  such  %Umm  im 
inOiiener ,  y*ti  since  lb«iv  bavt  oo  nrdeni  to«ftit  I 
conditions  lo  any  rcbefU^  ib«y  ahtowr  bisfrtet  | 
ami  the  major 'gc^ueralL  to  beUe^e  oo^  aodtikt  1 
tbeir  mea^ur^s  hy  their  aueceft^  UM  im  o>aj«»tii 
(the  late   king)   h\9  fuJ-tber  orders  5  aad  t^f 
ibaok  liie  major  geoeraU  ffir  the  gmd  mi 
of  bii  invilaiicrii,  ihoujgb  ibey  are  o*ifi"  ' 
bad   no  hopes  ol'  succe;i»   and  that 
shortly   tudoavour  to  give  him  a  rti|uj^ 
:ind  that  lh<i&«*  of  lUf^tn  who  lire  iiiifthiiMl*  hi^i 
already  seen  and  defyed  ibe  prince  d'  Om^ 
hia  fny^g^tLs* ;  ami  ibat  tliey  bad  returuwl  diii 
llariMttori's  ku«r,  becaus  tbey   bad 
for  it  thati  ^ley  :    And  alter  prodi 
reading  of  the  saids  two  bf^iuk  of  1 
and  iTiLMsive  lc?ltar  aboveraen1iouvd> 
of  tbf ir   majesties    high    comreii^weirpj 
the  estates  of  pariiainontt  ihe    Gaid   air  i 
Dairy  If  i{de,    th^ir   tuaje»lie»  advoeat,  d#dir* 
ed,    that     besyd^    l!ie   deiMwitionca   df  lk$ 
witn^isa  adduc4sd  aj^ainsi  sir  E*an  Caui^raQf  d 
LocbKeeM  \    DouaUl  Al'Uouaid^    youngar,  4 

Bdaitt;  Ihe  laifil  of  M*  Nawfcf btoo  ;  and 

Grant,  of  Balliudallock  ;  be  mmle  uj*e  of  Uw 
saids  two  bond  a  of  association  «i>tred  into  aa4 
iign(?d  by  the  laird  of  Loebxtel,  and  t>ih«Thi|li- 
la  ad  erst,  at  tbe  cattle  of  Blair,  iu  Avtgu&tt  1^^ 
and  the  other  bond  in  January  1690,  GuberyM^ 
by  the  visieount  of  rreiidray^:hi  and  athi  '^^ 
which  bond»  tb#y  obleid^e  themselirea 
to  one  aoolhet  10  bis  miyestica  aervice, 
by  Uk*  place  and  pen»OD»  appears  to  be  ihe  lilS 
kiog^  James  i  and  farder  he  deckred,  ihal  N 
made  ose  of  tbit  saids  bands  of  assiM'i*noat4inl 
mis^ve  teller  for  nduiniLcukting  uf  tbe  ^' 
batkn  ag'ainst  tbe  aaida  |)eraon!<»  £tib»riv«>W 
ibe|%of,  and  dciyrad  thai  the  |irobiitiuii  ^riiiiMtA 
againsii  lb«  deiender*  mig^bt  lie  read  ofif  aid 
f  otled  singly  as  10  e?ery  onft  of  lh<:  dofrJiJ^iir ' 
aud  which  waa  ^ceordingiy  done  1  Aad  iIp 
king  and  queun'^  majestiea,  aud  ibi^  csUlK*  i' 
parliamcut  having  considered  Ihe  loinaid  IjM' 
ami  iwdytement  for  high  Ireasone,  fWfiewiill< 
the  instance  of  Chtlr  majesiies  advocat,  agaM- 
tbe  Ibrnamed  per^onej,  defenders^  wilb  1^^^^ 
]Ki$iLii>ua  of  ttte  witopfiKes  who  were 
aud  preset! t,  and  deponed  in  the  siid 
treaaoijer  aa  to  ihe  poy&ts  admitted  to  Ihe 
ad  vocal  hm  ppobation  in  maimer  fnnfcaMU  tiu 
a^faiust  tbe  dEfe^i^t  John,  viaoouot  of  Uiuidit 
Mr*  Datid  Grabame,  brc*tber  to  tlie  siiil 
eriout,  lor  bintiielf,  and  as  air  and  i4ccir«i 
Im'  Hujd  late  ¥i^count ;  the  lord Dunheiitl  P 

eel 


Buberyist^ 


VViliiam  Grahame,  of  Balqubapbi 
frequent  invitations,  they  aamra  him  that'^they  |  Cannon  ;  John  Cieiliand,  ol'  Faakcn ;  t 
amsatiafiadKtheirkiBgtalMkiaowaiyaeaiidltiark  of  llmnlertiibag  i    .-     ■  -  wersf 


for  High  Treason. 


A.D.  169a 


[S30 


Dglit;  Mr.  Collin  M*Kenzie,  uncle  to 
e  of  Seftforib;  sir  John  Drammond, 
lanie;  William  Crawfurd,  younger, 
lillan  ;  James  Crawfurd,  his  brother ; 

I    of  Strowan  ; Robertson ; 

Sdmonstoun,  of  Ncwtoun  of  Doune ; 

I  Cameron,  of  Lochzeell ; > 

I,  his  eldest  sonc ; llalljbur- 

ilcurr ;  and Hallyburtonc,  of 

hissone ; Stewart,  of  Appin ; 

-  McLean,  alias  M*Donald,  elder,  of 
;  Alexander  McDonald,  younger,  of 
ie;  David  M*Nei1l,  of  Gallocliclly ; 
M'l^an  of  Dowart ;   Donald  M'Du- 

inger,  of  Sclaitt ; Grant,  of 

joch ;  and  the  laird  of  M'Naughtoun ; 

foniamed  persons  were  actually  in 
pains!  their  majesties  aikr.  the  4tb  day 
16G9,  or  joyned  with  any  of  the  rebells 
re  in  .armes  afler  the  said  day ;  ami 
Ifio  considered  the  bonds  of  association 
sive  letter  aboTcmentioned,  produce<I 
nl  advocat,  which  he  declarcfl  he  made 
for  adminiculatinff  of  the  probation 
he  said  Donald  McDonald,  yonn^er,  of 

ind Grant,  of  BallindaTloch ; 

I  and  hereby  finds  the  forsaid  cryme 
ie  as  it  is  found  relevant,  viz.  that  the 
1  persooes  were  actually  in  armes 
heir  majesties,  aAer  the  4th  day  of 
89  years,  or  joyned  with  the  rebells 
e  in  armes  after  the  said  day,  suffi- 
erified  aod  proven  against  thesaidJohn, 

of  Dundee;  Mr.  David  Grahame, 
•r;  major  William  Grahame,  ofUaquh- 
lonell  Alexander  Caonon ;  John  Cleill- 
asken ;  James  earle  of  Dumfermliniif ; 

-  viscount  of  Frendraught ;  Mr.  Colin 
e,  uncle  to  the  earle  of  Scaforth  ;  sir 
•rummond,  of  Blaclianic ;  William 
I,  younger,  of  Ardmillan ;  James 
,  his  briber  ;  the  laird  of  Strowan  ; 
ne ;  James  Kdmonstoun,  of  Newtdun 
! ;  sir  Evin  Cameron,  of  Lochzeell ; 

-  Cameron,  his  eldest  son ;  ■■ 

loo,  of  Pitcurr;  Stewart,  of 

McLean  alias  M'Donald,  elder,  off 
;  Alexander  M 'Donald,  younger,  of 

e;  M«Neill,  ofGallaclielly  ; 

3I*Lcan  of  Dowart;  Donald  M'Do- 

UBser,  of  Shut ;  Grant,  of 

lodi ;  and  the  laird  of  M'Naughtoun  ; 
fUBt  teverall  votes  upon  adv^seing  of 
ation  as  to  each  one  of  ySn,  upon 
cing  of  which  interlocutor,  William 
Jrawfurd,  for  bimselfe  and  in  behalfe 
ficorietta  Seton  oountes  of  Wigtoun, 
itcs  of  CraufunI,  his  spous,  gave  in 
stalfoa  under  wryten,  representing, 
sni  the  said  James,  earle  of  Duni- 
npoa  ane  assignatione  granted  to  him 
id  ooontes  of  Graufurd  of  two  thou- 
ks  of  her  joynture,  did  grant  to  the 
let  a  baok  bond,  dated  the  2nd  day  of 
iSS  years,  declaremg  the  samen  to 
I  fmnled  in  trust  and  for  the  behoove 
idcowM  and  her  children,  as  the 


daid  backbond  bean;  as  also  that  the  said  Wil. 
liam  earle  of  Cranfurd  having  ane  assignation 
from  tlic  dcceist  earle  of  Crawfurd,  his  father, 
of  all  debts  and  soumes  of  money,  hath  right 
to  the  soumes  dew  to  him  by  the  said  James 
earle  of  Dumfermling,  his  father,  on  sny  ac- 
couut  wliatsoever ;  and  thcrfor  the  said  WUliam 
earle  of  Crawfurd,  for  himself,  and  in  name 
of  the  said  countes  of  Craufurd,  his  spoutf, 
lirotested  that  the  doom  and  sentence  of  for- 
fualture  to  be  given  and  pronounced  against 
the  said  James  earle  of  Dumfei-mliog  shall  not 
be  prejudicial!  to  their  saids  debts  and  claims  ; 
but  that  the  estate  to  be  forfaulted  shall  be 
burdened  and  lyablc  therefore  ;  sicklyke  as  the 
suid  sentence  of  forfaulture  had  not  been  pro« 
uounccd,  and  therupon  asked  and  took  instru- 
ments, which  protestation  their  roi^esties  and 
the  estates  of  parliament  have  admitt^  and 
admitts ;  and  sicklyke  captain  Charles  Strai- 
ton  protested,  that  (he  doom  and  sentence  of 
forfaulture  to  be  given  and  pronounced  against 
the  viscount  of  Dundee,  shall  not  prejudge  him 
of  the  soume  of  5,000  merks  a'rcnts  thereof^ 
contained  in  a  bond  granted  by  the  late  vis- 
count to  provest  Kennet,  and  in  a  translation 
be  him  in  favours  of  the  said  captain  Charles 
Straiten,  and  which  bond  was  grranted  sereral 
years  befor  the  late  happie  revolution,  which 
protestation  their  majesties  and  the  said  estates 
of  parliament  also  have  admitted  and  admitts  ; 
And  therfore  our  soveraign  lord  and  lady,  and 
the  estates  of  parliament,  by  the  mouth  of 
John  Ritchie,  dempster  of  parliament,  decema 
and  adjudge  the  name,  fame,  memory,  and 
iionour,  of  the  said  viscount  of  Dundee,  and 

Halyburton,  ofPitcurr,  to  be  extinct, 

their  blood  to'  be  tainted,  and  their  names  to 
l>e  riven  furth  and  be  delctt  out  of  the  book  of 
armes,  sua  that  their  posteritie  may  never  have 
place  nor  be  ab!e  hereafter  to  brook  or  joyse 
any  honoui-s,  offices,  titles,  or  dignities,  ia 
Unie  comeing ;  and  the  said  persons  to  have 
forfaulted,  amittcd,  and  tint,  all  and  sundry 
their  hmds,  heretadges,tacks,steeding8,  roumesL 
possessions,  goods,  and  gear,  mov^le  and 
immoveable,  whatsomever  pertaining  to  them, 
to  belong  to  tlieir  majesties,  and  to  remain  per- 
petually with  them  and  their  successors  ui  pro- 
])erty  ;  And  lykcways  their  majesties  and  the 
estates  of  parliament,  by  the  mouth  of  the 
said  John  Ritchie,  dempster  of  parliament, 
decern  and  adju<lge  the  said  James  earls  of 
Dumfermling  ;  ■     •  viscount   of  Fren- 

draught ;  — ^  lord  Dunkeld ;  major  Wil- 
liam Grahame ;  collonell  Alexantler  Cannon  ; 
John  Cleillaml,of  Fasken  ;  Mr.  Colin  M<Ken- 
zie,  uncle  to  the  earle  of  Heaforth  ;  sir  John 
Drummond,  of  Machanie ;  William  Craufurd, 
younger,  of  Ardmillan ;  James  Craufurd,  his 
brother ;  the  laird  of  Strowan ;  Robertson ; 
David  Grahame,  brother  to  tlie  viscount  of 
Dundee  ;  James  Edmonston,  of  Newtoun,  of 
Doun ;  sir  Ewin  Cameron,  of  Lochzeel ; 
Cameron,  his  cld«rt  son ;  Donakl 


M'Donald,  younger,  of  Slait ;  the  laird  ^f 
M'Nangbtoun;      ■    '     Orapt,  sf  Bailindal- 


iJinay  I^INVtlL,  mf  mMMB^  ;  iiiJ  «ir  John 
lll'L«iti,  to  W  txcciiielifr  llir  iriil»t  dtngneMl 
•M  iniimitt,  aii4  iiwlerly  tba  iwlf»  of  troooiSiC 

ftl  «iii:b  Ijroi^  aii^  plMtt»  tad  In  micli  mmuner 
tf  tllctr  miyHUi^  or  Uic  Littiii  »f  yaitiMngtity 
wr  lilt  comaimtwf^  nf  jiiilfcHU'i^ 
Mjfiti  mhI  ttrihiw  iIn;  wM$  pen 


.     W« 


iti«ir 
mtmttfv,  fttiil  hoBoan,  to  be  ex- 
||i»et/tlictr  hUnod  in  be  tmnlr-J,  «ftd  their  armev 
to  be  rivL*ii  funlk  mod  Jdetl  out  of  tbe  booics  (»f 


armeit  io  that  tbeir  poiteritj  inay  itfter  h«r« 
|feliee  nor  be  abte  bereafWr  to  bfwkk  or  p^vt 
tiiylii!iDaiirs,  itBceSt  lifles  «ir  di^iliai  in  t^^ciic 

tiol,  all  anil  eiuHlry   ib#ir  Imiilfr,  hcretad^a^ 

and  g¥ar«  inoveuble  aiiii  imnaotee^e,  whotsom^ 
erer  peilaiodiig  U»  IJiern,  to  bebng  tn  their  tna- 
je<f|jej,  ftQcl  to  rem  rim  perp«tiitt|lj  nHb  tti«sD 
A  tilt  their  snccessor^  b  pro|)erij.  Whicb  »is 
|ircnounced  for  doom  -  and  ivberetipon  Ibor 
miijesliefi  ailrocat  asked  aod  took  ixuiliviiieDU. 


398.  Tlic  Trial  of  Alexander  Halt  burton  and  Wm.  Fbaseh,  for 
High  Treason :  4  William  &  MAia%  A.  d.  I695.  [Now  fifit 
printed  from  the  Records  of  Justiciary  ia  Edinburgh.] 

tfHitu  in  lV«tiirUv  Burigt  ik-  Edbburg^b, 
prjiUiiH^  die  titrn^iif  Martij  }6^2,  jier  no* 
liilem  rt  polentem  e<otuiirtti  HobertUfii 
C^miltCB  dt  Loibiai]  iihiaaariaiti  Oe* 
OChImii.  el  iMoOftliNM  viuml  Ilomimini 
C^immi  rampbelU  de  AhamfikM,  mmgi'i^ 
imm  Duvidmi  Iloiii^,  d«  Cfawrtg,  lo* 
bunem  Laiidtft  du  FunntualiaU^  migi** 
iryin  AN^IiibiiUliim  Hojie  de  itnnknjllor,  ct 
Utaipmriim  Jncobuim  Falconer d^  Pheasdo^ 
C?iimiiiiss;onarlos  Ju&ticiarttE  dlcti  S,  D.  N* 
ilrgis^  el  Hegitiii:^, 

Corim  legiitimfe  ifEroiatn. 


Witlkm  Frasfr,  prisoners  id  IheTolbootli 
of  Edinburgh, 

InDYTED  mid  accitseil,  mt  the  i&$tiin<K?  of 

sir  Williem  f^ckhart,  tltere  majesties  Bolliciior  ; 
«ir  PaErick  Home,  and  Mr.  Un^h  iNlrtinfiK 
advocates,  a^i^ssops  to  ibe  ^M  sir  ^V'ilUani,  for 
the  n>ajeittefi  ititerest;  Ttiat  whereas  by  l!)t' 
cooiou  kw»  the  laws  of  thii  and  aU  other  Mel  J 
goTerned  na|,iones»  the  criroes  of  irrasoTie  atid 
rcbelli4>na,  and  the  aidinjtf,  assistio^j,  ahatciijg, 
lappfeeingr^  intereomoadugi  and  kecf  lug-  oor> 
respondetice  with,  or  dveing'  favours  tn  rtiMkl- 
lest  rebeJIs  and  trmi tours,  are  nuniabeable  with 
forfaulturc  of  lyfe,  landSf  an<l  ^^cKidft  i  and  be 
tbe  third  act  of  the  first  p<«r]i^meot  of  kni^ 


iiiettt  kmg  James  the  «eeondt  it  ix  ftatiUead 
ordaitied,  that  if  zuiy  mati  eomitt  treiiaie 
agiitist  the  kind's  peraone  or  hh  m^^itt,  or 
ryaei  in  fear  ot  weit  aifninctt  hini^  or  ifctyik 
tuy  that  be»  eomitted  tre^^^ne,  or  iuApliii 
tbem  ID  help,  redd,  or  eouusejl,  or  itufli  ik 
hmiss  of  tbem  I  bat  are  con?  ict  oftr^asotic,  m& 
bttlda  tbem,  a^fAitiest  tbe  liniq^  or  ihaiftaJb  tb 
Kotis^  of  there  owne  iti  ftinheriu^'  «f  the  kii^'i 
r«betls,  or  th&t  assaikieit  the  king_*i  ciO^ 
shall  be  puubhed  aa  tinUotirs ;  attd  if  asr  per* 
soae  or  persoti«;  be  sfasidered  or  snspeet  eftrci- 
soBe,  iJUe^  shall  }>e  taken  and  reoiaioe  lu  firm- 
aoc«  ti'hile  tbe  lyme  they  have  tholed  mt^  u- 
«Wi  whether  ttiey  be  guy  he  or  fool) ;  m^h 
the  nj-nty  sef  euth  act  ijOilianient  <!^ereDtli  kkg 
James  Uic  fythf  all  persons  were  comauded  la 
ap]>rehcud  rebel ls>  and  arc  discharged  ta  re- 
cept,  sii|>|die,  or  doe  far  ours  to  tbetn ;  and  ht 
the  hnudrcth  6ourty  and  tfotirtb  lict  p^rtk* 
ment  twelth  kmg  James  si\%  all  hh  inajeetks 
^nbjeet-s  aie  discharged  tfi  snppfte  or  rnKr- 
eomune  w\ih  traitors  or  rebel! j{«  or  g^f  e  thcffl 
any  relieff  or  comfort,  or  any  help,  reddi  »f 
counselU  lint  to  doe  there  outmof  i  dUigence  to 
ap^irebend  or  expell  thera  out  of  ilie  conntifjr 
m  maner  s^pcetfied  in  tbe  said  act  |  and  be  di« 
tyith  net  ses^iua  lint  parliament  tirsl  ktn^ 
Charles  the  second,  il  h  det^tared,  that  It  fibill 
be  high  treasoEife  r<«r  tlie  subjects  of  tbb  reilnic', 
or  cmy  number  of  theitii  less  or  more,  upoii 
any  pretext  whatsomever,  to  ryse  or  eontiMir 
ill  aroiei:^  to  make  peace  or  ^  arr,  or  any  treili^ 


James  the  iihty  It  h  statute  and  orrtainei!,  that  1  or  leagues  without  bis  mwjesites  speciall  appfo* 


DO  mat)  openly  or  notourly  rebel  I  against  tile 
king'n  pertone,  under  the  pain  of  tbrlauHure  of 
lyfe,  lands,  and  g^^^  I  ^^^  be  tbe  tbretty  se^ 
Tenth  act  tsecond  parliament  king  James  the 
fBrst,  it  ia  statute  and  ordained ^  thai  no  mait 
witjiilty  reeept,  manlain,  or  doe  faronr,  to  op«ii 
and  nianifeat  rebellors  against  tbe  king's  ma- 
jesties and  the  com  on  law,  undrr  the  pain  of 
forfauUure ;  and  be  the  twetity  fourth  net  sin 
]iirliAiii«nt  and  fburty  njQtb  act  twdt  pu:li&* 


hatione  ;  and  be  llie  second  act  session  second 
parliament  first  king  Charles  the  second,  Jl  is 
declared  high  treaaoiie  to  levie  warr  or  take 
up  armes  against  the  king,  or  any  comi^Ofi&t 
by  iiim^  or  to  intyse  any  stranger  or  olbeFS  to 
invade  any  of  his  domitiiones,  or  to  wroit^  pmt| 
or  ^leak  any  thing  that  may  express  or  declare 
such  ther  treasonable  inletitiones  ;  and  be  the 
comon  Jaw,  lawes  atid  acts  of  parliament  of  this 
kiogdooi,  mi  and  pairt,  is  puoiihable  as  Ibv 


J33] 


Jot  High  Treason. 


^■bkctnall  crvine;  NeTcrtheYe&s  it  ts  of  veritji 

^kt  ilie  raids  Alexander  Haly burton  anil  Wit- 

liam  Fraser,  haviiii^  shaken  ufall  feni'  of  Gael, 

re«jH?ct,  and  regfaini  to  there  majeslies  auiho- 

rity  antl  lawes^  hes  presumcrl  to  comilt,  an<l  b 

e'liy  of  ihe  cryraes  above  mentioned,  in  sua 
is  the  s«i<l  Alexander  Halyhiirton,  haveing 
&retl  into  a  nvM  wiclc<*fj  jiml  tbranable  com- 
Mnution  with  Michael  MiJletoun,  Patrick  Hoy, 
And  I>avid  Dunbar,  flometyme  [insoner  in  the 
^tt^,  and  seTeml  other  persons,  to  surprise  the 
^■t  and  g^riaone  of  the  Bass,  where  they  were 
^■sooers';    the  f>aid    Alexander    11  a  ly  hurt  on, 

^nh  his  accomplices,  did,  npon  the day 

^w  Jane*  last,  1691  years,  or  ane  or  other  of 

the  day*  of  the  said   tnoneth,  Burppyse   and 

^jake  tnenrif^elvcs  malsters  of  the  said  fort  and 

^■rrisone  of  the  Bass,  and  notice  btinjif  given 

HKreof  to  the   lords  of  ther  itjnjesties  privie 

)toiinsel1.  they,  by  there  act  the  seventeinlh   of 

Jtme  liist,  did  rerommentt  to  sir  Thotnas  IJ  - 

^k^r^iouD,  comander  in  cheifF  of  there  tnajes- 

^■B  forcea  in  this  ki nerd 0 me,  to   tnke  stirh  ef- 

^fetaal  course  flfor  reducinjj  of  the  s*iid  island 

from  the  hands  of  the  foresaids,  who  were  in 

the  |josiessione  thereof,  wc  he  si  ion  Id  think  fitr, 

&Dd  ordained  any  of  there  mojestics  heraulds  to 

paa$  to  the  bM  if^liinit  of  the  Ras«,  with  there 

eoatts  displayed,  in  there  tusj est ies  name,  to  re- 

i^tiyre  and  comand  the  said  Alexander  ITaly- 

hurtoiin,  and  the  other  personcs  above  named, 

t  accomplices,  to  dely  ver  up  the  said  island 
I  fort  ;  and  also  to  render  ihemselvrs  pri- 
en  under  the  pain*  of  treasone,  cerlifyeing^ 
tiiem  if  tlipy  refnsed  they  should  he  trcaKed 
as  traittoursi,  with    all    rigour  and  fieverity. 
Mid     that    without    niercie,    which    wairand 
yttL^  accordingly  dnely  execute  againest  the 
Hnt   Alexander 'Halyburroim,  and   the  other 
^■KoiiB  aboTe   named,    hi*s    accomplices,    as 
^^>eara    hy   the  act  of   priTie  connsell   and 
the   heraiilds  execution,   nnd  the  said   Alex* 
^ll^sHatyburtouu,  and  the  saids  other  per- 
^^^■iiftmog'  most  conrem|)tuaiisly  rciused  to 
^PHBedience  to  the  f^id  charge,  the  Imds  of 
pfltie  couiisell  did  emilt  a  proclamaiion,  of  ihe 
dail  the  tir^t  day  of  Julty  tliereaffer,  derlareing;' 
the  said  Xlexander    Halybourtoun,   MicEiaell 
31idletoun,  at>d  the  saids  other  persona,  his  ac- 
eompUces,  and  all  who  hade  joy  ned  themselves 
withtbemi  in  surpryi^ing^,  muntaing^,  or  defend - 
\ag  the  said  tfarisone  of  the  Bass,  ^[iiilty  of 
o^€n  and  manifest  treasone  and  rebellion,  and 
^ht  to  be  pervewed  as  traitors  to  the  kin^,  and 
chitrgvd  and  comanded  all  there  majesties 
8,  that  uu  pcTSone  presume  to  aid^  abate, 
harbor,  or  any  wayes  Ktipplie  the  saids 
or  any  of  them,  under  the  pain  of 
btgB^reasone ;  and  that  they  doe  nril  keep  cor- 
BiWDdence  or  intercotnrouneing  with  I  hem 
witnmit  warrand  of  the  privie  counsell  for  that 
tfftct,  under  the  pain  forsaid,  certify eing  such 


Thif  wnnl  which  occur*  fpequeatly  in  the 
,  b  anvformly  so  written,  that  it  may  be 
leorJaity.  The  context  seeais  to  require 
fornter. 


i 


A.  D.  1692.  [83* 

as  adiall  doc  in  the  contt-airie,  that  iKey  ahalf  ba 

hohien  and  rcpnte,  treattcd  and  proceeded  agahinC 
ai  airt  nnd  pairt  of  and  acci-ssfiry  to  ihe  fonaifl 
cryme  of  trea!ione  and  rebellion  a^inest  lh« 
king  and  hi*  auihoritv  uilh  ihe  oaimfjst  setc- 
rit^  of  the  law  ;  An^  yet,  notwithstanding^  fhq 
said  Alexander  Oalyburtoun,  wuh  the  naida 
person es  and  others,  bis  accomplices,  did  most 
presumptuously  frortiftt,  and  by  open  vndencd 
defend  and  umntain,  the  said  garisone  of  the 
Bass,  against  the  king-  and  liis  authority  ;  Ad 
also,  the  said  William  Frascr  haveinier  enlemi 
into  a  most  wicked  and  traittcrous  contry  vancc 
wilh  the  said  Michael!  Midleloun,  who  was  ^ 
declaired    traiitour  by  the  for&aid  proclanan- 

tion,  and Crawfufd,of  Ardmillan,  younger^ 

a  forfaulted  persone  and  others,  his  accomjdiecs, 
for  supplycmg  the  Bass  with  provisionea  eHer 
it  was  surprysed  by  the  said  Alexander  Haly- 
burtoun  and  the  other  persons  abore  naDied,  he 
the  »aid  Wilham  Fraser  wiih  others,  his  accom- 
plices, haveing  hyretl  a  boat  under  pretence  of  \ 
carryeing  son^  provisionts  and  hut»uo)d  fnrni-  1 
ture  from  Ixith  to  the   Elie,  upon  Ihe  lady  1 
Ardross  accompt,    and  there  hew\^  a  certain 
f|uanliry    of  mcnlf,  bisket,  pease,  butter  and 
brandie,  and   oth^r  provisions  put  aboard  the  1 
»aid  boatt,  and  when  the  boatt  was  aett  to  ses/i 
and  frteerin^  o?er  to  the  E(ie,  the  sail  Willfanl 
Fraser  and  hts  accomphces  did  force  'the  boat*  j 
men  b>  a  ltd-  there  course  and  (fap  straight  to 
the  Bass ;    and  when  some  of  the  boatmen 
speracd  to  be  refractorie  and  unwiUing,  the  watd  I 
Wilfiam  Fraser  did  beat  some  of  them  upon  i 
the  (ace,  and  did  thraw  about  there  nose  i  And 
when  the  boat  anyved  at  the  Bass,  the  mi4  ^ 
William  Fraser  was  very  aclif  e  in  helpinjf  up 
the  provisions  to  the  rebetls  in  the  Bass,  and  &# 
soon  as  he  came  there  he  was  made  guntier^ 
and  did  Tyre  severall  cauounat  fkher  boatts  and 
others  as  ihey  came  by,  of  desig-na  to  hare  simk- 
them,  orothcrwayesto  have  yielded  to  thes© 
rebells  ;    and  he  and  his  other' accomplices  did 
keep  the  hoatti^eti  prisoners  in  the  Bass  for  «e- 
verall  days,  and  bade  almost  sterved  them  for 
hunger;    And  ordered  them  to  put  on  a  red 
coat,  tal&e  up  armes,  end  stand  cenlry  to  there 
assistance;  off  ihe  \*hich  treasonable  crymca  1 
above  speoified,  or  ane  or  other  of  them',  the 
saids    Alexander    Ualy  burtoun    and   VVilliata 
Fraser  are  actors,  airt  and  pairt,  which  bein|^ 
found  be  atic assyse,  they  ought  to  be  nuniibctl.  | 
With  forfauhur  of  lyfe,   land,  and  goods,  to  the 
terror  and  example  of  otliers  to  cornitt  the  lyke 
hereafler. 

PerscB'ar^^Mr.  Hugh  Dairt/infiki    tdFOcal'^ 
as  assessor  to  there  majesties  sollicitor* 
Gontiuued  till  next  day  at  2  oVlock. 


March  8th,  1692. 


Jntran* 


AUrander  HaJt/btiriottn, 
William  Frascr ^  prisoner!. 

Indyted  and  accuscti  for  the  cryme  of  trcn- 
soQe  m  forlyfyeici^,  DQftQtliDio^,  «Upph«iD^y 


9Si] 


4  W.  *  M.      Trial  qf  Alexander  Holifbttrion  and  IVm.  Prater, 


I 


I 


«nd  tAkfitiii:  im.  And  k^^ping  out,  there  tufijes* 

%\eft  Hiri  luii)  (>:vi  i.^^tu'  of  ilit>  Uas¥.  aijfiune&l  tbere 
iiin  I  mimer  meu* 

Per»efver^-Wlr,   Hufih  DahympU,  adrocatp 

Pr»  ifu^^A  DaltympU  proiluc*^!  afie  warmnd 
of  piivle  ctiuti^ll  Ibr  p^rsewintf'  iii«  pantt&lK 
wliereof  ttie  lettor  fullowes:  *'  Edinburgh,  the 
"  ti«^efity-ttoe  <l«y  4*f  J«wuAry,  1692^  ye^te^. 
^  Tbe  lords  Qi  iUeic  majeslteii  prlvie  coutiiell 
"  doebcfeby  |j«rrvmL>iorly  appouiland  rei^iiyre 
«« tliere  maiestics  sdlkitor  or  his  atsystauts, 
*^  wjihoat  mrlav.  io  munt  sind  piDstet'ute  an  In- 
•' dYtineiJlcif  I  lie  lords  com luis- 

•*  jMooera  uf  J :  n.tst  Ak^raoder  Uii- 

M  lyhurtoun,  uud  W  lUium  Finser,  prisoDers  in 
**  iLc  TollKJOib  of  Kdioburght  whirh  tbey  were 
!*  appoyuled  to  doe  bj  a  Ibrmer  Interloquitof 
**  tnd  bes  neglvcted.     Exirncted  bv  nief 
**  Sm:  Suburib,  D.  MoNcREUE,  CI. '8.  Con," 

Sir  Jlofttrt  Coll  and  Mr,  Chtirht  Grai/,  ad-- 
▼ocatts,  beio^  allowed  to  propone  defences  for 
tb<*  pantidk,  they  declaired  that  Ihey  would 
propone  no  defences  for  live  jjan nails. 

Air  Ha^h  Datr«/mpie^  as  per^war,  desyred 
therefor  that  tlie  lybell  might  be  advysed  and 
vemilied  to  tbe  knowledge  o(  ibe  inqu^t. 

The  IxJTtls  justice  generally  and  commis^iian- 
en  of  ju^tieianc,  having  coni^idered  tbe  indyt- 
nicsl  persewed  by  there  maje^lies  soUicilor  and 
kif  mystitntSf  aig^inest  Alexander  ilalybitr* 
loan  uuil  Wjibam  Fmser,  prisoners^  tbey  fiind 
tbf  said  indytement  relivant  to  mferr  tbe  crymes 
and  painefl  oftreasone  lybelled,  and  reaiitt?i  the 
IMiroe  to  tbe  kno\¥ ledge  Wane  Assyne, 

Sk  Subicribitvr,  LoTTllAHy  L  P*  D* 

AsswA, 

Horue,  of  Nynewalls. 

IfVdliaiii  Cunin|i^hji(Titi|  off  BtTebfiruban* 

►  Capt.  Patrick  Cbalmerat  bcltmaker. 
■ —  ArskiDf  of  Ba%o«  in. 

>  Jainea  Brown,  mercbuui,  in  tuliDburgh* 
^  Jamea  Livinij^toun,  mercbaul,  yr, 
k  John  Blackiituiin,  t»c*ritri jr. maker}  youogtr, 
'  AlexojKler  Rob*  risoiii  a^l^^^T. 
'  Andrew  Hi'own,  wntcb maker. 

Jaliii  tiruce^  teltniaker. 

Kobert  SjflndielandSf  metohaod. 

Andrew  I^lilneri  masson* 

Ab'Attndfr  Hji'j;^tiif  wri'^bt. 

Alf-xandt'i-  Hobttt!M)n,  armorer. 
-^    iobu  Naiiinitb,  w right. 

The  Am^e  lawfully  sworoe ;  uo  objecUon  of 
the  law  in  \Ue  coDtrair. 

The  Peivewer  for  probattoa  adduced  tbe  wit- 
licsaea  eflerdeponeiQi^. 

John  Liddell^  souldier,  at  Castletoiin,  a^ed 
(WL-'iiy-lwo  \taue»t  unmarfyed,  purged  of 
intilict\  prcjuchce,  hatred,  i^^^*ilj,  and  pnrtiall 
eiitin>i:f  [1  .  M<i  siiU'ttittly  tiworms  de]»ooe«  ihat 
\i\  at  June  the  deponent   biinpj 

in  ^    ^  ly  cualls  IVom  ^  >i^s>ell  up  to 


the  IV  aii 

aomiM  «fe|Kiliieol| 

a  shut  Mi  a  lud  a  cry^  loK 

and  iiniiK'i  i   the  deftmeolj 

Alexander    iUUvburUiuu,    tht: 
ensign e  Hoy  ami  enaiarne  Dtu 
llier  prisout^r^  in  tlu-  ^'  •  lur   lo  ini 

head,  with  three  guns  .inda  prt 

to  tbe  deponent  aud  uulfl^,  ^'•iio  were 
boat,  lyeiiig  iniediatly  ttoder  the  etitrie  ul  ibt 
Has>{,  and  did  threatten  the  depODCDt  aod  Ibi 
rest  wbo  were  in  tbe  boatt  to  ahoc^tt  at  tbesi, 
and  kill   them  if  tbey  offered  t(»  come^ 
the  Bass,  and  would  not  instaDtly  goe  \ 
with  tbe  boat ;    and  depones,  that  whe 
deponent  caine  last  out  of  tbe  I* 
bout  the  day  foraaid,  he  left  Job i 
centineil    standing-    upon  his    • 
wboll  and  sound  *,   and  that  he 
ftsid  sbott,  putt  down  to  the  tr^ 
crnn,  and  waa  shott  through  the  sV 
de[K)nes  that  they  ordr-- :f  t'-—  ■ 
bt.mUnlitle  (ynie,  till.  I^ 

ing  to  the  Ha&a  eaiTiiJ  .....  ..;^  — ..,  v. 

barrel  la  of  aile  and  two  dozf  n  of  wbyt 

or  thereby,  was  taken  up  fiuni   the  bo 

ordered  them  to  May  till  that  v 

there  removeiug  Bhould  scarr 

from  comein^  in  with  I  be 

icientle,  he  waa  fur  a  con^i^; 

a  souldier  in  tbe  BaiiSt  and  i»av\  aud  Liu'w  Vii^- 

ander  Halyburtoun^  the  pauQaH,ai>d  heacdbiia 

distinctly  speak  the  tbrcaUeuing  worda  of  cribi 

pannalliki    depone  be  cannot  wrwil. 

6ic  MunLiiur^        LurtiUB^^  L  P*  f>* 

Ilitchard  MitiUtauTi,  sooM--*-    ^*  Ci 
ogi'd  twenly-ei^^bl  yeurtN,  i 

Rtalice«  prejudit-t^f  hatredf  .  j 

[couucill]  aud  solemnly  sworn 
Jbrmis  precedent  I  tnomnil^i^ ;  un 
that  Ilamiltou,  the  ccniiuelU  woa  ail  b 
of  his  wounds  when  he  catue  to  ibc 
that  the  first  persone  that  appeared  lo  tb# 
neot  and  the  rest  viho  were  m  tlte  bdiit,  * 
atiy  after  surprising  tbe  liuss,  v 
Halyburtounf  the  paund^  ^illi 
hand  at  the  stsii  bead,  and  tbrc^ucucfi  iit«l 
l>onent  and  tbe  rest  wbo  were  in  thv  hiMil,if  | 
fffl'ered  to  come  up  to  the  Basm  he  w 
tlieiu  ;  and  the  de|»onent  haTeing 

nanniiU    wli  U  tir    tueruif^iL    llu"    fi,aiJ    Ah' 

mu ' 

fur  III  I 

paunali  tbreulttned  titedt  ptuieiit,  he  Mud 

depooent  and  the  rest  wo»i!«l  gr>e  uwh 

tbe  boat  and  not  offer  to  < 

sustain  tio  prejudice,  otbei  \ 

and  tliert.'atler  the  de^.jrM  i  . 

and  the  other  two  pei^'   ii  -  »i|f- 

ill  tbe  Bass.     Cj.'.mj  ; .  .'<■><(•,_  li..j  w .. 

two  yeares  in  i!'<    !".-i^-,,   :j<iO    km- 

Alexander  lialybui  t 

be  bcs  de|Kjned  ;    afi- 

shall  answer  It*  GoU,  ,- 

vfieiit* 


Gt^ffe   PfirteotiS,    Rrarchemoiint  herau!d| 

solemnly  sworn e.  p«rged  of  lualice,  |>i:ejuiiice, 

ami   ptirtlail   counsel),    and   aged   foiirty-six 

yeare*,  or  thereby,  marryed,  and  interiogTit 

vpon  tbe  trueth  aad  f  eritie  of  ane  eiecutUm, 

tinder  hi»  hand*  dalted  the  twenly-first  of  June 

last,  in  obedieDCe  to  ane  act  and  onJ nance  of 

counsel),  dated  theaiJtteintof  ilie  said  montli  of 

I  June^  ordering'  the  deponent  to  charge  Alexan- 

'  der  lialyburtoun,  the  pannel!^  and  oiiiers»  to 

surrender  up  tbe  Bass,  and  to  render  tliem- 

seWes  prisoners,  under  tjjc  pEiine  of  treasone,  as 

the  said  act  and  on i nance  more  fuHy  beares  ; 

depones  that  in  obedience  and  confortne  to  the 

md  act  and  ordnance,  the  deponent  did  truely 

and   realtie  execute  the  saine,  conforme    to 

\%he  tenor  of  the  said  execution  in  all  points 

for  the  witness  therein  contained  ;     which 

Act,  ordinance,  and  execution,  were  judicially 

read  and  sho^'cn  to  the  deponent ;   and  fardel* 

[de(K»DCS,  that  efter  he  hade  execute  the  said 

r  ftct  and  order  of  the  c^iunsell  in  the  way  and 

liiAEier  contained  in   the  said  cxeculioiie,  a 

ntaa  who  owned  his  name  to  be  llalyburtoun, 

■poke  to  the  deponent  over  the  wall,  and  told  the 

deponent  that  they  could  not  render  the  Hags, 

I'       flbr  thffy  thought  ihey  would  be  in  no  better  suite 
then  they  were  in  before  causa  pattt ;  and  this 
IS  the  trueth,  as  he  shall  answer  to  God« 
Sic  Sulmrihiiur^  G.Pohteous. 

Mtnrie  Fratert  Rosb  herauld^  aged  fniirt}'- 
y«ar5,  marry ed,  pur^etl  ef  malice,  prejuilice, 
|»artiaJl  counsell,  and  solemnly  sworne,  depones 
€onJhrmu  precedent i  ijf  ommbiis,  with  this  va- 
tiaiiOu»  (hat  he  does  not  remember  that  the  pev- 
aon  who  soobe  over  the  if  all   head  ownt:^!  Itis 
to  ne  H*i1yburtouo ;    byt  he  heard  the 
say  that  it  wus  Alexander  Ilalyhur- 
knd  ensiffiie  Midktoun  with  him ;  but  tie 
not  diatmctly  know  him,  the  wait  head 
Magao  htgfi  tiromVhe  place  where  the  deponent 
iriif  which  act  and  ordinance  of  counsei,  with 
tbe  eicecution  thereof^  were  showen  to  the  de[K)- 
li«»t.  C(t$tm  icteniie pattt^  ffarder  ilepnes,  that 
wlien  the  paiiera  were  towed  up  the  rock,  to 
'Ikit  bast  u(  his  memory,  tie  heard  of  tbe  meti 
frb^fflMte  over  the  wall  say,  they  would  not 
fender  the  Bass  ;  and  this  is  the  'trueth  as  he 
saswer  to  God,  Sic  Subscrtbiiur, 

klBSHY    FraSCR. 

fairkk  Sievinson^  ierrant  to  Henrie  Flet* 

'cW,  of  Saltoun ;    aged  t»venty  years,  mar* 

ryed,  purged  of  malice,  prejudice,  hatred,  ill- 

iriU»  and  partiall  counsel  1^  and  solemnly  sworne; 

'  dapooes  citnformit  precedent  in  omnUnu^  ex* 

•  ca|it  that  he  does  not   rtMneinber  ivhat  wes 

]  apokea  over  the  watl,  tho  he  heard  a  voyce,  it 

I  teiog  at  a  diiitance ;  thisi  he  defwoes  to  be  a 

trueui    ag  he  shall  answer  to  God ;    the  war- 

L  iTiiid  and  order  of  coutisell  being  pubHctly  read 

ud  iliowen  to  him. 

Sic  Subicribiiur,  Pat,  SStctjkson. 

ja^n  Sfoaa,  serj^nt  in  the  earle  of  Lev  en  ^s 
r^ment,  a^ed  twenty-six  years,  unmarryed, 
pnrg^  ami  tworue,  depones  that  eltet  the  'sar- 


[S58 

pryt^ll  of  the  UAi*i  in  June  last,  he  w^  one««f 
IhoRi  titat  was  tmployetl  to  lye  at  CuKtletoun  to 
wait  the  mc»tion  of  those  that  wetic  within  thai 
inland,  and  that  about  the  end  of  harvest  ba 
was  sent  in  with  a  drnmmec  and  two  mariners, 
with  a  printed  act  of  indemnity,  to  make  au« 
offer  thereof  to  hiin  who  commanded  the  giri- 
»on  for  himself  and  the  rest,  if  they  would  sur- 
render the  Basse  to  his  majesty,  and  according*- 
ly  he  was  pennitted  to  enter  the  ruck  and  called 
tor  the  commanding  officer,  andoue  Mr.  Midle- 
toun  came  to  him  and  owned  himself  to  be  tha 
person  who  commanded  there  in  cheiff»  to 
whom  he  delyvered  hiscomission,  and  gave 
hiai  the  act  in  his  hands,  wtio  al)er  reading 
thereof  hLifleft  and  appeared  verie  dissatisfyedi 
bnt  cannot  be  positive  wliether  211  r,  lla^ybur- 
loiin,  tbe  panuell,  was  {^resent  there,  when  bt 
first  reqnyred  the  governuur,  or  if  he  came 
souietyme  ufter ;  but  depons  he  heard  them 
speaking  together  anent  the  said  indemnity, 
and  beard  them  express  their  detestatlttft 
ai^airiest  the  present  government,  and  heard 
thera  say  ihey  would  receive  comand  from 
none  but  king  James,  who  was  the  rightfuU 
kin^,  and  that  tie  knetv  l^lr.  Hatly burton,  attd 
that  he  hade  anword  about  him  and  a  guue, 
and  that  they  detained  the  depf>iient  prisoner^i 
from  Thursday  at  two  o'clock,  till  Friday  in  the 
evening,  upon  the  pretence  that  the  king^s 
soukliers  iiade  taken  away  there  boat ;  and 
haveing  taken  a  view  of  \Villiam  Fraser,  pri- 
soner at  the  bar,  he  thinks  he  sawe  him  in  th^ 
Bass  at  that  tytncy  when  he  went  in  with  the 
offer  of  the  indemnity,  ctium  paiet  ;  and  this  is 
the  truth  as  he  shallauswer  to  God. 

Sic  SubtcriOitttr^  Jomn  Si,osi« 

Jamtt  Wishari,  a  drummer  in  the  earl*  of 
Leven's  regiment,  aged  ihrttty -three  years, 
married,  jmrged  of  malice,  prejudice,  hntred, 
ill-will,  and  jiai ti^ll  ctiuo^iell  3  depons  that  be 
went  along  vfith  Serjeant  81oass  from  Castle- 
toun  ta  the  Bass,  in  the  end  of  harvest  of  laatt 
with  ane  ofler  of  the  indemnity  to  those  vtbo 
had  Burpriaed  the  rock,  and  that  the  aerjeant 
went  first  up,  and  left  him  and  the  two  mariners 
in  the  boat,  and  that  afterwards  he  and  the  sea 
men  were  caHed  for,  and  a  litle  English  boy  waa 
put  by  thetn  in  the  boat,  and  when  he  came  up 
hesawe  Mr.  Hallyburion,  and  two  or  three 
more  communing  with  the  serjrant,  but  did  not 
kuow  what  past  betwixt  ihem,  but  they  thrust 
the  two  seamen  in  to  the  boll,  and  did  detain 
the  Serjeant  and  the  deponent  all  ntght,  and 
forced  them  to  drink  king  JamesM  licalth,  and 
ane  other  boat  haveing  come  off  from  the  land 
to  see  what  was  become  ot  them,  Mr.  Midlc- 
toun  ffave  orders  for  Htvleing  a  canon  ioslioot 
at  it,  hut  Mr.  llaflyburtouo  was  agauist  it,  and 
tbe  deiwmeut  thinks  the  distance  was  so  great 
as  the  canon  would  have  done  no  «ikaith  ;  and 
fardpr  depons,  tliai  they  forced  him  to  pull  the 
feathera  t»if  the  sollen  goose,  and  that  when  he 
wasgoeirjg  uway  with  his  dmui,  Mr,  Midla- 
toun  caused  lake  it  and  hts  sirck^  from  him* 
but    eamiot    charge    their   tncittUttes    tipMi 


4  W,  &  M*       Trial  ^  Aiexand€r  Hdtfhwrton  and  Wnu  Fraser^    [S10 

begODQ ;  ftod  ibitl  Mr.  Wrmer  offerd  tlie  depo^ 
Deiil  a  reed  coM,  and  he  siroTt;  he  would  nrrrn 
lake  up  armes  ay:akiifit  king  Wj|Uain«  p1ii«miD 
Mr.  l]iiJyUurt'>UD  deayrcd  Willjiin  Fnacf  ta 
let  hitf^  ftLboe  to  save  liis  uath;  feud  dtpcKKi^ 
tUikt  tbct^jr  wtte  vetj  iU  ti&ed^  li&y^ng  osty  t 
|ieck  of  lue^ll  in  the  »eek  aaiong  Ibur  of  thctn^ 
liud  tliu  14  ilie  tfo&tb  as  be  «h&U  feuiifrtt  1<» 
GckI  ;  [kpotif£  he  cmtinot  wreilL 

Ahmndfr  Hankeilicr^  seaman  iq  Baral- 
island,  a^d  fuorty  jeirs,  or  thereby »  fnirryoi 
piiTffiedf  juid  iWQ]  lie  i  dtrpooes  Ibal  be  vras  one 
of  ibc  »iif]Uiien  in  Ibe  boat  Ibrsaid^  and  thM 
wbcn  tUcy  Here  a  boat  losbkeitb  h^  saw  Wit- 
lUiii  Frap^er,  lim  (jatitidl,  with  tlie  rest,  ooropdl 
tbe  se^mcQ  to  stdr  towards  tlie  Da«»  ^  and  ti 
rei^aird  of  nome  of  there  areraioD  b«  ■IM 
biiri  hti^l  EdMrard  Serples  on  the  mantli,  tt4 
tak«  Jtihft  Thomson  by  die  nose,  and  ibtt  Wi^ 
Kam  Fra»er  trei  verie  busaie  m  the  dt^lvadoDf 
tb^  boitt ;  and  tbat  tbc  doponeut  b^^mg  takes 
jiritiotjcr  wirh  tbe  rest  be  iaw  bini  aboot  oa 
of  llie  gtiua  on  the  Basa  at  a  bolt  ^oetug  ^|i 
and  tbat  be  would  burc  forced  tbe  depooent  in 
put  on  a  reed  coat^  wbich  be  alto|^ier  rt^m- 
ed,  bot  he  was  neces^itat  to  stand  ccotry  lu  ik 
iiigbt  wilb  lber€?stof  bin  neigbbouw,  wljcfief er 
he  was  eoinanded  |  aod  de|Kides  tli:it  >1r.  il*^ 
l^'bnrlociii  carry ed  Ttiy  civilly  to  bim  ;  ul 
lilts  ii  tl>e  truelJi  &»  be  jjlmll  answer  to  Qod, 
SiC  Subtctibiiur^     LoTaiAN.  L  P,  II.  (X 

Tbe  Persewer,  for  farjier  probation  apioat 

Wmiam  Fraser,  adduced  l«s  owtic  Petiibn,  wd 
bumble  Acknowledufeioeiit,  wriUeu  on  the  back 
tbereoff,  wbereoff  tlie  ienor  foUowei : 

Uoto  the  rigbt  liooourahte  the  loiita  justkv 
genemtl,  justice  ebrk,  and  cotumi«a«ooeri  i^ 
juaticiary;  the  bumble  Petitions  of  WillinB 
Fra^r,  prisooer  at  tbe  barr^  shenetb^  That 
where  the  petitioner  upon  bb  comemg  fortb  of 
tbe  Basi,  in  Eastj  in  order  to  bis  takin;^ 

tbe  benefile  of  bk  royal!  m^je&tie«  gracious  ^ 
of  iodeminty,  wa*  tbe  ver^  next  day  be  caoM 
to  Kdtnburgbt  to  titat  efftici,  ap|vreb<^nded  pri^ 
soner,  aod  did  aud  represeut  tbi^  bis  deiiigne  to 
the  lonis*  uf  privie  counseU,  by  a  foi«iner  peti- 
lion  ihrow^ing^  bitnself  on  his  royall  mfdestie's 
inercie,  and  resolred  to  propone  tta  dcleD<« 
againeat  his  iodytment ;  and  uow  slandiof  ac- 
cused beibr  yoor  bp^a  tor  the  cryiDes  cootaintd 
in  my  lybeU,  in  prosecution  of  my  fbriner  ap^ 
plication,  tbe  Kupphcat^t  as  of  bt'fore  bombly 
reprchi^ntd  to  your  lop'i,  that  as  I  have  sincere- 
ly ackunwletJged  all  I  know  in  relaliofi  to  tbese 
njattei^  fur  which  I  ame  accused,  so  1  in  lead 
to  propone  nutliiog  by  toyself»  or  any  lawyefi» 
in  my  uwne  defence,  but  simply  remjttfi  mjseU' 
to  \m  royatl  majesty j  ^>r  h\B  gtacious  pardon 
and  indetiinrtjf  ;  and  therefore  humbly  crates 
yoor  hii'n  will  delay  my  try  at  I  till  bia  m«j@- 
lie*B  royail  pleaiiure  be  knowen,  ai  to  my  paT« 
tic  lib  r  case^  or  otberwayes  dispose  of  your  pe- 
titjoner  in  tbir  circum$;tances,  a^  yonr  lop's  out 
of  your  Jiiikits  dciocJiua  d&U  goodues  iM 


«»1 

Wr^  Hallyburton  the  ptinoEil  j  and  depone*  he 
•awe  Mr.  Hallvhuiioo,  the  panoallt  bare  a 
ifaitn  in  bi«  hand;  unit  ihn  is  the  trueth  as  lie 
*bMi  auKwvr  to  God ;  dt?fM^nfi  bo  Cannot  wr«iU, 
&c SuOariHtitr^       LorRiAir,  L  P*  D,  C* 

David  Chriilall^  hoitiuan  and  ikipp^rof  the 
J  ami,  of  Btu-nUibnd,  aceiS  tbrttiy-e^ht 
jear«»8,  marry pd^  purged  of  luahce,  prt^odicc, 
ill-Hill,  aud  jwtrtm I r^o unwell,  and  aokiunly 
Kworop,  depoiies  thai  in  tbc  monirth  of  Au;|0»t 
la«U  thr  boateaJM  theJaui^L^of  Burntblandf 
i»  hereof  the  depODeut  wan  one  of  tbe  ^aillorBi 
Imm  iytia^^  th^ii  at  Leith*  waa  fraughted  to 
tiw  Ff_jffle-sydc  to  Carrie  some  proiisbns  to  the 
fiinrth  iiid4.%  and  that  aiuoopt  other  pasttengertt 
IVilliatti  Frascr,  the  pan  nil  now  at  the  barr. 
Mid  otie  Mkld tetoun^  were  tivo,  anil  when  tht^y 
Mtro  out,  lliese  two  persons  and  others  fell  ujjon 
lh«  de(Hrne0t  and  the  other  boatmen^  and  com- 
f^nlcd  thetn  to  change  tlieir  cm^e,  and  &teir 
ilitigUlo  tbe  Bass,  and  the  de|>onent  and  tbt? 
^Dl^  MMneu  showing  their  unwillingness, 
Hm  ^d  hmt  tbeuO)  and  threatenerl  to  kill  them 
M  mcy  refuned ;  and  that  Mr.  31idletoiiu  did 
Jiold  «  loaded  pistol  1  aod  a  bygouctt  to  the  de- 
pooenls  breast,  who  was  tlien  siuintf  at  tbe 
lidme,  and  that  when  they  came  to  tbe  Baa^, 
the  pas^ngers  took  out  all  the  provisions,  coti- 
liisttn^^  of  in  ea  1 1,  biskot,  hnllet,  brandy,  &C.  up 
to  tbe  tkss,  aadtouk  the  deponent  arul  die  other 
lioatini?n  alougst  wiib  thetu^  and  keeped  them 
there  about  the  space  of  six  days  i  and  that  he 
«awe  Witham  Fraeer  as  active  and  bu^ie  as  any 
Mher;  and  that  he  heard  sereralb  shottathey 
tyme  bo  was  there,  wbich  he  cooceafes  were 
lefdled  »it  timber  boatt^  gt»dug  by  ;  that  be  and 
the  rest  were  forced  to  stand  ccntries  in  tbe 
nif  ht  tyme  ;  and  this  is  tbe  truetli  as  be  shalj 
ao£wer  Uj  God ;  dep(?oeA  be  cannot  wmitt 

Sic  Subscriifiiur^       Lotuuin,  L  P.  II,  C 

Edteard  Serpletf  Eeaoian  in  Bumlisland, 
ftgfd  threttj-Jour  yeareSr  nciarryed,  purged, 
■l|i  inrorDe ;  depoDcs  that  he  was  one  of  the 
iHiatmen  in  the  abov^  mentioned  boat  that  took 
in  tbu  provi&kiDs  which  were  prc^U-^ndcd  to  be 
^iug  over  to  the  Elie,  and  that  William 
Frascr,  the  prisoner  now  at  tlie  barr,  was  with 
iliem ;  and  wIkhl  tUey  tvere  about  tbe  north 
syde  of  lubb  Keithi  the  passengers  eomanded 
Ihem  to  steer  Ion  ards  the  Bass,  and  particu* 
iariy  William  Fra^ser  did  beat  tbe  deponent  on 
Uio  inoutli,  wheu  he  did  not  so  readily  ciMnplye 
with  bis  demands ;  and  when  they  came  to  tlic 
Bass,  the  said  William  Fraser  was  also  busiiie 
aa  any  of  tbe  rest  in  helping  up  tbe  proviiiions 
ny  th«  rock,  which  consisted  of  mesll,  peise, 
hisket,  braudie,  and  other  things  ;  and  that  he 
aud  the  rest  of  the  seamen  uere  tbrcibly  de- 
taintij  in  the  Ba^s  ^  and  that  he  saw  the  said 
WjlUutn  Froser  shoot  some  cannons  at  fisher 
boai^^  aod  that  he  heard  his  neighbour  who 
stood  with  biu3  on  centry  say,  that  tbey  pur- 
posed by  it  to  dmun  tlie  boati?,  and  when 
if  wan,  th^  ohl  gunner,  came  near  baod,  Mr. 
,  JTrtsc^  iti9vM  mi  k4  hiui  modle  but  ba^e  him 


fir  High  Treason* 

.    And  the  pethiooer,  bis  poor  wyfe 
Ireo,  shall  ev«r  pray,  &c. 
SnAfcri^t^ur,  Wii4~  Fraser. 

res  the  said  William  Fraser's  iudiciall 
edgement,  written  on  the  back  of  the 
tion : 

Edinburgh,  March  7, 1692. 

IB  Fraser,  the  pannall  and  petitioner 
esigued,  being  called  to  the  barr,  doeth 
f  acknowledge,  in  presence  of  the  lords 
issysers,  the  within  written  petition; 
ler  adds  and  acknowledges,  tnat  he  is 
f  concurring  with  the  other  persones 
f  bell,  in  carryeing  in  proTisions  to  the 
ad  surpryseing  the  boatmen,  and  mak- 
I  prisoners,  and  carryeing  them  in  pri- 
»  the  Bass ;  and  that  he  assysted  with 
of  the  garrison,  to  detain  them  pri- 
1  the  way  and  roaner  lybelled,  as  also 
tirr  with  the  rest  of  those  who  did  hold 
Bass,  while  he  was  there,  and  is  sensi- 
id  heartily  sorie  for  his  g^ilt  and  ac- 
to  those  crymes,  and  does  humbly 
imself  at  there  majestie's  feet,  humbly 
and  imploreing  there  nnercie  and  cle- 
nay  be  extended  to  him. 
SiAKtibiturf  Will.  Fraser. 

Lothian,  1.  P.  D.  C. 

[iords  ordained  the  assyse  to  inclose, 
irae  there  ferdicte  to-morrow  at  ten 

March  %  1692. 

lid  day  the  persons  who  past  upon  the 
f  Alexander  Halyburtoun,  and  William 
prisoners,  returned  there  Verdict,  in 
!  of  the  saids  lords,  whereof  the  tenor 

ssyte  all  in  one  Toice,  by  the  month  of 
MDe,  of  Nynewalls,  there  chancellour, 
it  soffieiently  pro%en,  That  Alexander 
ton,  the  pannsil,  while  prisoner  in  the 
deaoceasione  to,  and  joined  with  others 
ffmng  the  garrisons  of  the  Bass,  and 
es  ffmdt  it  proven,  that  the  said  Alex- 
alyboftoan  wes  seen  with  a  gune  in 
Island  theicafVer ;  and  tads  William 


A.  D.  1692.  [84t 

Fraser,  thejpannall,  i 


r,  the  pannall,  ffuiltie  of  the  crymes  ly. 
belled,  ooniorme  to  bis  subscrybed  oonfession^ 
and  the  probation  adduced.  In  witness  wber- 
of  thir  presents  are  subscrybed  be  the  chan- 
cellour att  Edinburgh,  the  8th  day  of  March, 
sixteen  hundred  and  ffour  score  twelfe  years. 
Written  be  James  Liringston,  clerk  to  the  said 
assyse. 

Sic  Subicribitur^  Jo.  Home,  Can. 

Ja.  Livingston,  Clk. 

Doom  continued  till  the  16th  March  instant ; 
thereafter  to  24th. 

The  Lords  commissioners  of  justiciary  have- 
ing  considered  the  Terdict  of  assyse  retnrned 
againcst  Alexander  Halyburtoun  and  William 
Fraser,  prisoners,  upon  the  nynth  of  this 
instant,  whereby  the  assyse  doe  find  it  suffi- 
ciently proven,  that  the  Mid  Alexander  Haly- 
bnrtoun,  while  prisoner  in  the  Bass,  hade  ac« 
cession  to  and  joyned  with  others  in  surpryse- 
ing the  garison  of  the  Bass ;  and  doe  lyke- 
wayes  ffind  it  proven  that  Alexander  Haly- 
burtoun was  seen  with  a  ffune  in  the  said 
island  thereafter ;  and  wherd>y  the  said  assyse 
doe  find  William  Fraser,  the  pannell,  guilty  of 
the  crvmes  lybelled  againest  him  conforme  to 
his  subscrybed  confession  and  probatione ;  they 
therefor,  lie  the  mouth  of  John  Ritchie,  demp« 
ster  of  court,  decerne  and  adjudge  the  saids 
Alexander  Halyburtoun  and  William  Fraser,  to 
be  taken  to  the  marcat  cross  of  Edinburgh, 
upon  Wednesday  the  95th  of  May  nixt  to 
come,  betwixt  two  and  four  a'clock  in  the  after- 
noon, and  there  to  be  hanged  on  a  gibbet  till 
they  be  dead ;  andordaines  there  names,  fame, 
memorie  and  honours,  to  be  extinct,  and  there 
armes  to  be  riven  furth  and  dilate  out  of  the 
boolu  of  armes,  sua  that  there  posterity  may 
never  have  place  nor  be  able  hereftcr  to  brook 
or  joyse  any  honours,  ofTices,  titles,  or  digni- 
ties within  this  realme,  in  t^ine  comeing,  and 
to  have  forfaulted,  emitted,  and  tint.  Si  and 
sundrie  their  lands,  heretages»  tacks,  steadings^ 
roumes,  possessions,  goods  and  gear,  what> 
somever  pertaining  to  them  to  oar  soveraigne 
lord  and  lady,  to  reraaine  perpetually  with  there 
majesties  in  property,  which  is  pronunoed  for 
doom.  '  Sic  Suincribiturf  C.  Campbell.-^ 
David  Uoue,  Jo.  Lauder,  J.  Falconar. 


US] 


i  W-  *  M,     Proceedings  agaimsi  Jama  MiddUHmin  and  orAcri,    {144 


tB9*  Pracecdiog^  against  Captain  James  Middletoux  and  ollim, 
for  High  Trcasoii :  5  William  &  Mary  :  a.  i>.  I694,  [Now 
fir&t  published  ftom  the  R€a>rds  of  Justiciary  at  Edinburgb,] 


Cc^BU  JorrtoAni^,  S.  I).  N\  Rtgit  et  Ee^tnei! 

decriiio  ncmtj  ilie  men  bib  Februarij,  millfc' 
it  mo  sestcenteifinio  nOLiaj^imo  quarto  per 
^^  li imombi ics  V i ro»,  Domi u jj  *  CoUi* i j  Cam p < 

^^^  idl  de  AtwrucbiH,  r^lag^Litnj  Dsviiteiti 
^^^^b  iloine  de  CnK«-rrt^,  DomtQij  Joniioeui 
^^^K  Jjuidt?  de  Foiiulai»litJI,  mngUtruiii  Ar- 
^^^^^  ubibaldura  Hope  de  liiinkfillor,  et  lua^s* 
^^^^P  trtim  Jaoobum  Faleouef  de  PheiHilOf  ooui« 
^^^^      tn  iMionariiK  j  ustidarij  Llict  8,  D*  ^d  *  Begb 

n 


Cum  t^tttimc  d^rmiUft. 

Julian* 

Cftj>t*in  JiitNct  T^ndietmntf 

Wiiimm  IV  ft  ham, 

Wiiimm  Nichi>iMfnMif^  &oMwf^  h  the  Bajs^ 

Jithn  Vn/ttcr^  laie  macbafdin  Edinhurgb, 

AH  priiioners  in  ilii^  'rolbuoiii  of  Edeuburgh. 

TnB  YTED  end  accu«ed  al  the  inKtanc^e  of  sir 
jAinci  Stewart  ^  I  heir  mftjest»tf«  ftdvr^cal,   tbat 


*  The  Ortbo^aphy  of  tbe  record  is  pr«- 
KTved. 

fin  the  small  and  rare  CoHe^stton  of  Jaeo- 
bilical  Tracts,  f ^It^moirg  of  lord  viacouol  Duo- 
dee^  :^p)  published  ju  Tj^mduD,  1714,  is  ^jveo 
the  iullotTiJiif  artkle  rekilLigr  ig  tUe  em^  of 
t h  esc  persons  1 

**  1^  Skgt  of  the  Bail. 

**  The  Bans  is  a  strong  rock  in  the  Fryth  of 
Fartli,  ntdudinjof  bctweeo  Fife;  and  East  L4f> 
thiaia,  wilhin  five  milofi  of  Dunbar,  in  ^vhicb 
lliere  w^.^  a  ^rrisOEi  of  fifly  wet),  commanded 
by  a  citptaiQ  and  tiis  te€p«€U?e  officers,  whereof 
Charles  Maitland  was  proteniour,  lGiJ8,  acid 
flel^erided  it  strenuously  ibr  his  mastc^r,  king 
JiimL^s,  till  1690*  Then  bavinj^  iniall  hopes  ot' 
king  Janies^K  restoration,  wstnlin|^  prorisiooa, 
ammunitiop,  and  other  nece^^sariei^  was  forced 
io  giva  it  tip  to  tbc  g'ATernmeni,  who  made 
Mr.  Fletcher  of  8.dlon  irofernonr,  he  hanng 
four  of  king  Jamcs't  officers  prisoner,  they 
boldly  surprised  the  g'arnson  atid  tient  all  the 
soldiers  ashore,  which  being^  reported  in  the 
country,  whem  there  were  many  loyal  ikxnl  - 
lies,  I  bey  wej^  supplied  wilb  men,  proviiioos, 
and  arnmuDLlJon.  Inttrlligenee  thereof  beto^ 
CEirried  to  France  to  kiuyf  James,  there  was  a 
ship  sent  iriih  all  sorts  of  provisionaand  stores, 
and  two  boatSj  otie  that  carry^d  two  pattareroes^ 
twelve  niusquctu^  and  rovreil  with  iweke  oar^, 
and  another  sjnaller  boat, 

^'Eut  alkii¥&rdfl   their  |ifomoQi  falling 


wberas  by  the  common  lawe  and  tbelmifstf 
this  aud  all  otlier  w^ll  tj^nvefned  iiauoiiS|(bt 
crimes  of  treason  and  reheihon,  aaJ  Q^m 
and  hoatility  ag-ainBt  their  mar— *"^  ^ 
aklmg^,  assjfliiigr,  abatemg', 
com  lining,  and  keefiing 
rpbirUa  or  traitors,  or  op  pen 
11  ishahie  w  1 1  h  t  be  forfauU  lire  ©f  I  yfe, 
^imh,  and  parttcobrlie  by  the  act  JwiD«ff 
parL  i4t,  cup.  3d,  it  is  statute^  thai  not 
openlie  or  n^Aoortie  rcbeli  a^aiuH  tba 
I^rson^  noder  tlie  jtain  of  torfaltiire 
lands,  anil  j^oodit ;  and  by  tiie  act  af  pai 
Ja.  tat,  it  ift  itatutei  thai  noe  man  re<rtt, 
taine,  or  doe  (aiotir  to  open  t\u{\  m^ntftiit  l#« 
bclU  against  the  kin^^s  rnqjcstin  iindf»r  Hit 
iWesaid  paine ;  »3id  hy  the  act  J  a.  3,  f«rl«« 
cap.  24,  and  parK  t^,  cap.  40,  H  k  staMHh 
that  if  any  com  mite  ti^cas^o  afpitt^i  the  Mqf^ 
l>enjooc  or  bis  tnaje^li^^  nr  rysc*s  in  leaf  «f  Wilr 
a^inat  him,  or  receu^  or  ttippties  any  Ibtl  kM 
comilted  treason^  in  hetp,  i^dd,  or  c^un««^U,  or 
etudes  the  bouses  of  those  that  areoimrkldf 
treason^  and  bolda  tbcm  against  ihc  k\n^^  1^ 

short,  the  garrison  icnt  the  Iwehe  oar*d  bait 

by  nii^hti  tn  bring  otf  some  sheep  and  other  ac* 
cess  LI  lies,  which  they  frinjueniiy  n^ceireti  froni  ' 
their  fneiids,  and  the  gui  eminent  being  in* 
formed  thereof  sent  some  companies  to  gi^ant 
the  coast]  who  surprised  acTcral  of  the  j^ani- 
son,  when  they  came  ashore,  and  thereby  tb«ir 
conimunicAtion  with  the  land  being  stoppdj 
they  went  ont  by  ni|rbt  in  their  boats^  ao^ 
touK  sercral  ships,  one  laden  witfi  salt,  wbeiHSi 
bavini^  taken  what  was  c^nvenianl,  she  wit 
ranssomed  from  Ediohurg^h  \  a  Dutch  de^fM* 
which  they  pUnidered  and  put  o(f  a|rain  \  aad 
a  ship  LadL^n  with  wheat  which  they  thoug^htio 
have  carry  pd  10  the  Baas;  but  ibewiud  iitqt- 
ing  cnntriiry  drove  them  to  tiie  coast  of  Mon- 
Iroiie,  wh^re  she  run  asbnre,  and  the  laea 
pelting  safe  ta  lantl  dispersed  in  the  country ; 
and  ftiMlnii  a^atnfihort  of  provisions  tbey  vttfA 
in  ibcir  hoat;  to  the  isle  of  May,  where  tbey 
took  several  sheep,  and  what  coab  their  boat 
could  carry.  But  the  governmait  beings  en- 
raged at  their  repeated  bolduess^  king  Wik 
liam  ordered  the  whole  rercntie  uf  the  fcilf* 
dnm  to  be  expended  on  thetr  reduction,  tod  m 
iliat  account  sent  two  frigates,  one  of  sixty  and 
another  of  fifty  guns,  who  lay  battering  ivt^ 
days  without  doing"  any  damage  to  the  g>f* 
rtson^  though  the  ships  had  several  of  tbetr 
men  killed,  and  their  rigging  and  sails  cut  sad 
shattered,  and  their  ships  so  much  damnified, 
thai  they  cost  the  treasury  of  Scotland  about 
500/.  to  repair  them. 
* '  Mennrds  there  were  two  &bipft  ftppoiiited 


shall  be  punished  as  traitors  ;  and  by  ibe  act 
C'hii.  '2,  pari.  I,  sess.  1,  cap.  5,  it  h  ileclarcd, 
tkiMt  it  &hall  be  high  treasQD  for  Ibe  subject  of 
tbts  real  me,  tes  or  more,  to  rys*i  or  coolinew  iii 
ariucs  upon  pretext  ivhatsomiiver  without  bis 
tsa^estiei  speciall  approbation  ;  as  also  by  tlie 

cofkstaiitly  to  attend  that  service,  whereby  the 
gaitisHQ  was  rendered  uncapable  of  procuring 
any  pfOTi«ions  by  the  use  of  the  biiats ;  how- 
Cfer,    there  came  afler    some  time,  a  small 
nrivateer  from  Dunkirk,  laden  with  rusk  and 
Citlier  neeetaaries  :  but  the  gun  i son  bceams  so 
ifreftic  of  men,  that  tliey  bad  not  hamls  enough 
to  Itoist  up  the  rusk,  but  were  oblig^ed  to  borrow 
lea    sailoni    io    assist   tbem,    and  when   they 
liaJ  got  oulv  seven  ba^s  into  the  jBrarrison^  the 
St  of  the  two  ships  b^re  down   upon  the 
-teer,  who  was  forced  to  cut  ht^r  aibles 
erent  her  being  run  do\^  n,  so  I  hat  »he  c^r- 
vr&a  then  in  worse  condition  far  holdings 
titan  before,  having  ten  sailors  added  to 
number^  and  ouly  seren  bags  of  rusk, 
which  could  serve  but  a  short  time  ;  where- 
fore the   governor  was  ohlijred  to  put    each 
man  of  the  f^arri&on  to  the  allowance  of  two 
ounces  of  raw  rusk  dough  in  24  hours.    About 
that  titue,   Mr,  Trotter  was  taken,  and  ccm- 
demncd  fur  aiding  and  assisting  ibp  place,  and 
H   captain  Alexnoder  H  ally  burton,  captain  Wil- 
^H  Jiain  I'Vazer,  31  r.  William   \V  itliaui,  and   Mr. 
^1  IrViJtiam  Nicotson,  who  belonged  to  the  gar- 
^f  ritoii,  were  taken  on  shore,  and  coudemncd  to 
I         be  hanged  ;  and  tlie  day  of  Mr.  Trotter's  exe- 
cution being  come,  the  gibbet  was  erected  at 
Cmille-tovvD,  and  he  being  liniuyUito  the  place 
«  gUD  was  tired  from  the  Ba'^s,  amongst  tiic 
crowd,  whidi  terrified  them,  and  obliged  them 
|4»  remove  the  gibbut  to  a  farther  dL^tunce, 
where  he  was  hanged.     The  rest  who  lay  in 
priiLoii  Lit  Edinburgh  under  condeuinalion,  were 
rrprit'ved  fn»m  lime  tu  time,  till  set  at  liberty 
by  Iheetpitulaiion. 

At  hm  the  ^unison  beiosT  reduced  to  five 
ti&  dtiys  provision  according  to  the  uljove* 

liuocd  allowance,  put  out  a  Hag  of  truce, 

wlicreufKm  ibe  government  seudiug  tti  know 
Vrlui  tbey  wanteiJ,  the  garrison  replied,  that 
tbey  would  surrender  upon  terms,  and  drew  up 
tbeir  own  articles^  upon  which  the  honourable 
privy  council  sent  two  of  their  number  to  the 
Bahs,  to  acquaint  them  what  condtiioui*  they 
^OuliJ  grant. 

"The  governour,  who  hail  sated  some  bot- 
tle* of  the  best  Ir'i^nch  wine  and  brandy,  and 
soma  fiMfC  bisket,  made  them  drink  ptentiiully, 
tellinifr  tbeai  Uiere  was  no  scarcity  of  provisions, 
and  unlaw  be  had  his  own  terms  he  would  not 
BUfreuder,  delivering  at  the  same  time  his  arti- 
ol^  la  their  loriUliips.  and  alter  they  were 
Moc,  he  ordered  all  tiie  caputs,  coats,  and  hats 

I  in  ibe  garrison  to  be  put  on  the  muxzles  of 
mvftquctg,  10  make  them  believe  the  place  was 
UMvt'meni  upon  ivhich  their  lordkliips  re- 
trtfiinH  Id  the  oouncil,  and  rt  p(^>rted  how  they 
were  tr^aU'd,  nod  tlmt  the  gumwio  was  in  every 
fCiq^GCt  weil  providetit  winch  induced  tb«  ho- 


2nd  act  sess.  2,  of  the  same  parham€iit,  it  k 
declared,  tlnU  it  shall  be  high  treason  to  lev  lift 
wnrr  or  to  take  up  armea  against  the  king,  Q^ 
to  inlyse  slrangera  or  others  to  invade  any  of 
\m  dominions ;  ly  keas  it  is  declared  and  statute, 
by  the  2d  act  of  this  present  parlia*t,  duited  the 
17  June,  J  689,  that  it  is  high  treason  lu  any 
Kubject  of  this  kin<v{lomc,  by  writeing,  speak- 
ing, or  any  other  mainer  of  way,  to  disowen, 
qoiirrell,  orinipugne  their  majesties  royall  power 
and  uulbority,  or  right  and  title  to  the  crowne  i 
and  also  by  the  common  liixve  and  lawes,  and  acts 
of  parliament  of  this  kingdome,  the  holding  out 
or  assistmix'  and  aiiliog  others  to  hold  out  in 
armes  or  otherwayes  any  of  the  king^s  forts  and 
strengths  against  the  king,  or  the  usurpifig  of 
the  same,  Without  lawe  or  warrand,  or  airt  and 

Eairt  of  any  of  the  crimes  forsaids,  are  punisha- 
le  as  treason  :  Nevertheless  it  is  of  verity,  that 
the  satda  captain  James  Midletoune,  VVilliam 
iS  icolBon,and  William  VVotham,  baveing  shaken 
oir  all  fear  of  God  and  regaird  to  tht^ir  majes^ 
ties  authority  and  lawc^,  did,  about  tlie  moneths 
of  Tvovernbcr  or  December,  ane  or  other  of  the 
dayes  of  the  saids  moneth^,  in  the  yeire  1691 » 
or  in  the  moneths  of  Januarie  or  Februarie.  or 
one  or  other  of  the  monclhfi  of  the  yeire  1692* 
or  one  or  other  of  the  dayes  thereof,  or  in  the 
moneths  of  Janwarie,  Febwarie,  3!arch,  Aprill^ 
or  May,  1693,  or  ane  or  otticr  of  the  days  ther- 
of,  by  or  without  com  mission  from  the  late  king 
James,  come  under  the  command  of  cotlonell 
William  Grahame,  or  some  other  person  from 
Dunkirk,  or  some  other  pairt  beyond  sea,  with 
the  other  persone^  in  your  company  fbr  recruit<« 
ing  the  gariifon  oftbt'  Ba^,  that  at  that  tyme 
held  out,  and  alill  holds  out  rehellioustic  against 

nourahle council  to  comply  with  the  goreroor'ft 
ai tides,  which  were, 

J.  **  That  the  garrison  should  come  ashore 
with  their  sivoids  about  i!irm,  and  there  should 
be  a  ship  appointed  by  the  government  with 
ire*ih  provisions  to  transport  f^uch  of  them  as 
were  wilHn^  U*  go  to  Dunkirk  or  Ilavre-de- 
Grace,  and  thai  in  a  month  atter  the  surrender, 
thiiiie  who  pleased  to  stay  at  home,  might  live 
without  disturbance. 

11.  **  That  all  they  had  taken,  or  what  be- 
longed to  them  after  they  surprised  the  place, 
diey  should  be  allowed  to  dispose  of  to  the  he<st 
advantage,  together  with  their  boats,  and  all 
things  pertaiumg  to  any  of  them. 

ill.  **  That  such  of  them  an  i^houh)  innline 
to  go  abroad  might  stay  in  Edinburgh,  until 
tbe  ship  was  ready,  without  molejitation,  and 
have  60  much  a  day,  according  to  their  several 
stations. 

IV,  ''  That  all  who  bad  belonged  to  the  gftf* 
rison,  or  had  aided  or  assisted  it,  should  twve 
the  betietit  of  the  capitulation  ;  and  those  wbo 
were  dispersed  over  the  kingdom,  should  have 
a  time  to  come  in  ;  and  lliose  wlio  were  cou« 
demoed,  in  prisoo,  or  otlierwayfi  distressed » 
should  be  set  at  liberty  tbe  same  day  the  gar-  * 
risoQ  should  come  asliore,  wittieiit  any  f&e^  or 
oiher  charges  whatsoever.*' 


J 


847  j  S  W,  A  M.      Proceedings  against  James  Middf^un  and  ^m, 


rlhRir  TOftjeslies,  an<f  there  ihcy  antl  c&cli  of 
them,  getting  aod  taking  artutrs^  under  the 
command  Mrchncl  Midktouu,  <jr  oThpr  coin- 
maniUnt  U|>ot)  tbe  ptaee^  did  stay  and  cnntiue^v 
*  ibe  ^rtion  to  keep  out  that  tTort  againitt 
leir  majestres,  all  least  tliey  abod  and  conli- 
lowed  therin  with  tlie  saldn  rebel b  and  gave 
litem  their  prrsencc  :  nnd  notwith^anding 
I"        *  '      *  ■'  "  ■    ,t,p  and  WUlium 

^  I  lie  cii.iTged  to 

Sill  I  (.'iii'«  1  lilt  -1111  iMni  ijiini^i  lilii'  ptitne  ot  trt'U* 
n,  yel  tiiey  disobey fd  the  said  charge  and 
dt^r.'*    »>''^rfor  (leniinted  rebells  ;    and  Turther 
t  prochunation  with  Irtters  oniiterco- 

.11  ^     it  against  them,  uolwithstnodtng  of  aJI 

bich  they  conttnoued  ihetr  said  rebellious 
irficticm  in  keeping  out  tlic  said  frort^  and  in 
liding  and  assistrng  tbe  ganisone  iherof  soe  tci 
W,  milill  thatbtlicinibi?  mnoeth  of  May  last, 
T  tljerabnut,  ihey  were  apprebcndetl ;  lykeas 
le  said  Uilbam  Wetham  bavcitig  €(ime  riMin 
of  the  d^iyt'ii  of  the  moncibii  of  ihc 
id,  and  joyned  or  taken  piiirt  witli 
^hII  rebclts'  and  rtlHllioui;  gai riM>n,  by 
sencc  or  itibcnvayes,  for  some  dayc*;  nr 
OiietU:*^  did  tberafier  goe  out  and  went  ahi  o:id 
KnLrbiiid,  FJiindtrR,  and  France,  nnd  to  8t, 
erni;iiics,  \x\  sill  or  one  w  other  nf  these  plaers, 
f  jmodinsT,  acting,  or  conspyrein^  iraito- 
usUc  against  ther  majesties,  und  wtth  Ibeir 
imies,  untdl  that  comeiny^  t^ack  lately,  with 
httt  iatellig'enee  and  help  he  tonhi  bring  to 
till  accomplices  in  the  Bui^s,  be  and  the  other 
two  (»ei^oncs  above  named  did  mcett  together, 
and  in  titeir  n^turne  to  tbe  Bass  were  stopcij 
?iboat  the  ilarkning  of  the  evening  near  to 
Wbvt  Rirk^  where  ailer  souie  resbtence  made 
by  llitni,  ibey  were  taken  by  same  oftbekin^*s 
true  leidjies  and  broucbt  in  pristmers  to  Edm- 
btir^^ti  ;  LvtieaiitUc  said  Jotin  Trotter  and  Atex- 
dnder  31*Leibb  haveing  al^io  shaken  offall  fear 
of  fjod  and  regaird  to  their  tnejeslies,  and  the 
\\\^%'r%  and  governmetit,  and  turning  most  unna- 
tural I  :ind  wicked  eiiimics  to  their  maje«tjcH  and 
tbeir  native  couutrie,  have  from  the  bej^inning 
of  the  suppryseing  and  revolliug  of  ttie  Batd 
rock  and  fort  of  tbe  Baa^,  which  wes  in  the 
roonclb  of  June,  1(391  yeircis»  and  since  that 
tymc  in  one  or  other  of,  the  daye?  of  the 
monetbs  of  tbe  yeire  1G91,  1092,  10^3,  t09l» 
nnd  nntill  of  bte  Hiey  m  ere  lakt-n  aiding,  as- 
iiisting,  helping',  supplyeing,  receptinjj,  har- 
bouring, corre^j»onding,  or  intercomuninif,  with 
Ihe  forsaid  enimtes,  nnd  rtbeUs  in  tbe  Bass  or 
<e  or  other  of  tbemf  and  bade  furnished  tJiem 
itb  roeatt  and  driuk,  bouse,  harbour,  victwall, 
or  something  els  useful  I  or  comfortable  to  them, 
or  bade  sent,  caried,  or  caused  carje  to  ibem 
meatt  and  drink,  or  something  else  bf  Ipefull 
or  comfortable  to  them  ;  or  bade  tntctligence 
with  iliem  by  wonl,  write,  messa^,  or  some 
ofber  way,  or  hade  sent  or  caused  send  letters 
or  messages  to,  or  rcceaved  letters  or  messages 
from  them  ;  and  particularhe  he  the  &aiil  John 
Trotter  in  the  roonelhs  of  November  16P|^  or 
Janwarie,  Febrnarie,  or  March  1692,  or  in  ane 
9r  other  of  the  dayes  tbereofy  t^r  oa  Qne  or  other 


6f  the  days  ^ive  ly  bf  Drd,  bafk  leHers  or  4 

messages  by  word'or  vt  rttc  oent  tu  bini  oot  { 

the  Bass,  from  the  sunt   Ci> 

with  a  detuand  of  >nppT]r'  of 

Bucb  as  ancimn  chain  ai 

and  \r^n  «ntl  leather  with 

ci'  >  "f'ulJ  lor  the  \.i, 

\cv  \\i  at  the   lion 

thcmbant,  to  1 

same^  and  aocN*  ai  ;   iff  vm- 

mctlttith  \\w  heari-r  nnd   to  I 

and  promised  ttiat  v. Ijul  was  nv,i.,i.M  .i| 

be  »ent  into  the  l\^\s^  ;    aud  the  said^ 

baveinga  letter  M' charge  fujm  fl:*- ^ 

b  a  me  to  be  ilely  vcred  to  the  ^ 

out  of  bis  onn*  b^md,  that  In 

to  France  by  the  way  of  I? 

Orabant  said  was  tor  th* 

the  said  John  IVotter  goti  uj;d   liwk^ 

letter  fl^im  the  bearer  w  ben  he  metl 

ntl  the  plaice  callH  KsJl 

and  said  be  should  \hi  i 

pleasicd  that  it  was  not  i< 

the  other  letters  that  li* 

sooner  ;    lykens  he  ilit-  -   ,  . 

att  seicrall  lymrs  rlr  iik   lii 

bis  health  ;  as  also  h\  lii  ; 

ment  of  TYotter,  there  \s 

biskei,  cheet^,  and  the  l|  I 

nie  and  other   placest  ni  one  ur  otbe 

dayes,  moocths  and  yeirc'?  atrnve  Ivb^-U 

fui-tber  in  one  or  other  of  tlie  <! 

1692,  or  in  one  or  other  of  ib* 

said  yeire  or  other  yeirt^  ^ 

JobnTrottcr  bought  an*! 

SL'Ut  her  with  pi'ovisions  rn 

ler,  and  suggar  loaves,  n 

Bass,  nnd  bts  nccompt  au^  iii^.w 

iog  more  particulars  then  were  sttit ;  be  ' 

therafter    challengeii  by    ano    ejiipre^s 

ihc  Bass,   who  melt  with    him  at  th 

culled  Kiilennkcd    or.  tber?)l)otit,  and 

swen'd  that  he  sent  these  thiog«  a«  he 

them,  and  be  payed  for  tbein   canforiM  I 

the  accompt  sent ;    aud    b^  tbe 

Trotter  in  ane  or  other  of  the  dayetj 

monetbs  of  the  yeJres   forsaid,  sent 

William  Ri»berlsonp,  skipper,  in  I'ort  Si 

to  eome  to  him  to  Wnitounc,  and  ther  f 

with  liim  in  companif*  with M^ 

and   M' Clean,  ubo  were 

rtrbell$  come  from  tbe  Bass  ;  Qn<l  he 

to  the  said  Uobertson  to  lend   his  boa 

serre  in  her  with  s<»me  men  tbnt  be 

rebells  were  to  putt  on  board  to  >;ui  in 

tain  Burd^ssbiji,  which  was  ftf'] 

tbe  Bas»|  and  offerred  him  flbu  l| 

ling  for  that  service,  but  Kobci 

he  tbe  said  John  Trotter  ireai' 

carye  in  siune  provisions,  ■ 

and  some  drinking  boar  i 

Bass  in  bis  boat ;    and  be  [M'm 

this  last  busines  to  repaire  to  ki 

boat  that   tbe  rebel  Is  of  tlie   Iw^ 

from  bim,  and  gave  him  a  crowoe  in  eArnc^tl 

atnttbesaida  M'GorMi  Atnl  * 


»49] 


for  High  'Treason^ 


Maclean,  at  the  same  lime  told  tbat  be  hade 

tit  thrtttie  pund  Htailin  to  mtike  nrovisioa  for 
e  Biiis,  auJ  tlmt  he  hade  doI  made  ibeno  but 
epi  the  money*  wid  tberafler  merthig-  agpain 
lb  Robertsoue  be  pive  bim  two  dollars  more 
Jencoura<^e  bim  in  bis  undertakmg^ ;  ami 
meitiii^  i*itb  bim  in  Leitb,  be  gave  bim  money 
^to  buy  a  number  of  baiues  for  the  Bass,  wbicli 
^■ikbertione  did^  and  be  the  said  Trotter  gave 
^Bri  motley  tu  pay  tbein  ;  tykeas  the  said 
^Blin  IVoller  perslsUog  in  bis  said  wicke<l  and 
^wt«:roti«  practices  tu  tiie  monetba  of  Decem> 
^Br  and  .T^mNvarie  last,  or  in  one  or  other  of  the 
^lljres  tbu-uf,  or  in  one  or  other  of  the  dayes  of 

Je  monetha  and  yeires  above  1y belled,  came  to 
himbar  and  having  changed  hi^  name  (the 
titer  to   cover    bis   trailerous    Irafecqueings) 
im  Trotter  to  Do<I<?^  he  with  the  said  Alex- 
der    M*Cleisb,    bolb    or    either    of    them 
treateil   with   certain    seamen^    m.    William 
J^ethef  Alexander  Wood,  George  Ker,  and 
^■ibert  Spevrn,  and  one  or  other  of  them  to 
Hb^ye  them  into  the  Bass,  and  gaf c  them  good 
deed  for  that  end,  and  ab**  thrcatned  them  if 
lliey  wouhl  Df»t,  and  I  bey  refiiKiing  he  left  wilb 
Alexander  M*Cleish  a  letter  to  be  tent  into  the 
BaaSf  which  was  sent  in  by  the  same  «eameni 
mnd  Alexander  M*C!eish  received  a  tetter  in 
Aiixwer  from  tbe  Bass  directed  for  him,  ^hlch 
Hfes  seaJleit   itjion  bim  when  he   waa  taken, 
^Bil  he  ordoum)  ibe  wife  of  James  IlamiUon, 
^k  Dumbar,  in  whose  house  be  was  taken,  to 
borne  tbe  said  letter,  With  tno  letterK  itiore  Ibot 
Jto  gave  her  ',    lykeas  there  were  found  unon 
Hki,    wlien  lie  was  taken,  or  nt  least  he  left 
Vmh  hiji  said   kndlady,  scverall  recepts  and 
sccompts  and  other  note^  ami  papers,  aithcr 
^mln  by  hmi^olf  or  others,  all  relateing  to  the 
^^^Kpsonabte  correpondencc  with  and   sup- 
^^|B<>f  the  sa  ids  rebel  Is  in  tbe  Bas^t^  which 
wfef^bdd  as   repeated   trevitatts  rausft^  and 
should  be  sbowen  to  him  or  his  lawiei'^  More 
bi«  tryealK  and  then  should  be  mod  need   in 
judnpiient  airain*it  him ;    as  also  Im  the  siid 
Aleicauder  M*C'k>ish  did  upon  one  or  other  of 
tbe  dayes  of  the  m«uietbs  and  yeires  forsaid^ 
mdit  ^itb  tbe  said  skipper,  ^Villiam  Iloliert- 

son,  — • M*GoTan  and  M*Clean, 

,  A  ben  tour,  about  the  lurnisbing  tbe  rebel  Is 

j[|he  Bass;  and  lately  in  November,  Decern - 

,  or  Janwarie  laist,  and  upon  one  or  other  of 

Mlayes  tberof,  be  the  said  Alexander  >rLeisb 

h\  tbe  forfaid  four  seamen,  and  treated  v^ith 

lor  OQC  01*  other  of  them,  to  earye  in  two  men 

"*  eir  bolt  16  the  Bass,  under  pretext  that  they 

I  to  carie  them  only  to  a  snip  lycing  out  at 

b  abf.>nt  nyoe  or  ten  a  clock  att  tiight,  but  so 

baile  contrived  it  thai  those  two  men  being 

Mtned  should  coosiraine  and  force  tbe  aeanien 

toccryetb^m  lo  the  Bass,  which  they  lyke* 

WAyes  did,  calling  when  they  came  near,  a 

JBftoket !  aHacketl  which  was  tbe  name  of 

^bof  thesaidrebellH,  and  probably  of  one  of  the 

IBd  two ;    and  tbe  seamen   havein^  gott  a 

fiinie  for  their  paiues,  be  the  said  Alexander 
^Cleisb  .hanged  tbe  said  guinea,  and  desU'i^ 
the  money  amongst  tbem  att  their  re- 
HiL.  XI 11. 


A.  a  1694.  [850 

tume,  and  bid  tliem  keep  tbe  matter  qnyet,  for  1 
it  would  bang  them  as  well  ashimHetre;  andl 
therafter,  on  one  or  other  of  the  days  foi-^saidLI 
he  afrniti  treated  f%itb  tbe  said  seamen  to  cary#l 
ID  ale  to  the  Bb'ss^  and  de  facto  brought  a  btiNj 
rell  of  ale  to  the  boat  syde  that  ibey  inisrht 
take  it  in,  but  they  ret  used  it ;    and  ftinhcr^  i 
upon  one  or  other  ol'lbe  dayes  forsaid  be  hyiedJ 
tbem,  giveing  tbem  ale  and  money  to  goe  inlM 
tbe  Ba&s  with  a  tetter,  which   they  euiied  in  I 
and  delyvered  at  tbe  Bass,  and  gott  and  brought! 
ane  letter  in  answere  backagnioe  and  dely  veredl 
it  to  bim  ;    and  he  wAfi  also  present  when  tb#  j 
said  Trotter,  under  the  name  of  Dods,  and  he 
and  Trotter,  or  either  of  theui,  treattd  v*itb  tbi 
said  seamen  to  carye  in  tbe  eaid  Trotter  to  tba 
Bass,  as  lykuwaycit  to  sifrve  Trotler  lo  an 
from  the  Basa  for  a  ycive  if  could  hft%e  agretfdj 
with  bim  ;  and  in  these  villa  no  us  and  traiteroti 
practices,  be  and  tbe  said  John  Trotter  were] 
snrprysed  and  taken,  and  by  tbe  haill  forsaid  J 

Iiractices,  and  by  his  accession  tberio,  tbM 
lailt  forsaid  peraones  ail  or  earh  of  them  ar%| 
guilty  of  the  crimes  of  treason  and  oppen  hoaJf 
lility  or  eonspiracie  agaiu&t  their  majestieiijl 
at  fea^t  were  open  enlmies  to  tbeir  oiajestieij 
and  tbe  kingdome,  or  airt  and  pairt  of  tbe  sa- 
men,  which  bein^  found  be  ane  assyse,  tbs  I 
oiigbt  to  he  puni<^ie4l  by  fforefauUure  of  their  | 
lyfc,  lands,  and  gooUs,  to  t!»e  cxamide  aud  fer^  I 
rour  of  others  not  to  doe  the  lyke  in  tymaJ 
coming.  '] 

Sic  Su  he  ritU  ttr,  J  s ,  Stew  ART.  I 

Pertewari,'-H\r  Jamet  Steztart^  yr  majestie»<J 
adTOcal;  sir  Jumt$  Ogihk^  of  tlMt  ilk,  yr  m*- 
jetties  solicitor 

FrocuratttrA  in  defence^-^T  Fuirkh  Hum^  f^ 
Mr.  David  Forbci  ;  Mr.  John  Frank. 

My   lord  advocat  produced  acts  and  war- 
rands  of  CO  unci  11  tor  processing  and  perBcwio^l 
of  tbe   fornamed  pannalls,  for  high  Ireasoo^j 
befor  the  Justices,  whereof  the  tenors  followcar 

EDnrauRG,  MeySO,  1693. 

Tbeir  majesties  high  commissioner,  and  tb#l 
lonU  of  pritio  councitl  do  beirby  give  ordoorf 
and  warrand  to  sir  James  Stewartj  their  ma« 
jesties  advocat,  to  raise  and  pro&iecute  ane  in-"  { 
dictment  of  high  treason  befor  tbe  lords  com- 
mi^ioiiers  of  justiciaries  against  captain  James  J 
Midletoun,    William    Wotbara,  ane  En£[lisJ)«'j 
man,  some  tyme  padge  to  tbe  earle  of  Oum-*!  I 
barton,  and   U'illiam  Nicolsone,    late  Serjeant  I 
in    col  Ion  ell    Pottin-s  regemeut,  in     FJandera,] 
under  the  king  of  i^paine,  three  of  tht*  rebcHs'l 
in  tbe  Bass,  seased  since  their  coming  from.  I 
thence,  und  now  prisoners  in  ihe  Toibnoth  <if  J 
Edinburgh,  (Sit-  i:iubscribitur^)  Tweddal,  Mel- 
vill,  Drumlangrig»  Argyll*  Erroll,  Lin- 1 
lilhgow,  St  rat  bin  ore,  Annandale,   Sel- 
kirk.    Extracte  by  me. 
Sic  Subicribit  u r,    Pa  .  Bl  on  cr  iCFr ,  C .  St « Con U 

Edenolrgu,  FcL  1,  1694. 

The  lords  of  tbeir  majesties  prrvie  coimciH' 
doe  hereby  approve  of  tbe  cottimtttment  of 

;i  1 


5  W.  &  M.     Proceedings  against  James  MkUletoun  andotkerst    [852 


4.  If  the  defenders  bade  bein  •eot  OTer  i 
the  command  of  a  auperior  officer,  as  their 
Gomeioflr  over  couhl  be  no  crime  for  the  reasoo 
foresaid,  so  their  getting  and  takdng  anws 
when  thev  were  in  the  Bass  oouid  be  noe  crime, 
because  they  were  still  in  the  same  liaieard, 
and  under  the  same  impressions  of  fear  of  be- 
in*;^  haiiffed  and  shott  to  death,  in  caioe  tb^ 
disobey^,  and  whateTnr  might  have  bein  pie- 
tendedifthey  had  bein  once  at  freeedome  and 
att  their  own  libertie,  and  thereaAer  oome  sod 
subjected  themselves  to  the  command,  bat 
seing  it  is  adcuowledged  that  they  were  in  the 
power  of  tlie  eneraie  before  tliey  came  over, 
and  were  sent  from  beyond  sea,  under  con- 
mand,  as  their  comeing  over  upon  that  consi- 
deration could  be  noe  mme,  so  their  eoo- 
tinewing  iu  armes  in  the  Bass  afler  tbcy 
came  over  could  be  no  crime,  seeing  they  wot 
still  under  the  same  commaiul  and  impresMo 
offear. 

5.  Whereas  it  is  lybelled  that  the  paunels  did 
geUand  Uke  armes  in  the  Bass,  allways  de- 
nying the  same,  it  is  not  relovout,  not  only  ftr 
the  reasons  foresaids,  but  also  for  this 


851] 

John  Trotter, ^I^Cleikb,  and  Gavin  John- 

istoune,  and  reoomends  to  sir  James  Stewart, 
their  majesties  advocat,  to  raise  and  follow  furth 
a  criminall  indictment  before  the  lords  justice 
general!,  justice  clerk,  and  commissioners  of 
justiciarie,  against  the  fomamed  persones,  and 
^— —  Hamilton,  for  hij<[li  treason  and  corres- 
ponding with  their  majesties  enemies  and  re- 
sells in  the  Bass.  (Sic  &V6scrt6i/tfr, )  Tweddale, 
Chan.  Soiitherland,  Leven,  Forfar,  Kin- 
tore,  Uaith,  Ross,  Balhaven,  T.  Living- 
ston. Extracted  by  me, 

Pa.  Moncrieff,  C.  S.  Con. 

My  lord  advocat  dcchires,  lie  insists  against 
Midlctoun,  Wetham,  and  William  Nicolson, 
fur  having  joyncd  themselves  to  tlic  rebclls  in 
the  Bass,  and'bomi*  arms  with  them  in  holding 
out  that  fort,  and  as  bclni;  airtand  pairt  of  their 
rebellion,  confornic  to  the  iudytment  exhibct 
against  them. 

Sir  Patrick  Hume  for  captain  James  Midlc- 
toun;  William  Niculson,  and  William  Wetham, 
the  pannalU,  allwaycs  dcnycing  tlie  indy tment, 
and  haiU  members  and  qualifications  thcrof, 
alleadges  flirst,  liint  that  pairt  of  the  iudytment 
bearing  that  tlic  be  the  common  lai\e  and 
|awes  and  acts  of  parliament  of  this  king- 
dome,  the  holding  out  or  as&istiug  others  to 
hold  out  in  armes  or  otlierwaycs  an}*  of  the 
king's  fforts  a«;niiist  the  king,  or  the  usurping 
of  the  same  nithout  his  lawc  or  ivarrant,  is  no 
otherwayes  relevant,  then  as  the  samcn  is 
founded  upon  the  specinll  lawes  and  acts  of 
parliamrnt  mLiitioucti  in  tbo  indylinent,  \vhich 
doeth  not  molt  this  cnsc. 

12.  Tlir  particular  tvUie  \\\ici\  it  is  alieadgcd 
the  sai'is  crimes  wire  conunltted,  is  not  con- 
descendctl  upon  as  oujjht  to  he  in  all  crhiiinall 
iiidylmciils. 

3.  Whcrca*;  it  is  allcdgcd,  that  the  j)amjalls  ^ 
cauif?  under  li.e  command  of  ccliontll  Gra-  , 
liame,  or  Sius"- ollur  j»:i^«in  from  l)OV()iid  sea, 
uitli  oilier*.,  ii  I  rri  ri.i'iliit;'  the  iraristjii  of  the 
Bass,  it  is  not  riK'^anl  to  isifi>rr  th<"  crimts  Iv- 
bellcd,  hv't'au-<  it  b:  i:p^  i:ckiio\Vicd|:cd  hy'tlic 
indvtmciit  tl.^l  ih.*  dtlViuIcr;  v.cre  t-oufdiers, 
and  came  OUT  unlvT  tlu:  command  of  a  su- 
jierior  oiiicer  tiity  hvhovcd  to  olcv,  so  that  the 
c'ominq^  o\cr  not  Wm^r  vohiiitar  or  ano  act  of 
choise  of  the  defender's  owue,  hut  it  being 
acknowledy^ed  that  I  hey  were  comniauded  to 
it  hv  superior  ofiicers,  whose  <'ommand  they 
couhl  not  disohcy,  otherwayes  they  would  have 
bein  shott  to  death  upon  the  place  ;  if  it  were 
true  that  the  defeuJer^  came  over  in  manner 
lyU'lled  it  could  nolinftrracrimeapunsi  ihem, 
f.irr  les.>  the  crime  of  Ireasone,  accord  I  nir  »" 
that  excelln.t  rule  in  lawe,  lic^-.  U)7,  *  de  Ke- 
'  fjiiiis  jnri^  <iui  Jusu  .ludicis  \rll  sup,  ri«»rs,' 
which  IS  all  one  *  aliipiid  lacii  nou  vidcturdtdo 

*  nialo  taeer«e,  qua  pa  rere  mci  ssc  hain't,' es-     , ,    ,-         ^  ... 

peciallie  sein;;  it  is  ackn(»wl(Hl«;ed  that  the  de-  j  which  they  ucre  denr.ncod  and  iiitercoinoi 
fenders  did  not   j;oe  in    here   to    rcvniile   the  '  andcoiitiuewedto  keep  outtbe  ffort,  andaidisl 
Bans  in  tlii^  kiii^dome,  but  were  w\\\  from  lie-  |  and  assisiini:  th-^  ;;ariMU)  y*r  o\'  it  is  not  rele- 


that  the  simple  presence  in  armes  with  so 
enimie  is  not  relevant  to  infer  the  pain  of'  tim- 
son,  unless  there  be  some  act  of  hottilitieor 
other  public  deed  that  did  clearlie  intu^tbdr 
designe  of  opposing  the  government,  and  tho- 
for  it  is  that  the  lawes  and  acta  of  pariiaincit 
lybelled,  are  only  against  oppeu  and  nottorism 
rebells,  which  necessarilie  imports  thattbcit 
must  be  some  publict  or  open  act  of  hostiCtT, 
other  then  the  simple  liavin;^  of  armes  to  inakc 
u  partie  guilty  of  treason  ;  and  for  that  reasoo 
the  lords  of  justiciary,  in  the  case  of  M*Leod, 
of  Assint,  who  was  conveined  for  garisoDiflC 
the  house  of  Ardbreck,  and  convocaiini^  th«r 
Uiajesties  Icid^s,  to  the  number  of  400  uieO) 
ihty  by  interlocutor,  in  rfcbruarie,  1074,  re- 
in sed  to  sustain  that  indl.nr.enl,  in  relation  ta 
I  he  raitinjr  of  men,  or  di^pj^ain^^  any  of  them 
in  companies,  un*!  r  col  lours,  t.)  be  rcIo"aDt, 
except  it  were  olleailgod  that  thcy\»trc2W 
men  and  rpv.ard.--,  and  v.  li'-  under  colloua 
and  mustered,  or  uuder  we«.lJ;c  or  dayly  |«;\ 
and  that  ail  thi>.  waNdor.e  alkr  thcpubhctUtn 
of  the  ie'.lcrs  of  lire  and  swonl  against  him. 

G.  That  allernaiive  in  the  indictment,  that  at 
least  the  defenders  continew  cd  to  abyde  in  ibi 
Bass,  with  the  oiher  pers;»n5  that  were  io  it, 
and  pave  ihent  their  presi  uce,  is  noi  relevant, 
for  if  sinjpleprtse'.ice  with  amies  be  not  rele- 
vant, farr  le:ss  simple  presence  without  armes, 
especially  the  defenders  beinuf  sent  to  ibeBatfi 
from  abroad,  and  heini;  under  comniaod  as 
said  IS. 

7.  Whereas  it  is  lybelled,  that  James  Middle- 
t«»une  and  WilLim  Nicolson  were  withotbeis 
cliap^ed  to  surrender  tl  e  said  fort  under  tha 
paine  of  treastin,    yet  ihey  disobeyed,  upoa 


yond  sea  wlien  iluy  were  in  the  enemies  jH)wer, 
and  could  not  resist  ihtir  commands. 
•1 


vant ;  tiirst.  Iitc:iii>e  il  it  i  ouM  he  nia^c  •PP*' 
that  the  defenders  v.  ^  re  in  the  iSass,  no  iw 


553J 


Jar  High  Treason, 


harei!  came  to  their  knowledge.  2(1.  Albeit 
t  had  coinc  to  their  kooH  ledge,  yet  it  was  not 
n  their  [Miwer  to  have  given  obedience,  bc- 
ause  it  was  acknowlcilged  by  the  indict uient 
hat  they  were  under  the  command  of  Michael 
tliddletniine,  or  tome  other  commandant,  and 
vhalever  cftl'ct  a  charge  might  have  liade 
igaii'.st  a  commanding  officer,  yet  it  was  never 
leard  of  that  a  single  soldier  in  a  garri.sun 
rhich  was  charged  to  render  is  guilty  ui'trc?.- 
cu,  w  hen  the  superior  officer,  whose  com- 
(lands  he  is  obligeo  to  obey  so  long  as  he  is 
inder  his  command*  refuses  to  surrender  the 
;arrison  ;  so  that  it  not  being  in  the  defenders 
ower  to  surrender  the  fTort,  thair  nut  dueing 
I  afU'r  the  charge  can  never  be  imputed  to 
liem  as  a  crime :  3.  As  it  was  not  in  their 
ewer  to  surrender  the  ITort,  so  their  staying 
:ere  after  the  charge  canitot  be  understood  a 
^f'pinsr  out  of  the  (Tort,  or  aiding  or  assisting 
[le  garrison  :— 4.  The  pretended  keeping  out 
fthe  flfort,  or  aiding  and  assisting  the  garrison 
fter  the  charq^e.  being  only  labelled  in  gene- 
all  termefi,  is  not  relevant,  unless  some  pr- 
icuUr  acts  of  keeping  out,  and  aidinnc  and  ag- 
isting, hade  bein  condescended  U|>on  ;  and  it 
s  not'  lylM'lled,  that  aHcr  the  said  charge,  the 
&au!s  Mlddlctounc  or  Nicolsone  did  use  any 
kct^  of  hostility,  nor  so  much  as  that  they  did 
:iear  armes  in  the  garisoh  after  that  tyme  ; 
S.  The  pretended  charge  is  ipso  jure  null  as  to 
kVilliam  Nicolson,  seins^  he  is  not  designed, 
but  his  name  ouly  sett  uoutfe  blank  Nicolsone ; 
tod  it  is  clear  by  the  act  of  parliament,  that  all 
necutions  where  the  pairtlie,  name  and  sur- 
name are  not  sett  doun  with  their  designations, 
the  same  arc  null :  6.  They  «^ave  obedience  to 
tbe  charge,  scing  it  appears  l>y  the  execution 
that  the  chargu  was  given  the  tyfth  of  May  ; 
and  it  is  acknowledged  by  the  indvtment,  that 
the  said  James  Midletoun  and  William  Nicol- 
•oo,  came  out  after  the  13th  of  thesaidmoneth, 
vliirh  is  some  few  days  theraflcr :  so  that  if  it 
coulJ  be  made  appear  that  they  hade  bein  in 
the  Bass,  yet  it  is  evident  that  they  laid  hold 
vpoa  ibc  First  occasion  to  leave  the  garrisonc, 
seeing  it  is  acknowledged,  that  they  came  out 
sorue  few  dajrcs  thenuter :  7.  As  to  James 
Mfdtetoun,  if  it  could  be  made  appear,  that  he 
was  in  the  Basv,  which  is  drnycd,  it  is  ofTrrcd 
to  be  proven  that  be  came  out  before  the  charge 
*u  i;iveii  to  surrender  the  said  fort,  the  chari^e 
B''t  being  given  till  the  fyflh  of  May,  and  he 
nne  out  the  sabbath  day  before  the  Ut\  of 
Miy. 

8.  Whereas  it  is  alleadgcd  as  to  William 
Wotliam,  that  he  came  in  about  the  tyme  for- 
ttid,  and  was  some  tyme  in  the  Bass,  and  did 
tbercafttr  goe  abroad  to  England,  Flanders, 
Fiance,  in  all  these  places  corret^pomiing  and 
coiiipyreing  against  their  majesties,  and  that 
became  back  with  iiiteligence,  alwayes  denye- 
iaf  the  same,  yet  it  is  not  relevant,  not  unly 
Ar  the  reasons  forsaida,  but  lykewayes  for 
ibir  reasoiui,  that  he  beiug  ane  Knglishman 
b«nc,  he  was  but  a  young^  £)y  the  tyme  of  the 
ItcvolulioD,  alMut  tbiirtein  yeirea  of  agb,  or 


A.  D.  1694.  [Sfil 

therby ;  and  being  att  that  tyme  the  earic  of 
Dumbarton's  pad^e,  he  went  over  to  France 
with  the  carle,  and  gott  a  pass  from  tlie  king 
to  goe  over  to  France,  iMtk  his  servants,  and 
the  pannall  continowed  nith  the  earle  till  he 
died  ;  and  he  is  not  yet  above  nyntein  yeircs  of 
age,  soe  that  he  was  incapnblt'  to  coiisp^  re  or 
correspond  a<rainst  their  majesties ;  2.  It  is  ac- 
knoule<Iged  by  the  indytment,  that  as  he  was 
none  of  these  that  surprysed  the  Bass,  so  he 
was  not  in  it  when  the'  governour  and  other 
persons  were  charged,  tlo  delyver  it,  nor  is  he 
mentioned  in  the  connciirs  ordour,  \\  hich  is  the 
i«arrand  of  the  charge;  and  albeit  he  hade 
bein  once  in  the  Bass,  yet  seing  he  left  it  some 
short  tyme  thereafter,  as  is  acknowledgeil,  his 
siniple'being  there  cannot  inferr  a  crime  against 
him,  flar  less  the  crime  of  treason :  3.  That 
the  said  William  \Vetltam  did  conspyre  and 
correspond  against  ther  majesties  and  with 
ther  enimics,  being  only  in  ^enerail  tenncs,  is 
not  relevant,  unless  the  particular  acts  of  con^ 
spireing  and  corresponding  were  condescended 
upon :  4.  It  is  denyed  thai  he  <-ame  back  with 
iiitL'Iigence,  or  gave  any  help  to  those  in  the 
Bass,  nur  is  it  relevant,  the  inteligencc  and 
hclpeing  not  being  condescended  upon. 

9.  Whereas  it  is  ly belled  that  the  defenders 
did  meitt  together  tliinkiug  to  rcturne  to  th« 
Bass,  but  were  stopcd ;  it  cannot  be  so  much  as 
a  qualification  of  the  crime,  ftbr  ffirst  what  their 
designe  was  being  cic/us  ajiitui  is  nut  punishable, 
nixt  the  pretended  designe  did  take  no  etiect, 
as  is  acknowledged,  and  see  can  import  no 
crime :  3.  Their  ineitling  together  could  be  no 
evidence  of  their  designe  to  goe  to  the  Bass, 
for  if  they  hade  such  a  designe  they  mii;ht 
have  made  it  much  more  etlbctwall,  by  g<H.*in^ 
single  alliin,  then  goeiiig  altoi;ctliar';  but  it 
appears  by  the  wholl  tract  oi'the  aHuir,  even  as 
it  is  mentioned  in  the  l}bell,  that  if  it  could  be 
made  appear,  that  the  defenders  hade  bein  in 
the  Bass,  that  they  came  out  of  it  with  a  ile- 
signe  not toretume, flbr  otherwayes  they  Mould 
not  have  cume  out. 

10.  The  indictment  of  treason  cannott  ho 
sustained  ai^ainst  the  pannalls  ;  bccunse  it  is 
denyed  that  thry  were  the  king's  sut»jecis,  and 
thelawes  and  acts  of  parliament  ngninst  tn*asoii 
is  only  in  relation  to  sulijocts  mIid  liaro  dew 
alleadgeance,  seing  the  crime  uf  trfasnn  tiiKcs 
only  place  whrre  alleadgeance  is  di-vi,  ns  is 
clear  frcmi  all  the  lauiers  that  li:ive  unlttH 
U|)on  that  subject,  um\  pariicnliirlii-  C'lirii^. 
Lib.  parag.  Ia'sc  Majisl.  numb.  c5.  who  is  \w- 
siiive,  *Quod  ille  tpii  non  c.  t  subditns  pilnf.ipi, 
'  non  dicitur  centra  euui  Couiinillere  Cciiu  ii 

*  Lesice  Majestatis  et  it  co  liivt  aliipii)  |;  .iiii*ii- 

*  lari   Jure  ut  ofTendi,    veluti    (piis    fiiiidutiir 

*  de  foro  alicujus,  prioci|is  h\  tanien  ratioui' 
*•  originis  veil   doniicilij  iion   sit   subditiis  non 

*  dicitur  Couimiltere  idiitra  turn  (.'riin»*n  Isvi^iH 

*  Majestatis.'  And  atiirms  it  his  luiu  many 
tymes  so  determini'd,  and  albeit  noiraigners 
opposing  any  king  or  state,  may  be  tuukcd 
upon  as  enimies,  yet  thej^  are  not  guilty  of 
treason,  as  is  clear  from  sir  Edward  Coke^  in 


855]  5  W.  &  M. 

his  title  of  High  Treason,  page  11,  where  be 
makes  a  distiDction  betwixt  a  fforraigner,  who 
is  aoe  enimie,  and  a  subject  wbo  ryses  in  re- 
bellion, that  ane  enimie  committing  open  bos- 
lity  in  the  nation  and  taken,  is. only  to  be  pu- 
nished by  the  marshall  lawe,  or  ransomed,  out 
that  he  cannot  be  indicted  of  treason. 

11.  It  is  alleadged  separatim  for  James 
Midleton,  allwayes  adhereing  to  the  forsaid  de- 
fences, that  it  is  offered  to  be  proven,  that  he  is 
a  fforraigner,  being  a  Flandrian  borne,  att  least 
holden  and  repute  to  be  so,  so  that  as  to  him 
there  cannott  be  the  least  question,  that  the  in- 
dytment  of  treason  can  be  sustained  against 
him,  and  he  can  onlie  \te  treated  as  a  prisoner 
of  ware ;  but  there  will  be  no  neid  of  any  such 
iirobatiime,  it  heing  sufficient  to  ^ve  hmi  the 
benefite  of  a  prisoner  of  ware,  semg  that  it  is 
acknowledged  that  he  came  from  abroad. 

12.  The  indictment  as  to  William  Wytham 
and.  Nicolson,  always  adhering  to  the  foresaid 
defences,  is  noi  relevant,  albeit  it  could  be  proven 
that  they  were  subjects  borne,  yet  they  naving 
ouitte  anil  deserted  these  nations,  and  haveing 
nzed  and  taken  up  their  residence  in  fforraigne 
nationes  animo  remanendi,  the  said  William 
Njcolsou  haveing  gone  abroad  about  20  yeirs 
hence,  and  William  Wytham  when  he  was  but 
14  yeirs  of  age,  they  cannot  now  lie  cousidered 
as  the  king  leidge  men,  but  as  fformic^ners,  it 
bein^  the  constant  practice  of  all  nations  that 
'  Civisorigiaariiis  renuncians  ct  domiciliuni'aiso 
'  transferance  [alio  transfereos]  civis  esse  desi- 
'  nit:'  as  to  u\\  effects,  as  is  clear  from  the  com- 
mon lawe,  Lcvj.  5,  parn;^.  ult.  diyf.  dc  cajitivo 
et  post  linuo  [posllimiuio]  and  Gail,  Lib.  '2, 
observ.  36,  jiuni  7,  and  the  lawiers  tliore  by 
him  cited,  and  Perez  upon  that  title  of  Cor!,  dc 
niunicipis,  [inunicipibus]  tl  oriirinariis  ni;m. 
19  and  '^0,  so  that  the  suid  William  Nicolson 
and  William  Well)am  upon  that  consideration 
lykewayes  cnn  on  lie  be  looke.l  upon  as  pri- 
soners «)f  warr,  and  un;  in  the  same  case 
as  if  rtrcnclinicn  or  other  fforai^iicrs  liade 
come  to  iccrniio  the  Bass,  wlio  if  they  hade 
hein  taken  rould  not  have  bcin  convcnt-d  for 
treason,  l.r.t  U-ljooved  to  be  used  as  prisoners 
of  warr;  oiid  llie  lords  of  jusliciarie  may  bi» 
pleased  to  eonsidi-r,  wliat  inay  be  the  ccinse- 
cjuence  of  this  if  it  win*  utlnrVnyes  sustained, 
for  thero  arc  many  tlmn'^ands  of  people  thai 
come  from  rV.mrr,  and  oiIht  i»arts  of  the 
French  domini<in^,  who  tiaili*  taken  up  their 
residence  in  nrlitainr  and  Inland  and  other  do- 
mhiionsbclonjrin^tn  tin-  kin;;of  ltri:iaine,  who 
liavf  absointHy  (pnti  TiamT  and  the  French 
dominion >,  and  ate  i.ow  no  more  looked  o'lon 
to  U»  French  .snlij<rlN,  Imi  snbjt'cts  to  tljo  kini: 
ofHrittaini-;  and  if  anv  of  llmse  or  olln.rs  of 
the  i'Vtncli  retn«jif  s,  \ilirrrof  iIhtc  wrc;  verie 
many  iti  tin'  knitf\  artnirs,  slmuld  be  t.»k'n|-.ri- 
soners  fi;.;ht;ni;  a;;aiiisi  ihe  l-'n-nch  kin;r»  then 
hy  his  rub'  tlu-y  could  bnvr  im  (piariiT*,  but  the 
French  kint;"  mi^lit  |irorird  against  them  for 
treason,  and  y»t  wee  sri  dayly  that  ther  is  no 
hur.U  thing  pructisiMi,  but  wfieii  any  of  the  re- 
fugees or  others  wbo  wero  formcrlie  French 


Proceedings  against  James  Middletoun  and  atherSf    [856 

subjects  are  taken  prisoners  fighting  agaiait 
the  French  king,  they  are  treated  as  priaoocn 
of  ivarr,  and  relieved  and  ransomed  as  other 
prisoners,  and  bow  many  of  the  British  subjects 
are  in  the  French  armie,  and  actwallie  fight- 
ing against  our  king,  yet  when  any  of  tlwoi 
comes  to  be  taken  prisoners  they  are  not  pn- 
nished  as  traitors,  but  as  prisoners  of  warr,  aad 
the  king's  practyse  in  those  caiocs  ought  cer- 
taioly  to  be  the  rule  in  this,  and  when  tliers 
were  many  prisoners  taken  at  Cromdale,  wbea 
actwallie  m  armes  feighting  against  the  kiagr, 
and  albeit  for  the  most  pain  they  were  all  SoM 
subjects,  yet  ther  was  none  of  them  persewed 
for  treason,  but  were  all  of  them  treated  as  pri- 
soners of  warr,  and  were  sett  at  libertie  npoa 
finding  caution  only  to  live  peaceablie  and  oot 
disturb  the  government;  and  Ihe  defeadffs, 
when  they  were  apprehended,  were  Dot  ia 
armes  nor  nseing  any  acu  of  liostility  aeiiait 
tho  government,  but  were  demaining  U»ein- 
selves  iieaceablie  in  the  comitrie,  and  thty 
should  n«>t  be  worse  treated  then  those  who 
were  taken  in  armes  actwallie  figliting  agaiatf 
their  majesties,  and  dewreing  all  thetymrof 
the  late  civil  warres  in  Drittaiue,  albeit  then 
were  many  prisoners  taken  u|)on  both  syds,  vet 
ther  was  non  of  them  persewed  for  treason,  tot 
were  used  as  prisoners  of  warr,  and  therfor  tke 
paunalls  ought  not  to  pass  to  the  knowledge  «f 
ane  inquest. 

Sir  Jamet  O^ilrit  replies,  that  he  oppons  tbt 
lybell  as  declared  by  lord  advocat,  and  which  is 
relevant  noiwithstandincjf  of  the  defences  pro- 
poned, the  crimes  lybclled  being  expresslie  coo- 
trair  to  the  acts  of  tiarliament  coDdesceoikni 
upon  :  And  m  heras  it  is  pretendeil  that  the 
saids  acts  doe  not  meit  the  caise,  it  is  answeral, 
that  ther  is  no  disparitic  coudescended  uponia 
the  df  fence,  and  lybell  and  acts  are  oppooed. 

*Z.  Wherus  it  is  pretended  that  ther  is  do 
spcciall  tymc  condescended  upon,  the  iodyt- 
meiit,  is  opponed,  uheriii  the  yeires,  mODetofi 
and  daycs  are  particnlariie  n)eutioned. 

3.  The  pretence  is  no  wayes  rclerant  thit 
the  painialls  came  from  be\ond  ftea,  under  the 
command  of  a  superior  ofhcer,  ncilluT  does  be 
lybell,  came  onlie  in  these  termes  ;  for  first,  it 
is  lybelled  alltcrnative  that  they  came  by  com- 
mission or  without  i: ;  and  altho  they  hade  hdn 
under  command,  that  can  no  wayes  warreMi 
thein  for  ryseing  in  armes  n-^'ainst  their  natite 
soverai^ne,  and  assisting  those  who  maittaias 
the  f1\)rt  of  the   Bass  against   authority,  sod 

I  ulicras  it  is  pretended  that  if  they  hadedis- 
I  obi'yed  thc^ir  superior  officer  they  might  hsfs 
I  bcin  in  hazeard  of  their  lives,  it  is  answered, 
'  iirst,  that  is  denyed  that  thev  were  in  any  such 
j  hazeanl,  but  (sio  they  hade,  they  can  Usflit 

non  but  ihemselves  that  they  were  in  these  ci^ 

cumstanees. 

4.  The  pretence  that  they  were  under  te 
and  hazeard  uhen  in  the  Bass  ments  noaaswfft 
seing  their  goeing  there  and  concarriog  wirii 
those  who  maintained  it  againal  the  govcr* 
ment,  was  in  itself  a  crime. 


n 


Jar  High  Treason, 


A.  D.  169i« 


[858 


Tbe  pretence  is  mo^t  frivotous  that  the 
ell  is  not  relevant  unless  aue  act  M'  hofittlUy 
were  lybeited,  ior  the  1^  l>ell  \s  opponetj  thut  they 
were  wiitib  ihe  Bass,  bearuif^  armes  for  hold- 
ing' of  it  fiut;  Ami  the  case  of  M'LtHjd  of  Assipt 
jf^novraj^es  paralej  witb  this,  for  be  had  only 
■■iiroeate  soma  men  for  ^arisontn^  Liis  house 
Hm  defending'  biius^lf  a^^^ameit  Ihc  earle  of  Hea- 
tortb,  who  was  nhotit  to  execute  le^ll  diJIi- 
geoce  8£|raiQst  Lini,  and  therfur  the  lords  did 
most  justly  sustaine  the  convocation  only  to  be 
a  defurceinenu  unless  si)eciall  »ctt  of  hobtdity 
weie  eondesi-ended  u|jon,  hut  the  Bmsa  was 
then,  and  is  still  tuaiulained,  against  liis  majes- 
liei  aulhoritie,  and  which  is  not  tour. 

6.  Whereas  it  is  pretended  that  sitnple  pre- 

foe  is  yet  less  relevant^  it  is  ausvicreilf  that  in 
circutnstanciat  case  where  one  of  his  ma» 
ies  ffbrts  is  surprysed  and  keep^d  ou»»  sim- 
ple piTsence  is  nnqnestiouoblie  relcf  ant,  es{>e' 
cialtie  seing  ther  i-s  no  rational!  occasion  con- 
descended upon  for  ttie  pannalls  their  goeing 
there,  so  it  is  uaquestionahhe  clear  that  they 
were  assisting'  aodnidini;  captain  Midletoun  and 
mbers,  who  were  iu  armcs,  man  lain  ing  the  saiil 
rt  as  said  i^. 

As  to  what  is  pretended  ag'ainst  the  rele- 

Bcie  of  that  f)uahtieatiou  of  the  lyhell,  that 

'dletoun   and  NicoJson  were   intercomimed, 

answere^i,  that  the  intercowuuing  is  only 

'esoended  upon  as  a  qualitication,  seini^  the 

ding  out  of  the  ftoi  t  is  as  relevant  to  iuferr 

IreaaOD,  befor  they  were  interctituoned  us  bince^ 

jl^^Bt  the  charj^  came  not  to  (heir  know- 

^^^^b  tnosx  frivolous,  seing  tlie  h  emu  Ids  and 

^HHili  came  to  the  foot  of  the  rock  and 

^Knoed  their  trumpets^  and  did  give  in  the 

^Pppies  and  sainmouds,  so  tbat  non  who  was 

tbea  in  the  fibrt  could  be  i^^norant,  but  the  in- 

lerconvioin^  was  mainelic  designed  for  inter- 

^Klling   his   mnjeEities  oyr  subjects    from   re- 

Hbtin^,  haibourin^,  or  keeping:  corresponilence 

^mh  the  panrniHs,  and  those  others,  who  were 

in  reWllion  with  them. 

And  wherax  it  is  pretended  that  they  were 
under  the  command  of  their  superior  officer, 
md  SQ  couUI  not  give  obedience,  the  ibrmer 
ttmvier  is  oppooed,  viz.  That  they  put  them- 
Itlves  neidlesslie  under  this  necessity  ;  2,  non 
e^mitait  that  any  other  did  cominand  ;  And  3, 
no  sojor  is  oblei%ed  to  obey  his  superior  otiicer, 
if  he  he  commanded  to  coinmitte  ane  act  of  re- 
liellion,  and  if  he  doe  it  is  on  hia  perritl,  and 
bothe  be  and  tbe  officer  that  eomiuands  are 
l^eable. 

»An  to  the  pretence  that  the  charere  is  null,  in 
B  flarr  as  cunce  rnes  W  m .  N  icol  so  n ,  beca  u  se  t  h  e 
ecntion  is  only  ai^^Qinst  blank  Nicolson,  with- 
out any  farllier  de^iijoation  ;  It  is  answered, 
lliBt  the  eiceculion  is  op[>oned,  wherein  he  is 
4nagoeil  blank  Nicohwn  in  tbe  Bass,  which  is 
coffoienl,  but  tsto  the  chari^c  were  null^  yet 
Ili€  lybell  is  relevant,  altho  he  hade  never  bein 
charged,  and  the  pannnll  cannot  conile^end 
90  any  o|her  of  that  surname  tb^t  wns  in  tbe 
B^it  at  the  tyme  ;  whereas  it  is  alleedged  that 
the    panati  Middlctoun    and   Nicotsoue    did 


gire  obedience,  because  they  were  taken  within 
some  few  daves  after  they  were  charged  ;  it 
IS  answered,  this  is  noway es  relevunt,  unteia 
they  had  actwallee  come  and  surrendered  them-  ' 
Kehes  to  some  person  in  aulhoruy  under  their 
majesties,  as  aoe  sheriff  or  magistrat  of  ane 
burprb  royal  I,  and  ibis  is  not  so  much  as  pre- 
tended. 

Whereas  it  is  alteadged  for  Wetham,  that 
it  is  denyed  that  be  was  bringing  ioteliigence  j 
it  is  answered,  that  this  is  only  condescended  *| 
upon  as  a  quulificalion,  and  appears  to  have  - 
bein  iruitb,  but  his  majesties  advucat  will  not 
burden  himt»e}f  with  the^  probation  thenif,  the 
lybetl  heitif;*:  relevant  without  this  a£;graviition« 

As  to  the  alleadgeance  that  he  was  but  four- 
tein  years  of  age  alt  the  Revolution,  and  that  ' 
he  was  the  earle  of  Dumbarton's  servant,  who  ' 
got  a  pa^s  for  himself  and  (he  pannall,  aud  bit  * 
oUier  servants  to  goe  to  France,  it  is  auswcrefl, 
tlial  his  goeing  to  France  is  not  any  pairt  of  ^ 
the  lybeil,  sedag  what  is  offered  to  be  proveii 
against  him  is  that  he  was  in  cornpanie  with 
the  other  rebells  who  were  in  armes  within  ^ 
the  Bass,  and  that  he  is  not  contained  in  the 
councills  ordour  meritts  no  auswere,  for  thai  \ 
might  have  beiu  occasionetl  by  the  want  of  the  ' 
true  information  of  the  matter  of  fact ;  but  tt  11 
believed  thnt  he  was  not  there  att  the  time,  but  j 
Ihi4t  he  was  out  getting  iuteilij;ence  assaidiK|i 
and  was  taken  in  his  return,  and  to  iJiat  pre*; 
(ence  that  there  is  no  speciall  act  of  conspira^ 
cie  condescended   upon,  the     advocat    maka  * 
noe  farther  it^c  therof  but  as  nue  qiialiiicationp 
and  ceituinly  nne  person  is  guilty   of  perduel* 
lion,  but  !!»  alho  guilty  of  conspii^cie. 

8*  That  they  were  goeing  back  lo  the  fiassg^ 
is  lykewayes  only  insert  in  the  lybell  as  a  qua-  j 
tication,  and  which  has  bein  evidently  true  in  | 
niutler  of  fact,  seintr  they  were  taken  and  ap-  * 
prehendcnl  about  Whitkirk,  when  they  weren 
travelling  under  night. 

9,  Wheras  it  is  pretended  that  Ultdletounri 
was  borne  in  Flanders ;  and  therfor  be  is  non«  I 
of  their  majesties  subjects,  and  oweth  them  noe 
alleadgeancc,  and  so  cannott  be  guilty  of  per-  ' 
due  I  lion  ;  it  is  answered,  it  is  acknowledged  Uk  | 
he  the  opiidou  of  all  lawiers  that  trea<ion  can' 
only  be  committed  by  subjects,  but  here  tlta  I 
pannall  is  presumed  to  be  such,  ffor  Ih'st  his  pa«  I 
rents x^  er  home  iiiilds  kingdome,  and  he  himself  | 
hm  a  8cots  name,  and  his  mother-in- la  we  doei(^l 
still  live  at  Fakirk^  and  therfor  he  is  presumed f 
lo  have  bein  born«*  himself  wil  bin  the  kingdom  |  I 
but,  2«  He  was  found  in  ret»ellion  within  tli#  I 
kingdome  with  «ev frail  others  who  wet e Scots*  j 
men  ;  and  5.  There  can  be  no  instance  give 
that  ever  tbe  king-s  advocat  was  putt  to  prov#1 
lliat  a  person  of  a  Scots  sirename  taken  in  re*  1 
bellion  within  the  kingdome  was  ane  born  sub*^ 
ject:  4  Albeit  it  were  proven  that  he  we 
a  flforaigner,  yet  havemgcomelo  ilie  kingdoms  i 
to  assist  the  subjects  against  their  native  s'tve-cl 
raigne,  he  is  therby  airt  and  pairt  of  theif^ 
crime.  •if 

Whereas  it  is  pretended  for  Wethain  an^^ 
Nicotson,  tbat  although  they  hade  bein  Bd^ 


859] 


5  W«  &  M«     Proceedings  against  James  Middietoun  and  oiherSf    [860 


tiafc  sobjecti,  yet  they  bude  deserted  hie  ma- 
jestiei  domiDMnifl,  and  had  aetirallte  aetled  re- 
flidteoe  elsewhere  ;  It  is  amiwered,  primo,  that 
the  matter  of  fact  is  denyed  as  beiDij^  caluai- 
niom  ;  but,  2d.  Esto  it  Were  true,  yet  it  it  no 
wajes  relevant,  because  they  were  subjects 
ah  origine,  and  therefor  are  still  bouud  to  give 
alleadf^eanoe,  especiallie  when  found  within  the 
kingdome ;  and  3.  They  were  airt  and  pairt 
by  concurring  as  said  is. 

Whereas  it  [is*]  pretended  that  it  mav  be 
of  dangerous  oonraquence  if  the  pannalls  be 
sentenced,  and  undergoe  the  paines  Ivbelleil, 
seiog  the  French  refuges  who  were  in  his  ma- 
jesties senrice,  some  of  whom  are  taken,  may 
snfler  upon  this  account ;  it  is  answered,  that 
the-pannalls  are  oowayes  concerned  therwith, 
this  being  a  measure  of  government,  and  their 
majesties  may  indemnitie,  or  ordour  the  ex- 
enption  of  the  sentence  as  accords,  but  this 
can  furnish  them  with  no  leffall  defence ;  and 
whereas  it  is  pretended  that  m  the  late  civill 
wans,  noe  person  who  was  taken  prisoner  did 
ever  suffer  for  their  being  in  armes  ;  it  is  an- 
swered, that  the  contrair  is  too  well  knowen, 
seing  the  duke  of  Hamilton,  the  marques  of 
Montrose,  the  earle  of  Holland,  lord  Capell, 
and  several  other  subjects  of  the  best  rank  and 
qoalitie,  were  execute  upon  no  other  account, 
but  that  they  hade  bein  in  avmes. 


doe  not  meitt  the  precise  termcs  of  the  acts  of 
parliament. 

3.  Wheras  it  is  alleadged  that  the  I^bell  is 
alternative  tliat  the  pannalb  either  with  or 
without  commission  came  over  ;  it  is  an- 
swered, that  albeit  the  lybell  bear  that  the  pio- 
nalls  came  m-er,  by  or  witbont  commisflm, 
from  the  late  king  James,  yet  the  lybell  betn 
that  the  pannalls  came  under  command  of  col- 
Innell  Grahame,  or  some  other  persones  from 
Dunkirk,  it  is  suffident  to  liberate  the  pannib 
fbrtreasone  that  they  came  under  command  of 
superior  officers  whose  commamls  they  were 
obieidged  to  obey,  and  which  by  the  Isws  and 
practice  of  all  nations  does  lilierat  a  person  n 
that  circumstance  from  a  punishment  deweio 
a  crime,  and  the  pannalhi  were  not  to  be  Uainef 
seeing  they  were  souldiers  in  the  Frrnch 
armies  long  before  the  Revolution,  esoqit  as  Is 
Wetharo,  who  went  over  with  his  master  since 
that  tyme,  who  having  quitt  his  native  coos* 
ttie  might  lawfullie  take  on  as  a  sojorof  fcr- 
toun  ;  so  that  neither  their  com«ng  over  nor 
goeing  unto  the  Bass,  being  still  nnda-  d»b* 
mand  as  said  is,  could  make  them  lyeaUe  ftr 
any  crime,  fbrr  less  treason,  neither  the  con* 
curreing  to  the  holding  out  of  the  Uass,  ther 
being  still  under  command  ;  and  as  to  the  is'- 
stance  in  the  case  of  Assint,  tlic  paraMI  hMi 
exactlie  in  this  case,  and  the  pannalls  are  is  a 


And  wheras  it  is  pretended,  that  non  of  these    much  more  favourable  case,  sciiig  /ls5int  nis 


there  at  his  owen  libertie,  which  the  defeukn 
were  not. 

Whereas  it  is  ril!eadrT»'d  ;  that  singh  jw- 


taken  at  Cromdale  were  brought  to  a  tryall ; 
it  is  answered,  that  first  they  were  unouestion- 
ablie  in  rebellion,  and  many  who  werem  nrmes 

attthat  tymc  are  forfaultcd  upon  that  account,  sencc  in  this  cir>.-iimstantint  cuise  is  sufTicieot 
as  purticularlie  the  earle  of  Ihirafennline,  vis-  I  in  kecpin^^  out  niiy  of  the  kiit;;i;*s  ffoits,  seio^ 
count  of  Dundie,  viscount  of  Fi-andraip^ht,  llic  '•  there  was  no  i-ntionall  ncctJUiit  of  their  jroeinp 
laird  of  Pittcur,  and  many  others  ;  and  if  noi'  ;  there  ;  it  is  anjtuereil,  that  naked  presence wiih 
person  did  lose  their  life  upon  the  I'orsaid  ac-  !  an  etiimie,  was  never  sustaine<l  to  iiiffrr  a 
rount,  it  is  hut  allenarlie  the  effect  of  their  ma-  !  crime,  for,  if  that  were  sustained,  then  all  jht- 
jcsties  clemencie  and  bounty,  in  respect  wherof  sons  present,  whither  cniniies  or  freinds,  mtyht 
the  defences  ouf^ht  to  be  repelled,  and  thn  pan-  j  be  fiT^il^y  <)f'  treason,  and  the  account  of  the 
nails  ought  to  pass  to  the  knowledge  of  the  in-  j  defenders  coming  over  i^  meiitioueil  in  the  io- 
queist. 


Sir  Patrick  //i/»;»r  duply rs,  that  the  defences 
arcoppone<l,  which  stand  relevant  notwithstand- 
ing of  the  reply  e,  and  docth  fullie  ansucre  all 
that  is  now  aUeB<^ed,  only  he  will  take  notice 
of  some  few  pailicnlars  for  the  f.inler  cl.-^ar- 
ing  of  the  defences,  and  first,  wheras  it  is  al- 
ledgcd,  that  the  particular  t^'me  is  condesccnd- 
efl  uijon,  llie  lylwll  is  opponed,  which  albeit  it 


flytment  itselfe,  that  they  came  from  Dunkirk, 
and  under  command,  and  it  is  a  vorie  rationall 
.  acooniit  that  they  behooved  to  come  over  wfacQ 
!  they  wcrccommanilcd. 
!  Wherens  it  is  alled^ed,  that  the  charge  for 
I  rcndorinjjf  the  J'ass  was  sniHciently  made 
:  known  to  the  pann;d!s,  it  is  alisolntly  denvrd, 
that  tiie  same  came  to  their  knowled^,  for  the 
exvciUion  hearcs  only  that  it  was  only  putt  ia 
a  bucket,  an'l  tli«  charge  being  made  a  prin- 


condescends  upon  moneths  and  ycires,  yet  sc-  cipall  lyr'nnd  of  the  in«lytmont,  if  that  nasnot 
hig  the  lyliell  takes  in  all  the  ycires,  without  \a:id  the  ind\trnpnl  must  iall,  es(>eciali:e  as  to 
condescending  n{>on  a  particular  tyme  wht>n  it  I  Nicolsone,  it  Ixin^f  blank  ns  to  his  Christian 

•a  Allo'kflcriifl    tl«f>    /ii<imA«i  u/<*rA    «irtmrniti#>il    \f    lo  !  nnnrip     ami    rinps  nnt    iM^nr  thnt    hp   1P9«  in   thS 


is  alleadged  the  crimes  were  committal,  it  is 
ail  one  as  if  it  hade  bein  lyhclled,  that  the  crime 
was  committed  on  one  or  other  of  these  ycires, 
and  such  a  generall  indictment  can  never  he 
sustained. 

2.  Whereas  it  is  alleadged,  that  the  lybell 
mentions  the  crimes  as  paralell  to  those  men- 
tioned in  the  acts  of  parliament  condesicended 
upon  ;  it  is  answcrrd.  the  acts  are  oppnned, 
and  the  indytment  l»eing  compared  with  the 
MfS|  if  ffUi  appear  that  the  case  as  it  is  lybellcd 


name,  and  does  not  hear  that  he  was  in  the 
JJass ;  but  whither  they  were  lawfullie  char)^ 
or  not,  the  indytment  cannot  be  sustained,  u 
to  the  defenders,  seing  they  were  not  in  cap- 
city,  in  the  circumstances  they  were  into^ 
obedience,  hein^  under  ihecon:niand  of  olIiASi 
and  so  soon  as  they  gott  opportimity  tlAy 
came  out,  and  it  was  not  necessaric  tor  ACH 
to  render  thomseUes  to  a  magistrat,  there  biUJlf 
noe  such  chart^c  in  the  letters,  but  it  M 
sufficient  that  they  came  out,  and  when  tbrf 


for  High  TreaSxjUi 

;d  upon,  diey  were  peaceablie  be- 
ibemselTes,  and  not  makciiig  anie 
e  or  act  of  hostility  in  the  countrie ; 
is  alleadged,  that  it  is  not  neccssar 
ajostics  advocat  to  prove  that  Midle- 
.  )x)rne  subject  of  this  nation  ;  It  is 
:hat  albeit,  when  Scotsmen  dweUing 
kingdom  sliould  ryso  in  armesordoe 
rebellion,  ther  is  noe  neid  to  prove, 
ire  bonie  suljecls,  because  the  pre- 
lyes  against  them ;  btit  when  per- 
king from  abroad,  es|>eciaUie  when 
lieen  a  long  tyme  abroad,  the  pre- 
lyes  then  for  them  that  thev  are 
s  borne,  and  therfor  my  lord  advocat 
c  that  they  arc  subjects,  and  it  is 
1  that  tlie  said  James  Midletoun's 
?re  borne  in  Scodand,  and  that  he 
s  of  a  Hcots  name,  for  albeit  his 
Je  bein  borne  in  Scotland,  yet  he 
light  be  borne  abroad,  as  trueiie  he 
lere  are  many  of  Scots  names,  that 
goners  borne ;  and  if  need  beis,  it  is 
offerred  to  be  proven,  that  he  is  a 
borne.  Whereas  it  is  alleadgod  tliat 
amcs  Midletoune  and  the  other  pan- 
e  comeing  to  the  kingdume,  and 
,th  rebells  in  armes  against  the  go- 
is  airt  and  pairt  of  tlie  crime ;  it  Is 
that  they  cannot  be  principallie  1  jea- 
reasons  forsaids,  neither  can  they' 
as  airt  and  pairt  which  can  be  noe 
ended,  but  only  to  consider  them  as 
s  and  strangers,  and  be  noe  more 
ty  of  airt  and  pairt  to  inferr  treason 
ive  Frenchmen  or  other  fforraigncrs, 
>  over  to  the  assistance  of  the  Bass, 
asc  the  could  onlv  have  bein  treated 
ers  of  war  when  apprehended ; 
is  alleadged,  that  the  pannalls  being 
;  ori^ine,  are  so  obleiged  to  give  al- 
e,  it  IS  answered,  that  the  former  de- 
r  that  is  opponed,  and  the  defenders 
MidlctouD  and  Nicolson  havciog 
ad  before  the  warr  broke  out,  and 
uallie  in  the  French  service,  they 
iiitte  all  their  iqterest  in  this  king- 
l  taken  up  tli^r  residence  elswhcre, 
noe  fanler  tyed  to  alleadgeance  to 
e  where  they  were  borne,  as  was 
lie  case  of  the  bischop  of  Sarum. 
ereas  it  is  alleadged,  that  in  the  late 
es  many  persones  of  quality  suffered  ; 
ired,  that  they  did  not  sufivr  properlie 
taken  in  armes,  but  as  having  done 
agaiust  the  government  for  the  tyme. 
tever  may  be  alleadged  as  to  chief 
rnsy  who  are  their  owen  roasters  and 
me,  there  can  never  be  ane  instance 
the  case  of  single  souldicrs,  or  other 
•noiiei  under  comnianri,  and  that 
were  conveened  fur  trehsone  or  suf* 
Htali  punishment  upon  that  account ; 
the  viscount  of  Dundie,  my  lord 
line,  and  others  were  forfault,  yet  all 
•  cbeiff  commanders;  Bat  non  of 
on  under  theni,  or  who  were  taken 


A.  D.  1691. 

at  Ciorodale,  were  aither  ifurfault,  or  made 
subject  to  any  puuishment,  but  were  sett  at  U- 
berlie,  upon  finding  of  caution  to  secure  the 
peace,  and  which  was  the  practice  of  old,  be 
the  Israleits,  wlierin  tlie  case  of  the  unjust  warr 
of  the  kin^  of  Syria  against  the  fsradits, 
the  armie  ot  the  kingof  S;^ria  havin;r  fallen  in 
the  hands  of  the  Israelcits,  the  kuic  of  Is- 
rael having  enuuired  att  the  prophet  Glisba,  if  he 
should  smite  them,  the  prophet's  answer  was. 
Thou  shall  not  smite  them,  wilt  thou  smite  those 
whom  thou  has  taken  with  thy  sword  and  thy 
bow ;  Sett  bread  and  water  before  them,  and 
let  them  eat  and  drink,  and  goo  to  theur 
master.  And  if  the  defenders  shall  be  other 
way es  treated  then  prisoners  of  warr,  it  might 
be  of  verie  dangerous  conscqueuce,  and  this 
being  a  militarie  affair,  it  is  proper  to  be  deter- 
mined by  the  rules  and  customes  of  warr,  and 
therfor  the  defenders  humblie  desyre  that  the 
lords  of  justiciarie  would  be  pleased'  to  re- 
present tlie  whole  case  as  it  uow  standi  to  his 
sacred  majestic,  who  knowcs  exactlie  weell 
these  affaires,  that  his  maiestie  may  declare 
his  royall  pleasure,  whither  the  defenders 
should  be  treated  as  prisoners  of  ware,  and  in 
the  meantyme  to  delay  ainie  farder  proeedore 
in  this  process  tilf  the  king's  pleasure  be  known. 

Mr.  John  Frank  sWcwAcen  for  Mr.  Wetham, 
that  he  being  still  muior  he  is  not  obleidged  to 
answere  to  ;uiy  crime,  by  whieb  he  may  either 
lose  life  or  limb,  as  is  roost  clear-by  the  most 
ancient  of  our  lawes  recorded  in  the  mi^eatie, 
book  2,  cap.  49,  parag.  1 1,  if  any  minor  is 
challenged  of  Cellonie  and  be  within  age,  he 
shall  not  be  compelled  to  answer  thenuient, 
but  when  lie  is  mi^or  lie  shall  answer,  miUBh 
less  ought  he  to  be  obleidged  to  defend  in  a 
criminall  pursuite,  '  ubi  colore  juvenile  po« 
'  test  dicere,  veil  tacere  quod  decere  potest'* 
As  our  countriemaii  M*Kensie  hea  obaerrcd, 
and  since  by  the  late  act  of  parliameBt,  act 
20,  pari.  1st  Charles  2,  minors  within  aizttea 
are  not  punishable  with  death,  even  for  curM* 
ing  or  beating  of  parents,  which  is  ane  at« 
trocious  hornd  crime  pkiinlie  against  the 
light  and  lawe  of  nature,  farr  lest  ought  tb^ 
for  such  crimes  as  are  Mn  apidbua  juris'  and 
unqnestionable  by  the  leamedest  doctors ;  and 
wee  have  ane  ezoellend  rule  in  lawe,  Leg.  108, 
Dieg.  -^  de  reguhsjurUf  *  fer^  in  omnibna  pona- 

*  hbusjudiciiset  setati  et  imprudtntiee  succuri- 
tur,'  ltisfurderalleadgedfbrMr.Wethani,that 
he  bemg  ane  Englishman  borne,  his  circum- 
stances doe  plead  ane  exemption  from  the 
crime  for  which  he  is  indyted,  in  respect  both- 
the  nature  of  the  crime  and  the  probation,  and 

{lunishmentyr'ofin  England  diners  from  the 
awe  of  Scotland. 

*  This  should  be  *  ubi  calore  juvenili  potest 

*  dicere  vel  taccrc  i^uod  ei  nocens  potest.'  It 
occurs  in  Mackenzie's  Criminals,  Part.  1,  tit. 
1  s.  5. 

'  t  This  should  be  Dig.  Lib.  50,  tit.  17,  Uf  • 
108. 


863] 


5  W.Sc  M.     Proceedings  against  James  Middletoun  and  atherSf    [86( 


Mv  Lord  Advocat  tripUes,  to  the  answers 
Mid  duplyes,  the  indytmeDt  and  replyes  are  op- 
|iODed,  and  as  to  the  indy  tmeut  not  beings  8p«- 
ciall  and  particular,  as  to  the  tyme,  dav,  and 
moneUi,  it  is  answered,  that  the  crimes  charged 
doe  im|>ort  a  tract  of  tyme,  some  of  the  pan- 
nails  beioff  lon^r  and  shorter  tyme  in  their 
rebelliou,  batthe  lybell  bath  deiinit  limits,  and 
it  does  not  appear  that  the  pannalls  are  pre- 
judged of  any  defence  competent  by  the  la- 
titude contained  in  theindytment,  in  which  case 
the  persewer  would  have  condescended  more 
particohirlie. 

S.  The  crime  subsumed  upon  are  the  same 
with  these  condemned  by  the  act  of  parliament 
lybelled  on. 

3.  The  iodytment  beares  the  mainer  of  the 
pannalls  their  comeing  to  the  Bass,  because  it 
was  so  fonned  upon  their  own  confession  be- 
fore the  oouncill,  but  it  is  not  lybelled,  that 
they  came  either  by  command  or  commission, 
but  ezpresslie  that  they  came  by  or  without 
commission,  and  only  under  command  of  Gra- 
hame,  which  is  ane  aggrafation,  and  noe  cx- 
tenuatioo,  that  they  came  in  a  tbrmed  com- 
pnie  to  invade  their  own  countrie,  and  assist  re- 
oeils  against  their  king  and  soferai^,  and 
tbo'  tbey  hade  come  by  command  as  is  not  ly- 
belled, yet  it  hade  been  noe  defence,  since  noe 
command,  especiallie  of  a  ITorraigne  prince, 
can  defend  in  the  case  of  treason  ;  and  if  the 
defenders  logick  were  ^pood,  a  regemeut  of 
Scotsmen,  invading  tlieir  native  countrie  by 
command  of  the  French  kin?,  should  l)e  free 
of  treason  or  rebellion,  which  is  absurd,  nor 
in  such  a  case  is  there  the  least  tlistiuction  be- 
twixt commander  and  sojor,  all  these  pretences 
being  groundless  in  the  case  of  treasone. 

4.  Simple  presence  a«?  lybelled,  thoug:li  it  be 
not  sollie,  is  yet  relevant  in  that  circumslaotial 
case ;  where  a  rompanie  of  men  posesses  them- 
selves of  a  fTort  and  holds  it  out  against  the 
government,  and  some  joyne  and  ahyde  with 
them,  and  give  noe  account  for  what  els  they 
came  there,  and  if  simple  ]>resence  in  this  caice 
should  not  lie  sustained,  ii  might  hajipen  that 
the  haill  rebells  inisrht  escape,  because  they 
might  be  seen  and  (liscovered,  over  tlie  walls, 
and  yet  not  one  of  them  seiii  in  anues,  but  the 
persewer  is  not  straitned  in  this  point. 

5.  The  indytinent  lyliells  the  charge  and 
intercomonint;  only  as  ane  aggravation,  for 
though  noe  such  charge  hade  bein  given,  the 
keepers  out  of  the  liass  are  nottorious  rebells, 
who  have  shewed  tlieir  hostility  against  their 
king  and  countrie,  both  by  holding  out  the 
ffort  forciblie,  and  by  many  other  nottour  acts, 
and  when  rebells  do  aither  take  a  fforl,  or  ap- 
pear in  the  f'eilds  in  armes,  the  cliar£r(>iiig  them 
to  render  or  lay  lUmn  is  only  ano  act  of  favour, 
and  the  intercomuning  ensliewin*;  is  only  to 
putt  the  leidges  in  mala  fide ;  but  the  holding 
out  of  the  ifort  hy  armes,  is  rebellion,  and  the 
joining  with  such  rebells  in  amies,  are  guilty 
thereof;  but  besyds,  and  for  superabundance, 
the  charge  against  Nicolsoneand  all  of  them, 
is  lawfully  because  though  it  bear  not  his  first 


name,  it  designes  him  Ntcobone  in  the  Bas, 
and  with  the  rebells  there,  and  noe  other  Ni- 
colson  is  condescended  on,  and  the  fbrsaid  de- 
signation of  all  of  them,  is  premiied  immedi- 
ately to  their  names. 

6.  That  Midletoun,  or  any  cf  them,  are  sot 
Scotsmen,  is  not  incumbent  to  the  persewer  to 
prove ;  the  fiersewar  grants  tiint  it  is  «  oeoei- 
sarie  quality  to  the  crime  of  treasone,  that  the 
persone  accused  be  aither  fiaftrr^  ami  JurenA' 
ditus,  hut  since  Midletoun  and  all  otben,  mint 
be  presumed  to  be  hafeing  all  the  appeartnoe 
of  Scotsmen,  and  being  foiind  in  companie  with 
Scots  rebells,  holding  out  treasonabtie  a  ibit 
within  the  kingdome,  and  that  he  cam  froa 
abroad  signifies  nothing,  since  the  rest  ef  tW 
companie,  that  came  with  him,  came  lylu- 
wayes  from  abroad,  and  yet  are  undoubledlie 
Scotsmen,  so  that  his  comeing  from  thnti, 
in  this  manner,  docth  raitber  preaume  him  to 
be  a  Scotsman,  seing  Scotsmen  and  noo  rin 
seem  to  have  entered  in  that  consptncie. 

But  7,  tho  he  were  a  stranger  all  o?er,  yft 
joing  with  Scotsmen  in  their  treaaon  or  rm- 
lion,  be  is  airt  and  part  of  treason,  and  it  wot 
ane  absurditie  unueard  of,  to  affinne  tbst  a 
stranger  joining  with  unatural  traitors  to  tdn 
away  the  life  of  their  prince,  abouM  oot  k 
^ilty  of  treason,  and  ibr  what  is  otgedsd,  Ibit 
if  he  were  principall  actor  he  wouM  notksi 
traitor,  ergo  he  cannot  be  airt  and  pairt  ft  is 
a  non  uguitur^  for  even  a  woman  aMiMia|r  > 
man  to  the  rapt  of  a  virgtne,  would  be  airt  isd 
pairt  of  the  rapt,  and  a  spado  assisting  is  tbf 
crime  of  adulterie  would  be  airt  and  ptirt  04' 
the  adulterie,  altho  both  uncapable  to  be  prin- 
cipal actors. 

8.  To  aflfirme  that  a  count riemans  residiDf 
elsewhere,  for  never  so  loop:,  wears  out  the 
character  of  his  originall,  or  liberats  him  frsn 
his  alleadgance,  is  against  reaaon,  and  the 
opinioD  of  all  lawiers,  nor  is  the  instance  of  Ike 
pleading  to  the  contrair,  by  reverend  chaidi- 
men,  worth  the  notioeing,  and  as  for  Wetbav, 
tho  ane  Englishman,  yet  he  is  a  pott  ao/sft 
which  as  to  both  priviledges  and  crimes,  ood- 
founds  the  two  kingilomes,  and  besydes  beis> 
rebell  here,  against  his  naturall  prince. 

9.  As  to  the  late  civil!  wares,  it  is  cntiiD 
that  none  were  demained  as  traitors,  kiiK  inde^ 
and  in  ]\Ionmouth's  invasion,  it  is  weell  eooo^ 
knowen,  hou  privat  souldiers  were  demiiaed, 
and  he  is  ill  read  in  the  wares  betwixt  ibe 
house  of  Lancaster  aud  York,  that  liatb  sac 
found  hundreds  of  privat  aouldiers  hanged  on 
both  sydes. 

10.  As  to  the  instance  of  the  Syrians,  k 
seems  the  deiendiM*  forgott  that  that  coni^osie 
was  a  companie  of  pure  flforraigners,  for  say 
thing  that  appears. 

11.  As  for  the  representatitm  to  the  ki^^i 
craved,  the  lords  will  noe  doubt  doe  in  that  tf 
they  shall  see  cause,  but  for  the  consequcMV 
that  this  instance  of  justice  may  import,  thff 
will  certainly  be  of  advantage  to  the  | 
ment.  but  cannott  break  the  Tt*ast  r  ~ 
fair  ware,  fi'or  besyds  that  it  may  ( 


8G5J 


fir  High  Treasoiu 


tonll  countriemcD,  wberof  we  ha^e  too  maoy 
abro4d,  from  ioTading  their  countrie ;  it  may 
flJso  be  of  singular  influence  to  reduce  the  Bass ; 
and  as  to  the  wares  abroad,  the  rules  are  better 
laid  down,  and  more  certainly  observed,  on 
both  syds,  then  that  the  case  of  the  panoalls, 
ivhicb  is  everie  way  speciall,  should  make  the 
least  alteration ;  and  in  effect,  hou  fair  and  just 
soever  a  ware  may  be,  yet  traitors,  ns  well  as 
spyes,  are  knoweii  to  be  excepted  on  both  sydes, 
and  how  tliis  exception  may  be  less,  or  more, 
observed  in  the  clemencie  or  politick  of  the 
kin^i^'s  and  princes,  on  both  syds,  it  concernes 
uot  this  tryeall  and  justice. 

13.  For  what  is  objected  out  of  tlie  Majestic, 
it  deserves  noe  answere,  being  abeolet  and  in 
effect  contrair  to  the  knowen  law  of  all  the 
worled,  where  minors  are  judged  doli  capuces  as 
In  crimes  special  he  altrocious,  crimes  such  as 
treaison,  in  the  first  place,  ond  though  by  our 
act  of  parliament  a  minor  committing  a  crime 
under  16  yeirs  of  age  be  sometyme  excused  a 
pan&  ordinaria^  yet  it  signifies  notbmg  in  this 
caice,  besides  the  Majcstie  sjieaks  of  tfelionie 
and  not  of  treason ;  and  the  ifcltonie  appears  to 
be  some  feiidall  dclinfjuencie  against  tlie  supe- 
rior, or  els  the  author  its  l>ke  liade  not  been 
Boe  fan*  oot  of  purpose. 

As  to  Wetham's  youtli,  and  being  ane  £ng- 
lislinian,  it  is  allreadie  answered,  and  therfor  it 
is  craved  that  the  pannalls  may  pass  to  the 
koowledgeof  ane  inqueist. 

The  Lords  continow  this  tn'eall  till  the 
twentie  first  instant  att  One  a  clock  in  the  al\cr- 
noon,  and  ordaines  the  pannalls  to  be  caryed 
back  to  prison,  and  the  witnesses  and  ass^sers 
to  attend  ilk  persone  under  the  paine  of  SOO 
merks. 

Februaric  31,  1694. 

My  Lord  Advocat  declares  he  insists  at  this 
<lyet  against  John  Trotter  and  Alexander 
M*Cleish  for  the  crimes  lybelled  against  them, 
and  craves  interloautor  upon  that  pairt  of  the 
iybell. 

Interlocctor. 

The  kmls  commissioners  of  justiciary  have- 
ing  considered  that  fiart  of  the  indjrtmcnt 
against  John  Trotter  and  Alexander  M*€leish 
the  pannalls,  they  find  the  same  relevant  as  it  is 
lybelled  against  them,  to  interr  the  crime  and 
paineof  treason,  and  remitts  tlie  same  to  the 
Knowledge  of  the  assvsc. 

Sic  Subscrihitur,    ^Dayid  Home,  1.  P.  D.  C. 

My  lord  advocat  craved  the  lords  interlo- 

Sailor  upon  John  Trotter  and  Alexander 
I'Cleish's  confessions  emitted  upon  the  nyn- 
teiDth  instant  in  their  lordships  presence  and 
before  the  whole  assyse  in  face  of  court ;  whi- 
ther the  same  be  a  judiciall  and  probative  con- 
fe«on  or  nott. 

The  lords  ffinds  the  forsaids  confessions  swa 
cmniitted  before  them  and  the  assyse  to  be 
both  judicial  and  probative. 

8ie  Subteribitur,    David  Uoms,  I.  P.  D.  C. 

VOL.  Xllf. 


A.  D.  1692. 

ASSISA. 


[866 


Patrick  M*Cara,  late  baily  of  jre  Cannogat. 

James  Edmodstoun,  merchant  in  Edinburgh . 

Robert  Hepbume,  of  Bearfoonl. 

William  Somervaill,  wright  in  Edinburgh. 

George  Yorkstoun,  goldsmith,  there. 

Sir  Andrew  Murray,  of  Murray  shall. 

James  Cleiland,  younger,  merchant  in  EJin* 
burgh. 

David  Cathcart,  of  Glendusk. 

Alexander  Thomson  Deacon,  convecncr, 
there. 

Thomas  Young,  late  ballzie  of  Edinburgh. 

Thomas  Young,  morcliant  in  Edinburgh. 

Thomas  llamillonn,  mosson,  there. 

John  Fergusson,  tanner,  there. 

George  Dalgleisli,  lorimer,  there. 

John  Lindsay  >  niorchant,  there. 

The  Asiyse  lawfuHic  sworiic,  no  objection  of 
the  law  in  ye  contrair. 

My  lord  advocat  for  probation  adduced  the 
witnesses  after  depoueing,  viz. 

James  Douglas,  vintiner  in  Edinbure^h,  aged 
threltie  eight  yeiresi,  maried  purged  and  sworne, 
depones,  that  the  three  acoomptb  marked  by 
ray  lord  Crocerig  as  ])racc8es  or  the  court,  are 
the  deponents  hand  write,  and  two  of  them 
subscrived  by  him,  and  that  he  bought  the 
trees  with  the  butter  and  cheese  mentioned  in 
the  accomnt  of  ffyve  and  f;j'flie  pund,  att  the 
pannall  John  Trotter's  direction  in  tlie  moneth 
of  Aprill  last  past,  and  that  the  pannall  gave 
the  deponent  the  money  for  paying  therof :  that 
afler  tne  boat  ifas  taken  at  Abeniour,  the  pan- 
nall John  Trotter  told  the  deponent  that  the 
twelve  trees  or  barrells  that  were  bought,  were 
des'gned  to  be  sent  into  the  Bass  with  beer  or 
ale,  that  the  said  pannall  sent  the  deponent  to 
Cockennie  toNormond  Blackadder,  younger,  in 
summer  1692,  when  the  English  ship  was  at 
the  Bass,  to  see  if  there  wa9a  boat  come  there 
to  take  away  the  things  that  were  sent  there, 
which  Normond  told  there  was,  and  that  the 
things  were  gone,  and  depones  he  heard  the 
things  that  were  mentioned  to  be  gone,  were 
cheeRe,  butter,  and  hiscatt,  that  John  Trotter 
payed  the  deponent's  horse  byre  when  he  went 
to  Cockennie,  depones  John*^ Trotter  has  been 
frequentlie  in  the  deponent's  house,  and  lies 
sein  him  drink  king  Jameses  health,  when  it 
was  begune  to  him  by  others,  and  hes  seen 
Wetham,  one  of  the  pannalls,  in  the  deponent's 
house,  with  Trotter,  who  passed  under  the 
name  of  Grein  a  cady  in  Lesslics  rcgemcnt, 
and  depones  that  John  Trotter  did  not  tell  the 
deponent,  that  the  butter  or  chciisu  that  liP 
bought  at  his  direction  was  to  be  sent  or  de- 
signed for  the  Bass,  att  tliul  tyme  or  any  other 
tyme,  causa  scientio'  patet ;  and  this  is  the 
trueth,  as  he  shall  answer  to  God. 

Sic  Subscrihitur,  J.  DowGLASS. 

Normond  Blackaddrr,  younger,  in  Cockennie, 
aged  flO  yeircs,  married,  purged,  and  sworne, 
depones,  that  in  the  yeirc  1699,  there  came  to 


867]  5W.&I 

the  depoD«nt*s  house  mane  things,  such  as 
biUter,  cheese,  and  biskut,  which  James  Douglas 
the  former  deponent,  came  to  the  deponent's 
house  to  enquire  after,  that  the  pannall  John 
Trotter  said  to,  the  deponent  that  he  was  to  send 
these  things  to  the  north  :  depones  that  there 
came  a  boat  from  the  Bass,  to  Portseatonn,  and 
reoeaved  these  things  from  the  deponent,  which 
he  knew  thereafter  to  be  the  Bass  boat :  depones 
that  John  Trolter  told  him  afterwards  that 
these  things  were  sent  into  the  Bass :  depones 
that  John  Trotter  would  have  had  him  to  send 
in  wore  thinsrs  to  Bass,  but  he  refused ;  and 
being  interrogat  if  he  saw  the  forsaid  goods, 
dq)t>ne8  that  his  servant  lass  receaved  them, 
but  he  saw  them  not  opened  up,  but  he  knew 
them  to  be  provisions ;  and  this  is  the  truth  as 
he  shall  anfewcr  to  God. 

iSic  Subscribitvr,        Nor.  Blackaddcr. 

James  Ilavy  htelie  lievtennent,  sone  to  the 
deceast  colhmell  James  Hay  of  Naughtoun, 
could  not  puige  himselfe. 

William  Smalll,  seaman,  in  Dnnbarr,  aged 
.Aourty-three    yeires,    married,,  purged,   and 
swonie,  depones  that  about  two  moneths  or  six 
weeks  agoe  he  sawe  the  pannall  John  Trotter 
att  IHimhar,  awl  that  at  tyme  the  pannall 
Alexander  M'Cleish  was  with  Trotter:  depones 
tlie  pawiifll  John  Trotter :  desired  the  deponent 
to  cary  bkn  into  the  Bass,  and  offerred  to  hyre 
his  boat  for  a  twelve  moneth  to  goe  to  and  from 
the  Bass,  and  when  the  deponent  refuseil  to 
cary  Trotter  into  the  Bass,  Trotter  tbreatned 
to  cutt  the  lugs  out  of  his  liead,  and  thcrafter 
John  Trotter  sent  for  the  depouent^to  JamesHa- 
miltoun*s  house  in  Dumbarr ;   that  Alexander 
M*Clcish  the  pannall  said  to  tlie  deponent,  that 
Trotter  hade  givt:n  him  ten  shillings  to  distri- 
bute to  the  deponent  and  his  neignnonrs,  and 
that  when  the  deponent  and  other  threi>  uf  tlicni 
returned  from  the  Bass,  the  said  M*Cleisli  gave 
each  of  thcni  a  shilling  bcsid  drink,  that  Alex- 
ander Bl'Clcish  the  pannall  gave  one  of  the 
crew  called  llolicrt  Spevin  a  Tetter  to  carry  to 
llie  Bass ;  depones  that  Alexander  IVrClush 
the  pannall  hyred  the  deponent  and  his  com- 
pauie  tn  gtic  to  the  Bass  with  tlic  letter,  aiul 
tliat  the  said  ]>I'C'!cisli  spoke  to  the  deponent 
about  goeiu^  to  the  Bass  with  the  letter,  but 
did  not  see  M'Cieish  delyver  the  letter  to  8pe- 
vin ;  depones  tlie  letter  was  caryed  tu  the  Bass 
hy  the  de|)onoi)t  and  the  rest  of  the  crew,  and 
was  delyvercd  by  Kobert   Spevin  ;    depones 
Kobert  Spevin  brought  back  ane  answerc  from 
the  Bass,  which  he  carryed  to  M*Cleish  the 
pannall's  house,  but  did  not  see  himdelyver  it; 
de]>oues  that  Alexander  M*Cleisli  gave    the 
deponent  and  everie  ouc  of  the  crewe  three 
shdliiigs  for  that  Foyadge ;    depones  that  the 
Wednesday  before  Cnristinmass  last,  Alexander 
M^CIeish  tlie  pannall  sent  for  the  deponent  and 
his  crewe  and  spoke  to  them  about  caryeing 
two  men  aboard  of  a  ship,  depones  that  these 
two  men,  atler  the  deponent  and  they  were  gone 
a  little  out  to  the  sea,  forced  them  to  carye 
them  into  the  BaKs»  and  tliis  was  about  ten 


Proceedings  agahui  Jamet  Middletoun  and  cihen^    [8BB 

a-doekattnigbt;  depones RflkertfipeviilriA 
the  deponent  that  the  fannall  Aknader 
MKISIeisli  tohl  bim  that  Oiese  tvo  men  w«e 
goeing  into  the  Bass,  end  that  wbenlbey  cnni 
to  the  Base,  ooeof  thetwooMn  wfaBied,  led 
the  other  called  a  Hadtoett !  a  Hackett !  wA 
the  Bass  answered  then,  and  landed  the  two 
men  at.  the  Bass,  and 'they  pjare  tiM  i' 

and  the  other  eeamen  a  gmme ;  dr 

tliey  came  eshoare  tlw  panml 
M<;lei8h,  changed  their  gouiie,  ud  gavecvfrie 
one  of  them  fyveahillinfft;  depenea  thniwka 
the  deponent  went  in  wi&  the  letter  to  the  Bhi, 
the  pannall,  Alexander  M<Clc«h«  ivoald  bait 
them  carye  in  a  twentie  nynt  barrell  ef  ik  ts 
the  Bass,  bnt  they  would  not  take  it  in,  oal 
that  the  rest  of  the  deponent^  crewe  loM  im 
that  be  had  brooght  it  to  tbeeand  end  fbrtbtf 
effect,  but  he  did  not  eee  it  himselfe ;  denons 
that  the  pannall  MK^leish  ferhade  him  and  Ik 
rest  of  tlie  crewe  to  lett  their  goeing  tolhi 
Bass  be  knowen,  for  it  voaM  hang  inen  ■ 
weell  as  him  ;  defiooes  he  oamiot  wfke;  hI 
this  is  the  troth  ts  he  shill  amirere  to  Goll. 
Sic  Subteribitur,  David  Hon. 


Alexander  Wood^  ffisherman,  in  ' 
aged  threttie   yeires,   maried,   pnmedi  mi 
swome,  depones  that  the  WcdMmy  Wv 
ChristmmaH  last,  Alexander  M«Okitb,  tki 
pannall,  desired  the  deponent  and- his  unit]  to 
carye  two  men  aboard  of  a  ahipe,  and  dmral 
them  to  make  haste,  and  he  wooM  pay  ttoi 
when  they  brought  the  goods  ashoare;  tkil 
M'Cleish,  the  pannall,  waited  upon  the  two 
men  to  the  boat,  and  kissed  them  before  thij 
went  abroad  ;  depones  that  when  the  boat  wm 
gone  a  litle  ofl  tlie  shoare,  the  two  men  foccid 
them  to  carrye  them  to  the. Bass,  and  tbit 
they  landed  the  two  men  att  the  Bass,  and  tbe 
two  men  gave  them  a  guinea ;   that  when  tbcj 
came  to  the  Bass  the  two  men  called  a  Hadct! 
n  Hacket !  And  the  Bass  answere«l  them;  de- 
IKHies  that  when  they  came  ashoare  a^ine 
they  came  to  the  pannall,  Alexander  M'Lenh'i 
house,  and  he  changed  tlie  guinie  to  them, 
and  they  told  M*Leish  that  they  hade  putt  ths 
two  men  to  the  Bass ;   depones  that  afterward* 
M^Leisli  the  pannall  sent  for  the  deponent  t^ 
come  to  the  pannall,  John  Trotter,  who  thm 
passed  under  the  name  of  Dods,  and  the  sud 
Trotter  passing  under  the  name  of  Dods  wooU 
have  hyred  the  deponent  and  his  crewe  to  carjt 
him  into  the  Bass,  and  oflfeired  them  nwej\ 
and  threatene<l  to  cutt  the  tuggs  out  oftbeir 
head  when  they  i    '      "     ' 
pannall,  Alexander 
nciit  and  the  other  seamen  to  goe  i 
with  a  letter,  and  gave  to  everie  one  of  them  • 
shilling  in  Bailzie  ffaas  cdbir,  and  they  wjHl 
with  the  letter,  and  Robert  Spevin  caryelfp 
the  letter ;    and  that  the  said  Robert  oftm 
brought  back  ane  answere  of  ye^leCter,  wWk 
Rob«'t  Spevin  car}-ed  to  tbe  pannell  AltIM* 
derM*Leishes  house,  and  the  deponent  Mik 
him  delyver  it  to  M*Leiah,  thepsnnill,  Iklii 
owen  hand ;   and  the  pannaU,  r 
i  4 


868] 


fitr^  High  Treasm* 


«vetie  ooe  oF  ihtm^  ^heii  they  cMne  aahoiTe 
with  the  letter,  tkree  sliilliog^  f^lai'tiAi^  and 
flOQM  tie;  &f)iJ  at  that  tytne  tlie  p«utia)l, 
M 'Lei&b,  bade  tiieni  keep  lliek  toiigfues  to 
theinselres ;  dcpane^  he  catinoi  ivrile ;  and 
tliit  Uthe  ti  uctli  as  he  shall  answere  to  God* 
Sic  SubicriUlur^  Davw  Home. 

George  Kerr^  wrig^ht  and  seaman,  in  Dum- 

bar,   a^ed  thrtUv   yeires  nnd  above,   maried, 

purged,  and  *worne,  depotjes  ro/j/i^rw/ts  prcct^ 

denti  ft^ttiost  Alexander  M'Li'tsti^  the  [mnnal, 

^fcnt  the  Cjtryeiii^  the  iwu  men  to  the  Bass, 

^Kf  pt  that  he  did  nnc  see  M'Leii^h  Idss  tlic 

^B  men  ;  and  that  be  iftas  one  of  thf'm  that 

Hryed  in  the  tcUer  to  the  Bass  ntt  3l'Leish 

^PTpDUatrs  dc^hv,  and  wWn  they  retun>ed 

Hpi   atie  aiiJiUj  r  (Votn  the  Bass,  v%liicb  was 

^Teii    to    >t'L<^ish,     3M.ei»li    gave    everic 

one  rjf  ihctii  three  5l»ithni;is,  and   bado  ihcm 

^pp  the  busieuei  i|Uyot)  because  \i  was  dan- 

^■rouK  to  tuajte  it  kuoueii ;    depones,  that  he 

Hnset^n  (he  pann^^.l  John Trotlcr,  att  Duiiibar^ 

Md  thai  h(i  |ia'!$ed  under  ttte  name  of  Dodii ; 

depofos  he  cannot  write  ;    and  tlii^  b  the  truth 

HA  he  (yhall  ansuer  to  God. 

$k  Suhscribitur^  ,   I>Al/lD  KoM£, 

Wiltiam  HuherUtm^  of  Powcreick,  seantati 
and  skipper  att  Portseatouu,  a^ed  25  yeirci, 
tiDtnari^,  purged^  and  MuopDe;   depot les  that 
in  May  last  John  Trotter,  the  pannull,  sent  tt> 
Pbriseatouii  to  the  deponent  to  crime  to  Wintonn 
to  hitn,  and  att  that  tyme  ^\vi\\  the  deponent 
came  to  Gcor*£e  ITog^s  house  in  Winloun,  he 
^luiii  John  Trotter,  the  |i4ionaJ[,  in  couipunie 
^Hl  M*Lean  and  M^Gowne,  two  Ba»8  rebelk  \ 
^Bones  tliat  ate  that  lytnc  the  panuatl  John 
^Bitter  proposed  to  the  deponent   to  lett  hiio 
^Bre  his  bi»at,  imd  he\«ou1d  furnish  it  with  men, 
to  goe  senate  captain  Eurd's  shipe,  which  was 
lettto  guaird  the  Bass  from  gettiug- provisions, 
Mri  Ibtit  be  made  faneofters  to  him  for  that 
^H^Ote ;    and  when  the  deponent  refused  the 
HBt  fPropoaal),  then  the  pannutl  John  Trotter, 
made  a  loc^od  to  ttie  deponent,  tiiat  the  depo- 
nent might  carye  in  provisions  hiinselfe  to  the 
BiM  i  and  that  Uie  pannaQ  John  Trutter,  wa^ 
10  give  him  money  for  providing  therof,  att 
f^ih  Or   Aberdour,    to  wtiicU   prDposaU   the 
Dt  agrccdf  and  at  that  tynie  got  a  leg 
'  l»fii  bitn»  and  tiie  money  ti^at  ihe  depo- 
I  gott  att  s^evemll  tymes  woidd  amount 
td  thrctt)  *tfvo  pundii  scou,   and  nnmediatly 
•Iter    iti^ir   beinj^  att   ^\  inloun   thry  mett  a 
■ttiod    I  vine  liU    Niddrie,  and  Ihetufieir    at 
^■Itibtsrgh,  wher«^  the  dp|»onent  gott  a  erownc 
^Kn  the  pannall  Trotter  ;    deponeis  that  ttte 
H^oenl  mani  IVi'Govan  and  IVrLean   Idainie 
^mtter    the    pantiall    for    havcinq;    receaved 
thretty  pund  sterline  fur  fiimi&hju<r  provj«ions 
fOf    tiie    Baat,    and    b*'iujr    ne^h^eol    yr'io, 
i«l  that   liie  iunnfcy   »*hich   the  deponent 
avedf  tvift  foi  hift  piiiues  for  goeing  to  the 
\ ;  aud  tbia  i^  the  titttb  as  he  sbult  answer 

Bic  SjiiktcrikUur^      VV(u.iAM  UoaOTso?!, 


A.  D.  16/^ 

Mj  Lord  AdD0CQi9  fac  farder  probation  ailN.1 
dtjc«d  the  patiiiaU's  judiciaU  ConlieasioD,  ^k      '" 
the  tenors  followesi : 

EuthBUAon,  IV6.  19>  169K 

In  pmeDce  of  llie  lor«ki  cntoioisaintteni  o#  I 
joatiKiane  a»d  aaaieera  mIImbiI  in  jodgMaM^] 
Jokn  l^ottnr  the  panaaU,  cMii>lesBea  iKvii  ultuna 
the  mottelh  oi  August,  1691,  he  has  *' 
assisted  the  Bas&  >viti  meat,  driuk,    * 
tilings  coratbrtuble  to  tbem,  and  hi^a  held  coi  («»• 
poodrnce  athenraye«  with  tha  rebelts  in  lH# 
BaKs  frequently  till  the  moacih  of  Ulafcb  k|fii,^ 
nnd  since  31arch  [»si  he  seat  ill  a  letter  t<»  tli«H 
i\^Us  in  the  Ba^is,   which  was  none  c€  h\9 
Qwen  writing,  and  receaved  ane  answere  k^fm 
tbctn  \   iWchn»  that  for  the  iyni4>  preeeedin^ 
March  last,  ti  was  but  three  tymat  that  hi 
supplied  them,  tie.  first  in  August,  1691,  ali 
which  tyme  he  sent  by  Backet  and  others  of] 
the    saids    rebctla    billet   and   maill^    whicN 
llackct  bought  himselfe,  and  was  ^hipt  att  J 
Lcith  fur  the  Ba^s  and  ihe  pdnuair$  puirt  waa* 
to  ^fivc  Ilacket  liis  advice  how  to  maiiadg^c  bis 
bu^iencs ;  deelaires  that  the  boat  wa*^  »  Bruit* 
t  island  boat,  t!tut  he  know  us  neither  the  name 
ni  the  boat  nor  of  tlie  master  ;    dechiirc^  the^ 
sjouond  tyme  was  in  rebruarie  or  March,  169 U 
att  which  tynie  the  ponnall  sent  in  some  tu- 
baeco  and  other  small  things  from  FisherawQ 
with  GroUame's  man ;   and  at  tbut  tyme  he 
sent  in  tii'o  letters  with  Charles  M:iilland  to  the 
Bass ;  the  tiiird  tyme  was  in  Decc  mWr  J692»  or , 
Janwarie  theraftW  or  therby,  all  which  tyme 
some  of  the  rebel ts  came  ashore  and  broughl 
tnoney  with   them,  and  the   pannall  directed  <! 
them     how    they    should    gett     butter    ami  , 
cheese,    and    bisket    for    tb^ir  uioney ;      de* 
elarcs  that  about  March  last  he    mett  with  J 
skipper   Robertsooe    att  Wintouue,    and  the. 
skipper  being  to  goe  to  the  north,  the  pannall 
desyred    him    to~  speak   with   M' Go  van   ojitt  , 
Maclean,  two  of  the  rehells  in  the  Bass,  and  atl 
their  desyre  he  gave  Roliertson  money  ;  and  he 
thinks  the  said  Robertson e  mett  with'  them  af-  < 
terwards,  and  be  hiinseUe  told  Robertsone  thai 
he  thought  they  would  propose  to  R' 
to  goe  to  the  Ous«,  &ud  they  would  g; 
for  it,  auil  iJeclaires  that  he  jjavc   liL- 
mopey   to  buye  tweke  barrel  Is  to  carr\e  Xt»  i 
Aberdonr  to  fill  with  beer  or  ale  for  the  Bissp  < 
which  iBOuey  he  trolt  from  tlic  Bass  men;  dc* 
dares  that  he  belicres  the   four  dollars  men* 
lioncd  in  ane  arcompl  under  his  hand  tvas  given  1 
be  him  to  the  Bass  men,  ajid  aekno»lrd;^es  thel 
said  accompt  to  be  his  hand  write  ;  and  that  il' 1 
was  accompt  drawen  up  to  send  to  tlie  rebdJa  ^ 
to  the  Bass,  that  they  migiu  send  out  money  te 
pay  it,  which  he  knewthev  hade  in  their  handfV 
as  they  said  to  him  :  and  that  the  said  memo- 
rundum  was  drawen  out  at  vr  desire  ;  aeknow- 
ledges  the  article  of  fryfiie-fyve  pund  mention- 
ed in  his  accompt,  payed  to  James  Douglass  for  | 
things  to  be  sent  to  ihe  Bass,  bill  they  wei^e 
never  seat  to  Ihe  Bass  nor  to  Portseaimm  ;  de-  l^ 
dairea  that  he  sent  from  Dnnibarr  ie  the  end  of 
December  or  begioing  of  Jaeirtrie  bat,  a  let* 


87q  5  W.  &  M. 

ter  from  a  fineind  of  Hacket's  to  Hacket  then  in 
the  Baas ;  dedaires  that  be  gott  a  letter  with 
the  boat  that  returned  from  Midletoun,  the 
present  goyemour  in  the  Bass ;  declaires  they 
used  to  call  him  John  Doda  and  he  bea  gotten 
the  lettera  with  that  direction ;  confesses  that 
the  butter  and  cheese  that  he  advised  collonell 
Grahame  thegovernourof  the  Bass  man  to  buy 
ibr  the  Bass  in  December,  169?,  were  caryeil 
to  Portsoitoun  by  Grahame's  man,  and  by  him 
and  his  nei^bbonr  transported  to  the  Bass  under 
oollour  that  they  were  goeing  to  the  English 
shipe  iyeing  in  Cockenieroad  as  the  pannal  was 
informed ;  confesses  that  all  his  correspondence 
and  supplie  was  according  to  the  dates  above 
marked,  viz.  before  March  1693,  except  the 
letters  which  lie  sent  and  receaved  in  Decem- 
ber or  Janwarie  last ;  he  declines  any  defence, 
and  throwcB  himselfe  in  their  majcKtk's  mercy. 

Sic  Subicribitury  Jo.  I'rotteb. 

>  David  Home,  I.  P.  D.  C. 

Alexander  M^Leiskf  the  pannall,  confesses 
that  he  sent  in  a  boat  with  two  men  to  the  Bass 
in  December  last,  and  that  the  men  were  caryeil 
in  and  lell  there ;  and  that  tha seamen  when 
they  came  back  told  him  they  hade  gott  a  giii- 
nic  for  tlieir  nuincs,  and  he  chaingcd  the  guinic 
for  them  ;  that  he  sent  in  this  boat  at  Charles 
Blaitland*^  dcsyro,  who  slid  to  him  that  hu  was 
warranted  by  my  lord  chancellcr  to  send  in  the 
boat,  for  bringing  out  of  the  Bass  goods  belong- 
ing to  Charles  Maitland,  and  that  3Iaitland 
said  to  the  pannall,  that  the  two  men  were  to 
sett  out  the  goo<ls  and  come  out  thcmscl'-  es,  and 
never  to  rcturnc  againc ;  confesses  that  in 
Januarie  last  he  gott  a  letter  from  t!ic  paiinall 
.Tohn  Trotler,  directed  to  Hacket  one  of  tlie 
Bass  rebclls,  and  delyvcipd  it  to  a  scainun  to 
carye  it  into  him,  but  knowcs  not  what  wcs  in 
the  letter;  confesses  that  the  seamen  broui^ht 
back  ane  answere  and  ;>:ave  it  to  him,  which 
he  gave  to  the  pannall  John  Trotter ;  confesses 
tliat  the  seamen  that  curyed  in  the  letter  to  the 
Bass,  spoke  to  the  pannall  to  send  in  a  barrel! 
of  ale  to  the  Bass,  and  that  he  did  provid  a 
twentie  pint  barrell,  bi.t  it  was  never  given 
to  them  ;  confesses  he  gave  the  sc^amen  twen- 
tie shilling  starliuL^  of  the  mon-.-y  lie  goU  from 
John  Trotter  for  caryeing  in  tiie  letter  to  the 
Bass ;  confess(.>s  that  Charles  Maitland  told 
him  that  one  uf  the  two  men  that  he  sent  into 
the  Bass  was  Hacket,  and  that  the  seamen  told 
him  that  when  ihey  name  near  to  the  Bass  the 
two  men  in  the  lK)at  cryed  a  Hacket !  a  Hac- 
ket!  and  that  Maitland  did  not  tell  him  at  the 
tvme  when  the  two  men  went  in  that  one  of 
tuem  was  Hacket,  but  told  it  him  afierward<. 
He  declines  any  defence  and  thix)wes  himselfe 
upon  mercie. 

iSic  Subscribitur,       Alexander  IMaclish. 
David  Home,  I.  P.  D.  C. 

Intirloquitor. 

The  Lords  derlairrs  the  conicssions  of  John 
Trotter  and  Alexander  Til-Lei^h  arc  not  receav- 
ed by  the  lords  as  a  submi^siou,  iu  regaird  my 


Proceedings  against  James  Middietoun  and  others^    [8IC 

declairet  he  is  to 


lord  advocat 
probation, 

Sic  Subscribitvr,  David  Home. 

The  lords  ordaine  the  assize  to  inckne,  ud 
retume  their  verdict  to-morrow  at  twritc 
a'clock. 

Verdict  asaintt  Trotter  and  M'  Leish  ;  Teh,  S3, 
1694. 

The  said  day  the  persons  who  past  upon  the 
assize  of  Jotm  Trotter  and  Alexander  M'Ckiik, 
prisoners,  for  supplieing  and  correspondiBi 
with  the  lebelb)  in  the  Bass,  returned  tbdr  vcrr 
diet  in  presence  of  the  saids  lords,  whereof  die 
tenor  foUowes :  The  Assize  haveing  elected  aid 
choisen  Thomas  Young,  late  Batlzie,  ia  Edh- 
burgli,  tlicir  Chancellor,  and  Robert  Uepbme^ 
of  Bearfoord,  their  clerk,  and  haTeinff  bcMl 
and  considered  the  lybell,  ond  the  lorat  ikff 
intcrloquitor  theni{i(m,  they  all,  with  ooevoier, 
find  the  pannall  John  Trottery  what  be  kii 
owen  confession  in  judgeoient,  aod  the  wit- 
nesses de|)osition8  adduced  against  him»  guikj 
of  treasonabk;  supjdyeiug,  tnroisbing,  oorrs- 
ponding,  and  keepmg  intilligcnce  with  the  R> 
belU  in  the  Bass,  several  tymes  befi»re  the  let- 
ters; of  intcrcommimin*',  dated  the  13tb  d 
Aprill,  1693,  and  since  by  keeping  oomfpen- 
drnce  with  the  said  rcbeUs,  by  sending bsf  a 
letter  to  them,  and  be  receaviug  ane  answere ti 
the  said  letter  from  them;  and  sicklvke the 
said  assyse,  all  with  one  voice,  ffindi  iMpH- 
nail  Alexander  M'Leish  what  be  liui  oweocw- 
fes>i(uie  ill  jnd^ement,  and  be  the  depositioB< 
of  the  witnesses  adduced  against  him,  guilty  of 
keeping  corre*;))ondence  \nth  the  rebelwiothf 
liiiss,  be  sending  in  of  a  letter  to  them,iDd4ii' 
receaviug  a  leuei*  from  tln-m,  and  of  seutlioK  iu 
of  men  to  them,  in  \tilncss  ulierof  those pn- 
sents  are  snbscry  ved  be  the  said  chancellor  lud 
clerk,  att  Kdenburgh,  the  21st  of  Febniarif. 
1694. 

iS'ir  Subscribitur,      Thomas  Young,  Cht. 

UOBERT   UCPOURNE,  CM. 

The  Lords  coiitinow  the  pronouoonir  cT 
doome  and  sentent-e  against  the  saiiU  ]ianoiilft 
till  ihe  twentie  sixt  instant  att  two  aclockintlir 
at\eruoou. 

February  26,  1C94. 
The  lords  commxsssionen;  of  justiciariebin*' 
ing  considered  the  verdict  of  assise  retuniol 
a<^'ainst  John  Trotter  und  Alexander  M'i/'isk. 
prisoners,  whereby  the  said  Jtdin  Trot(i;r  i» 
found  guilty  of  treasonable  supplieing,  fiiroi.«b* 
ins;,  corresjionciing,  and  keepin^^  iuteirigenre 
with  the  rebeils  in  the;  Bass,  severaTl  lyniesM<N^ 
the  letters  of  ititercomuning,  dald  the  \^ 
of  yiprill,  ItiiK),  and  since  by  keeping  of  conei- 
pondence  with  tlic  saids  rebeils,  by  sendisf  in 
of  a  letter  to  them,  and  receaving  ane  aiK«W 
of  the  said  letter  from  there;  and  the  lud 
A(fxan«ler  i\rLeish  is  found  guilty  of  IscepisC 
correspondence  with  the  rebeAs  in  the  BsHv^ 
sending  in  a  letter  to  them  and  of  rectavisf  * 
letter  from  them,  and  of  sendiBg  in  an  to 


873] 


JxiT  High  Treasofu 


A.  D.  1692, 


[874 


lliem«  the  sa^s  lords  iherfbre,  be  tlie  roivuth  of 
^ohii  Ritebie,  dempster  of  court,  deceine  and 
Kdjiiilge  th«  saidd  Joliu  Ti-otU>r  und  Alexaniivr 

Bl*LeLsh  to  be  laken  lo  the  mcrcai  crocc  of 
EdinburgU  tipou  Wednesduy  tbe  '2Bth  day  of 
Mftrcb  next  to  come,  bchvixt  two  and  tour 
aclock  in  the  aJlemooii^  and  there  to  be  hnt*^- 
ed  on  a  gibbtt  till  they  he  dvad,  and  or- 
dm'mes  their  uames,  flame,  iMtftnorie,  and  ho- 
nours, to  be  t'Xtinct,  th<Mr  bInuJ  to  he  talis  I- 
eil}  aud  iheir  atmes  lobe  riven  forth  aud  de* 
lute  out  ot  the  books  of  armes^  so  that  their 
pcHf  erity  may  nut  have  place  nor  be  able  here  ^ 
af>er  lo  hroike  or  joysc  any  huuourif  tilh-S| 
officer  or  dij^niiits  wttbiu  this  realino  i"  tir.^^* 
conicingf,  and  to  have  furfuuhctl, 
vod  tiut  all  an  J  sunrhie  their  Ian4lij>  ii  ^^  , 
Ucks,  4l«ediu)^s,  rounies,  jKMsessiotis,  tfooda  attd 
lEvar  whiit!?omerer  iiertainiri^  to  Ibriti,  to  our 
%  lord  and  lady  to  remuine  perfi^twal- 

li  .  it'ir  in.'ijestieii  hi  projieriie,  uhtcli  is 

pfviiiuiced  ri>r  do*»iitt'. 

Sic  Sulncrditur,  Dxno  HoiUB.  P. 

C   C'HmpbeH^  Ju.  Lauder,  Ar.  llo(>ey 

J,  Falconar. 

Cap!  Jumt:^  Midtlktoufit 

Wiiiiam  Wulhamey  I^ison^rsc. 

Witiwm  Nicohone, 

idytcd  &nd  accused  fur  the  treasonable 
ing  out  of  I  lie  rock  and  fort  of  the  Bjss, 

their  majefftiffs  and  their  i;overnmcnt» 
tresuKJnabIc  cryriies  ly belled  against 

ut  in  diebus  pracedcntikns. 

rtutn. — Sir  Jama  Stewart  tber  majesties 
1 1  sir  Jitmes  Ogihie. 

^rtfcurattin  tn  (/^earf .— Sir  Patrick  Hume ; 
Mr,  John  Frtmk. 

The  lordis  comcni&sioner*;  of  justiciary  having 
onxidcred  the  ind)  tnieiit  raist^d  and  purtiued 
«ti  tbe  instance  of  their  niuje^ties  udirucat 
aifaio^t  cnptaiii  J  nines  ^fiildleioune,  Williaxi) 
Nicobone,  ami  VVilU^m  Wotbam,  prisoners, 
w  Uh  tbe  debate  tbernpou,  ibey  lind  the  iodyl* 
mcnt  relevant  lo  inftr  Ibe  paynes  tybelled  j 
and  liaviiig  coosidereiL  tbe  speciaH  defi^^nce  pro- 
poned for  coptain  Jamcj  3V1  tddtetoune,  that  be 
was  bom  abroad  in  Flunder»,  tfiudA  Ibe  same 
elevaiit  to  lak^j  ofl'  the  cryrne  of  irea"!oue,  but 
;  to  hbei'at  him  from  a  cnpitalL  punishment  ; 
'  if  he  can  make  it  appear,  that  he  or  bis 
DiOflWIider  when  th<^y  eoteiwl  tlie  Bass,  ivere 
*  -^  >d  with  a  commissioDe  from  the  common 
t  In  thiM  declared  warr,  tbe  lords  remitts 
aisttmeutto  iiis  majestie^  and  repelUthe 
emaoeni  defences  and  duplyes  prepared 
t  i^annallSf  and  remitts  tbe  mlerloquitor  to 
kttoivledee  of  Liie  oai^yse. 
Sic  SitUcrtbilur,      Davio  FIoii£^  I.  P.  D.  C. 

AssisA . 

Sir  Piatrick  Nitbet,  of  Dean, 
Jmhc*  M^Lurgf    late    dean    of    Gild^    of 
linbilrg. 


Robert  Hepburn,  of  Whiiburgb. 
SamuellM'Lellan,  mercliant,  in  Ediuhtir]^ 
James  Clel!aiid,  merchant  in  Ediabnrgh. 
Pat.  Thomson^  merchant^  In  Edinburg^b. 
Sir  David  Carneijy,  of  Pillarovv. 
Geor^  Clerk,  late  bajlbef  of  Eiliuburgb. 
Patrick  Johnson,  merchant,  there, 
Thomas  Younjj,  merchant,  there. 
Robert  Cutbbert,  merchant,  in  £diiihur^b. 
George  HumC}  late  baiUteof  Edinbur^.^ 
lliomas  Fi^iber,  meicliant,  there« 
Thomas  Hamittun,  mason,  tlie  re. 
8tt' Thomas  Kennedy,  of&irkhdf 

The  Assyse  lawfully  swome,  noe  objectloae 
of  the  law  m  the  contrair. 

illy  Lord  AdVii^atf  for  probatione  adduced 
the  witneaJ*es  atkr  deponeiog,    viz. 

Espl4m  Cratrfoord\  lieutenent  to  captain  Alex* 
aiider  Stevenson,  to  sir  Jumes  Mdurreiff' »  regi- 
ment, aged  tbrettie  six  years,  unumrrted,  purg«^ 
ed,  and  :>Moriie|  depones  that  about  JuUy  past  m. 
twelve  uionelb,  the  de|M>ueot  **eni  to  the  Bii&s  t» 
brinsj  out  some  Dutch  sea nien,  which  a  Fieuch 
Caper  brought  up  to  the  Bass,  and  that  ittt 
that  tyme  the  pannall,  caj^laui  James  Middle - 
touoe,  came  out  from  tbe  Bass  in  a  boat  lo  the 
deponent,  ami  asked  the  deponent  if  there  waa 
any  coinmis^ionat  otiicer  alioard  tbe  boat,  ia 
which  the  deponent  was  ;  and  the  said  pati'* 
nell  did  then  delyver  a  letter  or  of>en  iaemo> 
rauilum^  to  signijie  to  the  government,  that  the 
saids  prisoners  were  in  Ibe  Bass  and  desyreio*r 
ihem  to  releive  them  as  prisoners  of  warr, 
which  letter  ormeiuorandum  the  deponent  re- 
ceived from  him,  und  being  interrog-at  if  be 
saive  the  said  pan  nail  or  any  other  of  bis  com- 
panic  in  tlie  boat  >i  ith  him  have  armes^  depous 
be  saw  ihem  bav  e  uoe  armcs,  and  depones  that 
in  the  said  moneth  or  in  the  monetb  of  Aui^ust 
thera(\er  the  deponent  by  order  from  sir  Tho« 
mas  Livingstone,  did  goe  a  second  tyme  to  the 
Bass  to  receave  the  saids  prisoners,  and  at  tbai 
tyine  he  did  see  the  paunell,  captain  Jatnes 
Middletoune,  in  the  Bass,  and  spoke  with  him, 
and  the  pannell  came  out  with  the  <le)K>nenl  lo 
Castletoune  and  therafler  went  away  in  his 
skiti  towards  tbe  Bass,  and  depons  that  in  Fe- 
breA^ary  sixteen  hundred  and  nyntv  three,  the 
deponent  saw  tlie  pannall  James  Middletoune 
a  third  tyme  n|>on  the  rock  of  the  Bass,  the 
deponent  having  gone  in  there  by  order  from 
my  lord  chancellor  to  bring  out  James  Hay, 
and  thai  when  he  parlied  nith  the  goveruour, 
the  pannell  was  present  with  the  governor,  as 
one  of  his  company,  and  all  tber  present,  the 
paunell  as  weell  as  others,  so  far  as  the  deno- 
nent  remembers,  did  say  that  James  Hay  t>etng 
one  of  tbeir  own  number,  and  a  deserter,  ivas  not 
a  prisoner  of  warr,  and  the  deponent  J efl  tbe 
uannall  in  the  Bass  ;  depones  that  the  dejionent 
mthe  saids  monelbsoiUully  and  August,  Bixieen 
hnndref]  aulKiyntietwo,  and  February,  sixteen 
hundred  and  nyotie  three,  was  commander  of 
tbe  pairtie,  that  was  lying  att  (.'astletoun,  as  a 

Sxard  against  the  rebeils  in  the  Bast,  aa  beuMj^^ 
€11  in  r^»elUoae  \  de|ioiie9  he  saw  the  rebelk 


875]  5W.&M.     Proceedings  agai$istJames  MiddUloun  and  oiherst    [876 

Jamet  Hay,  latdy  leiHenmuit,  tone  to  tha  df- 
ceist  c^llonell  James  Hay,  ^  NanGhtamie, 
aged  tbcetty-two  yeares,  uomanied,  poiged, 
and  sworne ;  depoues,  that  Ibe  deponent  came 
in  company  with  ooUooeU  Grabamefroan  Dafr 
kirk,  to  recruit  the  Baas,  and  that  Middtetoiai, 
NicolsoD,  and  Wothara,  the  panneUs,  were  ia 
the  company  with  them ;  and  that  when  tliej^ 
arrvved  att  tlic  Bass  it  being  in  the  niffht  tymi^ 
and  the  Bassmen  supposing  they  might  be  eua- 
mies,  did  at  first  refuse  tbein  entianoe,  bat 
after  they  understood  them  to  be  friends  tbej 
receaved  them  all  as  lecruita  to  the  garrisoos ; 
depones  that  they  arryvcd  att  the  Bsas  ia  Ik 
moneth  of  December,  1601;  depones,  tbit 
during  the  ty  me  that  the  de|io»ent  was  in  ibc 
Bass,  wliich  was  till  the  March  thereafter,  be 
sawe  the  three  paunells  in  armes  u|Mm  dutv  bjr 
turncs  as  it  fell  them ;  depones  he  did  hav 
king  James's  comiiiissione  read  in  tbeBsH, 
and  that  all  that  were  in  the  Bass  were  csiM 
to  the  rfiidiitg  of  it,  and  that  tlie  ponndb 
brother  Michacll  Niddletouu's  name  was  filtod 
up  with  con^iit  of  all  present  Depones,  that 
the  three  panneUs  were  upon  duty  by  order  of 
Michael  Midltoun,  governour,  met  bis  name 
was  filled  up,  and  that  Ity  caiyin^  of  i 
aud  that  the  Bass  diil  at  that  tynie  hoMi 
against  their  majesties  king  WilKam  and  f 
Mary,  as  they  still  doe ;  and  the  dcpoam 
when  he  came  out  of  the  Bass,  he  left  theia 
there,  and  they  were  iu  the  Bass  with  Ihm  aH 
the  tyme  he  was  there;  deponi  tliat  ii 
Febrwary,  1G93,  the  dc|)onent  went  back  la 
the  Bass,  and  at  that  tyme  he  dkl  see  the  pn- 
nolls  Midlelouiic  ami  Nicolsonein  the  «rarrl<soue 
of  the  Ba<;s,  and  at  that  tyme  he  was  roaile 

))ri8oncr  hy  the  garrisunc  ;  dcponi-s,  thut  when 
le  went  in  to  the  Bass  labt  he  went  in  by  order 
oftlic  govcrnniciit,  causa  pairt ;  and  this  is  Ibp 
truth  as  he  shall  answer  to  God.  4uil  btdng 
interrogate  if  the  deponf'iit  or  any  iu  tils  coai- 
pany  came  to  the  Bass  be  fertile  of  a  commis- 
sione  from  the  French  kiii^,  depones,  tint 
the  deponent  knowes  of  noe  commtssionc,  ex- 
cept one  from  St.  Germans,  sig;npil  by  llit 
Kugiish  sub-scxTetary  there,  which  apiioinus 
the  dciionent  by  name  and  Mr.  Nicolscme  ili-' 
panuell  with  others  to  be  pitched  U|)0n  to  coro" 
to  the  Bass. 

Sic  Subscribilur,  J  a.  Hat. 

WillioM  Robert sonc  of  PowcrcilT.  skii>|Kr"i 


in  the  Bass  take  a  bark  and  cary  her  up  to  the 
Bass  in  the  hmder  end  of  hanrest  1G9S,  depones 
that  in  conference  with  the  Bassmen,  he  heard 
them  say  that  they  would  keep  out  the  Bass  as 
long  as  they  liad  bread  and  water.  Causa  tcien- 
tiapatelj  and  this  is  the  truth  as  he  shall  an- 
swer to  God. 
Sic  Subscribitur^  Esplan  Craufurd. 

Oamn  Joknitone,  sone  to  John  Johnstoune, 
ineasengcr,  in  Dumfries,  late  sooldier  in  the 
Baas,  aged  thretty-foury  cares,  married,  purged, 
and  swonio ;  depones,'  That  in  August,  1091, 
the  de|>onent  himsclfe  went  into  the  Baas,  and 
about  ibur  moneths  tliereafter,  the  three  pan- 
neUs, captain  James  Middletoune,  William  Ni- 
colsone,  and  William  Wothamc,  airyved  att 
Ae  Bass,  in  company  with  leivtennant  collonell 
William  Graliame,  and  were  received  by  the 
garrisone  as  friends,  and  irontinued  there  for 
BOmo  moneths;  hot  that  they  did  not  cary 
nrmes,  neither  did  the  giwemor  himselfc  caiy 
Arms,  nor  any  others  but  the  common  soldiers 
when  Ihey  stood  eentries ;  and  that  the  three 
panneHs  were  all  reckoned  gentlemen,  an<l  dis- 
tinguiahed  from  the  rest  of  the  commonality  of 
the  Boss.  Dcjioncs,  that  the  said  leivtennant 
colloncU  William  Grahame.'in  whose  company 
the  panaalls  came  to  the  Bass,  brought  king 
Jameses  commissione  alon^t  with  him,  and  the 
deponent  heard  it  read,  but  there  was  no  other 
present  but  himselfe  when  he  heard  it  read ; 
and  that  the  said  commissione  made  Michaell 
Middletoune  governour.  Depones,  that  he 
knowes  the  Bass  was  hohlini^  out  against  the 
government  of  their  majesties  king  William  and 
queen  Mary ;  depones,  that  he  exprcst  his  <!c- 
syre  to  (fctt  out  of  the  Rass  to  Mi<:huc'll  Middle- 
toune the  {jov«»rnour,  but  he  reliispd  it,  and 
ypoke  sharplieto  him,  hut  the  deponent  blamed 
the  rest  of  the  jQrentlemen  of  the  Bass,  and  par- 
tifulariy  the  pannolls  tor  keeping  him  in.  De- 
pones, that  he  sawe  the  |»annelLs  Midletoun  and 
nlicolsonc  all  the  tyme  in  the  Bass,  frae  the 
tyme  they  came  to  ii  till  May  last,  and  that  he 
cannot  be  positive  when  itVaa  that  Wotham 
came  out  of  the  Bass,  causa  scientite  pafet^  and 
this  tiio  truth  as  he  shall  answer  to  God. 
Sic  Subscrilitur,         Gawen  Johnston. 

Rchert  M^Ftirlanfy  bouhlier  in  major  Mon- 
ro's company  in  sir  James  Moucreln's  regi- 
ment, a;;cd  i\veuty-tivo  veares,  married,  purged, 

and  swurne  ;    de;)ou('S,  that  when  lei\tenp-^t  .  »    «      .  •  i-i 

*  "    ,.  "•  "^ »        I         »  ,     ,     ^,     seaman,  at  Portseaioun,  mchU  noiU 

Crawluciii  went  m  to  t lie.  Bass  aneni  the  U  tch  ^  '  ' 

seamen  in  August,  lo j'iy  the  deponent  ^tent 

alongst  with  him,  ami   did  see   the  i>anncll 

Juiiies  IMiddlctuuu  in  the  Bass ;    and  at  the 


John  Rtidy  servant  to  sir  William  Bsinl,  fi 

Newbyth,  aged  tliretty  yearcs,  married,  par*- 

ed,  and  swome;  de^iones  that  about  the  twtfo* 

same  tyme  he  came  ashoar  to  Castletoune  witli  ^  Xy  third  day  of  May  last,  about  nine  aclock  ^ 

leivtcnant  Esplan  Crawfoord,  and  thcralUr  saw  I  night,  the  deponent  being  at  a  pbce  callel 


him  goe  off  towards  the  B;iss  ugain,  causa 
identic  lie  was  one  of  the  souldiers  of  the  gar- 
risone uf  Casth  tonne  that  was  u-atehing  against 
the  Bass:  depones  he  sawe  the  paiinall  Mid- 
dletoune with  noe  armes  but  a  short  ba\  gonet ; 
depones  he  cannot  wryie.  And  this  is  the  truth 
as  lie  shall  answer  to  God. 

iSic  Suburibitur^ .        David  Home,  P. 


Jagg,  in  East  liOthian,  with  some  company 
taking  a  drink  of  nie,  the  three  pannells  wcsi 
by  at  the  tyme,  haveing  in  company  !»• 
swords,  two  hay«jonets,  and  a  gunn,  and  the 
dpponent  and  his  company  observiog  tbeOi 
tbIlowfHl  them  to  Baukhead,  and  overtooke 
them  att  the  east  end  of  the  loune,  aod 
them  who  they  were,  and  where  tbty  ^ 


far  High  Treason. 

d  tbcy  said  they  were  fifoeiof]^  to  Tud- 
» and  the  deponent  adced  Hrho  they 
v,  and  t|pe  piuinells  could  tell  of  none 
r  there,  nor  give  any  good  account  of 
b;  ithere^ipon  the  deponent  and 
r  company  did  apprehend  tliem,  with- 
gaoyresiatance,  ctMia  scientiapatet,' 
8  the  trueth,  as  he  shall  answer  to 


A.O.  I6&i. 


[878 


ubtcribiturf 


John  Reid. 


I    Borne,  gardner  to  sir   WiDiain 
Newbytb,  aged  twenty  fy  ve  yeares, 
puiged,  and  twome,  depones   con^ 
eedenti  m  omniliui. 

WiLLUM  Burn. 
David  Uous,  P. 

ds  ordainet  the  Assyze  to  inclose  and 
heir   vavdict   to-morrow,  at  twelve 


JMnrary  97,  1694. 

id  day,  the  persones  who  past  opon 
s  of  captain  James  Midletoune,  n  il- 
>l80oe,  and  William  Wothame,  pri- 
etumed  their  Verdict,  in  presence  of 
k)rds,  whereof  the  tenor  fbllowes : 

2se  having  elected  and  choesen  sir 
ennedy,  of  Kirkhill,  their  chan- 
cy all  111  one  voice  find  it  proven  by 
itions  of  the  witnesses,  That  the  three 
riz.  Captain  Jamea  Middletonne,  WU- 
il90iie,and  William  Wotbam,  arryved 
98  in  Decendier,  1691  years,  in  com- 
li  leivtt.  coll.  William  Orafaame,  and 
i  and  abode  there  sevavll  moneths 
baell  Niddletoane,  who  commanded 
by  virtoe  of  a  cahimissione  from  the 
Jaoaesy  hohlin^  out  against  the  go- 
of their  rniyetUe'a  king  William  and 
ary;  aa  witness  thir  presents,  sub- 
fy  the  said  sir  Tlionsas  Kennedy,  as 
r,  and  the  said  Robert  He|>bume  their 
Ediabnrgh,  the  twenty  sixth  day  of 


February,  sixteen  hundred   and   nyntie  four 
yeares. 

Sic  Subicribitury      Tho.  Kennedy,  Canc. 
Rob.  Hepburne,  Clerk. 
Continued  till  the  1st  March. 
JifarcA  1, 1694. 

The  lords  commissioners  of  jqglidary  having 
considered  the  verdict  of  assyse,  returned 
against  captaine  James  Middletonne,  William 
NicolsoDe,  and  William  Wotham,  whereby  it 
is  found  proven  bjr  the  depositions  of  the  wit- 
nesses, that  the  saids  three  panpells  anyved  at 
the  Bass,  in  December,  aij&teen  hundred  and 
nyntie  one  yeares,  in  company  with  leivten*' 
nantcolloneu  William  Grahame,  and  continued'' 
and  abode  there  severall  moneths  with  MichaeU 
Middletonne,  vrho  commanded  the  Bass,  bjc 
virtue  of  a  commission  from  the  late  king 
James,  holding  out  against  the  government  of 
their  majesties  king 'William  and  queen  Mary  ; 
the  saids  lords  the^or,  be  the  mouth  of  John 
Ritchie,  dempsler  of  court,  deceme  and  adjudge 
the  saids  captain  James  Midletonne,  William 
Nicolsone,  and  William  Wotham,  to  be  taken 
to  the  marcat  crose  of  Edinburgh,  upon  Fry*- 
day,  the  sixth  day  of  Apry  le  next,  to  come  bee 
twixt  tno  and  four  ack>ck  m  the  afternoon,  and 
there  to  be  hanged  on  a  gibbett,  till  they  be 
dead,  and  ordames  their  names,  fame,  end 
memory,  and  honours,  to  be  extinct,  their 
blood  to  be  tainted,  and  their  armes  to  be  riven 
forth,  and  delete  out  of  the  book  of  aimes,  sue 
that  their  posterity  may  never  have  place,, nor 
be  able  hdrafter  to  bruike  or  joyse  any  titles, 
dignitie8,or  offices,  within  this  realme,  mtTme 
comeing,  and  to  have  forfault,  emitted,  and  tide 
all  and^sundry  their  lands,  heretages,  tadcs^ 
steidings,  rooms,  possessions,  goods,  and  gear 
whatsomever  pertaining  to  them,  to  our.eover 
raign  lord  and  lady,  to  remaine  penpetiiaUj 
with  their  miuesties  in  propertie,  which  is  jftQm 
nounced  for  dfK>m. 

Sk  SubKribitur^  Patid^Homb,  P. 

C.  Campbell,  Jo,  liauder,  A.  Hope,  f. 
Falconer. 


879J 


WILLIAM  IIL       Proceedings  in  tlie  Parliament  of  Scotland,      [8S0 


400.  Proceedings  in  the  Parliament  of  Scotland  respecting  the  Mas- 
sacre of  Glenco:  7  William  IIL  a.  d.  I695.  [Collection 
of  State  Tracts  published  in  the  Reign  of  King  William  the 
Third.*] 


COMMISION  for  Trial  of  the  Sloanrhter  com- 
niitted  at  GleiMW,  upon  the  ISth  day  of 
February,  1692. 

GULIELMUS  Dei  Gr.  Map.  Brit.  &c.  Om- 
'  nibus  probis  hominibus,  ad  quos  praesentes 
'  Litene  nodtroe  pervenerint,  salutem.  Quan- 
*  doquidem  nos  considcraotes,  quod  etiarasi  nos, 

*  "  From  an  Article  entitled,  «  The  Mas- 
<(  sacre  of  Glenco  :  Being  a  True  Narrative  of 
*^  the  barbarous  murder  of  the  Glenco  men  in 
"  the  hig^hlands  of  Scotland,  by  way  of  military 
<<  execution,  on  the  13th  of  February,  1692. 
«  Containing'  the  commission  under  the  great 
'*  seal  of  Scotland,  for  making  an  inquiry  into 
*<  that  horrid  murder :  the  proceedings  of  the 
'*  parliament  of  Scotland  upon  it :  the  report 
'*  of  the  commissioners  upon  the  inquiry,  laid 
**  liefore  the  king  and  parliament,  and  the  ad- 
"  dress  of  the  parliament  to  king  William  for 
**  justice  upon  the  murderers.  Faithfully  ex - 
**  tracted  from  the  lUcords  of  Parliamrut,  and 
•*  miblished  f«-  undeceiTing  those  who  Ijavc 
**^  been  imposed  upon  by  false  nccoutits.*' 

The  Narrative  is  preceded  by  a  I/.Htcr  ns 
follows  : 

"Sir;  III  answer  to  yours  of  the  1st  of 
October,  I  herewith  send  you  from  the  Reironis 
of  our  parliamenl,  a  true  and  authcnlir  Ac- 
count ot*  the  Massacre  of  Gleiim,  as  ymi  li^li- 
teously  call  it.  I  wish  this  matter  could  h:»ve 
been  forgotten  to  eternity  ;  hut  siiici-  you  say 
it  is  altogether  needful  for  the  viitilieation  uf 
the  justice  of  our  country,  against  mraiv  lals( . 
slanderous  accounts  that  are  daily  j^iven  <»f 
that  business  in  England,  I  am  \Villlii(>-  you 
print  what  I  now  send  you  ;  and  th.it  you  uiwy 
be  furnished  to  answer  all  ohjectiuns  against 
the  truth  of  this  Narrative,  you  may  inform 
any  Englishman  of  quality,  that  is  willing  to 
be  satisfied  in  the  matter,  that  the  Report  nf  the 
Commission,  the  Address  of  our  Parliauieut 
herewith  sent  you,  and  the  Duplicates  of  the 
lord  Stair's  Letters,  are,  or  were  at  least  in  the 
Scots  Secretaries  Office  at  London  :  or  if  they 
should  happen  to  be  withdrawn  from  thence, 
they  may  mform  themselves  fully  in  the  truth 
of  this  from  Mr.  Johnston,  who  was  at  that 
time  secretary  of  state  for  Scotland,  and  had 
particular  directions  from  the  late  queen  Mary 
to  push  on  this  inquiry,  and  search  into  the 
bottom  of  that  horrid  murder  ;  for  her  majesty 
was  grieved  at  the  heart,  that  the  reputation  of 
the  king  her  husband  shouki  have  suffered  so 
much  by  that  affair.    I  would  not,  howerer, 


<  Anno  Dom.  1693.   per  ex|)ressam  initnic- 

*  tionem,  potestatem  conceasiaiuB  de  inonuo 

<  GuIielmoDuci  de  Hamilton,  alitique,  pro  ex* 

*  aminandu  et  inquircndo  dc  coede  quoraaikB 
*•  Cognominis    de  Macdonald    aliomnique  k 

*  Glenco.  Anno  Dom.  1693.  et  de  modo  ctde 

*  methodo  Commissionis  ejusdrm  ;  niliiloni- 

*  nus  Inquisitio  qiioe^tunc  facta  erat  in  prowco- 


that  Mr.  Johnston  should  know  any  thing  of 
your  design  to  publish  this :  for  though  toi 
know  as  well  as  I  that  his  diligence  to  fcrvr 
and  obey  the  queen  in  this  matter,  was  alvin 
judged  here  to  lie  one  of  the  chief  causes  of 
our  nation's  losing  that  able  and  honest  misii- 
ter  ;  yet  he  is  so  nice  in  point  of  honour,  ibit 
he  chused  rather  to  be  unjast  to  himself,  and  to 
lie  under  imputations,  than  to  give  any  put  if 
those  papers  to  be  published,  though  freqQCDtlj 
urged  to  it,  because  he  said  it  would  be  m^ 
cent  in  him,  that  had  once  been  his  majcrtj't 
secretary',  to  do  any  such  thing.    Thraoie, 
though  you  are  carefully  to  conceal  thiimiUir 
fh»m  hiui  till  it  be  published,  yet  as  soon  is  it 
is,  I  must  pray  yon,  if  you  think  it  proper,  to 
go  and  tell  him,  that  I  beg  liis  pardon  for  niak- 
ing  this  appeal   to  him,   without   his  leave: 
and  though  1  may  sufTiT  in   his  liood  opiiJJM 
^  by  what  1  have  done,  yet  if  this  puWiralioo 
;  may  any  ways  oblige  him  to  do  himself,  hi» 
later  master,  and  his  country  further  justice,  by 
I  telling  what  he  knows  more  of  the  matter, I 
,  shall  be  the  easier  under  his  ilUplcasure.   1^ 
,  had  ahno<;i  forgot  to  notice,  that  the  duke  d 
Aihol,  the  lord  Chancellor,  and  raarqwis*  of 
Anandale,  all  now  at  London,  were  roembcK«f 
I  the  commission,  w  ho  made  the  inclosed  report; 
'  and  howsoever  scrupulous  they  may  have  bfen 
I  in  point  of  honour,  Vi  commnuicate  any  pape" 
relating  to  this  matter,  they  cannot  in  lionoor 
but  own  that  this  history  is  authentic,  if  my 
of  the  English  nobility  think  fit  to  inquire  ol 
them  about  it :    but  yo^ii  must  he  careful  to  Id 
none  of  them  know' any  thing  of  your  design 
to  publish  it,  or  which' way  you  liave  this  In- 
formation ;    though   if  they  'should  come  ta 
know  it,  1  chuse  rather  to  incur  their  dispkt- 
sure,  by  appealing  to  them,  than  to  omit  nj 
thing  that  lies  in  i.)y  power  to  \ indicate  tk 
honour  and  justice  of  our  counti-y." 
"  Ediuhurph,  Nov.  1,  1703." 

And  atthe  end  of  the  Narrative  are  sulyiiMJ 
tlie  following  Observations : 

<<  It  is  said  that  some  of  the  persom  Si  p^ 
a  nuiission  from  king  William ;  ooneeml 
which  iv  is  to  be  obsened,  first,  that  thetikiB] 


«8rj 


7-espcctijig  the  Massacre  ofGiatco. 


A.  D.  1Q95. 


[8S2 


«  tiane  ilictae  rnfitnirtionis  def^cliva  omt,  nosque  1  *  vrris  circuir.staiuiis  Uci  s\nU'»liclrr,  crit  coiu- 


'  ctiaud  iferpen'kntet,  qun«|  ^Icthmliis  maxinie 
*  efficax  pro  plena  Iiitoidialioiie  accipcndia  tic 

of  a  remission  is  a  tacit  acknowlc(lcfin|[i^  of  the 
crime,  and  takinqf  upon  tlicin  iltc  i^iiilt :  next, 
that  any  such  reniission  is  niijl  aiul  void,  and 
i?ill  not  defend  them,  l>ecanse  it  did  nnt  proceed 
upon  letters  ofSiainv,  nor  is  there  any  assitli- 
ment  made  to  the  nearest  of  kin  ;  it  beini>f  ex- 
pressly provided  hy  the  13G  act,  par.  3  Jac. 
tbe6U),  that  remissions  are  null,  unless  the 
party  be  assithed  ;  and  hy  J57  act,  par.  |3. 
Jac/tj.  And  it  is  farther  to  be  observed  iWmi  i  hat 
act,  tiiat  albeit  respites  and  remissions  had  been 
formerly  granted  f'i'r  scvrrnl  enormous  crimes, 
jet  thedei'endants  wore  orduiued  to  be  criini- 
ually  pursued  notwithstandinsr  of  the  same : 
and  the  said  act  is  ratiticil  by  the  173  act, 
par.  13,  Jac.  6,  against  the  granting  of  remis- 
sions and  resjiiics  to  the  committers  of  murder, 
»laii;;hier,  acd  other  atrocious  crimes  therein 
jnuntioneil,  where  there  are  not  sufficient  letters 
ofSSlains  shewn  ;  and  that  no  respite  or  remis- 
sion be  admitted  in  judffment,  except  the  same 
be  compounded  with  the  treasurer,  and  sub- 
scribed by  him,  at  least  past  his  register.  And 
act  178,  It  is  provided,  that  no  respite  or  remis- 
sion be  t^niDted  ibr  slaus^hter,  until  the  party 
skaitheil  be  first  satisfied  ;  and  if  any  respite  or 
remission  shall  happen  to  be  granted  before  the 

Krty  grieved  bo  fir»t  satisfied,  the  same  shall 
null  hy  way  of  exce|ition  or  reply,  without 
any  further  declarator.  Thirdly,  It  is  to  be 
fkbserved,  that  the  parliament  havin<>:  declared, 
that  the  killing;  of  the  Glenco-men  was  a 
murder  under  trust ;  it  is  clear  by  the  51  act, 
])ar.  11,  Jac.  6,  that  murder  and  slaughter 
of  a  person  under  trust,  credit,  assurance  and 
power  of  the  slayer,  is  treason  :  so  thut  by  the 
said  act,  these  that  h.id  acces>ion  to,  or  were 
any  ways  airt  and  part  of  the  sluuifhier  of  tlie 
GJenco-mcu,  are  guilty  of  treason." 

Of  this  horrible  transaction  viirioiis  account-^ 
are  in  print.  It  is  very  patliciically  rclalcd 
by  Gilpin  in  his  Tour  w  Scotland. 

Mr.  Lain^  (Hist.of  IScotland,  vol.  l,  p.  211) 
obfit-rves  of  it : 

*\  The  outcry  a;rAinst  the  massacre  of  Glenco 
vas  not  confined  to  Scotland  ;  hut  hy  the  in- 
dustry of  the  Jacobites,  it  resouiiiied  ivit!i  e^ery 
a^§^vationthrou>>:h  Europe.  Whelhrjr  the  itl- 
bumau  rii>our,  or  the  perfidious  execution  of 
tb6  orders  were  considered,  each  part  of  the 
bloody  transaction  discos  ered  a  deliberate,  tr^^a- 
cberous,  and  an  im)M)iitic  cnu:lty,  Irom  which 
tliekinif  himself  was  not  altObCcther  exempt. 
Instead  of  the  terror  nhidi  it  was  meant  to  in- 
spire, the  horror  and  uni verbal  cxccraiion  which 
it  excited,  rendered  the  hiivhlaiiders  iiTLron- 
cileable  to  his  orovernnu^nt,  and  tin'  •jr'ivcni- 
ment  justly  oilious  to  his  sijttjects.  I  lis  frit  mis 
eudeavoureil,  by  the  plea  of  inadverlf->:oc  and 
haste,  to  tranhfer  the  blame  to  his  minisUM^  ;  and 
his  ministers  were  equally  earner  to  vinditait! 
the  orders  as  strictly  legal  |  ox  ^  auulogous  to 

VOL.  XIIL 


*  mivsioin  luniccfr<:ctum,  cunique  nobis  aliunde 
*■  satisf  actum  ^itdefacnluUibBS»?taptitudincpcr- 

letters  of  tiro  and  sword,  which  the  privy 
council  had  been  accMstor.icd  to  cfrant.  iiut 
uhen  a  second  order,  signed  and  c  Ksntcrsigned 
i)y  the  kio'^  with  such  unusual  precaution,  is 
combined  with  the  impunity  \^hich  his  minis- 
ters enjoyed,  no  doubt  can  remain  thiit,  however 
tlie  execution  mJ!;^ht  exceed  his  intentions,  the 
measure  wa3  net  concerted  vviiliouthis  know- 
l«li;e  and  previous  consent.  No  enquiry  was 
made  at  the  time,  no  punishment  was  inilicted 
afterwards,  on  the  authors  of  the  massacre. 
On  the  contrary,  it  is  asserted  that  the  officers 
most  active  in  the  execution  were  preferretl. 
The  best  and  perhaps  the  just  explanation  of 
the  transaction  is,  that  William,  beset  with  mi- 
nisters inured  to  the  sanguinary  iuea.sni-es  of 
the  former  govern meut,  was  betrayed  for  once 
into  an  net  of  cruelty  inconsistent  with  his  cha- 
racter, and  with  the  mild  aud  merciful  tenor  of 
his  reig^n." 

That  the  parliament,  which  met  in  Sep- 
temlicr  WVi,  omitted  to  investis^ate  the  Mas- 
sacre, he  ascribes  to  the  detection  of  Neville 
Pain's  corrcs^mndf^nce,  which  at  once  intimi- 
dated the  Jacobites  from  opposition,  and  indis- 
posed the  Presbyterians  (to  whom  their  esta- 
btishment  had  been  recently  restored)  to  thwart 
the  jjfovernmcnt,  w  bile  the  \Facobites  were  nlot- 
tin«c  to  subvert.  And  of  the  measiu'es  wiiicli 
were  in  1695  taken  as  related  in  the  text  con- 
cerninyf  the  massacre,  he  thus  writes : 

**  On  the  death  of  Hamilton  and  Queens- 
berry,  the  manpiis  of  Twec^lale  was  n|ipoiute  I 
loiiiiuissioner  to  parliatnent,  which  wa»iievi.'r 
sumuM>ned  except  to  provide  supplies.  Thu 
money  voted  li»r  new  levies,  hut  not  appro- 
priatLHl  in  the  former  session,  liad  been  unj.^ene- 
rou-;!y  divcriei!  to  otiicr  purpoiffs;  and  the 
li-oops  i:i!t-:iil'.'d  for  internal  delvnco  were  em- 
ployed to  recruit  the  retriments  abroad.  The 
nobility  were  thus  disnppitinied  of  commissioiis 
for  t!irmselv<;s  and  then-  ft  iends.  The  |)eonlo 
were  di'v^usicd  at  \V  illiam's  supine  inattention 
to  Sootlaud  ;  and  an  enquiry  into  the  ma^bacrc 
of  Gienco  r.as.si)  Idudly  d:?manded,  that  some 
extnu-rdinary  concessions  wtre  rc<;uired  from 
the  crown.  An  enquiry  was  no  sooner  pro- 
post?!),  than  tiio  parliumer.t  was  infonned  that 
a  commission  luid  hexii  issued  Vt  i(i\e8ti«^ate 
the  massacre ;  and  tiianks  were  rrturned  for  a 
mei^.bure  obviously  inteufled  to  supersede  a  pubiio 
«x;imination,  and  to  :H:iven  the  dHendcrs  from 
public  juftiee.  Jiut  the  result  of  the  enquiry, 
by  the  artifices  of  tht*  ministers  to  supplant  a 
riV.'d,  was  reported  to  parliament  at  its  repeated 
rcquir.t  ;  and  atrcr  a  clilijjent  invinjtigation,  the 
j^-uiU  of  ll;*'  nl:i^;.sacre  was  transferred  to  Dal- 
iyoi|ilL».  The  king  was  literally  tried,  and  ac- 
quitted, by  a  votc^  that  his  instructions  c«m- 
tainetl  no  warrant  fr.r  the  hlaui^hter  ;  but  the 
oifenders,  instca'l  of  being  surren>!t'iei!  to  |>ublie 
justice,  as  the  parliaiucut  ns^iiested,  wtre  par» 

8L  . 


88S] 


7  WILLIAM  IIL      Proceedings  in  the  Parliament  of  Scotland,      [88t 


'  sonarum  infra  nomiDatanim  in  fines  snpra  ex- 
*  presftos ;  sciaiis  igitiir  nos  nominasse  et  con- 
'  stituisse  tenoi'eqiie  pnesentium,  nomuiare  et 

doDcd  or  preferred.  Tlic  necessary  supplies 
and  leTies  were  provided.  The  episcopal 
clergy  were  permitted,  on  accepting  the  oaths 
to  Gfovemment,  to  remain  exempt  from  the 
jnris<liclion  of  presbyteries,  and  106  who 
were  persuaded  to  qualify,  retained  their  linngs 
under  the  protection  (»f  the  king." 

In  the  **  Complete  History  of  Europe,  &c." 
for  the  year  1707,  in  whicli  year  lord  Stair 
died,  is  given  an  encomiastic  account  of  him  ; 
to  which  is  appended  a  defence  against  **  two 
tbio{;;s  commonly  objected  against  this  earl." 
\yiththe  first,  ««that  being^lord  advocate  to 
king  James,  he  had  framed  a  proclamation  in 
S^tland  for  a  toleration,  wherein  the  king's 
absolute  and  dispensing  power  was  very  highly 
asserted,"  the  bloody  proceedings  at  Gleuco 
have  no  immediate  connection. 

'*  The  other  charge  against  the  earl,"  pro- 
ceeds his  adrocate, "  was  that  the  peremptoriuess 
and  seycrity  of  liis  lettei-s,  when  he  was  se- 
cretary of  state,  was  the  cause  of  the  bar- 
barous massacre  of  the  Glenco  men  ;  a  matter 
of  fact,  which,  if  considered  with  regard  to  liie 
merit  of  the  persons  or  their  number,  was  in- 
considerable, but  has  l)ecn  very  much  taken 
notice  of  by  all  the  writers  of  the  Hie  of  king 
William,  and  others,  partly  because  the  offi- 
cers entrusted  in  the  execution  of  a  military 
rommand,  did  not  only  exceed  the  warrant  they 
had,  but  broke  in  upon  the  unileniable  rules  of 
hospitality  ami  hninanity ;  and  paitly  be- 
cause the  circumstances  of  that  matter  have 
been  greatly  agijniviited,  to  scr\e  the  turns  of 
a  party  for  (lisparauincf  and  perseculinfj  the 
late  earl  of  Stnir.  The  matter  was  carried  on 
with  that  heat,  as  to  draw  the  late  kingf  >Vi|. 
liam  directly  into  question  in  the  parliament  of 
SScotland,  which  the  enemies  to  the  mvmory 
of  that  jrreat  prince  have  laboured  to  improve 
to  his  diMidvantage.  It  were  too  long  to  ac- 
count fur  llittl  here  :  as  for  the  king  himself, 
it  isriiliculoiis  i'or  menof  comm(»n  sense  to  ima- 
gine that  so  greet  a  prince  should  have  singled 
out  a  low  and  obscure  mean  sept  of  thieves, 
who  could  in  no  ways  either  be  an  object  of 
his  vengeance  or  jealousy,  but  as  they  were 
enemies  to  the  gi>vcrnmeut  ;  uor  can  any  man 
of  candour  and  in^t;nuity  imagine,  that  the 
earl  of  .Stair,  who  hud  neither  estate,  friend- 
ship, nor  enmity  in  that  country,  nor  »o  much 
as  knowledge  of  these  persons',  and  who  was 
uever  noted  for  crueltv  in  his  temper,  shouM 
have  thirsU  d  utler  the  blood  of  these  wretches, 
and  it  is  as  little  conceivable  how  a  commission 
under  the  great  seal  was  directed  to  no  ma- 
gistrates, nnr  <rouri  of  judicature,  nor  to  any 
j>ei-sons  haung  power  and  authority  by  law,  to 
enquire  into  this  matter  for  several  years  after 
it  was  past :  nor  how  these  entnisted  w  ith  this 
commission  came  to  tread  the  Mtry  steps  of  the 
court  of  iuqui^iiiivD,  in  having  taken  au  oath 


<  constituere  fidelissimos  et  dilectitiiiiiCM  noitroi 
*  Consanguineos  et  oinsiliarioe,  Joannem  mar* 

<  chionem  de  Tweddale  supremum  noMnim 

of  secresy  among  tbemselref  and  having  im- 
posed it  upon  tneir  clerks  ;  how  they  camt 
to  make  use  of  different  tools  lo  give  light  ti 
that  matter  (as  they  pretended)  more  espiectally 
Roman  Catholics  then  in  rebellioD,  ami  Glen- 
gary  in  particular  the  chief  of  them,  and  ma- 
nager of^  a  great  part  of  the  intrigue,  who  be- 
sides his  Catliolicity,  is  and  was  known  to  bi 
one  of  the  most  obstinate  enemies  to  king  Wil- 
liam's person  and  government  ?  Or  how  tbcst 
gentlemen  came  to  adventure  to  take  iesti« 
monies  concerning  the  honoor  and  life  of  uy 
sohject,  and  much  more  of  any  imployed  m  ha 
majesty's  service,  and  yet  moat  of  all,  whidi 
concerned  the  king's  honour  directly,  witboil 
giving  so  much  as  an  oppartunity  la  any  bsdj 
concerned  to  see  that  things  were  fairly  aid 
honestly  done,  or  to  justify  themselves  or  tlMr 
friends.  And  yet  all  these  drcunstancei  at 
no  less  undeniable  and  certain  than  Aey  in 
surprising. 

**  Wboi  these  inquisitors  bad  thus  prvpsrel 
matters,  reports  were  spread  of  great  iii 
strange  discoveries,  and  ttien  some  men  out  if 
zeal  for  the  king,  whom  the  enemies  cf  hiift- 
vemment  would  nave  loaded  with  these cniettMi^ 
moved  the  parliament  that  the  proceedhigiflf 
the  commission  might  belaid  before  the  Hoim^ 
to  which  the  king's  commissioner  was  pIcsMi 
to  give  very  ready  compliance.  A  just  defer- 
ence  to  that  great  assembly  forbids  too  parti- 
cular a  disquisition  of  all  that  past  upon  that 
subject.  Thus  much  is  certain  ;  the  thing  itself 
being  horrible,  some  body  was  to  be  bhmied. 
The  king  could  not  be  charged,  and  indeed  it 
is  undeniable,  that  though  his  royal  onlen 
were  given  after  the  breach  of  a  fiacificatioD, 
and  in  very  precise  terms,  yet  they  did  coo- 
tain  a  warrant  for  mercy  acconling  to  circam- 
stances,  and  it  was  not  possible,  that  the  king 
could  know  that  his  troops  were  receive<l  hos- 
pitably by  the  people  whom  that  warrant  prin- 
cipally concerned. 

*  ^  The  blame  then  must  lie  either  upon  tlie  se- 
cretary, the  king's  general  in  Scotland,  or  the 
ofHcer  that  executed  the  onler.  lo  lay  it  u|)oa 
the  otHc-er  that  executed  the  order,  where  indeed 
it  justly  lay,  ^%as  of  no  cousecpience  agaiotf 
the  earl  of  Stair,  and  did  not  answer  soaw 
men's  desi<,ni  :  to  lay  it  upon  the  general  «ru 
hard,  for  truly  he  had  been  prevailed  witb  to 
furnish  the  commission  with  a  good  many  ot 
the  earl's  principal  letters  and  the  king's  prin- 
cipal instructions.  And  though  the  dispeosii| 
of  the  mercy,  mentioned  in  the  king's  order, 
did  l)elong  to  the  genend,  and  so  the  exoM 
seemed  more  naturally  to  touch  him,  yet  tl» 
report  of  the  coiumission  licked  him  clean,  !■ 
the  barbarity  of  the  fact  consisteil  in  one  d^ 
cumstance,'\iz.  that  ofhcers  received  in  hos- 
pitality for  several  days,  and  kindly  enlertMi- 
ed  by  their  landloi-ds,  fell  upon  tbem  oM- 
pectedly  aud  murdered  them.  Now  the  goiBil 


S8S3  respecting  the  Massacre  of  Glenco. 

*  Cancellariuni,  et  Galielmuin  Comitem  d'  Au- 

*  nmndale,  etfideles  et  tlilectus  uostros  Consilia- 

*  rios,  JcNumem  Domioam  Murray,  Doin.  Ja- 


A.  D.  1695. 


[886 


beiog  mt  Edinburgh,  and  but  lately  returned 
trom  London,  the  oommissioii  presumed  that 
he  was  ignorant  of  the  troo|)s  being  friendly 
received  in  Glencoe. 

**  It  remained  that  the  earl,  then  master  of 
Stair,  must  be  guilty ;  but  seeing  what  was 
done  against  him  was  neither  by  way  of  pro- 
cess nor  sentence,  and  was  carried  with  so 
much  haste,  when  he  was  in  Flanders,  at- 
tending the  king,  that  there  was  no  time  leil 
for  publishing  a  case  in  his  defence  by  his 
friends.  And  that  a  case  being  printed  late 
that  evening  when  the  vote  passed,  and  some 
copies  of  it  being  delivered  to  some  members 
before  the  House  rose,  the  earl's  brother, 
though  a  member  himself,  was  fain  to  ask  for- 
giveness of  the  House  rather  than  be  sent  to 
prison ;  which  to  a  man  sickly  aud  weak  as  he 
was  then,  was  present  death,  besides  abandon- 
ing of  his  friend's  just  defence.  I  say  then, 
that  what  was  done  in  parliament  not  being 
done  judicially,  nor  by  way  of  legislature,  and 
during^  the  earl's  absence,  leaves  the  matter 
itiil  entire ;  and  not  to  enter  into  a  df'tuil  of 
that  whole  matter,  the  earl*8  friends  made  the 
following  remarks. 

*<  1.  That  the  orders  for  using  military  exe- 
cution against  Glencoe  were  not  so  mu«h 
as  countersigned  by  the  earl  of  Stair.  8. 
That  all  bis  letters,  as  well  tliose  which  ac- 
conapanied  the  orders,  as  those  that  pre- 
ceded the  military  execution,  made  mention  of 
the  power  the  general  had  to  shew  mercy 
according  to  occasion,  and  that  those  clauses 
of  the  earl's  letters  were  omitted^  in  the 
report  of  the  commission.  3.  That  the 
earl's  letter  writ  alter  the  execution,  or  a 
few  days  before  it,  from  L.ondon,  could  never 
be  the  cause  or  warrant  of  any  excess ;  be- 
cause it  was  impossible  in  nature,  that  those 
letters  could  come  to  the  general,  much  less  to 
the  knowledge  of  the  officers  entrusted  with  the 
execution,  seeing  the  post  in  those  places  with 
the  best  expedition  must  require  7  or  8  days 
in  coming  and  as  much  in  going.  4.  The 
wannness  expressed  in  the  earl's  letters  against 
Glencoe,  being  always  tempered  with  a  power  to 
the  general  to  show  mercy,  coidd  not  so  much  as 
be  me  occasion,  much  less  the  cause  of  the  ex- 
oenea  committed :  and  the  indignation  expressed 
even  iu  the  later  letters  afler  the  execution, 
was  yet  excusable,  upon  the  supposition  of  his 
being  ignorant  of  the  troops  being  received 
friendly  at  Glencoe,  which  was  more  natural 
and  easy  for  the  commission  to  have  presumed, 
tban  iMt  the  general  then  at  Edenburgh 
iboaki  have  been  ignorant  of  it.  5.  Another 
gnat  circomatance  which  aggravates  the  Iwr- 
Eaiity  committed  on  GUsncoe,  was  his  taking 
the  oaths,  bnt  as  to  this  it  is  to  be  observed, 
dtber  the  king,  nor  any  about  him,  had 
lit  intimation  of  it  ajt  grantinff  of  the 
aid  yet  npon  the  soppontioii  that 


'  cobum  Stuart,  advocatum  nostrum,  Adamum 
'  Cockbum  de  Ormiston  nostrum  Justinarium 
*  Clericum,  Magistrum  Arcbib.  Hope  de  Uan- 


they  might  come  in,  even  after  the  time 
for  taking  the  oaths,  and  lay  down  their 
arms,  there  was  power  for  dispensing  mercy 
both  in  the  order  and  in  the  letters  that 
related  to  it.  And  in  the  next  place  it  was 
unjustifiable  in  the  commissioners  or  inquisitors 
concerning  the  matter  of  Glencoe,  to  pretend 
that  they  proceeded  for  the  vindication  of  the 
government,  and  yet  to  draw  their  chief  lights 
from  Glengarry  and  Keppoch,  persons  noto- 
rionsly  disaffected  to  it.  While  at  the  same 
time  they  overlooked  the  council  books,  where 
they  would  have  found  at  large  the  rise  and 
circumstances  of  all  that  matter,  and  that  the 
king  having  entered  into  a  paeiticatiou  with  the 
highlanders,  then  in  arms,  on  condition  that 
they  should  submit  and  take  the  oaths  by  the 
first  of  January  1691-3,  and  that  this  pacifi- 
cation (which  was  traversed  by  diverse  iute- 
rests  well  known  to  some  of  the  inquisitors) 
not  being  likely  to  hare  all  the  desired  effect ; 
tiie  king  put  out  two  very  solemn  proclama- 
tions, intimating  that  after  tlie  day  none  of  the 
rebells  should  be  received  into  mercy,  but 
treated  w  ith  tlie  rigours  of  war ;  so  that  neither 
Glencoe  noV  any  of  them,  had  any  reason  to 
complain  of  unfair  dealing.  6.  By  the  story, 
as  it  is  pieced  together  by  these  inquisitors,  it 
is  very  plaia,  that  old  Gfencoe  did  nut  come  in 
till  the  end  of  December,  the  day  indeed  tliey 
thought  fit  to  oinit  for  reasons  best  known  to 
themselves.  When  he  did  come  in,  he  did  not 
offer  himself  to  any  one  impowered  to  tender 
the  oaths,  but  old  colonel  Hill  governor  of 
Inverlocby,  who  told  him,  he  had  no  such 
power.  This  governor  being  the  person  by 
whom  any  order  could  be  put  in  execution, 
Glencoe  according  to  his  cunning,  tlioug^t 
that  if  he  kept  a  little  correspondence  with 
him,  without  directly  submitting  to  the  govern- 
ment, he  should  be  safe,  but  to  make  alt  sure, 
he  was  forced  to  make  a  step  further,  and  some 
days  aAer  the  time  went  to  the  sherifPs  deputy 
of  Argyleshire,  where  lie  took  and  subscribed 
the  oaths,  and  got  a  certificate  at  the  bottom  of 
the  paper,  of  his  having  taken  them  of  that 
date  from  the  sheriff's  deputy  which  was  in- 
trusted with  himself,  and  was  sent  by  him, 
with  his  son,  to  be  presented  to  the  privy  cimn- 
dl.  But  they  haveing  [lositive  orders  to  admit 
of  nobody  after  the  day,  the  elcrks  would  not 
receive  the  eerdticate,  and  these  were  sufficient 
warnings  for  Glencoe  to  have  made  his  appli- 
cation to  the  general  or  to  the  council,  to  have 
his  case  represented.  But  having  some  de- 
pendence upon  his  intelligence  with  the  gover- 
nor of  Inverlocby,  and  as  it  appears  being  wil- 
ling to  play  fast  and  loose,  he  was  content  to 
keep  hb  oaths  iu  his  pocket,  and  to  make  a 
fair  appearance  of  friendship  during  the  winter, 
that  he  might  be  safe  at  home  till  it  was  time 
to  go  to  the  field ;  nor  will  tliis  subtilty  seem 
anyways  a  thing  extraordinary  to  penooa  thai 


887] 


7  WILLIAM  III.       Proceedings  in  the  Parliament  of  Scotland^ 


*  keiller,  el  Dom.  GuUel.  Ilamiltonecle  White- 
<  law  SeaatorcB  nostri  Collc|{u  Justilias,  Dom. 

*  Jacobuni  Ogilvy,  SoIUcitatorcm  nottram,  et 

are  conversant  with  the  fii^ius  of  that  sort  of 
people.  Ju  this  state  of  affairs  some  fo<»t  were 
sent  from  tlic  garrison  of  Invcrlochy  to  quarter 
in  Glencoe,  \%hich  does  not  appear  to  liave 
been  by  any  order.  These  troops  Glencoe 
feceire«l  with  ail  tiie  appearances  ot  friendship, 
and  the  officer  linvinf^  received  his  orders  dur- 
ing the  time  he  was  there  entertained,  had  not 
resolution  or  honesty  enough  either  to  declare 
fair  war,  or  lay  down  his  commission,  rather 
than  imbrue  his  hands  in  the  blood  of  his  land- 
lord and  his  children,  but  chose  to  take  the  op- 
portunity of  an  order  given  by  persons  wholly 
Ignorant  of  the  hospitality  and  submission  of 
these  unhappy  wretches,  and  executed  it  in  a 
wav  that  is  fur  ever  unjustifiable,  in  this, 
and  this  onlv,  consisted  the  atrocity  of  that 
matter,  and  liuil  the  inquiry  been  directed  to 
find  out  tniiy  where  the  matter  lay,  tbe  officers 
had  r*:ceiveil  <  omli^ii  punishment.  It  is  true, 
tlie  report  of  the  commission  does  charge  these 
officei-s  for  their  behaviour,  but  as  the  report 
bore  hard  in  Inyiii;;  the  blame  where  it  was 
not,  the  king  suspoctttl  the  sincerity  of  the 
whole,  and  nothing  followed  upon  it. 

Lastly,  tlio  ke(*«mess  and  asperity  that  ap- 
pears in  the  f.'uil's  letters,  proceeded  from  a 
cause    very  ditlirent    from    what    his  ene- 
mies have  endeavoured  (o  possess  tlie  world  of; 
and  the  truth  ol'  it  is,  hu  had  pretty  good  rea- 
sons to  wish,   ilu't  if  the  hi;;h landers  should 
break  the  pacilicution,  and  draw  u|)on  a  whole 
country  llic  severity  and  rnicUies  of  war,  it 
sliould' rather  lijht  upon  an  ohsoure  small  sopt 
oftennantr],  curisi<ierablc  fctr  nothing  but  their 
noted  robbci'ics  at  id  murders,  who  being  treated 
with  the  ritrouis  oi' war  liiiijht  prorare  an  easy 
siibuiiKsioi)  iVoiii  the  rt-st.     An. I  the  carl  was 
the  more  ccnict  rncd,  bucamc  he  was  thought 
to  have  a  coiisitb  rable  part  in  a.tvisini;  the  pa- 
cification, whcreoy  tiit^  broken  and  desperate 
men  in  the  hiubUnds,  s^iuie  whereof  were  in 
reheliioii.  cvtn  heiore  k\wr  James  went  away, 
and  had  defeated  a  )»arty   of  his  troops,  ulio 
were  comir.aiidvd  to  assi^t  in  e.\rcuting  of  a 
sentence  upon  a  civil  contract,  mi^ht  lie  brought 
in  to  be  g(>oil  siii'ji.4ts,  und  to  ha\e  lib<?riy  and 
properly  in  ti;i.r  native  coitolry  :    but  for  this 
r.oun>el  ti.c  cirl   wa-i  vtrv  liii-riiSv  bbunetl  by 
tlie  I  ncniUs  of  the  goveniiJit.U,  In-eanse  it  iii- 
dtod  broke  Jbeir  inurist. .  r.oi"  li:i\c  tiiey  e\er 
madi*  i.vy  coiisiderable  app^siKisicc  since  ;  and 
b}'  olh;;rs,  because  the  ti:ln'/  v\as  nut  done   by 
then:.     And  these  people  did  not  fii.l  to  solicit 
the  late  king  to  seveii-ics,  and  to  tlivparavrcthe 
pacification,  as  beino-  ^cry  «lislionom'abIe;   and 
npiMi  li'atoccnsiup  ll»c  merits  of  (ikncoe  were 


*  Adamum  Drummond  da  Mcggim  (qa 
'  quinque  Numerus  erit  legitimui,  «c  cum  po- 
'  testate  lis  Clericum  suum  eiigendi)  CorniniF 

strange,  that  ever  the  kioff  or  hii  miiiislcn 
should  have  been  suspected  aecsessary  ta  ii 
mean  a  cruelty." 

Sir  John  Dairy mple  in  bii  relation  of  Slsir, 
says,  tliat  the  scheme  for  cutting  off  by  tin 
means  of  «*  Letters  of  fire  and  sword,  an  io- 
human  but  illegal  weapon,"  all  the  highhal 
rebels  who  should  not  take  the  oaths  wilkia 
the  time  prescribed,  was  suggested  by  M 
Breadalbane,  adopted  by  Dairy  mple,  and  «- 
sented  to  by  the  king.  Aad  he  adds^  tkil 
«'  Glenco  with  all  his  clan  was  peculiariy  ob- 
noxious to  lord  Breadalbane,  because  there  hii 
been  frequent  wars  between  their  people.  And 
sir  John  Dairy  m pic  thought  that  mercv  woaU  ^ 
he  thrown  away  upon  them,  because  they  hm 
been  in  the  irreclaimable  habit  of  making  b- 
cursions  into  the  low  countries  for  pluBder, 
and  because  he  hail  himself  obtained  a  psrdoi  j 
for  them  from  king  William,  when  one  of  Iht 
tribe  having  discovered  his  accomplices  io  a 
crime,  the  rest  had  tied  him  to  a  tre^  u4 
every  man  in  the  tribe  had  stabbed  him  with  i 
dnrk,  Glenco  the  chieflain  giving  the  M 
blow."  I  perceive  not  that  Dairy  mple  itftn 
to  any  distmct  authorities  ibr  this  circauMtiB- 
tial  account,  the  latter  part  of  which  is  iobk- 
what  mdistinctly  expressed. 

Burnet  states  that  the  proposition  of  nilj" 

tary  execution-  u|)on  the  Glenco  men  crip- 

nated  fi-om  Breadalbane,  and  that   the  ir- 

vere  order  concerning  the  separation  of  that 

clan  from  the  rest  of  the  highlanders,  mis 

signed  by   the    king,    without    any    inqni^ 

I  about  it,  **  for  he  was  t<io  apt  to  sign  |iapcif 

I  in  a  hurry    without    examining  the    impor- 

I  tance  of  them;"  the  consequence  of  his«nf- 

I  fering  that  sort  of  business  to  accumulate,  till 

it  became  necessary  to  disjiatch  a  great  d«l 

I  in  a  very  little  time.     And  he  refers  the  king^ 

permittm;:  the  matter  to  esca|>e  public  iovnli- 

gation  to  the  o|ieration  of  his  tenderness  upon 

'  discovering  how  many  had  participate<l  in  the 

transaction. 

In  Dalrymple's  Appendix  to  part  9,  book  6, 
he  has  inserted  some  curious  documents  reli- 
tive  to  the  treaty  with  the  Highlanders,  and 

,  (jihcr  proceeilings  about  this  time  respcctiw; 

■  tbeni.     The  fulFowing  arc  those  most  neiily 

I  councctetl  \^  iih  Glenco : 

i 


Secretary  Slair  to  Lot  d  Breadalbane. 

My  lord  ;  London,  Dec.  3,  IGOI. 

**  Vours  <if  the  ICth  |»ast  was  very  uneaqf  8 
it  is  a  little  qualified  by  that  of  the  19tb^ 
set  iif.rtli  to  tbe  lull,  and  a  certain  pvi-son  was  '  know  not  by  what  I  was  moved  to  write  toy* 
i-uA  comnii^vif!>'T  to  manage  that  nftair  at  \  eitjht  days  at^o,  as  if  I  had  known  whstlfc^ 
court,  who  W.IN  witness  at  all  the  deliberations  i  letters  brought  me  ;  and  though  what  I  WjJ 
before  tbe  iiir.iinry  ordor  was  drawn  up.  then  was  only  to  hasten  raAtters,  the  hjseifcf 


To  concluiie,  it  is  plain  to  any  man  who 
•oosiders  the  matter,  that  it  must  appear  very 


being  of  ill  wnsequence,  yet  I  never  L^  ^ 
there  was  daogtrr  in  the  miacarryiiif  tf  Jl   i 


m 


respecting  the  Massacre  ofGkneo. 


A.  D.  1695. 


[890 


lioDarios  noftros,  pro  capiendft  precogDitione 
^  Inquisitioiieiii  faciendo  de  Ctede  pnedicta, 
per  quoa  et  qaomodo,  et  per  quam  Coluratam 


1 1  was  desirous  of  your  return,  apoo  the 
MsluDg  of  your  ,De|^iatioo ;  but  without 
lat,  or  the  having  prevailed  with  one  man,  is 
hat  I  never  wish  to  see.  I  am  convinced  it  is 
either  your  fault,  nor  can  any  prejudice  arise 
>  their  majesties  service  by  the  change  of 
Mtsures,  bat  only  ruin  to  the  Hit^hlanders ; 
Qt  yet  at  the  present  settlement  it  would  do 
'ourself  and  yonr  friends  no  advantage.  That 
lOsoD  you  suspect  to  have  blown  np  the 
li^Leans.  hath  great  access,  and  wanUj  nothing 
Mt  such  an  occasion  to  introduce  him,  and  to 
■akc  him  in  a  manner  necessary  to  do  what 
yoa  cannot.  I  doubt  not  all  will  come  right ; 
bat  though  it  is  nectfssary  yon  do  seem  to  come 
Utber,  that  tliey  m»y  nie,  yet  you  had  not 
bnt,  ID  my  opinion,  leave  it ;  and  hei-e  yuu  can- 
Bitbe  belure  our  sctilement^s  1  ap[irehend,  is 
iiicaiiiness.  I  shall  not  repeat  my  thoughts 
•f  vour  doircd  Gouiin;  I  perceive  half  sense 
will  play  a  double  game,  but  it  requires  solidity 
li  cmbnce  an  opportunity  which  to  him  will 
le  lost  tor  ever ;  and  th<*  (ram'son  of  Inverlocliy 
■  litde  worih,  if  he  can  cither  sleep  in  his  own 
(Mftds,  or  if  be  ever  be  master  there.  I  rcfient 
Mthiog  uf  the  plan ;  but  what  account  can  be 
fiten  why  Argyle  should  lie  forced  to  part  with 
Anjoamurchan,  to  which  Lochiel  hath  no  more 
PRInice  than  I  ?  yuu  cannot  believe  with  u  hat 
Mferency  the  king  heard  this  matter,  which 
ti  alarm  and  surprise  us  all,  and  confirme<l 
the  bold  aswrtioiis  of  others  against  you.  1 
hops  you  will  be  able  t«  document  sir  E wen's 
Ml  Mr.  Jolm  >1 'Lean's  commissions,  which 
■n  nwesbary  for  your  vindication.  Lieut,  col. 
HI,  deputy  governor  of  Inverlocliy,  is  a 
man,  you  may  make  use  of  him.     I 

i  be  ghid  to  tind,  bt^bre  you  get  any  |>osi- 
iirconJer,  that  your  business  is  done,  fur  shortly 
*«vill  conclude  a  resolution  for  the  winter 
CMnign.  I  do  not  i'ait  to  take  notice  of  the 
huness  of  your  offer  t<i  assist.  I  think  the 
ciu  Donnell  must  be  rooteil  out,  and  Liichiel. 
We  the  M  Jicans  to  Argyll.  But  before  this, 
Um  and  Argyll's  regiment,  with  two  more, 
^•irid  have  been  gone  to  Fbiuders.  Nr»w  uil 
Mopi,  and  no  more  money  from  £nir|and  tu 
cttttiaia  them.  God  knows  whether  the 
ISittOO/.  sterling  had  been  better  employed  to 
«tHe  the  Highlands,  or  to  ravage  thein;  but 
jce  we  will  make  them  desiierate,  i  think  we 
■ouM  root  them  out  before  they  can  ;;ct  that 
Jjdp  they  de|)end  upon.  Their  doing,  nfier 
*0);gKK.  J.  ullowaiire,  is  wortie  than  their 
ohnaacy  ;  lur  these  who  lay  down  arms  at  his 
ttmnand,  will  take  them  up  by  his  warrant. 
Bennired  no  papist  will  lie  exe.'iipted  from  this 
^uf  allegiance;  and  in  Ireland  they  nuist 
Jo  it,  by  act  of  parliamint  now  mude,  since 
iKupremacy  is  out  of  it.  You  may  nsjiure 
^•■seff,  in  our  settleu>ent  of  gorcrninent,  you 
"2*"t  fbrgot  by  yonr  friends,  though  I  imist 
<■  5M  wRw  are  again  emboMened,  who  hail 


*  Attthoritatem  commissa  erat,  atqne  in  ordine 
'  ad  detectionem  ejusdem  cum  poiestate  dictis 

*  Commissionariis,  reqiiireadi  omnia  Warranta 


given  over  to  object  against  yoi:r  h^ing'  liV 
sumed.  My  dear  lord,  adieu. 

Secretary  Stair  to  Lord  Brtadalbunc. 

My  lord,  London,  Dec.  3, 1691. 

<•  The  last  post  brout;ht  Tarbat  letters  from 
Glengarry,  or  from  his  lady,  and  Korry  upon  a 
message.  Glengarry  hail  sent  to  him  to  £din- 
burgli.  This  haih  furnished  him  with  oppor- 
tunity to  discourse  the  king  on  all  these  matters. 
He  tells  me  he  hath  vindicated  you  ;  only  <he 
share  that  the  McDonalds  get  is*  too  little,  and 
unequal  to  your  good  cousins,  (really  that's 
true)  and  he  would  have  the  money  given  to 
Glengarry,  and  leave  Argyll  and  him  to  deal 
for  the  plea.  He  thought  his  share  had  only 
been  1,000/.  sterling.  I  have  s;itisficd  the  king 
in  these  (xunts,  that  his  share  is  1,500/.  ster- 
ling, and  that  he  nor  none  of  them  can  get  Che 
money,  if  Argyll  consent  not ;  tor  that  destroy! 
all  that  in  gt>od  in  the  settlement,  which  is,  to 
take  away  grounds  of  hereditary  fiends  :  to  bo 
brief,  I  w'ill  assure  yon  that  I  shall  never  con- 
sent any  body's  meddling  bhall  be  so  much  re- 
SfDrded  *  as  to  get  any  of  }our  terms  altered, 
by  the  next  1  expect  to  hear  either  these 
peo|de  are  come  to  your  hand,  or  else  your 
scheme  for  mauling  iheni ;  for  it  will  not  delay. 
On  the  next  week  the  <«liiiH.'rs  w  ill  be  dispatched 
from  this,  with  instructions  to  (ufiirrison  Inver- 
t;arry,and  J)iicliait'sre;.iment  will  join  Leven's, 
uhich  will  be  force  enough;  they  will  have 
petards  and  s<»m«  rannon.  I  am  not  changed 
as  to  the  ex|iei1>ency  of  doing  things  by  the 
easiest  means,  and  at  Irisiirr,  iuit  the  madness 
of  these  people,  and  tlioir  ungratefulness  to 
you,  makes  me  plainly  sh;  there  is  no  reckon- 
ing on  them ;  hut  dclenda  etc  Carthago.  Yet 
who  have  accepted,  and  do  take  the  oaths,  i^ill 
be  SHte,  biu  de^r\  ir  no  kiudnes.^  ;  and  even  in 
that  case,  there  must  be  hosiajis  of  their 
nearest  relations,  tor  there  is  i  o  regarding 
men's  woids  whom  their  inierest  cannot  oblige. 
Menzies,  Glengarry,  and  all  of  tlieiii,  have 
written  letters,  unil  taken  pains  to  nuke  it  be- 
lieved, that  all  you  did  %t:is  i\h-  the  iuterest  of 
king  James.  Therefore  l(Hik  on,  ;ind  you  shall 
be  satistied  of  your  reven;j>e.     Adieu. 

Lord  BiUi'U  Hamilton  to  the  Duke, 

London,  9th  Jan.  1692. 

*'  I  know  not  if  the  ni'us  of  tiie  Highlandeni 

I  taking  the  oaths  will  put  a  titop  to  the  marching 

'  of  the  ti oops  that  were  designed  for  that  |iur- 

I  pose,  but  I  btrlieie  it  will  not ;  but  that  the  or  • 

'  ders  for  their  campaign  w  ill  still  go  on. 
I 
Propo$al4  concerning  th*    Ilightandert^  by  lord 
Brtadattnine, 

**  The  Ir.st  opinion  given  to  your  majesty, 
<ronceniiiig  tlii>  setiliu'*  of  the  Highlanders, 
having  had  gomi  success,  by  their  submittuir 
to  your  government,  laying  down  aniM^  «a 


Ml] 


7  WILUAM  lit       PrMmJings  in  ike  Partmmtfd  nf  Sc^thnd^ 


*  ieij  ftireelioncAj  i\\%m  eaten  (is  cor>ee*4«  fuere, 

*ili   ra  ftE)l«dku  Negtrtium  liBbuere;    atqwe 

taking  til  a  oBlh  of  aJle£^tanL'« ;  it  remains  itow 
to  |lit»poio  to  jrour  majesty,  bovr  to  make  tbeni 
UMful  ami  serviceable  tu  ^loii^  aud  to  Uke  up 
wu  for  your  Winjcsty  In  case  of  any  insitrrec- 
linn  fit  home,  ^x  inrasion  from  abroad,  or  that 

J^imr  majesty  ibink  it  tit  lo  u»e  some  of  tbcoi  in 
breif  a  parti. 

**  lit,  I'be  law  iibltg&i  rhe  tiaUoTi  to  rite  in 
ami«  w\wM  required r  and  tn  ooittiaue  in  arms 
forty  ilayi. 

**  ^d^  Tliat'  your  fnaje«ty  by  Tirtae  of  ibm 
faw,  ortiatii  alf  tbe  btg^hia^id  laridlorxl^  and  cbit^t- 
taiajilo  bave  sucb  a  projjoriiOfl  of  men  nsadykms 
iheir  oatattMi  and  interest  mtiv  eaflily  faiae'and 
providflf  without  making  Ibi*  lety  tno  h^sk^y  iW 
tbcoi,  ffliicb  lery  may  be^  acci>rding  to  tl*e 
calciilatinn  made  tbereof,  four  tbouaand  good 
and  elf^etire  men. 

<*  .ad,  Tb^t  tbese  men,  both  officers  and  sni  * 
dierSf  be  enrnUed,  and  tbett^by  ready  Ig  b«  cat- 
led  for  wbro  rtqnired.     And  to  i1>at  end, 

*'*'  4ib,  Tbitt  yonr  mstjcsiy  ^i^c  commLsslon 
to  «ojne  prtndpnil  man  iti  tbe  big'bland^,  to  ba?e 
the  cliarge  of  raiding,  eurolliiii^,  and  bringing 
Ihem  In  Ibe  fi^ld,  and  placing  of  t\i  inlerior 
ofQoun  orer  th<rmf  accurdiu^  to  Ibe  q umber 
Ibat  every  tribe  seodii  out. 

*^  ^lb|  Thai  Ittu^  principal  person  bave  the 
pay  of  a  gejieral  offieer,  but  tbal  oajy  when  be 
ifl  employ  fisd,  t4i  iiefray  bi«  ejcjience  \  who  is  to 
rec*»ive  bis  orders  from  yonr  tnajesity,  or  your 
govcfrnmentH,  or  from  tbe  cotutiiaiider  iti  chief 
l^f  your  standing  forces  in  tliat  kingdom. 

^'  6tb,  Tiiat  Locb^eal,  in  r^peci  of  bii  ex- 
perience aD')  akillf  and  Iil§  interest  in  the  other 
daw  besides  bis  oif^Uf  may  have  the  neict  com- 
mand 01  er  this  mibtia,  and  have  the  pay  of  a 
eolooul  v^hiW  be  'v&  eitijduyed^  in  regard  be  is 
ambitions  lo  serve  your  majesty  i  aitd  be  is  a 
proteilant. 

**  7th»  That  there  b^  forty  captains  setorer 
the  fbur  tboysaad,  uf  sucb  as  every  trilie  may 
bare  one  of  ibeir  owo  to  commaod  ibem,  and 
these  to  bave  a  gratuity  at  Ibeir  return  liome, 
alier  tliey  ai^  dia^mistted,  aa  they  bi^imve  ibeto- 
i«lr^,  and  do  k«»p  their  men  in  good  disci < 
pbne  I  and  tbis  gratuity  to  be  bestow ei I  by  ibe 
adrice  of  your  majesty'^  goremmen^  the  com- 
maoderin  thief  of  yovirtbrces,  and  of  the  per- 
son wbo  has  the  principal  command  uf  the 
lugidandcfs.  Tbiit  as  soon  a^^  your  majesty 
settJ^ji  yonr  gov  eminent  of  that  kingdom  ibese 
ttvo  cdfiiuii^iiiDni^  he  given,  that  I  bey  may  imme- 
iliatdy  there rfter  go  akiul  tbe  eurolhog  of  the 
men,  accordinj^  to  tbe  prnportiima  to  be  charged 
by  nrockimationou  every  Jaiidiord  and  cbietUin, 
to  ne  ready  nben  calJed  for. 

^*  8lh,  As  this  establisbment  will  enconrage 
Ibe  high  land  erji  to  be  faithful,  and  serve  your 
majesiy,  being  commanded  by  persons  of  loeoa- 
ieives,  and  in  vrhom  your  majest)  may  con- 
ftde  I  HO  it  wiU  esEtremely  discourage  such  aa 
design  to  giv«  disturbance^  to  tbe  peace  of  lb  at 


'  eiiam  Testes   prnul  ueec«Mrittm  mte 

*  *i*e  per  eonim  Jurameuta,  sivc  De 

^  et  tunc  postea    dicti   Commisstoiiarii  mihtf 

kingdom,  and  io  embarrass  your  g^tetmoKit 
there,  when  tbe^  iind  that  your  majcily  \m 
engaged  a  formidable  for<^'  of  bigfalaato 
ready  to  fmtl  on  them,  contrary  to  tbeif  ei*i» 
Utton,  and  endeavours  of  keeping  Ihem  fpoa 
coming  in. 

**  9t1i,  Your  majesty  has  the»e  f<>rc«ft  wnbe4  ^ 
any  obargei  except  for  a  tew  oncers,  and  tl4' 
only  when  em  ployed  ^  and  that  but  for  a  ihtfl^ 
time«  wbicb  will  draciiss  aoy  eommoiitkn  aa 
be  in  that  nation  ;  and  it  may  be  aswfted,  SM 
there  cannot  be  better  militia  men  than  t^y  w^ 

*^  lOlb,  Your  majeity  baj»  ti»l  a  fiio4  bllai 
kingdom t  nrtr  can  have,  to  maintain  fthore  Ibml 
tbousand  sUnding  forces,  whicb  arc  ao  few^tbit  ] 
it  vi  a  great  encouragement  for  tA\  ill  dciim 
especially  in  your  majesty's ab*enee.     Rmtiui 
additioo  of  four  lUonsaod  highlanders  wdl  ail«J 
tbe  case  exciiedingly,  will  ^treni^^alien  your|roj| 
r  ern  ment,  encou  rage  you  r  standi  1 1  g  4  or  cm,  i 
disap|H)int  your  enemies ;  for  thpy  may  bii 
ordered  as  to  be  ready  lo  march  oti   few  iikf 
adrertiaementy 

^*  Uih,  It  will  be  fit  there  be  a  majoc  or  I 
in  eotiftaid  pay^  for  attending  and  looking  i 
these  forcetp  and  lo  serve  a.^  adjutaiita  Ivr  i 
ing,  bringing  ibern  to  the  field,   and 
them  from  prejudicing  the  countries^ 

*^  i2tb,  lliatin  purs  nance  of  this  dfli| 
and  that  the  dtsconiented  disaffected  partiat  i 
that  kingdom  may  see  thai  your  majesty  wtll  Inut 
and  emjiloy  the  high  landers,  (if  these  ibrce  jwi 
to  it)  your  tn^jesly  will  be  pleased  to  djspaick 
Loebziel  home,  contented,  and  obliged  to  ^oor 
majesty's  royal  bounty:  it  is  but  a  smalUuia 
be  pretends^  and  your  majesty  will  find  it  very 
well  bestowed. 

^M3tb,  In  ease  your  majesty,  at  anv  tiim^ 
tbink  it  tit  to  employ  a  regiment  of  highlandlit 
abroad,  they  may  be  detacbt^d  out  of  this  M| 
of  men  ;  and  in  that  caae^  it  is  humbly  odena 
to  your  majesty,  that  Ibey  be  allowcMl  to  i0l 
Ibeir  own  apparel,  and  ibeir  own  arms,  and  H 
be  disciplined  in  their  own  fashion,  and  tofce 
commanded  b^  prsons  having  tlieir  Janguifc, 
and  who  have  mtere^t  with  tbem^ 

Lki  ojChiiftmm  ta  mhUh  the  PrQpoi&k  rtWi. 


Theearlof  Seafort,     -  - 

The  viscount  of  Tartiatt  - 

The  lord  Loviti,      -    -  - 

The  earl  of  Sutherland,  - 

The  lord  Khea,       -     -  - 
Tbe  laird  of  Ballingoun, 

Tbe  laird  of  Fouls,      -  - 

Tbe  laird  of  ^tragla^e,  - 
Tbe  laird  of  tilenmoriston, 
Th e  lai rd  of  M '  1  ntusbt 
M^Fbersou  of  Clunie, 

The  laird  of  Kilratork,  - 

The  laird  of  Grant,       ~  - 
Tbe  laird  of  Balmdakiclit 


-  -  » 

-  -  t» 

-  -  101 

-  *  m 

-  ^  m 

.  -  30 


w 


93J 


reifecting  the  Massacre  o/Glenco. 


A.  I).  1695. 


[894 


tnnsmitteDl  verum  statum  rei  antedicte,  una 
cum  Probationibus  et  Tettimoniis  coram  ipsis 
adducendts,  ati  post  debitam  et  plenam  infor- 
mationciD,  neceaiaarias  Directiones,  eatenus 
ooncedcmns  prout  nobis  ooDgnium  Tidebitur. 
In  cQJm  Rei  Testimonium,  pres^ntibus,  magr. 
nam  Sisrillum  nostrum  appendi  raandavimus. 
'  Apod  Aniam  nostram  tie  Kensinf^on,  yigesi- 
'  mo  none  die  Mensis  Aprilis,  Anno  Domini, 

Tbe  duke  of  Gordon, 300 

llieearl  of  Mar, 300 

TkmaniiiisofAtholl, 300 

tbe  laird  of  Ashintullie,        ....  SO 

Tin  laird  of  Weem, 50 

TIk  laiitl  of  Gamtully, 50 

llelairdofStrowan, 30 

1W  earl  of  Perth, 150 

Tlw  earl  of  Murray, -  100 

n«  earl  of  Mouteatb, 100 

fkt  marquis  of  Montrose,     ....  150 

IW  taint  of  Liiss, SO 

k  laird  of  Maciarlane,    .....  30 

"heearlof  Argyle, 500 

\it  earl  of  Breadalbaue,        ....  250 

b«  laird  of  Calder,    ......  lOO 

be  lain)  of  N«  Lane,        100 

h«  laird  of  Locheal, 150 

he  emplane  of  Clanronald,    •    .    •     .  lOO 

ir  Donald  M'Donald,  of  Fleat,      -    -  100 

li«  laird  of  M'Leod, 100 

he  laird  of  Glenj^ry,     .....  lOO 

he  laird  of  M*Finzony,        ....  30 

[^Donald  of  Keppocfa, 50 

h«  laird  of  Appme,        .....  50 

h«  tutor  of  Appine,       .....  so 

h«  laird  of  Loclibouy,    .....  so 

^  of  ike  Highland  Chieftain^ $  CommUsiom 
to  treat, 

««1  €>ol.  NacDooell,of  Keppoch,  doth  here- 
f ,  in  my  own  name,  and  in  name  of  Ranald 
I'DoneD  of  Insh,  Ronald  M'Donall  of  Fronts, 
^tkl  McDonald  Coldonarffe,  £neas  M*Do- 
A  of  Bohurtmy,  £neas  M*Donell  of  Kill- 
jihooatt,  JEneas  M*Donell  of  Tulloch,  Alex. 
t^Donell  of  In?eroy ,  Neil  Keiine<ly  of  Kearu- 
iftn,  Alex.  M'DonellofTinioderish,  and  the 
m  of  my  kinsmen  and  friends,  earnestly  de- 
re  and  request,  impower  and  commissionate 
le  right  Don.  John  earl  of  Breadalbane,  to 
felt  ami  conclude  with  the  present  govem- 
iiBt,  ibr  Drocnring  to  me  and  my  foresaids 
imda  sucli  lending  and  concessions  as  be  may 
hiaiD  from  tbem;  hereby  promissing,  upon 
ijr  oath,  in  my  own  name,  and  for  them,  that 
•ad  the}'  shall  stand  and  adhere  to  such  terms 
t  bis  lofuship  will  procure  for  me  and  them. 
«  witness  whereof  I  have  written  and  sealt 
bir  presents,  the  twenty- fourth  of  June,  1691. 
•t  Coll.  Macdo2uld." 

^  of  ike  Highland  Chuflain^i  Obligations  to 
keep  I'tace. 

••  1  CoU.  UackDondlof  Keppoch  doth  for 
ifMU;  and  OB  behalf  of  RmMdd  Mwkdooald 


*  Millesimo  Sexccutesimo  Nona(;^esinio  quinto 

*  Annoque  Regni  nostri  Septimo. 

<  Per  Signaturam  Manu  S.  D.  N.  Regis  su^ 

*  perscriptain. 

« Written  to  the  Great  Seal  and  Reg.  May 

<  20, 1695.  «  Don.  Raxnald,  Depnt. 

*  Sealed  at  Edinbiiigh,  May  SO,  1695. 

^Jo.   DiCKSONB.' 

of  Insh,  Ronald  M'Donald  of  Fensett,  Alex. 
M<Donell  of  luTeroy,  Donald  M'Donell  of 
Cleonaige,  iEneas  M'Donell  of  Bohuntine^ 
£ncas  M*DoneU  of  Killiehonat,  £neas  Mao 
Donell  of  Tulliocb,  Neil  Kennedie  of  Leonur- 
hane-more,  Alex.  Kennedie  of  Leoruthan-beig, 
Alex.  Mac  Donell  of  Firrnadross,  £neas  Mac 
Donell  of  Auchnacoichine,  and  all  the  rest  of 
my  kinsmen,  friendfl,  and  followers,  engage, 
on  ray  faith  and  word,  that  I  and  they  shall 
submit  to  the  present  govemment,  live  peace- 
ably, and  commit  no  acts  of  hostility  nor  de- 
predations, norjoin  with  any  forces  from  abroad, 
or  within  the  country,  to  commit  any  such  acta* 
until  the  first  day  of  September  next,  providing 
that  such  proposals  and  terms  as  shall  be  made 
by  the  carl  of  Breadalbine  to  tbe  present  go- 
vernment be  granted  to  me  and  those  above- 
mentioned,  against  the  foresaid  day :  providing 
also,  that  no  act  of  hostility  or  depredations  be 
committed  against  me,  or  any  of  my  said  friends 
or  kinsmen,  before  the  abovesaid  first  day  of 
September  next.  To  these  conditions  I  do 
hereby  oblige  myself  to  stand  and  adhere:  In 
witness  whereof  I  have  written  and  subscribed 
these  presents,  the  S4th  of  June,  1691. 

"  Coll.  Mackdonald.'* 

"  There  is  a  tradition,  whether  true  or  not 
I  know  not,  that  when  lord  Notlingham  after- 
wards wrote  to  tord  Breadalbane  to  account  for 
tbe  13,000/.  which  had  been  given  him  to  be 
divided  among  the  Highlanders,  he  answered 
the  letter  in  these  wonu :  <  My  lord,  the  High- 

*  lands  are  quiet:  the  money  is  spent:   and 

<  this  is  the  best  way  of  accounting  between 
'friends.'" 

But,  according  to  Burnet,  Breadalbane  hsd 
honestly  brougrht  back  the  money. 

The  following  anecdote  is  highly  creditable 
to  human  nature : 

'*  During  the  rebellion,  in  the  year  1745, 
the  clan  ot  Glenco  were  quartered  near  the 
house  of  lord  Stair.  The  Pretender  being  afraid 
they  would  remember,  that  the  warrant  fur  the 
massacre  of  their  clan  had  been  sif^ned  by  the 
earl's  father,  sent  a  guard  to  protect  the  house. 
The  clan  quitted  the  rebel  army,  and  were  re- 
turning home:  the  Pretender  sent  to  know 
their  reason.  Their  answer  was,  that  they  had 
been  affronted ;  and  when  asked  what  tbe  af- 
front was,  they  said,  •  the  greatest  of  any  ;  for 

*  they  had  been  suspected  of  being  capable  of 
'  visiting  the  injuries  of  the  father  upon  the  in- 

*  noceat  a|id  brave  son.' " 


fe^ 


7Wm4JM.m. 


«Bij 


<  WU^mj  by  ttie^ee  of  God,  kinji;  oFGreat 
^^Britiiii,  &^.    Til  alj  good  mm  to  whom  these 

^    4  liftve  taken  itttn  cotisiiTeralitin.  that  thoit|gf h  m 

*  the  }^ear  of  our  Loi^l  160d»  we  gare  paweff  by 

<  expcss  iostructious,  to  M  itlintu  dnk'e  of  Ha- 

*  mihoii  dcc^aseil.-aod  others,  to  oxaiBtne  and 
5  Lnquire  into  th«  iUug^btfir  of  eeriaiQ  people  of 

<  the  rtameof  Macdoaald  and  oilier*  la  Ulaoeo, 
't  ID  the  year  t^^S^  and  into  ibe  way  and  mao- 

^  ner  ht^iv  the  same  waa  comiuitteft,  yH  net er- 
« the  less,  tht*  iaqutry  then  made.  inirsuaHt  to 
f  the  sM  mstmetiMns,  wat^d^texrlive  ;  aod  con- 
«  aiderioif  likewise,  thai  ihe  mo»t  efftrenjal  me* 
f  thod  fur  recelvioj^  fiiti  b^briuaiLoo  of  tbe  true 
f  cifciimHtaiices  of  the  matter  atbresard^  most  be 
f  by  a  commission  tfi  tliat  effect ;  and  heiog' 
f  very  well  satisfied  of  the  abdirie^  aud  fiioe^^ 
i  of  the  petTiOrts  uader^  named,  for  lh«  eads  be- 

*  tbre  expressed  i  know  ^e  therefore  that  we 

*  have  named  and  csonstimttd,  and  by  the  te* 
0f  am  of  these  presents  do  name  and  etmstitute^ 

'  our  right  trttsty  and  well  beloveil  coufiiti  nmi 

*  eounscllor,  John  iiiarquis  ©f  TwHldftlt.\  our 

*  hig-li- chancellor,  ami  \Villiam  «arl  tif  Annan* 
*4laV  and  our  trusty  mid  hclovi^d  cotmjiellcirs, 
*4ilpllll  brd  Murray ,  air  James  HttJiirt  oor  ad* 
l^rramte,  ^dam  CockburaorOrmiston  oorjos* 
I  tree  clerk,  Mr.  Archib»kl  Hope  ot  RaokeiUtr, 
i  tgd  fir  Willrain  Hanulton  ol' Whtti'law,  se- 
4  nmtors  of  our  college  of  ji}«tice,  sir  James 
I  Oglfvy  our  m>Licitor>  and  Adam  Drummond  of 
«  Megg-inii,  (uf  whom  ftve  fibail  t^  a  fpiorutu, 

<  aud  granting  ibem  power  to  cUu^  their  own 

*  clerk)  ottr  <:0mmisaiQner^i  to  take  preL>o^^ni* 
■  tioi}  and   make  enquiry  into  the  slaughter 

<  aforetaid^  by  whom  and  how,  and  by  %¥hat 
'  colour  of  autbofity  the  iame  was  comniiltesd  : 

<  and  iti  ordej"  to  tbe  discovery  of  the  iamt^, 

*  we  ffire  power  to  tbe  said  eomnns^ioners  t<v 
>  lend  for  all  warrants  and  directions  ypraoied 
f  lor  that  eiid  :  and  likewise  to  eacamlne  all  per- 
«  sons  that  bad  aoy  hand  in  the  btt!iine!t9  atbre- 
I  (aid,   and  likewmc  fo  examine  witnessea  nn 

*  shall. be  found  necessary,  either  upon  ootli  'or 
^de^larailoo  ;  and  atkrwardv  the  said  commis- 
'  sioners  shall  tranmtit  to  us  ibe  true  state  of 

*  tbe  matter  aforesaid » togeilier  with  tbe  proofs 
'  *  aod  eTideuce  that  shall  be  brou^t  hetbre  tberrtt 

,  *  that  after  dtie  and  full  inibrujalion,  >ve  may 

*  give*  such  dtrectiona  thereupoo^  as  to  n%  shall 
^  scti^i  meet  and  tiece«>&ary«  In  testimony 
*„U^bereof,  He  bate  cotiimajmi'd  our  Orcat  Jfeil 

*  to  be  appended  to  these  prescint^^     Given  at 

*  our  court  at  Keo^sington,   the  *i9iii  day  of 

*  4prilr  lC96f  a&dotour  reii^ntbefieventh. 

*  Snperacribed  by  tbe  ai^iaiure  of  tbe  hand> 
wilting  of  our  mo«t  tierefie  lord  thi^  kioef. 

*  Wrttteo  to  tbe  Great  ^al,  and  registered 
« tliedOtb  day  of  May,  1695* 

#  »DoK*  Rai(*u»,  DepuL* 

*  9eal«d  at  Edluburgh,  May  20,  1695, 

^  JOi  Jjt€itsa?t£/ 


Ujkon  the  2%d  of  May  ^  10(^5,  tli»  c<mwk 
was  read  in  parliameut,  and  the  Hcmie  i 
Htm,  oin.  Thai  his  majei|tA  'a  high  cominin 
^r  transmit  tbe  bumble  thaaks  of  thfi  lut 
metit  to  bis  Jlaj^ty,  for  ordpjrmgr  an  lcm^ 
into  ttiat  matter,  whereby  ibe  honour  and 
tice  of  tbe  natiou  luigbt  be  Tiadlcated. 

It  being'  urged  thai  the  commiasioail 
proofed  with  dili^enee,  a&  being  a  nationdt  i 
eern,  and.  that  tlie  discovery  l»e  made  knoi* 
tbe  House  betore  its  adjournment ;  bii  n 
assureii  tht^mt  that  he  doubled  mit  of  bil  I 
j«»ty'^  giving  saiisfuctjun  to  hi»  parlianiri 
ttiat  polut,  aqd  that  bef^rc^  they  parted. 

Tbe  comffiissiouers  procred4:tl  aeeordinf 
order,  and  made  tl>e  fortowiog  lieport : 

Report  of  the  Commiwioit  fjiv^ti  by  ha  i 
jesty^  for  intniiring  inrto  ih»j  slao^tn 
the  men  of  Glen  co^,  subscribed  at  UtAp 
house  the  !?aih  diiy  o1  Jfinet  10^3* 

John  marquis  of  Tweddiil«,  lowl  h^b  rk 
cpllor  of  ^cotWd,  William  earl  of  Anaaa^ 
Jobii  lord  Murray T  sir  Jamet  Niuatt  liia  s 
j**s.ty  'aadvfjcate,  idam  Cockbiirn  of  Ofuoiasi 
lord  justice  clerk,  sir  Archibald  llii^ie  of  Jk 
kdlkr,  and  dr  William  (Lau^duiu  ol  VVLM 
lw(»  of  the  senators  of  ibe  colkge  of  joilii^ 
Jtimei  tlgilvy  bin  soaje^ty'*  solicjlor,  aad  Ai 
Urummond  of  Mef^ginti,  c(itmiii^i>nGn  i 
poinied  by  his  ma^ty,  by  his^  comiatd 
uM<ler  tbe  great  ie^d  vl  the  date  tbe  '^9^ 
April  la^t  past,  to  make  inquiry,  anil  t/a  is 
trkl  and  precuguuijuu  about  tb?  ala(Agblii* 
several  pei^ons  of  tbe  tiirnam_o  of  Blac^ofti 
aud  otheri  m  Glencb,  im  the  ytar  \ti^% 
whom  and  in  what  manuert  on  J  by  >»but|) 
tpoded  aiUburity  ibe  samo  wzin  commilN*  ^ 
power  to  call  for  alt  warranU  aod  dire^ 
given  in  that  matter ;  aa*  also  to  exaajiitf 
persons  who  had  a  baud  Iberein,  nifti  ^1 
witnri^seH  they  should  find  necessary,  fill 
upon  oath  or  declaration,  tind  fo  report  10  I 
majr^ty  tbe  true  slate  of  the  si^id  nikitt«f,  W 
the  efidence  and  tesflfnotjies  to  hu  acldofedl 
lure  them,  as  the  iiaid  commlisiou  mc*ie  ^i] 
bears;  baiiogaitst  and  qnalltled  tbemtdlfii 
taking  the  natb  of  nU<^i»iice  and  mxjp9i 
Gonfbrm  fo  the  aet  of  parhaLoent^  ftitb  1 
oath  de  Fideli^  a<i  iis^  ti  in  sucb  caf«s> ' 
according  to  the  porcr  griveu  to  them*  ^ 
Mr.  Alexander  Monro  of  Beircrolf  lo  bell 
i  terk  ;  and  be  hariuif  ako  qtij^liified  bi^ 
as  above  s  ilnv  procie£*J  into  ihe  an  id  iit^oi 
to  cnll  for  all  w;»rrtititE  aod  dire 
siicb  persons  as  wime^iisrs,  ihatmre 
in  tbe  said  matter  ;  tu>d  having  c4 
tiiresoid  warrants  and  diit^cliotw 
fore  them,  and  taken  tJje  oaiL%  J 
of  I  be  Vituessf?!  underoarotHl;  they 
submission  lay  tbe  repikrt  of  tb0  Wl 
very  made  by  them  fe^fore  his  !*•* 
f>rderibtlo  w  iug.  A  o4,  lifvl^  tiwa^ 
preceded  the  said  iiatiglitef^    Seoli 


respecting  the  Massacre  of  Glenco* 


matter  of  fuctf  with  the  proofs  nni)  eviifencc 

^a*"  "    "  *-^n  and  in  what  manner  the  same  was 
^kf  Thirdly,    nf  the  warrants    and 

^ki — ,.. .  Lliat  either  really  were,  or  were  pre- 
^■ptled   for  the  committing  it.     And,  I^rIIj, 
Hvhe  coromissioners  humbic  opinion  of  the  triie 
^state  and  Account  of  that  whole  business. 

The  things  to  be  remarked   prcredincj'  the 

lid  slaufi^hter,  were,  that  it  is  certain  that  the 

|nl«  of  Gteiico  and  Auchintrinlen,  and  their 

llower^,  were  in  the  insurrection  and  rebel- 

»n  made  by  some  of  the  highlnnd  olanfi»  under 

'  command  lirst  of  the  viscount  of  Duodee^ 

|ld  then  of  innjor  pencral  Buchan  in  the  years 

B9  and  1690.      This  is  acknowledged  by  all. 

tti  when  the  earl  of  Brai<la!hiii   callf^d  the 

ads  of  I  he  clans,   and    met  with   ibem   in 

AuchalUtder  in  Jtily  1091.  in  order  to  a  cessa- 

ou,  the   dec^ascit   Alrxander   IIIacdoii;ild    of 

CO   wus  tb(c>re  with   Gleno'ary,   sir    Johti 

ene  ftnd4Jihcrs,  and  agreed  to  the  cessa- 

^11,  aj»  it !!«  abo  acknowledged  :    But  the  de- 

B»et\  Glenco*fl  two  sons,  wlio  were  at  that 

r  with  their  father  in  the  toii^n  of  Auchalla* 

depone,  ihat  they  heard  that  the  earl  of 

udAlbin  did  at  that  time  quarrel  with  the  dc- 

Gleoco  abtint  some  cows  that  the  earl 

diftii  Were  stolen  from  his  men  by  G3tiico*s 

and  that  though  ihey  were  not  present 

'  the  words,  ypt  their  father  lotd  theni  of 

iteoge.     And  the  two  sons,  with  Ro- 

licooiiald,    md welter  in   Glenco,    and 

Macdonald  in    Innern^en  m  Gienco, 

de|»one,  that  they  heard   the  deceased 

» sity,  that  the  earl  of  Braidalbrn  at  the 

Ung  ot  Aiichallader  tlireatened  to  do  him 

^iief,  and  that  he  feared  a  tntschief  from 

(  BO  much  as  from  the  carl  ot  Bra  Ida  I - 

kftieir  depositiotntf  at  the  letter  A  m  the 

jtn  bean.      And    AlcxaniJer    i^Iacflnnald, 

nd  «ott  to  th«  deceased  Glcuco,  doth  farther 

depou«,  that  he  hntli  otten  heard  from  bts  fatiier 

Jtod  others,  that  there  had  been  in  former  limes 

^^od    Mnixt    Jirradalbin's   family  and  their 

^Bko,  as  his  deposition  at  the  s;ime*mark  bears. 

Hud  here  the  coit]fnts5ioners  cannot  but  take 

tice  of  n  hat  hath  occurred  to  ihem  in  two 
en  from  secretary  Stair  to  lieutenant  colo- 
Hamiltoa,  one  of  the  1st,  and  another  of 
Sd  of  Deceriiber,  lti91,  wherein  he  cjc- 
arcBes  hii;  resentment  from  the  marring  of  ihe 
DVSiiiD  that  siiauld  ha?e  been  betwixt  the  earl 
of  Braidalbiu  Qi\d  the  hii^hlanders  to  a  very 
It  height,  charipn^  some  tor  their  despite 
*^-Ahun,  nn  if  it  had  been  the  only  hin- 
of  that  settlement :  Whence  tie  goes 
^'  in  his  of  the  3d  of  December  to  say,  that 
the  goreniment  cannot  oblige  them,  it  is 
1  to  ruin  some  of  them  to  weaketi  and 
I  the  rest,  and  that  the  Macdoualds  will 
[  in  this  net  ^  and,  in  effect,  seems  even  from 
Ihat  time^  iihich  was  almost  a  tiioolh  before 
tht  miring  of  the  kuiy^s  indemnity,  to  project 
wkth  heu tenant  colonel  Ilamiltoa  that  some  of 
tbem  should  b«  rooted  out  and  destroyed.  His 
■lajtcsty^s  proclamation  of  indemnity  was  pub* 
mt&  m  August  1591>  oSemig  a  free  iDdem- 


nity  and  pardon  to  all  the  hipfblanders  who  had 
been  in  arms,  upon  their  cominif  in  and  takin«j 
the  oath  of  aik^Er'fioce  betwixt  tnai  and  the  Jst 
of  Jaimary  thereafter :  And  in  otupliance 
with  the  proclamation,  the  dti  caserl  Gfencogoes 
about  the  end  nf  Decrmber  1691,  to  colonel 
Hill^  fiforernor  of  Fort  William  at  Inverlochie, 
ami  tiesired  the  colnnel  to  minister  to  him  ihe. 
oath  of  aMc£jian«::e,  that  he  mi^ht  htive  the  kind's 
indemnity.  Bnt  cotonel  Hill  in  his  dpjiositiony 
marked  witli  the  letter  Bt  doth  farther  depone, 
that  he  hastened  liim  away  all  he  could,  and 
pure  him  a  letter  to  Ardkinlas  to  i-ec^ive  him  as 
a  lost  Rheep  ;  and  the  colonel  produces  Ard* 
kinlas's  answer  to  that  letter,  dated  the  9lh  of 
January,  1691,  l>eimngf,  that  lie  had  eudta- 
voured  to  receive  the  Cfreat  lost  sheep  (tienco, 
and  that  GIfdco  had  untJertaken  to  brin^  in  all 
his  friends  and  followers,  as  the  privy  council 
should  order:  and  Ardkinlas  further  writes, 
tliiit  he  was  sendiag-  to  Edinburgh,  that  Glenco, 
thonf;h  tie  had  mistaken  in  coming  to  colonel 
f^lili  to  take  the  oath  of  alte^ance,  mi^ht  yet 
be  welcome^  and  that  thereafter  the  colonel 
should  take  care  that  Glenco's  friends  and  fol- 
lowers rria)'  not  sutler,  till  the  kmiif  and  coun* 
eil's  pleasure  be  known,  as  the  said  letter  ouurk* 
e*t  oil  tlie  b^ck  ujth  the  letter  B,  bears.  And 
Gicnco^s  two  sons  above  nameil  do  depone  in 
ihc  same  manner,  that  their  father  went  about 
the  end  of  JJecember  to  colonel  Hill,  to  take 
the  oatlt  of  alle^-ionce  ',  but  hodmg  his  mistake^ 
and  gettiog^  the  colonel's  letter  to  Ardkinlas,  f 
hiLsled  to  Jnverary  av  soon  as  he  could  for  T 
l>ad  way  and  weather,  and  did  not  so  much  i 
1^0  to  his  own  hou^ie  in  his  way  lo  Inverary^j 
thoujorh  he  pa^st  within  half  a  mde  of  it,  as  bot^l 
their  depositions  al  the  letter  C  bears,  AuMn 
John  Macdtjnald^  the  eldest  sod,  depones  far4 1 
(her  at  the  same  mark,  that  his  father  waffj 
taken  in  his  way  by  capuin  Drummond  at^l 
Barkaldin,  and  detained  S4  hourn. 

8ir  Colin  Campbel  of  Ardkinlas,  shcriff-de*! 
puty  of   Argile,  depones,   that  the  deceaaeAj 
Glencocame  to  Inverary  about  the  beginnitig] 
of  ianunry,  16912,  with  a  letter  from  cotooa  | 
Hill  to  the  etfcct  above  mentioned,  and  was  ] 
three  days  there  before  Ardkinlas  could 
thither,   because  of   bad   weather;    aud   th 
Glenco   said    to    him,  that  he  bad  not  coma  | 
sooner,  because  be  was  hindered  by  tlie  storm.* 
And  Ardkinlas  farther  depones,  that  when  ha* 
declineii  to  gire   the    oath    of  allegiance    U>  j 
Glenco,  because  the  la^tof  December,  the  time  i 
appointed  for  the  taking  of  it,  was  past,  Glenco 
btgw-e<l  niih  teai-s  that  he  might  t»e  admitted  t©  ' 
take  it,  and  promised  to  btin^r  in  nil  his  people 
within  a  sliort  time  to  do  the  hke;  and  if  any 
of  them  refused,  they  should  be  imnri.wned  or 
sent  to  Flanders.     Upon  which  ArdKinlas  says;^ 
he  did  administer  to  him  the  oath  of  aliegianc*  ' 
upon  the  Otii  of  January,  1695,  and  sent  a  cer»  | 
(iikate  thereof  to  £drllhur|vh,^4ith  colonel  llill'i  * 
letter  to  Colin  Campbel,  sheriff  clerk  of  Ar^ile,  i 
who  was  then  at  Edinburgh  ;  anil  further  wroteTI 
lo  the  said  Colin  that  he  should  write  bttck  to 
him,  wbetfaer  Gleuco's  taking  of  the  oatl 
3  31 


809] 


7  WILLIAM  III.      Proeeedingt  <»  tit  Pmlitmat^ SmOmd^ 


I 


allayed  hj  tbe  ooancil  or  noit  a*  Aidldnlas^i 
iiepo»ittoii  at  tbe  Utter  B  tetliliw.    Aad  the 
still   Colin«  sherifi'  cl«rk,  ^kpoueSf   tbit  the 
foresaid  IcUers,  and  tbe  certitte&te  reiattog  10 
Gktieo,  with  some  other  certificateft  relftltii^  l» 
tome  other  persoat  all  upoD  one  pA]>0r,  were 
sent  iJi  to  bim  to   Edinburgh  by  Ardkinlii; 
which  paper  beuig  produced  upon  oath  by  air 
Gilharl  £niot,  clerk  of  the  9ec4%t  council,  btii 
rolled  and  acoivd  as  to  Cikooo's  pari,  and  hia 
tlkiii|f  the  oath  of  allegiance,  yH  the  commii^ 
siooera  fiwiwl  that  it  was  not  ao  delete  or  dasheil, 
hut  that  it  may  he  read  that  Gleaco  did  take 
the  oath  of  allegiance  at  loverary,  the  6th  daj 
of  January,  1602.     And  the  aaid  Cotio  C«mD- 
bel  de|iones,  that  it  came  to  hia  hand  faitt^ 
i^ritlen»  and  not  daah^l;    and  that  with  thia 
eerttficate  he  had  the  aaid  letter  from  Ardkinlas 
(with  ookmd  HiU^a  above  mentioned  letter  to 
Afdkinlaa  inckwed)  beariog^t  how  carneat  Gletioo 
woa  to  take  tlie  oath  of  allegiance,  and  that  be 
liad  taken  it  upon  the  6th  of  January,  but  that 
Ardkinlaa   wm  doubtfiil   if  that  the  councii 
vmald  reeetve  it :  and  the  sheriff  clerk  did  pn»* 
dttM  hefbfv  the  eooimiflsionrrs  the   foresaid 
letter  W  colonel  HiJl  to  Ardkinlas,  dated  at 
Fort  William  the  aist  day  of  December,  1691, 
and  bearing,  that  Glenco  had  been  Mith  him, 
but  aliped  some  days  out  of  ignoraoce ;   yet 
that  it  was  good  to  bring  in  a  loat  aheep  at  any 
lime,  and  would  be  an  ad?aiitaffe  to  render  the 
king^s  government  easy*    And  with  the  isaid 
iherifr  clerk,  the  lord   Abenichit,  Mr.  John 
Campbel,  writer  to  the  signet,  and  sir  Gilbert 
£|liot,  derk  to  the  council,  do  all  declare,  That 
Gleoco'M  faking  the  oaih  of  ollcgtance,  with 
ArdkiuloM's  foresaid  certi^cate,  as  to  hta  part  of 
it,  did  come  to  Edinburg-h,  and  was  seen  by 
them  fairly  written,  and  not  scored  or  dashed ; 
but  that  ^r  Gilbert  and  the  oilier  clerk  of  the 
council  refused  to  take  it  in»  because  done 
at\er  the  day  appointed  by  the  prodamatioD. 
Whereupon  tbe  said  Colin  Campoel,  and  Mr. 
Joha  Campbel,  went,  as  they  depone,  to  tlie 
lord  Aberuchil^  then  a  privy  counsellor,  and  de- 
sired  bim  to  take  the  advice  of  privy  counsel- 
lors about  it ;  and  accordiogly  tney  affirm  that 
Aberuchil  said  be  had  spoke  to  several  privy 
counsel loni,  and  partly  to  the  lotd  Stairs^  and 
that  it  WAS  ilieir  opinion  that  the  foresaid  certi' 
tiL'ate  could  not  he  received  without  a  warrant 
from  the  king,  and  that  it  would  neither  be  safe 
to  Ardkinlas,  nor  profitable  to  Glenco,  to  give  in 
the  certificate  to  the  clerk  of  the  council ;  and 
this  tbe  lord  Aberuchil  confirms  by  his  deposi- 
tiou,  but  doth  not  name  therein  the  lord  Slair. 
And   Colin    Campbel,  the  shchtf  clerk,  does 
fartlior  liepone,  thut  tvith  the  knowledge  of  the 
lord  Alieruchil,  Mr.  John  Campbel,  and  JIIr» 
David  Moncrief,  clerk  to  the  council,  he  did  by 
himself,  or  his  servant,  score  or  delete  the  for- 
said  certificate,  as  now  it  stands  scored,  as  to 
Gknca^s  taking  the  oaih  of  allegiance,  and  I  bat 
he  ^ave  it  in  so  scored  or  ubliterate  to  the  said 
Mr,  Dnvid  Moncreif,  clerk  of  tlie  et»u net),  who 
took  it  in  as  it  is  no^v  produced.      But  it  dttlh 
not  appear  by  all  these  depocitiotts,  that  the 


a  thad»_ 
W«rtfNJ 

l«£likl 


nciatler  was  brongbt  l»  the  * 
tbe  council's  pkaaiite  nlglii  I 
though  it  seems  to  have  been  iotetided  1 
kinlaa*  who  both  writ  liiioaeir,  wid  seali 
Hill's  letter  for  to  ruake  Gleaco's 
desired  expressly  to  know  the  csouaeil^i 
After  that  Gleaco  had  taken  tbe  mi 
legiaace,  aa  is  said,  he  went  home  to  I 
house ;  and,  as  his  own  two  soot  mhirm  J 
depnue,  be  nut  only  bred  there  tf«r  m 
<]tiietly  and  securely,  hot  called  Im  | 
gpther,  and  tuld  them  he  had  takes  I 
aliegiame,  and  oiade  his  ^ 
demised  and  ino^ged  tbam  to  U^e  ^meeMf 
under  kiug^  WiUiun's  irovemtiient^  m 
positions  of  tlie  said  who  ' 

sent,  oaarked  with  tli^  .  bear. 

These  thinga  hunng  prt^«ded  the  ahin^ 
which  happ<Med  not  to  be  oononiitted  tiiitil  1  _ 
lath  of  Febnisry,  14199,  as  weda  «Aartb«  ^  ' 
ceued  Gleneo  had  tikeo  the  oath  offtllipaMttt 
Invcrary,  the  alaoghterof  the  Gleooo  in«i  «■ 
in  this  mauner,  vis.  John  and  Alestwidar  jjicdl 
nalds,  sons  to  the  deceased  GlesM^  ^Nf^^ 
That  Gleugary's  house  being  radnMA,  thi 
forces  were  called  hack  to  the  sotiilt,  wmA  Uln- 
ly  on ,  a  capiaiii  of  the  earl  of  Argy  le*ii  rcgiBiiit 
with  Ueuteoant  Lindsay,  ettaagu  Ltnltvf ,  mi 
six flooro soMicis,  retnrned to uleikoa ihosiibi 
Ist  of  February,  1603,  where»  «t 
the  elder  brother  John  met  them  with  I 
men,  and  demanded  tbe  rea^n  of  titeir  I 
and  lieutenant  iindaay  ahewed  hifli  bis  oidiii 
tor  quartering  there  vadar  aoloiial  UilFsl 
and  gava  aastuaitGe  that  they  were  oidy 
to  <^uarter ;  wberaapon  they  were  biUrtod  btl 
country,  and  bad  finee  quarters  and  " 
tainment,  hving  familiarly  withtba  | 
the  13th  day  of  February.  And  i 
ther  depones,  that  Gleulyon  htang  biawiAi^ 
uncle,  came  almost  every  day  and 
morning  drink  at  his  house  %  atid  thai  4 
night  betinre  the  slaughter,  Glenlvon  4_ 
at  cards  in  hts  own  quarters  with  both  dial 
thers.  And  J  ohn  depones.  That  ohl  OJaoco  I 
father  had  invited  Glenlyon,  lieu1Cf»aBt  T 
say,  and  ensign  Liodsay,  to  dine  with  h 
the  very  day  the  slaug'hter  happetiad,  Bdti 
the  13th  day  uf  February,  beuig  Bttaaitf^ 
about  four  or  hve  in  tbe  morning,  tinlMMi 
Lind&ay,  with  a  party  of  tite  foresaid  aoidlM^ 
came  to  old  Glenoo's  house,^  wbera  hatr 
led  in  a  Iriendly  manner,  and  got  in,  I 
his  father  dead  with  several  shots  a$i  lie  i 
iDg  out  of  his  bed ;  and  the  m* 
up  and  put  on  her  clotlies,  the 
her  naked,  and  drew  the  rings 
with  their  teeth  ;  as  likewi^t 
man  more,  and  wounded  anothc^r  gi 

*  Aubrev>  iu  bis  Miscellantes,  relatoit 
Archilmid  Maekeanyefs  alias  MaekdooalirJ 
secotid-ftig-htcd    seer,    had    wartiad 
*^  that  he  would  be  mutderetl  in  the  i 
ill  his  own  house,  three  months  betbra  it 
l»ened," 

The   same  Author  i 
4 


31] 


ntpecHng  the  Massacre  tfOknco* 


A.  D.  160fi. 


[903 


e  suiie  place.  And  this  relatioii  tbey  say 
ey  bad  tram  their  mother,  and  is  confirmed 
'  the  depoMtioo  of  Archibald  HacdonaM  in- 
veller  in  Glenco ;  who  fiirther  depones  that 
IcBon  was  shot  behind  his  back  with  two  shots, 
le  through  the  head,  and  another  through  the 
4y ;  and  two  more  were  killed  with  him  in 
at  place,  and  a  third  woanded  and  left  fw 
Ad.  And  this  be  knows,  because  he  came 
at  same  day  to  Glenoo's  house,  and  saw  his 
!ad  hody  lyintf  before  the  door,  with  the  other 
ro  that  were  kilted,  and  spoke  with  the  third 
tat  was  wounded,  whose  name  was  Duncan 
kM,  who  came  there  occaskmally  with  letters 
«Bi  the  brae  of  Mar. 

The  said  John  Macdooald,  eldest  son  to  the 
iwiaaed  Gleoco,  depones,  the  same  roommg 
hat  his  father  was  killed,  there  came  soldiers 
D  hii  boose  before  day,  and  called  at  his  win- 
ter, which  gare  him  the  alarm,  and  made 
M  ge  to  Innerrjggen,  where  Glenlyon  was 
(Bvlmd,  and  that  he  fbond  Glenlyon  and 
M  men  preparing  their  arms,  which  made  the 
kponentask  the  cause;  but  Glenlyon  gare 
Ufli  only  ^ood  words,  and  saul  tbey  were  to 
mrch  against  some  of  Glengary*s  men,  and  if 
Ikara  were  ill  intended,  wodM  not  be  have  told 
fady  and  bis  niece  ?  meaning  the  deponent's 
ftndMr  and  his  wiie ;  which  made  the  depo- 
MM  go  home  and  goasain  to  his  bed,  until  his 
imit,  who  bin£rea  him  to  sleep,  raised 
ftia.  And  when  he  rose  and  went  on^  be  per- 
MiM  about  twenty  men  coming  towarda  his 
Whs,  with  their  bayonets  fixed  to  their  mus- 
Imi;  whercamm  be  fled  to  thebill^and  having 
Ascbaaion,  a  little  village  in  Glenco,  in  view, 
bi  bsard  the  sbota  wherewith  Anchintriaten 
liMnr  more  were  killed ;  and  that  be  heard 
lbs  the  abets  at  Innerriggen,  whore  Glenlyon 
Meaosed  to  lull  nine  more,  as  shall  be  here- 
in dcdaicd.  And  this  is  confirmed  by  the 
weeaiiing  clepositam  of  Alexander  MacdonaM 
hb  Watber,  whom  a  servant  waked  out  of 
dnp^  tftjbig,  It  is  no  time  for  you  to  be  sleep* 
b|,  wbol  tbey  are  fcilbng  your  brother  at  the 
mr;  wbiefa  made  Alexander  to  flee  with  his 
bslber  Id  ike  billy  where  both  of  them  heard 
is  fcnaaid  ihota  at  Anchnaion  and  Innerrig- 
fat  And  the  said  John,  Alexander,  and  Ar- 
MaM  Maodooakl  do  all  dejione,  that  the  same 
iwniing  there  was  one  aeigcant  Barber  and  a 
PMy  ai  Aucbnaion,  and  that  Auchintriaten 
M^f  there  in  bis  brother's  house  with  eight 
■Mv  sitting  about  the  fire,  the  soldiers  dis 


■anpBB 


anon  them  about  eighteen  shot,  which 
aebinc  " 


Avenintriaten  and  four  more ;   but  the 
Ihcrlbiip,  wbereofsome  were  wonnded,  fall- 

HeneoelMd  received  concerning  a  ibrmer  dan- 
;er  ■rwioos  notice  from  the  same  seer,  which 
mdoeta  c^pally  neglected  and  equally  verified. 
t  My,  however,  be  thought  by  most  readers 
f  this  Aral  prcdvetion,  that  the  danger  might 
■fe  been  foreseeu  without  preternatural  intel- 
■enee,  ami  that  eompfiance  to  the  warning 
i^ghijh<ire  bevn  given  without  any  itopidity  of 
^~\  Kit  diCfedinily* 


ing  down  as  deed,  seijeint  Barber  laid  hold  on 
Aucbintriaten*8  brother,  one  of  tlie  four,  and 
asked  him  if  be  were  alive?  He  answered,  that 
be  was,  and  that  be  desired  to  die  without  ra- 
ther than  within :   Barber  said,  that  for  his 
meat  that  he  had  eaten,  he  wonM  do  him  tlie 
fiivqur  lo  kill  him  without ;  but  when  the  man 
wiA  brought  out,  and  soldiers  brought  up  to 
shoot  him,  he  having  his  plaid  loose,  flung  it 
over  their  fi^es,  and  so  escaped ;  and  the  o£er 
three  broke  through  the  back  of  the  house,  and 
escaped  :   and  tins  account  the  deponents  had 
from  the  men  that  escaped.    And  at  Inner- 
riffgen,  where  Crienlyon  was  quartered,  the 
MMdiers  took  other  nine  men,  and  did  hind  them 
hand  and  foot,  killed  them  one  by  one  with 
shot.    And  when  Glenlyon  inclined  to  save  a 
yoiui^  man  of  about  twenty  years  of  age,  one 
captain  Drummond  came  and  asked  how  he 
came  to  be  saved,  in  respect  of  the  orders  that 
were  given,  and  shot  him  dead.    And  another 
young  boy  of  about  thirteen  yean  ran  to  Glen- 
lyon to  be  saved,  be  was  likewise  shot  doid ; 
and  in  the  same  town  there  was  a  vroman  and  a 
boy  about  four  or  five  years  of  age  killed : 
and  at  Aucbnaion  there  was   also   a  child 
missed,  and  nothing  found  of  him  but  the 
hand.    There  were  likewise  several  killed  dt 
other  [daces,  whereof  one  was  an  ohi  mill 
about  eighty  years  of  age.    And  all  this  the 
deponents  say  tbey  aflirm,  because  tbey  beard 
the  shot,  saw  the  dead  bodies,  and  had  an  acS^ 
cout  from  the  women  that  were  left    And 
Ronald  Macdonald,  indweller  in  Glenco.  fbr* 
ther  depones,  that  he  hemg  living  witn  bia 
fiither  in  a  XtOXe  town  of  Glenco,  some  of  Glen- 
lyon's  soldiers  came  to  his  father's  house,  the 
said  13th  of  February  in  the  morning,  and 
dragged  his  father  out  of  bia  bed,  and  knocked 
him  down  for  dead  at  the  door;   which  the 
deponent  seeing,  made  his  escape,  and    bia 
fatner  recovering  af^r  the  soldiers  were  gone, 
got  into  another  house ;   but  this  house  waa 
niortly  burnt,  and  his  f^er  burnt  in  it :  and 
the  deponent  came  thero  after,  and  gathered 
bia  father's  bones,  and  burnt  them.    He  also 
declares,  that  at  Anchnaion,  where  Auchin- 
triaten  w&s  killed,  be  saw  the  body  lyf  Anchin- 
triaten and  three  more  cast  out  and  covered 
with  dung.    And  another  witness  of  tlie  some 
declares,  that  upon  the  same  13th  of  February', 
Glenlyon  and  lieutenant  Lindfsav,  and  their 
soldiers,  did  in  the  morning  bemre  day  fall 
upon  the  people  of  Glenco  when  tlicy  were 
secure  in  their  beds,  and  killed  thcin  ;    und  he 
being  at  Innerriggen,  flod  \«ith  the  first,  bm 
hcanl  shots,  and  hod  two  lirotlicM  killed  there, 
with  three  men  moro  and  a  ^voman,  who  were 
all  buried  bdbre  he  came  back.     Ami  all  these 
^^e  witnesses  concur,  that  the  forrsaid  slaugh- 
ter was  made  by  Glenlyon  ami  liis  soldiersi 
after  they  hail  been  quartered,  and  lived  peace- 
ably and  friendly  with  the  Glenen  men  about 
IS  days,  an«l  that  the  number  of  thtife  \%  horn 
they  knew  to  he  slain  were  aliont  To ;  and  that 
the  soldiers  alter  the  slaughter  did  huru  the 
bouses,  bams  and  goods,  and  carried  away  a 


*MS]  7  WILLIAM  IIL      ProceaUngi  in  the  Pariiament  of  Scotland,      [90; 


mat  spoil  of  horse^  nolt,  aiid  sheep,  above  a 
tliuusand.  And  James  Campbel,  soldier  in 
the  castle  of'Sterlingr,  depones,  that  in  January 
1692,  be  beings  then  a  soldier  in  Glenlyon^s 
com|mny,  marched  with  the  company  from 
Jnverlochie  to  Glenco,  where  the  company 
was  quartered,  and  very  kindly  entertainMl  for 
the  space  of  fourteen  days ;  that  he  knew^o- 
thintf  of  the  design  of  killing  the  Gienco  men, 
till  the  morning  that  the  slaughter  was  com- 
mitted ;  at  which  time  Glenlyoq  and  captain 
Drunimond's  companies  were  drawn  out  in 
several  parties,  anu  got  orders  from  Glenlyon 
and  their  other  officers  to  shoot  and  kill  all  the 
countrymen  the>  met  \\  ith  :  and  that  the  de- 
poueut  being  one  of  the  party  which  was  at  tlie 
town  where  Glentyon  had  his  quarters,  did  see 
several  men  drawn  out  of  their  beds,  and  par- 
ticularly he  did  see  Glenlyon^s  own  landlord 
shot  by  his  order,  and  a  young  boy  of  about 
twelve  years  of  age,  who  endeavoured  to  save 
Limselt  by  taking  hold  of  Glenlyon,  offering  to 

iro  any  where  with  him  if  he  would  spare  his 
ite,  and  was  shot  dead  by  captain  Drum- 
•mond's  order :  and  the  deponent  did  see  about 
eight  persons  killed,  and  scleral  houses  burnt, 
and  women  flying  to  the  hills  to  save  their 
lives.  Aud  lastly,  sir  Colin  Campbel  of  Abeni- 
chil  depones,  that  afler  the  slaughter,  Glenlyon 
told  him  that  Alacdonald  of  Inncrriggen  was 
killed  with  the  rest  of  the  Gienco  men,  with 
«ol.  Hill's  iiass  or  protection  in  his  pocket, 
ivhich  a  soldier  brought  and  shewed  to  Glen- 
lyon. 

The  testimonies  al>ovc  .set  do^vn  being  more 
than  siifHcient  to  prove  a  dciMl  so  notoriously 
known,  it  is  only  to  l)c  remarked,  that  more 
witnessf s  vi'  the-  actors  tlicinselves  niit^lit  huvc 
bt'cn  found,  if  (ilenlyoii  and  his  soldiers  were 
jiot  at  present  in  Flanders  with  Ar^lu's  regi- 
ment. And  it  is  farther  added,  that  lieutenant 
Ciolonel  Hamilton,  who  seems  by  the  orders 
and  letters  that  shall  be  hereailer  set  down,  tu 
have  had  the  particular  charge  of  this  execu- 
tion, did  march  the  night  before  the  slaughter 
with iibout  400  men;  hut  the  weather  lulling 
to  be  very  bail  and  se\erc,  tlic-y  weie  forced  to 
stay  by  tirc  way,  and  did  not  get  to  (iknico 
against  the  next  morning,  as  had  been  con- 
certed betwixt  major  Duneason  and  lieutcuaiit 
colonel  Hamilton  ;  so  that  the  measures  being 
broke,  lieutenant  colonel  Hamilton  and  his 
men  came  not  to  Gienco  till  about  eleven  of  the 
clock,  after  tli«  slaughter  had  been  comuiilted, 
which  pmved  the  preservation  and  safety  of  the 
tribe  of  Gienco,  since  by  this  means  the  far 
j('reatcr  part  of  tlietn  escaped:  and  then  the 
lieutenant  colonel  bcitig  come  to  (!an:)cloch- 
levcn,  appointed  several  parlies  for  several 
posts,  with  orders  that  they  should  take  no  pii- 
soners,  but  kill  all  the  men  that  came  in  tlieir 
way.  Thereafter  some  of  the  lieutenant  c  olo- 
uel's  men  marched  forward  in  the  Glen,  and 
met  with  major  Duncason's  partv,  whereof  a 
part  under  Glenlyon  had  been  sent  by  lieute- 
nant colonel  Hamiltou  to  quarter  there  some 
days  before  j  and  these  meu  told  how  they  had 


killed  Gienco  and  about  thirty  six  of  his  mei 
that  morning,  and  that  there  remained  notbii^ 
to  be  done  by  the  Ueutenant  colonel  and  ht 
men,  save  that  they  burnt  some  houses,  aai 
killed  an  old  man  by  the  lieutenant  cslood*! 
orders,  and  brought  away  the  spoil  of  tlh 
country.  And  tliis  in  its  sieveral  ]»arts  is  tett< 
fied  by  John  Forbes,  major  in  colonel  Hill's 
regiment,  Francis  Farquhar  and  Ciilbert  Kei- 
nedy,  both  lieutenants  in  that  regiment,  wiic 
were  all  of  the  lieutenant  colonel^s  party,  u 
their  depositions  more  fully  bear. 

It  may  also  be  here  ooticetl,  that  some  dsjn 
afler  tlie  slaughter  of  the  Gienco  meu  was  over 
there  came  a  person  from  Cam|»bel  of  Bil« 
calden,  chamberlain,  i.  e.  steward  to  the  £.  of 
Braidalbin,  to  the  deoeasetl  Glenco's  sons,  lod 
offered  to  them,  if  tliey  would  declare  undor 
their  hands,  that  the  earl  of  Braidalbin  was  free 
and  clear  of  the  said  slaughter,  they  might  be 
assured  of  the  carl's  kindness  for  prociiriiwthdr 
remuision  aud  restitution,  as  was  plain^  de- 
poned before  the  commissioners. 

It  remains  now  to  give  an  account  of  tkc 
warrants,  either  given  or  pretended  to  be  mm 
for  the  committmg  of  the  foresaid  slaiicalcr; 
for  clearing  whereof  it  is  to  be  noticed,  thslthe 
king  having  been  pleased  to  ofler  by  proclias- 
tion  an  indemnity  to  all  the  highlaiid  rekeb^ 
who  should  come  in  and  accept  thereof  by  takiag 
the  oath  of  allegiance,  betwixt  and  tlie  fint  m 
January  1G92,  idler  the  day  was  elapsed,  itwi» 
very  proper  to  give  instructions  liow  such  if 
the  rolH'ls  as  had  refused  bis  miyesty*s  grace 
should  be  treated ;  and  therefore  his  inaj^tiy. 
by  his  instructions  of  the  date  of  the  1  lib  ox' 
Juniinry  169!?,  directed  to  sir  Thomas  Leviug- 
ston,  and  sui»ei'si^'ned  and  countersigned  by 
hinriclf',  did  indetd  order  and  authorize  ar 
I'homas  to  march  the  troops  against  tbe  rtbeb, 
who  had  not  taken  the  benefit  of  theindenniit} , 
and  to  destroy  them  by  tire  and  sword  (whirb 
is  the  actual  stile  of  our  commissions  agaifiA 
inlercomniuned  rebels)  but  with  this  expiess 
mitigation  in  the  fourth  article,  viz.  *  That  the 
rebels  may  not  think  themselves  desperate,  vie 
olloiv  ^'ou  to  give  terms  and  quarters,  but  iutbii 
manner  only,  that  chieftains  and  heritors.  <*r 
leaders,  l)e '  prisoners  of  war,  their  livi-s  Mil)' 
sate,  and  all  other  things  in  mercy,  they  takinj^ 
the  oath  of  allegiance  :  and  the  coranmuiiv 
taking  the  oath  of  allegiance,  and  rendering 
their  arms,  and  submitting  to  the  govemmeot. 
are  to  have  quarters  and  indemnity  for  their 
lives  and  fortunes,  and  to  be  protected  froni  tbe 
soldii'i*s/  as  the  principal  pai>er  of  instruilioBf 
producetl  by  sir  Thomas  Levingston  bean. 

After  these  instructions  there  were  addiiioaal 
ones  giien  by  his  majesty  to  sir  Tboniii 
I^vingston  upon  the  16tii  of  the  said  mondi^ 
January,  supersi«;ned  and  countersigned  by  bif 
majesty,  and  tJie  date  marked  by  secretUjT 
Stair's  hand,  which  l>ear  orders  lor  giving  « 
passes,  and  for  receiving  the  submission  of  ee^ 
tain  of  the  rebuLi ;  wherein  all  to  be  nodoai  H 
tlie  present  purpose  is,  that  therein  bis  i 
doth  judge  it  much  better  that  these  irho  I 


respecting  the  Maimcre  ofGlenco. 


A.  D.  1695- 


not  t[t«  benefil  of  the  inilemnit^'  in  due  titne, 
^^oulil  be  obligetl  to  render  iipuii  mercy,  they 
Hill  takiti^  the  oath  of  aUe^riance  :  and  then 
^K  added,  if  Mackean  ot  Gleocu  and  that  tribe 
^Ko  lie  well  st^jHifHted  fiom  ihe  rest,  it  will  be  a 
^^C»|J4»r  vtndicatiuM  ofihe  (jubhc  justice  tuextir- 

|Mtc  that  sect  ol'  ihieres.-*     And  of  these  addi 


the  rebels,  are  not  able  to  oppose,  and  thetr 
chieftains  being  all  papists,  it  is  well  the  ven- 
geance falls  there ;  for  my  part  i  could  havfl 
wi&lied  the  Macdonaldsi  had  not  divided,  and  I 
amsorr^  that  Kippoch  und  Mackean  of  Gleoco 
are  sate.  And  then  alterwards  we  liave  on 
account,  that  Locheal,  Maeoougbion,  Appm 


lignal  in^iructionst  a  principal  duplicate  was    and  Gleoiio  took  the  b«uctit  of  the  indeuiaity 


tun,  and  anolher  to 

I  i»dueed  ;  and  these 

I \  4^11   by  the  king  in 


^ttnl  to  sir  Thorn u 
■lonel  Hill,  and  V 
^wereall  th(^  ia&trui  uuu!» 
this  inaut^r. 

tBut  secretary  Stair,  who  sent  down  thes<eia- 
vctionii,  ail  Xxia  letters  produced,  written  with 
I  hand  to  sir  Thomas  of  the  same  dale  with 
im^  tftsrify ,  by  a  prcvioiiij  letter  of  the  date  of 
e  7th  of  the  jsaid  month  of  January,  v^ritten 
#1x1  tiubseribed  by  hiru  to  sir  Thonias,  says,  Yoit 
know  in  general  that  these  troopij  posited  at  In- 
verness and  loverlocliie  will  be  ordered  to  take 
in  the  hou<»e  of  luner^rie,  and  to  destroy  in- 
'  ely  the  country  of  Luchuber^  Lcicheal'^  lands, 


m 


at  Inverary,  and  Kippoch  and  others  at  loTcr* 
i  oess.  But  this  letter  of  the  11th  of  January, 
sent  with  the  first  instructions  to  sir  Thomas 
hath  this  expression,  1  bare  no  great  kindness 
to  Kippoch  nor  Glenco,^  and  it's  well  that  p^le 
are  id  mercy ;  and  Ihtn  just  now  my  lord  Ari^ile 
tells  in«,  that  Glenco  hath  not  taken  ihe  OLiib, 
at  which  I  rejoice  \  it  is  a  great  work  of  churity 
to  be  exact  in  rooting  out  that  damnable  sect,  tfa^ 
worst  of  the  highlands.  But  in  his  letter  of 
the  16th  of  January,  of  the  same  date  with  th& 
additional  instructions,  thou^^h  he  writer  in  the 
first  part  ol  the  Letter,  The  k\n^  iloes  not  at  all 
incline  to  receive  any  after  the  diet,  but  on 


pptichs,  Glengarie»  and  Glenco  ;   and  then  I  mercy  ;   yet  be  thereafter  aihU,  But  for  a  just 


l«,  *  I  assure  ytnj  your  power  shall  be  full 
enough,  and  I  hope  the  f^uldieis  will  not  trouble 
ibe  ffoternineot  with  prisoners.'!  ^"^  ^y  ^"*®' 
tll«r  letter  of  the  9lh  of  the  s:itd  mouth  of  Janu- 
%ty%  which  is  likewise  before,  the  instructions, 
And  writtt'O  to  sir  Thomas  as  the  former,  be 


,  eJmmple  of  sengeanee,  1  entreat  the  thicvinjj 

,  Irtbe  of  Glenco  may  be  rooted  out  to  purpose. 

And  to  confirm  his  by  this  letter  of  tne  same 

I  date,  j^eut  with  the  other  principal  duplicate^ 

and  additional  instructions  to  colonel  Hill,  aUer 

I  haying  written  thai  such  as  remler  on  mercy 

I  this  expi-ession.  That  these  who  remain  of   might  be  saved,  he  adds,   f  shall  intreat  you 

■ — ' ^ — ~  :  that  for  a  just  vengeance  and  public  example. 

♦  This  Order  is  thus  givaa  in  the  Memoirs  of  ^  the  tribe  of  Glenco  may  be  rooted  out  to  uur- 

pose.     The  earU  of  Ar^le  and  Braidalbin  nave 
promised  that  they  shalt  have  no  retreat  intheirv*] 
m^^  As  for  Mac  Jan  of  Glenco  and  that  tribe,    ^^^"f  ^  J>*^  passes*  to  Ronoch  would  besecamf. 
Khey  cxm  be  well  distiuguished  from  the  res!    '^"^  f]l  ^'^^'^'^  ^f.'-f  ^^'^  to  the  laird  otWeemstc* 
»the  Ui-hlauder.,  it  will  be  proper,  for  the    reset  them  ;    m  that  case  A rgde s  deta^^^^^^ 
■idicatiou%f  publi;  justice,  to^itirpate  that    witha;pary  tbatmay  bcpsledm  .slan^S^^^^ 
»5of  thieves  "W    R''        must  cut  them  oft,  and  the  people  ot  A  ppm  are 

I  none  of  the  Uest, 

This  last  letter,  with  the  instructions  foe 
colonel  Hill,  wa.^  received  by  major  Forbes  hi  bis 
name  at  Edinburgh  ;    and  the  major  deponcii, 
'  that  by  the  allowance  he  bad  from  the  colonel « 
I  he  did  unseal  the  packet,  and  found  therein  the 
I  letter  and  instructions  as  above,  which  he  sent 
forward  to  colonel  Hill :  and  that  in  the  bcgui- 
niog  of  February  1692,  t^iug  in  his  way  to 
Fort-William,    he    met   some   compames   of 
Argile's  regiment  at  Belli!»hiers,  and  was  sur- 
prised to  uuden&tand  that  tliey  were  cooing  to 


ihe  Massacre  of  Glenco 

'*   WlLUAM   R. 

As  for  Mac- J  an  of  Glenco  and  that  tribe, 
liey  can  be  well  distiuguished  from  the  rest 
^  the  Uighlautlers,  it  will  be  proper,  for  the 
dication  of  public  justice,  to  extirpate  that 
:  of  thieves.  "  W,  R:' 

<'  This  was  directed  to  sir  Thomas  Leving* 
I  and  colonel  Hill    And  the  parliament  has 
^oted  that  Levinj^sion  i>|'  Hiirs  urders  did  not 
^        \  these  iostructions  ;  nor,  indredt  could 
py ;  for  what  can  exceed  extirpation  T* 

|f  In  the  Memoirs  of  the  Massacre  of  Glenco, 
^ren  tbefoilowing  Letter  from  tuajor  Dun^ 
\  ta  captain  Campbell  i 

"  BUtuchoiis,  Fik  U,  1695, 
**  Sir;  You  are  hereby  ordered  to  fall  upon 


<be  rebels,  the  Mac  Donalds  of  Glenoo,  and  put  |  quarter  in  Glenco,  but  said  nolhiuo;  till  nee 


^1  to  the  sword  undei-  seventy.  Vuu  are  to 
have  especial  car^  that  (he  old  fox  and  his  sons 
do  upon  no  account  escape  your  lumds.  Vou 
are  io  secure  all  the  avenues  that  no  man 
escape r  This  you  are  to  put  in  execution  at 
lire  oVIock  in  the  morning  precisely,  and  by 
Ihai  time,  or  very  shortly  after  it,  I  will  strive 
C4»  be  at  you  with  a  stronger  party  ;  if  I  do  not 
oaam  tioyou  allSve  you  are  not  to  tarry  for  me, 
Init  to  lall  on.  This  is  by  the  kingV  special 
conamand,  for  the  good  and  safety  of  Ihe  coun- 
try, that  these  miscreants  may  he  culoft"^  root 
Aud  branch.  8ee  that  this  be  put  in  execution, 
ivilhoutfcud  or  favour,  else  you  may  expect  to 
not  true  to  the  king  or  govern " 


to  Fort -William,  where  colonel  Hill  told  hiiu 
that  lieut.  coL  Hamilton  had  got  orders  abont 
the  affair  of  Glenco,  and  that  therefore  tha 
colonel  bad  lefi  it  to  lieutenant  colonel  Ha- 
milton's management,  w  ho,  he  apprehends,  had 
concerted!  ttie  matter  uith  major  Duncason« 
And  colonel  Hill  depones,  that  he  understood 

ment,  nor  a  man  tit  to  carry  a  commission  ia 
the  king^s  service.  Expecting  you  will  noi 
lail  in  the  fultllling  hereof,  as  vou  love  your- 
selti  1  subscribe  these  with  niyliand, 

**  Robert  Duncauson/* 
*^  For  their  majesties  servic^e,  to  captain 
Hubert  Campbell,  of  Gioplyon." 


907] 


7  WILLIAM  III.       Proceedings  in  the  ParliameiU  tf  Scotland^      [90S 


tfiat  lieatenant  col.  HamilUui  and  major  Duq-  |  declared  that  at  that  time  he  waa  immcdiatily 
caaon  got  the  orders  about  the  Gleuco  men,  !  returned  from  hisjouriiey  to  London,  and  thai 
which  were  sent  to  lieut.  col.  Uumihon  ;  that ;  he  knew  notliing  of  any  soldiers  being  onartcnd 
fbr  hunaelf  be  liked  not  the  business,  but  in  tilenco,  and  only  meant  thai  he  sBonM  be 
waa  very  grieved  at  it ;  that  the  king's  instruc-  prosecuted  as  a  rebel  standing  oat,  by  fair  hos- 
t»n!i  of  the  16th  of  January  1092^  nitb  the  tility :  and  in  this  sense  he  made  use  of  the 
naater  of  Stair's  letters  of  the  same  date,  were  same  words  and  orders  written  to  him  by  fa- 
brought  to  him  by  major  Forbes,  who  bad    crelaryS^ir.    TfaereailtercokinelHillgifaBMi 


eceived  them,  and  unsealed  the  packet  at 
Edinburgh,  as  these  two  depositions  do  bear. 

Yet  the  execution  and  slaughter  of  the 
Glcnco  men  did  not  immediately  take  effect, 
and  thereafler  on  tlie  dOth  of  the  said  month  of 
January,  the  master  of  Stair  doth  again  write 
two  letters,  one  to  sir  Thomas  Levin^ton, 
which  bears,  I  am  glad  that  Glenco  did  not 
come  in  witliin  the  time  pretixed ;  I  hope  what 
is  done  there  may  be  in  earnest,  since  the  rest 
are  not  in  a  condition  to  draw  together  to  help; 
I  tlrink  to  harry  (that  is  to  drive)  their  cattel, 
and  burn  their  houses,  is  but  to  render  them 
desperate  lawless  men  to  rob  their  neighbours, 
but  I  believe  you  will  be  satisfied  it  were  a  great 
adTantage  to  the  nation,  that  thieving  tribe  were 
rooted  out,  and  cut  olf ;  it  must  be  quielly  done, 
otherwise  they  will  moke  shift  fbr  both  their 
men  and  their  cattel ;  Argile's  detachment  lies 
in  f /etrickwecl  to  assist  the  garison  to  do  all  of 
a  sudden.  And  the  other  to  colonel  Hill,  which 
bears.  Pray  when  the  thing  concerning  Glenco 
is  icsolved,  let  it  be  secret  and  sudden,  other- 
wise the  men  will  shift  you,  nnd  better  not 
meddle  with  them  than  uot  to  do  it  to  purpose, 
to  cut  off  that  nest  of  robbers,  who  have  fallen 
rn  the  merry  of  the  law,  now  when  there's 
torce  and  opportunity,  wherrby  the  kin^\s  jus- 
tice will  l>e  as  conspicuous  and  useful  as  his 
clemency  to  others.  1  apprehend  the  stonn  is 
so  great,' that  for  some  time  you  can  do  little, 
but  so  soon  as  possible  1  know  you  will  be  at 
work,  for  these  false  people  will  do  nothin<v  but 
as  tlicv  sec  you  in  a  condition  to  do  with  them. 

Sir  Thomas  Ix-vingston  having  got  thekinjf*s 
instructions,  with  secretary  Stair's  letter  of  the 
16th  of  January,  and  knowing  by  a  letter  he 
had  from  the  master  of  Stair  of  the  date  of  the 
7th  of  January  1692,  that  lieutenant  colonel 
Hamilton  was  \o  lie  tlu^  man  employed  in  the 
execution  of  the  Glenco  men,  in  pursuance  of 
the  secretary's  letter,  he  writes  to  lieutenant 
colonel  Hamilton  upon  the  23d  of  the  itaitl 
month  of  January,  telling  him,  that  »t  was 
judgCi!  good  news*  that  Glenro  hati  not  taken 
the  oath  of  alletfianee  within  the  time  preiixcd ; 
and  that  serret»r\*  Stair  in  his  last  letter  had 
made  mention  of  liim,  and  then  adds,  *  For,  !Sir, 

*  here  is  a  fair  occasion  for  you,  to  .<how  that 

*  your  garrison  serves  for  some  use  ;   and  see- 

*  ing  that  the  orders  are  so  positive  from  court 

*  to  me  not  to  spare  any  of  them  that  have  not 

*  timely  come  in,  as  vou  may  see  by  the  ortlers 

*  I  send  to  your  colonel,  1  desire  you  would  ' 

*  begin  witli  Glenco,  and  spare  nothing  which 
*■  belongs  to  him  ;    hut  do  not  trouble  the  go- 

*  verniuent  with  prisoners  :'  as  this  letter  pro- 
duced by  lieutenant  colonel  Hamilton  bears. 

Aud  air  Thomas  being  heard  upon  this  letter, 


order  to  be  directed  to  lieutenant  eomd  Ha- 
milton, in  these  terms :  '  Sir,  yon  are  with  400 

*  of  my  regiment,  and  the  400  of  my  lord  Ar- 

*  gyle's  regiment,  under  the  command  of  majw 

*  Duncason,  to  march  8tr»pfht  to  Glenco,  and 

*  there  pot  in  due  execution  the  orders  joo 
*'  have  received  from  the  commmnder  in  chiif. 

*  Given  under  my  hand  at  Fort  William,  the 
« 12th  day  of  February,  1699.'  And  this  aider 
is  also  produced  by  lieutenant  colonel  HMniltao. 

Then  the  same  day  lieutenant  coUmicI  Ha- 
milton wrote  to  major  Duncason  in  tbeae  tcnM: 
'  Sir,  pursuant  to  the  commander  in  chief  iad 

*  my  colonel's  orders  to  me,  fur  imttin^  in  cx^ 

<  cution  the  service  against  the  rebels  ot  Gleoco, 

*  wherein  you  with  a  party  of  Aisle's  rcgi- 

<  ment,  now  under  your  command,  are  fo  fce 
'  concerned,  you  are  therefore  to  order  jssr 

<  affairs  so  that  you  be  at  the  several  poils  as- 
*■  signed  you  by 'seven  of  the  clock  to-merros 

*  morning  being  Satunlay,  and  fall  in  aclioa 
'  with  them ;  at  which  time  I  will  endeavoar 

*  to  be  with  the  party  from  this  place  at  tbe 
'  post  appointed  them.*  It  will  be  necessarr  tktt 
'  the  avenues  minded  by  lieutenant  CanpklM 
"  the  south  side  be  secured ;  that  the  old  fox  air 
'  none  of  his  cubs  get  awa^  :  the  orders  are,  tkit 

<  none  he  span^d,  nor  the  government  troaUel 
'  \\  itli  prisonei-s ;'  and  the  copy  of  this  last 
order  is  produced  under  lieutenant  colon*'l  Ha* 
milton's  own  hand,  and  accordingly  the  slaugli* 
ter  of  Glenco  and  liis  |K>or  [leople  did  ensoc  tbe 
next  morning,  being  the  13th  of  February, 
1(393,  in  the  manner  narrated.* 

And  upon  the  whole  matter,  it  is  the  opinioe 

*  The  author  of  the  Memoirs  of  the  Mafsa* 
ere  of  Gleuco,  says,  that  he  had  copies  of  Dai- 
ry niplc's  nine  letters  (viz.  to  col.  Hamilton,  t«# 
dated  isl  and  3d  December,  1691  ;  to  sirTbo. 
mas  l^vingston  five,  daud  7ih,  9th,  lllH, 
Itjth,  30lh  January  1()92 ;  and  to  col.  HilK  two 
dated  on  the  same  days  whh  the  last  tvio  to 
I.eving3ton)  which  were  produced  respectiDf 
this  massacre;  but  1  do  not  observe  that  be 
states  from  them  any  new  matter,  unkw  it  be 
the  followini;  passages : 

"  The  winter  is  the  only  season  in  which  at 
are  sure  the  Highlanders  cannot  escape  us,Dei 
carry  their  wives,  bairns,  and  cattle  to  tbi 
mountains." 

*'  It  i.s  the  only  time  that  they  cannot  escif* 
von,  for  human  constitutions  cannot  endoiel^ 
be  IJMig  out  of  houses.  This  is  the  prui»er  tttr 
son  to  maul  them  in  the  cold  long  niglits." 

**  I  expect  you  will  find  little  reststanee  bli 
from  the  season." 

**  1  am  coDtident  you  will  sec  there  tie  W 
powers  given  you  in  very  pletiQ  tenaSy  and  J< 


rapeeting  the  Massacre  ofGleneo. 


A.  D.  1690. 


pio 


romissioo  ;  First,  Tliat  it  vos  a  great 
lat  Glenco's  care  and  diligeiice,  as  to 
i^  the  oatb  of  allegiance,  witii  Ard- 
oertificate  of  his  taking  the  oath  of  a1- 
on  the  6th  of  January  1693,  and  co- 
il's letter  to  Ardkinlas,  and  Ardkinlas's 
Colin  Campbel,  sheriff  clerk,  for  clear- 
ico's  diligence  and  innocence,  were  not 
d  to  the  lords  of  his  majesty's  privv 
when  they  were  sent  into  Edinburgh 
id  month  of  January ;  and  that  those 
ised  the  not  presenting  thereof  were  in 
)g,  and  seem  to  have  had  a  malicious 
gainst  Olenco  ;  and  that  it  was  a  fur- 
tng  that  the  certificate,  as  to  Glenco's 
le  oath  of  allegiance,  was  delete  and 
e  afler  it  came  to  Edinburgh ;  and  that 
>  obliterate,  it  should  neither  have 
■sented  to,  or  taken  in  by  the  clerk  of 
icil,  without  an  express  warrant  from 
icil.  Secondly,  That  it  appears  to 
ID  known  at  London,  and  particularly 
laater  of  Stair,  in  the  month  of  January 
at  Glenco  had  taken  the  oath  of  alle^i- 
oagh  after  the  day  prefixed ;  for  he  saith 
tter  of  the  SOth  of  January  to  sir  Tho- 
riiigston,  as  is  above  remarked,  1  am 
t  Cilenco  came  not  in  within  tho  time 
ed.  Thirdly,  that  there  was  nothing 
ing's  instructions  to  warrant  the  com- 
1^  the  foresaid  slaughter,  even  as  to  the 
telf,  and  far  less  as  to  the  manner  of  it ; 
Ul  his  instructions  do  plainly  import, 
most  obatinate  of  the  rebels  might  be 
into  mercy , upon  taking  the  oatli  of  alle- 
iiough  the  day  was  long  before  claused, 
,  he  ordered  nothing  concerning  Glenco 
tribe,  but  that  if  they  could  be  well  se- 
frum  the  rest,  it  would  be  a  proper  vin- 
of  the  public  justice  to  extirpate  that 
thieves:  which  plainly  intimates  that 
is  majesty's  mind  that  they  could  not 
rated  from  the  rest  of  these  rebels, 
ley  still  refused  his  mercy  by  coutinu- 
rms  and  refusing  the  allegiance ;  and 
sn  in  that  case  they  were  only  to  be 
ed  against  in  the  way  of  public  justice, 
>ther  way.  Fourthly,  That  secretary 
etters,  especially  that  of  the  llth  of  Ja- 
69S,  in  which  he  rejoices  to  hear  that 
had  not  taken  the  oath,  and  that  of  the 
'  January,  of  the  same  date  with  the 
idditional  instructions,  and  that  of  the 
the  same  month,  were  no  ways  war- 
by,  but  quite  exceeded  the  kiog*s  fore- 
tnKtions ;  since  the  said  letters,  without 

bod  left  very  much  to  your  own  discre- 

I  we  see  what  is  done  by  the  chiefs,  it  is 
i  to  receive  their  tenants,  or  admitting 
lake  the  oaths  or  hoping  for  pardon,  tiU 
re  evidence  that  they  are  willinsf  to  pay 
Hi  to  yoo,  and  to  take  tacks  Sir  their 
Intiea.  Who  will  not  do  so,  and  were 
cbdlioni  must  feel  the  dimial  cousc* 
©fit" 


any  iDsiouation  of  any  method  to  be  taken  that 
might  well  separate  the  Glenco  men  from  the 
rest,  did,  m  pmce  of  prescribing  a  vindication  of 
public  justice,  order  them  to  be  cut  off  and 
rooted  out  in  earnest,  and  to  purpose,  and  that 
suddenly,  and  secretly,  and  quietly,  and  all  on 
a  sudden  ;  which  aretJie  express  terms  of  the 
said  letters  ;  and  couiparing  tbem^aud  the  other 
letters  with  n'hat  ensued,  appear*  to  have  been 
the  only  warrant  and  cause  of  their  slaughter^ 
wliich  m  effect  was  a  barbaroua  murder,  per  • 
petrated  by  the  persons  deponed  against.  And 
this  is  yet  farther  confirmed  by  two  more  of  his 
letters,  written  to  colonel  Hill  after  the  slaugh- 
ter committed,  viz.  on  Uie  5Ui  of  March  1692, 
wherein,  after  having  said  that  there  was  mucli. 
talk  at  London,  that  the  Glenco  men  were  mur- 
dered in  their  beds  after  tlicy  had  taken  the  al- 
legiance, he  continues.  For  the  last  I  know  no- 
thmg  of  it ;  1  am  sure  neither  you,  nor  any  body 
impowered  to  treat  or  give  indemnity,  did  give 
Glenco  the  oath  ;  and  to  take  it  from  any  body 
else  after  the  diet  elapsed,  did  import  nothing 
at  all ;  all  that  I  regrate  is,  that  any  of  the  sort 
got  away,  and  there  is  a  necessity  to  prosecute 
them  to  the  utmost  And  another  from  the 
Ha^ue,  the  last  of  April  1692,  wherem  he  says. 
For  the  people  of  Glenco,  when  vou  do  your 
duty  in  a  thmg  so  necessary  to  rid  the  country 
of  thieving,  you  need  not  trouble  yourself  to 
take  the  pains  to  vindicate  yourself  by  shewing 
all  your  orders,  which  are  now  put  in  the 
Paris  gazette;  when  you  do  right  you  need 
fear  nobody  ;  all  tliat  can  be  md  is,  tliat  iu 
the  execution,  it  was  neither  so  full  nor  so  Mr 
as  mi^t  have  been.  And  this  their  hum- 
ble opmion  the  commissioners,  with  all  sub- 
mission, return  and  lay  before  his  majesty,  in 
discharge  of  the  foresaid  commission. 

Sic  SubgerUfitur^  Twbddals,  Anamdale  (now 
marquise  of  Aoandale,  and  president 
of  the  privy  cooncil.)  Mubeat,  (now 
duke  ofAtliol  and  Wra  privy  seal.)  J  a. 
Stuart  (her  majesty's  advocate.)  Adam 
CocKBUui  (UUe  lord  treasurer  depat) 
W.  Hamilton  (lord  Whitelaw,  one  of 
the  lords  of  the  session.)  Ja.  Oouuvib 
(now  earl  of  Seafield  and  lord  higli 
chancellor.)    A.  Drvmhond. 

The  Repjoit  being  agreed  on,  and  signed  by 
the  eommifSMners,  several  members  mom 
in  parliament  on  the  34th  of  June,  that  the  said 
report  should  be  laid  Mm  the  house. 

Upon  which  his  majesty's  high  commission- 
er acquainted  the  parliament,  that  the  report 
of  the  commission,  thr  inquiring  into  the  busi- 
ness of  Glenco,  being  sent  to  liis  majesty  on 
Thursilay  last,  he  would  hiy  the  same  befora 
them,  with  the  depositions  of  the  witnesses, 
and  other  docnmentn  relating  thereto,  for  their 
satisfaction  and  full  information  ;  and  if  they 
thought  fit  to  make  any  other  use  of  it,  he 
made  no  doubt  it  would  be  with  that  de- 
ference and  submission  to  his  majesty's  judg- 
ment, tbot  becometh  so  loyal  and  sealoui  npnr- 


911] 


7  WILLIAM  IIL      Proceedings  in  the  Parliament  tf  Scotland,      [915 


liamcot,  in  Tindication'  of  the  justice  and  ho- 
nour of  bis  majesty's  gorernment. 

Then  the  report  from  the  commission  for  in- 
qnirin<;  into  the  slaughter  of  the  Glenco  men, 
was  r^,  with  tlie  depositions  of  the  witnesses, 
the  king^s  instructions,  and  the  master  of  Stair's 
letters,  for  instructing  the  said  report. 

After  hearing  the  said  report,  it  was  Toted, 
Ifemine  contradicente,  that  his  majestv^s  in- 
structions of  the  11th  and  16th  days  or  Janu- 
ary 1692,  touching  the  highland  rebels,  who 
did  not  accent  in  due  time  of  the  benefit  of  his 
indemnity,  did  contain  a  warrant  for  mercy  to 
all  without  exception,  who  should  take  the  oath 
of  aH^iance  and  come  in  upon  mercy,  though 
the  (irst  day  of  January  1692,  prefixed  by  the 
proclamation  of  indemnity,  was  passed ;  and  that 
therefore  these  instructions  contained  no  war- 
rant fbr  the  execution  of  the  Cilenco  men,  made 
in  February  thereafter.  Then  the  question 
was  stated  and  voted.  If  the  execution  of  the 
Glenco  men  in  February  1692,  as  it  is  repre- 
sented to  the  parliament,  be  a  murder  or  not? 
and  carried  in  the  affirmatire. 

Moved,  That  since  the  parliament  has  found 
it  a  murder,  it  may  be  inquired  into  who  were 
the  occasion  of  it,  and  the  persons  guilty  and 
committers  of  it,  and  in  what  way  and  manner 
they  should  be  prosecuted.  And  after  some 
delmte  thereon,  the  method  of  the  said  prose- 
cution was  delayed,  and  resolved.  That  this 
House  will  again  take  the  same  under  consi- 
deration first  on  ]^Ionday  next :  and  the  master 
of  Stair's  letters  were  ordered  to  lie  put  in  the 
clerk's  hands,  and  any  members  of  parliament 
allowed  an  inspectionthcrcof. 

June  20,  1C95. 
The  inquiry  into  the  persons  who  were  the 
occasion  (»f  the  slaughter  of  the  Glenco  men 
was  again  proponed,  and  motioned  that  before 
any  further  procedure  in  thnt  affair,  there  may 
be  an  address  sent  to  his  majesty  on  what  is 
already  past.  And  after  some  debate  thereon, 
the  question  stated,  proceed  further  in  the  in- 
quiry before  addressing  his  majesty,  or  a'iilress 
upon  what  is  already  past  without  any  further 
procedure  ?  And  carried,  proceed  further  before 
address.  i  ..  .    ,- 

Thereafter  the  question  stated  and  votad,  if    :„V*urn„i  r 
*L        I      1 1  i*    *  I  ^  ■  I     .1  \      \  ann  tlie  order 

they  should  nrst  proceed  to  consider  the  master 

of  Stair's  letters,  or  the  actors  of  the  murder  of 

Glenco  men  ?  and  carried,  First  to  consider 

the  master  of  Stair's  letters. 

Tiicn  the  master  of  Stair's  letters,  with  the  | 

king's  instruc'tioiis  to  sir  Thomas  Levir.sfston  i 

and  col.  Hill,  and  the  4ih  article  of  the  opiui'in  : 

of  the  commission  relating  to  the  master  of  I 

Stair,   was  read  ;  and  after  some  debate  the  ' 

Question  was  staled,    whether  the    master  of  . 

Stair's  letters  do  exceed  the  king's  coiumi-ssioii,  | 

towards  the  killing:  and  destroying  the  Glenco 

men,  or  not  ?  And  carried  in  the  aftirmativc. 


ing  upon  the  commission  for  inquinDg  into  tin 
slaughter  of  the  Glenco- men,  and  arraicninf  i 
vote  of  parliament :  and  therefore  moved,  Thil 
it  may  be  inquired  who  was  the  author  of  it, 
and  that  both  he  and  the  said  print  mayk 
censurefl.  Mr.  Hugh  Dalrimple,  brother  totbc 
master  of  Stair,  and  a  membier  of  |iarlianM0l, 
acknowledged  himself  to  be  the  author,  wui 
gave  an  account  of  bis  mistakes,  protntiif 
that  he  therein  intended  of>  reflection  on  ibe 
commission,  and  that  the  paper  was  wiitlet 
before  the  vote  past  in  parliament,  tbos^ 
printed  and  spread  thereafter. 

iCesolved,  That  first  the  author  and  thea  tbe 
print  be  censured.  And  Mr.  Hugh  was  or- 
dered to  ask  his  ipice  and  the  parliament  pv- 
don  ;  which  he  did,  again  declaring,  that  »bi^ 
was  offensive  in  that  paper  hskd  bappesd 
through  mistake. 

Thereafter  agreed  that  the  said  priot  ws 
false  and  calumnious.  And  the  qiiestiOB  \taaf 
stated,  If  the  print  spread  abroad  arooii|rst  the 
members  of  parliament,  intituled,  *  loforinatiflo 
*  for  the  Master  of  Stair,'  oughtto  lie  condenwi 
as  false  and  calumnious,  and  thei'dbre  burai; 
or  only  that  the  print  should  be  so  marked » 
the  mmutes  of  parliament ;  it  carried,  Tint  Ike 

firint  should  he  marked  in  the  miDiites  af  p«- 
iament  to  be  false  and  calumnious. 

Then  the  parliament  prooeeiled  farther  ia  As 
inquiry  of  the  slaughter  of  the  GI«oo-mb. 


And  in  the  first  place,  as  to  the  orden  gifcs  k 
sir  Thomas  Levingston,  in  two  of  his  latten» 
recti'd  to  lieutcnuut  colonel  Hamilton :  and  fk 
said  letters  being  read,  after  deliate  thereoo it 
was  put  to  the  vote,  pnareed  or  «lelay ,  and  «• 
ried  proceed. 

Then  the  question  was  statefl,  Wliefbcr  w 
Thomas  Levingstoii  had  reason  to  givefoti 
orders  as  were  contained  in  these  letters,  ft 
not  ?  and  was  carried  in  the  affirmative,  mmi^ 
contradiccnte. 

July  8,  1605. 

The  parliament  hnvini;  resumed  theiDquirT 
to  the  slaughter  of  the  Glenco-men,  and  vk» 


June  38,  1695. 
The  president   of   |»arliament  represented, 
That  there  was  a  print  dispersed,   intituled, 
*  Information  for  the  Master  uf  Stair,'  reflect* 


into  the  slaughter 

were  the  actors  ;  and  in  the  first  place  aW 

lieutenant  colonel  Hamilton,  and  that  |«rt^ 

the  commission  relating;  to  liia* 

rs  he  got,  and  the  orders  bes«< 

he  gave,  with  the  dep>sitions  taken  before  the 

I  said  commission  :  and  uf  tfT  some  debate  there* 

'  on,  the  question  was  stated  and  pu'  to  ihcTOtt- 

I  if  from  what  appears  to  the  parliament,  liMl* 

!  col.  Hamilton  be  free  from  the  murder  of  the 

!  Glenco-men,  and  whether  there  be  gmaod  l» 

I  prosecute  him  for  the  same,  or  not. ^  and  cit' 

I  ried,  he  was  not  ckar,   and  that  there  «** 

ground  to  prosecute  him. 

Tlion  tlie  question  was  stated  and  voted  ail* 
major  Duiicasun,  at  present  in  Flanders,  if  Al 
king  should  be  addressed,  either  to  cauas** 
to  be  examined  there  about  the  onlem  be  It* 
ceived,  and  his  knowledge  of  that  matter;  V 
that  he  be  ordered  home  to  be  procecuied  lklfe| 
fore,  as  \m  majesty  shall  th'uiK  fit,  or  W?  IV 
carried  in  the  afUrmative. 


IS] 


respecting  the  Massacre  ofGlenco* 


A.  I). 


[914 


Then  that  part  of  the  re|x>rt  of  the  commis- 
on,  as  to  Gienlyoii,  captain  Drninmond,  lien 
tnant  ur  adjatant  Lindsay,  ensign  Lundy,  and 
sijeant  Barber,  read  with  the  depositions  of 
le  witnesses  a^inst  them  ;  and  the  question 
tateU  ami  voted.  If  it  ap|>eared  that  the  said 
ersons  were  the  actors  of  the  murder  of  tiie 
rienco-men  under  trust ;  and  that  his  majesty 
e  addressed  to  send  them  home  to  be  prose- 
uted  for  the  same  according^  to  law,  or  not? 
LDd  carried  in  the  affirmative. 

Therefore  voted,  If  it  shouUl  be  remitteil  to 
be  committee  for  the  security  of  the  kins^dom 
B  draw  this  address,  or  a  new  committee  elected 
ar  drawinf]^  thereof?  and  carried  remit. 

The  report  from  the  committee  for  security 
)f  the  kin^om  in  favours  of  the  Gienco-men, 
rtad  and  remitted  to  the  said  o^minittee ;  that 
there  he  a  partit-ular  recommendation  of  the 
petitioner's  case  to  his  majesty  bront^ht  in  by 
Ike  said  ci)mraittee. 

July  10,  169J. 

The  Address  about  the  slaughter  of  the 
GImco-nien  to  lie  sent  to  the  kiofv*,  rend,  with 
W9en\  of  the  master  of  Stair's  letters  to  sir 
Hmnas  Levingston  and  colonel  Hill:  zu)d  after 
»Bie  debate  upon  the  parauraph  tonchint;:  the 
Mster  of  Stair,  it  was  voteil,  approve  the  para- 
gnph  as  brought  in  fmm  the  committee,  or  as 
4cred  whh  amendments:  it  carried,  approve 
Mbiwight  in  fruni  the  committee.  Therea(\er 
Ike  whole  Address  was  put  to  the  vote,  and  ap- 
fRited  as  follotvs : 

^  Address  of  the  Nirblemen,  Barons  and 
Burroughs  in  Parliament,  hnmbly  pre- 
sented to  his  most  Sacred  Blajesty  upon  the 
Discovery  communicate  to  them,  touch- 
ing the  Murder  of  the  Glenco-men  in  Fe- 
bniary,  1693. 

"  We  yoar  majesty's  most  loyal  and  dutiful 
ttbjccts,  the  noblemen,  barons  and  burroughs 
Membled  in  parliament,  do  humbly  represent 
ft  yoar  majesty  that  in  the  beginning  of  this 
WBOD,  we  thought  it  our  duty,  for  the  more 
ofenun  and  public  vindication"  of  the  honour 
ad  iuslice  of  the  covemment,  to  inquire  into 
be  barbarous  slaughter  comroittetl  in  Glenco, 
^cb.  1699,  which  hath  made  so  much  noise, 
lotb  in  this  kingdom  and  your  majestv's  other 
bmiDiciDS :  but  we  being  infbrmeil  by  your 
■ajeity's  commissioner,  that  we  were  pre- 
toted  in  this  matter  by  a  commission  under 
kn  great  teal  for  the  same  purpose,  we  did 
ipon  reading  the  said  commission,  iinanim- 
«sly  acquiesce  to  your  majesty's  pleasure, 
od  rctnmed  our  humble  acknowfadgments  f«ir 
■oorruyal  care  in  granting  the  same  ;  and  we 
■ly  desired  that  the  discoveries  to  be  made 
^ookl  be  communicated  to  us,  to  the  end  that 
m  micfht  add  onr  zeal  to  your  majesty's  for 
■Meeoting  tnch  discoveries  ;  and  that  in  so 
fldonal  a  concern,  the  vindication  might  be 
In  public  ai  the  reproach  and  scandal  had 
eeo;  and  principally  that  we,  for  whom  it  was 

VOL.  XIII. 


most  proper,  might  testify  to  the  world  how 
clear  your  majesty's  justice  is  in  all  this  matter. 

**  And  now  your  majesty's  f*omniis«ioiier, 
upon  our  repeated  instances,  cfimiuiinirated  tu 
us  a  copy  oflhc  report  transmitted  hy  the  com- 
mission to  your  majesty,  with  your  majesty's 
instructions,  the  ninstrr  of  Stall's  letters,  the 
oniprs  ^nveii  by  thi*  oflipcrs,  and  tlie  dfposition«i 
of  the  witnesses,  rrlaiiii<r  to  that  ropoit ;  and 
the  same  being  reud  and  compared,  we  could 
not  hut  unanimously  dt^^-lare,  that  your  ma- 
jesty's instructions  of  the  7th  and  16th  of 
.faniiary  169'^,  touchinsr  the  higlilanders  ulio 
had  not  accepted  in  due  time  ot  the  benctitof 
the  iiidemniry,  did  cohtniua  »  arrant  for  mercy 
to  all  without  (-xceptiun,  nho  should  oiler  to 
take  the  oath  of  nllegianre,  and  rome  in  ii|miii 
mercy,  ihouijh  the  1st  of  January  169'^,  pre- 
fixed by  the  prorlarnation  of  iuilemnity  was 
past;  and  that  I hrse  instructions  contain  no 
warrant  for  the  exei^ution  of  the  (Jlenco-meii 
inatle  in  February  ihrreafter.  And  here  we 
cannot  but  acknuCvltH);^  your  majesty's  signal 
clemency  upon  this  orcnsion,  as  well  as  in  the 
whole  tract  of  your  (rovernment  over  us  ;  for 
had  your  majesty,  w  ilhout  new  offers  of  mercy, 
given  positive  orders  for  the  executing  the  law 
upon  the  highlanders,  that  had  already  de- 
spised your  repeated  indemnities,  they  had  but 
met  with  what  thry  justly  deserved. 

'*  Dut  it  being  your  majesty's  mind,  accord- 
ing to  your  usual  clemency,  still  to  offer  them 
mercy  ;  and  the  killing  of  the  Glenco  men  be- 
ing upon  that  account  unwarrantable,  as  well 
as  the  manner  of  doing  it  being  barbarous 
and  inhuman,  we  proceeded  to  vote  the  killingf 
of  them  a  munler,  and  to  inouire  who  had 
given  occasion  to  it,  and  were  the  actors  in  it. 

**  We  found  in  the  first  place  that  the  master 
of  Stair  his  letters  had  exceeiiefl  your  ma- 
jesty's instnictions  towanis  the  killing  and  de- 
struction of  the  Glenco-men:  this  appeared  by 
the  comparing  the  instructions  and  lettert, 
whereof  the  just  attested  duplicates  are  here- 
with transm.tted ;  in  which  letters  the  Gfenco- 
men  are  over  and  again  distinguished  fr4»m  the 
rest  of  the  highlanders,  not  as  the  fittest  subject 
of  severity,  in  case  they  coutiniied  obstinate, 
and  made  severity  necessary  according  to  the 
meaning  of  the  instructions  ;  hut  as  men  ab- 
solutely and  positively  ordered  t«»  be  destroyed, 
without  any  further' consideration,  than  that 
of  their  not  having  taken  the  indemnity  in  due 
time ;  ani  their  not  having  taken  it,  is  valued 
as  a  happy  incident,  since  itafl*.irded  an  op- 
portiiiiity  to  destroy  them  ;  and  the  destroying 
of  them  is  urged  wiih  a  {;reat  deal  of  zeal,  as 
a  thing  acceptable  and  of  public  use ;  and  this 
zeal  is  extended  even  to  the  giving  of  direc- 
tions about  thf  manner  of  cutting  them  oflT; 
from  all  which  it  is  plain,  that  though  the  in- 
structions be  for  mercv  to  assist  all  that  will 
submit,  though  the  day  of  indemnity  was 
elapsfMl,  yet  the  letters  do  exclude  the  Glenco- 
men  from  ibis  mercy. 

**  In  the  next  place  we  examined  the  orders 
given  by  sir  Thomas  Li'vingston  in  this  waiter^ 


*r  WILLIAM  IIL     Proc^cdiMgi r^^eaiiig  ile  MaiMoere  &fGkn£& 


I 


KBd  vrere  uDititinointj  of  opinion  timt  he  biil 
Tttnion  to  jjire  ^uch  i>pd^r«  for  cyttinjr  oft'  ihe 
Gkiarf>'liicii, ,  M|>c»n  the  su|tpo»itioii  tl^l  l(i«-y 
bill  r«;^irtt  t)iG  Jtiik'iiiEi«ty»  ftoil  wiihimt  rr^k- 
iillf  ibcro  JMW  oir«ri*  of  m**fC  v,  h^iiig^  a  tbin^ 
if}  itseif  l^wtul,  vf]mk  ynpr' iwajesijf  mi^bt 
1*4 ve  «>ni<^r<^  %  hni  it  ap[»eaj"ioiar  tbat  sir 
ThofpAs  *^»ft  ibcn  iirnoFaiil  of  \Ue  i*eciilmr  <?ir- 
cumsiivticie^  i»f  tii«*  Oter-^^fr-meu,  lie  tui^^bt  ttry 
well  u»iJ«riUiHl  yotir  miijt^ty'i  inslruelions  in 
IW  re«tncied  &enae  whicb  Ibe  m&i^ter  flfHtaiP* 
letters  bail  ^ivcn  ttkf^m,  iff  tmikriUnd  tbe 
ma^rr  of  Siair's  Uuers  to  be  v our  majesty  *« 
iiidilmoat  pt^j^iirc,  as  it  h  ciriitCent  bt^  ditl  by 
tbe  firilenj  \>livch  he  guve,  i»ki«)f«  ftQ}'  wtdUi^n 
thut  is  to  be  foiiiitl  in  litem  t9  yotir  majeist^y 
lastruclionv,  m  ^\vtn  Dc»t  only  In  ittir  nitiilisr  i^f 
Stftir*8  MUSi',  but  in  bis  wt^rih. 

**  W<«  pror^ewleii  to  exfttitine  colonel  HiU*s 
pttrt  of  tU(f  bu^iiJi^^t  iiud  wine  itoanimoiti  tbtti 
be  «as  cleit  anil  fi^^^  of  tbt?  i^laugbi4?r  of  the 
C1«ni^>in^  ;  for  Utoii^li  yonr  ii*ajwiy'«  in* 
utmetbui,  ami  tlt*^  mazier  <»rSuir»  letters  wer* 
B<fit  •iraif  IKirn  l/»iidoii  to  him «  as  ur ell  m  m 
m  Tbwma»  l-erinf^tiiii,  y*M  be  knowimr  ibe 
jwc^nliar  eircuin stances  of  ibo  Cileiico-ni^R 
■biintietltcf  execiiie  tlitm,  aud  pav^i*  no  onler?*  in 
Ui«  iA»Uer»titl  borb  liiue  a^s  ktKvwin^  that  Uiat 
[|lilliiiftl}i-c«}lonel  bad  receivi^d  ordent  to  laki« 
Willi  bim  -UJO  oien  of  bis  garri^^nn  and  rcginivtnl^ 
b^t  Ifiiiife  bi»owii  honour  artfl  authority,  gave 
n  ffwii^rvl  order  to  liiitviltoo*  hi*  Ueuteniint^ 
($iilftii<l,  lu  take  ibe  40(1  nieOf  and  to  {loi  in  due 
ifiiecuttuti  tbe  orders  which  others  bad  giiren 
him. 

'^v  Lieutenant- colonel  Haictilton^s  part  cnme 
next  to  be  eon^Fidpred,  and  be  hewing  required 
to  h^  presenl,  and  calU  d,  and  not  appeAfiof ,  we 
Ofderetl  hiw  to  lie  deiaouoced,  and  to  he  seized 
on  w beret cr  he  could  lie  found  ;  it  ml  having 
4^<oiiaader^  the  onWfi  that  he  received,  and  the 
orders  which  he  ^ard  betbre  the  comkuie^ton  he 
jspiTe,  and  hi^  Kb  are  in  the  execution,  vt^e  3gTt«d 
Ujftt  from  what  aji^ieared,  he  «  as  not  clear  ^f 
tike  mnrdt^rof  the  GlcucO'mcn»  and  tliM  tliert* 
was  ground  lo  proneeute  hiiu  loriU 

**  Siajot  iloociuion,  who  f«oeiTed  orders  from 
HamiboUf  beins:  in  Flanders,  as  welt  us  Ihose 
lo  whom  be  ^\t  orderfl»  we  could  not  sec  these 
ot4erf( ;  and  (berefore  \we  only  ri^elved  about 
biro^  that  m  e  T^hould  address  to  your  mi^eatyf 
dilicr  to  cause  him  be  examined  there  in  Flan- 
ders atmui  the  ordf^rs  he  nxt-ivctt^  and  bi«  koow- 
ledge  of  tbiit  &AUir.  or  to  order  bim  home  to  he 
proven  ted  therefore  ^  as  your  majesly  aball 
ibink  iiL 

^*  In  the  la^  pl^ce,  the  deposit ion^  of  the 
wituei^&4.'^  \^eit^^  cle.ir,  a«  to  the  ah&i'e  whirh 
4^apt.  C'rLDiphel  of  Gk^nlyon,  tapt,  [Jrmnnwnd, 
Uautcr^nt  Lmd^^y,  ensign  Lundief  and  i^er- 
jeatit  Barber  bad  in  the  execution  of  the  Gleneo- 
luen,  upon  whom  tbev  weri*  qutnlcred  ^  we 
^(ree  that  il  appeared  thai  the  atid  per«otis 


mMswfwn 

krdiafji 


wtii  e  iho  actW!t  Lit  ilia  slan^^^t^''  ^  ^be  Oicnat- 
iu«^  under  trust,  and  (bat  we  sb<>utd  addr?« 
yoiir  nnaj««ty  to  send  theiti  beime  Ut  ht  itnm 
cnted  for  lb*  aa,me  accord  in^j  tn  Is  w . 

**  Tdk  bdog  the  Biaie>  *^  tb^t  whole  inatier 
as  il  bet  befiim  u^,  and  wbich,  l(>getber  witli 
the  rr^lt^rt  tnkn«riUitiH}  lo  your  n)^j«'9ily  b?  tb< 
coinnitsfiorier  (nod  whicii  w«  sftw  trnlwl) 
g^vca  hill  Tigiit  to  it ;  i^e  biiichty  Ut^^  tbit  ton* 
fcideririg  ibAl  tb#?  uia'ilor^d  Htair'n  cxce^i  io  ha 
tetters  against  the  Olenr.o<RieQ  has  beeci  iba 
orifpnal  caM^e  of  ihi»  unhntii^y  bttnociiy  bi4 
hath  gt^en  oeeaiiion  in  a  ifrval  n^ett^mv  to  m 
extraardinatyan  exw!«tiotn  by  the  w-arm  direc- 
tions be^ve^  aiK»tttdoin;r  H  by  ^'^y  of  irvr{tn2e ; 
and  considering  the  hijfti  Jitafioii  and  truii  be  k 
in^  and  that  be  is  absent,  (te  do  Iherefore  bef 
that  your  maj^ty  »iH  pvo^  aucb  ordirr^  «%«ii^ 
bim  toi'  viodicaUon  of  yuur^oTernmriii,  m$jm'^ 
in  your  rivftl  i^is^lom  tfball  ihink  fit. 

**  4ud  iikewiw;  «tiUKideriuj^  ibaJ  the  adort 
have  harbaroufjjy  kilM  men  umler  tritvi^^e 
bumldy  desire  y«nr  raaj^  nty  would  be  p«a»f4 
losiend  l\w  nctora  home,  nnd  lo  give  ord^rf  ttt 
ynur  advo<;&te  to  |»roifeciife  lU^in  accN^rdis 
law  'f  flier*?  reuiamiOK  nothing  eU**  to 
f^jrth"  full  Tiodication  <>f  your  |^of^«niii 
wo  Uml  and  eifrandatun^  uti  uApersioii  m 
lain  under  iiuon  ihtn  ocr^Kioti^ 

^*  Wedtati  oaiy  add«  that  the  roHi^iQa^tb 
Glcnco-men,  who  escarped  \hc  stau^bicf,  Maf 
red  need  to  great  poi'^rty  by  the  depnd&lim 
and  va:uttktion  that  wa«  then  oouimitted  npoa 
them,  end  harinir  c^er  !iinc«  lived  [i«aoeably  ua* 
deryoiir  majesty ^s  pi-otertirn^  tiare  now  applieJ 
to  u«  that  weinighl  intercede  with  yoormajisrtT, 
tliut  some  reparation  nmy  be  made  thetu  nt 
their  lo^cs*  We  do  humbly  lay  their  ca«« 
before  j^onr  mtijcst)'|  os  worthy  of  yonr  rojil 
cimrily  and  compassion,  thut  sncU  orders  m^ 
be  ifjvcn  for  snpplyintr  thi.'in  in  tlieir  oecw- 
sities,  as  yonr  majesty  ^h^ll  think  fiu 

^*  And  Ibis  the  most  bnnible  Addresar  of  \U 
eitotes  of  jtarlianient  i«t,  by  their  ordor  and  war- 
rant, and  in  their  name,  sub^crib^  by,  may  ii 
fdeaae  your  majetty,  yonr  rnajestVa  n»*^ 
itumble,  mott  obtilieni,  and  roo^t  faitlifid  «qI)- 
ject  and   servant,  **  A^fsawiMLE,  P.  P/* 

^*  July  10,  ica:>-    This  Addreas 
voted  and  approfeu." 

Thc'ti  it  wa^  recommended  to  his  majedy't 
eammiasiooer,  lo  transimt  to  tbo  kioif  tlw  itiit 
address,  with  duplicates  of  the  kioj^^^^  inslrof^ 
tions,  aod  of  the  master  of  Sioir':«  ktteri^, 

Movei^  That  tiis  maje^y's  eommistioofr 
hsv€  ibe  thanka  of  the  parhameni  for  tayii^^^ 
the  di*co*rery  noadtv  of  the  matter  of  Gfenco 
before  tbem,  and  that  the  comtniasiooers  baTt 
the  liko  for  iheir  earefnt  procedure  there  in  | 
which  being"  pn*  to  the  vote,  approve^  or  aait 
carried  ill  th€  a ffi  rni all v e,  nemi nt c&n ttadtCfnit  | 
wbieb  his  majesty's  cominis^ion-er  acc^ple^d  of* 


17J 


Proceedings  against  Thor,ias  AikaiheatL 


A.  D.  169G. 


t9IS 


01.  Proceedings  against  Thomas  Aikenhead^  for  Blasphemy:' 
8  William  III.  a.  d.  I696.  [Now  first  printed  from  the 
Records  of  Justiciary  in  Edinburgh,  and  MSS.  .the  property 
of  Lord  King.*] 


UKU  JusTicfARiiE,  S.  D.  N.  Re;;is  lonta  in 
Pretorio  liury^  ile  Edinbiirs^li,  vi«jftsiiiio 
terlio  die  uieiisis  Dcceiiibiis  16'J6,  per  lio- 
ooraliiltis  virus  Adaiuiim  Cockburae  do 
Ormistoune  Justiciariiini  Clericuni,  l)n- 
iQioos  CoHduih  Campbell  de  Aberucltill, 
Uavidem  Hume  de  Croceri^,  Joanncin 
Laoder  de  Fouutainkall,  et  Archibalduni 
Hope  de  RaDkcillcr,  Cuuimis^iunarius 
Justiciarij  dicti  S.  D.  N.  Resist. 

Curia  lej^ittime  afiinuata. 
Intran' 
Tkomta  Aiksnhtadt\  sone    to  tlie  deceast 
^MBi0%  Aikenhead,  ckirurj^D,  in  Edinburgh, 


ID  the  Tulbuith  thereof. 

lOU  are  indyted  and  accused,  att  the  io- 
taoeeof  sir  Jaiiieti  Stewart,  bis  mujesties  ad- 
ocat  for  his  hi^^hnes  interest,  and  b^  special  I 
rder  of  the  lord)  of  his  majesties  privv  coud- 
iBy  that  where  by  the  laws  of  God,  aud  by  the 

*  These  MSS.  for  the  nso  of  which  1  nm 
idfrUed  to  bis  lordship,  appear  to  ha^e  belon^tMl 
ft  the  great  Locke,  the  maternal  uncle  of  lord 
baiicellor  Kitij;. 

t  (*  No  counsel  appeared  fur  the  pnsonev»;  nor 
DCS  it  seem  tbatoou  word  was  ur^d  in  his  bc- 
■If  during  the  course  of  the  tnal.  Four  or 
te  witnesses  were  examined,  one  of  tiiem  a 
"ritcr  in  £diiibur{;h,  the  rest  students  at  tlic 
ffldferntyy  lads  from  ei^^hreen  to  twenty,  or 
venly-ODe  years  of  a^re.  They  proyed  most 
r  the  articl^  of  tlie  lilMel,  wiih  this  addition, 
Mftthe  priaoner  said  he  was  confident  Chrit>- 
aotty  would  be  utterly  extirpated  by  the  y^^r 
800.  There  was  however  a  mateiial  «iefect 
1  the  eridence.  The  article  most  hi^^lily  cri- 
unal,  Til.  the  railing  against  Gotl,  and  cursing 
V  Saviour,  was  not  proved  at  all,  but  was  an 
«  drawn  by  the  jury  from  the  prisoner's 
Bzra,  and  saying  that  the  inventors 


f  the  tcriptural  doctrines  would  be  damned,  if 
hoi  be  such  a  tiling  as  damnation. 

"^TIm  iuiy  unanimously  found  the  pri- 
iwr  gnihy  of  railing  wunst  God,  railing  at 
iid  eoniB^  Christ,  and  of  the  whole  other 
ktidti  in  toe  libel.  This  verdict  t  he  jury ,  even 
9  the  atatute,  were  not  warranted  to  pru- 
—IMJ.  The  railing  against  God,  and  cursing 
IMt,  Mffht  to  have  bm  tacts  directly  proved, 
^B0l  iitferencci  drawn  from  cursing  the  in- 
if  acriutoral  doptrinea;  and  as  for 
inv  of  UMpersonsof  the  Holy  Trinity, 
tOMdMiiil,  batobatimlriy  peraistiiig 


lawes  of  this  and  all  other  well- governed 
Christian  realines,  the  <:ryme  of  blasphemy 
against  God,  or  any  of  the  persons  of  the  blessed 
Trinity,  or  agaiust  the  holy  Scriptures,  or  our 
holy  religionc,  is  a  cry  me  of  the  higli«>t  na- 
ture', and  ou^riit  to  be  sevrruly  punished: 
Lykeas  by  the  act  tif  parliament,  iirst  parlia- 
mciu  Charles  3d,  act  21,  Intituled,  act  against 
tliu  cryrne  of  blasphemie,  it  is  statute  and  or- 
(laiuedj  that  whosoever  nut  being  ilistracted  in 
I  his  wit;s  shall  mill  u|»on  or  curse  G^kI,  or  any 
of  the  persons  of  the  hi  tossed  Trinity,  shall  be 
pi-uceshed  before  the  cheitc  justice,  and  being 
f<)und  guilty,  shall  be  punished  with  death'; 
aud  by  1 1th*  act,  d  session  of  the  present  cur- 
rent liariiamciit,  the  ibrsaid  act  is  not  only  rati- 
Hed,  but  it  is  tarder  statute,  that  whosoever 
bhall  in  their  wry  teing  or  discourse  denye,  in>- 
pugne  or  quarrell,  or  argue,  or  reason  againat 
the  being  of  God,  or  any  of  the  penMms  of  the 
blessed  Trinity,  or  the  authority  of  the  holy 
Scriptures,  of 'the  Old  and  New  Testaments,  or 

therein,  Mhif;h  by  the  statute  subjected  the 
offender  ti>  a  capital  punishment. 

**  iicsides  these  defences,  had  the  court  been 
endued  with  the  humanity  to  ap|>oint  counsel 
for  the  prisoner,  it  wo:iid  undoubtedly  have 
been  pled  for  him,  that  these  were  rash  words, 
drawn  from  him  in  the  heat  of  controversy, 
which  by  no  nieaus  coincided  with  his  serious 
notions;  and  that  he  heartily  repented  of 
tike  warmth  which  betrayed  him  into  expressions 
so  dissuiiant  from  his  own  sentiments,  bimI  so 
offensive  to  Uie  feelin<:s  of  others. — Had  these 
defences  been  ofleivd  for  him,  tlie  jury  could 
not,  without  being  giuliy  of  |*erjiiry,  have  con- 
victed him  of  obstinnieiy  persisting  to  deny  tht 
Trinity,  which  the  statute  requireil."  Aruot, 
326. 

According  to  Arnot  the  ful lowing  passage 
in  Fountainnall  relates  to  tlie  father  of  this 
Thomas  Aikenhead : 

'*  April  20.  James  Aikenheail  apothecary  in 
Edinburgh  is  pursued  before  the  |>rivy  council, 
for  selling  poisonous  aud  amorous  drugs  and 
philters  to  provoke  lust,  whereby  a  wnman  had 
narrowly  escaped  with  her  lite,'  had  \wX  doctor 
Irvine  given  her  an  anliflole.  I1ie  fnuncil  re- 
ferred the  trial  and  re|NH't  thereof  to  the  eolle 
of  physicians,  .  as  being  pcriti  in  arte ;  - 
thought  such  medicaments  not  nate  tu  be  gnt 
without  first  taking  their  own  advice." 

Of  the  case  of  this  man,  (mUcalled  Aikoo) 
there  if  a  short  report  in  ftlacJafirai. 


le  eoilego 
te ;  who 
*  be  gi^W 


919] 


8  ^VILLIAM  III.         Proceedings  agahist  Thomas  Aikenhead,       [920 


covei 

the  worlil,  slmll  for  the  first  fault  be  punished 
ivith  iiuprittOiiQient,  qv,  and  while  he  ^?c  |)ub- 
lict  satisiactiou  iu  sackcloath  to  the  coiig^reg^- 
tione  witliiD  which  the  scandall  is  committed  ; 
and  for  the  second  fault  be  flyned,  besydcs  his 
Leingf.  imprisoucd  as  above,  and  lor  the  thinl 
should  1)0  iiunishcd  with  dealli,  as  ane  obstinat 
Uasplicmer :  Nevertheless  it  is  of  verity,  that 
you  Thomas  Aikcnhcad,  shakeini;  off  all  fcur 
of  God  and  re^^ird  to  His  majesties  lawes, 
hare  now  for  more  than  a  tweh'cmonelh  by 
past,  and  u|>on  sevcrall  of  the  daycs  within  the 
said  space,  and  ane  or  oiher  of  the  same,  made 
it  as  it  were  yonr  endeavour  and  work  in  sc- 
Terall  compainies  to  vent  your  \t  icked  blasphe- 
mies agraiust  God  and  our  ^)ilviour  Jesus  Christ, 
and  aij^ainst  the  holy  Scriiitures,  and  all  re- 
▼ealletl  reliju^tone,  in  soc  tur  as  upon  ane  or 
other  of  the  daycs  forsaid,  you  sriiti  and  afHrm- 
ed,  that  divinity  or  the  ihictriiie  of  thcoloj^ie 
was  a  rapsidic  of  faipitd  ami  ill-iuvtntcd  uuii- 
sense,  patchcnl  up  partly  of  the  morall  doctrine 
of  philosophers,  and  pairlly  of  pucticall  (ii'lior.s 
and  extravagant  chimtras,  ur  viords  to  this  ef- 
fect or  purpobc,  with  se^erall  it\\icv  such  Vf - 
prouchfull  exprcHsions;  Lykcus  you  scoti'tid  ut, 
and  endeavoured  to  ridicnU:luetii»ty  scriptures, 
calling  the  Old  Testament  Ezra's' fables,  by  a 
profane  all-.ibiune  tn  Em>]i*s  fables,  and  saymg; 
that  Ezra  nas  the  iuvcnter  thcrof,  anitlhat 
beings  a  cunning  man  he  drew  a  iiuuiber  of 
Babylonian  slaves  tu  follow  him,  for  whom  he 
made  up  a  feipned  p^envalogir  as  if  ihoy  had 
been  descciulcd  of  kiiif^sand  [iiincvs  in  the  land 
of  Caniian,  and  tlicrby  impo:>iJ  ujton  C'vrus 
who  was  a  IVrsian  and  t.lran:;tT,  peisn.ulin<4- 
Lim  by  the  devycf  cif  a  pivU;iidit  prophecy 
conci!rnini>:  hiuibelf ;  and  as  fur  the  New  Tes- 
tament, YOU  not  only  scoif  at  it,  hut  in  your 
Itcnfling  (fid  must  blasplif.nmiNly  laill  upon  our 
l^rd  and  S.niour  .Itsus  Christ,  callingf  the 
said  New  Testament  the  Hist«>ry  of  the  Im- 
])Ostor  Christ,  and  athriiiln;;  him  to  hu\e  learned 
inaj^rick  in  Kuypt,  and  that  couiini;-  from  Ej^y  pt 
into  Judua,  he  piekcd  up  a  few  i;;aonint  l)|(»ck- 
ibh  fisher  fellovts,  whom  he  knew  hy  his  skill 
anil  *  phiso;4itomie,  had  strouj"-  ima;jinalions, 
and  that  by  the  helj)  of  exalted  imaginatione  he 
playM  his  pranks  as  you  Llashi)hcmonsly  terme 
the  working  of  his  miracles:  L\kcas  ^on  af- 
firmed Moses,  if  ever  you  say  tlier  was  sueh  a 
man,  to  ha\e  also  learneti  uiairiok  in  E;>fypt, 
but  that  he  was  IkUIi  the  better  arteist  aii<l 
better  politieiau  than  Jesus;  as  also  you  ha\e 
cursed  Ezra,  Mose^,  and  Jesus,  and  all  men  of 
that  sort,  affirmeing  the  hol}'^  Scriptures  to  be 
60  stutfed  with  maddness,  intn^ensi-,  and  con- 
tradictions, that  you  admired  the  stupidity  of 
the  world  iu  being  soe  long  I'.eluded  by  them  : 
Lykeasyou  reject  the  ujyster\  of  the  blessed 
Trinity,  and  suy  it  is  not  worth  any  man's  rc- 
^tation,  and  you  also  scnlfe  at  the  mistery 
ofthe  inairnatiun  of  Jesus  Christ,  aiiirmiug 
bU&sbpheniOusly  that  Tlieantropos  is  as  great  a 


So  iu  the  Original. 


coDtradictione  as.  Hircns  Cerras,  or  a  qoadn- 
tum  to  be  a  rotundum ;    and  as  to  tbe  doctrine 
of  redemptioue  by  Jesus,  yon  say  ti  rs  a  proml 
and  presum|]tuous  devvce,  and  tnat  the  inreo- 
tars  therof  are  daiuneff,  if  after  tbis  Kfe  ther  kr 
either  rcwaird  or  puoishineDt ;  you  also  deny 
spirits,  saying  that  the  notion  t.t  a  spirit  is  a 
contraiiiction,  and  you  have  maiotaioed  that 
G(h1,  the  world,  ahu  nafture,  are  but  one  thi.-:;:. 
and  that  the  worhl  wasfrom  eternity  ;  andv^Hi 
assert  that  man's  iroaginatiooe  duely  exakei 
by  airt  and  industry  can  «lo  any  thine,  evfoiH 
the  infinite  power  of  God  :  y  ou  have  Tykaayii 
in  discourse  preferred  Mahomet  to  the  bksM 
Jesus,  and  you  have  said  that  you  hoped  torn 
Christianity  greatly  weakened,  and  that  ymi 
are  confident  that  in  a  short  tyine  it  will  bent- 
terly  extirpat,  and  you  have  been  so  buU  in 
your  forsaid  blasphemies,  that  when  von  biic 
found  yourself  cold,  you  have  wi  died  to  be  ia 
the  place  that  Ezra  calls  Hell,  to  warine  viMir- 
self  there:    anti   these  blasphemous  nuhnp 
aiul  expressions  in  the  words  above  srttiloini. 
or  words  to  the  like  purpose,  you  haie  vui- 
odiy  uttered  in  sevcrall  couipanies  without  t!t' 
least  provucatione,  but  nwerly  prompted  by  m* 
irreligious  and  devilish  malice  against  Gua«:ta 
our  blessed  Saviour,  and  the  mo.st  dmcemii-.: 
trnihs  of  the  holy  Christian  religion.    Bys!) 
which,  it  is  manifest,  that  you  are  gailty  iJrt 
and  pail  t  of  horrid  bbsphemy,  railliug  apiiiHl 
and    cursing   our  Lord   and    Haviour  Jess 
Christ,  and  impugneiug  and  denying  tbe  trvtb 
ofthe  holy  Serijiiures,  and  the  quarrelling  and 
argucing  against  the  l>eing  of  God  and  a^aiod 
his  pro\ideuce  in   ma.. nig  and  governing  tk 
world,  wiiich  being  found  by  the  \erdiot  ot'ao 
Assize,  you  ou^^lil  to  be  punishtd  by  death, asd 
the  vjntiscation  of  your  moveables,  to  the  ex- 
ample and  terror  of  others  to  c(»mmiatbe  hio 
in  tyme  coming. 

Sic  SubscriOitury  J  a.  Stewart. 

Pursuer — Sir  James  Stewart,  bis  Illajc»tirt 
Advocate. 

My  Lord  Advocate  pniduced  an  act  of  coun- 
cill  tor  pursueing  the  pauual,  wherof  tht  iCGar 
folio wes  : 

Act  and  Rtmitt  of  Council  for  pursuing  Tk^ 
was  Aikvnhead  before  the  Lords  of' Jmlititry 
J'.;r  hiasphewt/y  ^C- 

EiOiNBURfiii,  Noiember  10,  1696. 

The  lybell  at  the  instance  of  sir  James  Stew- 
art, his  majesty's  advocate,  against  Tliooii 
Aikenhead,  sone  to  the  deceast  Jame;*  AikA- 
liead,  apothecary,  for  Blasphemy,  being  thii 
day  called  in  presence  of  the  lonis  of  bit  IM- 
jestie's  privy  council,  and  the  lord  advocate  «i 
sir  PatricK  Hume  his  majesties  sollicitor,  ooa- 
l>earing  personally  for  his  majesty's  iDieicHt 
and  the  defender  compearing  also  pcnoaafci 
the  ly  bell  and  answers  therio  beinip  raad,li> 
saids  lords  of  his  majestie's  privie  couacill  btM 
remitted  and  hereby  reniitts  tbe  Mid  ThomM 
Aikenhead  ddender  to  be  punuad  bcftrlli 


21]  for  Blasphemy. 

if4toomnii8iioiieri  of  his  inajeitie's  justiciary 
IT  the  nid  cry  me  of  Blasphemy,  and  appoynts 
Be  nid  lord  ad? ocate  to  intent  and  prosecute 
be  said  proccfls  against  the  said  Thomas  Aiken- 
oialyfe:  extracted  by  me. 


itadfor 

Sic  Sfuktcrlhitur^ 


Gilbert  Elliot, 
Cls.  St.  Cons. 


iNTERLOaUCTOR. 

The  loffdsjostice  clerk,  and  commissioners  of 
naticiary,  having  considered  the  iiidytmeut 
pursued  at  the  instance  of  his  roiyestic-s  ad- 
i9Cite  affsinst  Thomas  Aikeiihead  prisoner, 
tbey  ffind  the  cursing  or  raillein^  upon  any  of 
Ike  peraooes  of  the  blessed*  rehvant  to  iiiferr 
the  peine  of  death  \  and  ffinds  the  other  crymes 
Ijkdled  relerant  to  interr  an  arbitrary  punish- 
ment, and  remitts  the  indy  tment  to  the  knovir- 
nAgt  of  the  Assyscf 

Sk  Subtcribitur^  Ad.  Cockburn,  T.  P.  D. 


*  So  in  the  Record. 

+  It  appears  that  Aikenbead  before  his  trial 
ndeavonred  by  the  following  Petition  and  Ke- 
nelioo,  to  prevail  upon  the  Court  of  Justi- 
atry  to  desert  the  diet  ogainst  him  : 

Coto  the  right  hooouralile  the  Lord  Justice 
General,  Justice  Clerk,  and  remanent 
Lords  Commissioners  of  his  Majesty's 
Justiciary.  The  Supplicatiou  of  Thomas 
Aikenbead,  now  prisoner  in  the  Tolbooth 
of  Edinburgh. 
**  Hombly  Sheweth  ;    Tliat  your  petitioner 

a  indicted  and  cited  to  appear  before  your 
ijps  to  underly  the  law  tor  the  ciimescon- 
iMsd  m  the  criminall  indictment  raiseil  against 
IK,  and  which  crimes  therin  contain^  are 
Msdioas  and  abominable  inthemselfs,  that  I 
ii  iut  only  from  my  very  heart  abhorre  and 
idat  them,  but  I  do  tremble  ^d  abhorre  either 
to  repeat  the  samen  myself,  or  to  hear  the 
woea  repeated  and  objected  against  any  person 
born  of  Christian  parents.  And  theretore  yuur 
petitioner  doth  witli  all  humility  and  ingenuity 
if|Mewnt  to  your  lordships,  that  he  doth  rui^e- 
iMiibly  acknowledge  it  to  be  his  greatest  hapy- 
IMS  that  he  was  bom  and  cducat  in  a  place 
vbeie  the  gosf^ll  was  professed  and  so  power- 
Uly  and  plentifully  preachi'd,  upon  a  tnie  im- 
pisvmeot  of  which  benefite  he  doth  truely  be- 
Mfe  the  salvation  of  hisimmortail  soul  doth  in- 
irriy  depend.  (3.)  I  dq  firmly  believe  the  im- 
BMrtality  of  the  soul,  and  that  tlier  shall  be  a  re- 
■TMUioa  of  my  body  at  the  last  day,  at  which 
mt  they  shall  be  again  united,  and  there  • 
Aer  cither  made  eternally  happy  in  heaven,  or 
<hai  ■  ise  coademned  in  everlastmgand  endless 
to  Mima,  (3.)  1  do  firmly  own  and  lielieve  in 
\m  OMty  and  Trinity  of  the  Godhead,  and  that 
bar  M  DO  aalvatkm  to  be  expected  otherwise 
■B  kj  tiie  blood  and  merits  of  our  Lord  and 
■nBor  Jeans  Christ,  and  by  a  firm  believing 
riraiyiMT  upon  the  aamen.  (4.)  1  do  also 
■fcnaM  intfcmioualy  believe  the  scriptures 
r  Iht  OU  aM  New  Teatan^ent  to  be  cannoni- 
il,  MiivritanaMldifllaied  by  holy  men  io- 


A.  D.  1G96. 


ASSISA. 

James  Bowden,  late  baillie,  of  Edinburgh. 
George  Clerk,  late  baillie,  there. 
Michacil  Allan,  late  dean  of  Gild,  there. 
Charles  Charters,  late  baillie  there. 

spired  by  the  Holy  Ghost,  and  to  be  of  divine 
authority  and  set  down  as  a  rule  for  our  obe- 
dience and  iatlh,  and  by  believing  whereof  a 
happy  immortality  may  be  obtained,  and  no 
otberways.  And  I  do  also  believe,  and  assent 
to  the  whole  other  principles  of  our  holy  Pro- 
testant  religion,  such  as  the  celebration  of 
baplisnH  and  the  hol}^  sacrament  of  the  Lord'a 
supper,  as  truely  institute  and  ordained  by  our 
blessed  Saviour,  and  thereafter  practised  by  hia 
holy  Apostles  ami  their  successors  to  this  very 
hour,  and  that  the  said  sacraments  are  to  this 
moment  celebrated  with  the  greatest  purity  in 
our  reformed  Protestant  churches  in  Brittain 
and  Ireland. 

'*  All  which  premises  1  do  not  only  own  and 
acknowledge  to  be  the  true  grounds  of  my  own 
faith  and  beleif  bat  that  I  am  obliged  to  own 
and  mantain  the  samen  albeit  with  the  hatard 
and  loss  of  my  life  and  all  thincfs  earthly,  and  I 
do  believe,  own,  and  acknowledge  tlie  haill 
heads  of  our  reformed  religion,  contained  in  our 
confession  of  faith  as  approven  by  act'of  parlia- 
liaq\ent.  And  I  firmly  heUere  that  in  case  I 
should  hapen  to  de|»art  from  a  true  belief  of  tha 
premises  or  any  part  thereof,  the  just  punish- 
ment due  therefore  could  be  no  less  than  the 
etemall  mine  and  tormenting  of  my  body  and 
immortall  soul  in  hell  for  ever,  as  is  threatued 
by  our  blessed  Lord  and  Saviour  in  his  holy 
Evangells. 

«*  This  being  premised,  it  is  furder  represent- 
ed to  yodr  lordships,  that  denying  the  haiH 
articles  of  the  indictment  raised  against  me  as 
they  are  lybelled,  so  whatever  ezpresaiooi 
mii^ht  have  escaped  me  relateing  to  any  of  the 
articles  in  the  said  indictment,  the  sameo  was 
uttered  or  expressed  by  me  not  as  my  own  pri- 
vat  sentiments  and  opinions,  but  were  repeated 
by  me  as  sentiments  and  opinions  of  some  athe- 
isticall  writers  whose  names  I  can  parliculariy 
condescend  upon,  and  whose  books  1  did  rs- 
oeave  from  who  is  not  only  insert  in 

the  list  of  the  witnesses  to  be  adduced  against 
me,  but  was  the  cheif  and  princinall  instrument 
who  constantly  made  it  his  work  to  interrogat 
me  auent  my  reading  of  the  saitl  atheistiodl 
principles  and  arguments  therin  contained,  and 
of  which  I  am  now  very  sensible  and  heartiiy 
aory  tor:  and  am  convinced  that  theae  books 
are  most  villanous  and  atheisticall,  and  ought 
neither  to  be  printed  norezpooed  to  public  view: 
but  I  absolutely  deny  that  ever  the  exprfisiiOBa 
contained  in  the  indictment  were  uttered  by  me 
in  the  terms  lybelled,  at  least  that  ever  they 
were  apoken  by  me  as  m  v  own  privat  opinions 
or  sentiments,  but  that  whatever  ezpresakNi^I 
had  relating  to  what  is  lybelled,  wera  only  ex- 
pressed by  me  as  the  argumenta,  set  down  m  the 
said  athcuticill  books,  which  had  nnliippily 


923] 


8  WILLIAIM  III.         Proceeilinfrs  against  Thomas  Aikenhead,       [924 


Robert  Forrester,  late  Kirk  theasurcr  there. 
Adam  Brouo,  latebaillieof  Ediuburj^h. 
Alexaodcr    Thomsone,  late    deacon    con- 

▼eener. 
Jerom  Kobertsone,  peririg-maker,  there. 
James  SK^lurg^,  late  dean  of  Gild. 
Patrick  Thomsone,  late  thesaurer. 
William'  Pattoune,  late  baillie  of  Edinburgh. 
Robert  Elphinij^toane,  of  Lopnes. 
Cteorge  Mossnaian,  stationer,  there. 
George  Fullertoune,  of  Dreg  home. 
James  Dunlop,  merchant,  in  Edinburgh. 

The  assyse  lawfully  swume,  noe  Oijectione 
«f  the  law  in  the  contVair. 

Five  persons  summoned  on  the  jury  refused 
to  attend,  and  were  lined  100  merks  each. 

His  Majestic^ s  AdwKatc  fur  probiUioii  addu- 
ced the  witnesses  afU'r  deponciug,  tiz. 

Mr.  Adam  Mitchell^  student,  in  Edinburgh, 
aged  twenty  years,  not  niarrieil,  purged  of  ma- 
lice, prejudice,  and  partial  councill;  de|M>nes  he 
has  bein  severall  ty  mes  in  company  with  Thomas 
Aikenhead,  panuall,  when  he  heard  him  affirmc 
that  divinity  or  the  doctrine  of  thccdogv  was 
ane  rapsodie  of  feigned  and  ill  invented  non- 
fallen  in  my  hands  as  suid  is,  and  seing  1 
was  at  tite  time  lybcilcd  minor,  and  as  yet  am 
80,  and  under  age,  and  that  I  do  perfectly  de- 
sist and  abhorre  the  atbeisOicall  expressions 
lybelled  against  me,  and  do  truely  believe  the 
articles  alh)ve  represented  as  the  true  principles 
of  my  faifh  and  religion,  and  urn  ooutenV  to 
testify  my  surrovv  aiiil  remorse  to  the  world  for 
my  lonnVr  rscijis  as  to  any  thinir  contained  in 
the  inJiotmcnt.  impeintr  Ity  the  blessing  and  as- 
sistance of  our  bli'ssi'd  ISdviour,  nut  only  to  be 
delivered  from  ail  siicli  snares  and  temptations 
in  time  t'cniiii^;,  but  lik(>tvise  to  lead  a  life  sute- 
able  to  the  <^osi;ell  and  tlie  expectation  of  eter- 
nal life,  tlirouuh  ilie  bluod  and  meritK  of  oiu* 
dear  and  only  Sa\iour. 

**  May  it  thei-eforc  pleas  your  lordships  se- 
riously to  consider  the  premisses,  and  to  have 
compassion  on  my  young  and  tender  }ears  (not 
being  as  y*t  m.iior)*aiul  tiiat  I  Imve  been  ko  in- 
nocently lifiraj.od  and  induced  to  the  leading 
of  sucii  alhiMMical  bonks,  and  aOer  rt.uliii«; 
tlirrof,  lK-ing('\i'oijMi:i-ly  iuiposeil  uimhi  ti»  tjiu- 
an  a(XH)unt  oi  ihc  aliominahle  an  I  ;it:ii*istic-a! 
prinripU>s  oo'.taiinil  und  :i*s.  rt  u!  in  llioni,  and 
th;*i  I  do  triifly  (»\vn  tin  Urn-  I'rotovtuiit  ri  ii;^ion 
as  the  onl\  imans  ai.-l  w.iy  to  ♦t;'rnal  liii-  and 
happyncvs,  and  d<»  aiiiii'irc  all  aiiici^Ucnl  priu- 
ciplc^K,  and  otli(.r*>  whaisot^or  ixwy  \\\\\  contrair 
tlierlo,  and  a-.i  n  iilvri!  hy  the  as^i^lan!  <'  of 
Almighty  ivoil  lon^l.c  my  aiilion*  net'  of  u  hat 
is  CffutaiiH  d  ill  the  s:iid  ivUI!,  apji-ar  to  the 
world  by  uiy  sulisi  ^jurnl  ;it»'  and  foiiwrsali.pn, 
and  in  icspei*t<>i'iii\  s:tid  niin>*rii\  a:)il  n  »'i  a^c, 
and  what  is  a!iO\c  i('|iri'S(  ntcil,  \i.A  X\t\*\  \W\,  is 
only  the  1ir4  time,  tiiai  ever  I  u:->o  t{ii.>iioiiiJ 
upon  such  an  arcomit,  to  dv:.  a  tln'  liyH 
against  me.  And  your  petitiuiitr  :;hall  ever 
pray,  &c."    Lord  Ring*  31SS. 


sense,  within  the  tyme  lybelkd,  which  is  a 
twelve  monetli,  and  that  he  has  beard  him  scoff 
at  the  Scriptures  of  the  Okl  Testament,  call- 
ing them  Ezra's  Romances ;  depons  that  he 
heard  him  say  that  our  Savioar  wrought  m 
miraclrs  but  what  any  other  man  might  hiie 
wrought  by  ane  exalted  fancie ;  and  speakiog 
of  Moses,  he  called  him  a  magttian,  and  coui- 
puring  him  with  Jesus  he  called  him  the  better 
artist  and  polititian  of  the  two ;  depons  thai  be 
heard  him  deny  our  Saviour  Jesus  to  be  the 
sone  of  God,  and  that  the  Apostles  were  a  ctm- 
pany  of  silly  witless  fisher- men  ;  and  he  bearrf 
him  say  that  he  wondered  the  world  was  s> 
long  deluded  with  their  contrailictions  wai 
nonsense;  farder  dcfions,  that  he  has  haird 
him  reject  the  mystery  of  tlie  holy  Trinity,  and 
that  ollner  than  any  other  thing;  and  that 
he  heard  him  reject  Yhcanthropus  or  God-Dtiio 
as  a  contradictione,  aud  it  was  as  alMurJ  ui 
Hircus  Servus,  that  is  a  goat  and  ane  bsitiu 
one  animal! ;  depons  tliat  he  lieard  him  nuu- 
taine  that  man's  imaginatione,  raised  by  lin 
and  industry  to  a  hi{^h  pitch,  could  doe  as  mud 
as  our  blened  Saviour  did;  and  tliis  is  tbt 
trutli  as  he  shall  answer  to  God. 

Sic  Sa hscribitur,  A.  M  i  re ii cu. 

Mr.  John  Neihonc^  WTyter,  in  Edinbur^ii, 
aged  near  to  twenty  years,  unmarried,  wu^^ 
of  malice,  prejudice,  and  partiall  council!,  surf 
solemnly  swome ;  (lefmns  that  witliiu  tlie  tjme 
lybelled  he  has  freijuently  heani  the  pannill 
affirme  that  divinity  or  the  doctrine  of  theolc.nt! 
was  a  cheat  and  rapsodie  of  ill-in>ented  ivm- 
sense ;  as  also  he  has  heard  hi::<  fref^ucDM,. 
scoff  at  the  holy  Scriptures,  and  lidiinle  i::t 
Scriptures  of  the  Old  Testament,  and  call  i'k^u 
Ezra's  Fables,  and  that  Ezra  was  lite  iu^ci.c. 
of  them  ;  as  aUo  he  has  severall  times  h.r'ii' 
him  say  that  Ezra  bi'ing  a  eunniu;;  n):i;).  lie. 
drew  a  numlHT  of  Babylonian  slaves  to  iuii>»» 
him,  fur  whom  he  made  up  a  ici!;:K-!  •^•■-..f- 
alogie,  as  if  they  had  bein  descendii  if  l..'.;;\ 
and  piinces  in  the  land  of  C'auaan.  an!  ir.'.p!*^! 
upon  Cyrus  who  uas  a  PtTsiAn  an«i  htraiiuii'< 
{lersuadeing  him  by  the  pretendit  di'iyci*  *u  a 
propheeie  concerning  himself,  and  gotl  a  ^if^^i 
(piantity  of  gold  from  Cyrus,  ami  ;;old  ir^vliJ 
thai  Mas  never  in  the  t'.'mpk'.  upon  pnirua 
that  they  had  iK'in  t;ikin  out  of  the  t<:in|ili' il 
.Icrusakni,  whcras  iruely  it  was  not  soi»:  *k- 
[lom-s  he  has  h»  aid  him  scoif  at  the  New  Tei- 
lament,  and  atlirine  that  our  Saviour  hsd 
loarnrd  magii'k  in  I'-gypt,  and  that  coraiD|f 
from  Kgypt  unto  Judea  he  picked  up  a  few 
hitK'kich  iu:nornnt  lisher  fellows,  whom  he  Luew 
hy  his  skill  in  phiNogiioiny  had  stron;;  initgi- 
nations,  none  having  strongiT  ima^;luatlOMi 
than  i^rnorant  |K.'ople,  and  that  our  Saviour bf 
his  own  and  his  Apostles  imaginationes  pI'V* 
his  pran.';s  ;  he  also  heanl  the  |iannall  sffir^ 
tliat  ■VIo.-)>*s  (ifeverther  was  such  a  man)  M 
also  learned  inai^iek  in  £g\pt;  depOOi  kt 
heard  the  panuall  curse  Ecfa  and  aUtheiih 
venters  of  the  SiTiptures,  and  all  the  ptMMlHi 
of  them,  ministers  and  others,  ami  te  kv 


'] 


for  Blasphemy, 


A.  D.  161X). 


[986 


nl  him  affirmc  tbat  the  Scriptures  were  full 
(-ontra.lictious ;  dejious  lio  has  iioanl  him 
'Till  i^niesileny  that  our  hlessetl  Lurd  was 

sonc  uf  Gml,  autl'  ailirme  tiiat  Gorl-niau 
s  a  coutradictiob,  and  cuuipare  Theanthro- 
.to  a  si|uaire  triangle,  and  he  has  heard  him 

that  if  iher  was  any  punishment  aiW  this 
.  surely  Ezra  and  his  foUouers,  whom  he 
if  d  Ezrait^i,  were  dauuied  ;  and  farder  heard 
n  assert  that  man's  imaginationc  exalted 
•^ht  dn:  any  ihiii<r;  and  also  hcani  him  say, 
It  within  s\M\\^  hundreds  of  years  the  vt  hole 
irld  wmild  1m^  ctiiivijrtcd  to  Ids  opinion,  nud 
eChriiftiau  rcHt^ioii  woulil  he  wholly  ruiuetl ; 
td  dcfiones  that  he  Iirard  him  say  one  ni^ht 
August  Iflst,  when  he  was  cold,  he  wished 

be  brsydc  the  place  J^zra  called  hell  to 
vmc  hiiDsclf  thrrc,  causa  pntct  ;  and  this  is 
It  truth  as  hcKhrJI  answer  to  Go<l. 

Sic  bal'scnhitur,  Jo.  Neii.son. 

Mr.  PaCtick  ^fidktoune^  Mudout,  at  the  col- 
Tihfeof  FdiMbur;;lif  a<>'ed  twenty  years,  uu- 
larrietl,  purgtrd  and  sworne  ;  depones  that  he 
iMlttfnrd  ihe  pnnnall,  within  thetymc  iyhelled, 
crcrall  t\  mss  aflirnie  tliat  the  Scriptures  were 
£ziaV  Fahlr's  or  UomaiiceS;  and  that  Ezra  and 
hcJeu("«  were  a  number  of  TAgahonnds,  such 
IS  ();*>- ptians,  Goths  or  Vandals,  and  imposed 
jpoaOyrus  and  gott  from  him  gohl  and  jcwtJls, 
iretendinfr  that  they  were  hrou<;ht  from  the 
:eaipie  at  .Jerusalem ;  depons  he  has  heani  him 
sfolf  at  the  S-'riptui-cs  of  the  New  Testament, 
nilny  the  history  of  fhem  was  a  fable,  and 
Ike  ReTclntione  was  ane  alchimy  book  for  fi\id- 
inf  out  the  [ihilnsophers  stone.  And  that  our 
Saiioiir  u  as  a  mr:rii.-iau,  and  did  all  his  miracles 
by  Lis  imapi:.:tti(*!ie,  end  the  lyke  could  be 
•noeliy  naiunll  causes,  and  that  he  choysed 
**iJre'  fishers  that  were  iiruorant,  whoni  he 
benr  It)  have  strong  imaginationes  bv  whicli 
hevrouiiht  his  wonders;  depoi^s  that  tie  heard 
hiiDcal!  Mu^es  anc  luagitian,  ond  that  Maha- 
■et  was  hfith  flic  better  p.irtibt  and  po!i:itian 
^an  Jesus;  and  he  heard  l:iiu  curse K^ra,  and 
Ms  heard  him  say  tliat  as  many  pa«^cs  ls  was 
I  tlie  Scriptures  ther  was  as  inany  contradir- 
KHKi  in  it ;  and  heard  him  say  that  the  Tri- 
ilv  of  tlie  persons  was  a  groat  contradiction, 
la  l)kwa}s  that  the  iucaruntion  was  as  gr^'ut 

contrail ictione  as  Iiirrus-C'ervus,  and  that 
ihiutliurs  and  propagators  of  the  doctrine  of 
Udeuifitione  by  Jesus,  was  the  damnedst  crew 
itbt  world,  and  that  they  would  have  the 
ion  perplnced  thoughts  of  any  for  ever ;  ond 
«■  bcmrd  bim  aflirme  that  God,  the  world,  and 
•tare,  are  but  one  thing,  ond  that  the  v.orld 
ras  ffroin  eternity  ;  and  also  heard  him  a^si^rt, 
iMlmao'a  iroaginationc  duoly  exalted  h^y  ^irt 
nA  induiitry  could  doe  auy  thiuiX,  even  ni  the 
Aiite  power  of  God,  and  that  he  hoped  to  S4e 
#kfiiliaDitv  gr^eutly  weakenr<1,  autl  that  he  was 
wi^AvnX  tbat  in  tlie  year  ISOO  it  wouhi  I>p  nt- 
frty  cztir|iat ;  depones,  thai  aliout  the  niiflle  i>f 
l^ifct  laat,  aljout  eight  o  clock  at  ni<rht,  ^^or- 
■f  by  ibe  Troa  kirk,  he  hard  hiin  (bein;r  cold ) 
ij  tlwl  he  wnhed  to  be  io  the  piece  Ezra  called 


hell,  to  warme  himself  there  ;  and  farder  de- 
pons, that  he  has  heard  him  say  that  he  could 
make  himself  immurtall,  and  that  the  ascention 
of  our  8ariour  was  but  a  progresse  to  the  world 
in  moon  ;  and  this  is  the  truth,  as  he  sail  an- 
swer to  God. 

Sic  Stibscribitur,  P.  Midletone. 

Mr.  John  Fotler^  student,  aged  18  years, 
unmarried,  iiurged  of  malice,  prqudicc,  par- 
tiall  council!,  and  solemnly  sworne ;  dcponee 
nihil  novit. 

Afr.  Mungo  Craig,  student,  in  Edinburgh' 
ai^rrl  twenty  one  yearcs,  unmarried,  purged  of 
malice,  ]>iTJudice,  and  partiall  council!,  and  so- 
lemnly sworne  ;  depones  that  within  the  tyme 
ly belled  he  has  heard  Mr.  Aikenhead,  the  pan- 
nall,  scvend  tymes  afiirme  that  the  studie  of 
divinity  and  the  doctrine  of  theologie  was  a 
r;ipsodic  oC  feigned  and  ill  contryved  nonsense, 
anil  that  it  was  worse  than  the  tir^iones  of  the 
poets,  for  they  had  some  connexione.  but  the 
Scriptures  had  none ;  depones  he  has  heard  him 
scoff  at,  and  ridicule  the  holy  Scriptures,  an«l 
frequently  call   the  Old   Twtanient,    Ezra's 
Fable^<,  and  that  Ezra  was  the  in  venter  of  the 
liooks  thereof;  and  depones  he  has  heard  bim 
revile  the  books  of  the  New  Testament,  and 
rail  them  the  books  of  the  imposter  Jesus 
Christ ;  and  that  he  expressed  it  m  a  scorning 
and  jeiring  manner,  and  affirmed  that  Christ 
had  learued  niagick  in  Egypt,  and  called  hhn 
a  magician,  and  that  returning  from  Egypt  ta 
Judea,  he  picked  up  a  few  blockish  ignorant 
fisher- fellows  who  had   strong  imaginations, 
and  that  by  the  help  of  ane  exalted  imagination 
he  played  liis  pranks  as  he  termed  our  Saviour's 
miracles,  and  that  if  ther  was  any  such  roan  as 
Moses,  that  he  had  studied  magick,  l>eing  bred 
up  in  the  king's  court,  and  was  a  better  airtist 
and  polli'.ician  than  Jesus,  and  that  he  heard 
him  curse  Moses,  Ezra,  and  particularly  our 
S;i\iour  Jesus,  and  if  ther  was  any  punish- 
iii(!nt  after  this  life  the  deserved  the  worst, 
i  -id A  all  the  inventors  of  the  doctrine  of  re- 
;  dc-mptione  ;  and  he  made  it  his  frequent  dis- 
course that  the  holy  Scriptures  were  stuffed 
Willi  such  contradictions:  tiiat  the  stupidity  of 
tho  world  was  admirable  in  having  believed 
thrui  so  long;  and  farder  depones  that  he  used 
to  rondcnine  and  rfjoct  the  mystery  of  the 
Tiicity,  and  that  God -man  was  as'  great  a 
ccmtrad ictione  as  a  ijuadratum  rolundnm^  and 
he:utl  him  call  the  doctrine  of  Redemption  a 
:  proud  and  presumptuous  dcvyce,  and  that  the 
!  iuventers  of  it  were  tlumned  if  ther  were  any 
I  punishmcut  afWrthisliie  ;  depones  he  asserted 
i  that  (jud.  the  worhl,  und  nature,. were  all  one 
.  thing,  and  that  the  world  i\as  from  etemitie  ; 
and  lt::s  licnrd  him  frcNpieiitly  assert  that  man*s 
,  ima<{ii)utionc  du(l\   r\:i!r'tl   by  airt   and   in- 
1  dusiry  inipfht  rreat  a  v.orld,  and  j>ro«luoe  any 
'  tliii!^  pro,hKroali!-  ;  <]f  r.oi.:-s  hr  litunl  him  say, 
!  111!  hoped  to  see  tMiristiitniiy  greatly  weakened, 
i  and  sliorily  to  bo  extirpated,  and  that  farder 
heard  hitn  curse  those  that  baptizm(*d  him. 
anil  say  that  bajitisme  was  a  nw^ic^VVcjwctwsv^^ 


927] 


S  WILLIAM  IIL  PrGceedhtgi  ogninst  Thomas  Aikenkead^        [W8 


that  tyeJ  efailtli'«a*s  ime^batioti  to  ihat  r^li- 
tficm  i»beit0tbey  vft-re  bajjUieiJ ;  anil  *urik*r,  if 
Ee  wen  luLuifilied,  liti  YtoM  tiinke  all  Chriit* 
fMiiiitji^  treitib-le,  and  Moulrl  wiyte  »i^in*r 
Cbristmnity,  aad  that  if  be  or  any  utlmr  oeeitetj 
a  fatoiltr  genius^  be  could  call  lor  il ;  aiid  tbis 
11  tbe  Initb  us  h«  sball  answer  t>j  QmL 

Ad.  CocRBUnMEr  L  R  D. 

Tbe  Tnrtis  ortlftinc  tbc  «s»yse  to  iuclo^  and 
fetiiriiti  tbeir  verdict  to-morrow  at  twe)t«  a 
t^Iockf  unit  #rd«iluee  tk«  |i&tiiiall  to  be  oaiTj^ed 

liack  to  |>ris<^n. 

Btetmber  UlK  t&^' 

Thomai  Aikenhead, 

iiidyled  and  accused  for  tbecryrnc  of  LTaa* 
fbemy  cnmuiitted  be  btni  in  manner  inenlrnned 
IQ  bit  indjtiuenl. 

Tbe  said  day  the  persona  wbo  past  upon  tbe 
•ssjae  of  Tbomafl  Aikeubea^l,  for  blns|*b*iiny, 
iiuturfic*d  tbdr  verdict  in  prvifence  ol'  tbe  saiU^ 
Lank,  wberof  th«  tenor  tolluwu  i 

Tbr  Assyse  baling-  elected  and  chosen 
Oeor|ft!  Ck'rkf  Late  hatllit^f  their  cbancidbr  i 
mw\  Adam  Brown,  thfeir^  clerk,  *loe  uimHi- 
mousLv  fiad  it  proven  tbat  the  pannsill.  Thorn aii 
AJkenhead  has  rail  led  a$>aiij£t  the  (irj^t  pcrsonp, 
»od  at«o  cursed  and  MM  our  biesisfd  Lord 
tbe  fecond  pi^rsorije  uf  the  holy  Tfiui°Ly,  mtd 
fkrder  finds  tne  other  crymes  lybelleJ  proven, 
Tiz>  Tbe  denying  of  the  innLrnutione  ot  our 
Savionrf  tbe  holy  Trinitv,  and  scofAn;^  at  tbe 
holy  8criptarf#.  Tbi*^  is  subscribed  by  the 
ehmicdlar  £iod  clerk  at  ibe  apjMiynimeQlof  the 
aliore  written  a^ssy^rs^  at  Edinburgh^  the  ^3rd 
day  of  December^  ld95  yeurs. 

Sk  Subtcritit art     Ot^V Lift K,  €\m u eel  1  ar. 
Am^  BtiovFN,  Clerk. 

£l\er  openinsr  and  reading  of  tbe  quhilk  ver- 
dictof  A«syse,  tbe  lords jti<^uee  clerk,  and  com* 
Daiasinnen  of  justiciary  tbertbr,  by  tbe  mouth 
of  John  Hiicbie,  deiiipsl*>r  of  court,  decerne 
and  adjudg-e  tbe  said  Thoinai  Aikenbead,  lo  be 
taken  in  the  Calovrlee  berwixt  Letth  and  Edrn- 
burgh,  upon  Friday  tbe  eight  day  of  January 
next  to  couie,  betifixt  tvro  and  ^onr  a  clocJt  in 
tbe  afternoon,  and  there  to  be  banned  on  a 
gibbet  ti^l  he  dead,  and  hi»  body  to  be  interred 
at  tbe  foot  of  1  he  said  gal  low »,  and  ordainea  all 
his  moveable  goo<b  and  gptiv  to  l»e  escbent  and 
inbrought  to  biii  tnajeaty^s  use,  whleb  h  pro- 
oooneed  for  d'>omv 

Sk  Subinribiiurj  A  p.  CocitavaFtfi. — 

C,  Cam|ibell,  David  Home,  Jo.  Lankier, 

A.  Hope, 


Among  lord  King's  MSS.  is  ibe  folloiring 
Paper  indorsed  i  "  Copy  Petition  for  Thy  ma* 
Atkduhcady  to  tbe  Pnry  Coiiu^eU.'^ 

a 


To  tbe  nigbt  Hon,  tb^  LnrtI  H(gh  €tiaocell<?r. 
and  remanent  Li>rd4  of  hr.^  Maijesties  wxm 
lion*  Pn*y  Conncell :  Tbe  Hnpplicaiiott 
of  Thorn  a*i   Aiken  bead,   jfrunni^  k  ibc 

Tolljoothof  Edinbiii^h. 

**  Humbly  Sbeiretb ;    Tuat  yottr  pctiteer 
b^^ing  wt-ntenced  by  tbe  biu&  af  juaticbryito  h 
exeeule>4l  uikiu  ibe  Bib  day  of  January  next,  hr 
doth  in  all  bninibty  acknoivledgv  tbe  jiuticE  «f 
the  said  lenience,  pronoun^  ai^ttiiwt  biiu»  mi 
that  tbe  blaspbetutius  and  irickc^l  ^tprt*jmmf 
for  which  he  k  stiUvtit^xl  tfi  ti^atb,  ougiit  b<|. 
to  be  io  nmch  n^  nftmed,  and  be  doth  ingenu* 
oysly  acknowledge,  ibal  from  bia  f  ery  tuvil  lt 
prieclly  abborm  ihe  »aune«  but  yr^iir  fieiitjaM 
being^  aa  yet  a  ntinor^  and  hji>  mn^  the  mfilar«:i 
tue  lo  hav^  gi»t  same  aibetstical  books 
ini^f  Icj  others  in    his    custody,    tbe 
wlitreof  di<l  prompt  him  tn  the^e  extsw 
fur    wliicb  be  is  now   most  justly 
And  sein^j:  tt  hath  pleased   Abuighty  Go4 
begin  ^ot'm-  in  ins  mercy,  to  w  ork   npoti  jmg 
lietitiom^r'tf  oUlured  heart,  rh  to  gif  e  bim  sust 
sejjsc  anil  eon  miction  of   his    Ibrmer   mdui 
erruuii;,  and  that  be  dotii  e^peet  throagh  lib 
mercy s  oi'  our  bk'ij.^ed  Jfsus  to  he  dayly  torn 
and  mure  con^iucctl  thereof,  and  that  he  hth 
intirely  rely  iip^ti  our  blf#s;ed  8av]<»ur'i  diyktb 
and  nmita  for  the  &aUatLou  of  bit  ImmMyi 
liuul,  and  that  if  time  wej-e  allowed,  be  da&ei- 
jiect  throu^'b  ibe  meritii  of  J«^tis.  hy  atntert- 
mnr!!^  nnd  re'peotanc^;^  to  W  yet  r^condkd  to 
bisi  ojfended  God  mni  ^vinur. 

"  May  il  tlierfore  [deoa  your  lo^ps,  for  God'i 
sake  to  cim^der  and  com  passion  at  my  depiitt- 
abJe  rircnnjitances,  and  lender  years  (1  d^iu^ 
as  yet  mmor),  and  lo  prorogat  the  day  appwrit' 
ed  for  my  exeeution,  for  sucb  time  as  your  by 
shall  tbmk  5tt,  thui  I  tnny  have  tbe  opjwrtu- 
Dtty  of  conreraicig  with  godly  uunistens  m  tbe 
place,  and  by  their  fts&ifitance  b«  more  |>r«fiiif<i 
for  an  eternal  r^t.  And  for  his  sacred  wr- 
jesty  and  your  lo'ps  bappines  and  ^d^^j 
your  petitioner  shall  ever  pray,  &c*** 

The  f>iIokviug    Letter,    (among  the  uiie 

MSS.)  cont^inin^  Observalioti^  on  Ajkenhtf»il'i 

Case»   appears  to  have  been  written  by  Mr 

Locke  to  his  friend  sir  Francis  Masbam. 

"  Ltmdant  FtL  3r,  iG96-7. 
"  Sir ; 

'^  You  have  eDctosed  (to  patisfie  your  cv^m- 
sity)  the  evidence  against  Aikenbead^  and  two 
of  his  peiitiuns.  Jf  tbe  process  come«  you  aliall 
bare  it,  or  it  shall  be  le|\  where  you  shull  order. 
The  Flying  Post  bore  that  he  bad  not  relractd 
till  tbe  day  of  esecntiou,  ^ihicb  you  ^ee  if 
fal^e^ 

*'  Tbe  iirat  act  of  parliament  in  Scotlaaii 
against  blitspbemy  is  acX  2t  pari.  1,  m^.  1, 
Ch.  Sd,  anno  14}61,  wbiib  hai  tiro  urtictei. 
By  the  Hrst '  Hailit^  ujKint  or  ctititLiig  liod,  or 
*  any  of  tlie  personsiof  tiie  Tnttiiy  i>  punisbable 
'  with  death/  the^  are  the  worda,  and  hera 
retracting  araiieth  auUiifig,     Tbe  atu  artide 


is,  lliftt  *  Derri'ln^  GofI,  or  any  of  the  personi 

*  of  the  Trinity  I   Qml   obstinatly   coutiuueiDg 

*  fbeniif  is  |iiinisKab)e  with  deallK' 

'•  The  next  act  is  the  lltli  i>f  TwceJdal's 
session  of  parliamentf  two  yeai-s  aprot\  ami  was 
obtoincil  by  trick  and  Kurprisc.  It  rtiliHes  the 
r  acCaiitl  add«»  that  '  Whether  by  wrilirig: 
'dUcoufse,  to  deny,  impug"nej  ^iittrrdl,  ar- 
ue,  or  reason  ajyrain^t  the  \wlt\^  of  fiiKl,  or 
ny  (»f  the  persons  of  the  Trinity,  or  the  au- 
bority  of  llie  scriptures,  or  a  provideuce^  is 
br  the  first  fautt  punishable  with  tmprjs*m- 
nent,  till  they  retract  in  sarkeloth  in  the 
jiurcb,  Ifor  the  socond)  with  iai prison uient, 
ad  a  year*s  rcrtt  till  as  in  tliii  first  cnse^,  and 
'  the  third,  they  ai'e  to  die  as  obstinat  hlas- 
liemers.*  80  that  relraeting'  altet'  the  third 
iltg'p^uifvs  nflthi^^^ 

It  is  pfiiin  Aikcnhead  must  hare  died  by 

t  first  act,  since  it  was  his  first  fault,  as  he 

jelf  ple^d«i  in  hb$  petition,  and  that  he  did 

actf  which  delivers  bint  from  the  second 

article  of  the  first  act     Now  the  wonis  of  the 

first  article  bein^  *  railing'*  and  '  cursing,*  no 

Evidence  except  that  of  Mr,  Muntjo  Craig's  (in 

]iich  lie  iii  said  to  have  called  Christ  an  im- 

itnre)  seems  to  answer  the  meaning  of  those 

d^  and  as  lo  ihie»  Craig^,  Aikenliead  in   his 

ch,  in  which  he  owns  other  thinc^s^  denies 

i  evidence!  and  no  doubt  h«  is  the  decoy  who 

ive  him  the  books  and  made  !iim  speak  as  he 

id,  and  whoate  name  is  not  put  in  tiie  copy  ^^ 

^fae  petition  to  the  jnsticiary  sent  to  yuu,  be- 

^pose  the  writer  would  spare  Craig^. 

^**  The  age  of  the  witnesses  isol^rrvabl<»,and 

that  none  of  them  pretend^  nor  is  it  laitl  in  the 

ipdictiuent,  that  A I  ken  head  made  it  liif>  biisi- 

seas  to  seiluce  any  man.     Law»  Ions;  in  de«sae- 

tode  should  be  g'ently  put  in  execution,  and  the 

first  example  made  of  one  in  circum$:lQnces  that 

deaerfe  no  couif^^ioi^  wtiereas  here  tber  is 

ymttb,  levUy,  docility,  and  uo  desigtie  upon 

otliers.     Farewell. 

**  My  respects  lo  my  lady  Masham.'* 


/5 


Among  the  stme  MSS,   is  the    following 
Iter  iadorscd  **  L.  Anstrulher,**  uud  addres-s- 
*^  Mr*  Robert  Cuuta^bam,  to  be  left  vrith 
AUeiander  Jonstonn,'' 


«*  Ade^,  Jan,  7$,  —97* 
"  Sir ; 
,  **  1  hope  yon  will  pardon  me  that  I  hav  not 
>it  to  you  these  several  posts,  for  1  hav  been 
j>t  mof  e  bu-sie  than  ordinar,  by  the/requeut 
etiutf  of  eschequer^  upon  the  talliag  short  of 
\  fondi.  J  thank  yon  heartely  for  the  trouble 
ii  bav  put  yourself  to,  in  gfiveing  me  account 
Tuhai  cannot  be  known  by  publjck  neues.  I 
I  afraid  U  will  look  like  too  much  imposing 
DD  your  ^ood  nature  to  desire  a  continuance 
Til,  espechially  when  I  can  propn  no  com- 
pcosation,  this  being  a  place  sciirsly  known 
ibroad,  and  in  publik  transactions  folowing  al- 
iTftysthefate  of  I  ngf  land,  but  for  my  part,  1  would 
a>Dtribute  to  be  at  the  expeuse  with  all  my 
VOL.  XJIL 


liearl  for  a  plenipotentiary  at  the  treaty  of 
peace  for  this  nntione  ;  indeed  the  fittest  person 
1  know,  would  be  your  fViend  Wr,  Jonstouu,  I 
wish  it  had  been  moved  last  parliament.  To  di- 
vert yon  with  somt!  remarkable  thin^fs  fallen 
out  of  late,  it  i)*  confidt?ntly  asserted  here,  that 
the  river  of  Clyd  went  dray  for  1  i  miles,  so  that 
children  went  o?er  it,  winch  ran  %vitf^  a  most 
i m pel uonpj  current  immediatly  before;  I  doe 
think  Ibis  must  hav  fallen  out' by  some  chasi 
in  the  earth,  into  which  the  river  hath  run.ini 
some  stdjtcn-anious  vacuity,  till  which  time  Ih 
was  filled  up  it  could  not  return  to  its  form' 
course,  1  am  told  it  was  once  so  heft) r,  V 
doubt  not  yoy  hav  heard  of  a  gentleman V 
daugbttr  in  the  west,  who  t  think  15  possesied 
with  a  deviU  and  continues  so  sfill,  she  it  12 
yeers  of  age,  her  body  it  put  into  s1ran*^'c 
shapes,  and  instantly  peifectly  well;  she  vo- 
mits hot  coals,  stons,  iron,  hair,  bones,  et  cet, 
**Minitinie  ago,  I  Henl  up  an  exact  account  of 
this,  altt^stcd  b^-  ministers  to  my  Lo.  Tullibar- 
den,  which  you  may  rail  for  if  you  phrase :  we 
had  latly  an  anomtly,  and  monster  of  naturcr 
1  may  csill  him^  who' was  execut  for  cursing 
and  revihng  the  persons  of  the  Trinity,  he  was 
18  yeers  of  age,  not  vii-iouR,  andextrramly  stu- 
dious. Fountionehall  and  I  went  to  him  in 
prison  J  and  1  found  a  v%ork  on  liis  spirit^  and 
w€*pi  that  ever  he  should  maintained  such 
tenets,  and  desired  a  *thort  repricv,  for  bis  eter- 
nal I  state  depended  upon  it ;  I  plead  for 
him  m  counsel,  and  brought  it  to  the  chaii 
vote,  it  was  told  it  coidd  not  be  grim  led  unle: 
(he  ministers  would  interced,  I  am  not  for  con 
suiting  the  church  in  slate  aCTairs,  1  doe  tliin 
he  would  have  proven  an  eminent  cbristia 
had  he  livrd,  but  the  ministers  out  of  a  pio 
Iho  I  think  ignorant  zeal  spokand  preached  fof^ 
cuttii^g  him  off.  I  find  capital  puuishments 
inflicted  most  against  crimes  that  disturb  the 
society  anil  government,  and  not  again^it  the 
iieinusness  ot  the  sin  against  God,  tor  layers 
say  *  Salis  est  Dcum  lubere  ultorem  ;*  and 
stealing  a  sheep  when  one  is  hungrv ,  or  speak- 
ing against  the  K.  er  punish'J  hy  dealbi 
wheras  cursing,  lying,  slandering,  drnnkcness^^ 
Pt  cet.  are  scarcly  taken  notice  oi'  by  our  la 
but  our  ministers  iy!;eneralv  are  of  a  narow  si 
of  thoughts  and  confined  princi[de$9  and  n- 
able  to  bear  things  of  this  nature.  I  hav  sei 
you  inclosed  his  s^iecch.  1  atii  ou  all  occa- 
stoDs,  Sir, 

**  Your  most  hnmUle  servant.'* 

The  following  two  articles  among  the  samn 
MSS*  are  written  contimiously,  and  iodorsetf^ 
**  Aiketihead^s  Speech,  and  his  Letter  to  hii 
Friends,  1697:" 

Thomas  Aikenhead^s  Paper, 

{Th%  words   betwixt  crotchets  are  ftdde4  t% 

make  the  sense  clear.} 

Christian  People; 
Verity  or  truths  ^entmlly  in  all  things  is 
qaality  tnost  appetable,  but  especially  itk  taut- 
30 


inucb  and  seriuus  rGasouiiijrs,  aod  ponderings, 
[ufton]  1  coucluded  [for]  the  negative.  For  I 
tbuug^ht  first,  that  a  threat  part  of  morality  (if 
not  al!)  proceeded  »  fx  vibitrio  Uotiiinum,'  as 
thatorkiii;fdoni'<,  commouuealtljs,  or  what  the 
most  part  of  intn  think  coiivenitnt  lor  such  ami 
such  end«  uiid  purfunies,  wl)ich  doth  only  c<ui- 
tlude  for  such  tiids,  and  these  enrls  are  always 
teruiiial  upon  beinjif  *  naturte'  coogruous.  Now 
wee sce,that according;  to  men's  fancy ,  ih ings  are 
conjfi  unus  or  mcongruous  to  their  natures,  if  no"t 
to  the  body,  yet  to  ihv  ihiiikinjr  faculty.  Uee 
also  do  noi  know  uhat  is  «jood,  or  what  is  eiill 
in  itself,  if  not  thus.  Whatsoever  ran  be  attri- 
buied  to  Go(\,  that  is  jr„„j^  auj  „|iat  „ot  is 
CTill.  And  wee  know  nnt  what  can  he  attri - 
butt-d  to  God,  but  [by  atfirminj^  of  him]  these 
tbm«/«  [that]  by  s.ioli  a  dedoc|ion  [as  I  have 
tnentioiied.]  wee  call  perfect,  aod  by  denyinif 
ot  biiD,  tbeae  Ihiuga  wqe  caU  iiii|ieiiect  Uwt 


fiSl]  S  WILLIAM  III.        Procee£ngi  agamd  Tkomas  AHenhead, '     [Mt 

iers  of  great  eonaeaueiioe,  wh«re  fiiHcy  can  not 
JUai e  place ;  tfor  wnei*e  it  can  kave  way,  it  doth 
not  much  oonoern  nbitber  the  tbio^  be  real  in 
itself'  .or  not.  Hence  it  is  a  princifile  innate 
and  co-natural  to  cyery  man  to  hav«  an  inanli- 
able  iuslinatiou  to  truth,  and  to  aoek  for  it  aa 
lor  hid  treaaure,  which  indeed  had  its  effect 
flpoo  jf^e,  and  my  roaaooitlifirin  ao  luaalered 
ipe,  that  I  nfassfonoed  of  iicceauty  to  reject  th« 
Autbontys  and  leaiyimonya,  hodi  of  my  parents 
mn4  (4lMrs,  instil keii  into  lae.  So  that  I  went 
fiutber,  and  eKaniincd  tho  point  aiore  reason' 
«hl/,  Ihiat  I  might  buiki  my  faith  upon  unnon- 
Irovertabie  grounds,  mmI  so  I  proceeded  untiU 
^m^  ihe  more  1  thought  Iheron,  the  furtlier  I 
W4f  trou  finding  the  voritv  I  desired ;  ao  that 
after  much  yuaueriogs  1  tonnd  my  education 
mltq^nther  wrong,  not  only  hecauae  it  was  ira- 
pgasiUe  for  me  iw  snv  that  I  conversed  with,  to 
pradnoe  any  groanda  leaily  auSdent  to  con- 
am  the  same;  but  with  the  greatest  Acilitj 
awjicieol  grouad  ceuUI  be  predoced  lor  the 
iOMtrau'.  And  this  I  profess  and  declare,  was 
ibe  oaljr  cause,  that  made  me  assert  the  things, 
Ihat  1  asserted,  and  deny  the  things  that  I  de- 
nyed.  And  tho'  fiir  the  most  part  audi  per- 
aoap  ^soeplicfcs]  are  stained,  and  charged  with 
aMne  great  and  nomeioua  villanys,  and  immo- 
jplitys,  which  tluUlJiey  may  .have  free  lilierty 
ta  act,  without  any  trouble  within  or  without 
them,  eaiises  them  to  ai>ostatise  or  not  conform, 
and  to  attempt  to  prove  the  matter  [of  rdigion] 
vain.  But  I  can  charge  the  world,  if  they  can 
ataia  me,  or  lay  any  such  thing  to  my  charge, 
80  that  it  was  out  of  a  pure  love  to  truth,  and 
my  own  happiness  [that  1  acted.]  And  this  1 
promised  to  myself,  ^vhen  I  was  very  young, 
08  1  remember,  about  ten  years  of  age,  1  have 
been  ever,  according  to  my  capacity,  searching 
good  and  8U0icient  grounds  whereon  I  might 
Bolbly  build  my  iuith,  which  at  first  1  reoeav'ed. 
^raiU  dictum  ;  8o  that  tStbt  my  general  doubt- 
iag,  th&  first  thing  or  bead  that  1  fell  to  work 
with  was,  whellier  or  not  man  was  capable  of 
ofiending  £715  enintm,  or  of  any  immorality  as 
the  thing  which  must  be  the  basis  (next  tf^tbe 
existence  of  Goij)  in  such  matters.   ^V  Inch  aAer 


way  $  and  so  wee  most  ignenmtly  coaMta 
circle.  Now  wee  can  have  no  omr  astiun  of 
things,  in  themselies,  good  or  eNU.  Aad  as 
UiF  moral  good  or  eviil,  all  wjH  .nanftis  that 
any  thmg  inav  be  awrally  evill,  and  any  fAmg 
morallv]  good  also,  and  oonsequantlv  nay  thia| 
[may  be]  decent  or  indefaent,  nMnil  or  ia«Mi* 
rail.  Nay ,  tho'  «her  were  things  .aviU  in  tb«a« 
sdvs,  (if  wee  do  not  apfifenbead  some  othw 
thing  m  stead  jsf  tiem)  wee  can  hare  ne  iadl- 
nation  to  them,  otherwise  Iba  iMil  aooM  aiih 
eviU  as  evilly  and  if  the  lancy  apprehend  aw 
ether  thing  than  the  evill»  it  is  eoly  Ibe  «nlw 

*  sub  qui,'  that  is  appetite  [tlud  is  if  sree  dsMe 
a  real  eviU,  it  is  under  the  notion  of  gaodj. 

Bat  I  thought  it  yet  mere  atraoga,  that  cm 
out  of  tbeaui^raaition  of  a  aatural  law,  asifar 
by  revelation,  nor  any  other  way  than  by  Jha 
merer  of  Gcd,  (as  we  ane  taught  hy  nmm 
sad  the  light  of  nature,)  wouM  saan  be  pardoa- 
ed  of  God,  for  their  ioBwaoralitya.  Far  IM.  if 
God  did  not  pardon  anen'a  aias,  thor  wanldheM 
use  of  his  mercies,  a^ad  certainly  if  God  haia 
mercy  (as  oadouhledly  he  hat)  and  if  it  be  atf- 
aite,he  Hmustof  neccasily  pardon  (astbeksitif 
its  operatiuas)  the  greatest  sins  that  tlie  fc^ghal 
dependent  bdnr  ean  be  capable  of.  Aad  it 
muBt  not  be  said,  that  this  overtinrows  joMisi^ 
for  tliat  is  most  false,  seing  that  men^  P*tsap- 
poses  justice,  and  the  sentence  to  be  giv«a,a«d 
thea  It  steps  in  and  satisHee  justice.  Bat  if 
you  will  have  tliese  two  iueonsiMent,  yon  mat 
rather  say,  that  God  hath  not  mercy  in  9i 
things. 

But  then  if  mercy  do  but  little  help,  wes  an 
say  that  God  will  not  destroy  and  damnoer, 
tliat  from  bis  heart  loves  bim,  prayeth  to  hiai^ 
aod  praisetb  bim,  and  doth  other  acts  af  as- 
tural  religion  ;  for  thus  it  would  follow  that  is 
hell,  ther  were  prayers,  praises,  and  the  iaie 
of  God,  and  such  like,  yea  and  that  the  < 
ture  had  more  love  to  tlie  creator,  than  the  c 
ator  hath  to  the  creature.  All  wliich  [o 
quences]  are  most  absurd.  And  it  is  impotfibh 
for  any  intcHi<)^ent  benig  not  to  love  God,  sdog 
that  he  is  with  his  most  uppetable  attribiitrs, 

*  ipsissimum  bonuin.'  80  then  it  would  follow, 
that  men  could  be  saved  and  enjoy  God  by  tbt 
natural  law,  otherwise  the  world  were  alawit 
damned,  and  even  of  those  who  embrace  retf- 
lation,  very  few  obey  it.  And  [it  wouM  fbllov 
too],  that  tber  were*no  need  of  revelation,  or  of 
any  other  way  of  salvation,  espechially  sacb  t 
way  as  christianism  ;  for  God  would  not  do  It 
great  a  work  without  necessity,  neither  ess 
revelation  and  providence  consist,  for  if  thcrki 
a  geuerall  providence,  revelation  wouM  he  bit 
an  eflect  of  providence,  (and  that  ordinary) 
seing  that  every  act  of  providence,  as  provi- 
dence, is  alike  divine,  and  so  no  revelalioa. 

Ther  was  another  great  |ioint  which  I  «il 
in  doubt  of,  to  wilt  tliat  of  the  Trinitv,  wkcrf 
1  thought  that  the  common  diaiincuon  of  i 
seeming  contradiction  could  not  have  pisss } 
seeing  that  '  quicquid  est  in  Deo,  est  Ita« 
i|ise.'  I  tbou$;ht  nolhinff  more  clear  than  thslv 
« PMernitas  tiliatio/  lad '  H>gio  faMilWj'**- 


InduJett  m  tbe  ^sfnoe  of  God^  it  ^ouM  or«r> 
throir  tbe  ^tirpticity  of  Uie  Aftne  if  ttif^y  be 
t<mlty    dtsiinci    am*knflr  ihemiw^tTt,   and    that 

mtA  m  tb€  Trinity  styould  <lif!Vr  notbinji'  f>Mii 

tHe  potiih^istn^  of  Um  Gentile?,  hv    makinpr 

4irt<t:  dibiinct  'mfiniU.     And  tnauv  times  have 

I  pryed  as  far  an  my  capacity  wmM  foUoiv  me, 

to  Iry  tbat  if  it  were  true,   bow   fkr  I  ooultl 

i^ch  in  lb«  AfiowIaJg^  of  sucli  a  ihiner^  t>ut  1 

fbtirid  aUvavs  tbat  ibe  more  1  tbuughi  [ott  it] 

UM^(\lnber  I  wa?  from  k. 

^^>fow  tb<r^  ihing'!^  f  have  pualed  aotJ  vexed 

^Ptyself  in,  and  all  that  1  cottld  learn  ibtftVain, 

^■L  that  1  cEiiMvnt  bevc  siich  certainty,  eiiUer  tn 

HpiuraJ  f>r  Ktip^rnutiiral  things  as  I  \\m\id  liave. 

^WImI  so  I  dasit^  »n  men,  eff|»e<thiHHy  inivenious 

^iMlngf  men,  to  bowaro  Jiod  uk^  notice  fsf  iheiie 

f  upon  which  I  lia^f  splitt.  1  declare  my 

ni*e  and  dt:te!»t  of  any  of  my   fai1in{^ 

nces  concernii)^  the  forsaids,  and  its  my 

nest  and  only  desire;  and  prayer  lo  Go<l  for 

I  merci*^  sake  in  the  name  cit  Jesna  Ciifist, 

I  way  I  only  expect  jiuriton  of  \i\y  mu% 

\  i^conciliaiioti  with  God)  in  forgi?«  me  my 

nets  ami  tresjiasscii.     As  ali^^  J  from  my 

'  heart  and  in  iirief  and  sorrow  thej^of,  am 

rple,tftt  nad  troubled   for  the  baae^  wicked, 

and  iirebtjiinis  ejqirewions  wUich   I   ha^e   nt- 

Ivred,  altbo'  that  I  did  tbe  same  out  of  a  Mhid 

seal  l»>  that  which  I  ibmixbt  trulb.    And  I  pro- 

^Me^oxuS  declare,  tbut  tbo^  it  do  not  ap{>ear  much 

^k  outward  stigtiesi  and   ^okebJit   yet  I  cannot 

^Btf>rr99  liow  much   1  delest^  abhor  and  am 

1r*>ubtetl  at  ilie  same,  wilhall  1  ackoowletlefe 

and  ronfrss  lo  tbe  glory  of  God^  that  in  all  be 

"^  bt  o|jOM  me,  either  one  way  or  otlier, 

^ic  it  most  wisely  and  JusilVf  and  I 

OjKj  in  his  merc\  ihiit  itwill  be  b^ier  forme  that 

t  hatb  offlicteJ  and  punishud  me  in  tbia  life, 

the  current  of  my  sins,  than  that  be 

'I  mc  to  go  on  headlong^  in  my  own 

»vnvs,   into  tbe  miaerya  out  of  wjlich  I 

uld  ne**T  have  recovered.      Likeas  I  btess 

I  the  tn  the  full  pennvasfon  of  ibetn*e 

bri^tian  Ppoltstimt  ApuMolick*  failb,  acconlin^ 

the  terH>r  of  my   jieiiiions  jriven  into  the 

of  justiciary  and  councill,    which    are 

1  by  rti«*  and  in  their  clerks  liandH, 

^4rnd  1  cannot,  witbo«t  dorn^  myself  a  niam* 

at  injury^  hot  vindicat  n>y  inncKjcnce  from 

?  qboniinabip  asjM'njionain  aprintcdaatyrof 

Miing*o   Ccnitf'?,  uho    ^-aa   an  evidence 

.  whom  1  hare  tn  reckoti  with  God 

1  cnmiciecjce,  if  be  wasuot  as  deejdy 

nfertjfiJ  JO  (bo^c  lii'llish  iK^tk«ns,  (for  which  I 

sentenced)  ns  ent  \  wd^^  however  1  h\e*,s 

\/^r\  T  '        T  p  liiin  vA\i\  nb  men,  and  wishes 

Lr.  L(:r»^  brm  likewisf?. 

Toi  3  the  Lord  in  bis  providence 

b    '  d  in  this  eTTsmplary  miraiicr 

>  pn»  j^t  ^iiir    k;o  a  Isioyeamffrt 

[  :  a  stop  to 

'  .  ,  \\h  ifxJcen 

1  fiwtme;^  in   ji'jfmjn,  both   m  [met ice  and 

Waiion.     Atid  nj   Itis  iljfmtfe  tncrcy  recover 

arc  deluded  ^tH  thw^  |ienjidou»  j 


D.  IBM.  [93* 

pnncrples.  And  fw  that  end  that  his  ercrtaj^t- 
%V\**  f^ospell  may  nourhib  in  lliese  lands  wbilo 
9m\  and  moon  endureih.  And  now,  *>  L<*rd, 
Father,  Son,  and  Holy  GImsl,  in  tliy  bandx  1 
recommend  my  spirit,  l«'t:mgf  and  ho|)eino'  for 
pardon  to  all  my  sins,  anrf  to  be  rec caved  tof 
iby  eternal  gflory,  through  (he  only  t  igblfou:* 
naerils^  of  Jesua Chr/si  my  8aviour.  In  whom 
vk'iXh  the  Father  and  Blessed  Spirit,  my  8anc- 
tifyer,  be  cfcrlasting  praiae,  honour  and  gJory 
for  now  and  evermore:  Anoen. 

Sic  Subtcribittir,  Tho^mAs  Aikenbeap. 

Copy  of  his  LtTTEti  to  hia  fi'einds  from  Edi 
bur|;h  Tolbootbp  the  day  of  hk  death 

January  Bth,  1697. 

Being  now  wearing  neor  the  Inst  moment  of 
ray  time  of  living  in  ihisvain  worM,  I  have  hy 
the  enclosed  mider  ray  own  liandjoow  when  1  am 
Bteping-  Into  eternity,  br«jfly  as  my  titne  cotdd 
only  aTloWi  o^iven  a  true  relaiion  to  the  world 
ill  ^nerallf  mr  whose  use  1  am  to  give  some 
copies  of  tbe  enclosed  at  my  last  end  to  th9 
mim^tera  and  magistrBts  who  shall  he  by  me, 
and  to  mv  dear  and  worthy  frenida  (whom  I 
from  gmA  ground  may  term  parents)  in  parti- 
cular, for  whose  use  1  will  order  this  enclosed 
l>rincipalt  to  be  delivered  by  the  bearer,  to  he 
preaent,  of  tlie  orig'itMil  rise,  matter,  and  man- 
ner of  my  doubtingsftud  inquisitions,  for  wbicli 
as  1  am  now  to  die,  so  1  desirtd  not  to  lire  fur- 
ther ilian  mi^ht  have  condibute  to  the  glory 
of  God,  and  ^ood  of  hia  people  by  my  after 
short  time  (for  which  I  was  demaodingf  a  re- 
preive)  and  my  own  soul'a  eternal  wclfai-e,  by 
my  more  serious  and  incesaant  application  iQ 
the  throne  of  mercy  for  my  fijeatsina*  which 
1  hope  shall  be  all  forgiven  by  the  n»ercy  of 
Go<if  tbrouj^h  the  merits  of  my  Hedeemer  Jesus 
Christ,  tho  alacemy  time  hath  been  abort  sinc9 
my  sentence,  so  1  have  tritled  away  and  mis- 
pent  too  much  tbereofi  however,  as  my  tim« 
hath  allowed  me,  the  encloaed  will  gire  satis* 
f^tioo  to  you  in  particular,  and  to  the  world  irt 
generall,  and  after  1  am  gone  produce  more 
otmrity  than  hath  been  my  fortune  lo  be  trvsted 
bitlierto  wiih,  and  remove  the  apprehensions, 
which  1  bear  are  various  with  nj;»ny  abont  my 
case,  being^  the  last  words  of  a  dying  person, 
anil  proceeiling  from  the  sincerity  of  ray  heai-t. 

Ther  is  one  thtn^  1  hear  I  am  aaperaed 
W(tb|  which  is  not  in  the  enclosed,  which  uPy 
that  I  am  suspected  to  have  practi§ed  magich 
and  conversed  with  devifs,  whicti  i  here  de- 
clare in  the preeence  of  Ahnig'hty  God,  tu  heal* 
gelher  fal He  and  without  any  solid  ground,  I' 
d  OKI  re  you  may  call  for  extracts  of  my  petition^, 
to  the  counceU  and  .luMiciary,  ivbicli  1  rebter 
to  in  my  ta*^t  speech,  which  I  recommend  ta 
your'-^rp  ♦^*nt  1  may  btj  vindicated  from 

,^i,  _     ..  .  uur.  Thomas  Aul^ns 


m 


Some  An hnad versions  upon  AikcaheaiTf  Isit' 
wordu,  occur  in  tbe  book^  iptiiied^  •»  Natural 
Reli^toii  iiiMficieDt,  and  lket0iU«d  uuttupw/. 


935]  8  WILLIAM  III.         Proceedingi.againtt  Thmat  AHeiihead, 


[m 


to  Man's  Happiness,  in  his  present  state,*'  6cc. 
written  by  Thomas  Halliburton,  a  man  of 
learning  and  of  piety,  who  was  Professor  of 
Divinity  in  the  University  of  St.  Andrews, 
from  the  year  1710,  to  bis  death  in  1713. 

The  author,  after  having  set  forth  the  evil 
of  «in,  or,  as  he  expi'esses  it,  having  coude- 
fcended  oh  a  few  of  those  coaMitlcrations, 
whereon  he  insists  for  pi*oviiig  si!t  to  be  exceed- 
ing sinfnl,  proceeds  thus  :  *'  The  DeibtJi,  to 
evade  the  ditiirultiis  arising  from  this  evil  of 
sin,  tike  difTercut  courses.  Some  ulainly  dimy 
any  such  thing  as  evil,  or  that  tnere  is  any 
thing  morally  good  or  bad.  Thomas  Aikeu- 
head,  who  was  executed  at  Edinburgh,  Jan. 
8th,  1697,  for  his  blasphemies,  in  his  paper  he 
delivered  from  the  scaffold,  tells  us  what  hts 
thoughts  were  in  this  matter,  and  upon  what 
grounds  they  were  built.  When  iu  his  ra- 
tional enquiries  he  came  to  consider,  whether 
we  were  capable  of  offending  C>o(l,  he  tells  us  ; 
'  that  afier  much  pondering  anil  serious  uonsi- 
deratk>n  he  concluded  the  negative.'  The 
famed  Mr.  Hobbs  was  not  of  a  very  diflfereut 
mind :  for  he  plainly  asserts,  '  that  there  is 
nothing  good  or  evil  in  itself,  nor  any  common 
)aw8  constituting  what  is  naturally  just  and  un- 
just :  but  all  things  are  to  be  measured  by  what 
every  man  judgeth  fit,  where  there  is  no  civil 
government ;  and  by  the  laws  of  society,  where 
there  is  one.'  And  elsewhere ;  *  before  men 
entered  into  a  state  of  civil  guvcrnment,  there 
was  not  any  thing  just  or  unjust,  for  as  much 
as  just  and  unjust  arc  the  relatives  of  human 
la\«s;  every  action  being  of  itself  indiflVTcnt.'' 
And  whether  Spinoza  was  not  of  the  same 
mind,  is  Icfl  to  those  to  judge,  who  have  time 
^imd  leisure  to  trace  his  meaning,  in  liis(»bscurc 
and  designedly  involved  way  of  writing.  But 
•urely  this  proposition  in  his  Atheisiical  ethicks 
looks  vory  like  it,  '  si  homines  liberi  nascc- 

*  rentur  (liber  autcui  est  juxta  Sj)iiiozdm,  qui 

*  secundum  dnctum  vol  ex  ducia  rationis  agit) 

*  nullum  hoiii  et  luali  lormarent  conceptum, 

*  quamdiu  liberi  essent.*  Mr.  Ilobbs  has  been 
learnedly  c'ont'utcil  by  many,  such  as  Dr.  Cum- 
berland, i\lr.  Tx  roll,  and  almost  all  v.  ho  wnie  of 
the  law  of  nature.  Spincza  has  likev*  ise  betn 
examined  by  \>ittiohius,  and  many  others. 
The  first,  viz.  Thomas  Aikeniiead,  his  grounds 
I  shall  propose  and  examine. 

The  fir^t  v.\  his  own  words  runs  thus,  *  1 

*  thought,*  says  he,   *  a  great  part  of  morality, 

*  if  not  all,  proceeded  *  ex  arbitrio  hnminum,' 

*  as  of  that  of  a  kingdom  or  conn non- wealth, 
'  or  uhat  ntost  men  think  convcnit^nt  for  such 

*  and  such  « nds,  andUicse  ends  ure  always  ter- 

*  minated  upon  being  congkuiKis  to  the  nature 

*  of  tliinjis;  now  we  see  tliat  according  to 
**. men's fauL'/  things  arc  congruous  orincon- 

*  gruoii-  to  Uioir  natures,  if  not  to  the  body,  yet 

*  lo  the  i:ilnkini«:  Ihculfy.* 

The  sum  of  this  confusetl  discourse,  which 
probably  he  learned  from  Hobbs,  amounts  to 
tk;<;  C'oUhai  tix«d  do  law  to  our  jnoral  ac- 


tions, by    which  they  ere  to  be  regaUteJr 
Those,  which  are  called  moral  laws,  ure  oiilj 
the  dt'termi nations  of  governmeut,  or  the  cjn- 
curring  judgment  of  men,    coriceniing  mbat 
they  think  meet  to  be  done  for  Uieir  own  eodi. 
That  what  eorae  judge  meet  and  congmoai, 
others  may  find  unsuitaiile  in  their  nature  ui 
ends,  and  so  are  not  obliged  to  obey.   But,  1.  Art 
not  uU  tht\<e  ungrounded  assertiens,  wherof  ii» 
proof  is  ofi'ered  but  the  author'it  deluded  &iicjf 
12.   Has  it  not  been  irrefragably  demonstrated  br 
as  many  as  discourse  of  moral  good  and  evd^ 
that,  antecedently  lo  any  government  amcog 
men,  we  ore  under  a  law,  the  law  of  natDir, 
and  that  this  is  the  will  of  God.     3.   if  all 
these  had  kept  silence,  does  not  the  thing  itself 
speuk  ?    What  can  be  more  evident,  than  thai 
there  is  a  law  of  nature,  and  that  this  is  tbt 
law  of  God.    We  are  certain  that  we  are  maile 
of  rational  natures,  capable  of  laws  and  govern- 
ment.   We  are  ik>  less  sure,  that  God  naatle  us, 
and  made  us  so.     It  is  self-evident,  thatlofaia 
who  made  us,  it  belongs  to  govern,  and  dispOM 
of   us  to  those  ends  for  which  we  were  nw. 
And  we  by  our  very  licings  are  bound  to  obinr, 
submit,  and  subject  ourselves  to  bis  will  and 
pleasure,  who  made  us,  and  on  whom  weeiery 
way  depend  ;     and  therefore  his  will,  if  w 
make  it  known,  is  a  law,  and  the  highest  hs 
to  us.     Again,  it  is  clear  that  this  reason,  if  «• 
attend  to  it,  tells  us,  that  some  tilings  arc  t»  be 
done,  and  some  things  \e\\  undone ;   sncb  ai 
these,  that  we  are  to  serve,  love,  obey  and  ho- 
nour him  that  made  us,  upholds  us,  and  oa 
whom  we  every  way  depend;    that  wc  are  10 
cany  forward  our  fellow  creatures,  an  it  be- 
eoino'«  those,  who  have  the  same  original  niih 
us,  u  ho  are  subject  to  the  same  rule,  art^  oMi<^ 
to  pursue  the  same  ends  ;   and  that  we  are  to 
dispose  of  ourselves,  as  the  author  of  wit  oa- 
tore  allows  us.    These  are  all,  if  not  self  evi- 
dent, yet  next  to  it,  and  easily  deducibic  froa 
principles  that  are  so.      FuiUier,   tlie  reasou 
that  is  implanted  in  us  by  Gml,  tells  us  so ;  w^ 
are  to  take  what  it  leads  us  to,  whUc  duly  used, 
as  the  will  of  Gfid,  and  so  a  law  to  us. '  *  For 
whatever  judgement  God  makes  a  man  wiib, 
'  concerning  either  himself,  or  otiier  things, 

*  it  is  God's  judgement ;  and  whatever  is  bis 
^  judgement,  is  a  law  to  man ;  nor  can  he  ne^- 

*  lect  or  oppose  it,  without  sin,  Iieing  ia  his 
'  existence  made  with  a  necessary  subjectioi 

*  to  God.      Such  and  such  dictates  being  the 

*  natural  operations  of  our  minds,  the  being 

*  and  essential  constitution  of  which,  in  ri«:bt 
'  reasoning,  we  owe  to  God,  we  caunot  but  en 
'  teem  them  the  voice  of  God  within  us,  and 

*  consequi^ntly  his  law  to  us.'  [SirCbarlei 
WolseieyVs  Scripture  Relief,  pp.  32,  33.] 

What  he  tells  us,  of  men's  different  appte* 
hensions  about  what  is  right  or  wrong,  niaktf 
nothing  to  the  purpose.  That  only  shdv^ 
that  in  many  instances  we  are  in  the  dark  as  li 
what  is  good  and  evil,  which  is  granted  ;  M 
will  not  infer,  that  there  is  no  fixed  measore  tf 
good  and  evil.  In  many  ^^eral  truths,  al^ 
who  apply  them«elve«  to  think,  UDdeitluid  tkf 


937] 


Jm  Blaifkemtf. 


A.  p.  1698. 


[938 


Iprms,  and  have  tlie  trnths  proposed,  do  airree. 
And  perha|i8,  all  that  is  knowable  of  our  duty 
by  the  ligfht  oft*  nature,  is  dediicible  Iron)  sucb 
priociplcs  of  morality,  as  aU  rational  men  who 
Lave  tliem  fairly  pro|>o8ed  to  tliem,  must  as- 
sent to.  And  deductions  from  laws  when 
duly  made,  are  of  equal  authority  with  the 
principles  from  which  they  are  inferred.  And 
finally,  when  men,  in  pursuance  of  their  per- 
?erse  natures,  follow  what  is  cross  to  those 
dictates  of  reason,  they  are  condemned  by 
their  own  consciences;  which  shews  them 
under  the  obligation  of  a  law,  and  that  acting 
in  a  conirniity  to  their  natures  as  corrupt  is  not 
the  sfantlard  they  are  obliged  to  walk  by,  since 
tlierr  own  r«'uson  checks  them  for  doing  it. 
They  who  woujfl  desire  to  have  this  matter 
fully  distsiurseil,  may  read  others  who  have 
done  it  dfbii^nedly,  of  whom  tliere  is  great 
plenty. 

lii^  siccoml  ro&son  rims  thus ;   *  Also  we  do 

*  not  kni»w,  what  is  ^od  or  evil  in  itself,  if 

*  not  thii9,  whaisocver  can  be  altributeil  toXiod 

*  that  is  £fori1,  am!  what  canoot,  is  evil.  And 
'  wv  know  not  what  can  be  attributed  to  God, 

*  but  such  things  as  by  a  dediiclicui  we  ascribe 

*  to  hrm,  wr  call  perlVrt,  and  such  as  we  deny 
'  to  be  in  him,  mc  call  imiierfcct ;   and  so  we 

*  most  ignor.-»nt!y  romtnit  a  circle.  There  is 
'  no  other  nulioii  of  tilings  in  tliemselves  good 
*■  or  e**il.' 

It  is  much  hanger  to  6ml  the  Fcnsi"  of  tlicse 
words,  if  they  hnve  any,  thim  to  answer  the 
Ar^ment.  The  desiu'^n'of  it  is  to  prove,  that 
there  is  no  tttandard  » hereiiy  we  may  judcfe 
what  is  goo<l  and  what  is  evil.  TiieVorrc  of 
the  argument  amounts  to  this ;  that  tlicrc  i^  no 
way  liow  wc  come  to  know  any  thing  to  be 

Siod,  but  by  this,  that  it  may  be  ascribed  to 
od.  Bnt  we  cannot  know  whether  it  is  to  l>e 
ascribed  to  God,  unless  we  know  that  it  is  iier- 
l«:ct  or  good. 

This  IS  thin  sophistry,  which  I  might  easily 
^i^posc,  were  it  to  any  purpose  to  discover  the 
weebiess  of  that,  which  it's  author  was  asham- 
ed of  and  disowned. 

As  to  the  first  proposition,  that  there  is  no 
other  way  to  know  whether  any  thing  be  good 
or  evil,  bat  this,  that  it  can  or  cannot  be  ascrib- 
ed to  God.  1.  The  complex  proposition  is 
laise ;  for  there  are  other  ways  whereby  we 
may  know  things  to  be  good  or  evil.  And  this 
holds^  whether  we  take  it  in  a  physical  or  a 
moral  sense.  We  know  that  to  be  morally 
good,  which  God  enjoins  us  to  do.  >Vc 
know  the  will  of  God  in  some  instances,  from 
the  natures  God  haH  given  us ;  and  from  these 
instances,  our  reason  can  infer  others.  As  to 
physical  good,  we  know  things  to  l>e  goml  or 
perfect,  by  acquaintance  with  the  nature  of  the 
things,  and  by  the  self-evident  notions  of  prr- 
fectiou:  for  there  are  some  things,  such  as 
defiendeiicc,  subjection,  and  the  like,  which, 
without  any  reasoning  about  tlie  matter,  we 
understand  to  be  imperfect,  or  perfect;  as 
aooQ  as  we  understand  the  terms,  and  know 
tkat «  peifectioa  it  that,  which  it  is  better  for 


any  being  to  have  than  to  want;  and  then  what 
these  particular  words  dependence,  subjection, 
&c.  signify.  This  alone  overthrows  his  wholo 
argument,  fi.  The  maxim  which  he  fixes  as 
a  standard ;  that  is  good,  which  may  be  as- 
cribed to  Gud,  and  that  is  not,  which  may  not 
be  ascribed  to  him,  if  it  is  taken  in  its  fuU  ev 
tent,  it  is  ftalse  as  to  moral  good  ;  of  which  tlie 
only  question  is :  for  it  is  certain,  that  it  is 
good  tor  man  to  be  a  de|)endent.  a  subject.  See, 
which  cannot  be  ascribed  to  God.  If  it  is 
taken  in  a  physical  sense,  it  is  not  to  the  pur- 
|io&e :  and  besides,  it  wonid,  even  in  this  sense, 
need  some  caution. 

As  to  his  other  proposhion,  that  we  cannot 
otherwise  know  what  is  to  be  ascribed  to  God, 
than  by  knowing  that  it  is  good  or  perfect,  it 
can  scarce  be  supposed  to  speak  of  good  in  a 
moral  sense ;  and  in  any  other  sense  it  is  im- 
pertinent. If  it  is  understood  in  a  moral 
sense,  it  is  likewise  false ;  for  wc  may  know 
that  things  which  are  not  in  their  own  nature 
moral  perfections,  belong  to  God  :  such  as 
power,  omni-preseuce,  6cc.  if  it  be  untlerstood 
in  any  other  sense,  we  have  nothing  to  do 
with  it. 

The  next  head  that  he  ailds  is,  "  That  all 
'  men  will  confess  tlint  any  tiling  may  be  mo^ 

*  rally  evil  an  J  good  also,  and  consequently 

*  any  thing  decent  or  indecent,  moral  or  immo- 

*  raf.      Neither  though  there  were  things 'ia 

*  themselves  evil  (if  we  do  not  appreheniV 
<  other  things  instead  of  them)  can  we  liave 

*  any    inclinntion    thereunto :     otherwise  the 

*  will  could  wish  evil.* 

But,  1.  Who  will  grant  him  (in  any  other 
sense,  that  will  be  subservient  to  his  purpose) 
that  all  actions  are  indifierent?  I  know  none 
but  men  of  his  own  principles.  S.  As  for  what 
he  pretends,  that  we  cannot  incline  to  that 
which  is  in  its  ouu  nature  evil,  unless  it  l>e 
under  the  notion  of  good,  I  see  not  what  this 
says  fur  him :  it  is  enouq:h  that  wc  can  do  that 
action,  which  is  evil  and  prohibited,  yea,  and 
which  we  know  is  prohibited,  to  constitute  lin, 
and  make  the  sinner  deeply  guilty. 

But,  not  to  insist  any  further  on  this  incon- 
siderable trifler,  (whose  undigested  notions 
scarce  desene  the  consideration  we  have  given 
them,  and  much  less  did  they  becom  3  the  aw- 
ful gravity  of  the  place  where  they  were  de- 
livered :)  there  are  others,  &c. 

Aikenhead's  dying  Speech  appears  to  have 
been  printed,  as  Haly  burton  not  only  refers  to 
the  passage  cited  above,  but  altto  mentions  it  io 
his  Index  of  Authors  and  books  quoted  in  his 
Treatise. 


Wodrow  (vol.  2,  p.  221,)  relates  the  fdlow- 
ing  case  of  a  convert  to  Judaism  : 

**  Another  lamentable  effect  of  the  bearing 
down  of  the  gospel,  and  the  neglect  of  instruct- 
ing of  people  at  this  time,  was  the  apostacy  of 
too  many  from  the  very  profession  of  religion ; 
and  indeed  profaueaess  was  now  at  a  terrible 


889] 


11  WtLUAM  m. 


Trial^ikeSMrldfJVamkl^ 


Mfbt    lb  the  joirtMiary  K^risllert,  I  filid  a 
'—"  the  uMMnrnttatt  penoB  for 


MToent  apuDrt  the  uMlcnrnttatt  penoB  tor 
JMWhh,  which  hmnfg  the  only  initMioe,  m  ftr 
•■  I  kiKMr»  of  thia  aoeo  the  Refbnmtioo,  tho 
carioavmder  wiU  be  oootent  to  hare  a  Tiew  of 
iti  I  pwc  it  as  it  atands  in  the  crioiiiial  booka, 
wmi  it  IS  what  may  be  a  cantioa  to  parenla  to 
IbttDd  their  ohildKO  well  in  our  holy  religion, 
hefbra  they  aafler  them  to  go  abroad. 
.  «<  ^  Edinburgh,  June  15,  1681.  Francis 
«  Bortbiiricb,  second  son  to  Jannes  Borthwick 
9  o£  Haveiaw,  being  often  called  to  have  oom- 

*  paaaed   before  tli^  jasticiary,  this  day  and 

*  place,  in  the  hour  of  cause,  to  have  underlien 

*  the- law,  for  the  crime  of  blasphemy  com- 

*  oiftted  by  him,  in  so  far  as  being  bom  of 

*  Christian  parents,  and  baptized  and  educated 

*  in-  the  Chnstian  faith,  and  continuing  in  the 

*  Cjpen  proliBssion  thereof,  and  communion  of 

*  tar  Christian  and  Catholic  church,  until  the 

*  aM  of  14  years,  he  went  abroad  to  foreign 
^  placsa,  to  milow  the  trade  of  merchandize, 

*  when  he  waa  aadnccd  to  make  a  shameful 

*  apoataqr  fiiua  the  most  holy  iaith,  and  to 


"K 


moftas'  and  openly  deofasv  hteielf  to  ba  i 
Jew,  and  waa  ciroumoiBed 
turned  to  Seothmdi  at  Edi 
houaea,  Bmdsfidd,  and  Hall. 
rail  agauMt  our  Lond 
Chrisi,  denying  him  to  be  Sod, 
bun  to  be  mere  man,  and  a  fkbe  utophit,  sai 
ontragiooaly  reriling  him  by  mwa  other  hoh 
rid  maphemica  as  are  not  fit  to  be  utMwdl 
renouacmg  and  cnrsmgr  the  holy  sacfawMBi 
and  rite  of  his  baptism.  AmI  be  did  md 
great  and  horrid  eKcratieoa  wish  aH  nuaaB 
of  judgment  to  befid  him,  if  ever  heshsoii 
return  to  tlie  Christian  religion,  in  maBaerU 
length  mentkmed  in  the  crimioBl  leMm^ 
raised  at  the  oMtanoe  of  hie  amjeaty^i  adit- 
cate,  and  Jamea  Cockbom  in  DadJingsM 
informer  Bfmm  him  thereaneot.  Anfbem 
towfuHy  Cited,  mid  not  compearing,  the  hdi 
adjudged  the  said  Francia  Borthinek  ta  ks 
outlaw  and  ftigitive,  and  all  hia  goods  mi 

nto  be  brought  in  for  bis  m^imly^  ai^ 
is  coiitemptkm  and  diaobedieiwe;    "^ 
was  pronounced  for  doom.' 


40S.  The  Trial  of  Edward  Earl  of  Warwick  and  Holland,  Ik- 
fore  the  House  of  Lords^  for  the  Murder  of  Richard  Coob^ 
esq. :  11  William  HI.  a.  d.  1699. 


JIfarsA  S8,  1699. 

About  H  of  the  ck>ck  the  Lords  came  from 
their  own  Hboseinto  the  court  erected  in  West- 
minsfer-hall,  for  the  Trials  of  £<lward  earl 
of  Wanriek  and  Holland,  and  Charles  ]oi-<i 
If  obun,  in  the  mQtmer  following :  The  lord 
high'  steward's  gentlemen  attendants)  two 
and  two.  The  clerks  of  the  House  of  Lords, 
with  two  clerks  of  the  crown  in  the  courts  of 
l^hancery  and  King*s-bench.  The  masters  in 
Chaiioerv,twoandtwo.  Then  the  judges.  The 
peers  eldest  sons,  and  peers  minors,  two  and 
awo.  Pour  Serjeants  at  arms  with  their  maces, 
two  and  two.  The  yeoman  usher  of  the  House. 
Then  the  peers  two  and  two,  beginning  with 
Hie  younmt  barons.  Then  fbur  serjeunts  at 
armsv  with  their  maces.  Then  one  of  the  he- 
ralds, attending  in  the  room  of  Garter,  who  by 
reason  of  his  ioHmiity  could  not  be  present. 
Ami  the  gentleman  ubher  of  the  Black  Kod, 
eurying  the  white-statt*  before  the  lord  high 
ateward.  Tlien  the  lord  chancellor,  lord  high 
mevmitd  of  England,  alone. 

When  the  lords  were  seated  on  tlieir  proper 
benches,  and  the  lord  hi'i^h  steward  ujmn  ihe 
wool-pack-;  the  two  clerks  of  the  crown  in  the 
courts  of  Chancery  and  King's- l>ench,  standing 
before  the  clerk's  table  with  their  faces  towards 
itie  state; 

The  derk  of  tlie  crown  in  Chancery  hailing 
his  majesty's  commissiun  to  the  lord  high 
steward  in  bis  hands,  made  three  reFereDces 
towardi  the  lord  high  stewan!,  and  tho  olcrk  of 


the  crown  in  Chancery  oil  liis  knees  ppwihi 
the  commission  to  the  loni  bigli  stewan!,  eW 
delivered  it  to  the  clerk  of  the  crown  in  tbf 
King*s-bench,  (then  likewise  kneeling  IhM 
his  grace)  in  onler  to  be  opened  and  read ;  sii 
then  the  two  clerks  of  the  cmwn  mskiog  thiti 
reverences,  went  down  to  the  table ;  m  iktf 
clerk  of  the  crown  in  the  court  of  King's- bcodi 
commanded  the  serjeant  at  arms  to  make  pi^ 
clamation  of  silence ;  which  he  did  in  Ail 
manner : 

Serj,  at  Arms.  O  yes,  O  yes,  Oyea,  My  WH 
high  steward  his  grace  does  straHlv  chaiyesai 
command  all  manner  of  persoiis  neie  pifwtfi 
to  keep  silence,  and  hear  the  kiog's  majerty^ 
commission  to  his  grace  my  lord  high  sttwH^ 
of  England  directed,  openly  read^  upon  paia  d 
imprisonment. 

Then  the  Lord  High  Steward  stood  op*  «i 
spoke  to  the  Peers. 

Lord  High  Steward,  (Lord  8oiacf&)  Vol 
lordships  will  be  pleased  to  alaiul  up,  aotf  h 
uncovered,  while  the  king'a   comtniwiaB  i 

reading. 

All  the  Peers  stood  up,  and  were  nneoiadl 
while  the  Commission  waa  read^ 

Clerk  of  the  Cr<n»n.  <  GalielmaaTerttatlN 

<  Gratia  Angl.  Scot.  Franc,  et  Hibem^  fttt 

*  Fidei  Delcnsor,  <Src.  Prasdiledo  cC  Mel  CAV 

*  ailiar.  nostro  Johaoni  Domino  Saulwii^Oii 

<  cellar,  nostro  Augl.  Sciatir^ioA  < 
« CoBHi>WtNrwie.  01  HoiUn^,  r    ' 


w  Con.  VMkHOL.  tft 


I  lo  ifiimpft 

Dnw.  Nohao,   Mper  dm  pmch 


nrtiai  io  CSmd] 

L  in  Cmd.  priBdiet.  eoram  dUectb  fide- 
tria  Cwolo  Lee,  MU.  finnud.  Back, 
■0  Wilbm  d  Fraociwo  TynoD,  Ar- 
i»ct  ftliisiiOGiiiMiiiJiMrticiAr.  nottnsad 
nd.  perfiaonmcotum,  prober,  et  lega- 
(Ominnni  de  Coin«  nostro  MUUHesex. 
t.  ac  aliif  ?  iis  niodis  et  mediis  quibus 
soTwiBlaiitpoleriiitytoin  infra  Ubertet. 
tztra,  per  auoe  rei  Teritas  anelias  aciri 
et  inquiri  de  qnibofciiDQiie  Proditiani- 
iaprinonibus  ProditioD.  Iniurrectionib. 
ioaib.  Ceatnrfaot.  tiinsar.  lotur.  fiilais 
liooib.  eC  aliia  I'alsitat.  Monet,  bajns 
uMlri  A4igl.  H  alior.  Re^nor.  aire  Do- 
,  quomincunqiie  ac  da  quifatoacunqiie 
ia  Feloniia  Homioid.  Inlcrfectionibtn 
If.  Raptib.  Mulier.  Confpregationib.  et 
iiMsul.^UieiL  verbor.  pralationib.  Coadu- 
b.  MupriaioDib.CentJBderatiombiis  falsn 
Dcibi  Tran^^reMionibus,  Riotia,  floutis, 
jonib.  Eaeapiis  Contempt.  Falsitat. 
vntik,  ConeciameDt.  Manutenent.  Op- 
iDibus,  Can»biparciia,  Deceptionib.  et 
lalefcctiB  Ofeie.  et  iDJur.  qnibuscun- 
aeeooo  Accewar.  eortradem  iiifraCom. 
t  tarn  infra  libertat  quam  extra,  per 
inqueet  qaalitercunque  habit,  iact.  p^r* 
iive  GOimnis.  et  per  quoa  re!  per  qacm 
I  quibus  quando  qaaliter  et  quoniodo  et 
ia  Articul.  et  Circumatauc.  pmnifla. 
ir.  alicnjos  Tel  aliquor.  qaalitercunqoe 
nen.  plenius  verttat.  et  aif  easdem  pro- 
a  et  al.  |ir«miia.  audieod.  et  terminand. 
hioi  legem  et  conauetad.  R^ni  nostri 
nuper  aa*ignat.  de  Felonia  et  Miirdro 
MM  Edmm.  Cumiiem  Warwick,  et  llol- 
i  Carolum  Dominum  Mohan,  Commiss. 
petrat,per  aacrainent  prober,  et  l^^^l. 
um  Cum.  nostri  3Iiddlesex.  prxuict. 
It.  eziatant.  Nos  conmderantei  quod 
A  eat  yirtua  exeelleos  et  altissiino  com- 
«,  folejiteaque  qaod  pnedict.  Edrus. 
I  Warwie.  et  Holland,  et  Carolns  l>o- 
Mohun,  de  et  pro  Felonia  et  Murdro 
pat  at  prttfertur  Indictat.  extstunt.  co- 
lob.  in  preienti  Parliament,  nostrose- 
m    leg.  et   consueiad.    Reg^ni  nostri 

Andiantur,   Examincntnr,    8ententi- 

et  AdjuHiceiitur,  coileraqiie  omnia 
D  hac  parte  pertinent  dcbo.  mmio  cx- 
itur  et  cxeqtiantur  ;  ac  pro  eo  quod 
m  Seneschalli,  An^l.  (cujus  prspseutia 
;  parte  reqniritar   ut  accvpiuiua)  jam 

Nob  de  FiiMiiate  Prudentia  prorida 
napecticne  et  Induatria  vcstrit  pluri- 
eonfidenCea  Ordinaviuius  et  Constitiii- 
oa  ex  hac  causa  Seneacliallum,  Angl. 
idom  iilud  cum  omnibus  eidem  Officio 
i  parte  debit,  et  pertioen.  (bac  virr)  ge- 
aeenpand.  et  exercend.  Et  ideo  vob. 
BWiia  qood  oirea  pnemiss.  dilififentei  m- 
■aet  ea  oiunia  que  in  hac  |)arte  ad  Offi- 

Haaeadial.  Antj^l.  iwniaent  et  requi- 
r  (hac  viet)  faciatia  exeroeatis  et  exequa- 
OTDidfcstii.  lAcqiaaraTwtimoiuum 


«  haa  litaraa  noatiia  iaii  ieetinw 
<  Taate  meipao  apvd  Wcalnmatarii 
(moqiuDtodie  Maftiiy  Anna  Sogbi  aoatri  Un- 
•decimo. 

*  Per  ipann  Begem  propria  Mana  SigMt.* 
Serj.  et  Arm.  God  aafe  the  king. 

Then  the  herald  and  thegantleman-iiaber  of 
the  Bbu;k  Rod,  after  three  re? erencea,  kaceliiig'. 
preaented  the  White  ataff  to  hia  graoe,  a£i 
bia  grace  removed  IVom  die  Wool-pack  to  tba 
Chair,  which  waa  pbead  apon  aa  aaont  jaeC 
before  the  unpermoat  atep  or  the  Tbroot,  aai 
aeated^hionadfin  the  Chair. 

ClofiheCr.  Serjeant  at  Arma,  make  Pto- 
clamatton. 

Serf,  at  Arm.  O  yee,  OyeSy  O  yes,  my  lord 
bigii  fteward  of  England,  hia  grace,  doei  atraitly 
charge  and  command  all  manner  of  persona 
here  present  to  be  uncovered,  upon  pain  of  im« 
prisonment. 

Then  the  Judges  and  Mastera  in  Cbanoay 
sat  down  in  their  placea  upon  tba  woo)-padE» 
uncovered. 

Then  the  Clerk  of  the  Crown  read  tbeRetoni' 
of  Certiorari,  m  /uec  verba  : 

•  Gnliclmns  Tertios,  Dei  gratix,  An^l.  Soo^, 

<  Franc,  et  Hibem.  Rex,  ridei  Defens.  &c. 

*  Jnstic.  nostris  perLiteras  nostraa  Paten,  eon- 

<  feet,  ail  inquireml.  perSacrm.  probor.  etlapd. 

*  hom.  Com.  noatri  Midd.  ac  aliia  viii  mocL  at 

*  m^.  quibus  melius  aciverint  aut  poterint  de 

<  quibuscunque  prodic.  mispris.  prodic.  inaar<^ 

*  rection.  rebellion,  controfact.  tonsur.  lotur. 

<  i'alsis  fabricat.  ct  aliis  falsitat.  monet.  bujua 

<  Regni  Angl.  et  alior.  rpgnorum  sive  domini- 
*orum    quorumcuoque   ac   de    quibuscunf; 

*  murdris,  felon,  homidd.  interaction,  burglar. 

*  raptibus  mulicrum,  coogre^faoon.  a  convea- 

*  ticul.  illicit,  verbonim  pn>lationibus,€oaduDat» 

*  mispribion.  confederat.  falsia  alleganc  IraiA- 

*  gres.  riot.  rout,  retention,  escapiia  ooniempt« 
« iicgligenc.  concelament.  manuteaen.  ^ppmi- 

<  siou.  deception,  et  aliia  malefactis  ofiens.  et 

<  injur,  quibuscunq;  necnon  accetsariis  eoruD- 

<  dem  infra  Com.  pnedict.  tam  infra  libertalta 

*  quam  extra  per  quoscunq;  et  qualitercunjv 

<  habit  fac.  perpetrat.  sive  commiais.  ac  deaiiia 
(  articulis  et  circumstanciis  nrsmisa.  et  eorum 

<  quoillibet  sen  eorum  aliqood  vel  aliqua  quali* 

<  tercunq;   concernen.    plenius  veritat,    et  ad 

<  euMletn  pi'odition.  et  al.  prsmiss.  andiend.  ct 

*  terminantl.  assign.    Necnun  Juatic.  noalria  ad 

*  Gaol,  nostram  de  Newgate  de  Prisonar.  in  ca 

*  ex  existen.  deliberand.  assign,  et  eorum  cuitt- 

*  bet  Saltm.  volen.  certis  de  causis omnia  et  aia* 
« guU  Indictamen.  et  Inquisition,  de  ouibua- 

*  cunq;   felon,  et  murdris,  uiide  Edrus.  Coiuat 
(  Warwic.  et  Holland,  et  Carolns  Dominoi 

*  Mohun,  et  al.  coram  vobis  Indictat  sunt  ^ 

<  nmMion    record,    conviction.  lUci.   Frenoh, 

*  Rt»geri  James  et  Georgii  Dockwra,  pro  fekm. 

*  et  homicid.  unde  indictat.  sunt.    £t  super 

*  ibde  per  quandam.  Jur.  Prie.  inde  inter  noi 
et    prcftt    Richanlum    French,   Rogaram 

et  Oeovgium  Dockwra^  ca^  cnwiVA^ 


MQ 


iL^riLEaaiiiL 


«MtM 


ict*  MUD  oni 


iiMiiifiwid 


4 

.  et    owwqw^  

'Mbhiui.  RkslnnliiK  mepmi  .«t  .Oeondiis 
•MIMkMMBr  in  «iiMreoA|B  Mb  mb 
'IMM  iPMlrfi  ant  tniin  vcibntti  in  oetab. 
*>gfc^jBHhia  uMcBWi^  likqoitoiiirosuiAiigL 

'^BMHw  000  HBsM  ^CMMTttuft  DBilOtt*  QOftCQItt  DOC 

^tMm  olMat  mde  §M  flie.'qiiod  dkpnt 
^WMttnun-  I6MUI  ft  coDt.  iciiiii  Bottn  AdsI. 
* Ara  Wderimos  fteted.  TV2  J. HoH^Mil, 
^sMdWeitiD.  xzfiii  dw  Nofwubpii  Audo 
'  Bq;oi  BoaUidtciino. 

^pflrCor.    ^  Amr. 

*  •  .Ad  Ipitaiid  i^ogecutp^  yioad  dimlMl 
^€l  ad  imliaci  Mf^nDrvoi  Dot* 

:  •J.Holt/ 

^  *  'Tirti^ciyiii  bratb  mihi  et  alni  diraot  Id- 
^dictament  at  loqoiutioB,  infirm  mantkHiat 
^.tiiHiMMi  raoard«  ooafictioii.  infra  Bomintt 
fWoi.*  Ffenehy  ftbgaii  Janca  at  Georgu 
/  DooinirTa,  pra  felon,  el  homicid.  onda  indictat 
jMwBpariiiJa  pfnr qnandam Jnr. piia. oonvict 

*  aiiit.  ann  oniniboa  aa  tanapan*  ooran  Dokb* 

*  JUgtt  in  qnibnUdaoi  8clied.liiiio  Wan  aantz. 
«  nitto  proul  tntarina  prscipitur. 
-  « B^ipona.  Fra.  ChihL  MU.  Bfqior.  Cirit 
^  Lobd.  «n.  Jnitie.  1nii«  acri|it.' 

*  *  llidd. «.  Memofindnm  qnod  ad  -ddibenu- 

<  tion.  gaol.  Domini  Regit  da  Newgate  tent 
-•'firo  com.  Middleiei'.  ajnid  Juatice-hal)  in  k 
'Old-Bailej  in  Suburbiis  Civit.  London,  die 

*  Veneris  (scilt)  decimo  tertio  die  Januarii 
'  Anno  R^i  Dom.  nostri  Gulielini  tertii  Dei 
<m.  nunc  R^is  Angl.  &c.  decimo,  corani 

*  Fran.  Child,    Mil.  Biiyore    Ci?it   London. 

*  Edro.  Ward,  Mil.  Capital.  Baron.  Sccii.  diet, 
^  Dom.  Regis,  Henrico  Hatsel,  Milit.  un  Baron. 
<"  Sccii.   dicti   Domini  Regis,  Tlioma  Stamp, 

<  Mil.  Edro  Clarke,  Mil.  Aldris  diet.  Ciirit.  Lon-, 
*'don.  Salathiel.  Lovell,  Mil.  serrien.  diet  Dom. 
«  Regis  ad  legem  ac  Reconlator.  diet.  Civit. 
«  London,  et  aliis  sociis  pnedict.  de  prisonar.  in 

*  eadem  existen.  deliberand.  assign.  Ten.  hie  in 

*  Cor.  Carolus  Lee,  Com.  Mil.  Samuel  Buck, 

*  Will.  Withers,  Fran.  Tysson,  Ar.  Justic.  diet 

*  Dom.  Rf^s  per  Literas  patent,  ipsius  Dom. 

*  Regis  eisdem  Justic.  proeiioininat.  et  aliis  ac 

*  qnibuschnq;  quatuor    vel    plur.  eorum  sub 

<  magno  Si^illo  diet.  Dora.  Ket;is  Angl.  con- 

*  feet  ad  inquircnd.  per  Sacrament,  prober,  et 

*  legal,  bom.  dc  Com.  Midd.  nrffid.  ac  aliis  Tiis 

*  modis  et  mcdiis  quibus  melius  soWcrint  aui 
*'poterint  tam  intra  libertat.  quam  extra,  per 

*  qnos  rei  Veritas  sciri  poterit  de  quibuscunq; 

*  prodition.  misprision,  prodition.  insurrection. 

<  rebellion,  controfactur.  tonsur.  lotur.  falsis  fa* 

*  brication.  et  al.  falsitat.  monetce  hujtis  Re^i 
^^■dict.  Dom.  Regis  Angl.  et  al.  R^nornm  sive 

^Doroin.  quorumcunc};  ac  de  quibuscunq;  mur- 

*  drift,  felon,  homicid.  mterfeccon.  burglar,  rapt 

*  mulier.  congregac.  et  con?enticu1.  illicit  ver- 

*  bornm  prolation.  coadnnac*  misprision,  con- 
«  ftderac.  falsis  alleganc.  tranig.  not.  root  re- 


mhiWHrlh  tif Jfti^tfJ       '  IMA 

tenUoD,.  cscfl[)tis  c!!Qoleuip*  itfgltgtne*  '4^^l 
lumen,  tuaimicnen.  oppiiafisi<Mi.  eambl|^B 
deception,  et  aliis  rnaklact  eio^i^ir.  qiltol-' 
cnoq;  iiec  tion  acceiisar,  coriuid,  inrm  O^m^ 
pcicd,  tain  infra  Lit>crtat,  pnefltct.  t^n^m  titri^ 
p^  quciiicmifi',  cl  f^ualiieicuaqi  Liabii.  (yjTt |ier» 
peiiiit.  sive  coniioiss.  a€  de  alas  urtktil.  cl  cir* 
cutn&taii.  pi^inLs^a  et  eorom  qutxililurt  set 
eorum  aliquod  velallqtitt  qtialitercutiq'i  ««• 
cet-nen.  pWoius  verUat  et  ad  BiMkin  ffit^ 
tion.  el  al.  pt'oemlisa  JiuJietjd.  di  lemiintal 
fitcuadtim  lei^tm  H  coti^uetud,  biAjiiiii  ftqp^ 
diet  Dofii.  lie^is  AngU  as&i|;ii,  et  \wf  mVftki 
suiui  propr.  deliberaver.  hie  iu  Cur.  dit^  Pi^  1 
Regis  qumtilarTi  record.  iucUctJiuncut.  eanMl 
eb  €t  aliis  sociis  suis  tiUper  pneantiEsa  |inBiiati 
et  capt  Tcreus  Ed  rum.  Cam  it  VV'flrwk.  it  ( 
HoUand,    Carol uin    Ddmiaum    Moliutii  de  < 
Oakebampton  in  Com.  Defoa.  Ricum.  Frrodk, 
ItogeruuLi  James  et  Geor^inn  ItdckHr*,|x« 
rnunlro  cujosilam  Itict.  Coote,  Ar.  iitMa 
juris  tertniuaod.  kc,  (dsdem  Hico.  VfeaAf 
fiu^ejno  Jauit?s  et  Gecii*;:io  Docliwra,  priMlir* 
iu  (Jict*  GauL  diet,  Dom.  ll^U  il«  fH«iifitt< 
cnusa  in  t^odcm  liuliakiQieDt.  ccftiient,  advm 
existen.)  Record*  enju*  quiilem  ipdi^nnti 
paiet  in  quibusdam  ^c-Ue^luU  Uuic  Attmx^ 
•  MM,  ss,  JVleriiorautimu  qiiotJ  ml  " 


de  Oyer  et  l'crrt4*>fT  Domiiai  Rcfm  ieai.  t#» 
Com*  MiddJe^x,  apud  llickn-llcdl  m  X 
John-fclitiel,  in  Com,  proctl*  die  I^li  ■' 
sepifmo  die  Decembrls,  Anno  Hc^^;  ,  ^'  - 
nostri  Guiielmi  tertii,  J>ei  gFaiia.  uam  il^ 
Angliii-f  «Scc.  decimo,  coram  Cgtrold  Lf«,  WL 
Katoiiii^lG  Buck,  Willtehno  VVi there,  Friodieo 
Tysson,  Armi^eris,  et  alii«  sociu  idii  Sam. 
diet.  Dom.  Kt^is  per  Liier^is  I^l^m.  ifsn 
Doiit.  Hegi^,  eLsdem  Juat^c.  prieuomioai.  ^ 
al.  ac  qiiibusctinqtje  quatuor  t'd  plunba 
eorum  sub  maguo  Si^lfo  diet.  Domini  Itegi 
Anglic  confect.  ad  iDquirtrod.  per  sacTunwi 
jirooor.  el  legal! uui  bom.  Com.  MMiMt. 
prtx^iL  ae  alii^  riis  mod.  et  med,  quibus  m^ 
scirerint  out  poteriut  lain  infra  tibetn^t.  qivta 
extra  p^r  qnos  rei  Veritas  melius  sriri  poifnt 
de  quibusi(.'Uuque  (iruilitiDD.  mbprtsititi.  ^tv&* 
lioti,  jiisurrecUDti.  rebellion,  coutrtit^ictur.  tao^ 
sur.  lotur,  liikit  fabrication^  et  uliis  ftkitil 
mo  net.  bujus  Regni  diet.  Doin.  ttegU  Av^- 
et  al  Rcpior.  sive  Domtnior,  quoruioeon^ia 
ac  de  quibuscunq;  munlris,  fclou*.  b^Hit^ciil^  (^ 
4ertecLiou»  l»iirgbr,  rap|»  mulier.  ec^n^rn^ 
Cft  cuuvcnlicuL  iHicil,  verborum  iirdawtu 
coadunat.  misprifiiou.  confederat,  f^l^i  ^^' 
gan.  tnuisgr,  not.  root.  ret^utiori,«^^e^^iiibe«fr* 
leut|>l.  nei^ii^n.  coucekmeu.  manutecim.  a^ 

i>ression.  ca.uiblpareji&£  di.*c«pttua.  ^  ahi»  <Bi« 
efaclis  et  ofien^is  quibuscunq;  nocuon  ms0- 
sar.  eornndein  inlra  Com.  pim'd,  fam  in^l 
berlat  quam  extra,  per  qao»cunque  et  fv 
tercunque  liabit,  lacL  ))er{ielrat.  sitecop^ 
ac  de  aliis  articulis  et  circumslajitiii  fW 
et  eor.  quoillibet   vel  all  qua  qnaliien 
conc^rntn.  pleuius  f  eritat.  tsi  ad  ea^d 
dition.  et  al,  prfetui^ss.  audiend.  el  Iff 
secutid.   h^em    et    cona.  Uiijtia  Rip 
Dom.  Bcgjs  AngL  a^tsign.  ^  MMj 


945J 


Jor  the  Murder  of  Richard  Coote,  esq. 


A.  D.  1G99. 


[IMO 


Nicolm 
Gecrgfii 


tichardi  Reml,  R*»<ierti  Lee,  J<>**i*|»hi 
•  hf  Johnnnis  2^tiirmtttpJt»iiatl»nri  MaU^ 
Baker,  Roherti  Tcague,  Thomis 
WiUielmi  Brace,  Tlimnfc  WiUiams, 
Bi*li«p»  Thomaj  Hmii;ffr?i,  Jotmnnis 

*  LyiiiT,  SnumeliJ)  Lee,   Riclmrdi  Roijfcrs,  Jo- 

*  fteiilu   Ito^erSf  Johannis    Cheney,    JohanYik 
^  Fowier,  et  Robeili  Nicholson »  prolMir.  ^t  lp|«ra- 

*  liuni  liomioum  Coin,  prteil.  adtiinc  et  ihiiJem 

*  jurat*  el  onenit,  ad  inquirend.  pro  ilieto  Dom. 

*  ileg«  et  corpore  Com.  prasd.  prs&cntat.  exi^tit. 
'  ^d.  Billa  Indtctament,  huic  Schedul.  aaoex. 

*  tat  rera. 

•  Midd.  «.  Jura  tor.  pro  Donnino  Rcg^c  super 
•Iwrruro,    surnn   prBe^frilant  (\y\m\    KdwanJus 

*  Come<i  Wftrwic.  et  Uolbud,  nupor  de  paroch. 
'  H*  Martini  in  Campia  in  Com.   Middieser, 

*  Carotus  Dominus  MoHuiIt  Baro  Mohun  de 

*  Oltehatiiptou,  in  Com.  Devon,  uuper  de  pa> 

*  racii.  pm'd,  ia  Com.  ^liddlesex.  pned.  Ri- 

*  e  hard  IIS  French,  nuper  de  paroch.  prrcd.  in 

*  (^m.  MiddleaeJc.  prsed«  Gen.  Roj^erus  James, 

*  nuper  de  paroch.  pned.  in  Com,  Mtddletie:^. 

*  jirvd.  Gen.  et  Georgius  Dockwra,  nufier  de 
cb.  pned.  la  Com.  Aliddles^x.  prsd.  Gen. 

I  prae  ocults  aiiia  non  hahenies,  sed  in  - 

lione  diabohca  moti  et  sediirti,  iricesimo 

ctohriSf  Anno  ffegni  Unmini  Gidielmi 

til,  I>ei  gra.  Aoijl,  8coc  Fraoc*  et  Hibern. 

jis,  Fidci  Defciis*  iScc,  decimo,  vi  et  Liriiiifif 

^  6tti,  apud  paroch,  pnetl,  in  Com.  Middlesejc. 

*  ^nrd.  in  et  super  qiiendam  fliciiaidum  Coole^ 

*  Ar.  in  pace  Dei  et  dicti  Domini  Reg^is,  nunc 

*  adtUQc  et  ibidem  existeo.  fetoiiice  luluniarie 
;  lamlitiis  suis  prtecog-itat,  insult,  fecer.  et 

\  Edwarduii  Come**  Warwic.  et  Hol- 

\  cum  cmodm.  gladio  f  Anijlice  a  sword)  de 

^et  chalibe  i^onfec*!.  valor.  quiuc|ue  solidor, 

ipse  idem   Edward  us  Com  csi  Warwic. 

WwQ^^  in  maou  sua  dexlra  ad  tunc  et 

exiraet,  bubiiit  el  tenuity  pnetai.  Ri- 

t  Coole  in  et  vuper  siiiijitram  part,  pec- 

-ipsiufl    Hjcardi  Coote  prope  On,  C<d^ar 

fliCe    the  Collar  Bone),    ips^ius   Rtcardi 

►  ad  tunc  et  ibidem  felon  ice  ?oluotahe  et 

^  ex  nmlitia  §u«  pra;co;^itat.  ptjrcussit  pupagtt 

et    inl'omvit    (Aii^^lice  did  iilrike,   stah,   and 

^ruiit  in)  dan!j  eidem  Rldiardo  Coote,  ad- 

Ituiic  et  ihidem  euin  ^^ladio  extract.  pmetL  in  et 

puper  diet,  sinislrnm   partem  pectoris  ipsius 

ci.  Coote,   pi-0|H!   Ob   Cwtlar   (Aojjtice  the 

ollor   bone)  ip«iLm  Ftici.  Cooie  unum  vuliius 

iioctal.    (Antrlict'  out  moiial  wound)  bduid. 

dinudii  uniui^  pollici^  et  |>ruluiid.  quinq;  poU 

3 urn  \  de  quo  qmdem  vultit-re  mortaL  pned. 

cui.  Coole  adiuQC  et  ihm.  iu^lantcr  ohiit. 

^t  qd.  |inL>d,  Caroltist  Dmis.  Mrdmu,  Ricuit. 

Fretich,  Rojrrrus  James  et  Georgius  Dock- 

adiufic  et  ilim.  (Vlnnice  voluniarie  et  ex 

liia  suia  pnL'COjjfitat.  t'uer.  presen.  auad* 

■bellan.  c^infortun.  assii^ten.  el  mannie- 

*  aen.  fineliit*  ^dniin.  Comil.  \Var\rir.  ei  Hot- 

*  hmd^  ad  pn^fat  Ricum.  Coote,  ijiodo  et  forma 

*  prtrd.  ftloniif  voUmtarift  et  iX   maiitin  sua 
iiiK-fticirnd.  et  niurdraniJ.      Et  sic 

(imed.  supiT  «iacfm.  suam  in^d.  die.  qd. 
,  Cotnea  Uar\?ici  ct  iiatlaTid,  Car<jlu5 


Di  J,  RojjferasJamea 

ei  «       ^^        i  ,        If.  RiL-um.  Coole, 

mofto  et  Ifirma  pritd^  lejonice  %'oluntarie  et  ex 
matifiis  »Km  pi-iccoLfitat,  inted'ecer  it  mur- 
dntver.  contra  |>acem  del.  Domiju  Rey^  nune 
i  'ofon.  et  Di^nitat.  autts,  Sec. 
*■  Ricus.  Ftench,  13  .Tanuur.  98.  pon.  sg  CuI. 
de  Felon,  et  Huinicid.  taut,  ^jtm  cid,  de  JVIur- 
dro.  c:italb  nulla.  Pet.  Librum.  J^t  ut  Cle» 
ricu^.  Cremaijo  rrspecluuiur  qnotiaq;  (kc< 

*  Ro^fcrus  James,  i;l  JauU3\r.  9B.  Don  secuf, 
de  Felon,  et  Hfimicid,  t.int.  Nou  cul.  de  IVIur- 
dro.  catalla  nulla.  Fet.  Librum.  Lcg^it  ut  Cle- 
ricua.  Cremafio  r(*spe€tufttnr  quoin^f);  he, 

*  Billa  vera,  Samuel  CnvitUnriie  de  pa- 
roch. Sti.  Warlioj  in  Ciiinnis  in  Com.  Midd. 
Yoman.— Williis.  Cripps  ile  paroch.  pi*«ed,  in 
Com.  prsfi.  Yoman,^ — Henricus  Fomfi'et  de 

f>aroch.  pr«d-  in  Com.  pnrd.  \fiman, — Wit* 
us.  Sa!mon  de  parocli.  prr^.  in  Com.  pra-d. 
Chirurg-ua.— RobliH.  Applrgaie  de  paroch. 
preed*  in  Com.  pned.  Yoroon,  Jr/r.  in  Cur, 

*  Midd.  ss.  Mcmorand.  qd,  ad  Deliltcmtton . 
GaoltE  Dni.  Re^is  de  Newtfate  tent,  pro  Com. 
Miild.  apud  Justice  If  all  m  1e  f  ltd  Uuiley  in 
Nuhnrbiis  Ctritat.  tendon.  dieMprcnrii  scitt, 
aeptimodie  Scpterabris,  Anno  Regni  l>ni.  nri. 
Gulielmt  tertk  Dei  (frat,  An^l.  Hcf>\.  Frnne, 
et  HiberniiE  Reps,  Fidf  i  Defmjs.  &c.  decimo, 
coram  Franco  Child,  Mil.  Major©  Ci?^U^l, 
London.  Georg^J  'Frcb^',  Mil.  Capital.  Justic. 
dd.  Drii.  Reg-is  de  Bunco,  Littleton  I*owifi, 
Mil.  uno  Baron.  8ccii.  diet.  Dtii  Re^is,  TliO- 
ma  Stamp,  MiL  Edio.  Clarke,  Mil.  Aldris, 
diet.  Cifilat,  London.  Sulnthiel.  Lurell,  Mil. 
Serfien.  dci.  Dni.  Re{jri«  ad  Lesrem  ac  Recor- 
datore  diet.  Ciflttl.  London,  et  aliis  Hocirf 
snis  Justic.  dci.  Dnt.  Rr^is  ad  Cjaolam  Ip&mit 
Doi.  Regis  de  New^te  praed.  ilc  prisonar.  in 
eadem  existen,  deUberand.  assign,  ten.  Ro- 
bertus  While,  gen.  Corooalor  dci.  Dni.  Re? is 
infra  Libertat.  Decani  et  Capituli  EcclFee. 
CoHe^at.  bti.  Petri  Wefstm.  Civitat.  Burgi  et 
\^ll»  We5lm.  in  Com.  Midd.  prred.  Etper 
manus  suas  propria^  deliberarit  hie  in  Cfur. 
quandam  inquititioii.  de  morte  Rici.  Coote, 
Ar,  coram  eo  nuper  capt.  in  Cur.  hie  de  Kc- 
conlo  in  forma  juris  terminand.  Quie  quidem 
Inquisitio  huic  Scbedu be  annex,  est, 

pon.  ce 

'  CiTitas,  Burgus  et  Villa.  W«^tm.  in  Co 
Mtdd.  Si,  Inquisitio  indentat.  capt.  pro  Di 
Eege  apud  paroch.  >ih  Martini  in  Cam  pis  inf 
Libertat.  Decani  et  Capitli.  Ecclestoe  Coll 
giat,  bti.  Petri  Westm.  Ciutnt.  Barjji  et  Vi 
Westra.  in  Com,  Midd.  triet^simo  die  Octobrisp 
Anno  Re^ni  Dni.  mi.  Guliphnileriii  Dei  era. 
Angl.  i^oc.  Fr&ne.  »t  Hiberuix  Regis,  Fidei 
Detensoritj,  kc.  decimo, coram  Roherio  \\  bjtc, 
gen*  Coroitatore  dci.  Dni.  Rejjis  Libertat. 
prted.  super  vi!ium  Corporis  cojuidato  Kici, 
Coote,  Ar.  ibm.  jacen.  mort.  per  sacrm.  Jobtl. 
Harris,  Peiri  8(d«jmon,  Hici.  Xcwgcnt,  Will 
Frver,  Hamuelin  Thomson,  Jacobi  Timber 
Uck,  sen.  Jacobi  Tiioberlick,  jua.  Rici.  Jack- 
son, Johis  Fiucliy  SSamueJif  Powtil.  Samuvlis 

3P 


ilS^H 


947] 


11  WILUAM  IIL 


Trkl  qftht  EarlqfWarmuik^ 


*  Dimont,  Robti.  Gihrick,  Joliis  P^olin,  Jo- 

*  sei»lii  Vernou,   Thorns   Kiuithson,  Aiidre« 

*  Rugert  et  David.  Jones,  proborum  et  lega* 

*  Hum  liomiD.  Libcrtat.  pneil.  jurat,  et  onerat. 

*  ad  inquireiid.  pro   dto.  Dno.  Uege   quaudo 

*  qualitei*  et  qiioiiiudo  pnut'at.  Ricuti.  Coote  ad 

<  morteui  suain  dcvcnii  dicunt  super  sacrm. 
'  siiuni  prnd.  qd.  Edrus  Comes  n  arwic.  et 

*  Holland,  nuper  de  parocli.  8ti.  Martini  in 

*  Camfiis  iiifVa  Libertat.  prsed.  in  Com.  pned. 
'  Carolus  Dniis.  Mohun,  nnuer  de  parocii, 
'  praed*  infra  Libertat.  pned.  m  Com.  praid. 

*  Ricus.  French,  niijicr  de  paroch.  pned.  infra 

<  liibertat.  prted.  in  Com.  prsed.  gen.  Rogerus 
'  James,  nuper  de  puroch.  precd.  infra  Libertat. 

<  pned.  in  Com.  pned.  gen.  et  Georgius  Dock- 

*  ura,  nuper  dc  paroch.  pned.  infra  Litiertat. 

*  pr«d.  in  Com.  pra'd.  gen.    Deum  prte  oculis 

*  suis  non  habentes,  sed  Instigatione  diaboitca 

*  tnoti  et  sciluctt  dco.  tricesimo  die  Octobris 

*  Anmt  decimo  supradiclo,  vi  et  arinis,   &c. 

*  a  pud  p:»roch.  pncit.  infra  Libertat.  pred.  iu 
*■  Com.  pncrl.  in  et  super  preefat.  Ricum.  Coote, 

*  in  pace  Dei  et  dci.  Dui.  Regis,  nuno  adtunc 

*  et  ibin.  cxisten.  felonice  voluntarie  et  ex  ma- 

*  liciis  suis  precogit.  insult,  ^ecer.  et  qd.  prad. 
'  Ricus.  FrcDcli,  cum  qaodam  Gladio  (Aneiice 

*  a  rapier)  tie  ferro  et  cbaiibe  confect.  ▼uoris 

*  <|uiuq;  solid,  quem  ipse  idem  Ricus.  French, 

*  iu  mauu  sua  uextra  adtunc  et  ibro.  extract. 

*  buit.  et  tenuit  prefat.  Ricum  Coote,  in  et 
■  super  tunistram  partem  pectoris  ipsius  Rici. 

<  Coote,  prope  Os  Collar  (Auglice  the  colh&r 
«  bone)  ipsius  Rici.  Coote,  adtunc  et  ibm.  ielo- 

*  nice  voluntarie  ct  ex  malicia  sua  precoifitat. 

*  percussit  et  pupugit  daus  (.'idem  Uico.  Coote, 

*  adtunc  ct  ihm.  cum  gladio  pripd.  extract,  in 

*  et  super  pra^d.  siuistram  partem  pectoris  i|>8ius 

*  Rici.  Coote,  prope  diet.  Os  Collar  ipsius  Rici. 
*•  Coote,  unum  vulnus  mortale  longitudiuis  di- 
'  raid,  unius  pollicis  ct  profnnditatisquinq;  pol- 
'  licium,  de  quo  quideui  vulnerc  mortali  prccd. 
''  Ricus.  Coote,  apuil  paroch.  pr«ed.  infra  Li- 

*  bcrtat.  pned.  in  Com.  prad.  iH^ta^ter  obiit. 

*  Et  qd.  predicti  Kdnis.  Coiuos  Warvvic.  et 
*•  Holiund,  Carolus  Uiius.  Aloliun,  liogirus 
«  James,  ct  (icorgius  Dockwra,  ailuiiic  tl  il»m. 

*  felonice  voluntarie  et  ex  malii.-iis  suis  [jra*-  ; 

*  cor^fitat.  fuer.  pi-escntes  auxiUaiitts  abeUantos  , 

*  couforl-tuitrs  assisteiites  oi  inaniitenentos  pra*-  i 

*  fat.  Ricum.  French,  ad  predictum   Ricum.  { 

*  CiMito,  ill  fonna  pried,  felonice  \oluntarieetcx  I 

*  mnliria  sua  praToj^^itat.  interticicnd.  «*t  mur-  ! 
"  draiid.     Et  si<*.  Jur.  ;>i\i^d.  dicunt  su|)cr  ^:ici-in. 

*  SUUU1  pra?d.  quo<l  pr»Ml.  Edrus.   Comos  War-  i 
Miici  ft  Iloiljiid,  <>aralu<  Dnus.  .Molnin,  lii-  I 

*  nis.   Freii''u,    Uoaerus    James  ft  Georjjius  ' 
■  DocUwra,    prA-fat.   Ilicuin.  Cooto,  modo  et 

*  forma  jira'di'-'f.  f^'*>!;i»:e  \ohinlaric  et  ex  ma- 

*  liuiis   ki.is   pru'ciiviiat.    inltrlWcr.    et    mur- 

*  di-a\i".*.  cujilra  pdieiu  dci.  Dm.  Ko*»is  nunc 
'  CiM'uii.  ct  l)iiri;:tat.  swai^  '^c.    \A  ultcrius  Jur. 

*  pra-il.  <liu>:it  iiiper  s.icr»u.   siuiiii   privl.  qd. 

*  SiiuiK'diolo  M'i'.t  IVtiitiiain  ct  Miinlriini  pra:d. 
'  j^f  ii*«i;«.s  u. Olio  ft  forma  [nu'd.  f;ict.  et  per- 

*  PCiiPt.  lipuil  parocli.  pru.'d.  infra  Lil>ertiit. 
-  n\"jit*\.  iu  Com.   piTeil.  fu^am  fcccr.      Clua* 


et  catalla  terras  tiye  tenencnU  piai. 
«  Ednia.  Comes  Warwict  ct  HoUand,  Carolv 

*  Dnus  ftlobun,  Ricus  French,  Rogerm  JaoM 
'et  Georgius  Dockern,  tempore  PelooMe  ct 

*  murdri  praedict.  per  ipso*  modoelloniiApni. 
'  ikci.  et  perpetrat.  sive  alii|U0  tempnre  posIM 

<  usque  diem  Captionis  hujns  inqnisitioiui  ba- 

*  buerunt  Jur.  prsd.  peuitus  ignofanL  Ii 
'oujus  Rei  Testimonium  tarn  prae&t.  C«t> 
'  nator  quam  Jur.  pmd.  huie.  loqiuiliou ■- 
'ffilla  sua  alternalim  apposuerunl  die  aawct 

*  Xuco,  primo  supra  dcis. 

*  Ricus.  French,  13  Jan.  98.  pon.  se  coL  ^ 

<  felon,  et.  homicidio  tant.  Noncul.  promanfn. 

*  Catal.  nulla.  Judicium  super  indictamentiUD. 

*  Rogerus  James,  13  Jan.  98    pen.  as  eiL 

*  de  felon,  et  homicid.  tant.     Noo.  coL  ■§ 

<  murdro.  Catalla  nulla.  Judiduin  super  Ii- 
^  dictamcntum. 

'  Georgius  Dockwra,  IS  Jan.  98.  pon.  le  coL 

<  de  felon,  et  homicid.  taotnni.  Non  col.  dco 

<  murdro.  Catalla  nulla.  Judicam  super  Ib- 
'  dictaraentum. 

<  Midd.  tf.  Memorandnm  qd.  ad  sessisBW 

<  de  Oyer  et  Terminer  Domioi  Rem  tent  nt 
( Com.  Middlesez.  apud  Hieks-hafl  in  R.  JoM- 

<  street  in  Com  pned.  die  Mercorii  sdlt  it^ 

<  timo  die  Decembris  Anno  Regni  Dmhh 
«  nostri  Golielmi  Tertii  Dei  gratia  nwie  . 

<  Anglic,  &c.  decimo,  coram  Cando  Lse, 
«8amueleBuck,WiUielnio Withers,  Frsn 

<  Tysson,  Armigeris,  et  aliis  Sociis  sub  Jmie. 

<  diet.  Dom.  Regis  per  Litcras  PUent.  ipn* 

*  Dov.  Regis  eisdem  Justic.  prcnominat.  4 

*  al.  ac  quibuscunque  (|natuor  vel  piurilw 
<eorum  sub  magno  Higilto  diet.  Dni.  Rfgii 

<  Angliee  confect.  ad  inquirend.    per  tscrni. 

<  pnibor.  et  legalium  horn,  de  Com.  Middlesa 
(  prasd.  ac  aliis  viis  mod.  et  roed.  quibus  nw- 

<  lius  sciverint  aut  poterint.  tarn  infra  LibensM 

<  quam  extra,  \wr  quos  rei  Veritas  melius  icin 

<  poterit,  et  inquiri  de  quibuscunque  Prodicioo. 

<  Misprision,  proilition.  Insurrection.  RebelliM. 

<  Controlactur.  Tonsur.  Lotur.  et  falais  Faliri- 

<  ration,  et  aliis  falsitat.  Monet,  hujus  Regai 
'  diet.  Dom.  Regis  Anglis  et  alionira  Kc^- 

*  norum  sive  Dominior.  quorumcumque  ac  ^ 
'■  quibuscunque  Murdris    Feloniis    liomicidiii 

*  iuWrfection.  Burglar.  Rapt.  Mulier.  Cimgie* 

*  gat.  el  Convention  I.  illicit.  Verbonim  |m»li- 
*■  tion.  coadunat.  Misprision.  Confeilerat.  fahit 
*>  Alleganc.    Transgr.  Uiot.   Rout.   ReteniioD. 

*  Escapiis  Contempt.  Negligen.  Concelimea. 

*  iManuteneu.  OjipressionibusCambiparciisUe- 

*  ception.  et  aliif>  .Haletbctis  et  OU'eiMiis  quibiv- 

*  cunque,  necnon  Accessur.  coruudeni  islia 
'Com  plied,  tain   infra   Libertat.  quam  exirif 

*  per  quoscur.que  et  qualitercunque  habit,  fad' 

*  perpetrat.  sive  com  miss.  Ac.  de  aliis  Arties-' 

*  lis  et  circumsiantiis  pneuiissa  et  eorum  qse'' 

*  libv.'t  sen  eorum  aliquod  vel  aliqua  quaiiM^- 

*  cuiique  concf  men.  plenius   veriiat.     Bt  ■' 

*  eaMlciii  Prodiiioiips  et  ulia  Framiwa  sodiMi' 

*  et  lurminar.d.  sedm.  Legem  et  Com.  h^* 
«  Rcorni  dci.  Dni.  Regis  Anglis  aisiga.  f*' 


fair  ihe  Mtarder  qf  Richard  CooU^  esq. 


A.  D.  ie!>9. 


[850 


Agidii  lUddle,  Rid.  Read,  Roberti 
JoMhi  PMbericli,  Johb.  Marriot, 
A  Tiall,  Nicholai  Barker,  Ruberti 
^,    TtioroaB    Brigg[9,    Willi.    Brace, 

I  WiUiams,  Gconpi  Bisbop,  Thoinee 
I,  Job  is.  Lynn,  Simuelis  Lee,  Rici. 
,  Johia.  Cbeoey,  Jobia.  Fowler  et  Ro- 
icbolaoQ,  prolionim  et  legalium  Ho- 
Cum.  iirad.  ettuncet  ibm.  jurat,  et 
ad  inquirend.  pro  dco.  Duo.  Res^e  «t 

Cora.    pned.  praesentat.  exiatit  qd. 

Comea  Warwici  et  Uailand,  uufKsr 
ich.  S.  Martini  ih  campis  in  Com. 
/arolua  Dnus.  Mohun,  Baro  Mohiin  de 
DDpton,  in  Com.  Devon,  nuper  rie  Pa- 
;>FKd.  in  Com.  Midd.  pned.  Ricua. 
,  nuper  de  paroch.  pned.  in  Com. 
irad.  gen.  Rogerns  Jamea,  nnper  de 

preed.  in  Com.  Midd.  prsd.  gen.  et 
18  Hockwra,  nnper  de  parocb.  prced. 
.  Midd.  prsed.  gen.  Deum  prro  ociilis 
a  haleotea,  aed  inatigatione  diabolica 

aeduct.  90  die  Octobria  Anno  Regni 

II  tertii    Dei    Gratia    Angl.    8coc. 
et    Uiberain    Regia    Fidei    dvien- 

kc,  decimo,  vi  et  armis,  &o.  apud 
prad.  in  Com.  Midd.  praid.  in  et  au- 
ndam  Ricum.  Coote.  Ar.  iu  pace  Dei 
Dni.  Regpa  nunc  adtunc  eC  ibidem 
fdonice  voluntarie  et  ex  maliciia  aula 
itat.  iniult.  fecer.  Et  qd.  pned.  Cornea 
VL  eft  Holland,  cum  quodam  Gladio 
e»  a  Sword)  de  ferro  et  Cbalibe  con- 
iloria  quind;  aolid.  quern  ipae  idem 
Comea  Warwici  et  Holland,  in 
ua  dextra  adtuuc  et  ibd.  extract,  huit 
t,  prefat.  Ricum.  Coote,  in  et  super 
n  partem  iiectoria  ipaina  Rici.  Coote, 
>8  Collar  (Anglicei  the  collar  bone)  ip- 
ci.  Coote,  adtunc  et  ibm.  felonice  vo- 
ct  ex  malicia  aua  pnecogitat.  per- 
jpugit  et  inloraTit  (Aoglioe,  did  strike, 
<d  tiiroat  in,)  daoa  eidem  Rioo.  Coote, 
etibm.iuim  gladio  extract,  pmd.  in 
r  diet,  siniatram  partem  pectoris  ipsins 
sole,  prope  Oa  Collar  (Anglice,  the  col- 
e)  ifwiua  Rici  Coote,  unum  Vulnus 
([Anglice,  oue  mortal  wound)  latitudi- 
iiidii  pollicia  et  profunditatia  quino; 
m,  de  quo  quidem  Vidneri  mortal i 
Ucua.  Coote,  adtunc  et  ibm.  instanter 
'X  qd.  pr«d.  Carolua  Dnua.  Mobun, 
Freoch,  Rogenia  Jamea  ft  Georgius 
ra,  ad  tunc  et  ibm.  felonice  fulunUric 
taiiciiaauia  pracogitat.  fuer.  prcscntes 
itea  abettantea  cMmfbrtantea  asaisteutea 
nteuentea  praBtat.  Edrum.  Com  item 
^  et  Holland,  ad  prftt'at.  Rienm. 
BOdo  et  forma  pned.  felonice  volunta- 
t  malicia  auaiinBCogfitataintprticiend. 
rand.  Et  aic  Jur.  pi-u!d.  au|ier  aacnn. 
«d.  dicuDt.qd.  predict.  Edrua.  Comes 
i  et  HoUaudy  Carolua  Dnus.  Mohun, 
PffOBcb,  Rogerus  Jamea,  et  Georgius 
n,  pniftt  Ricum.  Coote,  modu  et 
nMl.  Moniee  ?oluntarie  et  ex  maliciia 
,  et.  miinirartriint 


ttNitA  paeemdd.  Dni.  Regis  BUnc.  Coron. 
eft  Digmtat  auas,  &c.  Per  qood  Praeceplum 
eat  Tic.  Midd.  qd.  non  omitteret,  &c.  qiiin  ca- 
peret  predictos  Edrum.  Comitem  Warwici  et 
Holland,  Carolum  Dniim.  Mobun,  Ricum. 
French,  Rogerum  James  eft  Georgium  Dock- 
wra,  ad  reapondend.  Ace.  Quod  quidem  1n- 
dictaaientum  prefat.  Justic.  del  Dni.  Regis 
(\^r  dcas.  Literaa  )>aten.  ipsius  Dni.  Regis 
eisdem  Justic.  pnenominat.  et  aliis  ac  quibua- 
oonq;  qnatiior  Tel  pluribus  eomm  aub  magno 
Sigillo  dci  Domini  Regis  Anglica  ut  preiertur 
confect.)  poetea  acilft.  ad  Deliberationetn 
Gaols  dci.  Dni.  Regis  de  Newgate  tent,  pro 
Com.  Midd.  pned.  apod  Justice  Hall  in  le 
Old- Bailey  in  Suburbiis  Civitat.  Lond.  dco. 
die  Mercurii  scilt.  aeptimo  die  ejumlem  Men- 
sis  Deoembria  Anno  Regt;i  dci.  Dni.  Rccfls 
nunc  decimo  anpradicto  coram  Francisco 
Child,  Mil.  Majore  Civitat.  London.  Georgio 
Treby,  Mil.  C|ipiul.  Justic.  dci.  Dui.  RegiK 
de  Banco,  Littleton  Powis,  Mil.  uno  Baronuni 
8oii.  dci.  Dni.  Regis,  Thomas  Ntampe,  Mil. 
Edro.  Clarke,  Mil.  Aldris.  dcoe.  Ciritat.  Lon- 
don. Salathiel  Lovell,  Mil.  Hervien.  dci.  Dui. 
Regia  ad  Legem  et  Recordatore  dcee.  Civi- 
talis  London,  et  aliis  Sociis  suis  Justic.  dci. 
Dni.  Regia  ad  Gaolam  dci.  Dni.  :Regis  de 
Newgate,  pr«d.  de  Prisoiiar.  in  eadem  ex- 
istcn.  deliljerand.  asai^i.  per  manna  suaa  pro- 
prias  dcliberaveront  bic  iu  Cur.  de  Recordo  in 
forma  juris,  terminand.  &c.  Super  quo  pciatea 
acilt.  ad  dcliberationem  Gaobe  dci.  Dm.  Re- 

fia  de  Newgate  prmd.  die  Veneris  acilt.  l;i  die 
an.  Anno  Regni  dci  Dni.  Regis  nunc  decimo 
snpradicto  coram  Franriaco  Child,  Mil.  Ma-« 
jore  Civitot  London.  Edro.  Ward.  Mil.  Ca- 
Pflal.  Baron.  8cii.  dci.  Dni.  Regia  Henrico 
Hatsali,  Mil.  uno  Baron.  8cii.  dci.  Dni.  fte- 
gisTboma Stamp.  Mil.  Edr.  CUirke,  Mil.  Al- 
dria.  dvse.  Civitat.  London.  Salatliiel  I^vell, 
Mil.  Servien.  dci.  Dni.  Regis  ad  Legem  ac 
Recordatore  diet.  Civitat.  Loud,  et  aliis  soctis 
suis  Justic.  dci  Dni.  Regis  ad  Gaolam  ipaioa 
Dni  Regis  de  Newgate  predict,  de  Prisonar. 
in  eudem  exiaten.  dcliberand.  assign,  vener. 
prsedict.  Ricua.  Frciicb,  Rogenis  James  et 
Georgius  Dockwra,  sub  custud  Willi.  Guare, 
Alilitiv,  et  Joseplii  Smart,  Militis,  vie.  Cum. 
pned.  (in  custoil.  cujus  ex  causa  pned.  in 
Gaolam  de  Newgale  piied.  prasauteacommiaai 
fuer.)  Ad  Barram  hie  duct,  in  propriis  perso- 
nis  suis  et  statim  de  pmemissis  in  liidicta- 
roeoto  prsd.  suiwrius  spccificat.  eis  superiua 
aeparatim  imposit.  separatim  allocut.  quoiiter 
ae  velint  inde  actjuietari  iidem  Ricus.  French, 
Rogenis  James  et  Georgius  Dorkwra,  sepa- 
ratim dicunt  qd.  i|Mi  non  sunt  indu  cuiiiabiles 
nee  aliquis  eoruni  est  iude  culpaliilis  et  inde 
de  bono  et  main  separatim.  pon.  sc  super 
priam,  &c.  Jo.  immediate  ven.  inde  Jura, 
coram  pnrfat.  Jusiic.  dci.  dni.  Regis  ult. 
noiat.  bic,  &c.  Et  qui  nee,  &c.  Ail  recogn. 
&c.  Et  Jur.  Jui-e.  ill.  per  pnelat.  Vic.  ad  boo 
iinpanellat.  (scilt.)  Chrua.  Rednap,  Thomaa 
Moody,  Thomas  Dunck,SiiDO.  Smitb,  Jobei. 
SmiUi,  Michael  Milce,  TbomM  Rowdl,  Nft- 


951] 


11  WILLIAM  IIL 


*  thaniel  Lee,   Joseph ns  Devenisli,  Henricui ; 

*  Bradbury,  VYillus.  Giles,  et  Johes.  Burgoyne, 

*  exacti  vener.  qui  ad  veritat.  de  et  super  pne- 

*  missis  pned.  dioend.  electi    triati  et  hirati 

*  dicunt  si: per  sacrm.  suum  qd.  pried.  Kicus. 
'  French,  IIo£feruK  James  et  Gcorgius  I>ock- 

*  \vrik,  sunt  rulpabllcs,  et  miilibeteorum  est  cul- 

*  pabilisde  Homiciillo  et  Fflonica  lotert'ectione 

*  prtelat.  Hici.  Coole,  in  Indirtamento  pned. 
'  siificrins  nominat.  Etqd.  iidcm  Ricus.  French, 

*  Rog^enis  James  et  Georpns  Dockwra,  teni- 

*  pore  Feloniee  et  Hoinicidii  pned.  |)er  ipsos 

*  Uicum.  French,  Rot^^erum  James  et  Georgi* 
'  um  Duckwra,  in  forma  prerd.  commiss.  seu 

*  imqnam  postca  non  huer.  nee  aliquis  eonini 
'  huir.  nee  hcnt.  ncc  aliquis  eorum  net.  ahqua 
'  bona  seu  catalla  t(?rrns  sive  teoemcntaad  noti- 

*  ciam  Jnr.  pned.  sed  iidcm  Jur-  ullerius  dicunt 

*  super  sacrum,  suum  pnod.  qd.  proed.  Ricus. 

*  French,  Rog^crus  James  etGeurgmsDockwra, 

*  non  sunt  culpabiles  nee  eorum  aliquis  estcul- 

*  |>ahilis    de   Murdro  praed.  in   Indiclamento 

*  prced.  superius  spcciiicat,  eis  siiperius  separa- 

*  urn  impoit,  prout  iidem  Ricus.  French,  Ro- 
'  gerus  James  et  Georglus  i)ockwra,pro  seiftsts 

*  superius  plitando.  allegaver.  nee  seipsos  ea 

*  occone.  unquam  retraxer.  nee  eurum  aliquis 
'  se  ea  occone.  unquam  retraxit.  Super  ^uo 

*  visiset  per  cur.  hie  intcUectis  onmibus  et  sm- 

*  gulis  prs missis  Cons,  est  per  cur.  hie  qd. 

*  pned.  Ricus.  French,  Rogerus  James  et 
'  Georsins  Dockwra,  quoad  Munlrum  praed. 
'  in  Indictamento  praed.  su|)eriu8  spec,  eis  su- 

*  perius  separatim  impoit.  sint  quiet.    Et  eant 

*  et  quilibet  eorum  sit  quiet,  et  eat  inde  sine  die, 

*  &c.     Et  superiiide  stotim  separatim  per  cur. 

*  hie  qufcsit.  est  de  praefat.  Rico.  Frcncii,  Ro- 

*  gero  James  et  Geory;io  Dockwra,  si  quid  pro 
'  le  habeaiit  vel  discere  sciant,  vel  aliquis  eorum 
'  aliquid  pro  se  habeat  rel  discere  sciat  quarc 

*  cur.  hie  ad  Judiciurn  et  Exocutionem  de  eis 

*  et  corinn  quolibet  super  Veredicto  pitcd.  quoad 

*  Hoiiiiridium    et    Felonicam    Intcrreciionem 

*  protfat.  Hiri.  Coole,  prorcderc  non  debet,  qui 
"  separn!ii:i  dicunt  qd.  ip*:i  sunt  Clerici  v\  quili- 

*  bet  covnm  c*.t  ('kriousrt  scpnralini  pctunt 

*  Uenclifinm  Clerioale  eis   et  qsilibrt  eorum 

*  in  hac  parii*  al!nc;:n  v.i  siujv.'v  Ii'k*  (iraililo 

*  eisdom  IJico.  FrrMcli,  !xt*p;rrn  James  et  Geor- 
*l»io   J)orl;wrri   scpnrniir.i  y.rv  vr.r.  Iiic  l.ibro) 

*  iidem  Ricus.  I-'rcurh,  K;  :^':i!:««  James clCicor- 

*  ffius  Dockwra,   Fcparatiiii  Icj^unt  ut  CM«  rici 

*  vt  qtiiliiut  eorum  Icqiil  ut  Clcricus  ;  sed  qui 

*  cur.  dci.  Dili.  \{i^g;[^  hie  et  pnrfat.  Justic.  dci. 

*  Dui.  Reikis  ult.   noint.  <le  Judicio  suo  de  et 

*  super  rnrm'issis    prtiMl.    quod    llomicidium 

*  pr;cd.   €'t  Fulunicaui    Iistciicctionem   pnctat. 

*  J(ici.   C.'oote  redilend.    n(-iidui.i    advisantur, 

*  Mco  difr.7  inde  dat.  e>t  pru'lht.  Rico.  Frencii, 

*  Romero  James  et  Cieor^io  Dockwra,  in  statu 

*  quo  nunc.  \c.  usq;  prox.  Gnolrc  deliberatio. 

*  nem  dci.  Dni.  Regis  de  Newi;-ate,  pned.  pro 

*  Com.  Midd.  pra-:!.  tenend.  de  Judicio  suo  de 

*  et  super  pv;T:missi.s  illis  aud.  \'c.  Eo.  qd.  pne- 
*tat.  Judic.  dci.  Dni.  Kcgis  ult.  noiat.ct  cur. 
'  hie  iudsnondum,  ^:c.' 


Trial  ofihe  Earl  of  WaroHck^  [flSS 

Z.  H.  5.  Is  it  your  tordsbips  plcasare  tki 
the  Judges  may  be  covered  f-^Lordt.  Ay,  t} 

[Then  the  Judges  put  on  Iheur  caps.] 

CI.  of  the  Cr,  Serjeant  at  Armt,  make  pn 
damation. 

Serj.  at  Armt.  O  ye«,  O  yea,  O  vet !  cbii 
governor  of  the  Tower  of  LoodoD,  oriDg  fM 
the  body  of  Edward  earl  of  Warwick  and  IM- 
laud,  yi»ur  prisoner,  forthwith,  on  pam  aodfoi 
will  fall  thereon. 


[Then  the  earl  of  Warwick  was  brouirbt  h 
the  bar  by  the  deputy -governor  of  the  Tow* 
of  London,  having  the  ax  carried  belbre  hm 
by  the  gentleman  gaoler,  who  stood  with  it  a 
the  bar,  on  the  right  hand  of  tlie  prisoner, ton- 
ing the  edge  i'rom  him  ;  the  prisoner  at  Uii^ 
proach  to  the  bar  making  three  bows,  ooeto 
his  grace  the  Lord. High  Steward,  the  other d 
the  peers  on  each  hand ;  and  his  grace  sod  tin 
peers  returned  the  salute.] 

Z.  H.  S.  My  lord  of  Warwk;k,  yoar  lordi^ 
is  brought  Mure  this  great  judicature,  is  oi4# 
to  your  trial,  ^'ou  stand  indicted  by  the  fpA 
inquest  for  the  coimty  of  Middlesex,  as  gnihy  if 
the  nmrder  of  one  of  the  king's  subjccUj  tt 
whose  blood  justice  requires  a  strict  inqointiDl 
should  be  made. 

Your  Ion kliip  is  called  to  anawer  this  da^ 
before  the  whole  body  of  the  bouse  of  pecifn- 
sembled  in  parliament.  It  is  a  grett  miAr- 
tune  to  be  accused  of  so  heinous  an  oftsffi 
and  it  is  an  addition  to  that  misfortune,  tok 
brought  to  answer  as  a  criminal  before  fodi  id 
assembly,  in  defence  of  your  estate,  your  hfr. 
and  honour.  But  it  ought  to  be  a  support  a 
your  mind,  sufficient  to  keep  you  from  srakiig 
under  the  weight  of  such  an  accusation,  ika 
you  are  to  be  tried  l>efore  so  noble,  disoeniii<« 
and  equal  judges,  that  nothing  but  j^our  sn 
guilt  can  hurt  vou.  No  evidence  will  be  r^ 
ceived,  but  what  is  warranted  by  law ;  nc 
weight  will  belaid  upon  theeridenoe,butwhatii 
afrroeablo  to  justice;  no  advantage  willbetakn 
ol  yiiur  lordship's  little  experience  in  proceed 
ingsofthis  nature;  nor  \>ill  it  turn  toynii 
prejudice,  that  you  have  not  the  assisUiiceff 
counsel  in  your  defence,  as  to  tlie  fact,  (whid 
cannot  be  allowed  by  law)  and  their  lordship 
have  already  assigned  you  counsel,  if  any  Dtt 
ters  of  law  shouM  arise. 

Your  lordship,  throughout  your  whole  trial 
may  assureilly  promise  yourself,  to  find  ai 
the  candour  and  compassion  which  isounMilCB 
with  impartial  justice  ;  beyond  that  nothing  i 
to  he  expected  :  their  lordships  can  nerersofr 
tiirget  themselves,  as  to  depart  from  wbili 
right,  and  to  draw  the  guilt  of  bkMMl  spM 
their  own  heads  ;  but  if  your  lordship  is  isM 
cent  you  are  safe. 

My  lord,  it  will  be  retjuisite  for  yon  to  nt^ 
lect  yourstdf  upon  this  occasion,  inthski 
manner  you  can.  You  ought  to  hcv  wiij 
tenqier  what  the  king's  counsel  have  to  ■} 
without  inter nipting  them ;  and  lo  bcsiM 
carefully  to  the  w  itnesses  produced  afU9ity» 


.that  you  mny  to  reftdy  to  cross -examine  them 
mlf  you  Und  catise,  antf  to  make  your  ob^erva- 
rtioos  upon  ibe  evidence  when  the  proper  lime 
comes  for  your  lordship  to  make  your  defence : 
of  which  1  wi)t  Dot  fail  to  give  you  notice  ;  and 
ivbcii  that  lime  doe®  come,  your  lordship  muv 
be  assured  J  yourself  and  your  iTtUiesses  will  be 
licftrd  with  great  patience  and  atteulion  ;  and 
wbeti  my  lortls  have  heard  and  considerefJ  the 
wbole  matter,  the  judgment  wtll  uiiquestion- 
dUy  be  according  to  the  rules  of  justice,  and 
flticb  as  witl  become  the  hoDOur  vi*  this  high 
cotirt, 

[Bead  the  Indictment  to  ray  Jord.] 
B.  of  Warwick.  My  lord,  I  beg  I  may  have 
Ibe  use  of  pen,  ink,  and  paper. 

L.  H.  S.  Will  your  lordships  please  to  allow 
my  lord  Warwick,  pen,  ink,  and  paper  ? 
Lorth,  Ay,  ay. 

^L,  H.  S,   Can-y  j>en,  ink,  ond  paper  to  my 
l0rd.     (Which  was  done  by  ibc  Clerk.) 
L,  M,  S,  My  lorrl,  your  lordship  wiitdo  ^vell 
to  gire  ai  tent  ion  while  the  Indictment  is  read 
to  you.     Read  it  to  my  lord  in  Enj^lish. 

Ci>  qf^tkeCr,  *  Your  lordship  slatidd  indicted 
by  the  name  of  Edward  earl  of  Warwick  and 
Holland,  late  of  the  parish  of  St.  Martin-in- 
Itie- Fields  in  the  county  "f  ftliddlesex  ;  for 
that  your  lordship,  together  vfith  Charles  lord 
BlohuUi  baron  Mohun  of  Onkehampton  in  Ibe 
county  of  Devon,  Inte  of  the  parish  alm^^id, 
id  the  county  of  111  id d I e?;ex  aforesaid^  Uichanl 
French,  late  of  the  parish  aforesaid  in  the 
county  of  Middlesex  albresaid,  gent,  Roger 
J«m€9,  of  the  parish  aforesaid  in  the  county 
of  Middlesex  aforesaid,  pent,  and  George 
Hockwra,  late  of  the  parish  afort^said  in  tbe 
county  of  ]Middle<;ex  aforesaid,  gent,  not  hav- 
ing the  fear  of  God  before  your  eyes,  but 
being  moved  antl  seduced  by  the  instigation 
of  ihe  devil,  the  30th  day  of  October,  in  the 
tenth  year  of  the  reign  of  our  sovereign  iord 
William  tbe  Third,  by  the  grace  of  God  king 
of  England,  Scotland,  France,  and  frelaud, 
defender  of  the  faith,  ike.  with  force  and 
arms,  bcc.  at  the  parish  aforesaid,  in  the 
county  of  Middlesex  aforesaid,  in  and  upon 
ooe  Hichard  Coote,  esq.  in  the  peace  of 
God,  and  of  our  said  sovereign  lord  tlje 
king,  then  and  there  bcin;]^,  fVloniously,  vo- 
luntarily, and  of  vour  m^ilice  aforethought, 
did  make  an  assault ;  ami  that  your  lordship, 
theaaid  Edward  carl  of'  Warwick  and  Lii»U 
land,  with  a  certain  sword  made  of  iron  and 
tieel  of  the  ?alue  of  five  shillinirs,  which  vou 
tbe  said  Edward  earl  nf  Warvtick  and  llol- 
land,  in  your  right  hand  then  and  there  had 
and  held  drawn,  the  aforesatil  Richard  Coote, 
in  and  upon  the  left  part  of  th('  breast  of  him 
tbe  said  Richard  Coote,  near  the  collar  bone 
of  him  tbe  saiil  Richard  Coote,  then  and 
there  felooiouiily,  voluntarily,  and  of  your 
malice  aforethought,  did  strike,  ^tab,'anif 
thrust  iO|  giving  to  the  said  Richard  Coote, 
then  sod  there  with  the  sword  drawn  afbn^^ 
«ai(l|  in  and  upon  the  letl  part  of  the  breast  of 


Mum  the  said  Richard  Conte,  near  the  collar 

*  bone  of  him   the  said  Richard  Coote,  one 

*  mortal  wound  of  the  breadth  of  half  an  inch, 
'  and  of  tlie  depth  of  tive  inches,  of  which  aaid 

*  mortal  wound  the    aforesaid  Richard  Coote 

*  then  and  there  instantly  died ;    and  that  the 

*  aforesaid  Charles  lord  Mohiin,Richar*l  French, 

*  Roger  James,  and  George  Dockwra,  then  and 

*  there  feloniously,  voluntarily,  and  of  their 
'  malice  a  tore  thought,  were  present,  aiding, 

*  abetting,  comforting,  assisting,  and  maintain* 

*  ing  you  the  said  Edwanl  earl  of  Warwick  and 

*  Holland,  the  said  Richard  Cooie,  in  manner 

*  and  form  aforesaid,  feloniously,  wilfully,  and 

*  of  your  malice  aforethought,  to  kill  and  mur« 

*  der ;  and  so  you  the  said  Edward  earl  of  War- 

*  wick  and  Holland,  and  the  said  Charles  lord 
<  I^rohun,  Richard  Freuch,  Roger  James  ami 

*  George    Dockwra,    the    aforesaid    Richard 

*  Coc»te,  in  manner  and  form  aforesaid,  felo- 
^  ntously,  voluntarily,  and  of  your  malice  afore- 

*  thought,  did  kiirand  munitr,  against  the 

*  peace  of  our  sovereign  lord  the  king,  that  now 

*  is,  his  crown  and  dignity,  Sec'  How  say  you, 
Edward  earl  of  Warwick  and  Holland,  are  you 
guilty  (if  this  ftflony  and  murder  whereof  you 
stand  indicted,  or  not  guilty  f 

E ♦  of  Ha ru k k .  N ot  gui I ly ■ 

CI,  of  ihe  Ct\   Culprit,  How  will  your  lord     ^ 
ship  be  trieil  ? 

E.  of  Warwick,  By  God,  and  my  peers. 

LL  of  the  Cr.  God  send  your  lordship  t  good 
deliverance. 

Then  at  the  motion  of  some  lords  who  sate 
towards  the  upper  end  of  the  house,  and  by 
reason  of  the  distance  could  not  distinctly  hear 
the  Clerk,  the  Indictment  was  read  ngaiu,  the 
Clerk  standing  near  the  upper  end  of  the  house. 

CI.  of  the  Cr,  Serjeant  at  Arms,  make  an 
O  Yes, 

Serj.  at  Arms.  O  Yes,  O  Yes,  O  Yes.  If  any 
one  will  give  evidence  on  behalf  of  our  sove*,. 
reign  lord  the  king,  agninst  Edward  earl  of 
Warwick  and  Holland,  of  the  felony  and  mur- 
der whereof  he  stands  indicted,  let  them  come 
forth,  and  they  shall  he  heakd  ;  for  now  he 
stands  at  the  bar  upon  his  deliverance. 

L,  /f.  .y.  W  ill  your  lordships  gpve  oie  leave 
to  go  down  to  the  Wool  pack,  that  I  may  hear 
the  better  ? — Lords.  Ay,  ay. 

Then  his  grace  removed  to  the  Woolpack, 
and  deU^ered  the  white  staff  to  be  held  by  the 
gentleman  usher  of  the  black  rod,  who  during 
the  whole  trial  always  received  and  deliverer 
hack  the  white  staff  upon  his  knees. 

X.  H.  S.  Mr.  Attorney,  are  you  ready  to 
proceed? 

Att^  Gen,  (Sir  Tho.  Trevor.)  Ye*,  my  lord. 

L.  H,  S.  Then  begin,  Sir. 

8erj.  Wright.    May  it  please  your  lordshrpf . 

L.  H.  5.  Pray,  Mr.  Serjeant,  mise  your 
voice  as  much  as'  possible  you  can,  that  my 
lords  towards  the  upper  end  of  the  House  may 
hear, 

Serj.  Wright.  May  it  please  your  lordships, 
this  noble  lord  Edwanl  earl  of  Warwick  and 
Holland,  tbe  prisoner  at  llie  bar,  stands  in- 


11  WILLI  AAI  III. 

Ilbr  ih«  friomouK  killiti)r  and  miw'd«r  af 
HieHrd  Cdote,  aiq. ;    nud  lite  iiiiUctincnt 

I  tlie  lOtb  ^«Etr  Qf  bi«  mjijfsr^^'s  rei|p],  at  iim 
arifih  of  8t,  Martin- In- ib€-FieliJ«,  in  tiic 
o«nty  of  lVIijklle&e»i  tbe  (vnsoner  at  Ibc  Smr, 
bp  etfl  of  Wiiruick,  togfetber  with  Charts 
Drd  M<>Uun,  bat^n  of  OakehaiufvUiji,  tiicbini 
preoob,  Hxiger  Jani«?«,  an*l  Gaorge  Doc&wra, 
■nt.  fdooioufily,  volunliiHly^  aiul  of  llieir  ma- 
rafaie-Umu^rbt^  did  make  au  a^uult  upoa 
lie  taid  Richard  Cocitc,  in  the  indieimctit 
e*l ;  and  the  indicliueDt  cbergetli,  tUat  ll»^ 
|0f  Wan4rti:k|  at  Ibe  i^anie  litne  and  plact, 
||t  fiivoril  febaioB^ty,  lolDiitarJIy,  and  of 
oialice  otWtt-lbougbt^  di4  «viv«' unla  the 
I  Eiehanl  Ct>ot<;f  in  or  upon  the  1d\  part  of 
Bio  br«a»t  of  iiim  the  sajU  Hicbard  Cooi^,  near 
hiscoiUr-Uone^one  mortal  wound  of  tliehrtiaclth 
Tbalf  an  inch,  and  of  the  d4:pib  of  dre  incbci^, 
*  which  imi  ivoutid  the  iaid  Richard  Coot*: 
brn  and  ibcrr  instantly  died  ;  and  the  indict- 
ac;it  further  ^liarg^^s,  thut  ihti  asdt]  Charl^  lord 
lob  nil,  llidiarit  French »  Eof^er  Jom^  and 
orjfc  Dockivta^  the  ^arl  of  Warviick,  to 
"jeomniil  tbt*  fi^bny  and  murder  aforesaid, 
vrefe  then  and  tljerc  akhn^,  assistiug^,  com- 
f^irting,  and  aht;Ui[»g  j  and  so  the  Jurorg 
^argif,  that  be  iti^  said  Edward  €ar]  of  War- 
wick ani]  Holbiidf  Charity  lord  l^Iohun,  Hich- 
«rtl  Frfriieb,  Uiig^er  James,  and  Geijrge  Ouak- 
vra,  th&  said  1  tic  hard  Coote,  It^Jonionsly,  vo- 
luntarily, and  of  their  tnaJice  atWe-tbougbt, 
at  the  i^arisb  aforeaaid,  in  ihe  county  aforesaid, 
did  kill  and  [OLird4.'r,  a^aiusl  tliij  peace  uf  out 
«over^LgT)  lord  ibe  kiug,  bi.s  crown  and  digniiy. 
To  this  iudictmeni  tbis  noble  lord  the  |>rijooer 
at  the  bar,  Ed  ^ard  earl  of  VV'ar^vick  and  Hi>U 
land,  has  jdeadf^d  not  guiJty,  and  for  his  tnal 
haih  put  himself  Ujion  my  nohU  lunb  bis  peers 
hvta  pre»eut ;  we  ftball  call  our  eridance,  and 
if  we  nro?ethti  fnct  for  L he  king,  we  do  n&t 
doubt  nut  your  lordNbips.  wjU  gire  such  judg* 
inent  for  the  sume  as  shall  be  just. 

An.  Gen.  May  it  pka^e  your  lordshipi,  I 
ftm  of  counsid  in  thii^  cause  for  the  king  afipjust 
tbii^  noble  lord  Ediiard  earl  of  Warwick  and 
Holland,  tbe  prisoner  at  tbo  b&r^  who  standi  in- 
dicted by  the  |^aud  jury  of  Ibe  couoiy  of  Mid- 
dlesex, has  been  arraignrdg  and  h  now  lo  be 
tried  before  your  lorfkbiji^  fur  th«  fekkoinus 
kiJIing  and  murdering  of  Mr.  Coote,  in  tbe  in- 
dictmeut  named  ;  the  erid^nce  lo  make  good 
tbis  charge  aguinst  this  noble  lord,  it  cutnes  to 
my  turn  to  open  to  your  ioFd$hin«« 

*My  lordii,  tbe  case,  as  to  the  tact,  according 
io  my  instructioBBf  is  this  ^  Upon  Saturday,  tbe 
Sdlh  of  Qcuib4?r  last,  at  night,  my  lord  ofWar- 
.wick,  my  lord  Mohim,  Mr.  French,  Mr,  Docb^ 
wra,  ami  Mr.  C^te,  the  utifortunaie  gentleman 
who  wa^  kilted,  met  to^clher  at  one  Locket's 
wbo  kepi  ibe  Greyhound-tavern  in  tbe  Strand^ 
and  there  tbey  staid  liit  It  was  \*fry  I  ale  |  about 
twelve  of  the  el ook  at  nit^ht,  or  thiteaboiitSf  a 
nuMieiifer  wa^  «entby  tbecooi^MUf'  to  f«tcii 
anoiher  geutterniin,  Mr.  Jame^  ;  and  Mr*  Jamcti 
coming  to  tbeni,  m  whu  0g$#iQD  y^M  kird- 


"I 


Trial  ^ihe  Ead  ^  Wi^rmick^ 

«iiipit  wiU  W  tohl  hy  ibe  w«ti»e&w«  i  _^ 

uftbiT  dock  inilte  montbgt  on  Sunday,  t|| 
^mh  nt  Oeiober,  tli«y  all  i!a»ne  difwn  m^  of  Hi 
rimm  wlwta  \\\^y  hud  hc^m  m  bl*f»  t<»ll»'^ 
of  thit  bouife,  and  there*  m  tJie  wit 
tell  ynur  lord^hipti,  itworda  m^itm  dtawn^ 
cbatr*  wort!  calM  fur,  ««Ht  iwo 
wojiL^  ni^rcsi  al  luuid<mui«,  and  tw«iifi 
patiy  Hcsnt  into  tlifltw  cliidiv  ;    « 
aud  wliat  pnsit  mI  that  timr,  the 
tell  ^um  lurdsiliip4  %   ibofl^  Idat  g4il 
chairs  cjin^c  out  agnin,  and  tnon*  c 
cal Jui(  Ibr,     But  I  mnst  arqnaini  your 
that  ni^  )unl  Muhuu^  ^vh«u  tbe  tw0  £ 
that  went  into  tli*^  oliAirs  ordlered  11*0  d 
lo  lake  tlwm  «p,  M\i\  cajry  iktta  airsT, 
to  th fill  to  stop  and  go  no  farther,  Itir 
ahould  he  no  qaaneling  that  nighi,  anil  tli^  fer 
would  Kisnd  for  tljr  guifds  and  *f c«re  tbrd* 
and  afttr  tbis  they  cani«  out  ot  ibe  ehatrv  igtiAi 
it  will  appear  there  wr^reiiiwQnls  draifii  iaom^ 
all  o1^  thtsm,  and  s>om<*  wuutidfi  given:  mm 
Qhm%  bluing  called  for,  and  bruugbt,  ih»  atUr 
lord  thai  b  here  at  tbe  Isar^  my  kml  f^f  W» 
wick,  my  lord  Mobun,  and  llie  «ther  IbtirfW 
tiemefi,  went  all  iuto  the  ehair^  ami  nvtlfci 
cliairmou  dhfections  whither  ihcy  libould  dfrj 
them,  at  ba«tf(is@  tbe  foremuat  had  dii 
given  them,  and  ibe  r«!al  were  to  fultow  % 
it  was  a  v^y  dark  oigbtf  but  al  last  they 
dl  ic»  Ldcesiar'Souartt ;  nod  tbey  wtn;  i«ldff& 
a  litUe  on  this  side  the  tmU  of  Uiv  fi^uart^iiJ 
when  the  chairmen  had  set  them  do^i  " 
went  avi  ay  ;    but  imiuedu^teiy  souae  of  I 
beard  my  lord  of  Warwick  calling  fut 
agaio,  wbu  came  towards  ibe  raiK, 
they  tbimd  twn  of  the  gentlemen  thai 
cariieil  in  some  of  the  other  chaira^ ' 
Mr*  C^iole  between  them,  and  woidd 
Ibe  chairmen  carried  bim  away  to  a  sui 
hut  they  found  be  was  d^ing*  and  so  wouMo^i 
meddk'  viitb  him;  atWrwarda  tny  loiii  of  Wir« 
wick  and  Mr.  French  were  oarried  hy  two  d 
tbe  chairs  to  Mr*  Amy^s,  tbe  surgeon  atlfai 
Bagnio  in  L^ing-acre,  wheraMr.  Frandi  hs^ 
vYovmded,  was  iaken  cure  of  pairticuhirly  k|tM 
reeommefnlation  of  my  lord  of  WarwKk^MJ 
tilts  oiaster  of  ibe  houM  was  called  up,  it " 
fery  lale  ;    Mr.  Coote's  sword  was  bronchi  li 
thai  place,  hut  by  whom  it  wap  brt>u^bt 
cannot  esUiCtly  sa^i .     W  bile  my  lord  of  H 
wick  and  captain  French  wer«  there,  and  uf 
lord  of  Warvkick  bad  given  ordera  for  tbv  di 
ing  of  himself,  and  forbid  the  opeoing  of 
door;  there  came  the  tsiber  two  gentletneei 
James  arKi  Mr.  Dockwra^  aitd  upon  ilietr " 
ing  at  the  door  tbey  were  let  in  hy  my 
order,  idter  be  liad  discovered  wha  tbry  n 
lookbg  ibrough  tbe  wickt4.     Mr.  iauirt 
his  sword  dm  WD,  bul  it  was  brokea.     My 
of  Warwick'^*  hand  was  slightly  WfumdMl, 
his  sword  bloody  up  to  the  bill  ia  hcni  Iw 
in,  as  will  be  proved  by  tbe  um^mtmy 
serf aniji  iu  tbe  House.     Thrre  wtf  a  di 
betvreen  my  lord,  Air.  Jauiea  aiwlll 
about  going  into  the  couuti 
fP«gti  Ui«  awords  wef9_ 


utry  f  buft 
I  4  ^»^ 


fat  ike  Murder  qflUehard  Coote,  esq. 


A.  D.  1699. 


D  Umm,  and  upon  eoqairy,  there  was 
fbond  opoD  Mr.  French'i  sword,  but  a 
•al  npoa  my  lord  ot'  Warwick's,  of 
eat  aoiioe  was  taken  at  that  time.  Mr. 
ho  was  killed,  bad  reoeired  ooe  woaod 
I  side  of  his  hreast,  half  an  iaeh  wide, 
deep,  near  the  eidlar  bone ;  he  had 
UMrther  woond  upon  the  hfft  side  of  his 
Hh  which  your  lordships  will  bear,  in 
^ment  of  the  sorgeon,  were  mortal 
and  the  e? idenoe  will  dedare  the  na- 


kIs,  the  efidenoe  does  chiefly  c 
spend  on  circwnstances,  the  nwt  being 
le  night,  and  none  but  the  parties  oon- 
ing  present  at  it;  we  shall  by  tbeefi* 
lore  Yonr  lordsblpa,  as  it  is,  for  your 
t,  and  call  what  witnesses  we  have  on 

the  king,  against  this  noble  peer  the 
at  the  btf,  and  take  up  your  lordships 
iirther  in  opening ;  and  we  shall  begm 
luel  Cawtbome ;  he  is  a  drawer  at  ue 
here  those  lords  and  gentlemen  were 

and  be  will  give  you  an  account  of 
they  came  there,  how  long  they  staid, 
ippened  in    the    house  during  their 
fre,  and  what  time  tbey  went  away. 
S.   Give  him  his  oath.    (Which  the 

'en.  My  lords,  I  doubt  the  witness  is 
',  thai  it  will  be  difficult  for  him  to  hear 
lions  that  we  are  to  ask  him,  unless 
have  him  nearer  to  us. 
S.  Mr.  Attorney,  my  lords  seem  to 
non,  that  it  will  be  more  for  your  ad- 
md  theirs,  that  the  witnesses  stand  at 
we  tbey  do ;  which  will  oblige  you  to 
r  voice  so  loud,  that  they  may  hear 
ases  and  you  too. 

en.  Is  your  name  Samuel  Cawtbonie  ? 
one.    Yes,  my  lord. 
en.  Where  do  vou  live  ? 
.  With  Mr.  Locket  at  Cbariog-cross. 
rem.    Did  you  live  with  him  at  the 
nd  tavern  in  the  Strand  the  latter  end 
er]ail?'^Cawth.  Yes,  I  did. 
em.    Well,  pray  will  vou  acquaint  my 
I  the  time  when  my  ford  of  Warwick, 
Mohnn,  and  Mr.  Coote  were  at  that 
m  feng  they  stayed,  what  happened 
By  were  there,  and  when  they  went 

.    It  was  Saturday  nigbt,  the  S9th  of 

last 

-en.     Pray  tell  my  lords  the  whole  of 

wieikre  in  the  matter. 

.    There  came  my  k>rd  of  Warwick, 

Mohnn,  captain  Cfoote,  capt.  French, 

ihi  I>ockwra,  the  99th  of  October  last, 

King,  to  my  master's  house  at  the 

nd  tavern  in  the  Strand. 

'tn.    How  long  were  tliey  there,  and 

■of  night  came  they  in  ? 

,    Abmit  8  o'clock  at  night,  my  lord 

^  ny  lord  Mohuo,  capt.  French,  and 


'i«.  What  day  do  you  say  it  was  ? 


Cemth.  Saturday,  the  f9tb  of  October  last 

Ati,  Gen.  How  Mug  did  they  continue  there  f 

Cawtlu  It  was  between  one  and  two  the  next 
morning  before  they  went  away. 

Alt,  Gen,  Was  any  body  sent  for  to  come 
to  them  there P — Cawth,  Yes,  Mr.  James. 

Ait.  Gen,   What  time  was  that  ? 

Cawtk,    About  twelve  of  the  clock. 

Att,  Gen,  Did  he  sUy  with  them  till  they 
went  away? — Cawth,  Yes. 

Att.  Gen.  What  did  you  observe  past  in  the 
company  while  they  were  there  P 

Camtk.  I  did  not  observe  any  thing  of  quarrel, 
not  so  much  as  an  angry  word  anoongst  them, 
tUl  they  came  down  to  the  bar  and  were  going 
away  ;  when  they  came  down  to  the  bar  tbey 
orderf^  me  to  call  them  chairs,  or  coaches  ; 
and  there  were  no  ooaches  to  be  had,  and  so  1 
went  for  chairs,  and  two  chairs  came ;  for  the 
porter  that  went  to  call  the  coaches  was  a  great 
while  before  be  came  back ;  and,  as  1  said,  I 
going  for  chairs,  there  came  two;  but  that 
th^  said  was  not  enough ;  so  more  chairs  were 
called  for,  and  at  length  there  were  more  chaire 
gotten;  in  the  first  three  chairs,  my  lord  of 
Warwick,  my  lord  Mohun>  and  captain  CooCe 
went  away  in ;  and  my  lord  Warwick  and  my 
lord  Mohun  bid  the  chairmen  carry  them  hom^ 

Att,  Gen,  Were  there  then  any  other  chain 
atthedoorP 

Cawth.  There  were  two  more  chairs  at  the 
door,  and  another  was  called  for. 

Att.  Gen.  Did  you  hear  any  directions  gives 
where  tbey  should  carry  them  P 

Cawth.  My  lord  Warwick  and  my  lord  Mo- 
hun bid  them  carry  them  home. 

Att.  Gen.  Did  you  hear  my  lord  Warwick 
or  my  lord  Mohun  particularly,  and  which, 
say  whither  they  would  be  earned  P 

Camth.  I  did  hear  my  lord  Mohnn  say,  cap- 
tain Coote  should  go  and  lie  with  him,  or  he 
would  go  and  lie  with  capt.  Coote  that  night, 
for  then*  should  be  no  quarrelling. 

Att.  Gen.  Did  thev  upon  that  go  away? 

Cawth.  Mr.  French  and  Mr.  Coote  were  in 
chairs  before  niy  lord  Mohun  or  my  lord  War- 
wick, or  any  of  the  rest. 

Att.  Gen.  What  then  happened  upon  their 
going  into  the  chairs  P 

Cawth.  My  lord  Mohnn  came  out  to  them 
and  swore,  there  should  be  no  quarrel  that 
night,  hut  he  would  send  for  the  guards  and 
secure  them. 

Att,  Gen.    What  happened  thenP 

Cawth.  Upon  that,  both  of  them  came  out 
of  their  chairs  and  came  into  the  house,  and 
there  they  came  to  the  bar,  three  of  them  in  the 
passage  by  the  bar,  and  three  of  them  behind 
that  imssaf^e. 

Att,  Gen.  Pray,  will  you  tell  what  did  reall}' 
pass  throughout  the  whole  transaction  P  What 
was  done  after  they  came  in  again  into  the 
houiie  * 

Cawth.  AfitT  that,  1  was  bid  to  call  for  six 
chairs,  if  1  conld  sret  no  coaches,  and  so  i  did  ; 
and  when  1  had  brought  what  chain  1  could 
get,  and  returned  to  the  bar,  I  heard  tlieawords 


I 


9m}  11  WILLIAM  m. 

eJnftb  ;  wlien  the  i words  were  dm vrn  I  cannot 
iiay,  nor  by  whom,  it  might  he  by  ftM  the  siv, 
for  aiiglit  i  ku&Wt  bec«o»e  I  was  'in  tbe  strict 
lo  coll  the  chairst  aiiti  wiieu  f  came  bnek  to  tht^ 
houfi?,  I  was  in  hopes  all  bail  beeti  c^uietecj,  for 
thdr  BwoiMis  were  puttkif  up:  and  when  ibey 
went  ft  way  In  tbe  cbaifs,  I  did  hope  tbey  W€nt 
away  rrimidry- 

AtL  Gen.  Pray,  how  did  tbey  gt>  awajp 
nUa  went  tugetber  ? 

Cawth.  My  lord  of  Warwick,  mj  lord  M*i- 
buu,  iirvti  captain  Coote  %vent  in  the  tifst  three 
cbnirif  thent  ibr^e  log^tlieff  and  bid  the  diarr- 
mmi  go  borne ;  the  i>ixth  cbntr  ik  at  not  iben 

Att^  Gen.  Wbentbat  chair  came,  pray  wbat 
dirc'Clioiii  were  (ji^eu  to  it  ? 

Ciiwih.  I  did  not  hear  them  g^ive  the  chair- 
men any  directions  al  alL 

lit.  (Jen.  Do  you  know  any  thiiig  more 
thmt  wm  done  ai\er  this  time  ? 

CotffA.  No,  ray  lor*l>  not  after  they  weol 
fcway  J  after  I  returiUMi  with  Iheebairsrit  wan 
in  two  minutes  lime  ili^t  they  weni  away^ 

Ait.  it  en.  My  (ords,  I  suppose  be  kncuvs  n& 
Mkoreot  the  matter. 

£.  if.  S,  Will  yon  then  ask  him  un  mare 
questions ,  Mr.  Attorney  ? 

Ait,  Gen,  No,  my  lords,  unless  ibl^zioUb 
lord  aball  ask  him  any  questfon*:,  upou  which 
ir#  akall  liave  occasion  to  examine  bim. 

L.  H.  S,  My  brd,  has  your  lordship  any 
ouef  tions  to  ask  thia  vvlineis  ?  For  oovv"  b  your 
timen,  the  king^s  cotinsi^t  hiring  done  e^atnia- 
ia^him* 

E.  of  fFfir.  1  denire  to  ask  him,  wbetber  1 
did  not  bid  the  chairmen  |fo  home  ? 

L.  H.S-  If  your  lords^liip  please  to  propose 
^our  question  to  me^  I  will  require  ^n  an!tn'er 
to  it  rit)m  the  witness,  and  it  will  be  tlie  belter 
heard  by  my  lordi. 

£.  of  Witr^  My  lord,  I  desire  to  know  of 
ibis  man,  ubether,  when  t  went  awjiy  ifi  the 
chair  from  his  maf^ler's  ho  use ,  I  did  not  bid  the 
cbairmen  ^  home? 

L.  if,  S.  Witness,  you  hear  my  brd*s  ijues- 
tlnu,  what  say  you  to  it  F 

Cauik  Yea;  my  lord  of  Warwick  did  bid 
the  chairmen  go  home^ 

£.  of  I  tar.  My  Inrd  ;  t  bare  another  quea* 
tioii  to  ask  bim,  Whether  he  k  no  via  of  any 
quarrel  there  was  between  mp  and  Mr.  Coote 
a  I  that  time,  or  any  other  time  ;  because  wo 
both  ti$ed  to  frequent  thai  house  ? 

Can:tk.  No,  my  lords,  1  nerer  beard  any 
aiigry  words  between  my  lord  Warwick  and 
Mr.  Coote  in  my  lile. 

[Then  lb«  bnli  towards  Ibe  upper  end  of  the 
House  complaining  that  they  did  not  hear  his 
Grace,  the  Lord  digh  Steward  tvas  [ileased  to 
repeat  the  question  thus:  3 

L.  H.  S.  When  my  lord  of  Wnrwick  hid  the 

»  chaimieu  ^  Iniaie,  or  at  any  other  time^  did 

vou  obverfe  that  there  bad  been  any  quarrel 

Mtween  bis  lordship  and  Mr.  Coote? 

H.  nf  War,   My  lord,  I  desire  he  may  be 


^3 


m 


TrmI  nfihc  Enrl  qf  i^amdck, 

a»ke*J,  aioc&^e  both  o»cd  lh*t  brniv, 
til  sit  ttigbt,  when  t  went  away,  or 
aJter,  I  had  h^^y  quarrel  with  ilr.  C 

L.  B^  S*  Tlie  question  10  y  lort 
that  are  the  witness,  lo  answer,  uc, 
you  did  bear  any  quarrelUocf  dr  anpy^ 
to  patts  between  my  lord  W^amick  and 
Co<ite  that  »ig:ht  before  or  aJler  tbey 
dowtt,  nr  when  ibey  went  awa j^  of  M  airy  Olte 
time? 

Camth.  Ko,  mj  lord,  I  never  beard  lay 
angry  words  pa^  between  liiena  UiMi,  norei* 
at  any  time  l^bre  iu  all  my  Ufe^  bijl  I  ^w%p 
looked  upon  ibem  to  be  very  good  IHcfNk^ 

B.  of  War.  1  di^ire  be  may  be  atiked,  Wb^ 
ther  Mr-  Coote  did  not  come  ro  that  hou^r  is 
my  company,  and  whether  be  did  not  Irfqatallf 
eome  to  that  bouse? 

Ctmtk,  Yes ;  ihey  used  to  be  there  eivj 
day  almost,  and  they  aiine  that  ni^'^bt  lognlir 
in  eomnany. 

li.  of  H'fitr.  r  desire  he  may  be  asked,  wk' 
Iher  1  bft?e  not  been  frequently  in  his  cowpifijF 
there? 

Cttn^h*  Yes;  1  say  lery  fi^ocmily,  wmf 
day  almost,  aometim^  twice  a-day. 

L.  H^  S.  Would  your  lordship  a«k  liini  asf 
other  question  ? 

E,  of  fiar.  My  lor#U  1  ile^re  he  msv  W 
asked  tbis  question,  whether  he  ktiow«  uimj 
parti^^ular  kindt^s  belweea  Atr*  f^oots  AoA 
me? 

L.  H.  S,  Do  you  know  of  any  ^rlieidv 
kindne&«  between  my  lord  Warwic'k  and  Hi* 
Coote,  the  g'entlemau  that  was  killed  ? 

Cit^th.  Yes,  my  lord,  there  was  alwiji  i 
^at  kindness  brttveeti  tliem,  as  I  obsetredi 
it  e^er  wai:  so,  and  1  nerer  heard  angry  wah 
pass  between  tlseni,  but  they  wen*  tery  goad 
friends  constantly  ;  I  vtaiteil  upon  them  |^caf> 
raJIy  when  ibey  were  at  my  raaster^s  hooiCt 
wiiich  was  cilery  day  almost, 

E.  of  War,  I  desire  to  know  of  this  wiia^ 
w  lie  ther  be  does  not  reoremher,  or  e^n  nami, 
some  particular  kindnesses  tiiat  passed  betirett 
Mr,  Cooieaud  tne? 

L.  If,  S.  Can  5^00  specify  mw  paiitwhr 
instances  of  kindness  that  passed  hetwees  Pf 
Inrd  Warwick  and  1^1  r.  Coote  ? 

Caaih,  Ves;  my  lord  of  Warwjdf  aid 
generally  to  pay  the  reckoning-  for  Mr.  Cocrief 
and  be  did  m  at  this  time. 

E*  of  War.  My  lord,  1  desire  be  nrwv  tm 
asked,  between  whom  be  apprebexkded  die 
quarrel  to  beat  this  time? 

X,  H,S.  You  say,  friend,  there  weiT&swadi 
drawn,  and  a  quarmlln^  at  the  bar ;  CB&yoa 
tell  between  whom  the  quarrel  wssF 

Cui^ih.  My  lord  War  nick »  my  Jord  Mobaii 
and  capt.  Coote^  were  all  on  one  sid«^,  and  Ibt 
other  three  were  on  the  other  side* 

E.  of  War.  Wiio  were  the  two  per^ond  thil 
it  was  uppreh ended  the  quarrel  was  tietweca? 
I  desirt?  be  may  be  asked. 

L.  if*  5.  Vou  say,  there  were  three  on  die 
one  side,  and  three  on  the  other  1  pfay .  bei^i  e«a 
whoia  did  yov  appreUend  the  qiturrcl  bo  be  f 


9613 


Jot  the  Murder  tf,BiAwd  Code^  esq. 


A.  D.  1699. 


[im 


Ctmih.  I  beliere  tliequamiwu  between 
Mr.  Cooteand  Mr.  Frencli. 

B.  of  War.  My  lord,  I  desire  to  know  of 
Uiki  witness,  what  wonis  he  heard  Mr.  Coote 
fay  aAer  he  and  Mr.  French  returned  into  the 
house  and  came  opt  of  the  chairs. 
'  L.  if.  S,  What'  do  you  say  to  the  question 
my  k>rd  prafioses? 

Cawih.  I  heard  Mr.  Coote  say,  he  would 
langU  when  he  pleased,  and  he  would  frown 
vfaea  he  pleased,  God  damn  him. 

£.  of  War,  My  lord,  I  desire  to  know,  who 
he  thinks  those  words  were  addressed  to  ? 

L.H.S.   To  whom  did  Mr.  Ciwte  speak 


Cmmlk.  Whether  he  spoke  tliem  particularly 
%m  Mr.  Freuch  or  to  the  other  two  gentlemen 
who  were  on  the  other  side  of  the  bar,  i  cannot 
directly  tell. 

£.  of9r«r.  I  desire  to  know  of  him,  whether 
Mr.  Coote  was  not  one  of  the  three  that  was  on 
the  outside  of  the  bar  1* 

Caotk.  Yes,  my  lord  of  Warwick,  my  lord 
Mobun,  and  capt.  Coote,  were  of  the  outside  of 
the  bar. 

£.  of  War.  Was  capt  Coote  with  me  in  the 
beginning  of  the  night  at  that  house  P 

Cawik.  Yes,  he  came  at  the  beginning  of 
the  night  with  my  loi-d  of  Warwick. 

E.  oi'Peierk  My  lords,  I  desire  to  ask  this 
witness  one  question. 

JL  U.S.  I  think  it  is  proper,  my  lords,  in 
nomt  •!'  methoil,  to  let  both  sides  have  d(»ne 
More  any  questions  bo  askeil  by  any  of  my 
■oble  hnds. 

E.  of  Peterb.  I  did  apprehend  my  lord  of 
Warwick  bad  done. 

L,  H.  S,  No,  my  lord,  not  as  yet :  pray  my 
lord  Warwick,  what  other  questions  has  your 
hwdsfaip  to  ask  of  tliis  witness  ? 

£.  of  War.  My  lord,  I  desire  he  may  be 
asked  particularly  this  question,  whether  he 
pefceived  any  quarrel  particularly  between  me 
«ihI  oapt.  Coote  when  we  went  out  of  the 
haiwr 

L.  H.  S.  You  hear  the  question,  did  you 
fmnmte  any  quarrel  between  my  lord  AVarwick 
and  Mr.  Coole  before  they  went  out  of  the 


Cumtk.  No,  I  did  not ;  nor  ever  saw  any 
i|WBrifl  between  them  in  my  lile. 

£•  nf  War.  I  desire  to  know  who  paid  the 
nahooing  that  night? 

CowCA.  The  reckoning  wss  called  for  before 
J  came  in  to  take  it ;  and  though  I  think  my 
h>rd  of  Warwick  paiil  for  Mr.  Coote,  yet  I  can- 
not ao  directly  tell,  because  it  was  c<»llected 
hefiire  I  oame  mto  the  room  to  receive  it. 

L,  H,  S,  My  lord,  have  you  any  thing  more 
'tn  aak  tliis  witness? 

£.  of  War,  No,  my  iord,  at  present,  tliat  I 
tliink  of. 

L.  H.  S.  My  h)rd  Peterborouq^h,  youv  lord  • 
ahip  desired  to  ask  a  question,  will  yuu  :.jcase 
ta  propoae  it  now  ? 

E.  iiPtierb.  My  lord,  this  witness  seems  to 
take  nntke  of  two  tides,  who  were  on  the  one 

VOL.  Xlll. 


side,  and  who  were  on  the  other,  and  that  Mr. , 
Coote  apd  my  lonl  of  Warwick  were  oo  one ' 
side ;  I  desire  to  know  one  thiug  of  him,  >i-hat 
reason  he  had  to  apprehend  that  they  two  were 
of  a  side  ? 

X.  if.  6\  Friend,  you  hear  that  noble  lord's 
question  ;  you  seem  to  say,  tiierc  were  three 
and  three  ol  a  side.  What  reason  had  ytm  to 
apprehend,  that  my  lord  Wamick  and  Mr. 
Cuote  were  of  one  side !'  You  must  a\ plain  to 
mv  lords  how  you  Come  (o  make  that  judgment^ 
what  reasonyou  had  tu  tiiink  so? 

Cavth.  liiey  three,  my  lord  Mohun,  my 
lord  Warwick,  and  F'Ir.  Coote,  were  on  the  ono 
side  of  the  bar ;  and  CQpt.  Jaiues,  capt.  French, 
and  capt.  Dockwra,  were  on  the  other  siile  of 
the  bar. 

L.  11,  S.  So  you  said  before ;  but  the  ques- 
tion which  my  noble  lord  desires  to  be  satisAed 
in,  is  this,  how  you  come  to  spcuk  as  if  there 
was  a  qusn-el  between  three  antl  three  ?  what 
reason  hod  you  to  tliiuk,  that  three  were  oo  one 
side,  and  three  on  the  other :' 

Cawlk.  Their  swords  were  all  drawn,  and 
they  stood  three  on  one  side  of  the  bar,  and 
three  on  the  other. 

£.  of  Rochester.  My  lonlii,  I  desire  to  ask 
this  witness  one  question  ;  I  think  he  told  your 
lordshiiis  at  firbt,  that  Jie  did  not  perceive  any 
angry  words  among  them;  afterwanls  he 
c«)mes  to  talk  of  swords  drawn  omonKstv  them 
all,  three  on  the  outside,  and  three  on  the  inside 
of  the  bar ;  I  desire  to  know  what  was  the 
occasion  of  those  swords  btiiig  drawn  on  the 
one  side  or  the  other  ? 

Cawih.  Whatsoever  quarrel  there  was,  was 
amongst  themsi^ives  above  staii-s,  and  I  know 
no  angry  words  that  passed  between  them  when 
they  camo  down  to  tlie  bar. 

L.  H,  a.  8ecwiiat  you  say  ;  how  consistent 
one  part  of  it  is  with  another!  You  said  at 
iirst,  you  did  not  hear  of  any  ai^^ry  words  that 
passed  between  them,  and  yet  you  say,  all  their 
swords  were  drawn,  and  three  wei'e  on  thoone 
side,  and  three  oo  the  oilier:  and  when  yoii 
were  examined  upon  the  motion  of  that  noble 
lord,  what  you  meant  by  three  on  the  one  side 
and  three  on  the  other,  you  said,  my  lord 
Mohun,  my  lonl  Warwick,  and  Air.  Coote, 
were  on  tlie  oue  side ;  Mr.  James,  Mr.*  French, 
and  Mr.  Dockwra,  wereon  the  otlier  side :  liow 
could  there  be  two  sides,  unless  thert*  was  :i 
quarrel  ? 

Otuth.  I  said,  1  dkl  not  hear  any  angry 
words  pass  between  them  before  they  came  to 
the  bar,  or  while  they  were  al>ovc  stairH ;  but 
they  were  three  on  the  one  side  of  the  bar,  and 
three  on  the  other. 

L,  U,  S.  But  you  have  not  given  a  satis- 
factory answer  to  that  question  which  the  noble 
lord,  my  lonl  Peterborough,  asked  you,  What 
reason  you  had  to  anpreheud  thai  the  noble 
'  lord  the  prisoner  at  the  bar,  and  capt.  Coote 
were  of  a  side? 

Cawtk.  My  lurd  Mohun  came  to  the  chair - 
side,  whtti  capt.  Coote  and  capt.  Frenoh  were 
got  into  the  two  fuvt  chairs,  and  told  copt. 

3Q 


9»i       iiUBu^yii  nL 

CMH^HNlibm  ilMMli  kBmmtm 
ajglrttf  telibat  thijllirai^vylwWwwfalE, 

■CnvA  Yii»  ■!▼  Iifif  I  dM'MBMMHl  It  IS* 

Ati.  Om.  IfmjmMB  ktdi  Wi  iiM  oMi 
thiir  yirtiMt  I^Mmf  Mfc  tteiwiteeM^wi- 

<iiy%tlMitliwii«WM'€fii>iTdtttht%wr<fth> 
bStm^  Mitwtciitmmy  jkai  m  Im  ■■■• 
lMiiM|tkrMwcMMtlie€MM(K  •nioiM 
Mtbt^llMri  MifltahtldmiiiKI^DMi 
■M.tkit-k«  kM  giffn  yoor  IstddUM  a^ 
m^vof  MMmoByWliil  MMM  htkidit 
mfmmkimi  Umm  wwif  tfarai  tiki  Huwb  of  m 
i<  <r>  wJMh  wfll  be  wy  mlwhl  inhfa 
"*  ftttttbeloMyiriirifB 


-cfnUet 


CmM.  laowdMDMIillhMitliewofdttlMt 
Mr.  CooU  said,  That  he  vooM  lauffh  when  he 
pleased,  and  frownwhen  he  pleased. 

Mt.  Qen.  Pray,  my  lord,  I  desire  he  may 
be  asksd,  who  those  words  were  spoke  to,  aiid 
who  thev  were  applied  to  ? 

Camti,  They  were  spoke  to  Mr.  James,  Mr. 
FfiBcfa,  tnd  Mr.  DddcwrS,  who  were  within 
aUbefthabar. 

Ati.  G#a.  Did  he  apply  those  words  to  all 
those  particalar  penoos  ? 

.  Cawtk.  Yes,  aa  1  thought,  for  they  three 
were  within  the  bar ;  my  lord  Warwick,«my 
lord  Mohqp,  and  Mr.  Coote,  were  without  the 
bar. 

Ati.  Got*  Pray,  my  lord,  1  desire  he  may 
be  aikeCjIiis  question.  Was  that  before  the 
iipiafds  were  drawn,  or  afterwards  ? 

Otmih.  It  was  before. 

Alt.  Gen.  Then  I  desire  he  may  be  asked, 
whether  the  swords  ware  drawn  upon  those 
words  r 

Ctwih.  Noymvbrd;  the  time  of  drawing 
the  awords  was  when  I  went  ont  to  call  chairs 
and  coaches ;  and  I  know  not  who  drew  the 
aweids  firsts  or  when  they  were  drawn ;  •  but 
istei  I  came  bade  I  fottnd  them  ali  drawn, 
md  I  heard  them  clashing. 

Ati.  Gen.  Upon  the  oath  yon  have  taken, 
was  those  words  that  vou  speak  of  Mr.  Coote's, 
that  lie  would  laugh  when  he  pleaaed,  and 
frown  when  he  pleased,  before  the  swerda  were 
drawBt  er  atar  the  sworda  were  drawn  ? 

CsvM.  Before  tlMaweid8w«eidnwn;  ftr^ 


I  did  not  see  ihe  swords  dfa:Wii  till  1  «ane 
back. 

L.  H.  S^  Uom  either  iitk  dcaim  to  luk  ^i 
wiloess  any  questiods ;  if  xm^  tbem  you  omj 
with dr^  1^1  and  you  may  proct^d,  Mr.  AHWatf^ 
to  examiDe  suiue  other  witn^i. 

Lord  Wharitm^  Aly  k)fd»  there  wm  s  ij^m^ 
tion  asked  at  the  bar  ihout  the  hindrrinf  d  tlu« 
nuarret,  and  my  lord  Mohan^s  desire  to  ptn 
tf lem ,  and  make  them  fVieadf ;  I  desire  ihe  wA* 
uesi^i  Idoi-^  li«  go«ij  awfty»  may  be  aidcfd  whst 
he  kuows  of  that  mMter. 

L.  H.  S.  It  bofl  been  observed  fay  my  bnl, 
that  yoa  said,  \rhen  tbey  came  d^wti  lo  ik 
bar,  and  Ibe  quarrel  liappeoeft,  sotncboiljr 
baf  e  prwveoted  it }   pray  repeat  llui 
again,  Did  joii  observe  any  of 
wt^re  dis^io^ed  to  lake  up  the  quarrel,  and  oiiis 
them  JrieDdSf  and  wbo  tbey  wereF 

CtittK  BIy  lord  Mobuo  and  my  lord  Waiwiel 
said  they  would  send  for  a  iile  uf  mtV¥|UflMrs; 
and  my  brd  Mohuo  did  all  he  enuJd  tu  fan 
and  pacify  Ihefu  liil  Ibe  quarrel  was  orer  i  wd 
my  loid  M  nil  (in  particularly  had  h»  Agar 
pncked  wjib  end^^ivonriug  (o  cross  IbdrfwoSf 
aod  keeping  UK^m  rrom  fighting  ^  whkib  ww 
&U  he  giot  by  it. 

L.  H,  S.  Do  yon  know  that  of  yoor  0*i 
knowledge  P 

Cam.  His  band  wa^  bloody,  and  he  said  Mil 
the  bar  I  bul  I  was  just  catninor  in  again  wbet 
I  beard  bim  say  Mt ;  but  I  eannot  sa.j  tbii  1 
saw  him  hurt,  for  1  was  without  Uie  niuiea 
the  time  when  that  w^a  done. 

Lord  Godofphirt.    ^ly  lords,  f  desire  to iti 
ihh  witn^$s  one  question  ^    1  o^icerve  be  b>^    ^ 
tokd  my  lords,  there  was  not  an  angry  poN 
passed  helween  them  betore  they  came  daw 
to  the  bnr  t   I  would  fain  ask  him  tbis  quifiitioflt    J 
wbetirer  be  was  in  the  room  all  the  mm  fiH    ] 
tbey  dui  cotue  dowa  to  tiie  bar  ? 

Caw.   I  reoeiTed  the 
tbey  came  down  to  the  bar* 

Lord  Gadt^km.  And  1  dariaaha  Mf  l» 
aaked,  How  lonff  he  staki  io  tlie  roam  wtahl 
xeoeifed  the  reckoniiig  ? 

Cam.  ItwaaabouttwoartlwMi 
I  staid  IB  the  room^aad aat  lannr. 
£.  of  Warwick.  Mvkird,  Aian 
haa  been  ezaaained,  toM  ]f 
came  down  to  the  bar  tliM  \ 
oaUed  for ;  and  wbea  tiiay 
and  the  other  geiitleiBaB»  Mr. 
into  the  chairs,  and  afocrwarda  thej.caaa*^ 
again^  and  Mr.  Coote  aaid  aona  wapia ;  lift 
sire  the  witneaa  aaay  he  a^had  afrii,  wfciat 
was  Mr.  Coote  spoke  tbeae  wwriai 
was  before  or  aAer  the  time  tint  iMia 

the  chair ;  for  I  take  it  fa  be  yngfM^ ^^ 

Caw.  It  was  after  Mr.  Coote  MM  atf|ll| 
dwir,  for  the  chairmen  heard  ttewnii  vf. 
rerily  brieve.  •   •* 

Att.  Gen.  My  k>rd,  1  dcaare  ha  tnjr  baai 
waa  there  any  reply  made  te  tlMViMd^ 
any  of  those  persons  he  sajn  ka  ifipl 
were  on  the  other  skle?  •  Al* 

jCte.  .No,  not  OK  wwpd  imlt 


66] 


Jlar  the  Murder  of  Richard  Ccoie,  esq. 


A.  D.  1699. 


[966 


B.  of  WarwUk,  My  loid,  1  must  beg  the  fa- 
>iir  to  hare  tlie  qontioD  asked  ag«in  of  him, 
betbcr  I  did  not  al  tkat  time  endeaTOur  to  pre- 
BOt  any  quairdlinflr,  aod  did  not  say  I  would 
lU  for  the  guard  if  tbey  did  P 

Caai^.  Yes ;  my  lord  of  Warwick  did  say  so, 
sd  io  did  my  kKd  Blohun,  and  so  I  think  did 
[r.  James. 

Li  H.  &  How  came  yon  not  to  say  so  when 
ov  w«ftt  aaked  timt  question  particularly  be- 
ne ?  TImd  you  said  my  lord  Mohun  endea- 
Durod  to  prevent  the  quarrelling,  and  make 
lem  friaoifc, 

Qm.  Yea,  my  lord  Warwick  did  so,  and  so 
ii  Mr.  Jaoca. 

L,H,S»  I  cannot  tell  whether  any  body  else 
lakea  to  ask  him  any  questions. 

Ait.  Gen.  My  lorcl,  be  speaks  of  what  this 
Nble  ford,  my  knd  of  Warwick,  said ;  hoi  be 
Ises  not  tell  you  the  particniar  eipreasums,  nor 
lbs  time  when  my  k)rd  said  them. 

JL.  H.  S,  You  say,  my  knrd,  the  prisoner  at 
lbs  bar,  endeavoured  to  pacify  the  quarrel  be- 
Ivsen  them ;  but  you  do  not  tell  my  lords  who 
the  quariel  was  between  ^  nor  when  the  endea- 
swr  was  made  li^  my  kird  Warwk^  to  pacify  it. 
Csw.  My  hmlof  Warwick  did  say  be  would 
kie  the  guards  sent  tor. 

LH.S.  What  time  was  that,  belbie  or  alter 
■y  laid  Mohun  sakl  ao  ? 

Csw.  Truly,  my  lord,  I  do  not  know  but 
teit  wu  at  uie  same  time. 

£.  H.  S.  Was  it  when  the  swords  were 
4nn, or  before? 

Csw.  They  spoke  it  both  before  ami  after  the 
masiswere  drawn^  aa  I  remember;  tar  the 
mudi  ircn  not  drawn  while  1  was  in  the 


J  till  I  came  back, 

L  If.  8.  Were  the  aworda  drawn  when  my 

M  Warwick  apoke  nf  sending  for  the  ^ruards? 

Csv.  Surely,  my  lord,  it  was  before  the 

iswds  wore  drawn,  when  I  was  sent  lor  the 

<htta, 

LILS,  You  said  there  was  no  angry  words 

•mroI  between  them  ? 

Csw.  Not  above  stairs,  my  lord :   but  I  ap- 

1  when  tliey  came  down  to  the  bar, 

I  three  on  one  aide,  and  three  on  the 


Ait.  Gen.  Pny,  my  lord,  let  him  be  asked 


Ifcfowtion,  Was  it  aite  tbey  were  three  on 
Ibtene  side,  and  throe  on  the  other,  that  my 
hid  Mohun  and  my  lord  Warwick  spoke  those 
«Ndi? 

Csw.  1  apprehend  the  words  were  spoke  by 
Mr.  Caote,  That  he  would  laugh  when  he 

i,  and  frown  when  he  pleased,  before  the 

}  were  drawn, 


LH.S.  But  that  whkh  my  lords  desire  to 
hem  Ur  What  the  time  was  when  my  lord 
Wirviek  and  uiy  lord  Mohun  declared  their 
Mrs. to  part  tliem  and  make  them  friends; 
HNbw  before  or  after  the  swords  drawn  ? 

Ccv.  Belbra  aotl  after ;  for  I  waa  absent 
«Wn  the  swords  were  drawn. 
.Earl  Biten..  He  says,  that  after  my  lord 
■ibaa  and  my  lord  Warwick  threatened  to 


aend  for  the  luusqueteers,  they  promised  to  be 
quiet.  I  desbre  to  know  who  he  means  by 
Xhey? 

Caw,  Mr.  James  called  to  me,  and  said,  I 
need  not  go  and  call  for  the  cruarrls,  for  ths 
ouarrel  was  over.  There  is  one  thinyr  more 
that  I  forgot,  my  lord  :  After  my  lord  Moliuii 
and  my  lord  Warwick  were  gone  away  iu  their 
chairs,  and  Mr.  Coate,  1  heard  Mr.  bockwra 
say  to  aapt.  James  aud  capt.  French,  they  did 
not  care  a  farthing  for  them,  they  would  fitjLt 
them  at  any  time. 

L.  H.  S.  Who  were  together  then  ? 

Caw,  Capt.  James,  Mr.  French,  and  Mr. 
Doekwra,  after  my  lord  Mohun  and  my  lord 
Warwick  were  gone  with  capt.  Coote. 

L.  H.  S.  Then  Mr.  French  was  with  them? 
Mr.  I>ockwra  said  so  ? — Caw.  Yes,  my  lord. 

Lord  Wharton.  If  I  apprehend  him  aright, 
as  to  what  he  says  now,  my  lord  of  Warwick, 
my  lord  Mohun,  and  capt  Coote,  were  gone 
away  at  tliat  timew 

Caw.  Yes,  they  were  gone  away  in  the  three 
first  chairs,  which  my  lord  RiDhun  bid  go 


fjord  Whapion.  Who  does  he  say  spoke  those 
words? 

X.  H,  S,  Yon  hear  my  noble  lord'a  qnesr 
tion,  who  apdco  those  woHi?  Repeat 'them 
again. 

Caw.  When  my  lord  Warwick,  my  ford 
Mohun,  and  capt  Cooto  were  gooo,  1  lieard 
Mr.  Doekwra  say  to  Mr.  French  and  Mr. 
James,  we  doa*t  care  m  farthing  for  them,  we 
will  fight  them  at  any  time. 

Att.  Gen.  1  desire  to  know,  wbetlier  this 
wimess  testified  any  thing  of  thia  matter  when 
he  was  examined  before  £e  coroner  ? 

Ccia'.  No ;  I  forgot  those  words  when  I  waa 
examined  bd^bre  the  coroner. 

Att.  Gen.  flow  soon  after  your  examina- 
tkm  did  you  recollect  yourself  as  to  what  you 
now  speak  f^Cav.  The  next  dav  afler. 

Ait.  Gen.  I  pray,  my  lords,  that  he  may  be 
aaked,  whether  be  did  in  general  give  the  same 
evidence  before  the  coroner  that  be  now  does  ? 

Caw.  Yes,  as  to  all  but  only  those  words,  of 
Mr.  Dockwra's  declaring  he  did  not  care  a  far- 
thing for  them,  they  would  fight  them  at  any 
time. 

Att.  Gen.  Bfy  lord,  I  beg  he  may  be  asked, 
how  long  it  was  after  the  fact  was  done  that  he 
was  examined  before  the  coroner  ? 

Caw.   It  waa  the  next  day,  in  the  afternoon. 

Att.  Gen.  Then  1  have  thia  question  further 
to  ask,  if  vour  lordships  please,  was  he  at  the 
trial  of  Mr.  Doekwra,  Mr.  James,  and  Mr. 
French?— Caa?.  Yes,  I  was. 

Att.  Gen.  Did  he  then  give  any  evidence 
of  those  words  of  Mr.  Dockwra*s,  after  when 
my  lord  Warwick,  my  lord  Mohun,  and  capt. 
Coote  were  gone  ?— C^v.  No,  I  did  not. 

Att.  Gen.  My  lord,  1  have  one  questwn  to 
ask  him  then  more,  how  he  came  not  to  awear 
this  matter  at  that  trial  ? 

Caw.  It  waa  out  of  my  mind  at  that  time, 
and  I  bad  like  to  have  forgot  it  now. 


■Vi 


967] 


11  WILLIAM  UL 


Tntd  efike  JSWW  of  Warmidt 


I 


Alt,  G^n.  My  lord,  wc  htt e  itone  witli  thii 
ivJtiMss :  J«  k  your  bHsfirpft'  pl*a*ure  tlmt  we 
go  OD  lo  ciiU  our  oilwr  h  Lt[kciu>cs  ? 

Xorrf<.  ilr^  Av. 

Jff.  0irw\  I'hen  oor  «eil  ivitnesw?*,  fny 
bnis^  will  be  Uia  cHoirmfr^  thai  carrittl  my 
lord  Mnhtm,  my  lord  of  War\rtttk,  an  J  c»[itaiii 
CcH^te  !  Wc  whali  iwj^m  uitU  Thomns  0rown«? 
und  Jnbii  fiilibfiiv;  one  of  them  tiarrierl  Mr. 
Coute,  ttii^atbct  my  \md  di  Warwick. 

[^*A<jma#  Browne  was  swoni,] 

X.  H*  3,  WhitqiieslMmd&  yuu  smk  Hii*  tiit- 
amt,  Mr.  Anara^y  P 

AHn  Gcv  THst  he  ^vmiltl  tirqualitl  your 
lorctftliipft^  tvhrttier  hfl  curri^Hl  Mr,  llicl*a»xj 
Cooti*,  the  pifraoti  Ihat  i%aii  nlairi,  ii|i<»ri  the  ^OtU 
<ie  aoih  aflMelw^f^fiom  ihe  Qr^yhoimtl  (ureru 
ifi  tli^  Htm^td,  iiDd  to  i*hM  [tla<s4?  lie  carrii^d 

L  B.  S,  Ym  lump  the  (ni«stion;  pray 
«ficiik  »o  bud  that  mj  lurds  fiwy  all  lietr  what 
jmi  my. 

Broittt^  ^y  Un4%t  I  ft  n*  liHw<*<«ti  ihe  houm 

of  nil c  tinil  IffoiTi  the  mtirninjf^  on  Sisncliiy  thi* 
dDtli  <if  dGtAber  imi,  with  niy  fdlow  attfl  our 
elinir,  at  tlic^  Duffler'n  Head  i;itf>ro  at  Ch&riti|f* 
<!nMii,  ftfkd  I  li^€ud  ^i]r»«  pe(»i¥ie  &(  Ijodeet'i^^  ^t 
illli*€n?ylKiuiiii  b  th«  8(r&Bd^  raiting  cnacli, 

c&ftfhW  in  ihe  slrffet^  n<>r  ihut  cmne  tftihetii ; 
%»li«n  Ibey  cotild  not  gef  ^a(!hp»,  then  they 
csfttkd  unt  fi*r  ehan:%;  and  we  eoantig  to  the 
door  with  our  chair,  there  wttrv  fb^w  ortier 
cbtirs  therf ,  und  six  penile ra^n  ttood  lit  lhf« 
fassftge;  am)  i\mn  tt  ^ras  ^id,  there  was  nnl 
chairs  ennngh,  and  th^re  waited  on^  more, 
and  Ibey  sti>od  dif^cjours^irt^  ;  and  th«  llr«t  rrtau 
€ntnv  into  w*y  chahv  who  was  capt.  Co^sie ; 
and  my  lord  of  Waru  tek  h^  got  into  another  : 
When  the  door  of  ih*  ebahHastbui  up,  we 
ttskt^d  ii'hilher  ^e  i^boukl  go;  t»iit  my  Inrd 
Bfobun  came  ajid  bid  ofien  tho  eh^tr  nsfain  ; 
and  ue  dkl  so,  and  Iir  nHnrnetJ  inio  the  hou^E", 
and  lh«»re  was  some  diseotirse  between  Ihwfi 
atandmg'  at  the  bnr  In  the  entry.  Mr,  Coote 
cume  out  a^aln  ^nd  trume  Inui  my  clmir,  and 
my  lord  Mohun  and  roy  lord  of  Warwick  went 
into  two  others  ;  Mr.  Conle  bid  nie  carry  him 
into  )  «eice«iter  Bclds,  and  to  make  all  tUe^bafPtf* 
1  could  5  my  lord  of  Warwick  and  my  hird 
Mohnn  being-  in  the  next  rhalfs,  asked  hm^ 
Whither  arc  you  a-j^iing,  and  railed  ont  twice, 
and  he  said,  l^o  L«>ii'L'Sier  fields  ;  i»roy  do  tiot, 
aays  my  lord  of  Warwick,  hnt  come  along 
With  us,  aiHl  let  it  nbne  liH  In-nmntjw ;  hut  he 
W  UK  go  tin  j  and  as  we  were  lurnia^  up  fc«L 
Martin's  Lane,  by  the  (Vt>it«  Reyu  tari?rii»  my 
lord  Mohiin,  and'nty  lord  Warwiek  called  out 
'tis  Us  to  stop,  and  Ibeir  cbasr*  cane  up  lo  tht; 
back  door  ot'  the  Cross  Keys  tavf  en,  atid  ibei-e 
u\\  tho  three  chairs  were  set  nn  a- breast  in  St. 
Martin'!»  l&n^  aod  wbiTe  ibey  were  talking  to* 
Ijetber,  thefe  came  by  three  cbavrs  of  tt»€  otber 
»ideof  the  way ;  anff^ir.  Cocile  bid  us  take  rip 
and  make  all  ibe  haste  we  con  Id  b«fyre  them 
into  Leicf9ter  tleMs,  §&  lakinf  vp  I  be  cbafr 


n|f«iD,  Mr.  Cante  bid  «  nafca  ii<rtt,  Aai  if  »a 
isoutii  fo  nil  fksur,  be  vivsn*.  4aiMi  liA^lt 
mmM  nm  bi^  sward  in  #|»«  «<  «r  l«iM^ 
Tbtn^  were  two  chaJra  ite^mfm  wm^mni  »f  M 
.Mubimi  and  my  turd  Warwick  Iblkfwad  la  (•• 
cbajnt  after  nie ;  artd  when  we  eaa^e  la  ibt 
i^finHE-r  i*f  Loic^ea1«r  M^^  at  Grven  laraai  tadb 
all  the  ibrt*!.'  cbnira  nerc  set  down  a^bniMl 
ag^ain,  and  Mr.  Cotite  put  bia band  tn  bi«  ^ackii, 
and  took  out  half  a  {fttifiMi  la  fiay,  »ad  aaid  H 
Iiim]  no  rilret ;  aikI  my  lanl  of  W'oywiek 
to  my  lorrt  Mabun,  wfott  lo«le  oitt  thtm 
liiig'<«  oMt  oiUiw  nfH*ket^  who  Kaid,  th^n  mMM 
my  lord  Warwiek,  raft.  Ciwut!,  and  bliiwi^; 
and  tUieii  tbey  wcr«  tpme  onl,  t  leak  li'y  fcai 
and  iHy  pip.  anil  ilEid  tm  pipe,  at^  laol  tk 
lanlhorn  and  lifftiteil  il«  ana  by  ibai  %imm  I  |al 
lighted  lay  !>^pe,  I  luir^rd  a  calbiig  mit,  Ckiir, 
cba4ri  a^^ifi,  iaw«fik  th*  npfH;r  t^wJ  «l  ibt 
anuanji ;  m  J  look  my  chair*  and  tli«>f«  wu  m# 
of  the  chaiiii  that  wasi  net  ^^.taet  andiawv 
eame  up  to  the  tiptx  r  en%\  of  i}it?  IMJa,  and  ik^ 
called  to  un  to  hnng  lire  nbait%  Ofvr  the  fiJk^ 
we  told  ihrai  «i^e  did  not  keow  baw  la  daHi^ 
1^  wi'  ftboidd  not  b«  i^e  w  gri  I 
«ga*n ;  at  laul  we  did  ^  met  Uia 
lUiidt  up  ainaa  la  tlie  place  where  we 
nofsi%  Itir  w«  could  ^^ce  n'dbi&if,  it  being' 
dark  nig^bl^  atkd  when  we  cante  up 
thi-m,  by  our  Unthom  tfiisra'  were  tw*  g^iffi^ 
iD^ii  ho(dii»^  \xf  Afr.>  t'«M>te  under  ibrie  um^ 
and  crjiag  out,  My  d«ar  Coaie^  M j  di« 
Oantef  ^ '-  ^ 

Ati.  Gm.  Pray,  who  were  those  two  p^ 
tlemen  ?'       - 

Bt^nt*  I  did  oat  know  ihetn,  one  wat  il 
refl  eloaibi,  and  the  r4ber  had  ;>tild  laec,  iii 
they  woo  hi  hare  hnd  me  bare  taken  Mr.  Owft 
into  my  rhnir;  but  seeLni^  him  bloody, aad  Ml 
able  to  help  himself  1  ^aid  i  would  not  ppdl 
itiy  chair,  and  so  ivouhl  not  tneddte  with  hiia; 
but  Ibey  Baid  tkj^  would  initke  tn^  a«y  ittfii- 
rBctioD  for  my  chair,  3n<l  de^^treit  me  ri»  laife 
him  in  \  bnt  he  ^&vg  himself  a  »|M-tikf  from 
I  hem,  and  we  found  be  sum  too  heavy  h^  ai  ii 
Ui\  aver  the  rails,  and  all  ne  conid  «1o  cmild  n<rt 
make  him  Mt  in  t be  ebnir,  but  the  chair  v»tt 
broken  with  cndeaToaring'  lo  plaoe  hini  tben^j 
and  tboy  saiiL  it  i«e  woidd  carry  him  to  aail^ 
g^n^n,  they  woidd  ^\t  lis  10t>A  «ei?ufiiy 
we  findlni^  it  impos»il»le,  the  waioh  was 
for,  but  n«boiJy  woidd  cofne  aear^  ibe  Ibey  said 
it  WHS  Aut  of  their  wnrd,  and  f.o  tboy  would  asi 
coniff  atiigb  toe;  iind  J  ^taid  abnut  half  att  ba«r 
with  my  chftjr  hn»kf'n,  aed  atterwaiils  1  uas 
laid  bohl  upon,  both  I  and  my  partner,  and  we 
were  ke(it  tilt  next  ni^bt  eleren  ii-eK»ck  ;  aatf 
that  is  all  the  trnti^fucuon  that  1  bare  bad  f«r 
my  ehak  ajid  erery  Ibitig. 

AU.Qen-  Pray,  my  lonl,  I  de&h^  be  may 
rectdlfct  himi:clf;  tur  we  do  apprehend  It  ii 
eery  material,  who  ii  fva^  that  desired  lo  take 
Mr^  C-onte  into  the  chair  ? 

Rr€iA7tf.  I  cannot  tell  wtio  they  were,  it  was 
so  ^€'ty  iMrk  I  coidd  only  see  their  eloatb*. 

Att\  Gen,    Did  you  ace  the  earl  of  Warwick 


Ji»  the  Murder  ^Richard  Coote^  esq* 


A.  D*  16S9. 


[970 


Brovni.  No,  8ir,  he  wa»  not  there  ;  one  of 
tbetAt  1  ^1^  yo^  ^^  officers  do^tti^  on,  red 
Eocd  wilfi  liiue,  ant)  ihe  otber  had  ^old  lace  ou  ; 
lllQfe  wa»  iiobo4iy  there  lb%t  hM  biiu  up  but 
lli«m  two. 

M.  i}f  Norm.    He  ««yi  be  saw  two  pei-aons 

M|»hitng-  up  Mr,  Cootc ;    il  would  be  very  well 

^bliavt!  thai  mjiiter  rery  well  seClIed»  who  those 

^wo  peisous  vrere  ;  1  ciesire  to  kuow  how  be  is 

sure  my  lord  of  Warwiak  was  doI  one  uf  ibeiii 

wo? 

I  Mroxne.    I  know  my  lord  of  Warwick  »ery* 

^1,  Hiid  I  am  sure  he  was  neither  of  the  ttvo, 

li.  <if  Lctds.    I  uould  know   wbat  li|^ht  lie 

*  ill  discern  it  so  \«eU  by,  that  lie  can  be  »ure 

r  hard  of'  Warwick  was  not  tttere ;  tor  heiaysi 

I  very  dnrk  ui^lili  and  v«*t  be  desoribei 

ticutur  |;>ersoos  that  beltf  j^Ir.  Coote  up, 

vne.    Yes,  my  lord,  I  am  sure  luy  lord 

fick  was  none  of  Ibem. 

td*.    How  conid  you  dislingniab  in 

jfbt,  tbe  colour?;  of  iieople's  cloal!>i  ? 

I   U  lib  the  caudle  tbat  1  had  tigbted 

<  He  could  not  kuow  any  of  the 
he  held  a   lanthoro   to  their 
i,  wr  knew  them  ?ery  well  bcfiire. 
",  S.    My  lord  Warwick^  will  your  lord- 
I  this  witness  any  questions  ? 
*  War.    My  lord,   I  desire  he  may  he 
(^Whether  1  did  not  hid  bim  stnp  at  St, 
y«*ldue  end,  and  do  all  tbat  I  could  to 
Mr«  Cootc  from  ^oing  any  further,  but 
ihoineP 

The  earl  of  Warwick,  and   my 

ohun,  as  they  turned  up  tbe  laue,  asked 

Liier  he  was  jjoing  ?   And  wheu 

it)  ter^ftelds,  they  desired  bim  to 

uiie  \n\  To-morrow ;  and  iny  lord  Mohun 

should  go  borne  with  hiin  ;    but  tbe 

Ind  us  g'o  uUt  and  said  he  woubl  not  go  to 

"!»  I*t>^»  ^^  ^bat  ibey  would  make  an  end 

h<i{  infykt  <;  still  tbey  cailed  to  him  agaio, 

<  us  jqpeaK  a  word  with  you  ; 

I  •!»  !  IS  rame  to  the  back-door  of  tbe 

-key«  tavern,  there  ibey  stood  all  of  a 

it^  and  they  both  of  tbe m  spoke  to  bim, 

hI  Moot)  a   pretty  while  there,  and   in  the 

peou  lime  three  cbairs  passed  hy  ou  the  other 

'dt  $    he  commanded  us  to  take  up,  and  carry 

I  away  to  Lejcesttn- fields  immediately,  and 

ke  the  other  chairs,  or  be  would  run  one 

I  into  tt>e  body, 

L,  IL  S.    Would  your  lordship  ask  him  any 

!  que«ttons? 
B.  of  War,  No,  my  lord. 
Ati,  Gen*    My  lord,  [  observe,  be  says  they 
*      isned  sonif    i»iue   together    while    tbey 
tipped  ill  s  's-Jane;    I  desire  that  be 

Day  he  ask<  itier  he  can  tell  what  tbat 

l^ourse  was  P 

hnmme.  I  could  not  well  bear,  they  whig* 
pcred  together,  but  I  could  hear  my  lord  Mo- 
Iian,  and  my  lord  of  Warwick,  de»i«?  ciipl. 
Coote  to  go  uotne,  atid  let  the  business  aloue 
liil  another  tune. 
Alt.  Qtn*    1  dtviMf  he  may  ejtplaiti  lutnself^ 


wbat  tbat  business  was  tbat  ibey  would  bare 
put  00  till  to  morrow. 

Br»wne.  I  know  not  what  it  was ;  I  beard 
of  no  angtsr  betwixt  them,  tttit  t)key  were  as 
good  fricodSi  ibr  any  '  <^  rrow  to  the  con* 

trary,  as  tfer  tbey  Itftr  life&,  ur  at 

efcr  I  see  any  men. 

L.  Jeffcrys.     He  says  there  w«re  two  we 
into  chiurs  at  tbe  iliKir  of  tbe  bousf ,  and  tfler«] 
wards  went  out  a^^oin,  and  w  etit  iuio  ibe  bou 
aud  there  %v&!» discourse  at  tbe  bar  ol  tbe  bou 
I  would  desire  to  kuow  what  that  was? 

Btottitc.  I  did  not  bear  tlie discourse  th 
wasi  in  tbe  hottfe,  1  was  at  tbe  door  oft 
bouse. 

Ali*  Gen.  thir  next  witness  is  Willi] 
Cripijes.    [Who  was  sworn.] 

L.  H.  $.  Wbat  do  you  ask  tfais  man,  1 
Attorney  ? 

Att.  Gen,    Pinay^  will  you  give  my 
bene  an  account  who  you  carried  to  LttUicatpwJ 
fields  tbe  29tb  or  30th  of  October,  and  wk 
happened  in  your  knowledge  at  that  tiute  f 

Crippei.  Captain  Coote  was  tbe  first  miA 
tbat  went  iuto  tlie  chair  w  ben  we  came  to  tlie 
Oreviionud  tavern ;  afterwards  he  came  oui^ 
ag^in,  and  when  we  took  htm  up  tht  aecon 
time,  be  was  the  first  man  that  set  out ;  aud  1 
bid  us  carry  him  to  Letoesler-fields ;  and  wheu 
we  came  lo  the  comer  of  St.  Maritn's-Iane,  wa 
turned  up  tbat  way  ;  and  my  lord<>f  Warwick, 
and  my  lord  Mohuii,  calknl  to  iis,  being  ift 
chairs  behind,  to  know  whither  we  were  goin^^ 
and  de$«ired  to  speak  with  capiaiu  Coote  i  and 
he  said  be  was  goitig  lo  Leicester-tieMs;  ant 
when  they  asked,  wbat  to  do  P  He  slid,  la 
end  the  business ;  tbey  deslre^l  bim  to  put  it  off 
llll  to-morrow  ;  anil  while  tbey  uere  discours- 
ing about  it  in  HU  Martm's-hue,  there  passed 
by  other  three  chairs,  which,  when  captain 
Coote  saw,  he  bid  us  take  up  aud  overtake 
Ibem,  and  go  faster,  or  he  would  run  one  of  ua 
into  the  bod)' :  so  we  weut  on,  aud  at  the  Jow«r 
end  of  Leicester- fields  we  set  bim  down  ;  and 
the  other  two  gentlemen »  my  lord  IVarwicft 
and  aiy  lord  Mobuu,  were  there  set  down,  and 
went  lovingly  together^  for  any  thing  that  I 
^w ,  up  the  pavement  of  the  square,  towards 
tbe  upper  end  ^  and  in  a  little  time  we  heard  a 
noise  uf  calling  for  chairs  towards  tbe  uoper 
end,  and  when  we  came  there  with  the  cnair» 
we  were  bid  to  b(l  over  the  chair  within  the 
rails ;  and  when  we  said  it  wa»  haitl  to  be  donf, 
thev  tnistsled  upon  it,  and  we  did  come  in  ; 
and  when  uc  came  there  we  saw  two  gentle- 
men holding  up  captain  Coote,  aud  would  huve 
had  us  taken  bim  into  the  chair  ;  w^  »aw  ittere 
was  a  great  deal  nf  blood,  but  I  never  beard 
bow  it  oime,  and  they  would  have  had  ns  car- 
ried him  to  a  French  surgeon *»,  and  proffered 
any  money. 

Att.  Gen.  My  lord,  1  desire  to  know,  who 
they  were  that  derived  him  to  be  carried  to  the 
surgeon  ? 

JL  U,  S,  Yoa  hear  tbe  question,  what  say 
you? 

Crimes.  IcaaiiotleU,aijlard$  one  of  them 
4 


971]  11  WILLIAM  IIL 

had  something  of  lace  upon  him,  hut  it  was  so 
dark  that  1  coo  Id  hardly  see  my  hand,  and 
therefore  I  cannot  tell  who  they  were ;  and 
when  there  was  an  objection  made,  that  the 
chain  would  be  spoiled,  they  said,  we  need  not 
qnestion  our  chair,  they  would  give  as  100/. 
seeanty  to  answer  any  damages,  if  we  would 
bat  carry  him ;  so  we  endeavoured  to  put  him 
into  the  chair,  but  could  not;  and  sox^e  called 
eot  to  the  watch,  to  have  liaid  some  help ;  but 
they  said  it  w&4  none  of  their  ward,  and  so  they 
would  not  come  to  us ;  so  the  gentlpmen  went 
away,  and  we  left  them,  and  went  and  called  a 
surffeon,  who,  when  he  came,  said,  he  was  a 
dead  man,  and  we  were  secured  till  the  next 
day. 

Att.  Gen,  Pray,  my  lord,  I  desire  he  may 
be  asked.  Were  tkere  not  other  chairs  in  that 
plsce  at  thai  time  ? 

Grippes.  There  was  one  in  the  Field  besides, 
and  no  more  that  I  could  see ;  tliey  all  went 
away  but  us  two. 

Ati.  Gen,  What  distance  of  lime  was  there 
befewaen  their  setting  down  in  Leicester- fields, 
and  their  calling  the  chairs  again? 

Crippet,  Not  a  quarter  of  an  hour. 

Jitt,  Gtn.  What  became  of  the  three  chairs 
that  pMsed  by  you  in  St  Martin's-lane  ? 

Crmet.  Tney  got  before  us ;  but  what  be- 
came or  them  afterwards  1  cannot  tell. 

Att,  Gen,  Did  they  come  from  the  same 
placci  the  tavern  in  the  Strand  that  you  were 
atf 

Crippet,  Yes,  1  believe  they  did,  my  lord  ; 
for  capt.  Coote  bid  us  follow  them,  and  thrcat- 
«ned  us  if  we  did  not  make  greater  haste. 

Att,  Gen,  Do  you  know  my  lord  of  War- 
wick? 

Grippes,  Yes,  he  had  whitish  cloaths  on  ; 
and  none  but  he  had  such  clothes  on  as  those 
were. 

L.  H.  S,  Will  your  lordship  ask  this  witness 
any  questions? 

E.  of  Waripick,  My  lord,  I  desire  he  may 
be  asked,  Whether  1  did  not  bid  him  stop  ?  and, 
whether  1  did  not  say,  thoy  should  not  go  tu 
quarrel  that  night  ? 

Grippes,  Yes  ;  both  he  and  my',lord  Moiiun 
would  not  ha\e  had  captain  Coote  gone  any 
where,  but  home  to  his  lo<lgings. 

Att.  Gen.  My  lord,  1  desii-e  to  know  of  him, 
directly  and  downright,  Whether  my  lord  of 
Warwick  was  nut  olic  of  them  that  held  him 
when  he  was  within  the  rails  in  the  fiehls  ? 

Grippes,  No,  be  was  not ;  he  was  neither 
of  them  ;  fur  the  one  of  them  was  too  hig  for 
him,  and  the  other  was  too  little  for  my  lord 
Mohiin 

Att.  Gen.  Now  we  call  the  chairman  that 
carried  the  earl  oi'  >Vurwick  into  I^iccster- 
fields,  James  Crattle.     (He  was  sworn.) 

Att.  Gtn.  Will  ^ou  tell  my  lords  wltut  yon 
know  of  any  poison  that  }0U  carried  the  29ih 
or  30th  of  October  list,  tVom  the  Greyhound 
tavern  in  the  feitrand,  and  who  it  was,  and  whi- 
tlier  you  carried  him  ? 

Cratlie,   I  was  going  along  Charing- cross, 


Trial  fffiht  Earl  of  Warmck^ 


[97f 


between  one  and  two  in  tlie  moroiiifpy  the  SOth 
of  October  last,  and  1  heard  a  chair  called  far 
at  Locket's  at  the  l>og  tavern ;  and  thither  I 
and  my  partner  went,  and  we  took  up  thef»> 
tieman,  and  carried  him  to  Leicester-fieys. 

Att,  Gen.    Who  was  that  sentleman? 

Grattle.   It  was  my  lord  of  Warwick. 

Att.  Gen,  What  time  of  night  do  yon  My 
it  was? 

Grattle,  It  was  about  one  or  two  io  tk 
morning. 

Att,  Gen,  What  day  of  the  week  was  it? 

Grattle.  It  was  Saturday  night  and  Seadif 
morning. 

Att.  Gen,   Whither  did  you  carry  himf 

Grattle,  Into  Oreen-street»  towaidb^theltiv 
end  of  Leicester-square. 

Att,  Gen.  What  chairt  were  Ibm  w» 
there? 

Grattle,  There  wa»  one  that  oflMi  Ol* 
was  in,  and  another  that  my  lord  aUbm  Hi 
in,  and  we  went  away  all  together. 

Ait,  Gen.  Were  there  no  other  chaiitf 

Grattle,  I  did  not  know  who  went  ia  lb 
other  chairs,  but  there  were  three  other  cUn 
that  passed  by  us  at  St.  Hartin'a-laae,  aad  w 
followed  after  them  to  Leicester- fidds. 

Att.  Gen,  Pray  what  became  of  ywiAff 
you  had  set  down  your  fare  ? 

Grattle.  Weweredischayj^edandpaUilbi 
otiier  three  went  up  towards  my  lent  of  lid- 
cester's ;  but  we  were  coning  away,  and  iaa 
Uttle  time  we  heard  the  noise  of  callug  chain! 
chairs!  again,  and  there  were  two  OMirstf 
come  up,  Thomas  Browne's  and  our*s;  bt 
lord  of  Warwick  called  our  chair,  and  we  Imb 
him  into  it,  and  he  bitl  us  carry  him  to  the 
Bagnio  in  Long-acre;  and  when  we  am 
there  we  kuockol  at  the  door,  and  his  kui 
was  bloody,  and  he  asked  us  if  wehadasj 
handkerchief  to  bind  up  his  hand. 

Att,  Gen.  Was  there  any  other  chairs  atthe 
door  of  the  Bagnio,  at  the  same  time  when  yoi 
came  there  ? 

Crattle,  Yes,  there  was  anotlier  chair  tbm 
at  the  door  at  the  same  time,  and  we  set  dovi 
both  together. 

Att.  Gen.   Pray  whence  came  that  chair? 

Grattit.   Inde^,  I  do  not  know. 

Att,  Gen,  Who  were  the  chairmen  tliat  car- 
ried that  chair  ? 

Crattle.  Indeed,  my  lord  Mohunandnr 
lord  Warwick  were  the  only  persons  that  1 
knew  of  all  the  company. 

Att,  Gen,  Whatsortof  gentleman  was ibt 
other,  that  went  out  of  the  other  chair  into  tlie 
house. 

Crattle.  lie  was  a  pretty  tall  man  ;  whci 
he  was  in  we  went  away  ;  I  only  can  say,  1 
saw  my  lord  of  Warwick  go  into  the  liouae. 

Att,  Gen.  Did  >ou  take  any  notice  of  sif 
sword  that  my  lord  of  Warwick  had  inh^ 
hand  at  that  time  ? 

Grattle.  No;  I  cannot  say  I  did  take  say 
notice  of  any  sword,  only  that  there  was  • 
handkerchief  desired. 

Att.  Gen.    Pray,  did  you  hear  no  omm  4. 


for  tfie  Murder  ofRkhard  Coote^  esq. 


Al  in  the  fidd,  til]  yan  beard  chairs  called  for 

VrmttU,    No;   I  camiot  say  1  beard  any 
mv^  iti  itie  field. 
Ate.  Oen,  Did  you  apprf-hend  there  v^s  any 

^KrattU.  No,  t  kneMr  nolhtng'  at  all  of  it ; 
^m  upon  the  calling'  of  chairs  again^  aod  my 
tenl  Warwick  coining  along,  we  look  him  in, 
mm!  lie  bid  lis  ^  to  the  Bagnio,  and  tliithf  r  wa 

Iff.  Gtn,   My  lord,  we  have  done  with  this 

H,  S.   My  lord  Warwick,  will  you  ask 
^witness  uny  questions  ? 

]  of  Warukk.  No,  my  lord. 
tit.  Gen,  Then^  my  lord,  our  next  iritness 
ohn  Gib^n  ^  be  was  anotber  of  those  chair- 
I  that  earned  my  krd  of  Warwick  to  the 
tiio  alien*  ards*  Pray,  will  you  give  ray 
b  an  account  what  you  know ;  who  you 
^'  1  the  39th  and  OOtli  of  October  last,  and 
ryon  carried  them  ?  (Who  was  sworo.) 
.  My  lord,  1  was  at  Charing-CroflS 
_  _  partner  the  39tb  of  October  last,  at 
,  and  about  one  or  two  o'clock  in  the  nioro- 
ilig  chairs  were  called  for  tw  the  Grey-hotrnd- 
lin  the  Strand ;  and  when  we  came  there, 
1  of  Warwick,  my  lord  Mohnn,  and  Mr. 
!  got  into  the  tliree  first  chairs,  and  i?e  got 
rlord  Warwick  into  our  oliair,  and  when  we 
him  there,  we  were  bid  to  go  to^vards 
r- fields,  as  I  apprehended,  for  tbither 
prs  that  went  first  wass  to  go  ;  atid  in- 
'  lord  Mohun  and  my  lord  Warwick  did 
op  at  the  end  of  St /Martin 's^lane,  and 
Mr.  Coote  whither  he  was  goin^f  ?  and 
ad|  he  waa  going  lo  make  an  end  of  the 
and  they  said  it  should  not  be  to- 
but  presently  after  three  other  chairs 
Dg  along,  and  passing  before  us^  the  chair 
t  captain  Coote  was  in  was  bid  lo  go  on,  and 
i  ordered  to  foBour,  which  was  done  ac* 
cordingly  ;  just  at  the  turning  of  Green-stn^'t 
we  set  down  our  three  chairs  ;  and,  I  think,  just 
about  the  turning  of  Green -street  end  we  staid 
there  came  another  chair  again;  and  ne 
I  the  other  chair,  upaa  my  lord  Warwick's 
;  into  us,  went  away  from  thence,  and 
him  to  the  Hagnio  in  Long  Acre. 
iti,  Gen^   You  talk  of  another  chair  ;  pray, 

^efaair  was  that  r  ' 

itfttm.  There  was  another  chair  that  was 
t  tbere  juit  before  us  ;  but  indeed  I  do  not 
whose  it  was,  nor  indeed  can  I  say  who 
vas  that  was  in  it ;  but  this  1  am  sure,  we 
went  to  tiie  same  place ;  and  ewe  met  and  lit 
jaitattbe  same  time ;  and  my  lord  of  Warwick 
adteil  for  a  handkerchief  to  bind  up  his  hand, 
%bicli  was  bloody  ;  which  was  given  him. 

Ait,  Gen.    Did  von  not  know  who  was  in 
Ibeotbtrr  chair  at  that  time  ? 

Cihiofi,  No,  indeed,  1  did  not  know,  1  will 
oamae  you. 

Att,  Gen.   Pray  did  yoii  not  know  whei-e 
that  otbtr  chair  took  the  other  geollenian  up  ? 
Gibton,  X0|  iudeedi  sir,  I  did  not. 


A.  D,  1699.  [ST^? 

Pray»  what  time  of  the  trigbc . 


Alt,  Gen, 
was  it  ? 

Gihton*    It  wna  between  m^  and  two  in  the 

morning,  J^ 

Jtt.  Gen,  You  talk  of  ws  Tiaud  being  hurt, 
and  that  he  called  for  a  handkerchief:  Did  yoii 
see  his  hand  bleed  ;  and  pray,  in  what  nature^ 
was  Ills  wound  ? 

Giiiwn,  My  lord«  all  I  can  say  is,  there  wa& 
blood,  and  he  wanted  a  handkerchief,  and  had 
one,  for  he  said  hm  hand  was  hurt;  but  in 
truth  1  did  not  take  any  notice  what  that  hurt 
was,  I  did  not  see  it;  if  my  partner  took  notice 
of  it,  so;  but  else  1  can  say  nothing  to  it ;  but 
the  haiulkerchief  was  afterwards  asked  agaio^ 
and  could  not  be  had. 

L,  JL  S.  Would  my  lord  of  Warwick  asic 
this  witness  any  questions  ? 

Earl  ef  XVarn^idi,  No,  my  lord. 

Alt.  Gen.  Then,  my  lord,  our  next  witnesses 
are  Robert  Applcgate  and  Peter  Catro,  who  will 
give  your  lordship  an  account  who  they  carried 
at  thTs  time. 

L,  H.  S,    Whom  do  you  call  first  T 

Ait,  Gen.  liobert  Applegate.  (Who  was 
swomj 

£.  H.  S.  What  (juestions  do  you  ask  bim, 
Mr,  Attorney  P 

Alt,  G €11,    I  desire  that  he  would  acquaint , 
your  lordship,  what  he  knows  of  what  paased 
at  the  Grey  hound- tavern   in  the   Strand ^  tbftJ 
<29th  of  October  bst,  wliom  he  carried,  and 
whither  he  carried  them  ? 

Ap^icgaU,  My  lord,  about  one  or  two  in  the 
morningt  a  Hunday,  the  %9\h  or  30th  of  Octo- 
ber last,  1  was  going  home  with  my  partner 
and  my  chair,  and   1  heard  iheui  calling  at  tha  , 
GrtfyhoHndta¥emin  the  8trand,  Mr.  Locket^s, 
for  coaches  and  chairs ;  there  was  no  coach  to 
be  bad  that  could  be  heard  of;  btit  coming  up-  \ 
to  the  door,  they  said  they  wanted  six  chairs  | 
and  when  we  were  there  at  the  door,  there  eame  . 
eut  first  ray  lord  Warwick^  capt  Coote,  and  ray 
lord  Mohun  ;  capt.  Cootegot  into  the  tii-st  chair,  , 
and  what  directions  he  gave  them  I  caimot  tell ; 
my  lord  of  Warwick  got  into  the  next ;  and  int(»  ^ 
ours,  which   was  the  third,  my   lord  Mohuji 
came  in,  and  bid  us  take  him  up  and  carry  bim 
towards  Westminster,  and  he  ordere*!  us  to  fol- 
low tbe  choirs  before  :   just  as  they  turned  at 
St,  Martin's -lane,  my  lord  Mohun  called  out  ^ 
and  desired  to  stop,  and  at  the  Cross  Keys  j 
tavern  back-door  all  the  three  chairs  came  up 
tt^eiher  ;    and  then  my  lord  of  Warwick  ana 
capt.  Coote  and  my  lord  Mohun  talked  toge- 
tlier  ;  nnd  f  could  hear  my  lord  Mobun  and] 
my  lord  of  Warwick  desire'capt,  Coote  to  de-  ^ 
fer  it,  and  put  it  by  till  another  day  ;  what  it 
was,  indeed  1  connoi  tell :  but  while  they  were  ^ 
talking'  there,  three  chairs  more  came   up  on.  J 
the  other  side  of  the  way  ;    and  capt>  Coote  i 
would  needs  go  forward,  and  my  lord  Mohun  ^ 
and  my  lord  of  Warwick  went  with  him  ;  and  i 
so  they  were  all  set  down  at  the  lower  end  of  J 
i^icester-fkelds,  at  Green-sti'eet  end.     BHt  1 
truth  I  did  not  see  wliere  the  other  three  «;liain 
set  down  those  thrv  carried. 


975] 


11  WILLIAM  IIL 


Trial  nfthe  Earl  of  Wartokk^ 


[976 


Att,  Gen,  What  Uien  happened  afterwardd, 
can  yoa  tell  ? 

Apptegate.  I  cannot  tell  whether  I  had 
lightiMi  my  pi|fe,  or  jiiKt  ii^litiui^  it,  when  I 
beard  chairs  called  a^ain ;  upon  wWwh  wo  riio 
up  with  our  chair  towania  the  upp.T  r»d  ot'tlie 
fielda,  and  there  I  did  si^'  oiy  lord  oi  Warwick 
within  the  rails,  who  bid  us  out  over  our  chair 
into  the  fielila ;  but  we  told  him,  if  we  did,  we 
could  not  ^t  it  over  aifain  ;  and  so  we  went 
with  our  chttir  tci  the  corner  of  the  fields ;  and 
when  we  caiue  there,  there  came  out  captain 
French,  who  bid  us  open  our  chair,  and  let  him 
in,  for  he  diil  believe  he  was  a  dead  man ;  and 
upon  tliat  we  did  take  him  in,  and  he  bid  us  carry 
him  with  all  the  speed  we  could  to  the  Baifniu 
in  Loiigf-Acre,  and  my  lord  of  Warwick  got 
into^another  chair  behind  ;  so  we  went  to  Ijong- 
Acre ;  and  when  we  came  to  the  door  of  the 
Baffnio,  and  captain  Fi-ench  came  out  of  tlie 
ohair,  be  was  so  weak  that  he  fell  down 
upon  hia  knees ;  and  when  he  came  out,  I 
asked  who  should  pay  me,  and  desired  to  be 
discharged  ;  and  the  earl  of  Warwick  said, 
Damn  ye,  call  for  your  money  to-morrow  ;  so 
they  botli  went  in  at  the  Uagnio  door  tos^cther. 

Ait.  Gen,  Pray,  who  oilled  for  the  cliair 
first,  captain  French,  or  my  lord  of  Warwick, 
m the  fields? 

Applegale.  I  cannot  tell ;  but  when  I  bronjf»'ht 
up  my  coair,  I  first  saw  my  lord  of  Warwick, 
and  he  would  have  had  melifled  the  cliair  over 
the  rails,  and  I  told  him  we  could  not  ^*t  it 
over  aj^ain,  and  so  went  up  to  the  upper  end  of 
the  fields. 

Alt.  Ocn.  If'vou  first  spoke  with  inv  lanl  of 
Wanvick,  why  did  you  imt  carry  my  lord  v\ 
Warwick  i' 

AjipUufitc.  Indocd  I  c:iiiii(»t  Ji-ll ;  lust  I  sup- 
pose it  was  because  he  did  not  ruiiti'  hO  soon 
out  of  tlie  Held;)  as  captain  rrciich.  or  did  im: 
eoino  till' same  way. 

Alt.  (Jen.  I*ray,  iU*  yoii  reineuibrr  any  tbiiit,' 
thui  happent'ljubt at  their  caiTyini>;capt.FrrMcli 
away ;' 

Ajiplc^atf.  Before  ho  went  iriUi  the  chair,  lie 
stopped,  and  woiihl  have  pulled  oll'his  iMoutlis, 
but  we  would  not  let  hiiu. 

All.  Urn.  Did  yo;i  see  any  swonl  capt. 
French  had  i* 

Applt'gate.  I  did  see  no  sword  that  1  cai»  say 
directly  was  a  sword  ;  hut  capt.  Fieneli  h.i'd 
somethin<>;  in  his  hand,  but  nhat  it  was  1  can- 
not ttll. 

At  I.  Cffn.  What  was  il  that  he  said  to  you. 
when  he  tirst  uent  into  the  chair  ? 

AppUar.tc.  He  d»»sired  to  be  carried  to  the 
Ha<rnio  :  tor  lie  said  he  b<.'lieved  he  was  a  dead 
man. 

Att.  Gfn.  Fray  frieinl,  recollect  yourself,  if 
you  hoard  hitu  suy  any  thin;;  at  all  when  he 
first  went  into  the  chair  at  the  (rreyhoumi 
tavern  i' 

Appltnutc.  \  did  not  hear  him  mention  aiiv 
thim;  at  all. 

Att.  Ge/i.  Pray  what  did  you  hear  my  lord 
•»t'  Waiwick  wvut  thattimeV 


AppUgate,  Truly,  I  cannot  lay  I  beard  hia 
mention  any  thing  at  all  neither ;  but  I  did 
hear  niy  lord  Molmn  sav,  when  be  could  aot 
prevail,  in  St.  Martin's- lane,  with  caplaia 
Coote  to  go  home,  that  if  they  did  go  he  would 
i^o  and  see  it. 

Att,  Gin.  if  they  did  go  ; '  who  did  he  neu 
by  they  ? 

Appiegate.  My  lord  Warwick  and  captiii 
Coote  that  were  in  the  other  chairs ;  there  vn 
nobody  else  to  speak  to. 

Att.  Gen.  Was  there  any  talk  of  fighting  or 
quarrclhng  P 

Applegale.  No,  indeed,  I  do  not  koowof  aoy 
difference  there  was  between  tiiew. 

X.  H.  S.  My  lord  Warwick,  viili  your  kwrf- 
ship  ask  this  witness  any  questions  ? 

Earl  of  Waraick.  Mv  lord,  I  desire  be  on; 
be  asked,  Whether  I  did  not  eudeaveor  to  p« 
off  the  going  into  lieicester-fielda,  and  to  hue 
all  things  k*t  alone  till  to-morrow. 

Appiegate.  My  lord,  I  cannot  say  any  thi^ 
of  that ;  but  I  md  hear  my  lord  Mohm  h| 
heartily  of  captain  Coote  to  go  home,  9ai  U 
the  businesa  alone  till  another  time ;  and  iaM 
1  thiuk,  I  never  heard  a  man  h^  more  k» 
tily  for  an  alma  at  a  door,  than  he  dkl,  that  Ik^ 
might  not  go  into  the  ftelds  then  ;  but  I  eif- 
not  Sky  that  I  heard  any  thing  that  my  loAld 
Warwick  said  about  it. 

L.  H.  S.  Will  your  lordship  ask  him  Hf 
otiier  qtipstions? 

I'larl  of  JVanvivk.  Xo,  my  lord. 

L.  U.  S,  Did  my  lor«l  of  V^'arwick  cxproi 
any  inclination  to  1^0  on  '.' 

Ajtplt'.atc.  liKleed  I  know  noi  any  th'.'ij:«» 
way  or  other. 

L.Jilfrei/>.  I\ly  lord^',  if  I  am  not  iiii-s-akfi; 
he  did  say,  that  he  did  not  see  any  thinj:  ol'  lu- 
cliiwUion  in  my  lord  of  W  arwirk  to  «;o  on  :  l-at 
1  desire,  if  \our  lordhliip.i  |dens4>.  that  he  mav 
he  a>ked  this  question,  Whether  he  did  s« 
any  thin;r  in  my  Iwd  of  \\  arwick  that  shcwiil 
any  ineiinalion  to  the  etmtiary  ? 

Appii'fsatc.  All  that  1  can" say  is,  1  bfiH 
my  lord  3Iohun  say.  Fray  let's* jjo  home  3b»! 
lie  all  toj;r^.tlM.T.  antj  let  us  putofi*  this  bu»inr\« 
to  another  time :  hut  indeed  I  do  not  reineuiMn 
that  ni\  lord  of  W  ,11  w ick  .saul  one  wunl  i-t 
j^oiiiijf  any  wn\  backward  or  forward. 

Alt.  Gen.  Pray,  who  did  my  lord  ^IoLp:. 
^peak  these  wordb  to  ? 

Ajple^nfc.  >ly  bird  Mohun  spoke  10  ni\ 
lonl  of  V\  (*rwick  and  captain  Cooie,  both. 

/..  U.S.  3Jr.  Atlornty,  who  is  your  litv 
nuness  ? 

A tt.  G en .   Peter  Catro.     [ \V ho  w as  sworn  ; 

/..  7/.  .V.  What  do  you  ask  him.  Sir? 

An.  GiiK  lie  was  tiie  other  chair-man  tliaf 
c.irricd  my  lonl  Mohun  ;  Prayv  will  you  girc 
my  lords  an  account  what  you  know  paMCii  r>t 
theiiinc  ulirnyou  carried 'my  lord  Mobuu  15 
LeicesiiT-lioids? 

Cuir?.  1  and  my  fellow  carried  my  lui'i 
i^Iohuii  froni  the  Greyhound-tarc'ru  in  ibr 
Strand,  till  we  came  to 'the  turnin;^  up  of  St. 
Maitin's-Iane,  where  my  lord  Mohun  di«it>i 


fTT] 


Jar  the  Murder  ofRiehard  Cooie,  esq. 


A.  D.  1699. 


[97S 


thmt  our  three  chiira  might  stop,  and  that  they 
miffht  go  down  to  Westminster,  and  that  my 
lora  Warwick  and  rapt.  Coote  would  go  thither, 
and  be  would  wait  upon  them  to  their  lodging ; 
apt.  Coote  made  answer  again  something,  but 
what  I  cannot  tell,  and  his  chair  went  en ;  and 
my  lord  Mohun  did  say,  if  they  went  forward, 
he  would  ibilow  them,  and  see  what  would 
come  of  it. 

Ati.'Gtn.  What  did  you  see  happen  while 
yoa  were  in  St.  Martin*s-lane  ? 

Cairo.  There  were  other  three  chairs  that 
went  bv  while  we  stood  at  the  Cross- Keys 
teTcm-door,  and  captain  Coote's  chair  going 
lisrward,  we  followed  and  went  to  the  end  of 
lieicester- fields,  at  Green-street  end ;  and  there 
all  three  went  out  of  their  chairs  and  walked 
op  the  paved  stones  of  the  square ;  my  lord  of 
Warwick  asked  my  lord  Mohun  if  he  nad  any 
sEWer,  and  three  shillings  were  given  for  the 
three  chairs,  and  they  went  from  us,  and  bid 
«■  go  about  oar  business ;  and  in  a  little  while 
aHer  we  heard  a  noise  from  the  upper  end  of 
the  fields,  calling  chairs,  again. 

Att,  Gen,  Did  you  observe  any  thing  of 
qparrel  or  difference  between  them,  or  any 
mshiDg  of  swords? 

*  Cairo.  Indeed  I  heard  nothing  of  any  quar- 
rel^ for  we  were  at  the  lower  end  of  the  square, 
St  Green -street  end  ;  and  when  we  heard  them 
call  for  chairs  again,  we  went  up  towards  the 
npper  end  of  the  fields ;  and  When,  we  came 
there,  we  beard  one  bid  us  bring  up  the  chair 
«ver  the  rails. 

Mi'.  Gfn.  Who  was  that  P 
'^Gstro.  Indeed,  my  lord,  I  cannot  tell,  for  I 
waa  behind  the  chair,  and  could  not  see  who  it 
was ;  but  we  saying  that  we  could  not  get  it 
4fiTer  ■gain  if  we  did,  we  went  up  to  the  upper 
end  of  the  fields,  and  there  was  capt.  French, 
I  tbink  it  was,  for  I  did  not  perfectly  see  him, 
being  at  the  hind- part  of  tlie  chair ;  and  we 
went  on  to  the  bagnio  in  Long- Acre ;  and  I  did 
nee  my  lord  Warwick  come  out  of  his  chair 
■t  the  bagnb  door,  for  there  they  were  set 


Att.  Gen,  Yon  say  yon  saw  my  lord  of 
Warwick  at  the  bagnio  dour ;  did  you  see  any 
aword  las  my  lord  of  Warwick  had,  or  capt. 
French? 

Cairo.  No,  1  did  not  see  any  sword  at  all  of 
cither  of  them. 

Att.  Gen.  What  do  you  know  of  capt. 
French  his  declaring  he  was  wounded  ? 

Cairo.  I  think  it  was  either  when  he  went 
into  the  chair,  or  in  Newport-street  end,  he 
called  out  to  have  the  chair  opened  ;  for,  says 
he,  I  think  1  am  a  dead  man,  and  would  hare 
pnlled  off  his  cloaths ;  and  when  we  were  at 
the  bagnio  door,  we  tarried  a  pretty  while  till 
tbey.  got  them  up  to  let  them  m  ;  and  asking 
if  we  should  wait,  my  lord  of  Warwick  bid  us 
CNNoe  to  that  house  to-mnrmw  morning  lor  oiir 
money  ;  and  they  went  in  together  into  the 
house,  but  I  never  heard  any  one  word  oi' 
quarrel  or  dissatiidaction  passed  between  them. 

Ati.  Gem.  Th»  witness  speaks  to  the  same 
VOL.  XIII. 


purpose  as  the  other  did ;    and  I  think  we  need 
not  trouble  your  lordship  any  further  as  to  that. 

I.  H,  S.  Would  my  lord  of  Warwick  ask 
him  any  questions  ? 

Earl  of  Warwick.  No,  my  lord. 

Att,  Gen.  Then  our  next  witness  is  one 
John  Palmer.    (Who  was  sworn.) 

Att,  Gen.  Pray,  will  you  give  my  lords  an 
account,  who  it  was  you  did  carry  in  your  chair 
the  29th  or  30tli  of  October  last,  and  whiihir 
you  carried  him  ? 

Palmer.  About  one  o^clock  in  the  morning, 
the  30tb  of  October,  we  were  called  to  the 
Greyhound  Tavern  in  the  Strand,  to  Mr. 
Locaet's,  and  there  we  took  up  a  gentleman, 
one  captain  French. 

Ait.  Gen.  Whither  did  you  carry  him  ? 

Palmer.  He  bid  us  go  to  Tieicostcr- fields. 

Att.  Gen.  What  did  he  particularly  say  to 
you  ? 

Palmer,  There  were  three  other  chairs  thit 
were  just  gone  before  from  the  same  door,  and 
he  bid  us  get  before  all  those  chairs ;  and  just  as 
we  come  to  St.  Martin's- lane  end,  we  saw  there 
were  three  other  chairs  set  down  before  us  over 
against  the  Cross  Keys  tavern  back  tliior. 

Att.  Gen.  Well,  what  did  you  do  then  ? 

Palmer.  So  we  went  before,  according  as  we 
were  bid,  unto  Leicester- fields,  and  at  the 
upper  end  of  the  ficMs,  by  1  Leicester-house,  we 
opened  the  door,  and  captain  French  came  out, 
and  he  gave  us  a  shilling,  and  we  went  away 
about  our  business. 

Att.  Gen.  Were  there  any  more  chairs  there 
that  went  with  you  ? 

Palmer.  There  were  two  more  chairs  that 
set  down  two  other  gentlemen  by  Leicester- 
house,  and  we  came  away  when  we  were  paid ; 
that  is  all  I  know. 

Att.  Gen.  Did  you  see  any  other  chairs  he- 
sides  your  three  wnen  you  came  down  a<j^uin, 
or  any  other  gentlemen  ? 

Palmer.  We  did  see  some  gentlemen  walk- 
ing up  about  the  middle  of  the  square  when  we 
came  down,  but  we  made  what  has'ic  we  could 
away  home,  it  being  late  on  Sunday  morning. 

Att.  Gen.  Did  you  observe  any  fighting 
when  you  were  in  the  field  ? 

Palmer.  I  did  not  hear  or  discern  any  fight- 
ing while  I  was  there. 

Att.  Gen.  Did  you  hearof  any  quarrel,  or 
any  thing  between  any  of  them,  and  whom, 
before  P 

Palmer.  No,  I  did  not  know  of  any  quarrel, 
or  hear  of  any  thing  at  all,  I  do  assure  you. 

Alt.  Gen.  All  that  he  says  then,  my  lord, 
is,  That  he  carried  capt.  French  to  the  upper 
end  of  Leicester- fields,  and  there  he  Icfl  hmi. 

L.  H.  S.  Would  my  lord  Warwick  ask  this 
witness  any  questions  Y 

E.  of  War,  I  desire  he  may  be  asked,  whe- 
ther he  knows  who  were  in  the  chairs  that 
were  in  St.  Martin's- lane,  when  they  passed 
byi* 

You  hear  the  question,  What  say 


L.  H.  S. 
ou  to  it  ? 
Palmer. 
3R 


There  were  three  chairs,  but  who 


11 


in. 


een  ^ou  ttU  f 

ApphguU^  I  caiiiiot  letl  whether  f  liiid 
lighted  n\y  pqi^^  or  juf^t  li^liiin^  itj  when  I 
beinJ  chairs  c^kd  fl^flSln  ;  upon  ivhtcb  ^¥f  riin 
up  with  our  elixir  tovranU  the  tipfKJ-  c^ttd  4kf'  the 
JfielcNi  aiMl  Iherii  1  ditl  si*r  my  brd  ui  VVarvvkk 
.within  the  rails^  whd  bid  us  put  ovf^  out-  chair 
lAto  tHr  Ht'hte ;  but  we  laid  hitQ,  if  we  did,  we 
iMtulfi  not  ^rt  it  over  a^^ain  ;  aad  911  «¥€  went 
With  OMr  ^.'hijir  U*  ihc  roriur  of  tl(e  fields;  arvd 
BMM.Ml-«i#taia 

dwr.MtWhim 
im4kmkmMm%  and 

rittMttM  dMUmiM  iB,«lld  ht  lU  OUirry 
withallthtMaedwe  «MlNI*t»tli#  BHrnia 
MiMfHimb  ywf  jgy^-lw*-  rf  Wwirfcfc;  g^t 

■■t;  and  wiiMPHnRie  tn  tfie^t>Qrr  of  the 
Bagnio,  and  captain  Fi^ncb  came  t>ut  of  the 

I  c^niri  he  «ra«  m  w«wk  Ihst  be  fdE  dtimi 
ai|ioa  his  Icnees  ;  &iid  wben  he  cflme  out,  I 
Ajik(^  who  should  jmy  rae,  iintt  deftin^d  lo  lie 
discharged  ;  and  Ibe  ^mx\  of  W^arwick  siid^ 
Da«iA  ye,  <?aU  fiir^o^ur  inmtf^r  lo- morrow  ;   s*j 

'  l\i^y  both  went  in  at  the  Bat^nio  door  tDj^eibcr 
Mt^  Gen.    Pray,  who  called  f*>F  ^\&  cliair 
fif^t,  captain  French,  or  my  lord  of  Warwick, 
lnttieliddsP 

Apptiigate.  1  eannot  tell  j  but  when  I  hrn^i^ht 
11(1  my  chaiTi  I  tirst  saw  ray  lord  of  Warwick, 
^ntJikl'Outd  ha ¥0  had  me  lifted  ihe  chair  orer 
HiMll^jftnd  I  told  hirQ  we  cuuiii  nui  get  it 
•vcr  Miir,  ukA  w  wwUvp  to  tb«  vppcr  end  of 

^11.  Gm.  If  yoa  lint  iptlfie  with  my  kird  of 
¥thtrwkk,  whj  £d  jnmi  not  eury  my  lord  of 
W«rwiekf 

ApplegMie,  In^ietilcauooiUllli;  hvi  I  uaji- 
poie  It  WM  bgcavie  he  dIM  not  come  so  soon 
o«t«f  IheiMdi  M  captain  Fraiob,  or  M  Dot 
cone  the  tame  way. 

Att.Qen,  Pimy,  <U  yoorremenber  any  thttiif 
Chat  happened  juft  at  their  cartyiagrcapclPVencb 
away?  ^ 

ApplegaU.  Before  he  went  into  the  chair,  he 
■lopped,,  and  wouU  hate  pulled  off  hiadoaths, 
hut  we  woold  not  let  him. 

Au.  Gen.  Did  you  aee  any  sword  eapt. 
Freneh  had  t 

Afphgaip.  I  dkiaee  no  sword  that  I  can  sav 
direetly  was  a  sword ;  but  eapt  French  bail 
aomothing  ia  his  hanc^  hut  what  it  waa  1  can- 


not  tell 

Att.Oen,  What  was  it  that  he 
w4Mi  he  first  went  into  the  diair  ^ 


to  yon, 


Afplegate.  He  dsaired  to  be  earned  to  tbe 
Bagnfo; 


for  he  said  he  believed  he  was  a  deed 


Att.  6m.  Pray  ftiend,  reeolleet  yoursrif,  if 
jtoa  heard  him  say  wr  Mng  at  all  when  be 
Irat  went  bto  the  cudr  at  the  Orsyheoisd 
tavemf 

Appitg€t€.  I  did  Dol  hear  him  VMBtioD  rdv 
tUafatall. 

•    M.  Gen.  Ptay  wImI dM  twllMMrwIord 
of  Warwkk  my  M  ^  —^    "^ 


Ceato»>fatnwii,  tlisf  if  tCyaj^f 

^o  iUitJ  see  it. 

by  theyf  ,  ^i*  -  ^-^,  k-t 

AppUgate.  My  Ifpfd  W»rwT<!k  mi 
Coiite  that  were  m  the  other  ehainf  t 
tiobody  rtsf  to  ^neak  to. 

Ait.  Gen.  Was  iliere  any  talk  of4| 
quarrelling  ? 

Applegait,  No»  mdeed,  I  do  uol  kip 
difference  tb^re  was  l»etwf«n  tbcnt. 

L.  H  6.  My  hird  Wurwuk,  will  yi 
sbif»  a«k  lb  is  wilnesis  any  qu««tii)i 

Earl  of  U^amick,  M\  iord,  li 
be  aiJ^od,  Whether  1  did  not  ^mk 
ofi  die  goittf  into  Leicester^  Helda,  aod 
ail  Ihmgt  let  atoae  uJl  tO'nii>rrow. 

Appkga4e.  My  Iord»  I  caonut  «t»v  at 
of  that ;  but  I  did  heor  my  loni  M^b 
heailily  of  captain  Coote  to  go  honai% 
tlie  business  ^boe  till  another  time  ;  aiM 
I  think,  I  nerer  heand  a  nian  htg  mor 
tily  for  an  alms  M  a  door,  tbafi  bc^  did,  || 
mifrht  not  ^0  into  the  SmH*  tben  -,  lui 
not  say  thot  I  htr&rd  any  thing-  that  m] 
Warwick  said  about  it.  *  . 

X.  H.S.  Will  your  lordly p  a^i 
other  f|tiMtioo«?  T 

Karl  ijf  Warm*(Je*  NO|  my  lonU 

L.  M.S.  Did  my  brd  of  Warwkit 
auy  Inelinatioa  to  go  ou  ? 

JppiegaU.  liidL'cdIkQawnet'aaytii 
way  or  other. 

t.Jrffreyi.  Hy  lords,  if  I  wmw^m 
be  did  aay,  lliftt  be  did  not  see  aoy  tkriif 
cU nation  in  my  lord  of  Warwick  lo  gi»  i 
I  desire f  if  ^our  lordehips  |>l«ase^  ibal 
be  rutked  tliis  question,  WbeUier  be 
any  tldo^  in  my  t«rd  ol'  Warwiek  tiat 
any  i  neh  n  ati  00  to  the  «n trary  f 

Appiegatf.  All  that  1  earn  viy  ii,  .J 
n^y  lord  Afolmti  tav,  Rtay  Id^  go  ha 
Ito  aH  togi^her,  »nd  Irt  ue  pot  off  lUal 
to  ajiother  time  ;  balimk^d  I  da  net  ra 
that  my  lord  of  Warwick  s^id  one  1 
going  any  way  backward  or  forward. 

Ati.  Gem,  Pray,  who  did  my  lord 
gpeok  these  words  to  ? 

AppUeate.  My  lord  Maiiaii  ipoha 
lord  of  Warwick  a&d  captaia  Gooia,  bi 

L,  H.  B.  Mr.  Attorney,  who  is  ym 
witness  f  r . 

il/i.G^.  Peter  Cairo*    [Wbawwi 

L,  H.  S.  What  do  ymi  ask  bhOpfiM 

Ati.  Geft,  He  vr*\^  \he  oihi^r  cinip4 
carried  my  brd  Mohiio ;  Proyn-wMdl 
my  lortJs  an  accouat  w  lit  jiiu  Jb^im 
the  time  whets  you  catrM  iOf§m 
Leioester^fialdif  ■  /^^ 

Culri}.    I  atkd  my  feUmrir 
Molmu    fron^  the  Qreyhoimd 
Straiidt  tiU  we  csma  to  the-^ 
Maftm's*kiie,  wbeven^  Is 


] 


Jar  the  Murder  of  Richard  Coote,  esq. 


A.  D.  1699. 


[97S 


onr  three  chairs  might  stop,  and  that  they 
fat  go  down  to  Westminster,  and  that  my 
Warwick  and  rapt.Coote  would  go  thither, 
he  would  wait  upon  them  to  their  lodging ; 
L  Coote  made  answer  again  something,  but 
It  I  cannot  tell,  and  his  chair  went  on ;  and 
lord  Mohun  did  say,  if  they  went  forward, 
would  ibllow  them,  and  see  what  would 
letfiL 

itt.  Gen.  ^Vhat  did  you  see  happen  while 
1  were  in  St.  Martin's- lane  ? 
latro.  There  were  other  three  chairs  that 
It  bv  while  we  stood  at  the  Cross- Keys 
en-door,  and  captain  Coote's  chair  going 
rard,  we  followed  and  went  to  the  end  of 
eester-fields,  at  Green-street  end ;  and  there 
thr«e  went  out  of  their  chairs  and  walked 
the  paved  stones  of  the  square ;  my  lord  of 
irwick  asked  my  lord  Mohun  if  he  had  any 
er,  and  three  shillings  were  given  for  tlie 
ee  chairs,  and  they  went  from  us,  and  bid 
go  about  our  business ;  and  in  a  little  while 
er  we  heard  a  noise  from  the  upper  end  of 
!  fields,  calling  chairs,  again. 
itL  Gen.  Did  you  observe  any  thing  of 
irrd  or  difference  between  them,  or  any 
dung  of  swords? 

']dtro.  Indeed  I  heard  nothing  of  any  quar- 
,  for  we  were  at  the  lower  end  of  the  square, 
Sreen- street  end  ;  and  when  we  heard  them 
I  far  chairs  again,  we  went  up  towards  the 
per  end  of  the  fields ;  and  when,  we  came 
ft,  we  heard  one  bid  us  bring  up  the  chair 
ir  Uie  rails. 

4it.  Gen.  Who  was  that  P 
^iro.  Indeed,  my  lord,  I  cannot  tell,  for  I 
I  behind  the  chair,  and  could  not  see  who  it 
I ;  but  we  saying  that  we  could  not  get  it 
V  again  if  we  did,  we  went  np  to  thp  upper 

I  of  the  fields,  and  there  was  capt.  French, 
Mc  it  was,  for  I  did  not  perfectly  see  him, 
■g  at  the  hind-[>art  of  tlie  chair  ;  and  we 
N  00  to  the  bagnio  in  Long- Acre ;  and  I  did 
!  ray  lord  Warwick  come  out  of  his  chair 
tebignrodoor,  for  there  they  were  set 
vn. 

itt.  Gen.   You  say  yon  saw  my  lord  of 

irwiek  at  the  bagnio  door ;  did  you  see  any 

Nd  las  my  lord  of  Warwick  had,  or  capt. 

racfa? 

'ktro.  No,  I  did  not  see  any  sword  at  all  of 

bcrofthem. 

itt.  Gen.     What  do  you  know  of  capt. 

mck  his  declaring  he  was  wounded  ? 

CWtro.  I  think  it  was  either  when  he  went 

»  the  chair,  or  in  New  port- street  end,  he 

kd  out  to  have  the  chair  opeiieil ;  for,  says 

I I  think  I  am  a  dead  man,  and  would  have 
kd  off  his  doalhs  *,  and  when  we  were  at 
I  kigmo  door,  we  tarried  a  pretty  while  till 
y  got  them  up  to  let  them  in  ;  and  askintf 
nesboald  wait,  my  lord  of  Warwick  bid  us 
W  to  that  house  to- morrow  mornins^  ibr  ofir 
Hy  ;  and  they  went  in  together  into  tlie 
■•i  but  I  never  heard  any  une  word  of 
ffral  or  disniisfaction  passed  bctw<>cti  them. 
lit.  Gem.  This  witness  speaks  to  the  same 
VOL.  XIIl. 


purpose  as  the  other  did ;    and  I  think  we  need 
not  trouble  your  lordship  an  v  further  as  to  that. 

L.  H.  S.  Would  my  lord  of  Warwick  ask 
him  any  questions  ? 

Earl  of  Waruick.  No,  my  lord. 

Att,  Gen.  Then  our  next  witness  is  one 
John  I'ahner.    (Who  was  sworn.) 

Att.  Gen.  Pray,  will  you  give  my  lords  an 
account,  who  it  wa.*;  you  did  carry  in  your  chair 
the  29th  or  30th  of  October  last,  and  whither 
you  carried  him  ? 

Palmer.  About  one  o^clock  in  the  morning, 
the  30tb  of  October,  we  were  called  to  the 
Greyhound  Tavern  in  the  Strand,  to  Mr. 
LocKet's,  and  there  we  took  up  a  gentleman, 
one  captain  French. 

Att.  Gen.  Whither  did  you  carry  him  ? 

Palmer.  He  bid  us  go  to  lieJcostcr- fields. 

Att.  Gen.  What  did  he  particularly  say  to 
you  ? 

Palmer.  There  were  three  other  chairs  thit 
were  just  gone  before  from  the  same  door,  and 
he  bid  us  get  before  all  those  chairs ;  and  just  as 
we  come  to  St.  Martin's- lane  end,  wc  saw  there 
were  three  other  chairs  set  down  before  us  over 
against  the  Cross  Keys  tavern  back  diior. 
^Att.  Gen.  Well,  what  did  you  do  then  ? 

Palmer.  So  we  went  before,  according  as  we 
were  bid,  unto  Leicestor-tiehls,  and  at  the 
upper  end  of  the  ficMs,  hy  licicoster-house,  wc 
opened  the  door,  and  captain  French  came  out, 
and  he  gave  us  a  shilling,  and  we  went  away 
about  our  business. 

Att,  Gen.  Were  there  any  more  chairs  there 
that  went  with  you  ? 

Palmer.  There  were  two  more  chairs  that 
set  down  two  other  gentlemen  by  Leicester- 
house,  and  we  came  away  when  we  were  paid ; 
that  is  all  I  know. 

Att.  Gen.  Did  you  see  any  other  chairs  f)C- 
sides  your  three  wlien  you  came  down  ajj^ain, 
or  any  other  tfentlcmen  ? 

Palmer.  We  did  sec  some  gentlemen  walk- 
ing up  about  the  middle  of  the  square  when  we 
came  down,  but  we  made  what  hnsie  wc  could 
away  home,  it  being  late  on  Sunday  morning. 

Alt.  Gen.  Did  yon  observe  any  fighting 
when  you  were  in  the  field  ? 

Palmer.  I  did  nut  hear  or  disceni  any  fight- 
ing while  I  was  there. 

Att.  Gen.  Did  you  hear  of  any  quarrel,  or 
any  thing  between  any  of  thcin,  and  whom, 
beibre  ? 

Palmer.  No,  I  did  not  know  of  any  quarrel, 
or  hear  of  any  thing  at  all,  I  do  assure  you. 

Att.  Gen.  All  that  he  says  then,  iny  l<»rd, 
is,  That  he  carried  capt.  French  to  the  upper 
end  of  Leicester- fields,  and  there  he  WW  hjni. 

L.  H.  S.  Would  my  lord  War>*  ick  ask  this 
witness  any  questions  Y 

E.  of  ]Var.  I  desire  he  may  be  a!>ked,  whe- 
ther he  knows  who  were  in  the  chairs  that 
were  in  St.  Martin*s-lane,  ^^hen  they  passed 
by? 

L.  II.  S.  You  hear  the  question,  What  say 
ou  to  it  ? 

Pahner.  There  were  l!»re€  chairs^  hut  w\.\^ 
3R 


r 


n  WILLIAM  ILL 


they  weicihat  trere  in  ihena  I  caoiiot  tell  di 
recily  i  but  as  tht  y  said^  Hfheo  ihey  set  tbeen 
iJowTJ  nt  Leke^l^r-fitlilt,  ihey    were  my  lord 
Warwick^  my  Uvd  >Iobuii,  Jind  Mr,  Cool^. 

An.  Gfn*  Who  wftn  ii  thti  said  «>  ? 

p0/mer.  ^me  oHh^  oiler  cbairinen  wUeii  I 
caftit^  l)y. 

I,  ^.  S.  Mr.  Atioracy,  who  b  your  ncit 

Jr^  ^fn.  We  ihnlt  caII  »ext  the  cUniriiic?!! 

thfti  cnnird  Mr.  Dockwni  and  Mr  Jani^  : 
Cttll  Juckum  the  t^^rmiti.  0^^^^°  was  sworn.) 

/ili.  Gat.  Thi»  man  t-arried  capt,  James  : 
Pray  iic«j«avtjt  my  lotd*^  wbo  yori  did  take  up 
atl  £rt>ckelV  iu  tbe  Srmnd  oi\  tbt  £9tU  cm<  30ib 
of  October  kiat,  and  wJiUberyou  carried  him  P 

Jackt&nA  curried  capt.  Jamaatmrn  hock^Vs 
in  the  BCr&Eid  inlo  T^ie«^or- fields. 

Ait.  Gm,  Uqw  mmy  cbain  vrere  you  Ib&t 
went  ? 

JueJum,  There  vr^re  two  mope  that  wcfil 
irben  I  i^ctit  j  there  were  n%  m  ail  that  took 
vj^  ^tfxitleyim  tben%  and  we  were  the  last  but 
oj*e. 

Alt.  Gen.  Can  you  iell  who  were  in  tlie 
Other  thre«  iir^t  chiitf$  ? 

Jackiffn,  I  dn  ijot  know  who  were  in  Ihc 
other  chairt)  but  t  lieard  my  ton\  illobun  at  the 
tlonr  (vf  the  houie  ilei^if^,  thai  the  bustnees^ 
tuiirht  be  deferred  till  to  morrow  morning  i 
thefts  w^re  mx  i^nilemeti  al  the  door,  bat  truly 
who  tb^v  all  wtre  I  r^aunottelL 

Aii^  Gtn,  Who  did  my  lord  Mobun  i^peak 

Jackmn.  Indeed  I  do  not  know  who  he  spote 
it  to. 

AH.  Gen*  Wh^t  aoiwer  was  made  to  my 
lord  Mohun  ? 

Jacksim*  Truly,  there  was  no  answer  that 
I  heard,  but  w€  all  went  an  ay  aooD  after  that, 
and  we  were  bid  to  go  to  Leicester- tie^^  to  fol- 
low the  other  chairs  ;  aud  wheo  we  came  to 
the  other  end  of  Leicest«?r- fields^,  we  set  down 
captain  James  by  the  Standard  tavern,  and  he 
^ve  iLi  a  ahitlbi^T  and  bid  ua  ifo  our  ways ; 
vo  we  weui  our  way,  and  I  iicard  notliing  at- 
terwards,  but  came  away  down  tjie  fields,  and 
there  were  three  chairs  that  atood  al  I  ho  bottom 
of  the  fields  ;  aud  we  aaked  them,  what  iliey 
■tayeil  tli^t^  for  P  And  they  said,  to  fill  a  ^tipe 
9t  tobacco;  A  Oil  presently  after,  we  heard  call 
chairs  again ;  but  it  was  IfUe,  and  it  was  Sunday 
morning,  and  my  partner  said  let  us  s^o  away 
home ;  and  we  dia  so,  we  went  directly  home. 

Att.  Gen,  Did  you  carry  nobody  back  ? 

Jackson,  No,  we  carried  nobody  back. 
'  Att.  Gen,  My  lord,  wc  hare  done  with  this 
witness  ;   our  next  witness  is  one  Richard  Ed- 
wards, and  he  was  one  of  the  chairmen  that 
carried  31  r.  Dockwi*a.     (He  was  sworn.) 

_Att.  Gen,  Pray  will  you  acquaint  my  lords, 
Whether  you  carried  any  body  from  Locket*s 
the  29th  of  October,  and  who  it  was,  and  whi- 
ther you  carried  him  ? 

.  Edwards.  I  do  not  kuow  who  I  carried,  but 
they  were  calling  coaches  at  the  Greyhound 
c^rerii  ia  the  S(ra&d|  aud  no  ooachM  coimn^> 


Triid  qfthc  Eod  of  H^arwmk^ 


IKO 


thoy  called  for  chaim,  mad  m  our  ejnitiw 
brought  u{». 

An.  Gen.  When  you  cmta^  Uitrr,  mh^M 
you  a««  there  f 

Edu^ards,  Indeed  1  did  pM  knowmylwirf 
War  wick »  nor  my  lord  Mobttn,  laar  mf  d 

AtLGm.  Well,  what  dciyoti  kmm}  \M 
my  lonU  wh»l  hajjpeued. 

^Bdu^Arck.  When  we  were  thet«,  lh«r»  ««» 
two  iato  two  chairs  ;  mmd  nj  lord  Mobm  ai^ 
or  another  cr«iitl«n»iii,  1  Oiiui*!  liQ  ii1litfc,lte 
th<>  chn  irs  mhotild  not  fpo  Qwmjr,  th«t  tlic]r  «nU 
kill  any  iit;iu  that  should  go  away  ;  aod  ikt^ 
wt^iH  out  of  the  ch&ii^,  »tid  weut  jjito  m 
house  anatn. 

Att*  Gen,  And  wbvkt  happ«ii«d  allef  1% 
went  into  th«  hong«  again  ? 

Edi^ard^*  After  tliey  went  out  of  the  dm 
into  the  bouse  ag-ain,  aa  I  waAlcdd,  my  lend  if 
Warwick,  my  lord  MobnUf  ai^l  Mr,  Carti, 
wtjjt  into  tiiree  chairs,  and  wvnt  away  itm 
the  door ;  and  then^  ivere  three  cltasri  «f  m 
that  wi'ut  last. 

Att,  Gen,  Whither  did  you  go  with  jmr 
chair  f 

Edxarttt.  We  went  to  the  Biandaid  tai«n 
at  tlie  end  of  Leieesler^fidds,  and  wb«si  w% 
came  to  the  iaT«m  door,  we  aakisd  htm  if  «• 
slioutd  knock  at  the  door ;  he  said  no ;  ^la 
fare  ua  a  ahilling,  and  bid  us  go  about  im 
huainfsif  and  *o  we  did,  tor  we  wcel  ilif?er  awtf 
to  Charing -CroiB* 

Ait,  Gen,  Pny  can  you  tell  wbo  were  m 
the  other  chairs? 

Edmards,  Truly  I  cannot  tell  any  man  tbit 
was  in  our  three  chains,  for  I  was  the  bin^^ 
chair man^  and  did  n^t  know  any  of  them, 

Ati,  Gen,  My  lord,  I  desine  ti>  know  wM 
he  means  by  hind-chairmati  ^ 

Edwardt,  My  lord,  oiirs  was  the  Easl«iv 
that  went  to  Leicester-fields^  and  I  was  bdbad 
the  chajr^  and  nerer  could  see  any  of  tbcflii  Jt 
being  so  very  dark  after  they  took  the  ttoi^ 
till  we  came  to  Charing 'Cross,  al  St.  ^laniaV 
lane;  and  then  I  could  not  see  who  llie  par» 
titular  persona  were  tliat  were  iti  the  chair?; 
nor  indeed  t  whoae  the  chairs  were  that  camri 
them. 

Ait^Gen,  What  hour  was  it  T 

Edwurds,  U  was  rery  late,  between  mt  aarf 
two  in  the  morning ;  ii  was  past  oiie  before  ve. 
were  called  out. 

Att,  Gen,  You  say  yon  went  to  the  of^ 
end  of  Leicester- fields  with  two  other  cbaifs; 
pray  did  you  see  any  other  chairs  afterwaitk, 
an<f  where? 

Edwards,  We  ^w  three  chairs  al  the  kmtr 
end  of  the  square,  as  we  cance  down  by  Grcea- 
8treet  end,  and  we  asked  theui,  what  (hay 
stayed  there  for ;  and  they  said,  to  light  a  pipe 
of  tobacco. 

Att.  Gen.  Pray,  who  had  been  carried  ■ 
those  chairs,  can  yoo  tell  ? 

K<iwardi,  1  did  not  see  then  set  down  ssy 
body,  aud  i  cannot  tell  who  they  carried;  vi 
'    RmofithatweoMiiii,I4Mlnili» 


as  tiBr  the  psrsofi  ( 


S81] 


^  the  Murder  ^Richard  Coote,  e$q. 


A.D.  1699k 


[JW 


much  «•  see  him  to  know  bim,  nor  know  who 
he  was  ;  bat  we  went  away  as  soon  as  erer  we 
were  paid. 

Att,  Gtn,  1  have  one  question  more  to  ask 
you ;  you  sky,  that  my  lord  of  Warwick  at 
the  ta?ern  door  bid  you  stay,  and  that  none 
should  go  away,  and  swore  he  would  run  any 
man  through  that  should  go  away  ? 

Edwards,  ft  was  my  Ion]  Mohun  ;  and  then 
two  that  had  gone  into  the  chairs,  went  into  the 
house  a{::ain. 

Att,  Gen.  Did  not  you  say  that  there  was 
some  talk  of  going  to  Westminster  ? 

Edwards,  My  lord  Mohun  did  talk  of  going 
to  Westminster,  when  they  went  into  the  chairs 
the  second  time ;  and  I  think  I  beanl  Mr. 
Coote  say,  he  would  make  an  eud  of  it  then, 
And  he  would  kill  any  man  that  would  not  go 
lorwards  to  Leicester -Oelds. 

X.  H.  S.  My  lord  Warwick,  will  you  ask 
this  witness  any  more  questions  ? 

Earl  of  Warwick,    No,  my  lord. 

L.  H.  &  Mr.  Attorney,  ha?e  you  any  more 
«?idence  to  call? 

Ati,  Gen,  My  lord,  the  next  piece  of  evi- 
dence that  we  should  apply  ousel ves  to,  will  be 
to  what  hapnened  at  the  dagnio  in  Louff-acre, 
aftrrmy  lord  Warwick  and  capt.  French  came 
there:  and  the  witness  that  we  shall  call  is 
PkNufret,  and  he  is  a  servant  at  the  Bagnio  in 
Long-acre,  and  he  will  acquaint  your  kirdships 
wIm^  name  thither  the  30th  of  October  last,  and 
what  happened  there. 

X.  H.  S.  What  is  his  name? 

Att.  Gen,    Henry  Pomfret. 

X.  H,  S.    Is  he  sworn  ? 

Att,  Gen.    Ym,  my  k>rd. 

L.  H.  8.  What  is  it  that  yon  examine  hhn 
about  P  What  queations  do  you  ask  him,  Mr. 
Attorney? 

Att,  Gen,  Who  came  to  his  master's  hoii|M, 
and  at  what  time  they  came  ? 

Famfret,  My  lord,  on  Sunday  the  30th  of 
October  last,  between  two  and  three  in  the 
noming,  there  came  to  my  master's  door  the 
corl  of  Warwick,  and  knocked  at  the  door, 
and  there  was  capt.  French  with  him  ;  and 
.vhen  thev  were  let  in,  mv  lord  of  Warwick 
UAd  me  that  capt.  French  was  wounded,  and 
ho  himself  hod  a  woniid,  and  he  desired  that 
ny  master  might  be  called  up  for  to  dress  the 
wounds;  especially,  because  capt.  French 
was  very  much  wounded  ;  which  accordingly 
was  dme  in  about  a  quarter  of  an  hour  aner 
they  were  brought  in. 

Ait.  Gen,  Uid  he  desire  to  be  concealed 
when  ho  was  come  in  ? 

.  L.  H.  S.  Of  whom  do  yon  spoak,  Mr. 
Attmiey? 

Att.  Gen,    My  lord  of  Warwick. 

Fomfret.  He. did  desire,  that  if  any  body 
•iked  ibr  him,  it  should  be  said  he  was  not 
tkeia. 

Att.  Oen.  Pray  in  what  condition  did  my 
lord  of  Warwick  seem  to  be  in  at  that  time  ? 

Fomfret.    Ho  seamed  to  be  very  much  con- 
fal  Ifait  time,  and  bis  fight  hand,  in 


which  he  had  his  sword,  and  which  was  drawn, 
was  very  much  bloody. 

Att,  Uen,  Was  thesword  bloody  tbat  he  had 
in  his  hand  ? 

Pomfret,  The  blade  was  bloody  ;  but  whe- 
ther it  was  all  over  bloody,  I  cannot  tell ;  there 
was  besides  some  blood  upon  the  shell ;  it  was 
very  near  all  over  bloody,  as  1  remember. 

Att,  Gen,  Pray,  friend,  consider  what  you 
swore  at  the  Coroner's  Inquest  about  the  blood 
upon  the  sword. 

Pontfret.  Indeed  1  cannot  say  it  was 
bk>ody  all  alonff  the  blade ;  bnt  there  was 
blood  upon  the  shell,  and  there  was  blood  upon 
the  inside ;  it  was  so,  to  the  best  of  my  re- 
membrance. 

Att,  Gen,  Whatcondition  Was  Mr.  French^ 
sword  in? 

Pomfret,  He  had  a  drawn  sword  in  his  hand, 
but  I  did  not  perceiro  it  had  any  blood  upon  if: 
it  was  a  large  blade. 

Att,  Gen,  How  do  you  know  what  sort  of 
sword  Mr.  French's  was,  and  in  what  conditioa 
it  was? 

Pomfret.  He  desired  me  to  take  notice  of 
it  next  mominjg,  and  I  did  so  ;  and  there  was 
no  blood  upon  it. 

Att.  Gen,  How  came  yon  to  be  desired  to 
take  notice  of  what  passed  there  about  thie 
owords? 

Pofrfrtt,  My  k>rd,  there  wis  three  of  them 
the  next  day,  and  one,  it  was  said,  was  Mr. 
Coote's,  and  another  of  them  was  my  lord  of 
Warwick's,  whksh  I  do  believe  was  bloody  from 
the  point  upwards,  very  near ;  but  I  cannot 
directly  say  but  that  was  afVerwards. 

Att,  Gen.  Who  brought  in  that  sword  that 
you  «ay  vras  Mr.  Coote's  ? 

Pemfret,  To  the  best  of  my  remembrance, 
capt.  Dockwra  brought  it  in  ;  it  was  almost 
half  an  hour  after  my  lord  Warwick  and  capt. 
French  came  into  the  house,  when'  they  came 
thither. 

Att,  Gen,  They,  who  do  you  mean? 

Pomfret,  Captain  James  and  he. 

Att,  Gen,  Were  they  let  in  presently? 

Pomfret,  No,  My  lord  of  Warwick  had  de- 
sired that  they  might  be  private  there;  but 
when  they  knocked  at  the  door,  nty  lord  of 
Warwick  desired  to  know  who  they  were;  and 
when  it  was  understood  tbat  they  were  Mr. 
James  and  Mr.  Dockwra,  they  were  let  in  by 
my  lord's  order. 

Att,  Gen.  Pray,  which  of  all  the  four 
broc^t  in  any  sworti  in  a  scabbard  ? 

Pomfret,  It  was  captau  Dockwra. 

Att,  Gen.  Pray,  did  they  appear  to  be  all-of 
a  party  ? 

Pomfret,  They  were  glad  to  see  one  another ; 
and  they  Ulked  a  pretty  while  together ;  bat 
indeed  I  cannot  say  I  heard  what  tliey  talked. 

Att.  Gen,  Pray,  do  you  ^member  my  lord 
of  Warwick's  sword,  and  what  there  was 
upon  it? 

Pomfret,  It  was  a  steel  sword,  water-ffiit, 
and  as  near  as  1  can  remember,  there  was  blood 
upon  it  for  the  most  part  from  the  ^a^  ^^vkA^. 


11  WILLIAM  HL 


TrM  (ifiht  Earl  of  Wat&m^^ 


J/L  Ctn.  And  wtiat  did  appe*r  upon  Mr, 
Ffeflth**  PI  word  ? 

PtmJraL  1'ber«  wa*  wal*r  aad  dirtj  but  there 
WiSQO  bJrvod  al  nU, 

An.Gm.  Hot*  biig  did  tii(*y  staj'  I  here  T 

PmnfHi*  Thry  all  etm I inywl  itMiai  half  *ii 
Imwr  J 'and  then  nent  a  ways  "ll  ^"t  Mi"-  French, 
who  9iaid  ihcre. 

Ait*  Gen,  VVhiil  thi'ti  k'cain*'  orihc  oihers? 

J'crm/rrr.  Wr.  Jauie*,  IVlf.  TV^kwra,  aiul  my 
lord  ol^  VVani  ick  wrrti  awn  v  ;  aud  iriy  lord  of 
Watwick  di*sh'cd  parlicubrry,  that  w<i  wwM 
all  t^kc  care  a!"  31r.  iVenth,  fdr  Ue  wai  hiit 
pjirlicijiftr  *Hend  ■  end  Mr,  Krc-ndi  contiuuetl 
there  titl  Sunday  aboiil  one  of  the  dock. 

Ati.  Cm.  was  ibere  any  discourse  ml  that 
tim^  abfiut  Mr,  C&v%e  ? 

I*0mfret^  Not  that  1  heard  of,  one  word, 

^;i.  Om«  Was  tb^re  aay  noti<^  tAkea  of 
Any  <|u arret  ttiiit  liappeaed  Leiween  any  body^ 

l^miifrcL  N0|  indeed,  1  did  not  bear  them  tike 
iiolio'.  of  any  oimrrel  at  all  bclwe«fi  any  l>o4y. 

An,  Gen.  Voa  BBj  Mr.  Frpnch,  when  he 
cnnie  into  yoor  bouse,  was  wounded,  and  there 
ws.^  c&re  niLTticularly  taken  uf  bim  because  be 
wan  wounded, 

PomfrtL  Yea ;  my  lord  of  Warwick  desired 
to  lake  care  of  him, 

Alt.  Otn.  Then  pray^  was  there  no  diBCOune 
how  he  came  to  be  wounded  f 

Pmfni,  Indeed  I  do  not  know  how  he 
came  to  he  wounded  ;  nor  did  1  bear  uoe  word 
of  dlseoarse  about  it ;  indeed  1  cannot  say  any 
thing  who  woundctl  him. 

Aft.  (Icfk.  Fray  will  you  recoUecl  yourself, 
and  X^W  ray  Jord;^  wb^t  sort  of  handle  had  my 
lord  <*f  Warwick^R  sword  wheu  yon  saw  it, 

Fmfrti.  It  had  a  Btcd  banilfe. 

AiL  Gen.  Tray,  cau  you  tell  whether  the 
ibell  waft  o|ken  or  close  ? 

P^fnfr€i.  I  cannot  tdl  justly  [  I  siw  it,  and 
that  wn^  all* 

Att.  Gen,  If  1  apprehend  youj  you  lay  my 
lord  had  a  wound  in  his  hmid. 

Fnmfrct^  Yia,  my  lord,  be  had  io» 

Ail.  Gen.  Pray,  in  what  band  tvas  it  that 
he  U'^s  wotinded  P 

Pomfrti,  To  tbo  best  of  my  rememhrancei 
it  UAS  in  his  right  bond, 

Ati,  Gen,  I'niy,  did  there  appear  much 
blood  there? 

PttrnfieL  Yes,  my  lord,  indrprl  there  did, 
■  HcrJ.  llVf^^f,  Yon  talk  of  IVIr,  James  and 
Mr.  Dock  wra^s  a  words ;  pr»y  in  what  condi- 
tion were  they  ? 

Pwfijrei,  Mr.  I>oekwra's  sword  was  by  his 
side,  and  not  drawn. 

8eij.  Wright.  ^Vhat  did  you  obserre  of  cap- 
tain Jamtfii'ii  award  ? 

Fmiifret.  His  sword  was  naked,  and  he  had 
lost  bis  scabbard  ;  hut  how  that  came  I  cannot 
lell ;  and  there  was  dirt  on  one  side  of  tlie 
liword  ;  and  he  said  be  had  left  hla  scabbard 
behind  bim. 

Ait.  Gefi.  Was  there  any  blood  upon  bia 
iword  f 


Pon^'iTft*  No,  there  wms  do  lil^od  tbat  1 41 
see  utMMi  It, 

Ah.  Gin,  Pray  did  yoti  see  any  UMdnjna 
BIr«  E>ockwra'»  nword  f 

Pomfrei.  ^io,  indeed,  f  did  not  wtm  Mr. 
Doekwra*!  sif  ord,  tt  was  io  the  aiabbard  bj  lat 
aide. 

B.  of  Lfi£d§,  My  lonki  there  has  bee^wtiei 
here  taken  of  seFeral  swords  tliat  this  wilMB 
iaw  ;  ani}  be  takea  so  far  EiAlice  of  my  htid 
Warwiak'>i  sword,  thai  he  leljs  yuu  w  bit  Ml 
of  hilt  it  had,  and  bow  it  was  hiooiiy  fr«aii  < 
point  to  the  hilt ;  I  desire  lie  woukf  ^m  fit 
oJl  ae<k>tint  of  ihe  le^ngth  and  brcaiilh  «f  iht 
other  mt'u'h  swor*U,  Mr.  French »  Mr  Jvm^ 
and  Air.  Dnckwra's. 

X.  H.  S,  You  said  jufit  oo*r»  that  yon  tsek 
notice  of  my  lord  of  Warwick^a  aword,  ttuutt 
was  bloody  from  the  point  to  the  hikf  vitt 
«onof«word  was  it? 

Pomfrei,  It  was  a  pretty  bmail  xwoid. 

L.  Hi>.  Did  you  lake  notice  of  f!>e  «lkr 
«wordS|What  breadth  or  lenigih  tbey  wvrtiti? 

Pafnjfft.  No,  my  lord,  I  did  not, 

AtL  Gen.  WhUh  was  ihut  sword  that  wm 
difiy*  hM  you  aay  ? 

Pofttfrtt.  That  was  captaiu  Frmch**. 

Att*  Gtn,  tVaa  that  a  broad  aw  ord  or  not? 

Pomjrtl.  N0|  it  waa  not* 

Att.  Gin.  Pray,  was  it  oret-  BiigfhtdraiS 
momiflft  that  you  itaw  the  sword»f 

Fontjret,  It  was  in  the  [DorDii||f  ihMtlhM 
a^eloell. 

Ait.  Gen.  What  time  did  my  tont  of  War* 
wick,  and  Mr.  James,  and  Mr.  Dockwrt  p 
away  ? 

Pamfrtt.  My  lord  of  ^'arwick  and  tber 
were  gone  aevijral  hours  before  Mr.  Frendi; 
and  to  the  best  of  my  remeoahrancr.  Ml 
James  broke  his  sword  upon  the  floor  a^  bt 
came  in, 

Att.  Gen,  Pray^  what  swords  were  then 
10  alJ  that  you  saw  there? 

Pom  fret.  There  was  capl,  French's,  cait 
Jameses,  my  lord  of  Warwick^a,  and  one  M$* 
CooleV,  as  Mr.  French  said  wb^  it  wv 
brought  in, 

L.  H.  S.  Have  yon  done  witii  this  witna^ 
Mr.  Attorney  ? 

Ait,  Gen.  Ycf,  my  lord,  we  have. 

X.  H,  S.  My  brtf  Warwick*  will  yon  aik 
him  any  quoitiona  f 

E.  of  Warwick.  No,  my  lord. 

X.  H.S,  Then»  Mr.  Attorney^  call  your  sest 
witness. 

Ait.  Gen.  Our  next  witness  is  Tfaocitf 
GondaU,  wbo  h  a  sertaot  at  the  Ba|nuo  ^ 
Lon|^  Acre,  as  well  as  this  man  that  was  lut 
(He  was  sworn.) 

L,  Jf ,  S.  What  questions  do  ywi  ask  hiBt 
Mr.  Attorney  P 

Att,  G€n,  My  lord,  I  de«re  be  ivonM  m- 
qtiaint  your  lordsblps,  what  time  it  was  mf 
lord  of  Warwick  and  capt.  French  came  to  fm 
m aster ^s  bouse  i' 

Goodali,  It  was  between  one  and  tfv^o'dodt 
in  the  mornings. 


«6] 


Jw  ike  Murder  of  Richard  Ceoie,  esq. 


A.  D.  Ii699« 


[986 


.Ati,  Gem.  My  lord,  I  desire  he  would  ac- 
ooaint  your  lordships  what  he  saw  and  knows, 
tkat  pawed  at  that  time  ? 

Goodall.  All  that  I  can  say  Lb,  that  I  did  see 
my  lord  of  Warwick's  sword  hloody ,  and  it  was 
Mked  in  his  hand,  and  I  did  see  a  wound  on 
his  hand:  indeed  I  did  not  see  him  when  he 
firat  came  iu,  for  he  had  been  there  a  pretty 
while  before  I  saw  him. 

Att.  Gen,  Pray,  in  what  condition  was  my 
hird  when  you  saw  him  ? 

Goodall.  He  had  his  sword  in  one  hand,  and 
il  was  bloody  at  the  blade  and  at  the  hilt ;  but 
whdher  it  was  bloody  all  over,  indeed  I  did 
■•t  take  notice  of  it,  and  so  cannot  givfi  an  ac- 
count. 

Att.  Gen.  Pray,  what  sort  of  sword  was  it  ? 
. .  Goodall.  Indeed  I  cannot  give  an  account 
what  sort  of  sword  it  was,  but  it  was  either 
steel  or  silier  gilt,  as  I  remember ;  but  I  did 
take  notice  that  there  was  blood  upon  the  hilt, 
that  is,  upon  the  shell. 

Alt,  Gen.  Was  it  an  open  shell,  or  a  close 
one? 

Goodall.  I  think  it  was  a  close  one.  - 
Att.  Gen.   Pray,  did  my  lord  of  Warwick 
giYe  any  order  to  be  denied  in  the  house,  or  for 
any  concealment  there  ? 

'Goodall.  Indeed  I  did  not  hear  of  any  orders 
given  for  ooncisaling  of  any  body  there ;  but 
my  krd  walked  up  and  down  very  much  con- 
emed. 

Att.  Gen.  Did  not  BIr.  French  come  in  with 
Urn? 

Goodall.  I  do  bdiere  he  might:  but  I  can- 
nsl  tay  I  saw  him  when  he  came  in. 

Att.  Gen.  Can  you  tell  when  Mr.  James  and 
Mir.  Dockwra  came  in  ?  How  long  was  that 
after  my  lord  of  Warwick  was  there,  and  Mr. 
Jicnehr 

GoodalL  To  the  best  of  my  remembrance 
sod  knowled^,  it  was  half  an  hour  afler  my 
lord  of  Warwick  and  Mr.  French  came,  that 
Mr.  James  and  Mr.  Dockwracame :  I  am  snre 
it  was  so  belore  I  saw  them  in  the  house ;  hut 
indeed  I  cannot  say  directly  when  they  came 
in,  or  when  they  went  out. 

Att.  Gen.  Pray,  which  hand  of  my  lord  of 
Warwick  was  it  that  was  hurt,  the  right  or 
the  left? 

Goodall.  Indeed,  I  cannot  positively  say  ; 
but  1  think  it  was  the  right  hand. 

Att.  Gen,  You  talk  of  my  lord  of  Warwick's 
swonl;  did  you  take  any  notice  of  Mr. 
Prench's  sword  ? 

Goodall.  No,  indeed ;  I  was  busy  about  the 
sffairs  of  the  house ;  I  did  see  my  lonl  of-War- 
wick's  sword,  but  that  was  by  chance,  and  it 
was  bloody  at  the  hilt,  and  upon  the  blade ; 
hut  whether  it  were  all  over  bloody,  indeed  I 
cannot  tell. 

Att.  Gen.  1  desire  to  ask  him.  Whether  he 
can  tell  who  brought  in  Mr.  Coote's  sword 
Ihitber? — Goodall.  Indeed  I  cannot 

L.  fl.  S.   Mr.  Attorney -General,  have  you 
any  more  questions  to  ask  him  ? 
Att»  Gem.  N0|  my  lord,  not  1. 


L.  H.  S.  My  lord  of  Warwick,  will  you  asia 
him  any  questons  ? 

£.  ot  Warwick.  No,  my  lord. 

L.  H.  S.  Mr.  Attorney,  who  is  your  next 
witness.' 

Att.  Gen.  My  lord,  our  next  witness  is  Mrs. 
A.  Goodall, this  man's  wife.  [Who  was  sworn.] 

L.  H.  S.  What  questions  do  you  ask  this 
gentlewoman  ? 

Att.  Gen.  I  desire  that  she  would  acquaint 
your  k)rdshi|^,  whether  she  was  at  the  Bagnio 
in  Long-acre  when  my  lord  of  Warwick  and 
capt.  French  came  in  P 

A.  Goodall.  1  was  there  when  my  lord  of 
Warwick  came  in. 

Att.  Gen.  Was  capt.  French  with  him  P 

A.  Goodall.  Yes,  captain  French  was  with 
him. 

Att.  Gem  About  what  o'clock  was  it  that 
they  came  there  ? 

X.  GtHjdall.  It  was  about  two  o'clock,  as 
near  as  I  can  remember. 

Att.  Gen.  In  what  condition  were  they 
when  they  came  in,  pray  ? 

A.  Goodall.  Mr.  French  was  very  much 
wounded. 

Att.  Gen.  Pray,  how  was  my  lord  of  War- 
wick? 

A.  Goodall.  My  lord  had  his  sword  in  his 
hand,  and  it  was  very  bloody,  both  at  the  kih, 
and  upon  the  blade. 

Att.  Gen.  Did  you  observe  any  wound  that 
my  lord  had  ? 

A.  Goodall.  I  think,  to  the  best  of  my  re- 
membrance, my  lord  had  his  hand  wrapped 
lip  in  a  handkerchief,  which  was  bloody  ^but 
I  was  busy  up  and  down  in  the  house,  and  I 
cannot  so  well  tell  what  hand  it  was ;  I  was 
indeed  up  and  down  there  while  they  were 
there. 

Att.  Gen.  Do  you  know  of  any  orders  that 
were  given  by  my  lord  of  Warwick  to  be  con- 
cealed while  he  was  there  ? 

A.  Goodall,  He  did  desire  the  door  might 
not  be  opened  to  any  body  that  asked  for  bim, 
and  that  it  might  not  be  said  that  he  was  there ; 
and  when  the  other  two  gentlemen  came  to  the 
door,  he  went  to  the  door  himself,  and  when  he 
saw  who  they  were,  he  ordered  them  to  be  let 
in. 

Ait.  Gen.  What  was  the  occasion  of  his 
going  to  the  door  himself? 

A.  Goodall.  There  was  a  knocking  at  the 
door,  and  he  had  a  mind  to  know  who  it  was ; 
and  when  it  did  appear  it  was  Mr.  James  and 
Mr.  Dockwra,  he  himself  ordered  them  to  be 
let  in. 

Att.  Gen.  How  came  the  door  to  be  open  ts 
tlieni  ? 

A.  Goodall.  Indeed  I  think  he  opened  it 
himself. 

Att.  Gen.  How  long  was  that  aAer  be  and 
cajit.  French  came  in  ? 

A.  Goodall.   It  was  about  half  an  hour. 

Att.  Gen.  When  they  6rst  came  in,  what 
postura  were  they  in  ?  'Had  they  any  sworda 
m  their  hands? 


Wf}r 


llVmMAMUL 


TiM^a^Xmi^WmU^ 


m 


JuemdaU.  liidMlpQdlM^iyDeiiottoe, 
rlMrtbor  tlitj  bad  aar  firwii  in  thiirlMiHli, 
lor  vhlit  tbarhad  wtai  tiicy  oubm  In. 

jMuOtfi..  Wha  jMonnn  if  tbeA 


SMff.  JDkKifcwin,  want  niray  witlaa  n  Ktde 
iib  lia4  n J  lord  «f  WnrwM  ordwid  pnrti. 
cnlar  cum  16  be  taken  of  Mr.  Ewoh,  aa  liia 
Akndi^trf  Iw  vaa  pot  to  M  afttt  Ilia  wmi 
,PM  4nMd ;  bat  I  caanfl  toll  wiMt  d 
«gMi|  bwuD0'4lf  Buirlard  Wanrkic,iBid 


nfc  after* 
iBidlbe 


Mt.Gm*  Itbiakjoawwaaemw^tikaimy 
lord  of  Warwiok  waa  woonM  aa  tba  ' 
wbiehfanttdwaail? 

A.^hQdM.  I  cannot  poeiinrebaqr, 
itwaatharMtortbel^. 

X.  A&r  will  yon  »iio  dmaf  Am  Ung'a 
oonnaaiiaik  thia  witoeaa  any  lartiwr  fncatianiP 

da*.  Qm^-lHOf  my  ]ord»  wn  ahai  aMK  berno 

I. 
laHmy 


B.  of  H^rvM.  No,  my  lord. 
Ait.  0<n.  Tben  oar 


Amy*  ivlto  li  a  aniweon,  nnd  Svoa  at  tba  Bama 
intaaf-acre;  ai^he  will gire yoar lordepip 
avtooomt  wbnt  naaeed  witnin  bia  loBowladga 
at  Uiis  time  witbin  bis  boiue,  and  wbo  eaaee 
tbiibertreaaded,andwlMlMHicntor  oarawaa 
oi4md  to  be  taken  of  MrTFkeneb,  and  by 


(Mr.  Amy  was  awom.) 

Ait  Om.  I  desire  you  wiD  givean 
to  my  lords  wbat  happened  at  your  bouse  early 
in  the  moniiDg,  the  SOth  of  October  last  ? 

Amy.  The  SOth  of  October  last,  about  two  of 
the  dock,  1  was  knocked  op  out  of  m3r  bed  to 
attend  two  geDtlemen,  my  lord  Warwick  and 
captain  French,  wbo  came  then  into  my  house. 

AU,  Gen,  In  what  condition  were  they  ? 

Amy.  Tbej  were  both  wounded ;  Mr.  French 
▼ery  much,  and  my  lord  of  Warwick  in  his 
band. 

Mi.  Gen.  Did  you  see  any  swords? 

Amy.  Yes;  tbev  bad  both  swords  in  their 
hands,  and  my  lord  of  Warwick's  sword  was 
very  bloody. 

Ait.  Gen.  Well,  Sir,  when  they  came  into 
your  house,  what  directions  was  given  by  my 
loid  Warwick? 

Amy.  tie  gave  directions,  if  any  body  should 
aafc  for  him,  they  should  say  be  was  not  there. 

Alt.  Gen,  Did  any  body  come  and  ask  for 
bimr 

Amy.  While  we  were  taking  care  of  Mr. 
Frencn,  and  dressing  bis  wound,  there  were 
some  persons  came  and  knocked  at  the  door, 
and  my  lord  of  Warwick  did  order,  that  nobody 
should  be-  let  in ;  but  he  liimself  went  to  the 
door,  and  when  he  found  that  it  was  Mr.  Dock- 
wra  and  Mr.  James,  my  knrd  Warwick  ordered 
that  they  should  be  let  m. 

Att.  Gen.  Pray  tall  my  lords  what  followed 
af^tbat? 

Aa^.  After  we  haddremed  Mr.  Frtnoh— — 

AU.  Gen.  By  tbo  -way,  was  than  any  par* 


Mr.nnnehf  ^ .. 

Amy*    «  08|  my  lon  wsatoiok' 
taltaM  «f  hito  aa  M^frnt-*-- 

Mr.  ffrndi^  «ra«ndr«rltai  „ 
Amy*  I  dKMsd  anr  bad  Wi 
Ait.Gm.  Phw,  W 

ofWarvkk'awmindr 
iiauf.  liwi 


Oil 

m 


UiA» 


i.  Gan.  Fmjf  hmr  Imig  dU  «iy  Mqr 
theref  *        r  ■ 

yisr  Mr.  Dookwin  and  Mh 

in,  and  my  knd'absttd.waa 
a^jad  n  lillle  while,  and  tiiey  tbna'vm 

.6m.  What  was 


omyr 

^.  My  loi«  of  Warwiak  dcairad  to 
mataaralafaBofMr.FkoMh;  andlhef 
Mow  let  na  go  away  s  and  tiwy  want  amK  i 
;   .dM.Gm:FkaytwkBttuiiadUtfieyi^ii 
yonr  bouse  f 
Aaw.  Whan  tbay  wort  nwny.llWk  it  toi 
loot  talf  an  hoorafter  they  M  coma  ift 
Ait.G€m.  DidTantakaMliBnof aaamd 


;,Mr. 
iSTMlb 


bat  my  kMfd  of  WarwiekVir 

Jaiy.  No,Mtf 

Ati.  Gen.  Didyaaan 

ibim.  Aftarwavda  in  tba 
called  for  blaawQid,  and  I 

AtL  Oan.  Vmy,  m  wbat 
sword?  WaaitbkMdyr  i 

Amy.  It  was  without  blood,  only  aHttladilj. 

Att.  Gen.  Pray,  did  you  obserre  tbstlli^ 
talked  of  any  qv^rrel  that  had  been  bstasn 
capt  French  and  my  kard,  when  they  osiaeiif 

Amy.  No. 

Att.  Gen.  Did  you  ask  them  any  qaertimi 
about  it,  the  one  or  the  other  of  them  r 

Amy.  No,  1  did  not. 

Att.  Gen.  Did  you  bear  them  aay,  bowAif 
came  by  their  wounds?— ilnry.  No,  I  did  ait 

AU.  Gen.  Did  you  hear  them  talk  ef  ay 
body  beiitf  killed,  particularly  Mr.  Coota? 

Amy.  f  did  not  know  of  any  body  bdif 
killed  till  next  day. 

Att.  Gen.  Did  you  take  any  notice  of  JsMOi^ 
and  Dockwra's  swords  ? 

Amy.  Truly,  1  took  no  notice  of  any  sworil 
but  my  lord  Warwick's,  while  my  hud  Wsi» 
wick  was  there  in  the  house ;  but  the  lOt 
momiag  Mr.  French  gare  me  bia  sword,  mi 
there  was  another  sword  there,  whieb  Ma 
French  told  me  was  capt.  Coote'a  sword. 

Att.  Gen.  When  was  that  ?  How  loaffdltf 
my  lord  of  Warwick,  and  Jamea,  and  Dtai^ 
wra.  were  gone  away  ? 

ilsiy.  It  was  some  hours  after. 

Att,  Gen.  When  did  you  bear  of  Mr. 
being  killed? 

.  Amy.  About,  nine  o'clock  next 
heard  of  Mr.  Coolers  being  killed. 

Alt.  Gen.  Whom  did  you  hear  it  fiuta' 

Amy.  From  Pomfret,  my  aerranL 

All.  Gen.   Did  yon  beat  ^  *' 


forihe  Murder  of  Richard  Code^  esq. 


A.  p.  1699. 


t990 


lord  of  Warwick,  capt  French,  Mr. 

1  Mr.  Dodcwnt  about  it? 

To^  I  did  not 

n.  Did  ihey  not  talk  how  those 

ime  th^  had  ;  nor  did  not  yon  ask 

them?. 

0,  I  did  ask  no  question  of  either  of 
d  in  half  an  hour  after  they  came  in, 
r  Warwick  and  the  other  two  gentle- 
away. 

ni.   When  they  left  French  there, 

v  were  left  about  him  ? 

>nly  to  take  care  of  him,  my  lord  of 

ieaired  that. 

».  What  reason  did  my  lord  giro  for 

heard  nothing  of  reason,  only  that 
I  particular  friend. 

sn.  Did  you  hear  them  talk  any 
Lther  they  would  go,  when  they  went 

did  hear  some  talk  about  going  into 

y. 

n.  Do  you  know  whither  they  went, 
'  ivent  away,  from  your  house  ? 
(o,  indeed  I  did  not. 
n.  My  lord,  we  have  done  with  him. 
.    My  lord  Warwick,  will  your  lord- 
W\n  witness  any  questions  ? 
Tir.  I  desire  to  have  bim  ariced,  whe- 
;  not  wounded  in  the  hand. 
lis  hand  was  very  bloody,  the  hand- 
bat  was  about  U  was  wet  with  th« 

^ar.  I  desire  to  ask  him,  when  it  was 
.V  capt.  French's  sword  ? 
i  was  not  before  the  morning ;  it  was 
o'clock,  as  I  remember. 
orm.  Before  this  witness  goes  away, 
e  may  be  asked  One  question,  wlie- 
3  tell  the  size  of  Mr.  French's  sword? 

1.  Here  is  a  noble  lord  that  desires  to 
you  can  tell  about  capt.  French's 
at  sort  of  sword  it  was  ? 

Is  to  the  blade,  it  was  a  middle-sized 

orm.  Was  it  a  broad  blade  or  no  ? 
[o,  my  lord,  it  was  not  a  broad  blade. 
.    Mr.  Attorney,  who  is  your  next 

!».  Capt  Loftus  Duckinfieid.   (Who 

»•) 

m.    This  gentleman  will  acquaint 

ships  what  discourse  past  between 

Uemen  the  next  day  ;    pray.  Sir,  ac- 

f  lords  what  you' heard  about  Mr. 

atli.  and  when  and  where. 

yuch,   £arly  in  the  morning  I  was 

I  accident. 

\n.  By  whom  ? 

huk.  One  of  the  company,  I  cannot 

I  think  tliey  were  all  together  liicn, 

r  Warwick,  capt.  James,  capt.  Dork- 

Mhody  else. 

m.  What  was  their  discourse? 

yuek.  s  They  said,  they  believed  cap- 


An,  Qon.  Did  th^  tell  you  by  whom  ? 

Capt  Dvcib.  By  Mr.  French,  every  body  did 
say  he  was  his  adrenary • 

AH,  Gen.  What  account  waa  given  of  the 
action  ? 

Capt  Duck,  They  said  it  was  done  in  the 
dark,  and  capt.  French  waa  his  adversary. 

Alt,  Oen.  Was  there  any  notice  taken  of 
any  duel  ? 

Capt.  Duck,  Yes,  there  was,  between  those 
two,  and  the  otb^  persons  on  both  sides ;  and 
it  waa  said  my  lord  of  Warwick  was  friend  to 
Mr.  Coote,  and  my  lord  Mohun. 

Att.  Gen,  Who  were  on  the  other  side  ? 

Capt.  DtLck.   Mr.  Dockwra  and  Mr.  James. 

Att.  Gen.  Was  thereany  discourse,  who  ac- 
tually ibmrfat? 

Capt  Duck.  It  was  said,  that  capt  French 
fought  with  capt.  Coote,  as  they  beueved,  and 
Mr.  James  with  my  lord  of  Warwick. 

Att,  Gen,  Did  you  see  my  lord  of  Warwick's 
sword  ? 

Capt.  Duck.  Seme  time  of  the  day  I  dkl  ; 
but  1  cannot  tell  whether  it  was  in  the  moniing, 
or  no. 

Att.  Gen^  In  what  conditiott  was  it?  Was  it 
bloody  or  not  ? 

Capt  Duck.  It  wasa  steel  sword. 

Att.  Gen.  How  long  did  thev  stay  with  youf 

Capt  Duck,   About  half  an  iiour. 

Att.  Gen.  Did  they  come  publicly  ? 

Capt  Duck.    We  went  away  in  a  haokoej 


Att.  Gen.  Pktiy,  what  discourse  was  thert 
about  consulting  to  go  into  the  country  to- 
gether? 

Cant  Dtic^  That  might  be  discoursed,  but 
by  whom  1  cannot  tell. 

Att.  Gen,  Did  my  lord  of  Warwick  talk  of 
going  into  the  country  ? 

Capt.  Duck.  Whether  the  company  talked 
of  it,  or  my  lord  of  Warwidk  in  particular,  and 
the  rest  assented  to  it,  I  cannot -well  tall. 

Att,  Gen.  Whither  did  they  go? 

Capt.  Dutk,  I  oannot  directly  tell. 

Att.  Gen,  What  time  of  the  day  was  it  P 

Capt.  Duck,  It  was  about  six  of  the  clock. 

Att.  Gen,  Cannot  you  tell  whither  t)My 
went  ? 

Capt.  Duck.  Ca[>t.  James  and  capt  Dock- 
wra went  to  the  8bip  and  Castle  in  ComhiK 
about  five  o'clock  or  six,  as  near  as  1  can  re^ 
member. 

Alt.  Gen,  Can  you  fell  what  time  my  lord 
of  Warwick  went  away  ? 

Ca{;t  Duck.  No,  1  cannot  tell  what  time  he 
went  away,  not  directly. 
'  Att,  Gen,    Can  you  tell  of  any  agreement 
amongst  them,  whither  they  were*  to  go? 

Capt.  Duck.  No,  I  cannot 

Alt,  Gen.  What  discourse  or  concern  did 
you  ol)6erve  past  between  them,  oonccraing 
capt.  I'oote? 

Capt.  Duck.    My  lonl  of  Warwick  shewed  . 
a  great  deal  of  concern  for  his  friend  Mr.  Coote. 

Att,  Gen..  Had  you  any  notieeof  Mr.  Coote's 
death  amongst  you  ? 


991]  11  WILLIAM  IIL 

Capt.  Duck,  We  had  notice  before  we  went 
away  ;  but  I  cannot  tell  whether  it  was  before 
my  lord  of  Warwick  was  gone. 

Alt.  Gen.  Was  it  at^r  tlie  discourse  of  going 
into  the  country,  or  before  ? 

Capt.  Duck.  Indeed,  I  cannot  directly  say 
when  it  was. 

An.  Gen.  Pray,  what  reason  was  there  for 
their  goiogf  into  the  country  before  he  was 
dead? 

Capt  Duck.  They  believed  he  was  dead. 

Att.  Gen.  Cannot  you  tell  the  reason  why 
they  would  go  into  the  country  ? 

Capt.  Duck.  No,  indeed,  I  cannot  tell  the 
reason. 

Att.  Gen.  Did  y on  obsenre  my  lord  of  War- 
wick's sword  ?  Was  there  any  blood  upon  it  ? 

Capt.  Duck.  I  cannot  say  his  sword  was 
Uoody  at  the  point ;  the  whole  blade  and  shell 
was  bloody,  to  the  best  of  my  remembrance. 

Att.  Gen.  What  sort  of  a  sword  was  it? 

Capt.  Duck.  It  was  a  pretty  broad  blade,  a 
liollow  blade,  and  a  hollow  open  shell. 

Att.  Gen.  Was  there  any  discourse  concern- 
ing capt.  French  ? 

Capt.  Duck.  Yes,  they  thought  he  was  very 
ill  wounded. 

Att.  Gen.  Was  there  any,  and  what  dis- 
conrse,  who  should  give  my  lord  of  Warwick 
bis  wound  ? 

Capt.  Duck.  It  was  said,  they  believed  capt. 
James  gave  my  lord  his  wound. 

Att.  Gen.  Fray,  was  there  any  blood  upon 
Mr.  James's  sword,  or  was  he  wounded  ? 

Capt.  Duck.  I  saw  no  wound  upon  capt. 
James,  that  I  know  of. 

L.  H.  S.  Do  you  believe  that  my  lord  War- 
wick's sword  was  bloodied  with  the  hurt  of  his 
own  hand,  or  any  oUierwise  ? 

Capt.  Duck.  I  cannot  tell ;  it  was  a  cut 
shell,  and  the  outside  bloody  as  well  as  the  in. 

L.  H.  S.  My  lord  Warwick,  will  your  lord- 
shij)  ask  this  witness  any  questions? 

i.  oi'  War.  No,  my  lord. 

L.  H.  S.  3Ir.  Attorney,  if  you  have  any 
other  witness,  pray  rail  them. 

Another  Witness  was  pro<liiced,  that  be- 
longed to  the  Ship  and  Castle  in  Cornhill. 

Att.  Gen.  This  man  will  give  you  an  ac- 
count what  passed  at  his  house  at  tlint  time, 
and  between  whom;  pray,  uiil  you  tell  my 
lurds  u  ho  \ias  at  your  house  the  30th  of  Octo- 
ber last,  and  what  [wst  there  then  ? 

Witness.  My  lord  of  Warwick,  capt.  James, 
and  capt.  Dockwra ;  and  when  my  lord  of 
Warwick  came  in,  1  thought  my  lord  was  in  a 
very  givat  concern,  and  called  for  pen,  ink, 
and  p:iper,  and  I  feared  there  was  some  quurrel 
in  hand  ;  but  they  said  no,  the  qiuirrel  was 
over,  aiul  sa\  s  my  lord  of  Warwick,  1  a:n  ufruid 
poor  Coote  as  killed. 

Att.  Gen.  Did  you  observe  any  desire  to  be 
private? 

Witness.  No,  indeed,  I  cannot  tell  that. 

Att.  Gen.  How  long  did  they  <)uutinue 
Hierc? 


Trial  of  the  Eart  of  Wartjoick^ 


\m 


Witneu.  About  six  a-clock  my  lord  of  Wv- 
wick,  and  cant  James,  and  capt  Uockvn, 
and  capt.  Duclcinfield  went  away. 

Att.  Gen.  Can  yon  tell  who  west  with  my 
loid  Warwick? 

Witneu.  No,  indeed,  I  cannot  tdl  who  went 
with  my  lord  Warwick ;  there  came  in  a  gm- 
tleman  in  bUck,  whom  1  knew  to  be  my  loid 
of  Warwick's  steward,  and  be  came  and  spoke 
some  words  to  my  lord  of  Warwick,  about  a 
quarter  of  an  hour  after  they  came  in,  andtbct 
they  went  away,  for  after  that  I  did  not  bar 
any  fiirther  dicsoourse. 

Att.  Gen.  What  became  of  the  rest  of  tki 
company  ? 

Witneu.  They  went  away  ;  I  «lo  not  koov 
what  became  ofthem,  nor  wbither  they  west; 
some  ofthem  went  in  and  out  of  one  room  iaii 
another  several  times,  two  or  three  tiroes,  and 
came  out  agmn. 

Att,  Gen.  My  lord,  we  have  done  with  tlsi 
witness. 

X.  H.  S.  My  lord  Warwick,  will  yoa  Mk 
him  any  questions  ? — &.  of  War.  No,  my  kfi 

X.  It.  S.  Mr.  Attorney,  who  is  your  tual 
witness  ? 

Att.  Gen.  Mr.  Salmon,  the  snroeoo,  who 
by  the  coroner's  order  searched  the  wounL 
(>Vho  was  sworn.) 

Att.  Gen.  Pray,  Sir,  was  you  ordered  hj 
the  coroner  to  view  the  body  of  Mr.  Coole? 

&i^.  Yes,  I  was  onlered  by  the  coroMr  to 
inspect  the  body  of  capt.  Coote,  and  to  give  ibo 
jury  an  account  of  the  nature  of  the  woaads. 

Att.  Gen.  Pray,  upon  the  view  of  the  body, 
what  wounds  had  he  ? 

Suim.  There  was  two  wounds  ;  one  on  the 
breast  near  the  collar  bone,  running  downiiinii 
very  deep. 

Att.  Gen.  Pray,  what  part  of  the  b.-raslirji 
it,  and  how  deep  u'as  it  ? 

Saim.  It  was  on  the  left  part  ofthebrca«t 
near  the  collar  bone,  and  it  penetrated  four  «r 
five  inches. 

Att.  Otn.  Can  you  tjness  at  what  sort  ot 
sword  it  was  that  made  the  wound? 

Salm.  No,  indeed,  Sir,  1  cannot. 

Ait.  Ocn.  Was  it  a  broad  swoni,  oralill^ 
sword  ? 

!Sulm.  The  orifice  was  ahont  the  Itnsfth  ol 
halt'an  inch,  and  alM)ul  the  depth  n\'  {)\c  iofhw- 

Att.  Ocn.  Was  that  nia«lo  with  a  brtwd 
sw'oid,  or  with  a  narrow  sword  ? 

Sfifm.  indeed,  1  cannot  tell. 

Att.  Gen.  You  say  he  hail  another  wound; 
w  licrc  was  that  ? 

Sftlm.  That  was  on  his  left  side  loo,  mx 
unto  ihe  short  rih-j,  und  r  the  l.i-i  nli;  \\\»^ 
was  about  the  l.iii;^lh  ot"  an  inch,  an«l  «!*  tht 
depth  of  six  inches,  aiid  il  run  llnoii;;h  tlodil' 
phra<;niu. 
I  Att.  (hn.  Dill  yoM  lake  or.c  of  these  woiin^ 
;  or  both  of  thcui  to  bt;  mortal  ? 

SultTi.  1  did  IomI;  u;)on  eithrr  of  thcmtobi 
mortal,  and  to  !»«.*  the  occ;!^-'.on  uf  his  death. 

Att.  (itn.    (.';in  you  tell,  whelhcr  they  wc* 
both  made  with  one  and  ihc  saiucs^ronl? 
B 


093] 


far  the  Murder  of  Richard  Caote^  esq. 


i^    Salm*     Indeed  I  cannot  tell  that,   wliether 
Khejf  were  made  wiiK  une  stvord,  or  two. 
»     At(*  Ceti.    Cannot  ymi  tell  liow  thej  ap- 
peared to  be  P  I  8U|»p{>M;  yi>u  prulM^d  tliein. 

Stilm,  Yes,  I  probed  them  both  ;  one  wai 
^uite  through  tite  diti|>hragnia. 

Att,  Gen,  What  time  wm  ilthnt  y&u  viewed 
tlK!  body  by  the  order  of  ihe  coroner  S* 

Saim,  I  saw  tlie  body  at  seven  a-clock  on 
jBoDday  uight. 

Att,  Gen.  If  ray  lord  of  Warwick  desire  to 
msk  him  any  questions,  he  may« 

E,  of  War.  My  lord,   L  desire  1o  ask  brni, 
^lietber  any  of  the  wonnds  were  large  enough 
to  be  n^ade  by  a  sword  run  up  to  the  hi  It  ? 
StiiitL,  No,  luy  lord,  sure  they  were  not. 
E.  of  War\    My  lord»  1  desire  to  know  of 
♦lim,  whether  both  these  wounds  were  given 
^bciore  or  behind  ? 

^K    Salm,    I  can  only  tell  you  the  length  and 
^^epth  hy  follonin;^  of  the  prolie ;  the  one  was 
downwards,  and  the  other  npworda. 

Att.  Gen*  Do  yoti  suppose  both  tliose  wounds 
were  given  when  the  person  was  standing, 
backward  or  forward* 

Saltn,  h  is  impossible  lo  tell  bow  Ibey  were 
^veu,  because  of  the  variety  of  the  |i«sture«  oi^ 
ihe  boily  in  the  divers  cajjacitiea  thereby  of  re- 
eeiif^ing  the  wonnds* 

Att.  Gen.  Pray,  can  you  tell  whether  ihey 
were  g^rven  by  one  and  the  same  sword,  or  nof 
.    Saim.  Indeeil  I  cannot  leth 

Att.  Gen,  Do  you  know  any  thing  to  the 
^ntnry  T 

Saim,  1  cannot  liy  any  thing  for  it  or 
igftinat  it. 
^^  E»  of  Kif^giton.  My  lorfls,  this  witne«a,  if  I 
^hfprebend  liiin  right,  says,  the  wound  on  bis 
^Biiie  watt  a  laig^c  wound. 
^K  Satm.  Ye^y  n  very  large  %vound,  of  the  length 
^^f  about  three  quarters  of  an  inch  at  the  orifire^ 
and  five  or  six  inches  deep. 

E.  of  Kingsfmi,  1  desire  he  may  tell  witelher 
that  wound  could  be  given  by  any  other  than  a 
^road  sword  ? 

Sa hi .    i  can  n  nt  tell  t tt  at . 

£.  of  Rochesitr.  Indeed,  my  Iordd\  I  would 

Ka? e  him  asked  this  question  ag^ain  ;    I  know 

p,     not  whether  he  can  answer  it  or  no  ;    but  I 

^^aii&fit  but  think  it  is  proper  to  have  some  ac- 

^BcMiut  of  litis  mntter.     In  all  enquiries  before 

^^■^ttirooer,  there  is  a  Judgment  to  be  ntade  of 

^^^B^iure  of  the  wi»und,  in  order  to  furuj  the 

^JPnRincnts,  and  that  tlie  jury  amy  kuo^v  with 

^^phat  sort  of  weapon  it  was  made  ;  and  it  is  his 

^^rofession  as  a  surg'oon  to  know  such  matters. 

L.  U,  5.  Mr.  fcilmon,  yo«  hear  what  is  re* 

<|ulrc!d  of  you  by  my  noble  lords,  and  Ihe  ob- 

scfvation  which  is  made.    You  are  the  surgeon 

•rut  for  by  the  coroner  on  purpose  to  inspect  this 

bcidy  ;  and  when  you  did  so,  it  was  incumbent 

li|HNi  \ou  to  conudi-'r  and  give  inforroatiun,  as 

well  with  what  sort  of  instrument  the  wound 

was   given,  a."!  the   length   and  depth  of  tire 

bWoiiuu,  that  th^  \x\r\  mtghl  consider  upon  all 

Wfche  circumstances  of  the  occsiion,  and  manner 

"Vf  the  party's  death  :    and  toy  lords  would 

VOL.  Xfll, 


know,  whether  by  the  oniices  of  the  wounds, 
when  you  insptn^ied  them,  yon  can  muke  a 
judgment,  if  they  were  made  by  atveral 
swords,  or  the  same  swoni  ? 

Saim,  I  cuonot  say  that  1  saw  any  difference 
between  theoriBces,  as  to  the  nature  of  the  tu- 
slrumcnt  they  were  given  with,  nor  wliether 
they  were  made  by  one  anil  the  saine  suord  or 
no  ;  only  the  one  orifice  was  bigger  than  tha 
other ;  that  of  the  side  was  bigger  than  that  at 
the  collar-bone. 

L.  H,  S.  Then  so  far  we  have  light  (if  I  ap- 
prehend you  rightly),  the  orifice  of  tire  upper 
wound  was  not  near  so  wide  ap;  that  of  the 
lower  ;  but  it  seems  to  lie  much,  in  or»eof  your 
profession,,  not  to  be  able  to  judge  whether  the 
woundis  were  given  with  the  same  sort  of  sword 
when  there  was  such  a  dltierence  in  theoriljces. 

Salm*  That  below  was  a  deeper  wound  ; 
and  there  was  a  considerable  difierence  between 
the  larn^enessof  one  and  the  other. 

hovS  Audlet/,  My  lords,  I  desire  he  may  tell 
5  our  lordships  bow  far  backviard  the  wound  in 
the  side  lay. 

Salm,  It  was  directly  on  the  left  side,  imme- 
iliately  under  the  two  last  ribs,  aud  past  througli 
the  dtaphragma. 

M,  0f  Narnmnh^,  Pray,  my  lords,  let  him 
point  with  his  finger  whereabouls  it  was. 

-£*  H.  S.  My  lords  would  have  you  shew 
them  with  your  finger^  whereabouts  it  was* 
(Which  he  did.) 

E.  of  Warw,  It  li  a  very  material  qnestloa 
for  me,  that  he  should  answer,  whether  he  di<i 
believe  that  one  and  the  same  sword  might  not 
give  l#olh  wotinds, 

Satm,  1  cannot  say  any  thing  of  it  one  way 
or  other ;  but  one  wound  went  much  further 
than  the  other,  because  it  was  in  u  fleshy  part ; 
and  in  such  a  case,  the  further  the  swurdgoes 
in,  it  makes  the  wound  larger. 

Att.  Gctt.  Then  our  next  witness  is  Stephen 
Turuer,  who  was  Mr.  Coote's  man  ;  and  be 
XV ill  give  you  an  account  what  sword  bis  roas- 
ter had,  and  where  he  found  it. 

[He  was  sworn,  a  sword  was  shewn  him.] 

Turner.  This  was  my  master's  sword,  Mr, 
Coiite^B ;  and  1  never  saw  it  atWr  he  went  out 
in  the  morning,  till  I  saw  it  in  the  hands  of  the 
constable,  and  afterwards  tretbre  the  coroner. 

Alt.  Gen.  What  time  did  you  hear  of  your 
masier^s  death  ? 

Turner ,  It  was  al>out  nine  a- clock  next 
morning  that  I  heard  he  was  dead. 

Att.  Gen.  Where  was  your  master's  body  ? 

Turfier.  It  was  in  St.  Martin's- lane. 

Earl  of  Tankerviik.  I  w  on  Id  desire  he  might 
be  asked,  whether  bis  master  used  his  left  hand 
or  his  right  ? 

Turner.  I  do  believe  he  was  a  right-handed 
man.  I  did  never  see  him  fence.  It  was  on 
tlie  Sunday  morning  that  I  went  to  the  Round' 
house,  where  1  found  my  master  dead. 

£.  of  Worn,  I  desire  he  may  be  asked,  whe- 
ther he  has  not  observed  a  particular  kiudntaMt^ 
and  friendship  betwe^  his  isiijtf  r  aud  me  f 

3S 


im\ 


IIAVILLIAM  III. 


THal  ofAe  Earl  of  mtnekH, 


P» 


'Turnrr.  Yrs,mylonl;  I  have  Kevcral  timn 
waitcfl  upon  my  niasttr,  ulieii  my  lord  aad  be 
ivufi^  ta;;c!llicr,  ami  tliey  «vens  always  very  ci?il 
and  kind  one  to  ahutliiT ;  and  J  never  heard 
•nff  uoni  of'any  unkindni'sabctwien  tlicm. 

Kt  of  Warw.  Wlicilier  li«  kuuws  oi*  any 
quarrtl  that  was  between  ux  ? 

THintr.    No,  I  never  did.) 

iSi.  (»f  Wnrw.  Whether  he  did  not  use  to  lie 
at  my  lod|;i»{rn  sometimes  i 

L.  U.  S.  You  heiir  my  lord**  question  : 
what  say  ymi  i  Did  your  master  use  to  lie  at 
my  lord  ut^  \VurwickVloi1{|;ini;8  at  any  time  !f 

Turner.  Yea  ;   very  olUu. 

Alt,  Gen,  Pray  call  Pomfret  again,  oud  let 
4iJin  see  the  swerd. 

[Then  he  came  in,  and  two  swords  were 
•liewn  him.] 

Att.  Gen,  I  desire  he  may  acquaint  your 
lordships  u  hat  he  knows  of  those  two  swords. 

PomJ'reL  These  two  swords  were  brouirht 
in  by  some  of  the  com|>any  that  came  to  hiy 
toaster'^  house  ;  and  when  they  were  shewn  to 
cantain  Trench  in  the  niorniujr  he  owned  this 
to  lie  bb,  and  the  other  to  be  Mr.  Cootc's ;  and 
lie  desired  that  notice  ini^ht  be  taken,  that  his 
■word  was  dirty  but  not  bloody  ;  and  Uiere 
Vas  some  blood  upon  the  other. 
.  Atl.  Gen.  Who  brought  in  Mr.  Coote's 
tword  ? 
*    P(lf/l/rf^  Indeed  I  cannot  tell. 

Ati,  Gen.  Tfien  our  last  uiere  of  evidence, 
iny  lord,  will  be  thut  ot  Mr.  White  the 
coroner.     ( W  ho  was  sworn . ) 

L.  11.  S,  W  hat  do  you  ask  him,  Mr. 
Atiorncy  ? 

Atl.  Uai.  From  whom  Lad  he  tht'se  swords  1^ 
[The  swords  w ire  shewn  him.] 

White.  ]\loy  it  jileasc  your  '^jiace,  tliese 
sworils  were  tleliier*-*!  lo  me  by  the  constable. 

Alt.  ( I  A.  y[\  Innis,  1  dtfsire  he  may  be 
asKct!.  W  \\K'\\\<  r,  u|uin  his  vi'jw  olthe  body,  he 
hiokeil  iijon  ilic  woiiniis;  ami,  whflhor  he  did 
anpii  ht'iiil  liny  >\iTi.  ♦>iv(a  by  one  and  the 
b;;u»c  sworil, 

\Vh.i\\  y\\\y  It  |Kr.':<i»  your  p-»ee,  wlirn  1 
had  >uorn  n»>  nv.jr:  ••:,  I  ^.*if  ll-r  ili«'  surijcon 
lliiit  w;.s  htri-  b^|i;:\,  .."il  -  :; ,»  iii!:,  ni.ier  to 
prnlw  ih.-^  uonnns.  tli;.l  tin-  i-iry  ml^li!  I:mow 
the  nature  of  tiiein.  in  ov.I.m  r>  the  drawi-t-j  iiii 
the  inquisition  ;  ;!iid  I  «ii.i  ♦'\i.rt>5'«!y  a^k  hiiii, 
V  hclliei'  li'j  louml  an\  s:iirii  di^tiniiion  In  fv.eon 
thtrs,  Inat  iliev  w»re  ^\\(\\  by  t-ne  r.rii  •:;L■ 
sn•ll>■  >;  ( .^.|>i!!,  til"  iJ.iS  !«.!.!  vf:^^-i:.i :  i.^*  s?."j!, 
:!s  he  "iixs  i.;i\v,  iJ:.'.!  he  loi  Id  nm  i.!',  v.iic- 
l!;vi'  ii.i  UiiiiiuiN  ^^i■re  l'iuii  i.v  t.\«.  ...mt.N,  •  r 
li\  e'..e  ;  liut  he  «!i.l  ;..',iitni  .id  ihoit?  wis  :>. 
j.i.-;:l  il;tiueiieo  Ia  ;'.. een  ll.v'ui,  ai!  1  «•'  fl:«!  i  : 
\  \\  'j,.uy'\"\\[\  i!i.  4'iiL^e  eia  \.  ou:m1  il"t>  dose 
ii;»  \^!ji  .1  liu  \\\\\   In  I ,  li!  :    on- ol' tl.-- "v^ounds 


L.  H.  S,  My  lord  of  Warwidi,  wiU  jm  lak 
this  witness  any  questious  I' 

£.  of  War,  No,  my  lord. 

X«  H.  S.  Make  proclamation  for  rilence. 

C7.  of  the  Cr.  Serjsant  ftfromn,  uake  pro- 
clamation. 

Serf,  at  Armt.  O  yes,  O  yes,  O  tcs!  His 
grace,  my  loni  htjirh  btewanfof  En^nd,  doil 
strictly  ciiarg^e  and  comiuund  all  maoMr  «f 
persons  here  present  to  keep  silcace^  apoe  pan 
of  imprisonment. 

L.  11.  S,  My  Ion]  of  Warwick,  the  kiiifl 
counsel  have  made  an  end  of  gi«iitfr  evidence 
for  the  king ;  now  is  the  prosier  time  lor  joo 
to  enter  upon  your  defence. 

E:  of  War,  May  it  please  your  grue,  and 
yon  my  noble  lords,  my  peers, 

J  stand  here  before  your  iordshipf,  auiprf 
of  tlie  kiunkr  of  Mr.  Coote,  of  frhich  I  an* 
innocent,  that  I  came  and  voluntarily  surrn- 
dered  mysdf  so  soon  as  I  heard  yonr  hmUipl 
mii^ht  be  at  leisure  to  try  me ;  and  had  aooMt 
done  it,  but  that  tlie  king  was  not  then  b(R» 
nor  your  lordships  sittiD|p,  and  bad  no  niarf* 
mider{|fu  a  long  confinement ;  and  ne*  I 
think  I  mi^it  well  submit  it  to  your  kirdshipft* 
judgment,  even  on  the  evidence  tkat  bai  m* 
oAmil  against  nM,  whether  there  bath  ben 
an^  things  proved  of  malice  prepense,  sr  b^ 
beiRS^  any  actor  therein,  so  as  to  adjadfBBC 
g;ui(ty.  And  1  think  I  may  wKh  huaible  ■*• 
mission  to  your  krdships  say,  that  my  inao- 
cenoe  appearcftli  even  from  several  of  tbe  wii^ 
nesses  who  have  been  examined  a^inil  rsfl 
which  I  will  not  trouble  your  lordi»bi{)fl  to  k- 
peut,  but  submit  to  your  memory  and  ohiena- 
tion . 

But,  my  lords,  the  safety  of  my  life  iot$ 
not  .so  much  ciuir^Tii  me  m  this  cise,  :s  ib< 
vindiciilion  of  my  lK»nour  and  niiutatirni  trw* 
the  liilse  rftleetions  to  which  the  proseciiiw h> 
endcavuureii  to  cxposo  nse ;  and  1  shrill  theif- 
lore  beg^  your  lord«liip5'  patience  to  giie  afiii 
and  full  account  of  this  matter :  in  which  thf 
duty  I  oive  to  your  ionlships,  and  to  justice  is 
general,  and  the  right  1  owe  lo  my  own  catitf 
ill  particular,  do  so  oblige  me,  that  I  w  til  not  is 
ilie  least  prcvaricitc,  neither  will  I  conceal  or 
d  »ny  any  thiii^-  tha:  is  trne. 

My  Ion  Is.  1  must  con tlss  f  was  thrrcwhcs 
lliis  ai:fi>rli.iia:c  Dcei-iint  liappri:-.),  which 
mu^t  !»♦?  a  u'r^it  ni;s(orfv.i:o  in  r.iiy  case,  but 
was  ir.-ro  so  to  me  in  il;:«,  l'ecnt:s»  Mr.  Coote 
e..is  n»\  jiaiilt?al»i;-  {',  i\:\ ;  •n-l  1  i.:d  nil  1  cmM 
:o  liinl.-r  it.  a*,  y.  :]r  lor  J-.iji;'a  may  observe  by 
:.K'  'vl.il.:  j'.r.ir.i^'i'  "-s. 


ii 


l!tl      K 


t::e  o.i in- 


to 


ti.t  I  «n;  ^i  1.-.    ii  i.:(.n.iMMUce,  it  v\as  .Jinosi  bl-> 

i.:,.  i ;  ■ :..    • 

-I*\.  Citii.  Wc'  ha-.rdo;ic  \s\i\\  our  r\iilencc, 
Bill. I  i^c  li».a;-  ^^\ydi  mv  icrd  of  Waiwiik  .nv* 
uj  i:.  .       . 


.1  t!-i;  S-\;. 
::.l  1.  :.:-; 
Hv  t  .It  L-jck^t ^.  V 
uscil  o:iLn  i-) ;::  :^:  : ' 
veral  ot"  ju  iir.-l  "m/ 
UP.e'.i^i'fTo.is .  .1  1 
ue;v\.->  ;..  ..'^  : 
M^-c*!  ;<•  !■.■  V..;  I  *. . 
haj»p?ne  i  so:.«i*  r.- 
Mr.  r.i.tit.)  Mr.  i': 
for  the  iick'.'HiiiUj 


;!.. 


•*.i  v.licn  mv  kxri 
f^il:  r  geiitfcnes, 
e  <:r.:it»  onmpUj 
;  M'l  in  :,ori*f»  tjv.e  aftcTH^ 
1  \\\  -?,  V-.  (  noteraisi 
.  <..,,.  V.;-..*  I:c  and  wt 
■A  :■:'  v"»^-l  i.-  :-.>»ur,  M»t 
!  '"?!■  r:  ii'ii  ;l;i*n  ihew 
er  -.vx  ♦  \iM'?*loni  fifSB 
■ ';.  wi.tiihfei'pon  ttiw 
:.ui  a  bE!;:gi»aiJ,  welefl 


•«&7] 


fir  the  Murder  of  Richard  CtSoitf  esq. 


A.  D.  TG99, 


tOSB 


Uie  apper  room,  and  I  proposed  to  send  three 
lM)ttles  of  wine  to  my  own  lodgin^;^,  and  to  carry 
him  tbitlier  to  prevent  the  ouarrel.  But  while 
tlie  company  stopped  to  call  for  a  glass  of  ale 
•t  the  bar  belovr,  Mr.  Coote  (whose  unfortunate 
humour  was  sometimes  to  he  quarrelsome)  did 
cigiin  provoke  Mr.  French  to  such  degree,  that 
ibey  Ihere  drew  their  swords ;  but  we  then  pre^ 
vented  them  of  doing  any  mischief:  then  Mr. 
Coote  still  insistiag  to  quarrel  further  with  Mr. 
.French,  my  lord  Mobun  and  I  pronosed  to 
send  for  the  guards  to  prevent  them  :  out  they 
h^  got  chairs  to  go  towards  Leioester-lields ; 
and  my  lord  Mohun  and  I,  a^  friends  to  Mr. 
Coote,  and  intending  to  prevent  any  hurt  to 
him,  dtil  follow  him  m  two  other  chairs ;  and 
as  he  was  going  up  St.  Martin's- lane,  stopped 
him,  and  1  extremely  there  pressed  him  to  re- 
turn and  be  friends  with  Mr.  French,  or  at  least 
^fer  it,  for  that  tlie  night  was  very  dark  and  wet; 
.«ul  while  we  were  so  persuading  of  him,  Mr. 
French  in  one  chair,  and  Mr.  James  and  Mr. 
Dockwra  in  two  other  chairs  past  by  us,  (which 
we  guessed  to  be  them)  on  which  Mr.  Coote 
ina&his  chairmen  tuke  him  up  ogain,  and  be- 
cause the  chairmen  would  not  follow  Mr. 
French  faster,  threatened  to  prick  him  behind  ; 
^uhI  when  we  were  gone  to  Green -street,  and 
^t  out  of  ouv  f-haii-v,  Mr.  Coote  oflered  half  a 
l^inea  to  be  changed  to  pay  tor  all  our  three 
chairs,  but  tliey  nut  having  change,  he  desired 
lenl  MohuD  to  pay  the  tliroc  shillings,  which 
he  did.  And  in  a  few  minutes  ai>cr,  Mr.  Cnote 
and  Mr.  French  engaged  ia  the  Hclds,  whitiier 
1  went  for  the  assistance  and  in  defence  of  Mr. 
Cooto;  and  received  a  icry  ill  wound  in  my 
riffbt  hand ;  and  there  this  fatal  accident  belel 
Ilr.  Coote  from  Mr.  French,  whom  Mr.  Coote 
Jbfd  jdangerously  wounded,  and  J  must  account 
it  a  great  unhappinessto  us  all  who  were  there: 
hut  so  hr  was  1  from  encouraging  of  it,  that  I 
ivill  prove  to  your  lordships  tiiat  1  did  my  ut- 
IDoat  endeavours  to  prevent  it ;  so  far  from  any 
dengu  upon  him,  that  1  exposed  my  own  lite 
fo  pave  hif ;  so  lar  from  prepense  malice,  that 
I  will,  by  many  witnesses  of  good  quality  ai(il 
credit,  prove  to  your  lordships  a  constant,  good 
«nd  uninterrupted  friendship,  from  the  tirst  of 
our  acquaintance  to  the  time  of.  his  dt>ath ; 
wbich  will  appear  by  many  instances  uf  my 
frequent  company  and  correspondence  with 
him;  oAeo  lending  him  money,  and  paying  his 
leokooings ;  and  abput  two  months  bdbre  his 
ilepitl^  lent  him  an  hundred  guineas  towards 
ln^'ms  him  an  ensign's  place  in  the  guards, 
end  often,  and  even  two  nights  before  this,  he 
iodffed  with  me,  aud  that  very  nighl  I  paid  his 
Reckoning.  And  when  I  have  proved  these 
.thioip^  aud  answered  what  has  been  said  about 
jtl^eevonl,  aud  what  other  objections  tliey  have 
made,  I  doubt  nor  but  that  a  shall  be  acquitted 
•to  the  entira  satisfaction  of  your  lordsliips,  and 
M  the  world  that  hear  it. 

Beforo  I  go  u|ion  my  evidence,  I  will  erave 
leaf  e  further  to  observe  to  your  lordships,  that 
Ht  the  Old  Bailey,  when  I  was  absent,  Mr. 
Ffudii  J«fae8»«^Deckwrey  bftwe  bejen  nil 


#ied  on  the  same  indictment  now  before  your 
lordships ;  and  it  was  then  opened  and  attempt- 
ed, OS  now  it  is,  to  prove  it  upon  me  ahio ;  and 
by  most  of  them  the  same  witnesses  who  have 
now  appeared ;  and  tlicy  were  thereupon  con* 
vjcted  only  of  manslaughter,  which  could  not 
have  been,  if  J  had  Men  guilty  of  uiurdeiu 
And  OR  tluit  trial  it  plainly  appeared  that  Blr. 
French  was  the  person  with  wjiom  he  quai>> 
relied,  and  who  luHed  him.  And  now.l  will 
call  my  witnesses. 

'  X.  H.  S,  Will  your  lordship  please  to  go  on 
to  call  your  witnesses,  for  the  proof  of  what  yo« 
have  said ;  that  is  the  method,  and  then  you 
are  to  uiake  such  observations  as  you  please. 

£.  of  War.  My  first  witness  is  cant.  Keet^ 
ing,  who  was  with  me  at  Locket's,  but  went 
away  before  capt.  Coote  or  any  of  them  came  i 
aud  he  will  tell  you  I  was  witu  him  a  while. 

[^ThcR  captain  Keeting  stood  up.] 

X.  H.  <S.  Capt.  Keeting,  yon  are  not  upoe 
your  oath,  because  the  law  will  not  allow  it 
In  cases  of  this  nature  the  witoesses  for  the 
prisoner  are  not  to  be  upon  oath ;  but  you  are 
to  consider  that  you  speak  in  God's  presence, 
who  does  require  the  truth  shoulfl  be  testiiied 
in  all  causes  liefore  courts  of  judicature ;  and 
their  lordships  do  expect,  that  in  what  evidenoe 
you  give  here,  yon  should  sjieak  with  the  same 
i-egard  to  truth  as  if  you  were  upon  oath  ;  yon 
hear  to  what  it  is  my  lonl  of  Warwick  desirei 
to  have  you  cxaniiiu><I,  what  say  you  to  it?  . . 

('apt.  Kei'titig.  Aly  lord,  1  will  tell  vour  lonN 
ship  all  the  matter  Tkuow  of  it.  I  met  with 
my  lord  of  Warwick  that  eveninnp  at  Tom's 
Coffee- house,  and  we  continued  there  tili 
about  eight  at  night ;  I  went  away  to  see  for  a 
gentleman  that  owe«l  me  money,  and  after- 
wards I  went  to  Locket's ;  end  while  I  was 
ihere,  the  drawer  came  up  and  told  me,  my 
lord  of  Warwick  desired  to  speak  with  me  ; 
and  when  he  came  up. into  tlie  room,  he  said 
he  was  to  meet  w  itii  my  lord  Mohun  there, 
and  capt.  Coote,  -  a\id  he  asked  me  if  I 
knew  where  cajit.  French  and  capt.  James 
were; .  I  told  him  1  diped  with  capt.  Coote  at 
Sliuttieworth's ;  and.ia  a  while  after,  capt. 
Ctiotc  came  in,  and  about  an  hour  and  an  hal^^ 
1  think,  I  continued  there,  and  capt.  French 
came  in ;  capt.  J3ockwra  und  we  drank  togb- 
ilier  fur  an  hour  and- an  halfyaniUhey  admh^ 
about  ten  o'clock,  that  my  lord  Muliun  was  not 
come ;  and  I  payed  my  reckoning,  not  being 
very  well,  and  avuy  I  went  home ;  Mr.  Jamee 
came  in  just  beforo  1  went  away ;  but  there  wee 
no  quarrelling,  nor  any  thing  like  it  before  I 
went  away.  ' « 

E.  of  War.  My  lord,  I  desire  he  may  be 
Bskeil,  Whether  we  did  not  usually  meet  there 
as  friends,  especially  capt  Coote  and  I  ?         ' 

Capt.  KeeiiHg.  Captain  C^oote  and  my  lord 
of  Warwick  used  to  be  almost  every  day  tof 
get  her  at  that  place. 

E.  of  War.  Pray,  did  he  ever  know  or  oIh 
serve  any  dillereuce  or  quarrel  between  caplb 
Coote  and  »)€•'  .  .;.^ 


i 


999]  11  ^VILLIAM  III. 

Cftpt.  Kteting.   No,  my  lonl,  I  mtct  mw 

any  iliit>z  but  Ihe  ijreatfst  frientUhip  between 
my  lonl  of  AVar«icli  ant!  captain  tViuie  that 
could  be;  I  iva.sui(h  ihcru,  aiid  saw  I  hem  to- 
^gatlier  almoit  tFtiy  day. 

X.  H,  5,  HaTcyou  any  Ihing  further  to  ex* 
«inine  ihis  uilncss  to  ? 

E.  of  War,  No,  my  lord,  I  have  no  otht r 
qu«9tion  to  ask  him* 

X.  Jl*  S»  Who  m  yoor  next  witness,  my 
lonl? 

K.  of  War,  My  lord,  1  suppose  f  shall  not 
need  to  trouble  you  to  exmrmne  the  chairmen 
ortr  again ;  your  lordships  have  heard  wbnt 
they  can  say :  1  desire  colooel  Stauhopc  may 
be  eiLtle<l« 

[Who  it  seems  stood  by  the  Cliair  of  State, 
atid  it  %Mis  some  ivhile  before  he  could  get 
round  to  couie  to  the  place  where  the  witnesses 
were  to  Uaad.] 

L,  H.  S.  While  this  witness  gets  round,  if 
your  lordship  hos  a uy  other  %niae(»s  residy  to 
ctAud  up,  pr^y  let  hiui  be  calleiL 

E,  of  if  iir.  To  pTOf e  the  kiudoess  between 
csptp  Coote  and  uie^  I  det^ire  coL  Blisset  may 
be  called.     [Who  stood  up.] 

L.  H.  S,  What  is  it  your  Jordship  ahks  this 
witness,  or  calH  liiui  !o'? 

E«  of  War,  To  testify  what  he  knows  of 
any  kimloess  or  uiikiiidne^s  between  ca^tt. 
Cuote  uod  rae ;  whether  lie  hus  not  been  otien 
in  our  comjiony  T 

X.  //,  S*  I  lave  yoti  been  often  in  company 
with  my  lord  olVVarviick  and  cspt.  Coot«  ? 

Col.  BtUtct,  Yes,  my  lord,  J  was  very  \fcH 
acquairjted  with  both  af  them  for  a  twelve- 
month past  bt- fore  this  accident,  and  I  have 
<»Ueu  k-en  in  their  com(»aoy,  aod  nlMays  oh- 
servcf)  that  there  was  a  great  deal  uf  friendship 
and  k in dne«is  between  them. 

£  «f  War.  My  lord,  1  desire  he  may  tell 
any  particular  iDslatice  that  he  knows  or  can 
remember. 

CoL  lUiiitt.  I  remember  when  capt.  Coote 
had  his  commission  in  the  regiment  of  guards, 
he  wa»  complaining  of  the  »trei^lMne!»s  of  bis 
I  circumstances  j  be  was  to  pay  for  his  commis- 
sion 400  guineas,  and  said  lit  hail  hut  300  ibr 
to  pay  for  it  j  and  my  lord  uf  Warwick  did 
tht-u  stiy  to  him,  do  not  tioublc  yourself  about 
tb;itf  or  let  not  that  disturb  you,  lor  1  will  lake 
fare  you  shall  have  100  gmiieas,  and  be  said 
be  would  give  onler  to  his  stewartl  lo  pay  him 
^0  much  ;  and  [  was  told  afterwards  that  he 
did  so, 

£,  of  War.  I  desire  he  may  telU  if  he  knows 
of  any  other  particular  instauces  of  my  friend- 
ihip  to  Mr,  Coote  ? 

Ooh  Blaaft,  Once  when  he  was  arrested 
by  bis  tuylor  for  19^  my  lord  lent  him  five 
guineas,  and  used  very  trequently  to  pay  bis 
reckoning  for  htm. 

E,  of  War.  I  desire  hem*y  tell,  if  he  knows 
any  thing  else  ;  am)  '  i '  he  has  nut  lain  at 
my  hfd^ugs,  arid  1^  but  some  s ma  11 

time  before  this  accniviu  a»]}^icn«d» 


Trial  of  the  Earl  of  Wartnck, 

Col, B/ttief .    About tm days Ufam ihifl 
happy  accident  hap(Hi     V  ?     :•%  at  my  kt 

Warwick's  hHl^iospi,  ^<  i  racusill 

found  en ptXoote  B-dreto.^ui^  liit««M:lf ; 
ed  hiui  how  that  came  to  ptm,  and  ibe^  lol 
they  had  been  up  late  tog^her,«nd  that " 
sent  home  for  his  man  tn  dreas  him*elf  tii 
ii]H>n  which  L  did  ohfser^e  that  they  bad 
rambling  tocfciher  over  uighc ;  *td 
a  very  great  famiUarity  between 

E.  of  War,    Did  you  ohmn 
between  us  P 

Coh  Blisiet,  No,  nooe  at  all ;  I 
of  any  quarrel  between  roy  lord  of 
and  cant,  t'    ^      V  t  I  iAme 
particular  k  i  i  ween  them ; 

deal  of  friejK^uij-  k  ivnow  my  Icwt!  - 
shewed  to  him,  in  i^mying  of  i 
him,  and  lending  biro  monev  »' 

E.  of  l^^^r.    My  lord,  1 
asked,  whetlier  he  does  ma   . 
Coote  was  straitened  ibr  money  I 

Col.  BImet.     I  did  hear  capt.  CVwir' 
that  he  hiid  not  received  v.<        ' 
tather  for  13  months,  and  hi 
with  him, and  would  nn 
l>ecause  he  would  lun 
entail,  and  settle  two  or  iijh  e 
upuu  a  tvhore  he  had. 

Ait.  O eii ,    I'ro _v ,  Si r,  will  y on 
yourself,  aud  though  you  are 
oath,  answer  the  tjni*.Mn(iv  ir 
obliged  to  speak  the  ti 
sworn,  whenever  you  <     . 
mouy  iu  a  court  ot  judirnture  ;  |iri| 
my  noble  lords  here,  wiu'iher  ym 
hear  my   lord    Warwick  coifiplaOi 
Coote  ?  ' 

CoK  Bliuet,  No,  I  never  did  tic«rl 
plain  of  him, 

Alt.  Gen,  Did  you  never  hear lUe 
of  nny  quarrel  between  them  ? 

Col.  BlUsrt,  No,  indeed,  I  did  nei 
any  quarrel  tietweeu  them, 

Att.  Gen,    Did  }0U  never  hear  of 
kindness  at  all  f 

Co).  BiiMsti.  No,  indeed,  my  (nrd, 
never  so  much  as  beard  of  ibe'liiiM 
whatsoever. 

X.  H  S.    Well  then,  my  UmK  ^ho 
call  next? 

E.of  irar.     Noweol       :  v       \ 
I  desire  ho  may  be  a^l 
whether  he  itoes  ttot  ku^ 
(•hip  ihut  wafi  liotMeeii  r 
wbiit  miitances  he  can  4. ^ 

i.  //.  S.    You  are  V'  tv 
you  are  not  upon  your  ^  1 ! 
court,  and  under  no  Its 
tity  the  truth,  and  not  I 
hear  what  rny  noble  Im 

CoL  Stanhvpe.  My  I 
lord  of  Warwick  ami  • 
twelvemonth,  and  1  diil 

thcr  uc  obserf  cU  any  puriKuidr 


1001^  ^  iXe  Murder  tfHiehard  Code,  esq.  A.  P.  1099. 


[lOQf 


tween  capl  Coote  and  me,  much  about  the 
time  of  tfaU  business  ? 

Col.  Stanhope.  About  eigfat  or  ten  days  be- 
fore this  unhappy  accident,  I  went  to  wait  upon 
my  l«rd  of  Warwick  twice  at  his  kMlgings : 
Oncel  fMind  capt.  Coote  there,  one  of  them 
was  in  bed,  and  the  other  was  dressing  of  him- 
self;  Ithoueht  they  were  very  gooA  friends 
that  were  so  familiar,  and  I  had  ^;ood  reason  to 
think  so,  because  of  that  familianty :  Both  the 
times  that  I  was  there,  when  I  found  them  to* 
Mtber,  was  within  eight  days  before  the  aod- 
dsnt  happened. 

£.  of  War.  The  next  witness  I  shall  call  will 
hs  Mr.  Disuey. 

Aii.  Gen.  But  before  colonel  Stanhope  goes, 
I  desire  to  ssk  him  this  question,  whether  he 
ilid  oerer  hear  or  know  of  any  unktudness  be- 
tween my  lord  of  Warwick  and  capt.  Coote  ? 

Col.  Stanhnpe.  No,  indeed  I  did  not;  I  al* 
WSTS  thought  tliem  to  be  very  good  friends. 

Xr.  H.  S.  Will  your  lordship  go  on  to  your 
ACKt  witness  ? 

£.  of  War.  Yes,  my  lord,  there  he  is,  Mr. 
Disney;  1  desire  be  may  be  asked  what  he 
knows  of  any  expressions  of  kindness  and 
friendship  between  me  and  capt.  Coote. 

Mr.  Disney.  About  the  time  that  capt.  Coote 
was  to  have  his  commission  in  the  guards,  my 
lord  of  Warwick  received  a  letter  from  him, 
nrhcrein  he  desired  him  to  lend  him  the  100 
goioeas,  according  to  his  offer,  for  he  had  but 
^00  by  him ;  and  he  said  his  father  was  unkind 
to  him,  and  he  could  have  no  money  from 
him,  and  he  wouM  be  honest  to  him,  and  pay 
H  again  as  soon  as  lie  could  ;  my  lord  sent  for 
his -steward,  and  onlered  him  to  provide  100 
guineas  for  capt.  Coote  while  I  was  there;  aud 
sU  the  times  that  ever  1  saw  them  together, 
which  was  very  frequently,  there  was  the 
Ipreatest  kindness  between  tbem  that  could  be ; 
and  several  times  I  have  seen  my  lord  of  War- 
wick pay  capt.  Coote's  reckobiog  for  him,  and 
lent  him  money  when  he  wanted  money. 

Att.  Gen.  1  desire  to  ask  yon.  Sir,  this  ques- 
tion, thougli  you  are  not  upon  oath,  yet  you 
are  obliged  to  speak  the  truth  in  a  court  of  jus- 
tice as  much  as  if  you  were  upou  oath  :  did 
you  not  know  or  hear  any  thing  of  a  misunder- 
standing or  quarrel  about  the  time  that  this  bu- 
siness happened  f 

Mr.  Duney,  No,  indeed :  I  was  with  tbem 
toffether  but  the  dayliefore,  and  frequently,  and 
J  heard  notliing  of  any  unkindness  between 
them  in  my  life,  nor  never  knevr  of  any  quarrel 
between  tliem,  or  any  reason  for  it. 

X.  H.  S.    My  lord,  who  is  it  yon  call  next  ? 

£.  of  War.  Colonel  Whiteman.  (Who  stood 

Ibr? 

£.  of  War.    It  is  to  the  same  effect,  to  ac- 

S taint  your  lordships  with  what  he  knows  of 
e  conversation  between  captain  Coote  and 


.  S.    What  do  you  call  this  gentleman 


Col.  Whiteman.  My  lord,  I  know  my  lord  of 
Warwick  and  capt.  Coote  were  constant  com  • 


panions  together ;  they  dined  together  almost 
every  day  for  halfa  year's  time  almost;  and 
as  to  this  time,  when  this  business  had  happen- 
ed, I  went  to  my  lord  of  Warwick,  beiaff  sent 
for  by  him,  and  found  him  at  a  private  lodging, 
where  he  expressed  a  ^reat  deal  of  concern  for 
the  death  of  iiis  dear  fnend  Mr.  Coote ;  and  h« 
shewed  me  the  wound  he  had  received  in  his 
hand,  and  he  desired  he  might  be  private,  and 
he  tokl  me  he  believed  people  would  make 
worse  of  it  than  it  was,  because  be  did  not  ap- 
pear; but  he  did  but  intend  to  keep  himself 
out  of  the  way  till  he  could  be  tried  ;  and  I 
took  what  care  I  could  to  get  him  a  convenience 
to  go  to  France. 

Att.  Gen.  Pray,  what  reason  did  he  give  for 
his  going  away  ? 

Col.  Whiteman.  The  king  being  at  that  time 
out  of  England,  and  so  the  parliament  not  sit- 
ting, he  said  he  dkl  not  love  con6nement,  and 
had  rather  be  in  France  till  the  parliament 
should  meet,  and  he  might  have  a  fair  triaf, 
which  he  thought  he  should  best  have  in  this 
House. 

Att.  Gen.  But  nray.  Sir,  consider,  you  are 
bound  to  tell  trutfi,  and  the  whole  truth,  in 
such  a  case  as  this :  are  you  sure  there  was  no 
unkindness  or  quarrel  l»etwern  my  lord  War- 
wick and  capt.  Coote  about  this  time  ? 

Col.  Whiteman.  No ;  I  never  knew  of  any 
quarrel  or  unkindness  between  them  in  all  my 
life. 

X.  H.  S.  My  lord,  have  you  any  more  wit* 
nesses? 

Earl  of  War.  I  have  a  great  many  witnesses 
more  to  the  same  puriiose,  but  I  tfiink  I  need 
not  trouble  your  lordship  with  them  ;  only  I 
would  call  a  person  thut  has  been  mentioned, 
that  is  my  steward. 

L.  H.  S.  What  is  his  name  ? 

Earl  of  War.  Edmund  Hayinund.  (Who 
stood  up.) 

L.  H.  S.  What  questions  do  you  ask  him  ? 

Earl  of  War.  I  desire  he  may  tell  what  be 
knows  of  any  friendship  between  capt.  Coote 
and  me,  and  what  particular  instances  he  can 
give  of  it. 

Roffmund.  My  lord,  1  know  that  my  lord 
sent  fur  me,  aud  said  capt,  Cooie  had  occasimi 
for  100  guineas  to  pay  for  a  comiui&sioii  in  the 
guards,  which  he  had  not  money  to  make  up  ; 
aud  1  know  that  they  were  constant  compa- 
nions every  day,  did  eat  together,  and  oOcn  did 
lie  together,  and  I  did  provide  the  100  guineas 
for  him  ;  and  I  always  did  ohservif  that  there 
was  a  very  great  friendship  between  them. 

Earl  of  War.  My  lortl,  the  next  witness  I 
shall  call  will  be  Mr.  French,  who,  1  hope, 
having  been  tried,  and  had  his  clergy  allowed  . 
him,  will  be  a  good  witness ;  I  should  be  sorry 
to  inteqiose  any  thing  that-  would  be  a  hin- 
drance to  your  lordships'  giving  judgment  in 
this  case  presently  ;  he  is  able  to  give  your 
lordships  an  account  of  the  whole  matter ;  and 
though  1  hope  1  have  no  nerd  ofcalliiigiitm  as 
a  witness,  yet  I  humbly  olTcr  it  to  }our  lord- 
ships. 


#00dJ 


UWILLJAaM  iil 


Trial  oftke  Earl  (^Wartmch 


[Km 


L.  K.  5.  What  say  tlie  counsel  on  the  olker 
aide? 

Earl  of  War,  My  lord,  I  (io  not  insist  upon 
«t ;  I  think  I  have. no  need  ef  it. 

X.  if.  <S*.  Your  lordship  uiust  judge  for 
joiurself,  liow  tar  it  is  for  your  advantaga  Ui 
^ire  tliat  this  matter  sIhmiIJ  be  debated. 

Earl  of  War.  1  do  not  desire  to  taVe  up  your 
^onlships'  time,  thoug^b  I  am  very  wdl  ad- 
vised, that  he  is  a  good  Mritness  in  law. 

Earl  of  .R(N;il.  I  apprehended  it  the  duty  of 
^e  king^s  counsel  to  make  oiyectio.!  against 
«uy  witness  that  should  be  produced  by  the 
jpriaoner ;  I  am  loih  to  give  your  lordships  any 
unnecessary  trouble,  yet  I  own,  that  I  am  noc 
fiatisHed  that  a  witness  should  be  offered  and 
rejected.,  though  the  olijectiou  be  not  made  and 
iu:gued,  by  my  lord  the  prisoner  at  the  bar :  if 
a  witness  be  offered,  and  they  think  they  have 
an  objection  against  him,  if  they  do  insist  upoft 
it,  it  will  occasion  a  debate,  jiud  then  we  must 
adjourn  into  the  House  of  Lords. 

X.  i/.  iS.  Jt  is  not  insisted  upon  by  my  loni, 
as  1  apprehend.    My  lord  of  Warwick,  have  ' 
you  any  other  witness  you  would  have  calkd  ? 

Earl  of  War,  I  desire  to  ask  BIrs.  Amy  a 
question  or  two.    (Then  she  stood  up.) 

X.  if.  iS.  What  does  your  lordship  ask  her? 

Earl  of  War,  What  she  remembers  passed 
at  her  house  alK)ot  my  sword,  or  any  thing. 
.  Mrs.  Amy.  My  lord,  when  I  crane  into  the 
room  where  my  lord  of  Warwick  and  capt. 
J'rench  were,  in  our  house,  I  siootl  by  capt. 
French  while  his  wounds  was  dressing,  and  I 
saw  my  lord  ol' VVarwicU's  suord,  and  lookrd 
'jpon  ir,  and  iho  i.dt  and  all  the  shell  was  i'nil 
ot'ldoud,  and  it  ran  down  tu  the  botlun)  ul*  llie 
Mvord  blade. 

Kill  ot' If '<.;•.  I  drsiio  slift  may  br  asked, 
iiou-  soon  thai  was  after  my  romins^  in  ? 

-•Jrs.  Amy. 
my  I"rd  <*an;e  m. 

Earl  of  \Vm\  I  desire,  she  may  sj)cak  uliat 
sort  of  sw.'jjd  it  was  at  the  hilt,  whether  it  were 
open  or  cle.sc  ? 

Mrs.  Ar^\i,  Indeed,  I  cannot  sny  ;  hut  the 
hill  was  fuil  of  blood,  the  slicll  of  it,  and  it  ran 
ilowii  to  the  bottom  otilic  liiiide. 

I..  II,  S.   H.1%:  M«ur  lii;dslii;>  done 


cf)ually  guilty  with,  them  who  wen  an  tb 
other  side,  especially,  I  engaffiog  jMrtaculiilj 
with  another  of  llm  tlirec,  that  were  of  tW 
other  side :  that  question  I  desire  my  couanl 
may  argue,  wlieUiqr  I  be  equally  guilty  with 
tliein  that  were  on  the  otiier  ade,  and  wli% 
notwithstanding  death  happened  in  tbeoMi, 
yet  were  found  guilty  onlj  ot  maoala^gbtcr?  ■ 

L.  Codolphin,  My  lords,  it  has  been  notd 
by  my  noble  lord  at  the  bar,  that  bis  couud 
should  be  heard  about  Mr.  French's  being  mlr 
ness,  whether  he  should  be  a  witness  or  bo;  1 
think  it  would  be  much  for  tlie  clearing  of  tk| 
fact  one-way  or  other,  if  the  rvidenoe  of  tte 
witness  could  be  heard ;  but  whether  he  op 
be  heard,  or  not,  according  to  law,  is  a  qotttiii 
that  must  be  debated  aiuongst  your  lordships 
after  your  lordships  have  heard  the  eouuiri  m 
both  sides,  and  perhaps  the  opinion  of  Ifef 
judges  upon  their  arguments ;  aqd  thercfinc  1 
think  we  must  adjourn,  to  couskler  whdbf 
this  matter  shall  lie  argned  or  no. 

L.  H.  S.  What  say  you  to  this  matter,  11^ 
Attorney  ? 

Ait.  Oen,  My  lords,  I  should  agree  with  dp 
motion  that  is  made,  if  there  were  any  tUif 
insisted  upon  by  the  prisoner  ai  the  bar,  tbH 
would  bear  a  questkm  or  argument ;  birt  M 
lord  of  Warwick  himscli'  has  waved  iheoi^ 
jection,  and  so  I -think  there  is  no  need  itr  uf 
arpfument  on  our  side. 

L.  Godoljihin,  1  would  agree  with  thent- 
tion  that  was  matlc  fur  adjourning,  inonkrlf 
thl»atc;  but  I  desire  to  be  thus  uuderitood,/ 
he  thinks  it  for  hi>  advantage,  that  this  uiuuii 
hhonld  be  heard  for  him,  which  he  kuoubUsil, 
wlu  titer  it  be  or  be  npl ;  then  I  do  snp|Hi>e 
yonr  lm'dslii|)s  will  adjourn,  ti»  consider  oi  itii 
\onr  oun  house  amun<;*st  >oU] selves^  ii  will 
into  th( 


I  not  be  proper  to  enter  into  the  debate  here,  oor 
Ir.  was  a  quarter  olau  hour  after    there  neither,  till  you  know  w  hat  ohjectiuD  tlie 

counsel  for  the  kini>-  make  a;>ainst  this  muo'i 
heini;-  an  e\idenee';  and  theretbre  Mt?  uDulil 
Know,  it  is  hi  to  be  known,  uhethrr  lu^'  lurd'B 
v.aving',  or  not  iusislii^^  upon  this  num's  l»U- 
mony,  be  {'ire  auil  AoJuiUary,  and  absiduie;  tf 
vWieiber  it  be  onl^  in  rcnpr-ut  to  the  truiibttf  it 
may  |)nl.  the  hou  ie  to  for  the  debate. 

/,.  11.  S.    My  lord  Warwick,  bAiwe  cf  ml 


Karl  01*  M'urwii  k.    My  Um\,  I  will  oidy  take  j  noble  lords  observe  you  iia\e  desired  Mr.  ViiHtu 

should  be  exaniinid,  and  that  your  counscinuj 
be  heard  to  thai  point,  wheilicr  he  be  bv  law  • 
witness,  or  not?  Several  of  my  lords  fliink  it 
reasonable,  counsel  should  be  heard,  vlu'lhcf 
iic  be  a  witness  or  not;  or  at  lea.»t,  tiuttJAt 
<)uesiion  slioidd  be  coni^idered  amongst  tlua^ 
selves,  it"  insisted  upon;  thercfoie  ytur  lord- 
ship is  to  declare,  whether  you  do  insist  upM 
I  it,  or  desire  lo  wave  it. 


none?,  that  tlie  three  ji^entb men  that  were  on 
ihc  other  side  weie  tried  ai  the  Old  l^aik  y,  ai;d  '. 
foiMul  •;nilty  only  ot'mansbnuhler  ;  but  now  1  ' 
hei'.i^  on  bi"*  side,  and  not  h.ivin'^  any  uKiiicc 
to  him,  b'ji  aiv\iiys  a  ^T'eiit  deal  ot'  fiieni!:Jiip, 
I  submit  it  to  3  our  lordsbip*;,  whctbi-r  1  can  be  1 
thouj^'lil  any  v.»vys  GTuilty  ot   bis  deatli ;  audi  j 
hnmt'Iy  lie;;(  }  our  lordsbips  will  hear  my  coun- 
sel, ii' \  c  u  uKske  any  doubt  of  that, 

L.  ft.  S.  What  *is  it  your  lordship  would  Earl  of  War.  I  wholly  sulmiit  myself M 
haveroni.^el  bejid  to?  your  lordships;  but  as  I  am  adriseil  by*F 

Eurl  (if  II .  /\/tc7:.  To  this  case,  my  lord,  \  counsel,  I  hope  he  is  a  good  witnesaj,  anill^ 
Whether  ll:» ; .■•  biinjj  six  pei*sons,  three  of  a  .  a'uc  my  couni>el  may  he  heard  to  that  poiaL ■ . 
hide,  one  is  killed,  and  I  brin^'  cnL;:ai;ed  oi»  the  j  Jtt.  Gen.  My  lords,  'u\  truth  1  ackuuwjtdp^ 
hi:le  of  bim  ibul  was  killed,  tbc  tfbree  on  the  I  according  to  the  method  of  law,  the  objceM^ 
other  si«!e  wave  been  tried  for  tbc  dealli  <»f  that  .  ou;>ht  to  come  of  our  siile  ;  for  I  tbink  »efc»*« 
man  ;    wht.ii.LT  J,   ^rho  was  of  his  side,  he  |  very  good  rcu^u  to  oppose  that  gCMtlc1i# 


^j 


»3 


J^T  the  Sturdcf  of  Richard  Cootey  f.^-^.- 


a:  D.  1C99. 


i_100G 


i«f  a  wilnpsii  in  litis  case,  even  upon  that  j  poiiil  of  laiT :    lie  has  been  convicted,  in  oiie 


?«:tion  wliicli  my  loril  h:is  made  liiin'^cir, 
m  the  consideration,  that  he  has  been  luMnd 
itj  of  manslaughter  for  the  death  of  this 
T  person.  It  is  true,  upon  his  prayer,  clerpcy 
»  nHovrchl  liim,  but  the  bnniing  of  the  hand 
sTe«spile<l,  and  he  was  not  burnt  in  the  Iruid, 
I  he  is  not  paiiluned ;  and  hoiv  far  can  he 
ft  witness  in  this  cose,  is  the  objection  :  if'u 
n  convictetl  of  felon}',  that  is  within  clergy, 
lys  his  cIcrgA',  and  it  is  allowed  him,  hut  fie 
not  bumol  in  the  hand,  nor  pnnb)ncd,  wc 
jNvliend  he  is  no  witness;  and  that  is  the 
ection  we  make  against  bis  testimony  to 
ur  lordsbips. 

L-  H.  S,  My  lord  of  Warwick,  you  hear 
lat  is  said  by  way  of  objection  against  this 
id's  bctnc  a  witness,  miat  say  you  to  it  ? 
Earl  of  War,  For  matter  of  law,  my  lords, 
am  not  capable  of  speaking  to  it,  but  1  de- 
re  rov  counsel  may. 

L,  A.  S.  That  which  Mr.  dttomcy  proposes 
p  way  of  objection  is  matter  of  fact,  and  the 
latter  of  law  does  not  arise  till  the  fact  be  set- 
e4,  which  mnst  fall  within  vour  lordship's 
m  know lef Iff e,  who  produce  liim  as  a  wit- 
en,  and  therefore  you  must  answer  to  that 
irt  yourself. 

Earl  of  W'lir.  I  desire  to  know  of  your  lord- 
iup*,  if  a  man  be  convicted  of  felony  that  is 
rinin  clergy,  auti  prays  his  clergy,  and  it  is 
Apired  him,  Init  the  burning  of  the*  hand  is  re- 
fifed,  and  there  is  a  warrant  for  his  pardon  ; 
>Mier  he  cannot  be  a  good  witness :  that  his 
lofry  was  allowed,  and  the  burning  ofliio 
Mnd  respited,  I  have  the  record  here  to  s\\*w, 

L  IL  S.  My  lords,  my  noble  lord  at  tlie 
IV insisting*  upon  a  warrant  for  a  pardon,  I 
ivt  acquaint  you  with  something  that  hnp- 
med  during  your  lordships'  sitting  here  this 
hy;  since  1  came  hither  a  privy  sl'al  was  de- 
"Wfd  to  me,  in  or»lcr  to  pass  a  pardon  for  t!io 
xniing  in  the  hand  of  3Ir.  Frcncii,  for  thf> 
^itoslauffhter  for  which  he  was  cuniicted  ut 
^  CNd-Bailey ;  so  fnr  I  can  acquaint  your 
■iMips  as  to  matter  of  fact. 
Earl  of  War.  My  lord,  I  am  ad»  iic  il  by  my 
tinsel,  that  he  is  a  good  uiinrss  uiihuutsi 
>rrion,  or  Vtthout  burning  in  the  h:uul. 
L.  //.  S.  What  sny  you,  i»ir.  A tti. nicy,  to 
elaw?  Now  you  understand  what  thii  llirt 
If  V  is. 

Ait,  Ceu,  Yes,  my  lord  ;  and  I  do  a[»i)rc- 
nd,  with  sulimis^iioii  to  your  lord,  hip-s  judg 


n*spect,  for  the  very  ofl'en^  tor  which  the  no- 
ble lord,  the  prisoner  at  the  bar,  stands  in- 
dicted :  Though  not  in  the  same  degree  a» 
the  indictment  sets  it'  forth,  vet  it  is  for 
tttc  same  fact.  Upon  this  inuictment  Mrl 
French  was  indicted  at  the  sessions  at  the  Old 
Kailey,  and  tlicre  he  was  found  guilty  of  man-  , 
slaughter ;  upon  which  he  prayed  the  benefit  of 
his  clergy,  which  was  allowetl  him,  but  he  was 
not  burnt  in  the  hand  :  thus  stands  the  case  ii» 
fact.  Now,  my  lords,  the  allowance  of  clergy 
of  .itself,  does  not  discharge  thu'paity  from  the 
oirence,  so  far  as  to  set  him  '  rectus  in  curia,* 
and  make  him  in  all  respects  a  persoh  fit  to 
have  the  hcneHt  and  privileges  of  a  *  probus  et 
^  legalis  homo,'  till  he  has  passed  through  those 
methods  of  setting  himself  right  in  the  eye  of 
the  law,  that  the  law  hath  prescribed  ;  and  in 
order  to  set  this  matter  in  its  true  light  before 
your  lordships,  it  will  be  uecessary  for  me  to 
open  to  your  lordships,  as  far  as  1  can,  the  na- 
tore  of  this  benefit  of  clergy,  and  what  advan- 
tage did  accrue  to  the  party,  by  havin<r  that 
benefit  allowed  hiui,  and  likewise  what  benefit 
he  had  by  the  act  that  enacted  the  burning  in 
the  hand',  which  was  the  statute  of  the  4th  of 
11.  7.  And  by  that  act  the  burning  in  the  hand 
was  to  be  of  no  more  effect,  but  only  to  shew 
that  he  had  had  his  clergy  allowed  him  ;  and 
that  unless  he  were  within  oi*ders,  he  should 
have  it  no  mure  than  once,  before  that  act  of 
parliament,  a  person  might  have  had  t!ie  bene- 
fit of  clergy  several  times,  but  (hat  act  limits  it 
as  to  fiuie,  (hat  it  shall  l>e  but  once  :  and  there- 
fore, in  onler  to  the  having  of  it  known,  whe- 
ther a  man  once  had  his  clergy  alloweil  iiiui, 
thai  did  not  produce  his  orders,  that  net  pro- 
vides there  .sh:ill  be  a  mark  set  upon  liiiij  at  the 
time  of  the  allowance  of  lliis  clergy,  as  a  token 
that  it  uas  allovved  him,  and  he  was  never  to 
have  it  alluived  afterwards,  but  even  at  iliat 
tiisw;  be  was  to  br  deliu-red  over  to  the  ordi- 
iKiry  to  make  his  purgation  ;  but  since  tfiat  act 
se\ei-ul  statutes  have  been  made  about  this  mat« 
t'.  r.  1  shall  mention  one  that  relates  to  >our 
lo!d:!ii;^s,and  tlr.it  is  the  statute  of  Edward  the 
GL!j,  wiiich  iiidLid  4loes  enact.  That  in  case 
V  lif  re  a  pet  r  is  couyicted  of  felony  vtiihin  the 
b(  liill'.  K-l'  eU.T[.'y,  he  shall  be  discharged  willi- 
cMit  i>-  i:.'^  burnt  in  the  hand;  but  then  and  thus 
tlie  law  btood  nil  the  statute  of  Hi  KIIk.  cap.  7, 
by  ubidi  it  is  cuarted.  That  aArr  the  burning 
in  tli'j  hand  I'le  pii«<oner  shall  be  delivered  to 


eoty  that  a  man  convicted  of  felony,  tliou^h  i  the  ordinary,  but  he  shall  l>e  discharged  ;  by 
( intiys  his  clergy,  and  has  it  nliuucd  him,  |  viitue  of  wfiich  act,  nfier  binning  in  the  haiut, 
t  IS  not  barnt  in  the  hand,  nor  hu:s  any  pur-  the  prisoner  hath  ina«te  full  satisfaetion  to  the 
n,  can  Iwno  witness.  luw,  without  thai  soit  of  purgittinn  which  uas 

L.  H.  S.  That  is  the  case  upon  which  you  hJmii  letpiisitetu  be  made  ;  but  till  he  be  burnt 
e  to  form  your  objections:  here  is  a  iiKiU  '  in  the  hand,  or  has  hi^  pardon,  he  is  not  to  be 
odiiceil  as  a  witness,  who  has  been  c(»t:%lctid  ,  discharged  ;  it  may  be,  he  may  l»c  bailed  out 
felony  within  the  benefit  of  clergy,  h:is  by  the  judge,  in  onh.r  to  gel  a  pardon  ;  but  still 
afed  bis  clergy,  has  had  it  allowed,  but  has  '  he  remains  in  ttatii  qnn^  as  to  his  iN'ing  a  wit- 
t  been  burnt  in  the  hand,  nor  pardoned.  :  ness,  or  any  thing  ot  that  nature  \   his  erettil  is 

Ait,  Gen,  Then,  my  lords,  with  humble  sub-  !  trone  till  itbe  restoied  by  the  king*s  pardon,  oi 
ianoQ,  apon  the  matter  of  fact  so  .«tatcd,  I .  his  undergoing  the  pnni*,hment  that  the  law 
■ielbtt  objectiODy  That  be  is'uu  witness  in  i  reipiircs  ;   and  no  man  wmM  say,  that  wlieie 


ii.iraiuAif  m. 


«  eoBfidiM  of  fchuy  awlii-.-|  tlM.pitf  convicteil  siiall  be  burnt  ini 
raiur  ia  the  JmimI,  or  pwdon,    thua  wt  the  net  ttoes  apiMint,  it  does  i 


MeBM 

*»^        ^  ...    -        ' 

CM  M  ft  witMM ;  he  RMiiM  jMt  as 

hewMMlblrt,tfa6Cop?igliottf—Miin>apQa  liini, 
wJUeh  dinUedliini  to  be  a  «iUM«t«  ebdthftt 
M  euboiit  t»  tear  lordikiips  ••  the  eftie  of  tbie 
MMBi  etpiaia  jTlreeob- 

iilL  Oei^  Hjr  lonb,  if  voor  lotibhipft  pkeee 
JoflMreuMoae  word  ef  toe  MnMiiiie:  eorett 
CMoniM  lew  thece  weold  heoedifiedtv  el  ell, 
ttftt  a  fmmm  towncmi  ef  IWoej  mbio  the 
bMetttefoleigjr,nB|^  " 
€obM  he  moiwammi 
•liil^ee  that  kite  heia  Matmiedbj  Mr.  It- 
toniej,  nnkoi  thife  he  en  aatmJ  hpnhif  fai  the 
l^Mid,  or  a  pardoa  ibr  that  buniiir  ia  the  head ; 
iarokeaiMlhepraleodcilttluil  eaeeearated 
.efleleBycaahaateitlcdjMawilBm.  Ifaiy 
Jeid of  ITaniktidoes  iaitaliVOQ  hkefUbaw 
aa  natter ofv^ht,  we,  ibrthhhiiy,  doiMirt 
«ppa  k,  thai  Ihere  ii  DO  light  at  all  &  the  CMe ; 
Iftr  FtaehiMMt  hetahea  to  bo  oae  eenvictod 


TM  ^ihe  EMd^WmmUlk. 


Of  moBjjf  Ban  doi  wrhhwhi  i 
horalof  Jh  the  haail,  er)iai3oB| 

eaphea 


inrhnr,  thaihe 


1LH.8.  Mj kadi, the  Uag^coMwl have 
aMed  thevolMQtiaaiWhatiijreiurploiooreto 
have  done  hi  ttf 

Barlef  JRmrt.  I  wifpeoo,  my  lordi,  thetit 
wilt  be  aefowary  to  hoar  what  aoewer  aqr  Iwd 
of  .Warwick  gmt  to  this  olaeetieo. 

In  ITS.  Is  it  your  loidriapi*  fdoasare,  thaa, 
thstthecooDselssngnedforiiiy  lordWarwick 
'  he  heard  wbat  they  Hare  to  say  to  this  matter  f 

Lords.  Ay,  ay,  ay. 

J  Then  sir  Tliomas  Powys  came  to  the  bar, 
stood  by  the  earl  oT  Warwick,  sod  spoke 
thus.] 

Sir  T.  Powii.  May  it  please  your  lordships, 
I  am  by  the  order  of  this  honourable  house  as- 
sigoed  of  couusel  for  tliis  ooble  lord  at  the  bar. 
Id  point  ofhiw ;  and,  my  lords,  as  to  the  pr^nt 
question  that  has  been  spoken  to  by  the  king's 
counsel,  I  am  a  little  surprised  to  hear  it  should 
be  wondered  at,  that  my  lord  oC  Warwick 
ehould  in^t  upon  it,  thattbis  gentleman  should 
be  examined  for  bim  as  a  witness,  because, 
with  bumble  submission  to  your  lordships,  I 
think  the  authorities  of  law  will  make  for  the 
opinion  on  the  other  side.  Mr.  Attorney  Ge- 
neral says  true,  The  first  statute  that  was  made 
for  biurning  in  the  hand,  was  that  in  4  H.  7. 
Before  that  time  the  beneifit  of  clergy,  even  for 
murder,  was  used  to  be  allowed  upon  the 
prayer  of  the  party,  and  he  was  thereupon  de- 
livered orer  to  the  ordinary  to  make  his  purga- 
tion ;  and  that  not  only  once,  bu(  totia  quoiies, 
kt  bim  demand  it  as  oflen  as  he  would,  and  as 
otlen  as  he  offended  it  was  allowed :  This  was 
thought  such  a  privilege  as  ought  to  be  restrain- 
ed ;  that  statute  of  the  4th  of  Hen.  7,  Ukes  no- 
tice, that  an  ill  use  was  made  of  it,  end  there- 
fore does  ordain,  that  it  should  be  allowed  no 
more  than  onee,  unless  to  persons  within  orders : 
And  as  a  means  to  know,  whether  it  hsd  been 
haftwo  allowed,  or  not,  the  act  does  direct,  that 


r  tJiecaie  ^  ;l  ¥oc9  nut  tmpoiJ 
the  party  iis  a  iiunislimciit  hr  the  ofli 
00^  aaa  work  of  distineliouH^  lUal  if 
eame  m^iii  htifbre  the  court,  aui)  be 
vieted  ol  the  like  ofFerir^*,  ihoM  |)ra; 
neflt  of  clergy,  ibea  upuo  inspcctiim 
bekOOWii,  1%  k<^iU4>7  before  he  bailhefii 
his  clsi|fy  f^r  not  i  mid  so  &liK>d  llifi  i 
_jMlt  alteration  as  to  ilie  m&UDer  nf  de 
,tho  dkiiiuiil  over  10  the  ordinary  ta  i 
fWUytiain^  wiili  witlcli  ihe  ieiufi«riil  h^ 
mamier  of  doing'  tbercof,  did  nui  inicft 
and  therein  cotifiisted,  witji  re»;pf  ct  to  t 
ter^  I  h  e  bi  tie  B  l  of  clergy ,  A  t  i«nr&rila 
itaiute  of  Eiiwartl  the  ^tb,  ibe  peers  ^ 
em  pled  from  lUe  burning  in  the  b»i 
lUto  comes  Ibe  act  lUat  we  rely  upon 
is,  that  fit  the  l&th  of  Elm,  tUst  vstkm 
tlieforiDer  act  i>t  tbe  4tli  ot  H.  7»  wLiicb 
deted  the  burninj^  of  tlte  hand  for  the 
aforesaid^  but  left  the  party  to  be  Mir* 
lo  llie  on  Unary  to  malic  Lis  [»nr^9kicx 
was  jbund  lo'bo  a  ii)»ieer  attended  w 
abuses,  ai>d  upon  the  tcfiirmniion  th 
to  lie  sbolishedf  anil  taken  away,  bfcao 
only  an  outfvard  ;ipiiea ranee  aud  uhew 
Ration,  and  was  of^en  the  ocCJii»i<jii  ofTC 
perjuries  ;  iberefore  it  is  fakeo  loiiJI 
and  by  Ibiv  act  tW  pa.rty  shall  hate  tbi 
ofekrgy  witliout  rtiiikiii^  purgikttoiit 
as  if  he  nad  actually  ma4e  it.  But«  m 
tlic^rc  is  siill  \ci\  sonoethin^  thtt  the 
quires,  which  is,  that  he  sboidd  be  iki 
in  the  hand  ;  and  if  he  be  notberntiaU 
or  at  least  pardoned,  he  is  not  in  that « 
that  the  law  calls  for  in  such  a  case,  tti 
Rectui  in  Curia  :  If  he  be  burnt  bi  ih 
or  pardoned  by  the  kinff,  they  agree 
other  side,  tliat  he  may  ae  a  very  ffoodi 
My  lords,  that  act  of  parliament  o{«|0te 
does  impower  the  court  that  tries  toe  a 
and  before  whom  he  is  connctsd,  not 
burn  biiu  in  the  hand,  pursuaet  to  tb 
Hen.  7t  but  also  to  detam  him  in  pria 
yearalker;  but  yet  I  think  that  dodii 
nify  any  thing  one  wa^  or  other  to  reitB 
or  not  restore  nim  to  his  credit ;  Isr  1  d 
bnminif  in  the  hand,  which  is  a  aiiri 
famy,  was  never  intended  as  a  meaas,  a 
than  imprisonment  for  a  year,  of  rtt 
man  to  1ms  credit ;  it  was  only  to  sbff 
hii  clergy  once,  and  should  nate  it  a 
Tlie  allowance  of  clergy  by  theatatula 
operates  as  a  pardon  $  only,  seith  |ha 
he  shall  not  be  deliTeiVd  out  of  prwaal 
is  burnt  in  the  hand,  according  to  AM 
Hen.  7.  Nobody  can  say,  that  the  j| 
in  prison  for  a  year,  which  the  i 
though  burnt  m  the  band,  w 
ingof  credit,  hare  operated  4 
but  that  we  insist  ujion.  is.  Thatch 
ofclergy  sets  bim  right  in  csar 
tion  is  abolished,  and  is  Um  aw 
had  undergone  tbeoeremotiiilj 
porgation.    It  ia  thoaMiaii 


beeo«(.|li 
wod4p#S 
loaaiMidl 


Jm  tke  Jfiw*  «t  fa^ 


;hZ 


c  y  .*-'. 


A.  Dw  :f^v 


I.'^M 


if  liiblHiftft-f'f'ni^  r'ci  ?^'±.:^    •'•• 
tkjl  W  K  t^  h2»*  rii*  sLOtt  !•:  :»rr: 

imI  fwiigitow  li]>£  2fenES  iRiiof  :    L:>r 
alloirtcoe   %a    neiii   in   is.»    »r^ 

I  htTe  da»>  le^W  I2*e  lift :  u*:  r»*  :$ 

If.    Tbe  AflKb'^-SMf  L?e  x}  »ci  ^ 

ciBetittt  is  ve7  w*--  k»?rT  itt-itc 

f  ibe  law.  IB  Vbt  iv€S^  rtvjr. «  :n 

liH of  Biaa«4i  ittif  .  &m:  r«  ?»'«T»i 
t  •»!'  bfft  drrfT  ;'  tie  ;y*r«  li  '•it.: 
We  llwtf  jtt^'^TDRt  sieres.  i^?  lH 
15  emerH  a  «m  reeer%1 :  lif  lit::  i:: 
ine  bronchi  ic«:sit  his.    :  cuDt  t:- 
Um.  b<m  fir  be  b*d  baj  Li*  c^eTJ  • 
p  tiatute  ^  ibc  5d  of  Hea.  r.  a-  V7- 
Ue  ooiwitbscus^is^  m  cDe-nctk-z.  if  * 
hftfe  cot  bad  hii  den^' :  iiA  -.3  ih  3  * 
M  atif^ud^e*).  thai  tbV  ptrty  bi":-^  ' 
is  clergy,  b»  sb«oM  ba^e  lie  wi* 
iftheeoart  bad  «jriered  e^ery  thias 
ally  exeeoted,  whicb  ooi'b!  thcrrapfto  • 
? :  And  sardy  tb«r  ii  ciji  be  ao  ques-  ; 
iher  a  man  sbail  be  a  witneaii^  or  no. 
bi«!  his  cier;^  allowed  ?  It  is  «n  en-  J 
n  reconl.  Th^t  tlie  book  was  admhiis-  - 
irm,  zaA  that  be  read  as  a  clerfc  :  for  . 
bas  done  as  mnch  as  be  can.  prayed  \ 
It  of  his  dergy.  and  bail  it  allovtti,  j 
is  entered  upon  record.  The  respiting  ; 
'ninir  of  the  Itand  till  the  kind's  par-  i 
Gained,  shall  not,  sure,  pnt  bim  in  a 
MKtion  tbaii  be  vouM  have  been,  if  he 
kit  J  been  burnt  in  the  liand.  y\\  lords, 
\  my  hand  a  book  which  is  of  very 
■em,  and  that  is.  The  Reports  of  my 
'  juttice  Hobart,  wherein  be  declares 
n  in  this  point,  and  for  whose  opinion 

of  our  gown  erer  bath  testified  a  very 
eration  and  respect ;  the  case  is  that 
snd  Williams,  wherein  my  lord  Hob- 
ipoken  80  fully  to  this  matter,  that  I 
light  to  pnt  an  end  to  the  question  : 

the  statute  of  £liz.  appointing  the 
1  tlie  hand  without  purgation,  does 
I  a  statute  pardon  to  all  intents  and 
and  the  party  having  now  the  be- 
lis  clergy  allowed,  is  in  all  respects 
ime  cradition  as  if  he  had  been 
:  that  is  the  opinion  that  he  holds 
it  that  case :  I  need  nut  trouble  your 
with  reading  all  the  particular  words 
les,  but  only  those  which  relate  to  the 
f  in  question,  immediately  before  your 
He  delivers  his  opinion,  '*  That 
r  S)>eak8  wonis  of  accusation,  rcftect- 
i  man  for  any  offence  fnr  which  he  was 
ad  conricted,  and  bad  had  his  clergy 
in  action  lies  as  if  he  had  benn  totally 
from  it ;  it  is  not  the  burning  in  the 
t  the  altowancc  of  clergy,  that  sets  him 
Hs  ensdif  id  the  eye  of  tho  iavr.  and  he 
XIII. 


"•»•  «•?  .1"  ;'f  rsK  1^  'tf"^  i*  '-S  i-.'  ■  uNii.  . 
-  P:»*»i^r  :>f  scir^rf  «  ■'.  :.:\-  :•*-  ^  • 
ts»f  vcjbr  vyT'^r-sftt^  •.-  :>f  *"s;  -Tf  • :  :  :  t  .%-^*  i. : 
rriXiT.*   :<f  «i;.i>     nt" i.-sM a-yj*:   »  •    :".-«;•  :<  r* 

tr'.tc|-r"  -  kf  a  rr«  ^n^-^  :>;  r.>.r    o;is:: : :.  Se* 

iir*  lirf  nK^f?:  .-c  :?»f  scx:r:f,  t"  v^*.  \  ^  ij» 
»T  -yzra. ;  :!••  t^^j  as*\  T4.-;iX!  :;.i*  ^;•.r^■  ^i;  : 
':«r  :^»  ST-r.^r-  s'^'«:  "•■'''*'*  *??***•  "•*  *  "^  ran  ••i 
ii«  T>^tDer:t.~i>wc  it?  z:-jc!s  ii  ii  i.^t-  r*j»::::v  cf 
7'-:  3cf?*«L  t--:  TvC.-cz  s  s^ark  r»^  r. .-':.!>  si.aTha 
rstr  ^Te  t**  c^-^ry  ^'.''S  cree."  Taoe*  an? 
Xi^'*ir\  w^ri»:r.  ;:..*  rift*:  #0 that  t^'eftatwie 
«"  E  -J  i?::b  axv.sh  ^-jrvaii-xi.  mix  pies  the 
pany  iX  ibe  Sf::-^!  ibccWf.  as  if  he  !:?..!  sr^n^e 
ir"*.*j^b  it-  aai  iirRead  cf  dili^frirc  tbr  p'ly 
to  r»e  cr-:r.a-^- 10  m:-ke  h:<  rurgfai.-^n.  i:  sa\'« 
be  »bil:  t*  c/-ferfd  o  j:  of"  ;.ri>on :  but  lesfit 
2ii^L:  seea  to  repeal  the  *:a;ute  v^  Htn.  7.  as 
?*>  S'..rr.irj:  :n  ibc  ban.?. ;;  a.*«iss  "  Heipsr  burnt 
\z  :he  ba"  ^.  arertr»*irc  l*^  the  statute  in  that  W- 
ha-t  prt>fii«>d  :*  \\\  me  statute  of  lien.  7,  he 
was  drst  to  bt  bunj  in  the  hand.  aiiJ  then  de- 
!Hf  :>ed  to  the  onl!nar\-  to  make  his  purt;aiion  ; 
but  by  ;be  statute  of  tiiz.  lie  is  tirst  panlonod 
bk  crime  by  bein^  allowed  the  benefit  of  his 
r*.er^.  witllout  making  liis  punration.  and  af- 
terwarJs  to  l*e  burnt  in  the  hand  before  he  be 
ilel'.vered  out  of  prison ;  so  that  the  burning  iu 
the  hiiiid  is  on  y  a  condition  ^recedtni  to  hi<s 
getting  out  of  prison,  not  to  his  being  restored 
to  his  credit :  the  king  may  pardon  thebumiii*^ 
in  the  han:l  undoubtedly,' and  he  has  gone  a 
great  way  in  tliis  case,  fur  he  hath  given  a  par- 
don us  far  as  the  priry  seal,  and  that  is  suHi- 
cient  to  shew  his  gracious  intention  of  pardon- 
ing it  throughout ;  and  if  there  1)o  neeil,  wo 
hope  it  may  pass  vet  forward.  What  we  insist 
on,  is  not  only  tbe  opinion  of  iny  lord  chief 
jnsiice  Hobart,  but  be  is  followed  therein  by 
the  opinion  of  a  man  of  very  great  authority, 
one  no  less  eminent  than  he  in  his  profession, 
and  that  is  my  lord  chief  justice  Hale,  in  a  book 
of  his  that  islntituled,  his  Pleas  of  the  Crown, 
which  is  but  an  abridgment  of  what  heintendctl 
uimn  that  subject  under  the  title  of  clergy  : 
when  he  comes  to  treat  of  the  consequences  of 
the  allowance  of  clergy,  and  what  tlie  several 
effects  of  clergy  allowed  shall  be,  he  says,  it, 
gives  him  a  capacity  to  purchase  goods,  and 
retain  the  profits  of  his  lands,  and  restores  biui 
to  his  credit,  according  to  the  rase  I  have  men- 
tioned before  in  Hobart,  of  Searle  and  Wil- 
liams ;  for  that  case  is  iiarticularly  in  that  hook 
mentioned  and  rcfprrcu  to  :  therefore  I  hupu 
your  lortlships  wilt  make  no  difficulty  of  hear- 
ing this  witness  ;  for  wo  think  the  luiving  his 
clei^y  allowed  him,  is  that  which  restort's  him 
to  his  credit.  If  tlify  have  any  other  objictioim 
against  him,   I  hope  we  shair  hour  it  fnmi  iliv 

*  He<i  IInwkiDH'!>  lM'-a«  uf  the  Crown,  b.  S, 
c.33,8.  li;'J. 

ax 


1011] 


II  WILUAM  HI. 


Ttiil  o/'tlte  Eart  qf  Witrmck, 


» 


I 


King's  counsel ;    bat  if  tUU  Up  sttjrnl  nj>r>n  in  | 
poini  of  I*wii5  nn  objec»ii>n»  ifi;a  ihouttU  ckrg^y  i 
was  allovretl,  tic  na^  uot  hni  nt  in  the  liatiit,  nor  | 
pjtnlooetl ;  I  wuaW  hut  f  ohsservet*  tr*>o«r  lonU 
Uii|i<i,  lliAl  my  lord  lii^:ti  flvwarU  ha>j  lolil  yog 
tl  in  Ku  fiir  gtioe  towanl^  tlie  piLftioi},  that  ibe 
\Xn\^  has  Uicwn  his  inirutioti  to  pardon  by  ill*; 
priVy-«ciil  \    ttiui  ue  h<^()e  youv  tonUbips  will 
ii0t  wx  tbL$  iiiible  ioiil  »t  ilie  bar  suflVr  auy  [>ie* 
judicc  by  lite  not  poj  Itctini^  of  ibc  (inrdon  by 
■Cttial  pussin|(  ul  titii  t;ieat  seJ^. 

/,.  il,  5.  Mr.  Ailorriey  Gcnei-al,  wbat  wy 
yoo  to  the  maUers  which*  haw e  Ke*ii  urged  ? 

ylif.  Gen.  M  V  Iwrd,  we  havi*  statc<l  our  ob- 
jection ;  we  think  there  is  noil»ng  given  as  au 
aa&wer  to  it,  and  uesuUuiilit  to  your  tord<^ 
ship's  jod^ineiit* 

5Wq.  ot*  Halifax,  My  lorih,  I  desire  that 
the  qiit*$tioo  ibut  i^  ta  be  decided  before  your 
|<»rds)uf  ft,  iniiy  be  settled  truly,  what  it  is. 

X.  ^,  5.  It'  tht^ie  lie  »ix  it)  company, 
wad  one  of  ibcm  is  kilted,  the  other  6re 
are  aflctwards  indirt«fd,  and  three  are  Iried, 
tfml  fouQfi  guilty  of  ninns)au§^iiter,  and  u|)on 
their  prayers  have  their  clcrgjy  allowed,  and 
tikc  biimm«r  iti  the  band  i$  respited,  hut  not 
pardoned,  \Vfictbi'r  any  of  the  three  can  be  a 
n  ilTiess  upon  the  trial o*  either  of  the  other  two  ? 

Sir  T.  Ptmjfs.  My  lords,  with  snlwuissiou, 
tliou^fti  be  were  coViiicted  of  the  felon v,  yet 
unon  prayer  of  bi&  clerg> ,  that  being  allowfid 
bfiii,  llial  restores  him  to  all  the  capacitiefr,  we 
•ay,  that  be  had  before  the  cooiicttou,  and 
particularly  to  his  end  it ;  and  for  tliat  we  6ub 
mit  oui^eUes  to  your  lord* hi p*sjudgni tint. 

Mar*^.  ot  Halijax.  1  suppose  your  lordships 
wilt  have  the  opinion  of  tue  judges  upon  this 
point  I  aod  that  must  be  in  the  preseuce  of  tlie 
prisoner. 

L,  IL  S,  h  must  ccrtainlv  be  in  the  pi^sence 
of  the  prisoner,  if  you  ai»K  the  judges  opi< 
nions.* 

r  Marq.  of  Hali/m,  But  in  these  cftses,  my 
lordti,  it  is  usualtn  hear  the  king's  counsel  to 
make  a  reply  :  I  desire  to  bear  what  they 
woutd  ^ay  to  what  has  been  offered  by  the 
counsel  for  the  noble  lord  ibe  prisoner  at  the 
bar. 

Serj,  Wright.  My  lords,  I  did  apprehend 
that  the  very  statin]!  of  the  objection  would 
.  hare  set  ibis  uiatter  in  its  true  light:  For  in 
the  first  place,  it  is  a^j^rced  on  all  hands,  that 
thU  Mr.  rrf?ncb,  that  is  desired  to  U?  a  witness, 
di>e:g  inland  convicted  of  felony  ;  aqd  by  the  law 
•jf  England,  while  that  conviction  renmins  upon 
hiui,  liU  be  lie  either  purged  or  pardoned,  be 
cuunot  be  a  witness :  by  the  convictiott  bis 
cretlitis  lost;  and  till  be  t»e  rciitoted  to  bis  fiett 
condition,  he  sUnds  not  so  clear  iu  the  eye  ol' 
the  taw  tljat  be  cun  be  an  evidence.  The 
counsel  for  the  prisouer  have  objectsd,  that  if 
Ite  either  be  parduticd,  or  clergy  ulltmeil,  he  is 
put  in  T be  saiue  cuudiUon  as  if  he  bad  been  ac- 
quitted* 

*  8ee  the  Case  oi'  lord  Cora  wall  is,  vol«  7,  |^* 
liO,ind  Ibe  Note. 


My  lordii.  In  nalmttti' 

credtL ;    and  I  iij<  Lkiaislb»« 

a  nee  of  the  bene  lit  of  ckrgy,  j&nd  bununy  a 
the  bund  upon  it.  mnoitnU*  in  Uw  in  « 
or  is  <  '■  I   '■■'■' 
tlief.i 
tual  I' 

Uenet  li 

thftlii.^>... 
actual  bun 

LitrntiiiLf  in    ■,i,_  !j__:J,  .,l:.. 
\n  law,  such    * 
ii  condition  as  it 

Vour  i«>rdshiji»  huve  beard  ^hal  was  i 
bis  grace  my  lord  high  stel^  a-tl,  Thia  i 
burning  m  the  band,  t'  m^ 

to  proceed  so  tar  a^^  t« >  r-al  i 

parilou  of  i  1 1    ' 
lordiihips  ^  - 
sisted  on  to  im- 
other  &ide,  Thru 
under  the  great  >...,,  v.1  ..i,j 
ts  no  actual  parduu  ;  nor  i^  the  bare,  alia 

of  cl^gy,  uiihoiil  ijiiiniii'f  in    tllQ    IliSOd 

faleottOii  I  mustb^i; 

That  At  tiu  ;    rsoQs  tb 

convicted  of  tekiuy,  wctt;  iii*t  restore4 

crecht  merely  by  ajiowiii^  the  l»enrfii  v( 

to  1  hem;   there  was  souii 

done  to  regain  cfe<lii ;  xh^  ,  41 

undergo  an 

was  comn  i 

man  was  i :  ^  na%j  itptio 

ftrayer  of  <  ^  to  lisve  iJ  i 

owed  to  hhii,  f .*^  i*Mtiu  rcJul  u  i 

bis  life  was  saveiK      He  was  iiot  dc« 
the  felony,  and  therefore  was  deUvei«il 
tbe  ordinary  to  be  kept  in  privnu  umil  1 
by  a  sortoltrial  beibre  tbe  ordinary, 
innocence  appear*  and  purged  biiitself  4 
fact  ch-irged  upon  bim  ;    and  if  be 
tnake  bis  pui  y;attoD,  Ike  was  ta  U9  [ 
iu  prison  ^  and  tiotwithstaudioir  the 
of  clergy,  and  delivery   over  t**  lii 

yet  MAS  not  the  ciedit  restored, 
capacities ;    ho  was  nut  a  \eg^i  wim 
he  h;id  purged  hitusetf  of  the  of 
the  dealing  lliemseives  of  f^^  ^*n1t,  1 
stored  such  persons  to    i!  u 

creili^iiiot  the  bare  alh»«»  uy; 

critninais  were  deli\  lijiia 

neratly ;   thosamighr  1*^^^:^ 

O tilers  were  speciaJly  delivered,  or  dcB 
with  aspcciol  charge  to  tbe  ordinary , 
admit  ibem  to  purgation,  '  por 

*raciea*la:'    These  btter  ver  be 

f^ored  to  credit,  eacoe|it  by  tbe  king's 
for  the  liberty  of  purgatiQCH  which  wag., 
means  of  regaiuing  their  credilt  wwsj 
from  tbein ;  £cir  giillt  ocoasioneAthifjc  T 
crcilit ;    taking  away   that  gtull  doth 
ciuuntially  restore  credit  again  i  and  t  ' 
nt  of  clergy  was  to  be  allowed  aa  otVen 
oiat)  bad  occasion  Jbr  it. 

Thus  tbe  utatler  of  bcii4?ftt  of  clcrjfy  i 
comiuou  la^v  in  rcs[>'  mtdt 

tog  of  credit,  tdl  tbe  >  Ui    . : '  m  ioivn/,. 


far  the  Murder  ofJlkJiard  CooUt  esq, 
died  OD  the  other  siJe  by  itr  Tbomfts 


A.  a  1699- 


[!dI4 


i^ys;  by  which  stAliite  |Kirgiitmn  h  abso- 
ply  taken  away  anr]  set  asiile  :  tijid  I  he  jiarty 
bg  burni  in  the  band^  accsordin^  to  (he  sta- 
^^i^rte  of  4  H.  7,  is  ft[ipoiiited  by  Ihrs  st&lute,  18 
EUs.  tp  be  diicharged»  and  n<»t  to  be  dellver^t 
owf  la  the  ordin&ry,  an  ivm  before  that  time 
^unetl.  The  deUvenu|^  ov«r  to  the  orditiary,  wa^ 
in  onler  lo  pnrgation,  and  that  by  the  last  sta- 
tute is  i|uite  tdceii  awjty^  and  tb'e  \^ny  is  lo 
Lave  Ihe  latne  benett  by  the  ha?in^  the  heiietlt 
of  bui  clergy  and  buruing  in  the  bund,  as  if  he 
had  made  nis  jmr^ation  ;  he  sliall  be  dis- 
chained  :  it  is  not  his  reailin^  as  a  cterk,  aod 
that  firouounccd  by  the  oiditiary»  that  gives 
liim  ttie  benelit  of  a  discharge,  as  if  he  hati 
bteu  purged  of  the  crime  ;  but  there  mast  be 
4ti«  burning  in  the  hand,  that  is  the  very 
terms  of  the  statute  upon  wbicb  he  is  to  be  dis- 
^^l«fg«^t ;  ibai  must  actually  be  done  before  lie 
can  be  put  into  the  same  condition  that  he  was  in 
MiOre  the  conviction,  and  consequently  make 
liini  capable  «f  being  a  witness.  As  for  the 
■Me  of  Se&rle  and  WtiUams,  that  was  cited  by 
^PTbonias  Powys,  iJwt  case  doth  not  oppose 
V^this  mailer ;  there  it  was  not  nee<lfni  to  hum 
ibe  person  convicted  ;  he  was  a  cterk  in  boly 
<ir<iers,  and  by  law  exempt  from  burning  in  tlie 
hind  :  so  it  wus  not  needful  to  burn  him,  the 
ctatnte  of  18  Khz.  not  re<|uiring  any  person  to 
be  burned  iu  the  band  that  were  not  so  liable 
liefore  then.  The  most  that  is  said  in  tlmt  case 
hf  the  chief  justice  Hobart  is^  that  in  case 
wlicretbe  baud  ought  to  b«  burnt,  it  is  not  es- 
Mntm) ;  Itut  tUe  party  may  have  ibe  benefit  of 
|||€  stttule,  i,  e.  be 'dinchargt-d  i^itbout  burn- 
ing, ftod  ttiekJiig  may  ftardoji  ilie  burniug  ;  aod 
«iO  doubt  if  tJie  king  pardons  tlie  buruiiig,  it  is 
.m»  gvod  and  4fi)ectiJii|  as  if  the  tiand  had  been 
m^aally  burnt  The  kin^  uii^ht  piirdon  the 
ivIioJe,  and  consequently  any  [>an ;  the  pardon 
^f  llie  pnnisbment  supplies  the  elfect  ot  it;  no 
Jioaiitiob  but  a  [mrdun  may  supply  the  want  of 
iKtmlng  in  the  band.  Chief  justice  ilales  in 
4m  book  of  Pleas  of  the  Crown,  ful.  S40, 
l4i  I  bave  here,  saysexfiresslVi  that  burn- 
:  in  t tie  baud  is  now,  since  tGe  statute  13 
llix.  the  consequent  upon  the  allowance  of 
clergVf  which  bath  this  ejfect :  First,  It  eiia- 
bkn  the  judges  to  dfliver  him*  Secondly,  It 
restores  biui  to  former  cajiacities.  Tbirilly, 
'^lre(ttores  him  to  his  credit,  and  so  it  puts  hiiu 
|the  same  conilitiLin  as  if  he  \f  ere  acquitted. 
yii  that  hatb  this  ettect  ?  The allowame 
and  burning  in  the  hand :  There  is 
a  delivery  of  the  eriminal  till  all 
Ik  dune  which  is  required  by  law  :  The  law 
i^uires  that  the  party  be  burnt  in  the  hand,  or 
ttiat  the  king  do  pardou  the  burning  in  the 
band,  before  the  party  be  disctmrged;  and, 
ivith  bumble  Bubmimiou,  it  was  ne? er  yet  pre- 
tendecl,  thai  any  person  could  bave  the  full  ad* 
Vttntage  of  tbt'benetit  of  clergy,  since  the  sta- 
iQt»t>f  4  H.  T,  till  he  was  burnt  in  the  band,  or 
tbe  btfrning  in  the  band  was  ^mrdoned.  Now, 
my  l«rds,  to  apply  ibis  to  the  casein  question  ; 
ilisoa  ^1  bands  admitted,  That  Mr.  Fre&ch 


wfts  e<mvictel  of  felony  and  rnanslaughter,  and 
is  neither  burnt  in  tfie  tmnd,  nor  pnrdoned  ; 
hut  He  has  prayed  the  benefit  *>t  the  clergj' ; 
and  has  ha«l  the  book  given  to  him,  to  try  if 
he  can  read ^  and  he  certifieil  he  can  read  ;  tbiv  * 
is  all  I  hat  ts  done,  I  think  it  cannot  be  pfe- 
tended  he  ought  to  be  dtHcliarged  until  he  is 
burned  in  the  hand,  or  that  burning  pardoned, 
as  the  act  requires  ;  and  if  the  reading  as  ft 
clerk  without  burning  in  the  hand,  or  pardon 
o*'ir,be  not  sufficient  in  hiw  to  entitle  him  lob^ 
discharged,  why  should  it  be  sutticitnt  to  re* 
store  his  <  rt'dit  .*  Tlie  wbok'  together  works  the 
disL'bar^  and  restorer  the  p.iriy  In  the  ease 
of  Burrou^tisand  Holcrofi  that  lias  been  cited, 
til  ere  a  man  wits  convicted  of  manslangbler, 
and  pra^'^^d  his  cleri^y  ;  the  court  did  not  aU 
bw  bis  clergy,  but  did  ad*ise  upon  it-  ThiA 
was  held  sufecient  to  bar  an  appeal ;  for  if 
clergy  had  been  allowed  it  bad  clearly  lieen  a 
go(Kl  bar;  and  the  act  of  the  court  in  advising 
ujHjn  tlie  prayer,  and  not  allo^vtngf  clergy  where 
it  ought  to  be^  shall  not  prejudice  the  party 
convicted,  hut  he  shall  bt'  in  the  same  state  as  if  -| 
the  eler*/y  tiad  been  uctiially  allowed  ;  but  that 
has  no  likeness  to  the  case  now  before  your 
lordships;  for  here  it  is  not  pretended  thai 
iVlr.  French  ever  desired  to  be  burnt  in  the 
band,  but  that  was  respited  in  favour  to  liim, 
which  was  done  with  intention,  it  seems,  lo  gel 
the  king's  pardou  for  the  burning  of  the  hand, 
which  is  not  yet  obtained  ;  and  ronsequeully 
I  take  it  be  is*not  entitled  to  that  benelil  which 
the  law  would  give  him,  if  be  was  eitlier  par* 
duned  or  burned  in  the  hand  ;  be  is  not  fully 
discharged  of  the  conviction,  and  therefore  I 
thttik  he  ought  not  to  be  admitted  as  a  witness, 

X.  //.  S,  What  is  the  i-esululion  your  lord- 
shijis  please  to  take  u|H>n  this  matter?  Is  it 
your  lordships^  pleasure  to  liave  the  opinion  of 
my  lords  the  Judges,  who  are  here  prcsetil, 
upon  this  point  ? 

Lords,  Ay,  ay,  by  all  tneans  bave  the 
judges  oninions. 

L.  C.J*  Trcbt/,  Two  things  have  been  men- 
tioned at  the  bar,  which,  I  ibink,  ought  to  be 
laid  out  of  the  question. 

1 .  The  consideration  of  a  peer,  with  respect 
to  burning  in  the  hand. 

J  suppose  it  is  not  (1  am  sure  it  ought  not  to 
be)  insmuated,  that  if  any  of  your  lordships* 
degree  should  have  the  niisforlune  to  fall  intci 
tht:  like  condition  as  the  gentleman  now  pro- 
duced, vv£,  to  be  once  convict  of  a  clergyable 
felony,  there  couki  be  any  doubt  of  receiving 
Kuch  peer  as  a  witness,  without  his  havisg 
been  burnt  in  the  hand.  Certainly  there  could 
not ;  for  the  statute  of  1  £.  6,  exempts  the 
peers  from  such  penalty,  and  virtually  repeal* 
the  statute  of  4  il.  7,  as  to  so  much.  And  the 
statute  of  18  Eliz.  requires  burning  in  the  hand 
only,  according  to  the  statute  m  ttuit  behalf 
(helure)  pr*>vided.  And  there  being  no  statute 
ilien  or  now  in  force,  to  subject  |M.*ers  to  such 
brand  ;  they  are,  in  such  cai*e,  ujKin  the  al* 
lowing  the  benefit  of  the  suid  ttatute  uf  £.  6^ 
which  i»  as  much  ai  clei^y  without  reading  oc 


Tnd  ofi&e  £ffr/  rf  fTnwc^ 


I 
I 


I 


barnmg'  frfeU  from  discrrtltt  Mid  otber  penaU 
Iks  uf  the  fdony^  us  ntuoli  ns  CkMiiiDOtifi  mte  b^' 
Jtaiiiig  clergy  loroially  alJawed,  ajid  being 
barot. 

Q,  lUre  Laid  been  menliiio  of  a  |»ardoa  of 
tlie  buroiDif  this  geolietum  in  tbe  b%od ;  and, 
it  M^Ti'^  v^eding  bsth  been  so  far  is  to 

fAM  t^  edl,      ]   dfi  not  que«tJon  tl&e 

luji^'«  |H(iu>>ijiij]u;  of  the  iniiiiiDf^^s  beiog  M  et- 


jiertv 


iindere:t>ici^  it.  But^  I 
\  (thtiug)i  great  f»repam- 
^»^  manual,  tbe  signet, 
t  warrants  in  such 


iectuul  as  the 

tl.p  „  ■   ^.    ^ 

and  coiiritcrmandabki.  But  it  is  tbe  great  flea] 
thai  speaks  the  king^^s  last  and  irrevocable  in- 
tent, ttud  passetU  the  pardon  (or  other  like 
tiling)  to  be  granted.  And  that  bath  not  been 
abtamed  here^ 

Now  the  question  ja  cleared,  1  take  it  to  be 
tVi  *  *  '  i  her  this  coiumoncr,  bein^  conficted 
(>'  (id  having  hiM  clerjify  aUow«d,  hut 

b».-.,^  u4i.itMiii  und  unpardoucd)  sbail  be  re- 
ceived and  allowed  to  lie  a  witncsi? 

I  ur«»  ii»   rifniilnti   \u^  'HlghtnOt. 

For  lity   or  cretlit   he  might 

per»otii  liv  Wiu'j:  and remaiutng 

a  felon  con  Vict »  reticle  i  n&in  the  eye 

af  the  law.     Upon  iht^  ,  he  lort^  by 

the  intendment  of  law,  that  credit  wbicb  ifine- 
ceisary  to  a  witness ;  and  is  not  realored  to  it 
bv  tbe  bare  albwiti^  of  clergy  ;  hut  is  in  the 
state  as  a  feton  convict  wuutd  have  been,  before 

CJci  \  called)  benefit  of 

clergy,  i-^  uu  -un-if-nipMnrr^e,  whereby  acierk 
ctidrged  with  ffkioy  waii  disnikiaed  from  l)ie 
tem|K>ral  jn^'i^e,  and  delivered  in  custody  to  hit 
ordinnri,  bctore  whom  he  was  to  ptfrge  him- 
iw  Ifl  if  fit'  could,  of  iht-  otlVnce ;  and  if  he  tttjl«l 
ill  i;toii»  lie  was  to  rtrmaio  in  thegnli- 

I  uieiiii  i^c  Derally  %  and  I  think  it  not  profier 
to  thM«  occa^iion,  to  discourse  of  the  »(>ecial  casea 
wUt^rcio  lilt  delivery  to  the  ordinary  wan  mktfmt 

Thi-  took  its  root  origioolly  from  a 

cooKiii  -  pope,  exempting  the  persona 

♦f  iht  ciiii^v  iix)m  the  secular  jurimJictioii. 
This  thif  cuiionluw  h  ftill  in.  But  that  law 
VAX  iMit  ii.i.tj.in.LU  ic/d.;i..i  I'f ve  in  tln^^bod. 
A  lered,  and  ol- 

1^  :law. 

itic«?:     The    ciftoon-law  gtvea  the 
|H  ly  to  men  in  holy  orders:  ouriaw, 

m  ittvoof  lu  li  :.iMi»  ■_'»  and  tbe  desire  of  the 
Kfi^rlieih  his»h''[  ,.  rvu  uded  it  to  lay* clerks,^  as 
an  olil  statuie  calk  them,  i.  e.  any  layman, 
thi\t,  hy  tt^'tUKtrt  iifliis  ntiihtv  to  read,  waa'(ottier 
larouiir  I  in  a  posaihihty  of 

Uog  liio  other  side;  that 

Inw  *»oui:i  iH  I  Mnttr  Mie  clerj^^V  ^^  he  trini  l»- 
|i>re  fecular  judges  i  but  otirs  1iaih,  fur  levetml 
iMindreit  }  ear»,  subjected  them  to  aucb  trial. 


ka 


*  As  to  Benefit  of  Clergy,  iee  in  this  C>>1- 
lection  the  Case  of  Carenngh  and  others,  vol. 
1^1  ji.^Cr  \  and  the  Casta  ihere  relierrod  to* 


But  tbecomtiMui  law  was«««ri 
That  wbao  m  t»aa  mmm  cobiicIpI  iC  I 
though  U  the  aUMto^tC^liifigT*  bklrfa.1 
and  Mood  wem^iviad.  p^  Um  fiuDnebmlMi  ] 
him  titkdtr  diiersMHtenvoi  i 
abooltiie,  oteps  iWie 

Heforfbtedyikibi 
be  had  at  tbe  tioia  of  | 
not  to  be  reHoreil  by  i 

He  also  ibrttiliri  mti  ^m,  l/Ufl 
being  to  oootittoe  a  |iihmiM,     1^ 
of  piirobaatiig  iinra  f^aodb^  ^r  cbl 
taking  and  retaining  tise  kmo^tm  i 
bin  freehold  land  lo  bit  owa  wm^   5.  His  cfif^l 
fto  as  not  to  be  a  «rtti»eaa»  Jtifor,  doe,    li 
tbese  three  ^lenahitt  be  remniBMl  liliiti 
gatioo  \  bat  by  that  ^kmj 
soon  ■■  be  had  made  b&  ^i0fnljM»,  bn  iMii 
atored  to  bis  liberty,  capao^Bi,  aod  etwkL 

Purgation  was  Jba«oMvieL*a  i 
of  the  eritne,  by  hii«i«BC«tbtMi^tbeMfll 
eerdiet  of  an  inf|ncst  af  ti»el*e  tibiibi  (an  i 
imrgators).     The  pratmiillny  w«i  biCwi  *l 
ordinary .     And,  for  the  ifliBBV  of  it,  nM  baikl. 
speak  of  their  making  proclansai 
to  come  in  aznin^t  him  pnrgalioD,  aapd  of  I 
enauiriog  '^-^  oonfi 

aodofuilu'  :  lu^.     In  all 

otber  atatotaa  say,  there  were 
But  tt  it  eoitatn,  that,  upon  bta  ic 
onlinary  pronounced  him   inoficcftt, 
solved  from  infamy.     And  ihereupan 
disohargeil  troro  the  imprtSfOnm^it,  * 
ties,  and  discredit  incident  to  the  Mmf, 

The  etatnte4ll.7,  bvioga  in  » 
appointing  that  efery  fiorson  convicatof  I 
should  hemarke^t  io  ihi>  hand  by  tbefasAvi. 
open  court,  beto  \\A bo  Mivefod  laii 

ordinary.    And  <  ^  i  ftiDly  tbmt  tbey  i 

taste  oroorporal  pimiafaioent  {  but,  prii 
to  nutity  that  tbey  bnd  bad  tbetr  eteg^J 
tlfte  Bamo flMole,  taking  notice  lUati 
emboldeoed  tn  eommit  miind«*r«  f«pe^ 
and  otborltAofiK 
fitofelefgyfof 

SOD,  wbo  wan  once  oumitini  to 
abottldf 
unlc 
letters  of  his  ordcnt,  or  a  wndJJtiiitg'oft 

For  this  Act,  Perkrn  Watbot^.bi  bial 
ration  agaiiist  11.  7  J 
'  ble  breaker  of  the  libertiiB  ami  fn 
•  holy  church.' 

Then  oomes  tlie  statute  la  ElioE. «.  f « i 
for  to  much  as  concerns  tliia  f}iiMlion«  1  \ 
to  reJid.    It  is  in  these  words,  **  Portbe  Vt^4 
m^  of  sundry  pcijurios  and  oibor  aboaat  tel 
about  the  puVgatioo  of  clerks  ooofriei 
to  the  ordinaries^  be  it  anacteil,  Ibaf  i 
son  which  aball  ba  admitted  and 
have  the  beneit  or  privde^  ^'  \m  dl 
shall  not  thereu^ion  be  deltvered  la  Uh  < 
nary,  as  bath  hem  aocnatomed,  btit  i 
clergy  albwid,  and  bumfAg  m  tbo* 
eordtng  to  the  utaiuta  in  that  bObalC  ^ 
[oMsaning  that  of  4  Uen.  7],  Miall  lonbvikb  j 
ealiu^  aad  deUf  ered  twt  oi'_ 


1  erir  have  it  n^n  iirii  ibllawi 
I  he  were  withtD  oi^lm.  0h1  pi 
» of  his  ordent,  or  a  vmmkm%m  \ 


9017] 

jiMlioes  before   whom   iucb    clergy 
^||Mtt|«i»  Ui«t  clause  uotwUb^tatiilifig." 
^^^Bblb«re  follows  a  pruvi:si>  \kp  Ibia  eiTect: 
Winded  tiefertheltfSKj  anil  be  it  eaactetJ,  that 
the  juftices  before  wboui  ftny  such  allu^ynnce 
of  clergry  sball  be  hnd,  may  for  the  furlbcr  cor- 
jTVCtion  of  such  pcreont,  detain  ainl  keep  them 
I  prison  tor  siicli  coiivenieui  litne  as  the  same 
Aices  in  tbeir  tli«crriJon8  sball  lb  ink  con?e- 
» 90  aa  the  same  do  not  exceed  one  year 'a 
iienment/* 
Tbisatatute  refers  to  that  of  H.  7,  aod  fol- 
L  the  order  ol^  it ;  as  that  appointed  tbal  the 
cooYict  should  be  burnt  betore  be  sbouJd  be  de^ 
I  to  the  ordinary  to  bave  Ibe  be»efa  of 
,m  tilts  of  18   Elix.  appoints  that  be 
•kould  be  burnt  before  be  shall  be  diacbar^ 
by  the  jiwticn,  and  hate  Ibe  benefit  thcf^by 
iatended  (instead  of  purgation^. 

The  onjticil  for  the  nobl«  lord  at  the  bar  aay^ 
l^t  the  nliowance  of  clergy  by  tirtue  ot  this 

tfreclh  this  man,  and  make<i  bim  red  at  in 
ft ;    ai  if  he  had  made  bis  purgation  :  aod 
by  this  statute  be  k  Gr»l  purduned  his 
HilBe^  by  being  allowed  the  beoelit  of  derg^y, 
',  makia^  bis  purgation ;  atni  afterwardi 
Dt  in  we  band  before  be  be  ddirervd 
pnson  ;  and  %%*  I  lit;  btirniog  is  a  oondltioo 
Mknt  Vt  his  K'^enjiig'  «ut  of  prison,  not  to 
I  being  restored  to  bis  credit. 
But  1  am  lo  a^k  for  any  ground  for  this 
i  ill  this  itatutc.     It  doth  not  ri^uire  cler- 
alkrtved,  dot  give  any  new  yirtue  or 
I  to  it,  i^hen  allowed.     It  supposeth 
I  a  tlitui;  to  be  by  virtue  of  the  common 
but  ibere  it  leaves  itn,  if  there  be  t»oibin|f 
*  done.     It  is  oni^  clause  consisting  of  two 
i;     i.  Negatire;    be  that  is  allowed  bin 
jry,  shall  not  be  delif  ered  to  the  ordinary* 
d.  AlSlirinative  -,    btit  »ticr  that,  and  buruin^  in 
llw  handf  shall  be  delivered  by  tlv-  ■  — ♦v^ 
^low,  if  it  bad  ^loppefl  at  the  ti  Urid 

ao  far  from  pardoning  or  '<*^ 

oonvici,  that  it  bad  put  all 

1  thai  those  %irere  who  wen.  i  ^ 
f  fix.  to  be  per|ietunlly  impriaoactli  and  ui- 
Indeed^  it  had  not  b^n  reasonable  to 
tslce  away  such  a  prtvitege  from  the  ftubjects, 
itiih^»ut  some  recompence ;  and  ihcff  (ore  ii 
4jd  not  stop  thci'e^  but  proceed.s  to  the  ^d  p.irt, 
ind  {Krovides  that  those  ivho  before  Mere  deli- 
ftred  to,  and  by  the  ordinary,  shall  now  b«.'  tie 
liTcred  by  the  justices.  But  tviihaU  it  dedaics 
IflMiif  and  upun  what  tcrms^  viz.  Alter  clergy 
idloweilt  and  burning  in  the  hand.  And  Ibis  is 
•  Mktiafactiou  to  be  K4veo  to  the  bw,  before  they 
•Hall  hate  the  henelit  ot  it. 

I  ugrMf  if  this  convict  bsd  made  that  salis- 
fbciicHi  to  the  1aw<,  he  mit^bt  have  l>eeti  a  uit- 
IMW ;  for  ill  that  case,  he  would  hiive  been 
freoil  from  his  di«credit  by  virtue  ot  the  lu^t 
ilorAi  of  tha  said  clause.  It  is  true,  the  woid» 
^■t«tily,  *  Hhnll  fcirthwith  lie  enlarged  and  de- 
^Hrr^  aut  of  prison  by  the  ji«htice«i,*  which 
uhrarlly  import  nothing  but  re^torin^  bis-  liber- 
ty. But  under  ibis  prime  instance,  are  im- 
|4»ed  aud  iu tended  all  other  partictikri  wbtch 


Jiff  ihe  Murder  of  Richard  Caote^  esq.  A*  D.  1699.  [10  IS 

shall  be  jit  convjot  mi^ht  be  dtschart^ed  of  by  meant  of  | 
purgation.     It  was  never  the  intent  of  tl^e  sta^ 
lute  merely  to  set  him  at  lari^ef  and  leave  hifll 
Q  felou  convict :  but  when  it  is  said  deb?«r«d^ 
it  is  meant  deUrered  free,  freed  from  all  ioci- 
dcDt  further  penalties,  as  he  mi|;ht  have  been  if  [ 
delivered  upon  purgation.     This  is  a  reasonable 
construction;    ti»  a  mau  that observet  the  op« 
poaiti'in  in  the  words,  the  aente  will  appear  t<l 
oe  as  if  the  law* makers  had  said,  that  inaCeiid. 
of  being  discharg^ed  *  a  culpa  et  poina'  by  tM  ' 
ordinary  upon  a  tedious  proceed  in  nr  to  pur|^*»«, 
tiou,  he  shall  now  be  so  dtjcharf^etlby  the  jus> 
tices  forthwith. 

And  this  also  ii  necessary  to  vindicate  th« 
justice  of  this  law  ;  tor,  smoe  it  takes  from 
him  the  means  be  had  of  ref^ining  his  credit; 
it  is  but  just  it  should  restore  to  him  by  thil^ 
wav»  ■  f 

ft  is  objecterl,  that  it  may  as  well  be  sartf 
that  he  shall  not  be  restoned  10  cretlit  till  fao 
have  su  tiered  imprison  men  t,  not  cxceediug  m 
year,  ns  that  he  shall  not  be  restored  till  burnt. 
But  that  receives  an  easy  answer ;  for,  if  ii 
were  so,  it  would  not  avail  this  pertoo.  But  I 
lake  it  to  t>e  otiterwise.  A  convict  is  dischar^^ 
ed  from  imprisonment  and  all  other  penalties  in*  ^ 
cideut  to  the  conviction,  tbrthwith  opim  ibe*  , 
burning  in  the  hand  i  but  if  there  be  a  commit.' 
ment  made  by  virtue  of  the  proviso,  it  is  a  eo{* 
lateral  ond  a  new  thing,  and  the  ptrty  is  not  cheaf  ^ 
in  prison  by  virtue  of  his  conviction,  but  by  tr 
fresh  express  order  of  the  jud(^,  made  upod 
the  heiuousness  of  the  circumstances  ap^tear 
trig  OQ  the  evidence.  They  may,  and  genenP 
ly  do,  tbrbettrto  commit  sit  all :  and  when  they 
do,  it  may  be  for  a  month  or  two,  at  their  dis- 
cretion. The  proviso  callis  it  a  further  correc-* 
tion,  * 

As  to  the  manner  in  which  this  ttntute  work* 
this  ffiil  discharge,  it  hath  been  disputed,  whc-^] 
ther  il  he  by  supply  of  purgation,  or  rather  by 
;«  lifxl  of  statute- pa  nlnn.  But,  1  think,  Ihafl 
tee  of  the  statute  the  party  is  purg-eil  Qiid 
I  of  the  felony,  and  all  penalties  iuotdenf 
U>  u,  ill  natui-e  of  a  pardon-  ^ 

In  what  raanner  soever  the  ttatnte  works  it^ 
it  i^  mauilest  tliat  it  doth  it  not  but  upon  a  oon<*'  \ 
dition  precedent,  vii.  Alter  clerg-y  allowefl,  and' 
burLiitt|j^  iti  the  bond.  Now,  this  person  hath  bNl 
cler^ry  allowed,  but  is  not  burnt  in  the  hand, 
i   '  iiy  pardon  for  it)  and  therefore  is  tiof 

I  to  the  beiiefit  of  this  statute.     My 
Lmi  >    uuti^el  say  he  i^,  because  he  hath  bi# ' 
cicrgfy  allowed.  "  But  iluit  is  claimiug  the  ad* 
vantage  upon  the  performing  of  one  pnrt  of  fl 
joint  condition,  which  oiijrht  not  to  be  had  hot  i 
u]K>n  perforin  J  n^  bulb.     They  mit^ht  as  wel^ 
have  |ireteuded  to  it  before  the  |jertbrmance  of  1 
either  ;  the  statute  says,  after  lioih  clergy  antf  | 
burning.     They  suy  alt>o,  that  this  lutnung  i#  | 
no  pan  of  ihe  judgment,  as  hath  been  held  in*  I 
the  r4ue  of  an  ap|>eal.     tie  it  so :   but,  1  my,  iff  { 
IS  a  part  of  the  cnnditiou  in  this  statute. 

There  is  no  case  in  our  books  aj^aiuit  ibit  * 
opiniun.  (But,  on  the  contrary,  Ihere  are  aa-' ' 
tfauritiea  tor  it )    Uolcrofl*t  av»e  is  in  notoft 


lOlDJ 


11  WILLIAM  III. 


Trial  ffthe  FmH  tif  Wa 


ibl€  to  liiis  cast" ;    as  wfti  tnil}  nbscnpd 
[kiTtlti*  kin*r'«  M^ijeiint.  Ti>e  ojiinion  *iS  my  \\\f\\ 

I  i".     ,  'u^u!er«fl,cout)rQisUuh.     I  have 

bj^n^wcd  live  IkmiIc  from  the  gtmllfintiti  at  ttic 

|#  com  )e  to  be  burnt  iti  the  Unml,  he  ia 

ottii:.  ml  restorod  wiibouttt;  because 

Mie    staUjlc   hays,    afttt-    iHiwing:    biit  from 

I  ilicnccforlh  theWtwte  frees  ium  Irani  all  fur* 

bcr  juLDishrneut,     lUil,  he  ^aiUit  that  where 

|fte  i«  I'tit  liable  to  buntin^f  he  shalt  bare  the 

Btne  beiietii  immediaidy  upmi  the  afiuwunce 

[ufderg^y  only,     8<Mt  iv*s  in  llie  case  before 

'bitn ;    which  itaa  that  ot  u  derk  in  orders : 

|^r«  8earle  wafla^slergymau^  parson  of  Heydoo 

"Seritian^  in   Eit»eK,   ami  e(>u?icted  oi'  iban- 

llanj^iiler,    80  it  is,  be  says,  in  case  where  the 

Ifciniq;-  pardons  the  buroiiig.     And  ibe  last  words 

the  caite  dearly  shew   bis  meatiing',  riz. 

rhere  the  Ktututt  fiays«  niUr  buruin^,  it  im- 

oris  where  bitruing^  «ug:bt  to  be»  \c. 

To  me  the  law  is  e^i^ieut^     A  peer  afaaU  bate 

bia  benefit^   witbf^ut  either  dergy  or  burning. 

I  clerk  in  others,  upon  dergy  alone,  without 

urtiing*.     A  lay*clerk»  uat  without  both. 

K%  1  remctnber,  there  halb  been  but  one  au- 

l^ority  more  nientiuued,  aud  that  is  ot  tny  lt»rd 

rhiet    jiLstice    Hale,  in  itis  Summary  of  the 

Pleas*  ot'  tiie  Crown  \   I   Itave  sfOt  hither  that 

.1  ..'.  J     To  my  uudeisiauding-,  be  pin  inly 

chuiei  the  snme  opinion,  and  cites  the  before* 

nenlioiied  caae  of  8earle  tur  prooi  oHt.     His 

Fiords  (&o  far  as  they  relate  to  this  matter)  are 

"leae: 

What  the  efieet  of  der^y  allowed  ? 

Ju  ancient  time  the  coni^ueat  was  dtli«'ery 

tlie  ordinary,  either  to  tnuke  pur^atioii»  or 

l^^s^M^r  purgatione^  atitlie  ca»e  required. 

Hut  by  Stat.  18  Eliz.  c.  7-     Now  otily  burut 
I  the  hand,  which  hath  ttiese  eHecta, 

1.  It  enables  the  judge  io  ddiver  him  out  of 
Ifriflon. 

2.  ll^vea  him  a  capacity  to  purchase  goods, 
nd  retain  the  pfotits  ot  hi»  lauds.      Fuxley's 

pCase,  5th  reftort. 

3.  It  restores  bity  to  his  credit      Hob. 
pfiearleV  Case. 

The  word  [which]  used  here  (whatever  else 

[it  do«  or  do  not  reler  to)  doth  certainly  refer  to 

Ibe  itest  antecedent,  that  is,   burning  in  the 

land;    and  the  two  boctks  which   thts   most 

I  learned  judge  cites,  arc  tuU  uuiborilies  thai  it  Itt 

klliia  burning  ubidi  euHbli^tt  the  con  it  to  deliver 

\htm^  and  that  thiit  delivering  which  is  then  due 

him  is,  by  gooti  construction,  in  lieu  of  a 

OD,  w  hich  reiioret  him  lo  hit  «aid  ctipa- 

^tnd  rredtt. 


V 

I  ,j  aT*r« 

DHMI'I 

' 

In- 

th 

A 

npon 

t  de- 

1 

at  It 

1 

H 1'. 

ii-Sal 

opinions  St  hiiv<s  ^o  ttkm  up  yoar 
time  with  arpfumeuls  iif  muf  lefl|flli(4 
matter  \\m  betin,  1  Unitic,  autficievtljr  T  ' 

L,  Chir/Banm,  (Hir  Bifwufil  IVa 
lordK,  I  atii  ftt'ilie  same  optninti. 

J  usi .  Nrvi  tL  A  nd  so  am  I , 

/.,  H,  A.    My  lord  of  WartrM* 
any  things  more  to  say  to  this  quetflsiii  f 

Earl  or  War,  No,  my  lofiL 

L.  H,  S,  Then  what  ia  your  brdsliiaiE^  ^ 
sure  P  Is  this  man  to  be  ailimtleil  1  witMH  j 
not? 

Ltir^M.  No,  (Ki;  we  tbank,  by  taWp  hef 
be  a  witness.* 

L.  M,  S.  My  lonl  of  Warwick*  fay  \ 
of  opinion.  That  ibis  perwti  cannol  m  1 
as  a  wiinesii  tor  ynu. 

Earlot  ir<ir.   My  lords,  I  i«barit  to  1 
lordships^  jodt^in^nt  in  the  inatter. 

f  ^'om.    aiy  knK  I  tm  \ 

fifbti  .  h«¥e  had  this  malfer 

haled  by  the  couuvi    Hi  1: 
tletl :  All  tny  lord» 
seems,  are  of  opiiutui^  ti 
witness,  aud  therelore  In 
rejected.      But  there  i*  uu  -i. 
have  to  make  lo  your  lurdihip 
I  think  oit^iit  to  oecou«tidere>l 
brd  at  tlie  bar  did  supposes  that  he  badj 
before  your  lordships,  ttint  he  wetil  1 
tield  to  ti^^ht  ou  the  side  of  liie  faiij  I 
killed,  but  not  on  the  other  side*  audi 
thai  he  went  not  to  ^    ' 
rel;   ^nd  tbereuixir 
whetlier  it  ahonld    not  lie  .-i  pre^umptj^ 
point  of  lad  and  law,  that  hr,  t>eioi;  as  f 
side  of  the  (tarty  that  wa>  '  ^'    '     ';     ^1 1 
reputed  iimuceut  cd  luii  di 
UpOil  the  *it  "i-'r  f«f  1)11$  t/.*j*  *:4i*^*i, 

it,  w  hell  I  one  were  firciifl 

i%»g  of  a    1     1,  i  acre  several  f»e«iile  1 
pfaflfed  in  h^^liting;  on  wbal 
pefsofi  were,  ekber  on  tlic 
that  was  kUled,  cir  on  the  otber  ude,  j«t  r 
soever  crime  Jt  was  in  liiiwie  that  LdJcd  ' 
was  the  same  crime  in  i'^        <        ^pfe 
at  tile  a4:tioD.    My  lord  <  v  iit4  d 

tJiat  Ilia  counsel  mi|fbt  be   U4^Ani  op 
point ;  if  there  be  any  qucilioa  wifth  1 
ships  in  thai  ciaei  aoil  mv   lor4 
couDsel  may  be  bemnl  to  tliat  matttr^ 
oc?casioii  a  matter  of  debate,  which 
in  this  place  ««peuly,  but  must  bo  I 
lordshifia  among  yourselves ;  liiltosd,  1 1 
reasonable  that  ooitnsel  shouhl  bt  baatil  1 
ll^e  case. 

L,h's,    My  lonU,  1  lareotti 

rived  at  that  qui^timi  y*  r****  •»• 

lor  pan  I 
Inite  an*' 
w  hat  that  proof  docs  amount  to, 

^  S«c  Mr.  llarKTafs's  notice  oC  Uno^ 
hia  Inimetl    lii^murM  00  tba  rlCi 
kM»«**-  l*,.rJ-.i  -•    IVrtiiFy.     iSee,l 

»Ui«ntie 


Men 


Jor  the  Murder  ofRiciard  Coote,  esq. 


A.  D.'  IG99. 


[I0»^ 


Earl  of  Rochtittr.  In  deed  ^  tity  lords,  1  liope  | 
J4«i  will  not  suppose  atiy  thing'>  and  m  lake  it 
iof  gVAntfd,  ihnt  may  oc^^asion  any  debate,  be- 
^^me  ihmt  19  not  to  l>e  done  here  in  tliii^  place, 
kut  we  iniMt  adjouni  to  another  place  lor  it ; 
*Ehe  bare  putting;  ot  a  case  by  a  prisoner  at  the 
^jT,  fioes  not  make  ibat  to  be  the  case  truly  to 
lllil  of  fact,  lor  as  tar  as  1  heanl  and  under-" 
\  the  noble  lord's  pro^Misftl  ut  the  har^  what 
^4««retl  to  have  bis  counsel  beard  to,  was, 
\  bel>eing  one  of  sLx  thai  went  kito  the  Behl, 
^oing'  with  a  desiy^n  to  part  them,  and  nnt 
intenttoQ  to  promote  the  <]uarrp|,  cotild 
rln  equnl  deg^ree  of  j^nilt  with  those  that 
\  the  olhtr  side,  ivho  killed  the  (»arty  ; 
V,  tuy  lords,  1  take  it,  it  is  far  from  bein(^ 
1  un  ttu  idher  side,  that  that  is  the  state 
if  .  mv  lord  himself  ovvuK  that  be 

nncl  that  be  was  eu'^fageil  in 
combiAt  with  Mr.  James ;    antt  Uten  tiie 
»tH>n  iiiu«t  be  that  is  to  be  debatetl,  whether 
tity  thai  is  concerned  id  a  quarrel  v%  here  a 
\  is  killed^  is  in  equal  degrree  ^^^\\y  with 
that   were  on  the   other    side    against 
I  per»c*n  thai  was  killed  ?  Aud  then  the  ques* 
nid  be  fur  different  from  u  bat  it  would 
vise,  and  as  bis  Inrdship  diil  propose  it ; 
'  there  be  a  duubt  in  matter  nf  fai-t,  that 
111  to  l»e  settled  ht^re  in  ihi*  plucp,  that  af" 
111  itv.w  JM-  ronsidcretl  in  another. 

My  liird^,  [  cannot  but 
kw  ii  I  !  .  lord,  thnt  the  matter  of 
|ht  to  be  seiUcdt  and  then  if  any  debate 
liiereupoti,  your  Itirdsbips  are  to  riturn 
r  own  bouse,  and  there  to  deLntu  what  is 
tdfifnient  upon  thai  matter  of  fact :  But 
ever  motion  is  made  by  the  noble  lord  at 
I  bur,  wherein  he  desires  to  liave  bis  counsel 
(1,  that  1  suppose  may  be  considered  here; 
MM&tlua)  point  having*  been  started  by  my  noble 
locil  at  the  bar,  as  a  point  of  law,  and  not  of 
iaCS,  I  desire  to  remind  him  of  it,  to  know 
wbctber  he  does  iui^ist  upon  it ;  if  he  does  not 
note  to  have  the  matter  mrgited,  then  ibere  is 
mtk  eml. 

X^  H,  S,  My  lords,  1  do  not  think  you  will 
JHi>  coimaet  upon  a  matter  of  fact,  and  there- 
^■■l  la  not  rqie  UiW  the  fact  be  settled)  tor 
^mH^^Ar  counsel. 

^^S5H  of  War,  My  lords,  I  humbly  pray,  that 
^oy  will  hear  my  counsel  as  to  that  |)oini. 

i'   My  lord,  this  i»  a  lUfitttT  of  fact  UH' 
I,   and  not  a  matter  of  law:     what 
ii*cir  hirdsbipswdl   be  of,  when  tbcy 
I  constdereil  the  pitKifii  as  to  tbt;  fact,  is  one 
when  th'dt  i<*  ovfu,  it  will  be  the  proper 
f  any  douhtbe  remaintno^with  their  lord- 
'  I  piuit  of  law  to  betir  counsel ;  but  ujK»n 
f  matter  of  fact  counsel  is  not  to  be  allowed. 
_     £arl  Iff  RocHetier.  JVIy  lords,  if  there  be  any 
debate  amouij  the  lords,  whether  it  l)e  a  matter 
of  tact,  or  a  matter  of  law,  we  must  gro  up  to 
ov^ti  house  ;    l>ut  upon  any  fmint  of  law, 
bere  couuiMfl  in  to  lie  heard,  it  must  be  in  ilus 
$n  the   pre^Jcuce  of  the  prisoner,  and 
Iter  wants  your  Jordships  will  debate  it  among 
d?cs,  •<   .   • 


Earl  of  Koningham.  I  hope,  my  lords,  the 
counsel  would  not  state  the  case  oiherwi«iethafi 
as  it  i»  really  in  |>uint  of  fuct ;    nor  tun  thi9 
noble  lord  hope,  thai  any  Ihingf  will  make  ai»  , 
im|vress(on  U[)on  my  lords,  but  what  from  the 
fact  rightly  stated,    is   siT^iportetl   from    the  J 
evkleuce;  '  and  that  which    my    lord  pro-*] 
poaes,  is  to  have  bis  counsel  heard  to  a  matieK  j 
of  law,  which  your  lon1shif>s  will  be  judges  of 
aller  you  bavebeanl  it,  whether  Uiere  lie  any*! 
weight  in  that  which  he  supposes  to  he  his  casein 
that  a  person  assisting  in  a  combat  on  the  siilc 
of  bini  that  ts  killefl,  in  i»  equal  ile^ee  of  guill 
with  lliem  thnt  urir  on  the  other  side  [  that  |H>$' 
&ibly,  if  lite  fnct  be  ai^reeil,  may  be  a  point  fif] 
to  liear  counsel  to,  before  your  lord^hijis  gu  to ''^ 
debate  it  ainou^  youi'selves, 

Duke  of  Devonshire*  If  I  am^  not  mistaken  ' 
my  lord  of  Warwick  owns  his  beinjf  one  of 
tliem  that  fought,  for  be  has  offered  witne8se«j 
lu  prfive,  that  lie  receivett  a  wound  in  bis  ban 
by  fighting :  if  my  lord  of  Warwick  thinkSi" 
that  there  is  a  difference  Itetween  his  being  on 
Mr,  Coote's  side,  and  theirs  that  were  on  tha 
other  side,  and  would  have  bis  coun.<^el  beard,' 
bow  far  it  will  difference  bis  guilt,  and  the  natui 
of  the  crime,  from  what  it  wan  with  tlieni  c 
the  other  <iide,  1  cannot  think  that  ciin  be  1 
any  great  [lurpose  to  have  that  argued ;  but  if 
your  lordshijis^  please,  you  may  bear  his  coun*^ 
sel  what  they  have  to  say  to  that  matter ;  btif 
otherwise,  1  cannot  think,  but  that  his  lordship 
wilt  acknowledge  the  matter  uf  fact,  Ibat  ' 
was  engo'^ed  in  ihe  quarrel, 

Eurl  ot  Pcterktrough,  My  lords,  I  desire,  ; 
this  be  a  point  that  my  lord's  coutiicl  ^liouhl  l( 
heard  to,  that  it  sbfiiild  b«  statetl  as  j\  ponit  < 
law,  and  then  your  lordships  will  consider  of  i 

X.  H.  8,  As  well  as  t  cotdil  upprehend  it,  i 
it  was  oflered  by  my  lort!  of  War  wit  k,  this  wa, 
what  he  desired -to  have  bis  couiisel  hc^ard  lot 
though  the  ^»er»on^  engaged  in  the  fiuarrel  o 
the  oppoiiite  porty  to  M  r.  Coote  have  bceu  trie 
and    found  giiilty  of  mansluughtci ,    vet  he  i 
not  in  eqUHl  degree  of  guilt  with  tliem,  he^ 
bein?  engaged  ou  Mr.  Coote's  side,  and  there* 
fore  wis  lordship^s  case  differs  from  theirs  wh#J 
fought  against  Mr.  Coote.   This  point  he  would 
have  argued  by  his  counsel  bt^fore  your  lord- 
ships as  a  matter  of  law  fo untied  upon  the  fact ; 
now  the  laet  of  the  case  nHi;>t  arise*  from 
eiridenee  as  it  has  been  gj*en,  whidi  has  not 
yet  been  debateil  or  settled  by  your  lordshi[»s  \ 
and  tilt  tbtit  be  agreed  to  be  the  case,  no  ques*' 
tionof  law  does  properly  arise, 

Duke  of  Leeds.    My  lords,   li"^  po^isiMe, 
would  put  this  matter  into  its  true  method  ; 
indeed  J  think  we  have  been  all  this  while  ou 
of  the  way.     The  noble  lord  at  tfae  bar  has  de 
sired  to  have  bis  coun^l  beard  ;  this  House  ha 
allowed  himcoonnel  in  matters  of  bw;  I  wouM 
desire  that  the  counsel  would  state  the  case 
to  your  lordships,  that  it  may  appear  to  be 
case  tit  to  be  iirj^ned,  that  so  ic  may  receive 
your  lordships'    '    '      i  '         iMin.       Hfy 

lord's  own  ban  'li»'*6'i  **iH 

uot  be  eoough  to  luciiyu  jvur  luru^hips  to  bec 


n  WILUAM  Ul 


OfHuioDi  perliapa,  one  wuy  or  other ;  but  T 
ivould  pray  your  lnrdsbi|»t,  iKat  jou  would 
Uirect  tjie  co'uusel  iIjmI  are  astigned  foe  my 
uoMe  lorti  at  tile  bar,  to  firapos^  tbiil  to  your 
lariiiibiijs  as  »  nomt  ol  taw  tluil  be  oit^lii  to  in- 
sist upon*  I  timk  it  is  apporc^ul  to  every  bwly^ 
lltal  00  point  ol'  bw  can  arise  biii  upon  tnaller 
of  fuel,  which  t«  agreed  to  Jip  proved  in  aoy 
4^«e ;  now  th^j  prootk  of  the  (net  we  have 
beard;  nmf^  ihnt  vihicli  f  woold  proposeloyour 
lortlships  iSf  th^t  iiisiead  of  hinirin^jf  hm  courisol 
ioargw*?  iu  |ioinlcif  fnct,  what  k  ii«l  yet  agreed 
xipou  to  ha  the  I'act^  Ihey  !>houUl  state  stich  a 
poiot  of  Uw  as  they  wtiuU)  urgue  upon  ;  aod 
ibea  wbt-'thcr  you  woukl  think  it  a  point  of  bw^ 
or  ont  li  poiot  of  law,  we  ti1u«;t  g-o  iuto  titimher 
pbe^^,  where  it  may  \m  debuted,  whether  il  be 
«ucb  a  point  of  law  as  that  coufi!»el  should  be 
heard  to  it. 

Earl  of  F^ttr borough.  My  lordn,  I  hope  you 
will  forgive  roe  for  inlrrfiosioir  in  tliis  rnatler^ 
hut  that  which    I   1«  i  v  to  it  is  this  :     1 

a  Ol  far  from  pivui-  lOo  as  ycl,  ai  to 

the  mi^tter  of  t'^ "'  k  r  my  lord  of  Warwick 

wan  Mr*  Cooii  or  bus  enemy  ;   1  know 

it  is  not  a  proj'c;  ^^^^.i;  for  ibat  matter  to  be 
debtied  in:  but  my  noble  lord  at  the  bar 
desirfs  to  have  bis  counsel  beard  upon  that 
point,  as  if  the  fact  was  agreed  :  truly,  tiJi 
i)ie  I'uct  be  a^sed,  I  <]nestion  whether  we  can 
|fiv€  any  jods^noent  4»r  opiifi«»o  one  way  or 
other,  if  I  obierved  aright,  the  evidence  for 
tiM  Miug  aitued  at  somewhat  else  :  I  n ball  not 
say  what  my  opinion  now  is,  till  we  eoine  to 
fleWte  it  amooir  ourselves  ;  hut  here  is  a  desire  i 
itf  batioif  couu^el  beards  but  there  is  nu  <|o*fS- 
liOB  of  law  &taiLHl,  but  it  depends  upon  a  tikatier 
of  fact  which  is  not  yet  determined  by  your 
loniships,  before  whom  tho  cousideratiou  of 
both  f^t  and  law  doth  lic|  whsther  a  person 
that  is  engag'ed  on  the  tiidoof  the  onriv  that 
is  kiUed  iu  a  quarrgl,  where  several  >ti 

both  sides  are  concerned,  be  as  mM>  i  .  i  v  at) 
those  that  are  concerned  on  the  other  iuW  ? 

I^larq.  of  N&rjH,  My  lords,  1  do  suppoae  that 
you  may  hear  the  counsel  to  state  the  i|ueiiUon, 
without  your  deteruuoing  any  thiui;  u{)ou  it«  as 
lo  your  opioion  one  way  or  oltior ;  fur  your 
h^rin^f  of  counsel  is  only  in  order  Xi>  prepare 
vourlorr*  '  :  ^  the  debate  amoiii^yourselrea, 
if  there  IV  doubt  viiLli  you,    ltseemfl« 

wy  uobic  .^ii.  ai  the  bar  has  profHised  ih.'it  his 
counsel  should  be  heard  i  If  the  couo<«el  will 
staie  the  [loint  to  be  argusd  upon*  your  lord- 
ships may  here  oucwder,  wbetb«r  il  be  such  a 
fine  as  it  is  tit  to  heaj  couusel  to;  tb«n,  no 
daubv  you  will  hear  coimsel  to  it.  This*  1 
^upposo,  you  wilt  hear  from  them«  or  oibm'- 
wiie  yotu*  lord)»hi|i4  will  not  think  tit  In  give 
your««-lv4^  tlie  troubh»  to  ^o  and  debate  that 
wli  I  »  ho  debated  of. 

I  S,  1  am  afrJiid,  of 

ntir^  h»  your  own  house, 

i'vt  i    !  urifuio^  oi>d^wilh 

nr-     '  f-  •  *^'^  roiuisel 

luld  bo 


that  it  is  ontv  a  mailer  of  facl«  boim 
laWf  upon  which  oounael    si 
then  it  nuut  be  debated  between  ytiisr 
which  i^  not  propter  for  tfi  ito  Mire; 
I  wuntd  hondily  mote  your ' 
would  adf^iint  to  your  owm 

E.  ««i  ufgh,  1  viippoarjFi 

will  bv  ^  eoffuire  of  tb«  ODUBSlli  t 

ther  tliey  (i«  ^^n  ihia  poiftL 

LiiS,  ^Varwick^ifToarki 

in^iit  that  y^>"  ^^^Ji^u^**!  ^boabl  M  twA 
the  point  which  you   bare  iklftfred^  it  M 
there  is  such  a  difference  of  opiniiui 
lords^  that  for  the  debating^  dT 
dcaie  ill  the  cnse,  mv  hur'lii  initxt 
it  ■ 


tf 

I.. 
If' 

matter  to  y^ 
can  be  heard,  < 


t:  la  Enakc 
^  that  hi 

^    ubnitl  tt,i 

(IS,  wUofthfir  mfi 
•r  i»u4,  10  limL  point;  mm  \ 


tieiof^f  of  Air.  Coote's  stde^ 
deoth, 

I.  H*  S,  That  is  a  inftkttf 
Dot  yet  determined  ;  and 
which  you  sujtpom  to  arise  upon  tt,  k 
npe  to  be  resolved.     If  you  hata  no  ohb0i 
uesses  to  produce,  Uiat  which  immui 
think  I  may  properly   aoquaiuit  yutt 
metliod  of  proeeeain^,  i«,  that  you  vn 
yonr  paK  to  sufn  up  tji<»  evidioKie  thai  hai 
g'iv en,  which  is  your  ^  k,asii«4l 

ailo\««  d  counsel  as  lo  <  tact 

at  '  '    ;  *  V  ti»  make  such  ^nowv 
t:  our  ad  r  unlaid  Q| 

uji..  t>.^  iw  ,  liise  your  deliinot^ 

E.  of  Waj-utck.   My  hif<  I  ^^ 

the  whole  Til. -liter  to  voui  hirdalufia.    <^l 

L.  I  '*!»  «tyt 


»acl|   fj 
I«bi^| 


Ol  It  tm 
lurtlihips,  wtibosit  ai^ 


Waru„ 

proved,  to  then- 

raiu«r  up  of  the  evidence  *,   you  wtio 

kiD^'it  CQUDSsl,  if  you  tiiink  ftt,  wiilMliii 

evidieuce  on  voitrs,   ia  order  to  iMi  ' 


I  :0|| 

Cf,  tif  rftt  Cr.     hM.-rjv3a4  ut  AriUSt 

clinmtioo. 

Serf,  itt  Arm$,    O  Y««,  O  \'tM^  Q  ¥« 
lord  high  steward  of  £ughutd»  kiit 
straitly  cluirge  and  contmiJiil  iiH 
saiis  bere  pt^aeitt,  tf»  licvp  8iltt»aa«  upaaf 
imprisonment. 

L  H.  &  G«iitl«meD,  yeu  iImA 
hinge's  courrse),  now  in  your  tiiiM 
the  evideno-   '      ' '     ' 

Tim  Ml  JoboHsvli^ 

lo  aum  Up  I  lie  €iideuc«%  biit  bk  vi 
low,  that  ha  couhl  not  Ue  bflasil  bj  ibt 
that  sat  at  the  iinper  sod  of  tl^t  li 

Dukeor  Xtfib.  My  lisrda.  1 
IfTMl  imporliiic 


^r  *:■ 


6(Ctl 

toay 


hearwhtt  u 


Jw  the  Murder  of  Richard  Coote^  esq.  A.  D.  1609* 


[1026 


uaing  up  of  tbe  erideiiGe,  that  if  my 
i  of  my  opiniuDy  we  shall  be  very  tie- 
to  know  what  judifiDeiit  wepve  when 
le  to  g[ife  judgment,  unlets  we  are  tho- 
f  appriied  of  the  matter  of  fact  and  the 
I  ooofen  I  am  goings  to  mote  that, 
ii  a  Ihing  not  acconling  to  the  orders  of 
»e,  but  much  without  the  rules  of  the 
that  the  counsd  should  be  heard  in  any 
bee  but  where  they  are,  at  the  bar  of  ihe 
this  if  contrary  indeed,  I  acknowledge, 
Nilera  of  the  house,  ami  so  my  motion  is 
IT ;  but  yet,  in  onler  to  our  satisfaction, 
i  may  be  enaUed  to  bear  what  tbe  king's 
I  do  say  to  ut,  especially  in  summmg  up 
dence,  I  cannot  uut  oner  thia  to  your 
ps ;  for  we  can  no  more  hear  the  counsel 
lan  if  we  were  quite  out  of  the  bouse : 
er,  therefore,  your  lordshipa  will  |dease 
Tt  that  any  person  that  has  a  stronger 
bould  sum  up  tbe  eTidence  ;  or  whether 
U  dispense  with  the  orders  of  tbe  house 
IS  that  Mr.  Solicitor  may  cone  to  the 
table,  or  some  other  pnce  witlitn  the 
where  he  may  be  lieara  by  all,  1  must 
it  to  voor  lorAbips.  It  would  be  a  great 
tion  mr  us  to  bear  him,  in  order  to  our 
nt ;  but  I  acknowkjdffe  in  this  I  do  make 
|[nlar  motion,  as  to  the  orders  that  are 
obserredby  yourkntisbips:  but  I  know 
w  to  help  it,  IB  rmrd,  without  boariagy 
msiUe  for  us  to  form  our  judgAient 
r  Roek.  My  lords^  1  have  a  Tery  great 
for  every  motion  that  that  noble  kund 
9ke  last  does  make,  and  I  am  of  his  opi- 
lat  it  will  mightily  tend  to  the  sstisfkc- 
ny  lords  who  are  to  give  their  judgment 
esse,  to  liear  both  the  cvklence  and  the 
y.and  what  ohservatM>ns  are  made  on 
ca;  and  that  it  is  a  great  disadvantage 
counsel  should  have  so  low  a  voice,  that 
lords  should  not  be  able  to  hmr  him  ; 
I  hope  that  may  be  remedied  some 
ay  than  what  ia  proposed  by  tliat  noble 
»r  if  what  he  desires  were  done,  it  will 
IBS,  that  in  point  of  precedent  many  in- 
races   will  oosnr   upoD  breaking  the 
if  the  boose,  to  comply  with  a  motion 
I  acknowledged  by  the  uoble  lord  him- 
e  irregular ;  for  it  would  be  impossible 
■ny  body,  if  it  be  permitted  to  make 
^reat  noise  without ;  aud  it  is  that  whidi 
the  difficulty  of  hearing  the  greater.  If 
pe  quieted,  your  lordships  might  hear 
tlsman  as  well  as  those  of  the  other 
:   or,  if  this  gentleman's  voice  will  not 
reach  your  hearing,  then  there  are 
otiemcn  of  the  king's  counsel  thai  have 
voices ;  and  if  any  of  them  would  sum 
evidence,  I  believe  it  would  be  better 
and  coDscqoentlv  belter  apprehended 
lordships ;   fur  1  had  rather  tiuy  cxfie- 
MiM  be  found  out  to  comply  with  the 
f  the  house,  and  preserve  them,  than 
irrrgobur  thing  should  be  done  for  the 
r  tbe  orders  of  tho  boius,  upon  any  ac- 
batsoever. 
Xtll. 


L.  H.  S.  Make  another  proclamaiion  for 
silence. 

€/.  of  Ike  Cr.  Serjeant  at  Arms,  make  pro- 
clamation. 

Strj,  at  Arm$,  O  yes,  Oycs,  O  yes,  my  lord 
high  steward  of  England,  his  grace  docs  btrait- 
ly  charge  and  command  all  manner  of  persons 
here  present  to  keep  silence,  upon  pain  of  im- 
prisomnent. 

E.  of  Bridgewuter.  Truly,  my  lonk,  the 
noise  about  the  court  is  so  great,  that  w«?  who 
sit  much  nearer  to  the  bar,  than  the  nolile  lord 
who  made  the  motion  for  tiie  removal  of  the 
council  into  another  place,  cannot  hear  Mr. 
Solicitor  what  he  says ;  and  therefore  I  think 
some  of  the  guard  shookl  be  sent  out  to  clear 
all  the  passages  about  the  court,  that  there 
may  be  no  noise ;  for  it  is  the  noise  of  iha 
people  without,  that  makes  it  so  difficult  to  hear 
the  king's  counsel. 

X.  If.  &  Let  some  of  the  guard  without  take 
care  that  there  be  not  that  noibe  made ;  and 
whosoever  does  make  a  noise,  let  him  be  taken 
into  custody. 

[Then  another  proclamatMn  was  made  for 
silence ;  upon  whicfi  there  was  a  greater  quiet- 
ness in  the  Hall.] 

£•  H.  5.  Mr.  Solidlor,  tbere  is  hopes  now« 
since  there  is  not  so  mat  noise  as  there  was, 
that  you  may  bo  heara  by  my  lords :  you  must 
use  Ae  bnt  endeavours  yoa  ean,  that  you  may 
beheaid, 

E.  of  Roch,  If  that  gentleman  cannot  speak 
eiH  so  well  that  he  can  be  heard,  those  or  the 
king's  counsel  that  have  better  voices,  must 
sum  up  tbe  evidence. 

SoL  Gem*  My  lewd,  I  speak  as  loud  as  I  can. 

£.  of  IZodk.  There  are  others  of  the  king's 
eouosel,  pray  let  them  do  it  then  ;  Mr.  At- 
torney, he  bang  neai^  and  within  the  bar. 

L.  U.  S.  I  know  not  whether  Mr.  Attomejf 
be  prepared  for  the  summing  up  of  the  evi- 
dence, because  he  examined  the  witnesses,  and 
the  kind's  counsel  usually  allot  to  tliemselves 
theparticular  parts  which  they  intend  to  take. 

E.ofiJRocA.  Then  let  Mr.  Solicitor  go  ou. 

SoL  Gen.  1  would  shortly  observe  to  ytnt 
lordships  what  evidence  hath  been  givte  to  you 
OB  behalf  of  the  king  in  this  case,  a^inst  that 
noble  lord,  the  prisoner  at  the  bar,  tor  the  of- 
fence for  which  be  stands  indicted.  The  6rsl 
witness  that  was  produced  was  the  drawer  al 
the  Greyhound- tavern  in  the  Strand,  where 
this  4|aarrel,  that  was  the  ocscasion  of  the  death 
of  this  person  that  was  slain,  happened;  and 
he  tells  you,  that  that  night  there  was  at  his 
master's  house  my  lord  of  Warwick,  ray  lord 
MohuB,  capt.  French,  cant.  Coote  the  person 
that  was  killed,  ami  Mr.  Dockwra ;  and  after 
they  had  been  there  some  time,  that  other  per* 
son,  thai  was  tlie  sixth  concerned  in  the  scuffle^ 
Mr,  James,  was  sent  tor,  and  he  came  in  when 
it  was  pretty  late;  there  they  continued  till  ooa 
or  two  o'clock,  and  then  they  came  down  to  tba 
bar,  and  orders  was  given  tor  to  call  coaches  ; 
but  it  being  to  litO|  and  Suiulsy  moniiog>  thsy 

3U 


kttilil  noi  Ant)  oQNtdMt,  kuil  lli^  there  was  or- 
^ero  for  Ihe  g'ctHnf^  of  chair^^  ;  vcUeii  sBoie 
t^a]r»  wvri'broH|(lil,  Air, Cuoi^ a^fl  Air.  Fr«neh 
went  iuto  two  of  the  cbali^,  liu£  my  torct  Mi^Uttn 
lotvrposc^i^  and  s^iJttt«rtf  fthouU  b«  itutUik^  limiii^ 
thai  ui^iti  ^n^l  that  if  the y  wenf  inM-ay  ke  ivuult) 
tsit  for  ^  fihMif  mi3SqueWr«  triltii  the  guards 
suit  Bcctiixj  llicpi  ^  fluil  lUsmipcn  tbey  c^itu* 
^iit  ol'  ihc  ehair^,  atid  iveni  itU^  the  liousCf  smd 
lli^eirDM  the  tioiiecif  swonls  clasUitif  Keanl  al 
fbobsir;  craptiiici  CiMJii^  Baitl  tie  tvonM  kui^b 
-^hen  lie  tika^«4)^  and  frown  \sbmi  be  plfastil, 
•Dd  I  hey  fi^rtetl ;  ttire«  nete  on  one  tith'r  iLtiil 
«.  ttircH^  on  the  oLlter  <rf  t)i«  bur ;  niy  luril  of  War* 
«rii:k|  my  Kird  Mul»nii,  ami  c^pinin  Ciiote,  wm'^ 
wm  ftnc  »Ule  -y  c«|itaJ»  Freucli^  capUiii  James 
atid  Mr.  t)o<*kwr;i,  w^i'^  on  iLmotlier  fiiik^.  In* 
ilivd  bf  M^K  my  lopl  Mohun  nnd  my  lord  «yf 
IVnvi%kk  did  wbnt  they  coutd  to  f>acify  ibem, 
anti  threattnal  to  send  ,for  the  i^unrdM ;  kwt 
All  ay  they  went.  TUe  n^Kt  witness  %viib  TIio- 
nmt  hmm^et  m%d  he  wag  tbe  chaimmn  that 
cirrieil  Hr.  i'mHi;,  and  he  &ays,  Ihsit  %\\vtv  was 
ftLi  cudeaTour  by  my  ioid  of  Waiwick  and  my 
itm\  IVtohtm  M»  putofVllie  business  a|  Lh^^t  liu^t, 
und  that  ihey  did  what  the}'  ctJuJd  to  Imve*  |»nt 
it  olf,  and  thtit  even  after  Ihey  were  in  their 
cimirst  when  I  hey  were  turned  up  St,  Martinis 
[Ktie,  thf  r«  I  hey  stopped  at  the  baji-k  doav  of  tlie 
CrnKs-  Keys -tavern,  iind  thai  while  they  Kteod 
tbere  wkh  their  three  chairs,  three  other  ohair^ 
^fUaehy^  and  then  captain  C^ote  hid  Ui^ni  pui 
«|^,  and  to ■  low  after  those  chaii^  aa  fast » thty 
doald  to  Ldoester-ReJds. 

The  B«Jtt  witness  is  William  Grippes,  who 
was  the  otiter  chair  man  that  carrktj  csaptani 
Cootei  aud  l^e  ghim  your  brdihips  nnicb 
tbe  same  accomii  ttjat  Bromiie  q^avc  hefbre^ 
and  bis  evidence  waa  jn^t  to  i\y&  anme  pur- 
poaCi  that  my  lord  of  War^rick  and  my  lord 
Mohun  0idcar(iuri?d  to  pacily  the  mat  Lor ,  and 
tkBt  theie  should  he  an  eau  of  the  hnsiiWss 
ior  thU  nighty  and  letit  aloiie  tlH  another  tjmc  | 
and  that  my  brd  Alohun  threatefieft  to  send  for 
Ihe  guards,  and  secure  them,  and  would  have 
bad  tbenn  gone  hoine,  tliat  is  Mr.  Coote  either 
witli  him  to  \m  lodgings,  or  Ik:  would  ^  to 
lir.  Cootc's  ;  hut  he  could  not  preirail.  Then 
my  lord  IVtobnn  said^f  if  he  would  go  on,  biit 
ktdship  would  go  and  aee  au  end  of  the  Imi- 


Tbe  next  witness  wm.  one  Crottk^  who  was 
eoe  of  tbe  chairmen  that  carried  my  lord  of 
Warwick,  and  he  says,  that  tny  lord!  Alohun 
mnd  my  lord  of  Warnick  did  endeavour  what 
they  ^ukl  to  (mt  o4flbe  mat  icr  till  tbe  next 
moaning,  but  thai  they  could  not  prevail  ^  thai 
silerwavdSf  when  he  carried  my  lord  from  Lei^ 
ct^lar-Aelds  in  the  Bagnio,  my  lord  borrowed  a 
kftudkerchief  of  bim  lo  wrap*  his  hand  tn,  for 
he  >akl  he  wu  wounded,  but  by  whom  that 
woond  was  given  dnea  not  apjtear,  tior  bow  be 
eaum  by  ibut  wouuil^  any  otherwise  than  as 
bla  lordship  himself  aaysi  that  it  was  gtveo  him 
hy  Mr./iiuea. 

'  Th«  next  wii  the  other  chairman  that  earried! 
Wf  ^  of  Wujviek,  whacL  wis  Jvto  Gibiofi, 


renpan  Hit  ] 


and  ida  testimony  oeed  uoi  be  i«M»W(i,  h» 
cau&e  it  did  not  difler  irota  liie  mii«r«.  Tlkt 
nc3(t  wiincas  was  Rol»rrt  A|i|iM0aif ,  wW  pa» 
tlie  chairman  that  carried  my  lord  Motvuti ;  m4 
he  days,  that  there  wtm  an  etudeaavoiir  und  bf 
my  lard  ujiuti  his  setliu$r  «hiwit  *m  tk.  Mma't 
kit4e,  tD  i|uiet  capt^lin  Cooit*,  ami  pi 
^uairel  at  that  ticae  ;  but  he  say  a, 
nuuld  go  on,  my  lord  IJohnn  aaid, 
go  and  see  the  end  of  it ;  aiid  thetenpan 
neni  on  tuirards  Lt^ice^er-lirtds  ie  tnein4JI'' 
Green -atreei,  which  ia  at  the  k>wer  sod  nf  thi  J 
£i|ua)'e,  . 

The  neit  witness  was  i'telfwrr,  who  waauli 
of  the  d»aJrnien  that  cartiwd  !Vtr,  l^rencb  la  Hfr ] 
Bagniu  ia  Ldng- Acre ;  and  hv  t«-Ua  your  hml* 
!ibi|ta  what  kap{)ei»ed  u|»oti  \m  carrying  him 
thitlM/r  i  how,  imnH^ihatrly  alter  hnt  mmlm  ] 
there,  rny  lai^  of  Warvi  i<^k  cain*  ihither,  m  I 
they  kiu»okt*il  at  the  door  at  th«^  u^me  tMii^,tti  J 
that  vsfvluin  French  was  tery  madi  wana^  j 
and  they  wc^nl  intn  tliJ^  hniVwe  liigvlht«r,  aai  i 
that  tVmich  would  bait?  had  Ihefn  pidl  kit  bM  j 
doaths  tf>  see  bis  wounds,  ttur  ht:  helkf^d  hi  1 
was  a  dead  maD.  j 

The  ne^t  wituesa  waa  the  ehotrmaa  wbiel  ^ 
carrier  I  Mr,  Jatueg,  and  he  otity  tolla  vonr  bgvl* 
sbi}»Hlhai  hecanicdaq-eiitkntai]  intaXdcei^ 
fields  ;    thiit  my   lord  Mo  htm  frifJeavutirtd  li  ( 
put  oif  the  busin<?sg  lor  that  ijij^hi ;  trot  #U  j 
the  per&au  was  that  he  carrietl  be  oaaai  il  I 
w  eU  tell,  nor  give  an  accocu)!  of ;  batwhea  hi 
hail  set  him  down  altbe  rnrtber  4Mid  nf t|te| 
KiT>are,  there  he  N  t  him,  and  l»e  krjo**  tl 
turlher 

Thc^n  there  was  ihc  surgeon  at  the  b^[Qiiti 
Lon^  jicre,  who  gives  yonr  loi^J^Lips  la  a^ 
count,  I  hut  about  two  oVInck  in  thetiHifisif^M 
theSimdaVi  my  lorff  of  Warwkk  nod  cajilfl  * 
l-'rendi  came  In  there  ;  capdiin   Frencli  i* 
ivoniidi^d  fj) (he  body,  and  my  lord  Warwjdc til 
wounikd  in  the  band,  £tnd  iirty  Ford  Wtf«U| 
did  tike  extmofdimiry  care  nf  eaptain  Ffv^  [ 
and  would  not  have  the  door  opetted  ta  nf 
hnily,  nor  his  JordBhip  iTiown  lo  he  ihert? ;  tb» 
al^r wards  captain  Jamef  and  Atr,  Do^kvif  i 
came  to  the  door^  and   my  loiil  eame  la  "" 
door  himself,    and  wtieri  he    aaw 
were,  bo  orderal  ihem  to  be  hi  in-; 
thertt   wns  a  difK!Oiih;e  abont 
country,  and  that  there  \^^i  a 
was  billed.    Thii»  is  the  etlcct  of  the 
both  of  tlie  surgeon  and  bi*!  servants  i  aiid  it 
to  be  ohaerfed,  thatwlicn  captain  French  «ai 
iUf  his  Btvord  was  not  hhody,  but  my  liad 
Warwick *s  sword   was  bloo<ly  aluEiost  all 
and  that  was  taken  notice  ^'iKc  ne^  day  \ 
there  am  aevera!  t*  itnesscs,  both  men 
men  of  that  house,  that  gire  your  lordi 
account  much  to  the  sume  purpose 
there  was  captain  Dnckintield,  who  «ys^ 
my  lowJ  of  Warwick  came  to  his  lodginp 
they  went  in  a  coach  t^^iherto  the  li^ 
Cornbdl,  nnd  thifU  there  was  a  diaiT* 
ffoin^  into  tha  conntTy,  and  my  krd  ■ 
he  was  afi'atd  hi^  fnend  Coote  wis  hi 
that  tlic^y  k^i  ito  ftb^oluic  newt  «£j 


I  aadiqd 


089] 


Jar  the  Murder  of  Ricliard  Cdoie^  esq. 


A.  D.  1699. 


[i03ft 


iilcd  ml  tbai  lime  ;  for  it  nhould  teem  my  lord 
r  Warwick  Ibrsook  the  field  as  soon  as  the 
ital  stroke  Wat  gif  en,  which,  bv  whom  it  was 
jifCD,  it  left  to  your  lordships' consideration. 
iideed  it  is  pretended  by  my  lord,  that  the 
toand  that  he  had  in  his  hand  was  gireu  him 
y  Mr.  James  ;  but  nothing  oi*  that  is  made 
pnrent  to  your  lordsliips  upou  the  proofs. 
Then  we  came  to  gt^e  vour  lordships  an  ac- 
DUDt  of  the  nature  of  the  wounds  that  Air. 
loole  had  in  his  body  ;  and  fbr  that  we  pro- 
need  both  the  surgeon  that  did  probe  the 
rornidt  hy  the  order  of  the  coroner,  and  the 
oraner  hmself.  Indeed  we  could  not  get  a 
MsitiTe  answer  from  either  the  surgeon  or  the 
— loer,' whether  the  wounds  were  given  by 
and  the  same  sword,  or  by  diflerent 
I ;  but  then  your  lordships  hav.t  the  tesli- 
Booy  of  Mr.  Turner,  who  was  captain  Coote's 
mant,  and  who  knows  his  master's  sword, 
lad  It  hath  been  shewn  to  him,  and  he  says, 
ihst  it  it  hit  master's  sword  that  he  went  out 
aith  ;  and  it  can  be  easily  judged  whether  he 
dddM  give  himself  those  wounds  by  that  sword. 

And  jour  lordships  hare  likewise  had 
hiwgfat  oefore  you  another  sword,  which  was 
kft  al  the  bagnio  in  Long  Acre,  that  was  cap- 
tm  French's,  that  bad  no  blmxl  at  all  upon  it ; 
\hIL  mj  lord  of  Warwick's,  it  eecms  by  all  the 
cridenee,  had  a  great  deal  of  blood  upon  it. 

Thco  came  the  witnesses  for  the  urisoncr  at 
iK  bar,  this  noble  lord,  my  lord  Warwick  ; 
mA  Ibe  tnm  of  the  tcstimoRies  that  tliey  have 
linen,  it  of  a  jp^at  deal  of  kindness  between 
vjlord  Warwick  and  captain  Coote  ;  that  my 
kra  lent  him  a  hondml  gniufas  to  purchase 
Ml  commission  in  the  guards,  when  he  had 
ht  three  of  fuur  hundreil  guineas  which  was 
■tteanry  to  make  the  purchase ;  and  there 
imtevetal  of  them  that  do  testify,  that  they 
fehniyt  looked  upon  captain  Coote  and  my 
Mof  Warwick  to  be  very  gopd  friends,  and 
Ibat  there  never  was  any  quarrel  between 
bcm  ;  and  that  it  the  sum  ot  what  tlie  evi- 
mot  da  that  tide  did  testify.  And  this,  my 
iHt,  I  take  to  be  the  sum  of  the  evidence  that 
■at  beeo  given  oa  either  side ;  and  when  I 
ftve  laid  it  thus  before  your  lordships,  I  must 
abaoil  it  to  your  lordship's  judgment,  what 
pinioB  yon  wiU  be  of  upon  the  whole  matter  ; 
alvthmis  thitoneobservatran  that  I  would 
■ica  to  yonr  lordsbipt  upon  this  evidence, 
\al  there  it  not  one  witness  that  has  given 
Kititlactnry.  by  whose  tiand 
Te  given  to  Mr.  Coote  ;  and 
,  thouj^h  it  is  ap|iarfnt  luy  lord  of 
iTanvick  was  in  tlte  place  where  the  mortsl 
'  waa  giveo,  yet  by  whose  hand  it  was 
ia  not  yet  known  ;  until  that  can  be 
I  every  perton  that  was  there  must  re- 
HWB  mMler  the  imputation  of  the  same  guilt, 
I  haviogla  band,  and  contributing  to  his  death  ; 
;  ia  eertaio,  aad  cannot  be  denied,  that  thit 
ahla  lord,  ray  lord  at  the  Iwr,  was  in  the 
old,  wherein  there  was  actual  fighting  ;  for 
adoaa  not  deny  it  himself,  but  says,  that  he 
«a  OBgaged  partkularly  with  captain  James, 
'heo  captain  Coote  waa  engaged  with  oapt. 


French,  between  whom,  as  it  is  allcdged,  the 
onarrel  was  ;  but  that  is  no  way,  in  point  of 
fact,  made  appear  to  your  lordships ;  and  there 
being  such  suspicions  and  circumstances  of  the 
blood  upon  my  lord  of  Warwick's  swoni,  and 
the  great  concern  that  he  was  in  when  he  came 
to  the  bagnio,  and  desiring  to  be  concealed,  and 
that  nobocly  should  know  that  he  was  there, 
and  the  care  he  took  of  Mr.  French,  who  it 
the  pretended  person  that  did  the  fact,  is  that 
Which  is  to  be  submitted  to  your  k>rdsliips ;  and 
it  is  to  be  observed,  that  Mr.  French's  sword 
was  not  bloody,  but  only  dirty ;  but  my  lord  of  . 
Warwick's  tword  wat  very  bloody  from  the 
hilt  to  the  point,  and  be  was  in  a  great  contter* 
natjpn  when  he  come  into  the  house. 

There  is  likewise  a  circumstance  which  your 
lordshi{>s  will  please  to  observe,  that  even  Mr» 
Coote's  sword  was  brought  into  the  house  b/ 
some  of  tlie  company  that  were  there ;  and 
wliatsoever  this  noble  lord  pretends  of  hit 
frieudship  to  Mr.  Coote,  yet,  it  seems  by  hit 
care  that  he  took  of  captain  Frencfa,  he  had  at 
much  friendship  for  him. 

There  is  another  circumstance  that  has  been 
testificil,  which  it  will  l)e  fit  for  yonr  lordships 
to  take  into  consideration,  and  make  some  ob- 
servation of;  that  is,  the  nature  of  the  wound  ; 
It  seems,  he  had  two  wuuuds,  one  on  the  kfl 
side  of  the  breast,  near  the  collar  bone,  and  that 
was  downward  ;  and  yet  his  man,  tliat  wat 
here  produced  as  a  witness,  does  testily,  thai 
he  was  one  tliat  used  his  rigiit  baud,  and  then 
it  is  a  wonder  that  hesliould  receive  such  a  tort 
of  a  wound  in  that  part ;  and  the  other  wouqd 
wat  on  the  left  side  too,  but  it  was  upward,  and 
how  that  could  be  given  to  one  that  wat  a  right 
hauded  roan,  is  certainly  a  very  great  won- 
der ;  and  the  wounds  being  both  given  upon  the 
same  side,  it  cannot  but  be  concluded,  thai 
they  were  given  by  one  and  the  same  sword. 

Another  circumstance  which  relates  to  my 
lord  t»f  Warwick  is,  that  when  he  eame  into  the 
Bagnio,  after  the  fact  was  over,  he  would  have 
himself  denied  to  bo  there,  and  went  to  the 
door  when  James  and  Dockwra  came  in ;  and 
his  decbring  hit  desire  of  j^ing  into  the  coun- 
try ;  these,  we  tay,  are  circumstances  that  do 
induce  a  doubt,  that  m^  lord  of  Warwick  had 
a  concern  upon  him  of  great  guilt  of  having  a 
hand  in  this  man's  death :  it  is  indeed  pretend- 
ed by  my  lord  of  Warwick,  that  Mr.  Coote 
was  a  person  that  my  lord  of  Warwick  had  a 
kindness  for ;  but  it  is  plain  by  the  evidencoi 
that  he  left  him  dead  in  the  field,  and  did  not 
take  any  care  of  him,  but  took  a  great  deal  of 
care  of  captain  French,  who,  it  is  pretended| 
was  the  person  that  fought  with  Coote,  when 
he  came  to  the  Bagnio  ;  and  there  is  nothing 
of  kindness  at  this  time  pretended,  nor  any 
thing  of  a  defence  to  this  matter  offere«i  by  my 
loni  of  Warwick,  but  only  what  the  chau'roen 
say,  that  he  endeavoured  to  put  it  off  to  ano- 
ther time.  These,  my  lords,  are  all  the  oliser- 
vations  that  I  shall  make  U|Mjn  the  evidence  in 
this  case ;  how  far  this  evidence,  ui»oii  con- 
sideration, will  weigh  with  your  lordsliips,  I 
must  tubinit  it  to  ^wl.    \\  m^Vait^^lxsvL- 


1031] 


11  WILLIAM  IIL 


wick  did  do  tti«  fact,  as  these  circoimtanees, 
we  think,  may  iodine  your  lordships  to  bciieve 
he  did,  it  will  surely  be  murder ;  but  how.  far 
the  evidence  ciomes  up  to  the  proof  of  that,  w(» 
most,  humbly  submit  to  your  lordihip«,  wlio 
are  the  judfi^es  of  it;  and  we  leave  itintirely  to 
your  consideration  upon  what  you  have  heard. 

L.  H.  S.  Then  it  seeins  you  haf  c  done  on 
all  sides. — CounteL  Yes,  my  lords. 

Lords.  Then  adjourn,  a4)ouro. 

L.  IL  S.  Is  it  your  lordships'  pleasure  to 
adjourn  into  the  House  of  LordaP 

Lordt.  Ay,  ^y. 

L,  11.  S.  This  House  is  adjourned  into  the 
House  of  Lords. 

Then  the  Lords  went  back  to  their  own 
House  in  the  same  order  tliey  came  into  the 
court  in  Westminster- hall,  and  debated  the 
matter  among^  themselves,  what  judgment  to 
give  upon  the  evidence  that  had  been  heard ; 
and  in  about  two  hours  time  Ihey  returned 
again  into  the  court,  erected  npon  a  tcaflbld 
in  Westminster- hall ;  and  aiVcr  they  were  seat- 
ed in  their  places,  the  Lord  High  Steward 
being  seated  in  his  chair  before  the  throne, 
spoke  to  the  lords  thus : 

L.  H.  S.  Will  your  tordsliips  proceed  to 
give  your  judgment? — Lordt.  Ay,  ay. 

L.  H.  S,  Your  lordships  will  give  me  leave, 
as  I  ask  your  lordships  your  several  opinions, 
to  take  so  much  time  as  to  write  down  tlie  opi- 
nion of  every  lord. — Iioreff.  Ay,  ay. 

Then  the  Lord  High  Steward  asked  this 
question  of  every  one  ol'  the  lords  there  prcscMit, 
befirionini^  with  the  puisue  baron,  which  was 
the  lord  Bernard. 

L.  H.  S.  My  lord  Bernard,  is  Edward  earl 
of  Warwick  gudty  of  the  felony  and  murder 
whereof  he  stands  indicted,  or  not  guilty  ? 

The  lord  Bernard  stood  up  in  his  place  un- 
covered, and  laying  his  right  hand  upon  his 
breast,  pronounced  his  judgment  thus: 

L.  Bernard.  Not  guilty  of  murder,  but 
guilty  of  manslauglttiT,  upon  my  hoiiour*. 

The  same  Question  was  asked  severally  of 
all  the  lords,  who  in  the  same  form  dclivei-ed 
the  same  opinion. 

Then  tlie  Lord  High  Steward  reckoned  up 
the  number  of  the  Peers  that  were  tlun  prc- 
aent,  and  the  opinions  that  were  given,  and  af- 
terwards acquaiuted  tlitir  lordships  with  the 
Resolutions  tliat  they  came  to,  in  this  manner : 

L  H.  S.  My  lords,  your  lordships  are  03  in 
number  hci*e  present,  and  you  have  nil  ac- 
qiiilted  my  lord  of  Warwick  of  the  murder 
Mr  hereof  he  stands  indicted,  but  you  arc  of  opi- 
nion that  he  is  guilty  of  manslau*4htcr :  Is  it 
Tour  pleasure  that  he  should  he  called  to  the 
bar,  and  acquainted  with  your  lordbhips  judg- 
ment ? — iMTih.  Ay,  ay. 

•  Mr.  Barrington,  Observations  on  34  Ed. 
3,  infers  from  a  Case  in  the  yearb4ioks,  (Mich. 
1,  Hen.  4,)  that  the  answer  originally  wa^u^o/t 
ff*y  conscUnct,  and  not  upon  mif  honour. 


TriaiqftheEdrloffVarmck.  [1033 

Serjeant  ai  Amt,  make  pxo- 


CL  (fthe  Cr. 
claroation. 

Serf,  at  Amu.  O  yea,  O  yes,  O  vcs !  chiff 
governor  of  tlie  Tomer  of  London,  bring  forili 
the  body  of  your  prisoner,  Edward  earl  of  War- 
wick, iortbwith,  upon  pain  and  peril  will  M 
thereon. 

Then  the  earl  of  Warwick  wu  brought  tt 
the  bar. 

X.  H^S,  My  lord  of  Warwick,  your  lordskip 
has  been  arraigned  upon  an  indictment  for  ifae 
kilting  Mr.  Coote ;  you  have  pleaded  not  guil- 
ty, and  put  yourself  upon  your  trial  by  tnt 
peers  here  present;  my  lords  have  heard  tbi 
evidence  given  both  against  you  and  for  yoi, 
and  have  considered  of  it>  and  are  come  U  a 
resolution  ;  and  their  judgment  ia.  That  ysw 
lordship  is  not  guilty  of  the  murder  wbemf 
you  stand  indiocd,  but  that  you  arie  guilty  of 
manslaughter.  What  has  your  lordship  n 
say,  why  judgment  of  death  ahould  not  be 
pronounced  against  you  according  to  the  lur  ? 
Earl  of  If'ar.  My  lorda,  1  desire  thit  tbe 
benefit  of  my  peerage  may  be  allowed  ale,a^ 
cording  to  the  statute  of  Edward  the  6tb*. 

L.  IL  S.  My  lord,  your  lonlahip  bu  k- 
manded  the  benefit  of  your  peerage  upoa  Ike 
statute  of  Edward  the  6th,  and  you  must  have 
it  by  law ;  but  1  am  dh-ected  by  their  k>nhfafi 
to  acquaint  you,  that  ynu  cannot  have  thel»- 
nefit  of  that  statute  twice  ;  tlierefore  I  an 
likewise  directed  by  their  lordsbipa  to  nj, 
that  they  hope  you  will  take  a  more  tlno  oiv- 
nary  care  of  your  behaviour  for  the  future,  thtf 
so  you  may  never  hereafter  fall  into  such  ub- 
I'onunatc  circumstances  as  you  have  been  nov 
under ;  my  lords  hope  this  \\  ill  be  so  sensflJci 
warning,  that  nothing  of  tliis  kind  willeur 
hajipen  to  you  again  ;  your  lordship  is  uo«t« 
be  discharged. 

L.  H.  S.  Is  it  your  1ordshi(is'  pleasure  to 
adjourn  to  the  House  of  Lords.' 

Lords.  Ay,  ay. 

L.  IL  5.  Tins  House  is  adjourned  to  ibe 
House  of  Lords. 

Then  the  lords  went  in  procession,  in  ibe 
same  order  that  they  came  into  the  cvnr;. 

*  Mr.  Barrington  (Obs.  on  IQ  H.  7,  c-  " } 
says,  **  1  tind  but  one  instance  of  a  crimii  i 
not  claiming  the  bcnotic  of  clerg\,  nhicli 
that  of  the  duke  of  S«>mers«'t  "  'Sce  ioiha 
Collection,  vol.  1,  pp.  509,  61,'>,  the  nrorffif- 
ings  against  him.  The  rxpiessinn  of  «ir  Jola 
Hay  ward,  to  whom  Banint^tnu  n>tors  (.S»«kif 
*'  Life  and  Keign  of  Edward  iheSiMh")iat 
Kenuctt,  are  obsorvahlt-,  **  The  dukeofMumcr* 
>et  might  have  cravtxl  his  clergy  ;  but  he*rf- 
f Me<l  judiruunt  to  pass."  If  lord  Audby  (l^«' 
his  cuso  in  this  ColUctiou,  vol.  3,  pp.  •101,401, 
■XiXi,  '2  Hale  8  Fleas  of  the  Crono.  c.  4l 
fxach's  Hawk.  I'i.  Cr.  b.  2,  chap.  30,  t.  1S| 
chap.  53,  s.  $8.)  had  !>tood  mute  upun  the  ii* 
dii'tiiMint  against  him  for  the  rape,  he  wtdH 
have  iiititlcd  himself  to  benctit  nf  clcfgyt*' 
so  have  avoided  sentence  of  detlh  apon  tkrt 
coavictioo» 


Trial  of  Lord  Mohun. 


March  29,  1699, 

LBOUT  one  of  the  citvck  the  Lor^«  came,  in 
same  order  as  tiif*  day   before  to  the  trial 

Tthe  earl  of  AVarwick,  into  tlie  coart  erected 
*  Id  Westiiimster^hal!. 
t        C7.  o/*  Cr.    Serjeaut  at  Arms,  make  procla- 

^Sen^  at  Armj;,  O  Yes,  O  Yes,  O  Yes! 
^wiy  Lord  High  Stcwant  UisijTace  does  strictly 
charge  and  comnnand  nil  manner  of  persooM 
Hbere  present  to  keep  silence^  upoti  pab  of  im- 
^wisonment. 

^  SerJ.  at  Arm.  O  Yes,  O  Yea.  O  Yes!     A)J 
manner  of  fiersona  who  areohligeit  to  ^ive  their 
tendance  htfre  fhia  day*  before  hb  grace  nry 
ord  Ht£;h  .Steward  of  Engistud,  let  tbein  give 
keir  attendance  forthwith. 
CL  of  Cr,   Serjeant  at  Arros,  make  procla- 
atioo  ngain. 

Seij.  at  Arms.  O  Yes,  O  Yes,  O  Yes !    His 
?roy  Lord  Hit^h  Steivard  of  England  doea 
aitJy  charge  and  eojiimand  all  manoer  of 
'penoo«  here  present  lo  Ite  uncovered. 

CL  of  Cr.  Serjeant  at  Arms,  iwake  procla- 
mation affain. 
^fc  Serj.  at  Arms^  O  Yes,  O  Yes,  O  Yes  ! 
^Khie/  tjorernor  of  the  Tower  «f  London,  brintr 
^BrttU  the  IxHiy  of  ^otir  prliiouer  Charles  lord 
^Biobuii  lortbnith,  upon  pain  nud  peril  wiU  full 
^fcereoo. 

^m   [Tlien  my  lord  Mobtin  wti  brought  U>  the 
.iiiir.  J 

L,  High  Steward,  (Lord  Somem.)    My  kwrd 

^loliunf  vour  lordship  is  nuw   brou|2fht  upon 

If  our  trial  fur  the  murder  ot   Mr,  Coote.  for 

you  stand  indictefJ  by  the  grand  jyry 

'county  of  kVliddlcsex.     The  kingf,  ivho 

!  that  /iistrce  is  one  of  the  |MHaravvhich 

supports  a  throue,  will  have  a  strict  account 

taken  of  the  blood  of  any  iifh\n  std»jects,  with* 

«iit  respect  to  the  qnalily  oi  the  slain^  or  of  ibe 

person   wlio  stands  chari^ed  with   his  death. 

Thtfre  is  not  one  of  the  nulde  peers  here  present^ 

'who  arc  to  be  your  triers,  but  does  heartily 

^krigh  your  lorditiip  mnocent ;  but  on  the  other 

^Mhle,  »f  you  sh*iiild  appear  to  be  guihy  upon 

^Pthe  evidenre,  you  ofight  not  to  hope  tliat  any 

B^^onsidemtioii  of  relation,  frlend<ihtp,  or  pity, 

will  prevail   ai^ainst  ju<Jtice.     And   therefore^ 

aittce  in  your  present  rondition  every  thing  that 

}[i%  valo5ible  in  this  world  is  at  stake,  it  will  bf 

lii|fhly  neces«iary  for  jour  lordship  to  recollect 

ljoun>elf,  and  tj  hnvc  your  best  thoughts  about 

nrotJ»     Facts  of  ihiij  nature  are  frequently  at- 

*  See  hiH  former  Trial  for  ftliirder,.  Viil,  12, 
.  950.  of  this  Collectinn.  8ee,  also,  Holt,  479  ; 
1  East's  Fleas  of  Uie  €rowii|  c.  5,  •,  ISi. 
2 


>3.  The  Trial  of  Charles  Lord  Mohun,*  before  the  House  oi 
Lords,  for  the  Murder  of  Ilichard  Coote,  esq. ;  1 1  Wjllia] 
IIL  A.D.  1699- 


tended  with  such  unhappy  circumstances,  L..., 
a  noble  person  may  be  justly  covered  wiih 
shame  to  have  faults  and  weaktiesses  cxpcwcd 
la  such  an  assembly  as  this,  altbou^li  he  ha 
not  conscious  to  himself  of  the  guilt  of  blood  : 
but  your  lordship  ought  not  to  be  so  (ikt  dis- 
composed with  any  thou£|rhts  of  this  kind,  as  to 
neglect  y on rdeteticc  against  this  heavy  accusa- 
tioti  of  munler.  In  order  to  this,  it  is  neces" 
sary  tor  your  lordship  to  hear  with  temper 
wit  at  will  be  said  against  you,  and  by  no 
fueans  to  interrupt  the  counsel  or  witnesses. 
I  will  take  care  to  give  your  lordship  notice 
when  the  proper  time  comes  ^or  yon  lo  make 
\oiirobservattonsn|M>n  the  evidence^ to  examine 
your  witnesses,  and  to  say  what  you  thiuk 
proper  for  your  own  defence;  and  when  my 
lords  liare  heard^  and  fully  and  maturely  coti- 
sideretl  the  whr^le  matter,  their  lordships  will 
give  such  a  judgment  as  the  law  and  justice 
require, 

L.  H,  S*  Rend  the  indictment  to  my  lord^ 

CUrk  of' the  Cruicti.    *  Charles  lord  I^lohuD, 

*  your  WdsUip  stands  indirled  in  the  count v  of 
» T^liddlesex,    by   ihc    name  of   Charity   lori! 

*  Mohun    of  Okehamptiin  in   the  county   of 

*  Devon,  late  of  the  parish  of  St.  Martin's  in  the 

*  Fields  in  ihe  conn  1 5  of  Middlesex,  together 

*  ivith  Edward  earl  of  Warwick  and  Holland, 
'*  late  of  the  same  parish  and  county,  Richurd 

*  French,  late  of  the  same  pjirjsh  11  nd  county, 
«  gent.   Roger  James,  late  of  the  same  parish 

*  and  county,  gent,  and  George  Dockwra,  late 

*  of  the  samp   parish  and  county,  gent,  not 

*  having  the  fear  of  God  before  your  eyes,  but 
« lining  moved  and  seduced  by  the  instigation  of 

*  the  devil,  the  SOth   day  of  Ocloher,  iu  the 

*  tenth  year  of  the  reign  of  our  stovereigu  lord 

*  that  now  is,  WiJIium  the  third,  by  the  gmce 
«  ofGodof  En  gland,  Scot!  a  ml,  France,  and  [re- 

*  land,  king,  dt,*cudc*rof  thefatlh,<^c.  wiih  Ibrce 

*  and  arms,  'kv.  at  the  parisli  aforesai<l,  in  the 

*  county  of  Middlesex  atoiesaid,  in  aud  upon 

*  one  nichnrd  Conte,  esq.  in  (he  peace  of  God, 
'  and  oTirsaid  sovereign  loril  the  king,  that  now 

*  iiJ,  thf  n  and  there  beings  feloniously,  wilfullv, 
*■  and  of  your  ma  hce  afore -thought  did  make 

<  an  assault ;  and  thnt  the  afortsaid  Kdwanl 
*■  earl  of  Warwick  and  Holland,  with  a  certain 

*  sword  made  of  iron  nnd  steel,  of  the  value  of 
'five  Khillings,  which  he  the  said  Edward  earl 
*■  of  W'ar^vli'k  and  Holland  in  his  right  hand 
« then  and  there  had  and  held  draw  n,  the  afore* 

*  said  RirhKrd  Coote,  in  and  upon  the  left  part 

<  of  ihe  hreoNt  of  him  the  said  Richard  Coote, 
'  near  thii  collar- bone  of  him  the  iinid  Richard 

*  Coiite,  then  and  there  feloniously,  voluuiurtlyi 
'  and  of  his  malice  afore* tliought,  did  strike, 
■  stub,  and  thrust  in^  gifiog  to  the  ^Id  Richari 

i 


^  Ctiote,  then  and  there  wttfa  the  eword  drtim 
^  al^Kenidy  in  and  apoB  the  1^  part  of  the 
^•bceartdf  Urn  tbaa&I.Vkteri  Geete.  Mfer 

*  the eoBar-boneeThim  th6  said  RMuadCoole, 
«.«»  MrtAI  Iroand  of  tiM  hMdib  oChplfaa 
^  iiidi,  and  or  the  Septhof  fif^  iochee,  c^  whidh 
«  eaid  oortal  woaod  he  the  afbraaid  Riduurd 

*  Coote  then  and  there  uMtaotlv  died  ;  jui4 
t  that  yet  Om  Add  fM  Meiim^loMkr  wftfa 

^Ga8nnl>ftektrra,tfa«iaiMl'AM  ~ 

pnataaL 
«t  nd 

Warwicit  ahd 


4 
4 

4 
• 

<;  Wehavd  Cooie  ki  maMier^and  ftm  lMetdd» 

•  MeoioMlT,  wilfUly,  and  of  his  malieb  aJRwt- 
« thMMrin,  tol^  and  mindw ;  and  so  the  said 
^^BdMddeaiHr  Warwick  and  Uolhuia,  and 
^jMirfw  sdM  Chalks  lordHohail,  ttchard 

•  mneh,  Retfer  JaflMS,and  GiMrt[eI)bdkirra| 
^  the  afbreisM  Richard  Code,  hi  manlier  and 
'ftm  afcresaid,  lielonioiMj,  wiKoltr,  dndtf 
*y#ar-  nallee  afere-ihougfat,  M  kil  'and 
'  ttifeWTi  affiiost  the  peace'  of  onr  sof|Hp|p 

IM  'the  ko%»  that  now  1%  his  orown  and 


*«?•; 


Cr.  HowsavTOOiChaiteslordMo- 
Imn,  are  you  guilty  or  this  felony  and 


Bof  yon  aland  lodiotedt  ornot  gnilqf  P. 

Jj^Mokun,  Noignilfrv. 

€L^Cr.  Colpnt,  How  will  yon  be  tried? 

Lb  Jmiul  By  God  and  m  j  pitft. 

'CLrfCr,  GJd  send  yonr  wmUp  good  de- 
lifeninee. 

CL  qfCr.  Serjeant  at  ArmS;  make  procla* 
mation. 

Serj.  at  Arm,  O  yes,  O  yes,  O  yes !  All 
manner  of  persons  that  will  ci\e  efidence  on 
behalf  of  our  sovereign  lord  the  king,  against 
Charles  lord  Mohiin,  the  prisoner  at  the  bar, 
let  them  come  forth  and  gi?e  their  eridence ; 
for  now  be  stands  at  the  bar  for  his  deli- 
rerance. 

L.  Mohun,  My  lords,  I  desire  I  may  ha?e 
the  benefit  of  pen,  iuk,  and  paper. 

L,  H,  S,  \  our  lordsbii)s  are  pleased  to  per- 
mit my  lord  BXohuu  to  have  pen,  ink,  and  paper? 

Lords.  Ay,  ay. 

[Pen,  ink,  and  paper  were  carried  to  my 
lord,  by  one  of  the  dorks  of  the  House.] 

Mr.  CoTrper.  May  it  please  your  lordships, 
my  lord  Moimn,  the  prisoner  anlie  bar,  stands 
indicted  by  the  grand  jury  of  tbe  county  of  Mid- 
dlesex, bei'ore  commissioners  of  Over  and  Ter- 
miner in  that  county ;  and  tbe  indictment  sets 
forth.  That  Edward  earl  of  Warwick  and  Hol- 
land, Cbarles  lord  Mohun,  baron  Mohnn  of 
Okehampton  in  the  county  of  Deron;  Richard 
French,  Roger  James  and  George  Dockwra, 
the  SOth  of  October,  in  tbe  tenth  year  of  his 
majesty's  reign,  with  force  and  arms,  at  thf 
parish  of  St.  Martm  m  the  Fielda,  in  the  county 
of  Middlesex,  upon  one  Richard  Coote,  esg ; 
feUmkHoly,  wilfolly,  and  of  their  malioe  afbre- 
tiMraghtydidmakeaBaaBiiilt;  andthalthenud 


.EttwurJ  earl  of  Warwick  inf  Hotland^  witb  i 
tlrawti  svvord  tbcci  in  bis  right  bam),  \hw.  uii 
litchard  Cixttei  opoo  ih^  h(i  pOLri  of  bb  brtui 
ucar  ttie  collar  bone,  did  strike,  slaU,  utal  tluiij^ 
^mng  him  tber^by  a  inon^l  womd  el'  lit 
bieudiU  orimlfaQ  iucb,  anil  tbe  sW^  sf  in 
inche^y  of  ivbkh  woiifiiJ  E»e  ii»tanl1y  tfivd;  tkt 
my  lord  MoUun^  Mr.  French^  Mr.  jMutstnl 
Mr.  Dock M  ra ,  f«loabii«ly ,  wtl fii]  {y ,  M\d  i^f  ihat 
malice  alureihoii^ht,  wevB  prc^nt,  aiding,  vd 
abetting^  my  brd  of  Warwick  ^oA  BallaB^ 
ttte  said  Hie  hard  Cfwte,  in  tnanuer  mfMrtwdi 
to  kiH  ft  lid  murder;  dud  then  ^oodul^ 
so  thai  the  earl  of  Warwick  aiul  UfflJMij 
the  Kaid  lord  Mohuii,  Itidtard  Fretieh,  BifV 
James,  fiod  George  Docknr^,  the  smid  EdMri 
Coote,  In  manuer  mid  foriii  ^foie^iiJ, 
ously,  wilfutly,  ^nd  of  their  insi1ic« 
ihought,  did  kill  aintl  murder,  a^£ia  iJie 
of  the  king,  hia  erowa  aorl  di^jnily,  *" 
imhctmPM  aiy  brd  Mohuii  b*a 
giuHy,  aij^t  for  hb  trial  ha^  i^iit  Ii)j 
Ciod  and  y<^Mr  lofu*ihfjj^,  In^  i^offji,  W« 
'call  otir  witucssi^,  mul  |»ru(lii^  ^%hH  ctidcw 
we  have  16  ^i^c  to  piove  my  toid  M^0 
gutliy,  and  to  suhyta  il  lo  you, 

Ji{<irne^  GcfitriiL  (S»r  Th^m^i*  ttrm*} 
My  lordi,  this  noUit?  lord,  my  l^jnl  Mobytt*  d» 
prisoner  at  ihe  bar^  ^tntiik  mdictrd  fm  Uiftdiilh 
of  Air.  Coote,  t^ticr  of  the  kiog^^  siihjfsdti  M 
vour  lords htfis  ha^e  heard  in  Uip  ai*»v  tl  "  ' 
heforc  \'ou  jeisterday  ;  lo  which  ludivloi  „ 
bath  |ileaded  uali;uiky,  and  for  hit  tryd 
pnl  lirmself  upon  my  Larcb,  who  arc  \m  pivr>i 
I  shilt  veiy  shortly  open  th^  £obstADc«  tiftbs 
crideiicc  thai  we  shall  uffer  for  ihe  king  ttjpiii 
my  )oi  d,  the  prisoner  at  the  bar ;  ire  mm  f9- 
duco  evidence  to  t»roTp,  that  at  the  time  km  it 
the  iudictuientj  the  gpth  of  Oaolier  at  uig^H 
and  tl>e  next  marning,  ivhich  nas  Stuidiiy,  anf 
tord  the  i^risooer  m  the  bar,  and  my  ^t)  ^ 
Warwick,  (who  hu  bt'en  fouad  guilty  of  mm^ 
slatig'hter  upon  this  indictmeat  before  }m 
lord !i hips]  and  thosa  other  penvni  %h»l  *tc 
named  in  tbe  indictment,  captalu  Frcocb.af^ 
tain  James,  and  Mr^  Dockwra^  and  the  gruLlt- 
man  that  waa  killed «  hftppeni^  to  bv  at  e^ 
Greyhound  tavern  b  the  Strand,  which  ai>i 
th^  ke^A  by  Mr.  I^ocket,  and  coutinued  tb«* 
a  great  part  of  the  nigbl*  indeed  til!  the  ocit 
murniu^p  about  one  or  two  of  lh&  clock  io  l^ 
morn  in  If  ;  there  waa  mv  lord  of  WarW'iLkiWf 
lord  Muhun,  captain  French,  captain  C^v^ 
and  i^!r.  Dockwra  ;  but  very  late  in  the  aiglet 
tbe  other  geDiieman,  Mr.  JmwKMf  was  idttigi 
A  meneoffer  waa  sent  particularly  to  hare 
come  to  them ;  there  they  coniiooed  dif~^ 
till  about  one  or  two  of  the  dock  m  tha  ^ 
iiig»  then  coaches  were  sent  ibr;  thailjh 
drawer  of  the  house  wiQ  acfountyeiirJlH^ 
ships,  that  he  went  for  theoi,  and 
any  at  that  tune,  being  a  TOiy  dark  night}  i 
when  there  could  be  no  coachea  Mm,  ) 
there  were  chairs  called  for,  and  the  iti 
went  to  call  chairs ;  and  an  wa  shnll  «L 
apfiear  to  your  lofdshipa,  when  ihn  f 
CUM  back,  then  did  ifpov  l»AgM 


f037]  for  ike  Minder  nf  Richard  CootCy  esq.  A.  D.  lC9f>. 

imotig  them,  for  there  was  cinshtnnf  of  swonU, 
ind  they  scemcfl  to  be  divifled  into  tuo  |>artU's ; 
Ml  the  one  side  \f ere  ray  \on\  of  Wnruick,  tny 
iird  Mohuu  the  prisoner  at  the  bar,  anil  Mr, 
C*oote;  on  the  other  side  were  captain  French, 
[Uptain  James,  and  Mr.  Dockv  ra ;  and  first 
ihere  were  two  chairs  came  to  the  door,  into 
which  Mr.  French  and  Mr.  Cooie  vent,  and 
vbeo  they  were  in  the  chairs  m^  lurd  l\f  ohiin 
i»me  out,  and  saiil  he  would  kill  r.ny  of  the 
ehaJmicB  that  went  awa}' ;  and  so  they  put  up 
if^iD,  and  the  gentlemen  came  out.  aiitlcaine 
into  the  house ;  hut  afterwards  Mr.  Cniite  went 
■ito  the  first  chair,  and  my  lord  of  Warwick 
■lo  tlie  next,  niid  my  lord  Mohan  into  the 
third,  and  then  they  went  away ;  and  the  other 
three  gentlemen  went  into  the  other  three 
chairs,  ami  followed  them.  Yonr  lordships 
win  hear  m  hither  thev  were  all  carried.  When 
they  came  to  the  entl  of  St.  Martin's  lane  in 
the  Mtrand,  my  lord  Molmn  would  indeed  ha^e 

cadeavoured  to  ha?e  penuaded  Mr.  Coote  in 

|«tienhir  to  have  gone  home  for  that  night, 

wti  let  the  business  alone  till  another  time; 

Wt  Mr.  Coote  \«ould  go  on;  and  while  the 

three. chairs  carried  my  lurd  of  Worwick,  my 

MMohun,and  Mr.  Coote  to  St.  Martin's  hoc 

Otf,  which  were  the  three  first  chairs  that  went 

tny  from  l^iocket's,  the  other  three  chairs  that 

vent  after  them  OTcrtook  them,  and  then  by 

Mr.  Coote's  command,  the  chairmen  that  car- 
lied  hhn  went  forward  towards  Leicester  fields ; 

iid  then  this  noble  lord,  my  l^^rd  Mohun,  did 

.^»  Jf  you  go  on,  I  will  go  and  see  the  end  of 

%9ad  onlered  the  chairman  ttmt  carried  him 

ti  gtt  afler  those  chairs  in  ivhich  my  lord  of 

Wtnrick  and  Mr.  Coote  went;  and  cccord- 

3^  they  did  go  till  they  came  to  tlie  hither 
of  the  square  in  Leicester  fields,  near 
^reen  street  end,  where  my  lord  Mohun  pot 
Oat  of  his  chair,  and  paid  for  all  the  three  chairs 
l^ne  shilKogs.  But  wc  shall  not  be  able  to 
gm  to  3'onr'lordships  an  account  particularly 
■s  to  ny  lord  Mohun,  what  be  dirl  afterwards, 
hit  we  shaM  call  our  witnesses  to  prove  what 
^  have  opened ;  and  when  our  witnesses  arc 
beard,  we  shall  leave  the  matter  to  your  lord- 
iqipB*  jodigiDeDt. 

Smuel  Catctkorne^  which  was  the  drawer 
tateni  at  Locket's,  was  sworn,  and  gave 
kk  eridenoe  to  the  same  effect  that  he  did  the 
day  before.] 

Aii.  Oen,  Pray,  will  you  acquaint  my  lords, 
Mm  were  at  your  house  the  S9th  and  noth 
bf  Oictober  last,  Saturday  night  and  Sunday 
ttnonAng? 

Cawtkome.  There  were  my  lonl  of  War  wick, 
>tiy  lord  MofauQ,  captain  Coote,  capt.  French, 
Mr.  Dockwra,  and  Mr.  Jnmes. 

AtL  Gen.  flow  long  did  they  conliiuie 
^cre? 

Cnr.  Till  between  one  and  two  o'clock  in 
Kbe  iDoming. 

Atf.  Ctn.  Pray,  will  you  acquaint  my  lords 
>ehat  happened  at  your  master's  house  at  that 
tSae;  yoa  ccmember  what  evidence  you  gave 


[1038 

ymterday ;  tell  the  whole  matir^rncrain^  becnuKe 
it  relates  to  another  nuble  lord  tliat  is  now  at 
the  bar. 

Cuu\  Tlie  reckoning  was  called  for  about 
that  time,  and  1  wcut  up  and  took  the  rec^kon- 
ir«r,  and  all  the  ircntlenien  came  down  to  the 
bar,  and  coucluts  were  sent  lor;  1  went  for 
tbein,  but  ih»  coaches  could  be  had :  then  chairs 
were  wj\l  for,  and  I  called  for  chairs,  and  there 
came  two  chairs  to  the  dtior,  and  into  those 
two  chairs  went  capt.  Coote  and  capt.  French ; 
and  my  lord  M(dinn  and  my  lord  of  Warwick 
endeavoured  to  quiet  them,  and  to  [»ut  off  the 
business  till  another  day,  and  thereupon  they 
came  out  of  the  chairs,  and  came  iuto  the  house 
again;  my  I:>rd  Mohun  did  desire  there  might 
be  no  quarrel,  and  would  have  Mr.  Coote  go 
home  with  biin  to  his  lodgings  at  Westminster, 
or  he  would  go  with  Mr.  Coote,  and  said  there 
should  be  no  quairel  that  night:  there  were 
then  throe  of  thrm  on  oue  side  of  the  bar,  and 
three  of  the  other  side,  and  their  swords  were 
all  drawn.  My  lord  of  W*arwick,  my  lonl  Mo- 
hun, and  Mr.  Coote,  were  of  one  side,  and  cap- 
tain French,  capt.  James,  and  Mr.  Dockwru, 
were  of  the  other  side :  1  was  without  the  house 
when  llie  sworils  were  first  drawn  ;  but  I  heard 
my  lord  Mohim  say,  I  lia\e  gut  a  cut  finger  by 
endeavouring  to  part  them ;  and  at  first  when 
the  chairs  came  on,  my  lord  Mohun  said,  if 
they  did  quarrel,  he  would  send  to  the  guanl^ 
for  n  fi|p  of  musqueteers,  and  secure  them ;  so 
that  he  did  what  he  could  to  prevent  any  quar- 
rel :it  all ;  and  when  he  had  received  the  wound 
in  his  hand,  I  helped  him  to  a  naj)kin  to  wrap 
bis  hand  in,  upon  the  bleeding  ol  it:  then  my 
lord  of  Warwick,  my  lord  j^loliun,  ami  captain 
Coote,  went  away  in  three  chairs,  and  my  lord 
Bldhim  gave  order  to  go  down  to  SVestmmster; 
and  there  were  three  chairs  called  for  by  the 
other  three  persons ;  two  did  come,  and  capt, 
French  and  capt.  James  went  into  them ;  aiid 
the  sixth  not  being  come,  they  staid  till  it  did 
come,  and  then  they  three  went  away  too  ^  the 
chairs  were  all  ordere<l  to  go  home  with  thcin  i 
my  lord  of  Warwick  and  my  lord  Mohun  gave 
oraer  to  their  chairs  to  keep  close  with  Mr. 
Coote ;  find  the  other  three  chairs  immediately 
followed. 

Ait,  Gen,  Pray,  will  yoo  consider,  and  re- 
collect with  yourself,  was  Mr.  James  there  a£ 
first? 

CatL\  No,  I  was  sent  for  him  about  ten 
o'clock  at  night,  and  there  he  continued 
with  them  till  they  went  all  away  in  the  si.v 
chairs,  and  he  was  almost  fuddled  when  he 
came  in. 

Alt.  Gen,  When  Jiur.cs  came  in,  was  his 
sword  drawn  ? 

Cr/u.  liis  swoid  wes  in  the  scabbard,  but 
the  scabbard  was  broken,  and  betook  and  broke 
his  swurd  stamping  upou  it.       ^ 

Alt,  Gen,  IVoy,  ean  you  tell,  you  being  up 
and  down  in  the  ruuni,  what  was  the  oucasioB^ 
of  the  qi!urrel  i' 

Cau,  Indcoil  1  cannot  tell ;  but  some  words 
past  when  they  were  below  staira  h^  v^ji^  \siw 


MR^.        U'WOXIAIf  UL 

?rom  capt,  C^wte,  that  he  wo«ld  laugh  when 
le  pkasfid,  «fld  IVqwd  when  be  plea^ ;  and 
Mr.  Ilockwra  did  my^  Ihat  Uiey  would  fif  Lt 
theiA  n'li^iierer  tliey  pfcafbed  woe n  tUey  went 
fw&y  ;  hut  I  did  QDt  observe  that  there  was 
mnj  qiiarrt'l  between  them  while  they  were 
kbore,  nor  any  swords  dcawti  till  after  I  came 
pom  calling  tbe  chairs, 
,  Aii.  Gen.  W^re  all  the  sirofds  drawn  at 
pom  ? 

0*&',  They  were  all  drawn  when  i  came  m 
irom  cdllai;  for  the  coaches  ami  the  chair^ 

5nd  three  were  with  in  the  bar^  and  three  were 
rilboyt ;  thej^  wefe  puttioi^-  up  their  swords 
^H^beo  I  come  ID  agmin ;  indeed  I  do  not  Jiodw 
"^ly  thing  of  the  quarrel. 

L  H*  S.   My  lord  Mohuji^  will  you  ask  Ibis 
witness  any  qfieslious  ? 
'    L.  Mohun,  I  ndiHd,  I  think  I  neetl  not  Mk  him 

riy  qyeiition  ;  but  yet,  if  your  lordships  please, 
wouhl  ask  hi 01  th'isi^  VVTiether  directly  or  in- 
directly I  was  any  way*  coni?erned  in  the  quar- 
f^)f  m\  whether  I  did  aot  eDdeavour  all  that 
ever  I  could  to  quiet  them  ? 
.  *  Caw.  Ves,  indeed,  in y  lord  ^Hohon  did  ctI' 
dearour  alJ  that  ever  be  could  to  preTent  aoy 
l^iarrel  at  that  time. 

L,  Mohti ji.  0id  I  say  any  thing  tending-  to 
the  proiiioiiog'  of  a  quarrel  or  fightiBg  atnooi^ 
them  T 

Caw.  Ko ;  my  lord  Mohut]  did  not  promote 
ftHy  tbin«f  of  the  quarrel  between  them,  hut  be 
cliiTssy  two  or  tbvee  times^  that  he  would  send 
for  the  guirJ^  to  secure  them,  and  keep  them 
from  figbtin^r,  both  at  the  door  of  the  bouse, 
and  at  ihc  b^^r,  and  asked  for  a  napkin  to  wi-a[i 
uji  his  hand  iui  for  the  wound  which  lie  said 
ho  i^M  in  endeavouring  to  quiet  and  part  tliem, 
And  prevent  their  light mi^. 

L.  Makufi.  That  is  nil  that  I  would  ask  him, 
i%helher  I  did  not  endeavour  all  that  1  could 
to  prevent  any  quarrelling  or  fi^hlinji^  at  that 
lime? 

VaiL\    Yes*  indeetl,  my  lord  did  so, 

Ia  H.  S.  He  has  said  so  already,  my  lord, 
ftni)  therefore  there  does  not  need  any  turther 
eiianiinaiioD  of  bim  to  that  point ;  if  tiotli  siites 
fiave  done  with  this  witness,  let  him  gg  down, 
(Which  be  did.) 

L.  H,  S*  Tbeo,  Mr,  Attorney,  who  is  your 
next  witnc>»  ? 

Ati.  Gen.  Our  neit  witness  is  Tfiomas 
Browne,  who  wai  one  of  the  chairmen  that 
carried  Mr.  Cooteinto  Leicester- fields*  [Thoti 
he  wns  sworn.] 

X-  H^  S.  VVhat  is  the  question  you  would 
ask  him,  Mr,  Attorney  ? 

Ail.  Gen.  My  lords,  I  desire  he  mav  he 
asLl^d  and  examined,  and  ocfjtiaiut  your  lord- 
•hipM,  who  it  was  ihst  he  carried  fpfim  Locket^s 
the  21>th  of  October  last  to  Leicester- fields,  and 
what  time  it  was  of  Iho  nij^bt  ? 

Browne.  I  cirri ed  IVTr.  Coole  to  i«y  cliair. 

Alt.  Om.  Whither  were  you  directed  to 
earry  him  ? 

Brtmne,    To  Leicester- fields, 

AtL  Oen^  \V\m  llmfH  of  night  wu  it? 


Brvwt$e,   It  was  three  qnarters  paftonrfii^ 
near  as  I  could  ^uess* 
*      Au.  Gau    Pray,  what  other  diaijt  ii«| 
there  tliat  went  sdoiig^  with  y  ou  ? 

Brow  fit.  There  were  two  other  chairs, 

Ati.  Goi.  IVho  were  in  those  chairs,  \nff 

Broune.  There  were  my  lord  of  War^tidi 
one^  and  my  Irird  Motiun  in  (be  other. 

Ail  Gen,  Did  you  three  gto  away  fxift< 
Locket's  together? 

Brm*n€.  Yes,  we  did ;  and  when  ^t  tm 
bid  to  lake  up,  we  went  to  the  end  of  8t.  Mi^ 
tio*ij-kne,  and  turniog  up  at  the  eiwl  ^4^,  !lft^ 
tin's- lane,  there  my  lord  of  War w irk  sad  wj 
lord  J>lohuD  called  out  to  capt.  Coot£  lu  tt4|, 
and  to  turn  down  to  g:o  (a  Westminster ;  i$ 
Mr.  Cooie  wouUl  turn  up  the  lane,  and  m\  M 
of  Warmck  and  my  lord  Motmn  tnaiet  m 
at  the  hack  door  of  il>e  Cross- Eeyss  lafwii,isl 
hotb  of  them  persuaded  ^Vr.  Coote  to  ^\ii\k4 
till  the  next  morning ;  but  be  would  aot,  h 
said  Lie  woitb]  make  su  end  of  it  that  0^% 

Au.  Gen,  Pray,  recollect  youi^ff  did  iky 
nime  aniotig  tht^m  what  their  business  wiitlni 
.  ihe^v  would  make  au  end  of? 

hrtmnt.  No*  Ihey  ilid  not. 

Ati.  Ccn,  Who  was  it  that  stopped  it  St 
Martin's- lane  end  ? 

Browne.  When  wc  were  turning  ujt  it  St 
Martin's -lane  end,  my  lortl  of  ^Varwid  «nd  sf 
iord  Aluhun  called  out  to  stop,  autl  uked  Nr. 
Coole  whither  he  was  foinj^f  sndwhtak 
taid,  to  Leiceater- fields,  m^  lord  MohaaMliI 
out  to  us  to  set  dowu^  which  we  diil.  «l  ^ 
back-door  of  the  Cross-  Keys  tai  ern ;  ibn  U 
hntli  of  them,  my  lord  Warwick  and  m^  )xKi 
I^lobuii,  persuade  Mr.  Coote  t<»  ^o  hoyii  i 
Westminster,  and  not  to  end  the  buaw«iillil 
night  :  but  Jie  would  go  on  ;  and  wbUl  *t 
were  there,  there  went  three  other  chairs  ujjSl 
M  art  in  V  lane  on  the  other  side  of  tbs*ij« 
thf^n  Mr.  Coote,  who  was  in  oiu:  chair,.  hii9 
take  up,  and  follow  thofie  chairs  inio  ibi^  fd^ 
and  swore,  Damn  him^  he  would  run  hiicfftii 
mio  t»ne  of  us,  if  we  did  not  loske  hsik,  im 
overtake  those  other  chairs,  and  pa 
tbem  ;  I  think  tu«  words  were,  ^  Dajna  ii| 
*  1*11  run  my  sword  into  your  breech,  if  yoD4t 
^  not  make  baste,  and  ^t  helbre  that  ^^ 
'  chair,* 

AH.Oen.  You  say  then,  they  went  «U  iiiT 
leather  up  to  Leicester- Bc4 ds  f 

Bt€}iL'fw.  Yes,  they  did  so, 

Ix»rd  AMun.  1  desire  he  may  be  labi 
Whether  I  did  not  desire  him  to  g\i  bovtfii 
nae  to  my  lodging-  at  Westminster  ? 

Bromne.  Yes,  you  did^  and  bcgg^ed  ofhiiB 
if  it  had  beeu  for  an  alms,  that  he  would 
for  that  nig'ht ;   hut  when  the  other  chi 
by  uf  atCharing-cro^i  in  St,  Martin V! 
would  have  the  chair  takeo  up«  and  us 
what  haste  we  coulil  to  ^et  before  them  I 
or  else,  he  swore,  danan  hica,  be  woukl  i 
sword  into  one  of  us,  if  we  did  not  101 
to  get  to  Leieester- fields  before  the  oth 
that  went  up  tl^e  other  side  of  the  wi 

Au*  Qcn*   Wheu  Ui«  other  chiin 


Aodvou  weot  away  to  Leicester- fields,  pray 

1  my  lards  wliat  happeoed  then  ? 

Brownt,   We  went  away  to  Leicester- fieWs, 

jvtken  we  came  to  Green* street  end,  and  were 

-itig  U]>ou  tlie  s<|uare  upon  the  broad  stones, 

>  CooUs  called  out  to  us,  atid  bid  us  to  set 

I  fUiOTo^atidso  did  the  otber  twocKairs;  and 

I  be  put  bis  band  into  liis  pocket  to  dis- 

\  us^  my  lord  of  Warwick  put  liis  hand 

k^pocket  to  pay  ttie  three  chains,  Bri<l  Mr. 

Otfercd  half  a  g-iib^  to  diseliarge  the 

atid  my  Ion)  Mohun  did  produce  Ss. 

Lh  it  discharged  all  the  three  chairs,  and 

all  three  walked  away  togetlier  forward 

tbe  broftd  stouet,  on  the  right  hand  side 

be  ivay  ;  it  wufi  su  dark  a  (li^t,  1  eouhl  not 

hdf  a  dozen  yar^ta  from  me ;    it  was  the 

:  mu\M^  1  think,  that  ever  I  saiv  in  all  my 

I  and  therefore  I  cannot  tell  what  bucamc  of 

^er  they  went  nut  of  the  chairs, 

ii«.  Pray,  did  you  see  my  lord  Mohuo 
if 
No,  I  did  never  see  my  lord  Mohiso 
tarda  liH  now  here  at  the  bar. 
iit.  Gen,    You  say  it  was  so  dark,  that  you 
1  not  see  three  yards  from   you ;    pray, 
t  did  bappeu  afterivards  when  you  were  in 
;  field  ? 

ifie^  A  lillle  while  after  we  had  set  d')wn 

;  gentlemen,  1  ft  I  ted  my  pipe  out  of  my 

,  and  before  i  could  fi£;lit  it,  1  heard  a  call- 

I  of  cknirs,  chairs,  and  1  weoi  up  towards  the 

r  the  square,  where  the  noise  was  ;    and 

1  came  there,  they  would  have  had  me 

e  ctiair  over  the  raits,  and  1  told  them,  if 

lid  I  could  not  lift  it  over  a^ain  :    but  they 

L  occmIs  have  me  lift  it  over*  and  1  did  so ; 

y  the  liorlji  of  the  lauthorn  1  saw  captain 

ch  aiui  c:iptain  Jamc!i  lioldmg  up  captain 

otr,  and  they  did  desire  me  to  ttike  hiiii  into 

r  diair^  hut  lie  was  in  such  a  mndition  that  1 

aid  not  gel  hitn  into  the  chair ;  it  was  before 

oold  wcUlijrht  my  pipe  the  chairs  were  called. 

Aii.  Gea.  Who  did  call,  can  you  tell  f 

Brotcne,    No,  indeed,  I  cannot  tell  who  did 

fl  cliairs,  but  it  was  a  voice  from  the  upper 

1  of  the  helds,  and  we  lifted  our  chair  over 

Ills  into  the  fields,  and  there  were  two 

m  holding  up  another  man ;    1  have 

I  it  said  it  was  captain  French  and  captain 
^  J  and  they  cried  out,  Dear  Coote,  Dear 

II  and  would  hai^e  had  bim  gotten  into 
sehair,  but  we  could  not;   and  ray  lord  of 

Warwick  did  then«!iay,if  any  damage  did  come 
to  the  chair,  though  it  were  100/.  we  should  lie 
pati^tied  for  the  damage;  but  we  wens  not  able 
ta  get  him  into  the  chair,  and  itiihere  wo  lefl 

^L  Alt.  Gen*  You  say  you  savv  two  gentlemen 
^Bplditiff^  up  Mr.  Coote,  and  it  was  a  very  dark 
^wrbt,  bow  could  you  tell  who  those  geDiJcmen 

^^  Brtmne.    I  could  not  see  nny  thing  of  them 

till  we  caoie  up  with  the  candle  close  to  tticm> 

Alt,  Gen,  And  what  did  they  say  when  you 

tfacne  up  close  to  the  chair? 

Mrowne.  They  offered  lue  an  IQOL  tatisfac* 

vaL,  xtii. 


1 


tion  for  any  dama^  to  my  chair ;  but  they 
could  not  get  him  in,  for  he  was  at  that  time 
dead,  I  believe,  for  we  went  to  hale  bim  up« 
and  to  get  him  into  the  chair,  but  we  could  nol 
doit. 

Alt.  Gen.  Can  yon  tell  who  the  two  pcrBoni 
were  that  held  him  up? 

Browne,  No ;  h\i\  by  the  description  of  tin 
persons  tbey  had  suph  cloaths  on,  as  that  they 
must  l>e  captaiu  French  and  captain  James ; 
but  indeed  l  cannot  swear  directly  who  they 
were  that  were  there,  nor  who  they  were  that 
catletl  lor  chairs  at  the  upper  end  oi  the  field  ; 
but  when  our  chair  was  lifted  over  again  over 
the  rails,  and  we  came  to  the  corner  to  see  whw 
should  be  taken  in,  thero  came  one  to  us  who 
bid  us  carry  him  to  the  Bag^uio  in  Long- Acre  ; 
and  thither  we  did  g^  accordingly. 

Alt.  Gen.    Pray,  can  you  tell  who  the  per 
sons  were  that  held  up  the  ^fentlemau  thejrL 
ivould  have  to  be  (^ot  into  the  chair? 

Brcfwne,  No,  ioileetl,  1  cannot 

Alt*  Gen.  Pray,  can  you  describe  them  so 
to  know  thetD,  w'hetlier  my  lord  of  WarwicI 
and   my  loi-d  Mohun  were  those  two  gen 
tlcmen  ? 

Browne,  My  lord  of  Warwick  and  my  lord 
MohuQ  were  not  there,  I  am  sure,  for  I  know 
them  very  well ;  t  was  acquainted  with  then] 
before;  and  when  1  came  up  10  these  gentle- 
men with  the  candle,  there  waa  one  of  them 
was  big-ger  than  my  lord  of  Warwick,  or  my 
lord  Mohun ;  and  ihe  elder  of  them  had  other 
sort  of  cloaths  thau  either  of  them  had  on  at  that 
time,  as  we  could  ^e  when  we  came  up  cIok 
with  the  candle  to  them. 

Ait,  Gen.  Were  there  any  lights  of  tha 
lamps,  thai  are  usually  in  the  streets  at  that 
lime,  about  tlie  square  ? 

Browng.  Yes,  there  were  those  lights  ;  but 
it  was  a  very  dark  ni^ht,  and  we  could  not  see 
two  yards  before  us,  that  I  am  sure  of;  and 
there  was  nobody  else  that  I  saw  at  lb  at  lime 
at  the  upper  end  of  the  field,  but  those  two 
gentlemen,  holding  up  of  captain  Coote,  whom 
we  had  brought  up  before  to  the  square,  and 
leil  him  with  the  earl  of  Warwick  and  my  lord 
Mohun  at  the  bottom  of  the  square ;  but  whi- 
ther they  all  went,  indeed  1  cannot  tell :  wm 
called  watch  ;  but  they  said  il  was  not  within 
their  ward,  and  theretbi*e  they  would  not  come. 
When  we  saw  how  ill  Mr.  Coote  was  upon  our 
comiug  up,  and  that  he  could  not  get  him  into 
ihe  chair,  we  went  away,  lifted  our  chair  over 
the  rails  afrain,  and  carried  a  gentleman  to  tlio 
Bi^oio  in  Long;- Acre.  ^ 

L.  Mshun.  I  have  a  question  to  ask  thii^^l 
witness,  and  that  is,  how  tar  the  place  is  whi^^^f 
ther  b^  carried  the  chair,  that  is  from  Green- 
street  end,  to  the  place  whither  the  cliairs  were 
called  lor  agfaio,  at  the  upper  end  of  the  paleSt 
where  he  tbund  the  two  (penllemen  holding  up 
Mr.  Coote,  and  eudeavouriog  to  gtt  him  up  into 
the  chair  ? 

Bntwnt.   I  believe  it  is  about  filly  yards 
near  as  I  can  guexs. 

L*  Miilmn.    I  desire  to  ktiQw»  whelher 
3X 


lOMt)        ll,4?IUiAM  IIL    . 
low  tad  •fMioiMaril^f 

JUJIbAiiii. '  I  deure  to  aik  Un,  whetiicr 
^n^t^mfmthfb  affiUwfery  fcNmcilidoribe 

J^wM, . Yiii  «iy  loiri,  Um  lovtr  cod  of  the 
Mi  of  81..  MMlbi^-luie  into 


«a«MrAr 
Old  oriln 


jm.  6^.  But  did  yoaaw 
SlitMplMer 

;  JBfWM.  Ycfp  whik  I  wai  filli«f  ny  pine 
Ml  of w  b9K»  tl«rw  tjthtf  ibidm  dideamo  l7» 

SWMt  Awi^ }  bnl  wkhui  a  Gllle  while  aftw 
fiUiflff  oC  JDV  MM,  or  ittthfer  bofera  I  ooaM 
w«U  lUnt,  or  IH^  it»  wo  hcoid 
choin  agaui,  towudo.  tbo  Qpoor 
fiddiLOBd  wo  omiod spoor  d 
•ndtboro  wofoondi  at  1  Iwfo  MM  jon, 
genOonen  |iiili%^  op  If  c  Cooio^  oad  d^ 
oat;  my  dew  (M&i  my  dooir  Coiloi 

JK^  Gm.  Goa  yoa  laU  wiM  il  tmolhol 
fldW  4br  tlm.ohoim  flm  ooeHidliifeek  wIm 
yM^tmiBlboMdof  . 

BrowM.  Np,  ittdeed,  I  eamwl;  M  Ih&f 
ifi^hf^fm  affariur  odroMr  ofor  tiw nOi, 
•■dwodidr 


IHftil 


lnhM  wot 


did  AMI 


w  oahr  two 

who  ihOT  wofo  portibiilttly^  till 
to  Aemi  Ihilwo  ood.ooo 


Mlhi»  Iqrtho  lighior  thooMdloifi  o« 
telhoni  I  oBd  .th«j  would  hofo  .hod  «■  pot 
Mr.  Coolo  hrto  oor  dioir,  ood  ho  hdoy  voiy 
moefa  woonded,  they  would  hafo  had  oo  carry 
him  away ;  we  told  them  it  woold  apoil  omr 
chair,  and  we  coold  not  beaidei  lift  him  over 
the  rails  again  ;  they  promiaed  we  should  have 
any  satisfeption  for  damage  to  oor  chair,  even 
to  the  value  of  a  hundred  pounds ;  we  went  to 
heare  him  up  to  put  him  into  the  chair*  and 
did  all  we  could  to  have  got  him  into  the  chair, 
hut  we  could  not ;  so  we  lilted  the  chair  ovet 
the  rails  aflaio;  and  when  we  canne  to  the 
comer  of  Uie  rails,  at  the  way  that  goea  to 
IxMlg-Acre,  there  we  took  up  a  genOeman, 
whom  we  carried  to  the  Bagnio  in  Long- 
Aoro ;  we  called  out  to  the  watch}  but  they 
said  it  was  not  within  their  ward,  and  they 
woold  not  come. 

Ait,  Gen,  Can  you  tell  who  Were  the  per- 
sons  that  were  at  the  upper  end  of  the  fields  ? 

Browne.  No,  indeed,  1  cannot  tell  who  they 


Att,  Gem,  Waa  my  lord  Mohunand  my  lord 
Warwick  the  two? 

Brmone,  No,  my  lord  Hohnn  waa  not  there, 
nor  my  lord  Warwick ;  I  know  them  so  well, 
that  it  could  not  be  them ;  one  of  the  gentle* 
men  was  blgfer  than  my  lord  of  Warwick,  and 
the  other  of  them  had  other  deaths  than  my 
lord  IMlohun. 

Att.  Gen.  Was  that  the  way  they  walked 
up,  whep  they  came  out  of  the  chairs,  that 
led  to  that  end  of  the  fidds  Whera  yoo  fbdnd 
Mr.  Coote  wounded  ? 

J^rssMw.  Yesyitlrao. 


rfwIlfXtfrrfATifcOii 

AU^iOtiL  My  tei^tlH 

ofthoofidcobo  thaftlwfOfdtoyooi 


X.Mb««».  J 

Ibr  ia-tfao  ilooo  Wfaon  he 
fliat  mto  Lnesakr^Mis,  ft 
tboy  Mofor  tho  drioir  wilUo  Ibo 
woold  hm  tilkco  m  M&Oooaar 

ItiiahooliftyydniBvo 


LTjmod..  I  deauwio  kaOorofUi 
thApiaoewlMwo  woro  oRlrdohra, 
10  die  fint  tkne  ohoho,  frooi  Lo 
Lakiatsi  flffida,  to  the  plaeo  Whon 
Mr.  Coolo  aop^MKlad  hy  the  two  gee 
flot  ftooi  ooeeodor  the  fidds  to  the 

Brotme.  Thofloeewbeaowoaet 
tamCMaiaoldw  lower  Ood  of  Oi 
and  the  place  where  wo  found  hin 
WMOtUie^iporoodhy 

JL  B.  8.     I  tUok  it  ia 

leooi  is  at  ooo  eod  ef  Uikooltr  e 
liiioeBtir  hooeo  io  at  the 


Ait  Gem.  Pimy,  where  waa  it  thi 
the  two  ileotleBieo  hoMtfagnpeoy 
ondoiyout,  nay  door  Coole  1  mwd 

BroMi.  It  waaoo  000  aide  oTthe 
thotleoda  eot  of  the  i 
ainotf  end  by  1 


Jit.  Geo.  "Botyooeay  tkroo  eh 
up  towards  the  upper  end  of  the  fid 

Browne.  Yes  they  did  so;  but 
chairs  that  came  away  first  from  the  i 
tavern,  set  down  at  Green  street  e& 
three  gentlemen  that  came  in  oor  c 
up  the  pales  to  them  ;  but  whither 
I  cannot  tell,  hot  soon  aAer  we  he 
for  chaira  again,  and  so  we  went 
we  found  the  two  gentlemen  hoidii 
Coote,  and  saying,  my  dear  Coote 
Coote! 

Att.  Gen.  But  when  yon  were 
second  time,  that  is,  into  the  fidds, 
the  place  yon  say  that  ;f on  found  th 

Browne.  It  was  within  the  reils, 
the  cross-way  towards  Leicester- boi 

L.  Mohun.  Pray,  was  that  the 
that  I  went  from  the  place  that  I  wai 
that  is,  the  lower  end  of  Green  stn 
place  that  they  afterwards  went  Io, 
the  bagnio  in  Long  Acre  ? 

Browne.  When  captain  Coote,  an 
Mohun  were  jset  down,  and  walked  i 
the  paved  stones  of  the  square,  ti 
where  I  found  the  two  ^entiemeo  \ 
capt.  Coote,  was  the  quite  contraey 
the  end  of  Green  street  to  tbeSlaod 

L,  H.  S.  Who  is  your  next  wj 
Attorney  ? 

Att.  Gen.  The  next  witneaalhiii 
Robert  Applegate.  (Wll^l 

L.  H,  S.  \\  hat  do  y  ou  ode  lUl « 

Att.  Gen.  My  lords,  thm  fer -M 


for  ^e  Murder  if  Richard  CootCf  esq. 


A.  D.  169d. 


rriedmy  lord  Mohuo  to  Leicester  iielda 
socket's  ;  he  will  eivc  your  lordships  %n 
it  Hheii  he  carried  kiip,  who  )ic  carryed, 
lat  happene«i  attervtards,  which  is  all  h|it 
same  |»iir|»08e  with  the  eiidence  tliat  he 
yesterday.  But  pray,  who  was  that 
vou  carried  oo  the  thiitielh  of  Octoher 
Leicester  iields  ? 

legale.  J  carried  my  lord  Blohun  fropn 
.*s,  at  the  Greviiouod  tavern  in  the 
,  to  Leicester  fiefds. 

Gen,  Pray,  how  many    chains  were 
f  you  that  went  away  together  ? 
Ugale,  There  were  three  of  us  that  went 
ogether,'  one  carried  on v  lore)  Warwick, 

lord  Mohnn,  and  the  third  carried  cap- 
lote,  which  was  the  first  chair  that  went 

Gen.  Whiiher  did  you  go  ? 

legate.  We  went  to  the  comer  of  St. 

*s  lane. 

Gen.  Who  do  you  say  were  in  the 

in'o  chairs  ? 

legate.  My  lord  of  Warwick,  and  my 

ohun. 

Gen.  When  they  came  out  first,  what 

or  directions  were  given  ? 

^^ate.  Mv  lord  Mohun  said,  Tliathe 

r  lord  of  Warwick,  and  captain  Coote, 

go  all  three  together  down  to  West- 

-,and  there  they  would  all  lie  together, 

tfifcther  tliat  night. 

Gtn.  What  answer  was  given  to  what 

i  Mohun  ftaid  ? 

'tgate.  Indeed  I  do  not  rememher  any 

that  was  given  at  all ;  but  after  that 
1  Mohun  went  into  the  chair,  and  or- 
is to  follow  down  the  other  two  ctiairs 
I  Westminster,  and  we  put  up  the  chair 
me  awa  V  ;  and  wiien  we  came  to  St. 
's  bne,  tne  chair  that  carried  ca|it.  Coote 
up  the  lane,  and  we  heing  oniered  to 
the  other  chairs,  went  up  Hie  lane  too; 

lord  Mohun  perceiving  that  they  were 
ig  down  to  Westminster,  called  out  to 
st  when  wfi  were  entered  into  St.  Mar- 
ne,  ov«r  against  the  back  door  of  the 
ceya  tavern,  and  matle  the  other  chairs 
d,  mid  all  the  three  chairs  were  set  a- 
bdbre  that  place,  and  my  lord  Mohun 
apt.  Coote,  whither  he  was  going?  And 
rered,  to  I^cester fields:  He  begged  of 
I  one  would  beg  for  an  alms,  t£u  he 
lot  go  that  night,  for  the  business  could 
tone  that  night,  and  it  was  better  to  put 
:  ibe  ne^ct  morning. 

Gen.  Did  they  name  what  the  business 
It  wu  to  be  done  P 

pgate.  No ;  but  my  lord  Mohun  did  say, 
inpossible  to  lie  doue  that  night. 
Gen.  Well,  and  what  happened  afler- 
»hile  you  wens  in  that  place  ? 
tgflte.  VVhile  we  were  there,  three  other 
mted  by  us  on  the  oiher  side  of  the  way, 
ioff  forward  up  the  street,  capt.  Coote 
tSeir  chairs  to  follow,  and  so  we  did  to 
Inft  ^1  wi  thcim  we  let  them  down. 


[1046 


Att,  Gen.  Prav,  can  yoq  remedaber  what 
was  said  by  my  lord  Moliun  at  the  time  when 
tiiG  other  cpaira  passed  by  ? 

Appiegate.  He  was  then  desiring  and  beg- 
gipg  of  capt.  Coote  tp  go  home  to  Westmin- 
ster, telling  him  that  ft  could  not  be  done  that 
night ;  but  it  must  be  deferred  til)  the  next 
morning ;  but  capt.  Coote  said  he  would  not 
delay  it  till  the  next  moruing,  but  he  %vould  g(» 
to  Leicester  fields  that  ni^ht ;  and  all  three 
chairs  were  ordered  to  go  forward,  and  we  did 
ffo  on  forward  to  Leicester  fields ;  my  lord 
Alohun,  indeed,  did  beg  ^nd  desire  as  heartily 
as,  1  say,  a  man  ibr  an  alms,  that  they  would 
let  it  alone  for  that  night  ;  but  capt.  Coote 
would  not,  and  ordered  his  chair  to  go  for- 
wards. 

Att.  Gen.  You  say,  my  lord  Mohun  begged 
as  heartily  as  if  it  were  for  an  alms  to  defer  it 
for  that  night? 

Appiegate.  Yes,  he  did  so ;  so  that  I  d<K 
really  think  that  he  was  not  concerned  in  tb« 
matter. 

Att,  Gen,  If  be  were  no  earnest  to  defer  and 
put  off  the  business,  how  came  you  to  carry 
iiim  thithor,  Uiat  nig[lit  ?  Whet  ezpressiont  did 
he  ose  |iarticulariy  m  St.  Biartin's  lane,  after 
the  other  chairs  were  passed  by  ? 

Appiegate.  Hesaio,  If  you  must  go,  I  will 
go  witli  yoii  and  see  it ;  and  he  bid  ns  take  op 
and  follow  the  other  chairs  wherein  capt.  Gooto 
and  my  lord  Warwick  were ;  and  we  did  |^. 

Att.  Gen,  Aud  where  did  you  set  my  lord 
Mohun  down  ? 

Appiegate.  At  the  hither  end  of  Leicester- 
square,  at  tlie  corner  of  Green-atreet,  the  lower 
comer  of  the  paved  stones,  going  up  to  Leices- 
ter-bouse. 

Att,  Gen.  What  became  of  the  three  gentle- 
men that  you  set  down  at  the  end  of  Green- 
street? 

Appiegate.  They  went  all  three  together  up 
the  stone  |>avcment,  towards  the  un|ier  end  m 
the  square,  towards  the  Standani  tavern,  I 
tiiink. 

Att.  Gen.  Did  they  go  together,  or  did  they 
go  asunder? 

Appiegate.  They  went  tocrether,  1  think ;.  I 
did  not  see  them  part  one  from  another. 

Att.  Gen.  Pray,  did  you  see  my  lord  Mohun 
afterwards  ? 

Appiegate.  No,  I  did  not. 

Att.  Gen.  What  became  of  you  afterwanis? 

Appiegate.  I  staid  a  little  at  the  lower  enil 
of  the  square  to  take  a  pipe  of  tobacco,  and 
when  I  had  filled  my  pi|)e,  1  heani  calling 
chairs,  chairs',  nsrain,  at  the  up[)er  end  uf  the 
scj^uare ;  and  when  we  brought  up  our  chair  to 
the  upiHsr  eud  of  the  fields,  the  first  man  that  I 
did  see  was  my  loni  of  Warwick,  who  would 
have  had  us-  put  over  our  chair  wiiiiiii  the  rails  ; 
but  we  told  him  we  could  not  get  it  over  ai>aiu 
if  any  one  was  put  in  it;  hut  if  they  would 
come  out  into  the  square,  there  we  were  ready 
to  carry  them  any  where ;  and  when  we  came 
to  the  upper  end  of  the  stpiare,  tliere  was  cap- 
tain Freocb,  and  we  tookbiminto  thaohair, 


\ 


I 


1043J  11  WILLIAM  111. 

nueans  fiHy  yards  frum  the  upper  end  to  the 
lower  eud  if  Leiix^ter  fields? 

Browne*  Yes,  1  b^lierey  my  lord,  it  is,  and 
l>ettpr. 

L«  MohuH,  I  desire  to  nsk  tiin^  nlitrtfier 
Oreeu-stretft  be  not  the  VQty  Iwnrer  ttid  of  ihe 
fiqunre? 

Krtfii^iKp  Yes,  my  Ion),  tbe  lower  end  of  the 
ii^utre,  combg  mil  of  8|.  Martin'it  koe  inlu 
Grcea-4treel» 

At L  Gen.  But  did  you  aee  tliree  other  oliaira 
ia  tbuliiluce? 

Bfouate,  Yes,  wbile  I  was  filliiij?  my  pipe 
oot  of  my  box,  lliree  other  chahs  did  come  by, 
and  went  away  ;  kit  within  a  little  whde  aftCT 
the  filfing  of  luy  pipe,  or  rather  before  V  coidd 
well  fill  it,  or  light  it,  \Te  beard  cnHioff  for 
chairs  again  towards  the  upper  end  ot  tbe 
fidila,  and  we  Cfirried  up  our  clmir  tbitber, 
atid  there  we  fouodp  as  1  hate  to]d  you,  two 
j;eiulemen  lioldiog  up  Mr.  Coote,  aud  crying 
out,  rny  dear  Coote,  my  dear  Coote  1 

Aft,  Gen.  Can  you  tell  who  it  was  that 
callfid  for  the  chairs  the  secimd  time,  wfaeo 
you  were  in  the  fields? 

Browne,  No,  i  a  deed,  I  caiuiot ;  but  they 
would  hate  us  bring  our  chair  Of  er  the  rails, 
and  we  did  lift  it  o?er ;  and  when  we  came  up 
to  them,  I  saw  only  two  get]tlen>eu,  whom  1 
did  Dot  koow  who  they  were  particularly,  till 
we  oame  up  dose  to  them,  that  we  could  see 
their  cJoalhs,  by  the  light  of  the  candle  in  our 
laothom  ;  and  they  would  have  had  us  put 
Mr.  Coote  into  our  chair,  and  be  being  very 
much  wounded,  they  would  have  had  us  carry 
iiim  away  \  we  told  tbetn  it  would  spoil  our 
chair,  and  we  conld  not  besides  lif^  him  over 
the  raiti  a^ain  ;  they  promisecl  we  should  hare 
any  satisfaction  for  damage  to  our  chair,  even 
t4>  the  value  of  a  hundred  pounds ;  we  went  to 
heave  him  up  to  put  him  into  the  chair,  and 
did  all  we  could  to  have  got  him  into  the  chair, 
hot  we  could  not ;  so  we  Itfled  tlie  choir  over 
the  rails  again ;  and  when  we  came  to  the 
coroer  of  the  rails,  at  the  way  that  goes  to 
liOng-Acre,  there  we  took  up  a  genUeman, 
whom  we  carried  to  the  Bagnio  in  I«oug- 
Acre;  we  called  out  to  the  watch;  but  Ihey 
iaid  it  was  not  within  their  ward^  and  they 
would  notcome* 

Ait,  Gen.  Can  you  tell  who  were  tlie  per- 
sons that  were  at  the  upper  eud  of  the  fields  ? 

Browne*  No,  indeed,  1  cannot  tell  who  tbey 
were. 

Ait,  Gen,  Was  my  lord  5fohunand  ray  lord 
Warwick  the  two? 

Mrotvne.  No,  my  lord  Mohun  was  not  thefe, 
aor  my  lord  Warwick  ;  I  know  them  so  well, 
that  it  could  not  he  Uiem  ;  one  of  the  ^pentle- 
men  was  bigger  than  my  lord  of  Warwick,  and 
tbe  other  of  them  hod  other  cioatbs  than  my 
lord  Mobun. 

Alt.  G€n.  Was  that  the  way  they  walked 
up,  when  they  caaie  out  of  the  chairs,  tliat 
led  to  that  end  di  the  fields  where  you  foilnd 
Mr.  Coote  wounded  ? 


Loduil 


TmA  of  Lord  Mohuff,  [  IMt 

Ait,  Gen,  My  lor4»t  tItiaiatolllMi 
of  the  evidence  'that  be  gA? e  to  i 
yeaterday. 

L.  H,  S.  If  yoQ  bare  t]mm  whh  tb« 
ness;  my  lord  Mohuo  may  a^k  bim  miJ< 
tinn*. 

L,  Mohrr      ■    I"--"  *o  t'.^r^  Uiijo  nb«i|,| 
fnr  is  ihe  ri^dlliefW 

llrstinto  Ll.-_ --  -  ili«plami 

thi'y  put  over  IhL*  cl'  -  ndfev 

would  have  taken  in  ^ 

Brtmne.  hvt  aboua  itity  jrttruK  ^  near  »l 
iTan  guess. 

L.  Mohun.  \  desire  to  kno w of  biot,  wb 
the  place  where  wc  were  9'*t  dawsL,  thai  i 
in  tne  6rst  three  chairs,  from 
Leicester- fields,  to  the  plAce  wji 
Mr.  Coote  supported  by  U.,   '        _  ntJe 
not  from  one  pnd  of  the  ii'  others* 

Browne.  The  place  whLi^.  ..  ^  ^^idownc 
tain  Coote  is  at  the  bwer  etid  of  Gr«e&-ttn 
and  the  place  where  we  fotmcl  him  W9aM^ 
was  at  (he  upper  end  by  l^eice9Ur-b4»aH. 

X.  U.  S*     I  think  it  is  uodentaadi 
Green-itreet,  which  comes  out  of  81.  F 
lanej  is  at  one  end  of  Leiceater-a^iavi,  i 
Leicester-house  is  at  the  other  ead« 

Att,  Gctt,  Pray,  where  %nis  it  thai  yeiil 
the  two  gentlemen  boldtnfr  up  cmpttainCaii, 
and  cry  out,  my  dear  Coote  *  my  clear  Coat  K 

Browne,  it  was  on  one  side  of  Im  ci 
that  leads  out  of  the  fields  tovfmrdt 
street,  and  by  Leicester  house. 

Att.  Gen,  But  you  say  three  obmiva  ^pt 
up  towards  the  upper  end  of  tbe  fi^a  f 

Bromne*  Yes  tliey  <Hd  ao ;    bill  oar 
chairs  that  came  away  first  from  tb^  Or  _ 
tavern,  set  down  at  Green  atreet  eii<l| 
three  gentlemen  that  came  in  i 
up  the  pales  to  them  ;  hut  whitber 
I  cannot  tell,  tot  noon  after  we  h^ifid  < 
for  chairs  again,  and  so  we  \\  < 
we  found  the  two  gentlemen  ' 
Coote,  and  saying,  my  dear  Cooie  :  my  i 
Coote  ! 

Att*  Gen,  But  when  yon  wero 
second  time,  that  is,  into  the  lields,  wh 
the  place  you  say  that  yon  found  tbem  i 

Broi$ne.  ft  was  witlnn  the  rails,  i 
the  cross-way  towards  Leiisestet-!! 

L.  Mohun.  Pray,  was  that  tii4l 
that  I  went  from  the  place  that  I  wm 
that  in,  the  lower  end  of  GToen 
place  tliat  tliey  aflerwatds  weal  to,  i 
the  bagnio  in  Long  Acre  ? 

Brovne,  When  captain  Coote,  atid  mf  I 
Mohun  were  5et  down,  and  walked  aw«y  i 
the  paved  stones  of  ihe  i»<|uare,  to  tbe  I 
where  I  found  Ihe  two  ^^cntletnen  boMinf  s^ 
capl.  Coote,  was  the  qmtc  contrary  way  mm 
the  end  of  Green  street  lo  the  StaiMkrtl  feati 

L,  H,  S*  Who  is  your  next 
Attorney  ? 

Att*  Gen.  Tbe  next  w tineas  thai  wm  rsR, 
Robert  A  piil  egate.  ( W  h  o  i 

Xr.  H.  S,  Vf  hatdo  ^ou  a«k  this  wttiseas  ? 

Mt.  Gen.  My  lori?,  Ous  uMbe 


J013J 


/of  t^c  Murder  ofRiclmd  Cootet  esq* 


t)if|  canjed  a\y  lore]  Mobuu  to  Leice^li^r  6elds 
"  [>ni  Locktrt'ik  ;  be  \u\\  m«o  your  1oT(f$hi|)^  gn 
HM)uut  vUvii  liecarryeu^ljin*,  wlio  tic  carry  cil, 
hvbat  ha^ipc'ueij  atteruuiits,  whicb  h  h\\  U\il 
(Sjiune  |Jiirpu£;e  ^villi  Ibe  cudt'tice  that  be 
^ye«ten!ay.       UuX    pray,   whti  >*aii  tb»t 
>  d  on  tbe  ibirtiefb  of  OctuWr 

ppki^iiit.  i  carried  my  bid  HioUim  fnnn 

cker&,   at    the    Grevd^'und   Uveru   in   tbe 

ntid,  to  Leicester  fierils. 

\^AU.  Gen.  Pray,   bow  many    cbairs  wefe 

^e  of  you  tbat  went  auay  together  ? 

^  AppUgatt.  There  were  thrtt;  ut'iis  that  went 

iiy  loaf  ether,  «joe  carried  Rjy  lord  ^Vanvick, 

'  my  lord  IVIohim,  and  the  third  carried  cap- 

\  Coote,  which  wa^  tiie  Ikbt  chair  that  weut 

AiL  Gen*  Whither  did  you  ga  f 
App legate.  We  weol  to  (he  corner  of  Hi. 
'anhi's  lnue. 

^Ait.  Gen,  Who  do  you  say  were  in  the 
ber  two  chairs  ? 

I App legate,  My  lord  of  Warwick^  and  my 
'  MohuQ. 

WJteti  they  came  out  A  rat,  what 
ections  were  q-iveti  ? 
^-  €*  Mv  lord  MohuQ  paid,  That  he 
lord  of  War^>ick,  and  captaiD  Coote, 
{^.£0  all  three  together  dow»  to  West- 
r^and  there  t bey  would  «]t  lie  tug«tber, 
ni^eUier  that  iiighL 
fi.G^n.  What  nnswer  was  given  io  what 
_  i^rd  Mohun  paid? 

''Applefrate,  Indeed  I  do  not  remember  any 
answer  that  was  given  at  all  ;  but  atWr  that 
^|y  lord  IMohuD  weut  ioto  the  chair^  i^nd  or- 
^Bred  us  to  follow  down  tiie  other  two  chairs 
VRwards  Westminster,  luid  «e  jiut  up  the  cimir 
mxui  €ame  awav  ;  aud  wliea  we  came  to  Hi. 
rtiu's  lane,  tbe  cliair  that  carried  cafit,  Coote 
ufHt  up  the  laue,  aud  we  beiug^  ordered  to 
the  other  chairs,  went  up  the  lime  too; 
;  inv  lord  Mf^huo  pcrceiviug  that  I  hey  were 
Igviugdown  lo  W earn iuster^  chilled  out  to 
p,  just  when  wc  were  enlered  into  H\.  Mar- 
ias lane,  over  ag'ainst  the  back  door  of  the 
h^n)s»-keyv  ta? ern,  and  tuado  the  other  ciiaira 
JtQ  ftaud,  aiid  all  the  three  chairs  were  e^^t  a- 
Jiresist  beibre  that  place,  and  my  ioitl  3Iahuu 
tol  ci^tt.  Coote,  whither  lie  was  ^oiu^f  Aud 
f  aoswcredf  to  i^icestor  lit  Ida :  He  be4^g;ed  of 
aa  one  would  beg  for  an  ftlmi,  tluU  he 
L  not  go  that  uiu;bt,  fi^r  the  buBineaa  could 
'one  lis  at  ui^Ct,  and  it  was  better  to  pul 
I  the  next  niornta|^. 
f^tt  Gen.  Did  they  same  vibat  Ibe  busioefls 
,  that  was  t<i  be  done  ? 

s  hut  my  lord  Mohun  did  aay, 
CO  he  done  that  uii^ht. 
^ft.  Utn.  \^  I'llf  aud  what  bappt-ued  after- 
inrda,  while  you  were  in  that  place  ? 

Appl^gf^ie^  VVhile  we  were  there,  three  other 
idliaira  pBiKed  by  us  on  the  other  side  of  the  way, 
goiDS'  forward  up  the  atreet,  capt.  Coote 
1  tCeir  cbairs  to  foltowi  and  so  we  did  to 
\  iUre^l  cRd|  ^d  there  we  Bet  then)  4owu. 


A.  D.  1609. 
cat!  yi 

IVIuhll 


Pray,  can  you  retnember  what 


mir  irn'il  IVIufum  at  the  lime  whoa 
? 


[lOlG 
Att.  Gmi. 

was  ^.niid  U^ 

tJiCr 

^1;^  KU  desiring  and  Uetf- 

ging  qI  oapi'  Cuute  tp  gii  home  to  Wesfuiin* 
ster,  (elling^  him  that  it  could  not  be  done  tha^l 
night ;  but  it  mu9t  be  deferred  till  the  next  f 
tuoraing  ;  but  capt.  Coote  said  he  would  not  J 
delay  it  till  the  ivejtt  moruiog^  but  he  would  j^I 
to  Leicester  tiehb  that  uig^fat ;  and  all  ibree  ] 
clmiri  were  ordered  to  go  fo^-ward,  and  we  did  I 
go  Oft  llirxvard  to  Leicester  fields  ;  my  ton|| 
Mohim,  indeed,  diti  beg  mid  desire  as  bcartiljrl 
ft:s,  1  !»iiv,  a  tnan  for  au  almsi  that  thuy  would^l 
let  it  alone  fur  iltat  night  ;  hut  capt«  CooteT 
wduld  not,  aud  ordered  hia  cb&ir  tu  go  for-  I 
wards* 

Jti.  Gen.  You  say,  my  lord  Mohim  be^ed  1 
as  heart ity  aa  if  it  were  lor  an  alucia  to  defer  It 
fur  that  tiight? 

Apj*itgtite,    Yea,  be  did  so ;  ao  that  I  do 
really  thmk  tliat  he  wm  uut  concerned  in  i 
ftialter. 

Au,  Gen.  If  he  were  so  eameat  to  defer  i 
put  off  the  business,  how  came  you  to  cany 
biui  thither,  lljat  night  ?  Whet  ejcpressiona  did  [ 
he  use  partictdarly  io  St.  Mariin^s  lane,  after  \ 
the  other  chairs  were  passed  by  ? 

Apphgate,    Ilesaio,  Kf  you  must  go,  1  will 
go  with  you  and  see  it ;    and  he  bid  ua  take  a|»«  J 
and  Ibllow  the  other  cbaira  wherein  capt.  Coot#  [ 
ami  my  Jord  Wiirwick  were  ;  and  we  did  go. 

AiC  Gen.  Aud  where  did  you  set  my  lor^l 
Mohuu  down? 

Appk^ate,   At  tlie  bitlier  end  of  Leicester* 
square,  at  ilie  corner  of  Green* street,  the  lower  j 
comer  of  the  paved  atonea,  going  up  to  Leicea- 
tcr-houBc. 

Att.  Gen,  What  became  of  the  three  eeutle-  ! 
u^en  that  you  eet  down  at  the  end  of  CSreen- 
atreet  ? 

Applegate.  They  went  all  three  together  up*  I 
the  ttioue  [tavement^  towards  the  upper  eudoif  ] 
the  square^  towarda  the  btandara  taveni,  1 1 
li&ink. 

Alt,  Gen.  Did  I  hey  go  together,  or  did  they  ^ 
go  a«iuodcr '. 

Apple^nte*  They  went  together,  1  tbiok  ;  1  , 
did  not  sue  them  part  ime  fi-om  another. 

Att.  Gen.  IVay,  did  you  see  my  lord  Mohtia  i 
after  ward**  ? 

Applegate.  No,  I  did  not, 

Au.  Gen.  What  became  of  you  aJ'ier wards  ? 

Applegate.  1  t»taid  a  little  at  the  lower  end 
of  tne  square  to  take  a  pipe  of  tobacco,  and 
when  1  had  filled  my  pi})e,  1  beanl  catling 
chairs,  chairs,  nii^ain,  at  tlie  upper  end  of  the 
iM|uare  ;  and  when  we  brought  up  our  chair  to 
the  upper  eud  of  the  ficld»,  the  first  man  tliHt  f 
did  see  wa»  nty  loni  of  Warwick,  who  would 
have  had  us  puiovcr  our  cliair  wiUmi  the  rails  ; 
but  we  told  htui  we  could  not  get  it  ofer  a^aiii 
if  any  one  was  put  in  it;  hut  if  they  would 
come  out  iuto  the  square,  there  »  e  were  reatly 
lo  carry  ihera  any  where  i  and  when  we  i 
to  the  upper  eud  of  the  sipiore,  tliere  i 
tain  French,  and  ure  tovk  kini  into  ilm  i 


I 


1047J         11  WILLIAM  IlL 

and  be  lid  us  carry  bitn  to  the  Bagnto  io  Xj>ng- 
acr« ;  an  J  at  Newport-street  eod  be  woufj 
bare  had  us  stop  and  pall  off  bts  doatbi,  for  be 
beliered  be  was  a  dead  man* 

An.  Gen.  Pray,  wbo  df4  you  see  tbcre  at 
the  upper  end  of  Leicesler-fields? 

Applt\^atc.  INobody  indeed,  but  my  lord  of 
Warwick  and  Mr.  French. 

An,  Otn,  Nobody  bot  ibem  two? 

Apptf^alr,    No;  nobody  bnt  them  two. 

Ait.  Oen.  Where  do  ymi  say  that  was,  that 
the  Crtllirtj,'^  for  chairs  was,  nod  wbere  yoii 
broug'ht  your  chiiir?  ' 

Appk^aic.  U  was  just  at  the  npper  end  of 
I>ei<5esler-field8,  by  Leicester 'bouse,  aad  by 
the  8tandard>-tiiverii. 

AtL  Gen,    Who  was  it  that  you  there  took 

Applf^att.  It  was  captaio  French. 

Ail.  Gen.  Wbilher  then  did  you  carry  birn  ? 

Applegttte.  Wo  were  ordered  to  50  to  the 
Bagiijo  \r%  Lonn^f-acre ;  ami  tbiib^r  we,  and 
MkOtber  chair  that  carried  my  lord  Warwick* 
did  ro  \  and  when  we  came  there,  wc  did 
ICDOclc  a  good  wtiilc  before  we  could  get  any 
body  up  ;  and  when  they  were  let  in,  we  came 
Away,  and  were  bid  to  call  for  our  fare  tbc 
next  niorntngf. 

Ait.  Gen.  Pi^Yp  where  was  It  that  you  took 
up  captain  French  ? 

AppUgate.  It  was  the  upper  end  of  all  of 
Leicesler-lields. 

AtL  Gen.  And  yia  went  away  witb  bino, 
did  vou? 

AppUgaf"..  Yes,  as  soon  as  crer  we  took 
bint  up;  It  wa«  afi  soon  as  ever  we  could,  at 
the  outside  of  the  rails.  1  was  the  fai'st  chair 
thnr^  upnu  the  callinj^  for  cbati*^  arter  tliey 
came  lliitheri  wns  by  tite  Standard- tavern,  and 
troui  tbetice  we  went  into  Lon<;'Ucrc. 

Ail  Gen,  Wbereaboni  is  the  Standard -la* 
^ern? 

Appkgatc,  It  is  at  the  further  end  of  the 
fields  by  I  Leicester- bouse ;  it  is  by  Cmnburne- 
lane,  which  is  the  strcet  that  leads  into  New* 
port.street,  and  so  into  St.  Martinis-lane  ;  and 
then  we  were  to  go  to  the  Bag^nio  in  Long- 
acre. 

X.  H,  S.  My  lord  IVIobun,  will  you  ask  this 
witness  any  questions  ? 

L.  ASohun  Yes,  my  lord,  I  hnve  a  queslion 
or  two  to  ask  hira,  1  desire  to  ask  liim,  Whe- 
ther, when  wc  were  ^oing  a!ong»  and  the  cbau* 
in  which  capt  Coote  was,  tnrnerl  up  St.  Mar- 
tin*i!'liine,  I  did  not  eati  out  to  have  bim  slop, 
and  know  whither  they  ijrere  gointr  ? 

AppU^att.  Yes,  my  lord,  you  did* 
*^L.  Moh%n.  Pray,  whither  did  1  bid  you  go, 
when  you  first  look  me  up  at  lyirk*?!'*;  f 

AppkguU.    My  lord  Mohun  hi*!  me  follow 

all  \ 
and  lie  together  that  nii^hi. 

L.  Mohun,  My  lonis,  I  desire  this  man  may 
be  asked,  Wbclher  there  were  not  several 
ways  of  going  out  of  the  liehls,  besides  those  of 
CrFeeu-titreei  and  ibe  IStaiidiinl-Uvem  P 


Trial  of  Lord  MohuMp 


ibo^e  chairs;    bnt  go  down  Io   Westminster, 
for  he  said  I  hey  all  ibree  would  go  together, 


Applfgaie.    Yes,  my  lonit  l»  ^ 


L.  Mohan,   Then   I   will  tf*fe  gk        ^ 
lordsbira  to  make  the  oliservatMo;   i^^% 
no  evioence  that  I  was  eren  ^een  t8 
nfler  1  alighted  out  of  the  chair  at  ( 
end;  aod^l  hope vourlordsliipiidafi 
be  has  told  you,  I  was  e^ 
tain  Coote  to  defer  going  to  1 
Ihe  next  moniiog,  and  l>egge«l  as  ^ 
bim  for  it,  as  ai^y  be^^gnr  moM  4o  I 
alms. 

X.  H.  S.  My  lord,  tb^tr  lonkbips,  wi » 
bare  made  that  observation  ;  for  bMC^  did  « 

L.  Mohun.  My  lords,  1  have  tio  matt 
bim. 

L.  H.  S,   Mr.  Attorney,  who  is 
witness  f 

Att.  Gen.   Otir  next  witness t<  Peter  ] 
who  likewise  was  a  cb&irmiii  that 
loni  Mobun  into  the  place  wliere  the  I 
done. 

[Peter  Ketro  was  sworn.] 

At(.  Gen,  Pray,  will  you  acquaioli 
who  you  carried  upon  the  30ih  of  C 
from  the  G  rey  hound  'tavern  to  Leio 

Ketro.  V[mi  the  SOth  of  l>cloberbil,kli] 
morning  (which  was  Bundav)  v«rv  e«iy,< 
were  call«»d  to  the  door  ofr  the  (jreyboti^l 
tavern,  and  when  we  c^me  tbere,  tUm  mm\ 
sererat  other  chairs  there  ;    for  Ibere  mi 
coach,  it  seems,  to  l>e  had. 

An.  Gen.  And  who  was  in  your  cbair? 

Keiro.   My   lord   Mohun  ;    and  tbcft  < 
two    other  chairs  that  wc  nt  *way 
wherein  were  captain  Coote  and  mj  I 
wick. 

Att.  Gen.    And  whither  did  yo«  g§ 
theoce  f 

Ketro.  We  went  along  the  Sirmnd,  i 
we  came  to  the  end  of  St.    Alartsfi*ii.|tac^  J 
chair  that  oapt.  Coote  was  in,  we 
by  bis  order  turned  up  the  lane  ;    fof 
Mobun   had  gi?en   us  order  to  go 
\V' cstmiufiter  ;    and  then  when  \ 
to  the  en  J  of  St.  Martin^s-laop,  he 
to  &top,  and  to  have  tbe  other  chairs  slnpl^i 
they  stood  still  at  the  back  door  oflbe  T 
keys- tavern,  which  is  at  the  end  orf  T 
lin*S'  lane,  and  all  the  three  chairs  did  1 
stand  at  that  place,  and  my  loni  c^f 
and  my  lord  Mohun  and  C4iptinii  C<iote 
together  ;  and  my  lord  Mohun  did  i 
Coote  10  go  down  to  Westminster, 
off  thebusioess  for  that  night ;    tur  i 
bosiness  could  be  done :  then  my  I 
wick  ilid  soy,  if  they  did  go  on  lie 
with  them;  but  my  Ion)  Mohun  did  1 
to  iiersuade  them  to  go  down  u>  ". 
Kludge,  for  nothiujg  could  be  don< 
when  the  other  three  chair*  f>iuiMj4j  oy, 
other  side  of  the  way,  and  captain  T 
neeils  go  tbrwtirds  to  Leicester- fielda,  i 
Mohun  did  hid  iis  take  upaud  fidl^w ibem f  I 
he  said^  if  they  would  go,  he  wookl  |pe  i 
what  OMiie  of  it ;    so  we  took  op,  and  ft 
tbt^ber  chairs,  and  went 


s^^ 


— street,  to  the  lower  end  of  Greco - 

%.   the  squftie,  and  there  our  three 

ftown  my  lord  Warwick*  my  loril 

^nd    captain  Coote^  and   vrere  dis- 

?-  ?».  And  what  became  of  Ibena  after  ? 

"There  they  went  np  upon  the  hroad- 

tnwardi^  the  upper  end  of  the  iiehls. 

^^^^^^^^Ji.    Did  Ihey  ull  go  together,  or  did 

^^^  ^*        "They  went  together,  for  any  thing- 1 

^      saw  no  partrnsf,  and  indeed  it  was  so 

vt^*"^^**^  that  I  cannot  tell  what  hecanie  of 

^ J?"^^«'they  wont  out  of  the  cbaira  :  It  was 

£.      ^W  « tlarkesl  Luirhts  that  e»er  I  saw, 

pjltt      CL^cw.    Wtll  then,  pray,  what  happened 

*^^^^  ? 

***^o.   i  went  to  light  my  pipe  of  tobacco, 

l»«ft)re  we  coukl light  a  pipe  of  tobacco, 

\^^^  caUioff  at  the  upper  end  of  the  square 

^eiiairs  again ;   and  «o  we  went  with  our 

f  to  the  upper  end  of  the  fiehh  ;  and  when 

catne  there,  somebody  called  out  to  have 

us  ^Ht  our  chair  over  within  the  rails ;  but  we 

I  tljem,  if  we  did  so,  we  eould  not  ^et  it  over 

iigfttn,  if  any  body  were  put  inta  it ;   and  so  we 

wett  bid  lo  go  to  the  end  of  the  rails,  iu  order 

lo  the  getting  out  from  that  place,  and  getting 

in  uf  any  body  that  was  to  go  into  the  chair ; 

and  When  we  came  to  the  end  of  the  rails  we 

look  up  capt.  French,  and  he  hid  u*>  carry  him 

In  the  Bagnio  in  Long-acre,  and  we  did  so; 

p     and  at  Newport- street  end  he  would  bare  had 

^^is  faaTc  pulled  off  his  cloathi,  for  he  said  he  be- 

^■Mrred  he  was  a  dyin^  man  ;  hut  we  canied  him 

^K»o  to  the  Bagnio  in  l^ncf-acre,  and  tfiere  came 

^^»fler  us  the  loni  of  Warwick  in  nivotlier  chair  ; 

».    and  there  we  set  them  down. 

Aii^  Gen,    I  have  a  question   to  ask  ytin, 
.      frieiid  ;    did  you  not  see  m^^  lord  Mohnn  after 
jfM  S€t  him  down  at  Green -street  end  ? 

Kctro,  No,  indeed,  not  1 :  1  did  not  afker  he 
wrnl  out  of  lh«  choir. 

/fif,  Cen^  Can  you  tell  whither  he  went 
afWr  he  went  out  of  the  chair  ? 

Keiro.  Nov  1  cannot  tell  whither  he  went; 
ih^y  alt  thi'ee  went  up  the  paved  stones  toge- 
ther ;  but  whither  they  went  1  cannot  tell. 

Aii.  Gen.  Bid  you  hear  of  any  other  chair 
tiMt  was  at  the  end  of  the  fields  at  that  lime  P 

Ktiro.  There  was  another  chair  at  that  time, 
«1  the  upper  end  of  the  Belds. 

Jktt*  Gen,  Did  you  hear  them  desire  to  take 
Mr*  C<K»te  into  that  chair  ? 
Ketro.    No,  1  did  not. 

Att.  Cm,  Nor  do  yon  know  any  thing  of 
tli«ir  putting  Mr.  Coote  into  a  chatr  ? 

Kttrt},  No,  indeed,  not  I ;  what  they  did 
ftg  to  the  other  chair  that  was  before,  they  can 
belt  tell,  for  I  cannot. 

Jl  B.  S*  Who  ii  your  next  mtnesa,  Mr. 
Attorney  F'—ilrr  G^^n.  Richard  Edwards. 
L.  H.  S.  What  do  you  call  him  to? 
Aii*  Gen.  Because  we  would  not  trouble 
^our  lordships  with  the  repetition  of  every  one 
of  the  witnesses  that  were  here  yesterday  ;  this 
Ibllie  ima  Ihtt  carried  Mr.  Dockwra  into  the 


^Md 


[Edwards  was  sworn] 

L.  H.  S,  Mr.  Attorney,  What  do  you  tak 
this  witness  ? 

Att.  Gen.  Pray  do  you  acquaint  my  nohlo 
lords  here,  who  you  carried  in  yonr  chair  to 
Leicester*6e1ds  ? 

Edwardt.  Indeed,  I  cannot  tell ;  th^re  were 
three  chairs  that  took  up  three  persons  at  tha 
C>rey  hound 'tavern  in  the  Strand,  afler  thre# 
other  chairs  were  ^one  away,  and  every  otie 
had  a  g^enUeraan  in  them;  1,  for  my  part^  did 
not  know  who  was  in  our  chair ;  hut  when  we 
shut  up  the  chair  we  were  hid  to  go  to  ihe 
Standard -tavern  in  Leicester- fief  ds ;  and  thither 
we  did  go,  and  there  we  set  down  the  gentle* 
man  that  was  in  our  chair,  and  away  we  went  ^ 
and  as  we  went  up  St,  Alartin's-bne,  we  poss^ 
ed  by  the  three  other  chairs  that  turned  up  bo- 
fore,  at  the  back-door  of  the  Cro&s-keys  ts- 
vem. 

AttnGetin  Did  you  see  the  other  three  chiirft 
in  Leicester- fields' Afterwards  ? 

Edwards.  No,  indeed,  I  did  not;  but  went 
up  to  the  Standard  tavern,  and  set  down  the 
gentleman  that  was  in  our  chair,  and  there  left 
him,  and  went  away,  * 

Att.Gen,  Pray,  can  yon  tell  who  it  was 
that  you  carried  ? 

Edwards,  Indeed,  I  cannot  very  well  tell| 
hut  1  believe  it  was  captain  James,  or  llr. 
Bockwra. 

Att,  Gen,  When  yoti  came  to  the  Standard- 
tavern,  pray,  what  happened  ?  What  passe<d 
there  ? 

Edwards,  To  the  beat  of  my  knowledge,  I 
took  hold  of  the  knocker  of  the  door ;  and 
knocked  at  the  door,  and  tbe  gentleman  camo 
out  and  was  set  down  there :  and  he  j^ave  me 
a  shilling,  and  away  I  went  with  mt  chair. 

Att,  Gen^  When  you  set  him  down  at  the 
Standard 'tavern,  pray,  what  did  he  say  ? 

Eduard^.  He  ffave  me  a  shilling,  and  bid 
me  go  about  my  business ;  and  so  we  went 
away. 

Ait,  Gen,  Was  you  there  when  yoti  heard 
them  call  chairs  hack  ? 

Edwards,  No,  we  went  away  aa  soon  as  we 
bad  set  him  down  at  the  Standard- tavern. 

Att.  Gen.  Did  you  observe  which  way  they 
went  after  yon  set  him  down  ? 

Edwards,  No,  indeed,  I  did  not ;  I  never 
minded  which  way  they  went,afWr  we  set  him 
down. 

Att,  Gtn,  Which  way  did  you  go  f 

Edwards.  Wc  went  away  down  towards 
Charing -cross. 

Att.  Gen.  Did  you  see  any  otbor  cbaun  i^ 
the  iquare  when  you  went  down  P 

Edwards.  Yes ;  tliere  were  other  chairs  at 
the  other  cud  of  the  square. 

Att.  Gen,  Did  you  see  any  gentlemen  as 
you  came  down^  walking  towards  the  Standard 
tavero,  upon  the  pa ved-s tones . 

Edwards,  No,  indeed,  my  lords,  not  tlitt 
1  remember;  hut  1  did  see  the  other  three 
chairs  as  1  passed  by  Greett«otreet  end :   who     * 


p 


Xnd  of  Lord  ^ahuuf 

4^u  Ctn^  ¥ou  koovf  my  M  VbAm,^ 
jdii  ? — Jachan.  Ye**,  I  do,  Tcry  we31- 
/in.  Gctt.    W«0  not  mj  )cic4  Mc4ua  ii 

Jttcks0*t.    He  i^as,  whf  n  flifl  jdi  <^te"Ufirf^ 
c^cd  ti»  liOtikei'i; ;    i^tit  I  tljil  nut  be»r  »4»  ^^^ 
^oumTt  ibtti   J   can    r«mi5ii»l«f,   lb  I 
«[ncfiig  Umiif  oor  4o  I  kuow^  or  did  1 

^lU.  Gtn.  Were  lliose  tbe  uUier  du 
tliftt  w«^nt  ttiyay  iVooi  Locket'*  ttist, » 
Hiw  At  Ctrceu  lirett  e&d  ? 

Jackmn.    Inde^di  my  iord«|  I  baik^ 
eatiucit  sw<»ar  i:h«ttl)ey  were  iho^  thr^ 
wJicD  we  ItAd  set  dowsi  ca|iUjii  Jsuiu^^ 
tiot  btik  back  any  wiiy  dt  ail,  but  iri 
bums,  it  Iremg-  sii  kle  :ind  £o  dork. 

L,  If.  S,  My  Jyrd  Mwbuo,  wM  yor^ 
witness  Auy  qoestioQS  ? 

h.  2IcJmn.  No,  my  Inttd* 

4^*  Oen.  Tbcn,  my  brd,Mre«li^>  ^^  »^/ 
Imill  SaJinoni  wbo  wis  tbe  surg^dr^zk^^^^c^a 
aejLTcb  the  wound  by  ibe  eorodtr^i    .^^  ^£  c^ 
when  he  took  t^ie  iqf^uisttbo  upon  v       .« i||£ 
tbe  body*     (Wbo  w«s  swarQ.)  ^ 

Mr.  Caute  mJler  lie  was  d^nd  ? 

^ilmoH.    Ye»,  I  did  fie  it  bis 
command  of  ttte  coroner  ftt  tlte  «rp 
where  it  by  in  S(.  M^rlin^s  bne. 

^1^^  G^.  Pray  tben,  wilJ  youi*^^^  *^ 
lcird»  t*hfi  ii'ounds  3011  Ibynd  yjwJD  r      *^*  |! 

the 

proUi, 

and  four  or  live  Lriches  deep  donQ 

fklbci'  »as  a  nouod  that  was  in  Uh  k^*^ 

uoder  tbe  sbort  ribs,  and  thai  vm&  up  ^ 

upon  pi'oUing  of  it,  1  fouud  it  wa«     ^ 

breadth  of  an  iocb  at  tLic  or^tice,  and 

depth  of  ti¥e  or  frlxiucbci?,  and  ^ii 

the  dUpbragipia.  ^^ 

J(^  Gen.  Pray  I  did  you  obserfc  o^^^/^ 
ence  in  the  wouuds,  oriu  the  orifice  i^^^^/ 

8nhtion*  That  below  was  a  targ^  ^^ 
largiT  tt^an  |hf  Qtb^r. 

Iti.  Gcti.  y(tvt  t^e  wou|id§,  ^  ymftM 
given  ^'itjk  tno  eword^i  or  with  one  iv«{  1^ 
&aiiie  A  word  f-^^/ifu^n*  I  ndef  d,  1  p^pM  ^ . 

4h.  Qe^.  Did  you  lo<>k  upop  ^h^^^ 
which  of  IhecQ,  to  ba  murtjit  ? 

Saimon.  I  looked  upoD  b^tit  to  be  Q^oitaL 

1h  li,  lif.  If  yf)u  bare  do^ie  wiih  )iiiD^Mr, 
Attorney,  will  uiy  lord  A|ob)jQ  ask  tni^  vkj 
questjorig  F 

L.  i^fohua.  1^0, 1  ^batl  ask  him  n<i  t^mim^ 
for  t  thiuk  1  nefd  EU^t :  I  was  never  pri^c4  v^ 
be  io  the  comp^Dy,  lu  tbe  plaice  where  tin 
fighting  w^i, 

AIL  Gen.  We  hare  done  with  f^dliiw  4 
witness^,  till  we  hear  what  my  tord  %^bm 
says  to  it. 

L.  H.  5.  BIj  lord  Mohun^  tfiis  h  ik 
lime  (the  kioi^s  evideuce  beii|^  Quidn^)  ^ 
you  to  call  your  witne&«e&,  aqd  make  ^m^ 
defence. 

Ii.  M^^n^  Ws  IfV^j  A  ^M^  ^  j^  fsmi 


I 


w«fii  ifl  tbe^p  or  what  was  liernme  of  them 
IhM  wer«  in  fhrrn,  that  I  caunut  Udh 

jitr.  Gf«.  Wbut  did  ihe^  af.^  ^o  yoi|  any  of 
ih«m  ml  tbat  titne  P 

,  l^iwardi.  Tb«;y  a^ked  u|  If  we  were  ^itiif 
ftwmy,  aod  we  told  iheu)  ^^^  we  wi^r^  4^^- 
cbariftid, 

Ait.  Otn^  But  pray,  did  you  ngi  meet  any 
«f  ibe  other  feAtlemeo  upoo  the  paved  stoi^es  f 

MdirariU.  No,  iudeed,  i  did  not  see,  to  the 
be«t  of  my  remeip^i^liee,  any  other  g^mlli^man 
lip<^n  the  parted  staue^. 

Ait,  Gen*  What  did  tbeotber  cbaimxeii  my 
to  ym  f 

'kdtmrdi.  Tliey  asked  if  W£  wer^  oomiJig 
^wny  ?  And  vf  e  ietl  tbeoi  h^bitid  tis. 

X.  fl.  ^^  Ilaf  my  lord  Mob  on  any  ^ue&lkros 
toaskhimf^L.  KhkuH.  r^o,  ih^vc  not. 

X*  Ji*  ^.  Mr.  Attorney,  who  i»  your  npjt 
vitQegfi  ? 

Att.  Gm.  Jackson,  who  was  tbe  chairman 
|bat  carried  captai^i  James*     (He  wa$  a  worn-) 

Ait.  Gtn.  I'ray,  will  you  acquaint  my  lords 
who  you  carried  uway  from  Locket'i^  to  Lei- 
,c^er  fieMs? 

Jackton,  Captain  Jamef :  There  w«re  mK 
eh  airs  in  all:  I  do  not  know  who  went  in  the 
ether  ohnira,  but  iu  tlie  thr«^  cbairs  tbat  wt^nt 
tog^ether  when  we  wvnt,  ib^e  was  <^ plain 
podcwra,  captain  Freuch,  and  captain  James. 

^1^,  Gm^  And  where  did  you  set  him 
down? 

Juckmu.  At  tlie  ^aud^id  Uvern^  hi  the 
•quare  in  Leicrater  iiebb, 

Jli.  Gtn.  What  became  of  him  after  you 
pel  him  dov  n  ? 

Jackson.  yVe  knocked  twice  nt  tbe  tavern 
door,  and  tli^n  be  gare  us  a  shilling',  and  we 
ireot  away  prest^utly,  and  wi!nt  down  on  tht^ 
lell  hand  upon  (he  paved  ^toues,  towards  Green 
street  eqd. 

An.  Gen.  Did  you  meet  atiy  persouf  cam^ 
ing  up  upon  tbe  puvrd  stopes  ? 

Jackion.  Yes,  ray  lord,  I  did, 

Ati.  Gen.  Can  >  ou  tell  who  tbose  [jerwjna 
^era?— -JucAfpii.  IndeecJf  1  caimot  telh 

Alt.  Gen.  ITow  many  pere  tbey  in  number' 

Jackton^  Tbey  were  tw<*  or  ihree;  but  it 
was  so  d^l^i  that  J  eanpot  tell  how  m^ny  they 
|i«re. 

AtL  Ccn.   Wbicb  ni>y  ^^r^  tb^y  waJkingF 

Jis^hson,  They  ^(.'re  going  np  towarda  tbe 
piddle  street. 

Att,  G^n.  How  far  was  that  from  the  Stand* 
ird  tavern  1 

Mckion^  It  might  be  i|hout  lixty  y^iM  fpin 
tbe  Standard  tavifu. 

^  Ati.Q^n.  You  say  tl^^re  were  ihrve  cbairs 
itaading  at  tha  end  of  GrecQ  street  when  y^M 
coJQQeby  T 

Jackmn.    Yes,  there  were  sp* 

Jt^  Gen,  Had  you  njc»  discourse  with  tbjpui  f 

Jack^&n.  No,  indeed,  1  bad  qot. 

An.  Gm.  Dljl  you  not  afik  themr  vrhy  tliey 
ilAve4  there? 

Jm-kion,    No^  iad^}  I  did  ni^t;  |Vf  paised 


z'UMfiy/i.  There  was  one  upoa  ibe  ^.-—  ,  ^ 
:  breaslt  near  the  col  Jar  bone  |  wl  '^^  ja 
lUini^,  1  foimd  10  1*0  half  aa  inch      *^ti», 


Idi  i 


for  the  Murder  of  Richard  Coote^  esq. 


A.  ti.  lOdSf. 


[lO&i 


r  1  tliink  there  is  notliinflr  that  fixes 
:'^ilt,  as  to  cape.  Coote^i  death,  an 
1  shall  call  one  wittiete  that  was 
[iderstaDil)  yestenlay,  but  not  exa- 
that  is  a  person  that  saw  me  after- 
knovrs  that  I  had  a  wound  in  my 
pen,  and  that  wound  was  receivM 

by  endeavouring  to  part  them, 
vere  quaurrelling  there  at  that  time. 
1  stood  up.) 

Though  you  are  not  upob  your 
u  are  as  much  obliged,  in  justice 
1C4*,  to  speak  tlie  exact  truth,  as  if 
n  your  oath  ;  therefore  ha?e  a  care 
)ny  you  g^ve. 
Yes,  my  lord. 

What  IS  the  question  you  would 
tness  nsked  ? 

!.  What  he  knows  of  ihv  lieinsf 
)ut  this  time  ?  and  what  1  tfeclared 
hat  wound,  how  I  receiTed  it  ? 

I  will  not  refuse  to  ask  the  qnes- 
uust  acquaint  your  lordship  that  it 
iiing  in  point  of  CTidence  at  law, 
'ourself  did  declare  atler  the  fact 
It  is  material  what  you  did  to  pre- 
ichief  before  it  hap|)ened,  hut  not 
id  or  declared  after  the  thing  was 
hear  my  lord's  question,  what  say 

I  was  at  my  lord  Mohun's  sereral 
lis  business  napfiened,  at  the  Icfdg- 
e  lay,  and  where  I  saw  him :  he 
1  his  hand,  and  it  was  laid  open,  it 
inger ;  and  that,  he  said,  was  all 
indcavouring  to  part  people  from 

Pray,  Sir,  when  was  this  ? 
It  was  sereral  days  after  the  death 

I  told  your  lordship  before,  thnt 
law  such  evidence  would  signify 
cause  your  declaring  any  matter, 
ig  was  done,  in  relation  to  the  fact. 
Admitted  as  legal  evidence;  if  any 

be  of  another  opinion,  1  suppose 
:lare  it. 

I.  My  lords,  I  submit  it  to  your 
only  desire  he  may  be  asked,  wlie- 
my  hand  or  no  ?  and  how  it  was  ? 
I  saw  m}r  lord's  finger,  and  it  had 
?n  some  time  before ;  and  he  said, 
ved  that  wound  by  eufleavourin^ 
:.  French  and  cupl.  Coote :  that  is 
f  the  matter. 

But,  pray,  when  was  that  that  he 

Ilow  toug  after  the  death  of  Mr. 

It  wan  several  days  after  that. 
Yon  hear,  in  point  of  (aw,  thot 
ideiice  aLall:  if  you  liav^  no  other 
call,  your  lordship  would  do  well 
our  cridenoe,  and  ni:ike  what  ob- 
'ou  think  fit  upon  the  evidence 
sen  ^iven  for  the  king. 
I.  My  lords,  I  hope  I  shall  make 
against  this  accufttioo,  with  all 
4 


the  modesty  alid  Mibroitstoh  to  yodr  lordshipai 
that  becomes  rtic.  I  am  very  much  ashamed 
to  be  brought  befbrc  your  lordships  upon  any 
such  account  as  this  <^t),  ilftcr  UariDg  been 
once  hefbre  yoor  loMsuips  upon  such  an  ac- 
coudt  befhre.  I  may  tery  Well  iray,  £  tm  not 
guilty  at  all  of  having  any  hiiDd  in  Mr.  Coote*a 
death ;  and  I  can  assmv  your  lordships,  I  wilt 
avoid  all  oceasloils  of  j^titfg  yofti  any  tronble 
of  this  nCttore  for  the  future :  I  do  notdbubt 
but  to  acquit  myself  of  all  guilt,  In  relation  to 
this  matter ;  and,  indeed,  with  submission  fo' 
yorir  lonUhi)is,  there  hai  been  no  evidence 
given,  relating  to  me,  that  does  infer  any  guilt 
upoh  me,  to  prove  that  I  tvM  at  the  place 
where  the'fact  was  done ;  therefdre  I  shall  only 
make  some  few  little  remarks  upon  whilt  has 
been  said,  and  leave  it  all  to  your  lordships' 
consideitition. 

The  king's  counsel  flrftt  hate  called  the 
drawer  of  the  house,  and  he  haft  satisfied,  that 
I  did  so  far  endeavour  to  part  them,  toat  I 
threatened  to  send  for  the  guards  and  tecure 
them,  if  they  would  not  go  home ;  and  when 
they  went  into  the  chairs,  J  Went  into  my  chair, 
on  purpose  to  follow  them  down  to  West- 
minster, whither  I  would  have  had  them  gone. 
The  prfek  that  I  got  ih  my  finger,  of  itself 
speaks,  tliat  I  endeavoured  to  part  them,. and 
so  the  drawer  he  has  told  you;  I  am  rare  it* 
was  the  occasion  of  a  great  deal  of  pain  to  me, 
it  being  fiirced  to  be  afterwards  laid  open.  The 
chairman  that  earned  Mr.  Coote  swears,  that 
I,  at  the  door  of  the  tavern  in  St.  Martin's- 
lane,  did  moke  them  stand,  and  when  I  came 
up  to  them,  I  begged,  as  for  an  alms,  that  thej 
would  go  home ;  and  1  asked  Coote  whither 
he  was  going  ?  which  proves  that  I  was  not 
conscious  of  any  design  of  goin^  to  fight  at 
that  time.  Your  lordships  are  likewise  toU, 
that  when  he  came  to  Green-street  end,  I  was 
set  down  upon  the  paved  stones.  I  was  so,  in- , 
deed,  and  I  went  up  about  five  or  six  yards, 
but  that  is  all  that  is  proved ;  but  I  did  taxe  the 
quite  contrary  way  to  the  place  where  Mr. 
Coote  was  wounded.  Then  there  was  another 
cliairman,  one  A|)plegate,  and  truly  what  .use 
they  make  of  him,  I  cannot  imagine,  as  an 
eviJenGe  against  me ;  for  he  says,  I  wa9  very 
earnest  in  Bt.  Martiii's-lane  to  hinder  any  quar- 
rel, and  indeed  at  the  tavern  door,  at  Lockel's» 
I  was  so  at  first;  and  when  we  came  to  St. 
Martin*H  lane  end,  he  says,  that  I  ordered  them 
to  make  them  stop,  and  ask  Coote  whither  he 
was  going?  And  he  sayipg  he  was  going  to. 
Leicester- fields,  I  endeavoured  all  I  could  to 
l^ersuade  him  to  the  contrary,  and  did  entreat  . 
him  that  he  would  go  no  farther,  but  go  down 
to  Westminster  to  his  lodging,  or  lodge  with 
me ;  but  Mr.  Coote  would  not  give  me  time, 
at  that  time,  the  other  chairs  coming  by,  to 
give  him  f\irther  reasons,  but  would  go  away; 
and  then  it  is  objected,  that  I  should  say,  thak 
if  they  would  go,  1  would  go  and  see :  that 
was,  my  lords,  I  would  go  on  till  t  could  haVe' 
a  further  opportunity  to  prevent  linyflg^hting 
among  them:  and  tTO  witness  Ketra  says,  my' 


utaUumm. 

to  fdbw  the 
OMle  wm.     My 

to  my  lode- 
ea4  id  tEc 

SJflMjiiiplhtwMWyiiie^itwy 
fit  — Jiwy— y  »^llMl  gbc«  where  rt 
li^lbb  Act  HVfMi.    For  the  ne^t 
"*'       '    '  '        r nobody walk- 

IVtilj,  f  liiil  ^ 
nei'.  and  tor 
fof  avojdiog 
t  tlie  whole 
«Mtarlo  jomrlmkki§§,  bMr  fti  any  $m\i  rs 
§wl  IpM  at^  Mt  Mm  JNVii  to  be  in  the 
tdiiHh»tiiHwfcwtiiiyftigfct,orn^Dtobc 

K'ht  ^iBfiBy  vImb  tMrr  «■•  tip  aiKi  ^  nd 

SfWBCMlCMMlHMMindiamti  bhis 

4iMt  aad  to  1  thnk I  acad  gire  no  funber 
tMHi  »f  oar  laMipi^  fcr  J  beUere  vour 
4|U|i«HM0l  kal  boMlkiiiv  that  m  I  We 
'  \  I  aa  Mtjpialqr  of  Ufag  this  goutle- 
aaM  M7ff  k  V  MifMihlithig'l  shoutd  go 
iplttlMitU  to  fct'siiOMJ,  when  my  owji 
fjlll»,fc»rf  WM«MaM»  ftr  I  VRiti  of»t  able  lo 
iSUivyaiwiiBay  aponi  IwmJ,  because  ai 
IMji  awii,  I  mkmk  tho  aiMtr  entirely  lo 
lapKBiiireto  oi«et 
— ""Me  to  hoDQur 


Tfiai  ofLmd  Moktmt 


[im 


•ve  now  to  ium 

bcfitt4»flamuptiaeflMiflif«r  ihckinc^,  but 
Irb  foiee  wa  a  loir,  and  the  nmse  m  the 
HaB  WM  a  great,  tbal  be  ocmid  not  be  beard  ^ 
atod  tberelbre  the  liord  High  Steward  moved 
tbefaeoa  that  he  might  ttand  by  the  prisoner 
at  the  bar,  which  was  something  nearer  than 
the  place  where  tlie  king's  counsd  s^>od^  iii  was 
dbne  the  day  before }  and  it  was  oidereil  ac- 
oordiBgly. 

L.  H,  S.  Mr.  Solicitor,  pray  rabeyour  voice 
a  much  a  you  an,  that  all  my  nuble  lords 
may  hear  yon. 

'  [Sereral  of  the  lonis  did  nave,  That  one 
fShM  bad  a  better  roice  might  sum  a  up,  and 
partieifhtfly  Mr.  Co#per ;  but  it  being  otaally 
diejiartof  the  Solicitor  General,  and  he  only 
bamif  prepared  himself,  he  wa  ordenMl  to  go 
00  (  hot  for  the  better  beariDg  of  lutn,  ^ver&l 
of  the  lords  towards  the  upper  end  of  the  house, 
raaared  from  their  seats  down,  a  they  did  the 
day  before,  to  sit  upon  the  wool*pftek«.] 

8oL  Gem,  M^  lords,  I  am  of  counsel  foe  the 
Joog  against  this  nuUe  lord,  jny  lord  Mohun, 
the  prisoner  at  the  bar,  who  ha  been  upon  his 
trial  tbis  day,  and  it  coma  to  my  turn  to  sam 
lip  the  efidencc  that  lia  been  given  against 
liuii,wbich  is  but  a  repetition  of  wlmt  yom- 
kfdsfaips,  no  doubt  of  it,  bate  tak<^n  exact  no* 
tioa  of;  but  I  must  shortly  siuii  n^t  the  chi^f 
of  the  particulars  thersof,  and  make  a  tew  re- 
aaika  what  of  that  otidmoo  iltokt<  particularly 
if«imy]ordMoh«Mk   Tbo  flat  witoaa  wa 


V  tan  voy 


tlie  dr«wer  of  (h^  b6«i«r,  at  ilie  Gn^faeoBAw 
the  Strand^  who  p%i3  yod  an  a^ani,  «ht 
wt:rr  »t  UiA  tSiaa^tsf'i  k«t^  (He  S^tli  of  Odglir 
last,  afkd  p«rikuJarJyH»  tJbat  mj  liNil  MehoowK 
there  iii  the  nine  i^Mi^iiy  wheimi  ibk  ^m^. 
tleman  waa  Ihst  waa  uolbrtDniely  kil'^ed^aaf 
thai  he  coittidtied  m  ibai  comply  lall 
lale  that  night,  or  rallier,  ven^  e«itfr  te 
momini;  *  wbea^  after  ibe  reckoninff 
tht^y  came  all  down  to  the  bar  amd 
ooaches ;    and  he  tell*  you,  that  lie 
out,  and  he  teHa  you  what  he  ivaseol  for.  Hi 
waa  seat  for  eoacbea,  and  so  cannot  giie  mf 
9&oaaDi  what  fi^meA  while  lie  was  i^mt$i  m 
vrheo  upon  calbo^  for  C!<»acbeSf  oooe  taaU  ta 
ha^J,  there  vms.  order  for  cbniJV  tn  br 
and  ebaifs  were  brought  HI  the  door;  and 
he  came  in  agiiin  be  heard  the  d; 
awordti,  and  there  were  three  on  the 
the  bar,  and  three  of  them  on  the  oilier f 
deed  be  does  .«<ay,  he   did  nol  see  whin  tb 
swords  were  draian ;    but   t^i  that  time  \3mf 
were  patting^  up  tbt-ir  sworUi^,  my  lord  Hsbsi 
was  10  the  compaoj  ;  opou  i«hicii  I  %niaUi^ 
serve  to  yotir  iordship*  that  tliere  had  hm 
sonie  figUtmg  ;  for  ihe  wttneiss  says,  ojioiii^ 
lord^t  4)ut>sibn,  that  my  lord  colled  for  a  ot^ 
to  put  his  band  in,  for  his  finger  was  cm ;  mi 
he  said,  this  is  all  thai  1  have  ^oi  1^  eodimai* 
lag  lo  nan  Ihem  \  ^  that  ii  &hevr9  iJbemnii 
noarref^  and  my  lord  IVIubuti  was  in  11    W|o 
toe  f  hairs  were  broach t  to  thif  dtior,  lUtj  wmi 
into  thetn }  there  weni  Mr.  O>oic  iom  «^ 
into  the  second  my  lord  (>f  Warwick,  and  di 
the  third  my  lorU  Blob u a ;  so  tiiat  Mi  ny  Ifli 
Mohun  was  in   the  c^tnpany,  and  they  vii 
away  toijrether  ;    and  though  il  is  pr^raiM^ 
my  lorti,  that  he  did  all  ne  cnubl  to  pctiti 
the  quarref,  yet  he  gave  direciioni  to  the  dn** 
men    that    carried   him  to   fellow  the  oilff 
cbairt,  and  your  lord$Li|^  pereeire  wbM  It 
buvinesa  was  that  they  went  about ;    iodtN 
other  three  cbajm  iuHowed  alter  ()reHodj,0 
thai  they  all  went  away  together  ;    iiiv,  i^ 
lord  himielf  does  not    disown  hi^  bemf  a 
the  company  till  tliey   came  into   Lficcsuf 
fields.     Neit  1  would  observe  vt hat  fell  fia 
Browne^  who  carried  the  very  geutlemia  tkt 
was  killed,  Mr.  Qoeie,  that  my  lord  >la^ai 
was  in  one  of  the  tbree  lirxt  cuair&f  aiht  ilM 
they  all  went  together » till  that  tuy  lord  Muba 
called  <Mit  to  stop,  upon  the  turoint;;  up  tnU  ^ 
Martin's^ lane  ;  and  though  they  stopped  in^ 
Martinis- lane,  cind  my  lord  Mohun  did  hixnA 
them  10  ht  it  alone  at  that  tiute^  yet  k  wum^J 
to  let  it  ale ue  till  the  morning  ;  and  mhm  iM 
other  thrtfe  chaim  passed  by  on  tlieotbefa* 
of  the  way,  and  Coole  would  havelbcrog^"- 
my  lord  Mohun  sud,  if  tliey  would  go  a 
would  g^o  with  tbem  and  see  it.    ^ppl"' 
the   chairman,  that  carried   my  brd  M 
uyi  the  same  :    and  so  it  is  |ilam  my  im 
huD  (lid  go  on  with  an  ioteuuon  Uf  m$kf » 
the  affray  ;  for   Applegate  saya,  that  irl* 
lord  Mohun  could  not  iire^aif  upon  hk  i 
^ious,  tuid  when  Coote  went  tiray,  i 
otU^  thre«  fduiti  w&^  gi^m^  ^j>  b>2^ 


I  for  the  Murder  of  Richard  CootCy  esq. 


A.  D.  169^. 


[I05S 


ill,  if  you  do  go,  I  must  go  and  see  it ; 
iy  (lid  go  all  together  :  and  the  chair  roan 
le  set  my  lord  Alohnn  down  at  the  end 
?n-street,  at  the  lower  end  of  the  fields, 
the  other  two  chairs  set  down  captain 
ftad  my  lord  of  Warwick,  and  that  they 
^e  walked  up  toother  towards  the  Stand- 
em  ;  still  all  tnis  proves  my  lord  did  go 
and  that  he  himself  did  say  he  would  go 
i  it :  and  it  is  plain  that  my  lord  Mohun 
as  far  as  Leicester- fields,  and  it  is  only 
laration  concerning  himself,  without  any 
that  he  went  away  and  did  not  go  into 
ds,  to  the  place  wliere  the  fact  was  done ; 
;  think  it  is  sufficient  proof  that  he  was 

them  that  were  concerned,  because  we 
re,  that  he  was  all  along  in  the  company 

very  time  that  they  came  into  the  place  ; 
the  thing  was  done.  Then  there  is  the 
lan  that  carried  Mr.  James,  and  he  tells 
ordships,  that  the  three  first  chairs  that 
p  St.  Alartin's-lane  went  to  the  Standard 
,  and  there  knocked  at  the  door,  ami  paid  i 
lirmen,  and  went  out  of  their  chair ;  and 
I  the  other  chairmen  that  carried  capt. 
Ta  and  capt.  French  ;  and  they  say  also, 
lien  they  came  down  the  paved  stones 
they  iHrSrd  chairs  called  for,  hut  they 
»t  interpose  at  all  in  the  matter;  but 
ler  two  chairs  it  seems  did,  for  they 
up  to  the  upper  end  of   the    square, 

there  were  two  persons  hoMing  up 
!oote,  and  aAer  they  nut  the  chair  over 
ils,  in  order  to  have  him  carried  away 
hair,  but  they  couhl  not  get  him  into 
lair.  I  would  likewise  observe  from 
idence  of  the  surgeon,  who  gives  you  an 
It  of  what  nature  the  vi  ounds  were ;  one 

the  breast,  near  the  collar-bone,  on  the 
le ;    the  other  was  under  the  short  ribs, 

left  side  too,  which  could  not  be  given 
f  the  person  that  he  was  fighting  with,  he 
a  rigiit-hand  man,  as  was  proved  by  his 
t.  My  lord  Mohun  has  calltKl  but  one  wit- 
vbick  is  only  about  a  little  circuniKtance 
being  wounded  in  the  hand,  and  having 
wnd  laid  open,  but  that  was  two  days 
Jie  fact  was  done ;    my  lord  Mohun 
lot  but  know  that  the  matters  be  was  to 
r,  related  to  a  time  before.    It  must  be  ' 
I  to  me,  that  they  all  three,  my  lonl  of  | 
ick,  my  lord  Mohun  an  I  Mr-  Coote,  went  : 
ay  together,  that  they  were  carried  to 
ter-fietds,  that  they  were  set  down  toge-  ' 
ad  walked  up  together  upon  the  stone 
rDt,  when  the  others  were  gone  towards 


would  go  and  see  it ;  so  that  putting  these  two 
circumstances  tocethe r,  his  uoing  in  one  of  the 
chairs  with  my  lord  Warwick  and  Coote,  and 
what  he  said  after  when  the  chairs  stopt  in  bt. 
Maitin's  lane,  we  think  are  circumstances  to 
induce  your  lordships 'to  believe,  that  he  was 
present  at  the  timu  ct'  tire  fact  committed,  or 
very  near  the  place ;  and  if  that  be  so,  how  far 
he  is  guilty  must  l>e  submitted  to  your  lord- 
ships' cunsideration  ;  and  this  is  all  tnat  1  shall 
trouble  your  lordshii>s  with  without  repeating 
the  particular  evidence,  which  your  lordships 
1  am  sure  very  well  rememl>er. 

L.  Mohun.  My  lords,  i  desire  f  may  say  one 
word  in  answer  to  what  Mr.  Solicitor  has  ob- 
served. 1  think  3'onr  lord?hi|>s  have  had  no 
evidence  given  you  where  Mr.  Coote  was  killed ; 
but  only  the  chairman  that  was  desired  to  bring 
over  his  chair  \«itiiin  the  rails,  says,  it  was 
towards  Panton -street,  which  is  tpiiie  contrary 
to  the  place  where  1  was  set  down,  at  Green- 
street  end  ;  1  must  then  be  at  a  very  great  dis- 
tance from  the  place  where  the  fuct  was  done. . 

L.  H.  S.  If  all  have  done  on  both  sidefs,  then 
your  lordships  Xvjsa  notliinif  left  hut  to  consider 
of  the  evidence  which  has  been  given,  w  hicb,  I 
suppose,  you  will  do  among  youiselves. 

Jjordt,  Ay,  adjonni,  adjourn. 

L.  H.  S.  Is  it  your  pleasure,  my  lords,  te 
adjourn  into  the  llouse  of  Lords? 

Lords.  Ay,  ay. 

L.  H.  S.  This  House  is  adjourned  into  the 
House  of  Lords. 

[And  the  Lonis  went  back  in  the  same  order 
to  the  House  of  I<ords,  and  there  they  staid  for 
about  two  hours  time,  debating  the  matter 
among  themselves,  and  ufttrwanls  returned 
again  into  the  court  in  Westminster-hall,' and 
were  seated  all  in  th^ir  places,  as  they  were 
before,  and  the  Lord  High  Steward  was  seated 
in  the  chair  before  the  throne.] 


CI.  of  the  Cr. 
clamation. 


Serjeant  at  Arms,  make  Pro- 


Serj.  at  Armt.  O  yes,  Oyes,  O  yes,  my  lord 
hi;;li  steward  of  England,  his  grace,  does  straitly 
charge  and  comniand  all  manner  of  persons 
here  present  to  be  unrovrre<l,  and  keep  silence 
upon  nam  of  imprisonment. 

L.  H.  S.  Is  it  your  loniships'  pleasure  to  go 
on  now  to  g^ive  your  judgment  ? 

Lords.  Ay,  ay. 

L.  H.  S.  Then  I  must  pray  your  lordships 
to  give  me  time  to  write  down  your  opinions 
distinctly,  that  f  may  be  able  to  arqunint  you 


per  end  of  tlie  fields  ;    so  that  in  all  pro-  J  with  certainty  of  the  numbei-s. 


jr,  tbey  all  went  together  into  the  place 
the  fight  was,  and  were  all  concerne<l ; 
10 my  lord  Mohun  must  be  erpially  guilty 
be  rest,  my  lord  Mohun  knowing  vihut 
SB  it  was  they  were  going  about.  It 
M  left  to  youriordships,  whether  heshall 
f  preramed  to  be  there  when  the  fact  was 
sipectally  his  saying  when  he  could  not 
1 10  St.  filartia*8-laoe,  to  put  the  matter 
•aolber  time,  that  if  they  did  go  on,  he 
L  XIII. 


Lttrds.  Ay,  ay. 

[Then  the  Ijord  Ili'^^h  Steward  stood  up, 
;  ami  put  the  question  to  c\ery  lord,  beg-innin|^ 
i  with  the  youuijtst  baron,  to  know  \%hat  his 
!  judgment  mmk  ;  and  tlio  lord  to  whom  he 
called,  stood  up  in  bi«  place  uncovered,  and 
I  layioif  liis  rit;ht  hand  upon  ]m  breast,  delivered 
I  his  jiidgintiit  in  the  manner  ioUowiog.] 

L.  H.  S.  My  lord  Bernard,  Is  Charles  hrd 
3Y 


J050] 


ir  WILLIAM  IIL 


I 
I 


Lfc 


Mohun  gtiilty  of  the  feloay  and  murder  whereof 
be  stands  iudict^,  or  Dotgfuilty  f 

L.  Bernard,  Not  giiLIty,  upon  my  honour. 

[The  wime  questioa  wts  asked  si»**eralty  of 
■tl  the  Lortl«f  who  in  the  same  foroa  dehvered 
ttie  stiiD«  opiuion,] 

rrben  the  Lord  High  Steward  scatetl  him- 
pijf  a^aia  in  the  chair,  to  tuk«  the  Dumber  of 
the  |>«erswho  had  g'iveo  theirjud^^rnent,] 

I.  H.  S.  My  lords,  87  of  your  iordshipt  are 
nrftseatf  and  you  all  are  unanimously  of  opinion, 
Thalniy  lord  Mohun  is  not  utility  of  the  felony 
and  iffurd«r  whereof  he  slandc  indtded* 

Lord^.  Ay,  ay. 

Z.  H.  5.  Let  the  priaooer  be  called  to  the 
^. 

CL  of  the  Cr.  Segeant  at  Arms,  make  pro- 
clamatron. 

Sefj  ai  Armt.  O  Ves,  O  Yea,  O  Yea,  my 
Lord  High  Bxt»wanl  of  England,  his  grace, 
dees  fttrajtiy  charge  and  command  all  manner 
of  persons  here  prefeot  to  keep  tilence,  upon 
fain  of  i  m  prisoDmefit 

C/.  of  the  Cr,  Seijeant  at  Arms,  mike  pro- 
clamation. 

Sery^  at  Arvnt.  O  Ye*,  O  Yet,  O  Yes,  chief 
governor  of  the  Tower  of  London,  bring  forlli 
the  hody  of  your  prisoner  CtiaHeslord  Motiuti, 
whom  you  have  committed  to  you,  in  order  to 
be  hroughi  hilher  this  day,  ujiod  pain  and  peril 
will  fall  tbeieon. 

Then  he  was  brought  foi-th  to  the  har,  and 
the  Loiti  High  Steward  addressed  btmself  to 
him  in  this  manner  : 

X.  H.  6\  ^T^'  ^<i»*'^  ^fnhun,you  have  been  in- 
dicted for  i'  of  Mr.  llicljard  Coote, 
upon  whicli  t;  ui  yo4ir  tonkhip  has  been 
arraigned,  and  upon  your  arraignment  haa 
plcadecl  not  guilty,  aod'for  your  trial  you  hare 
put  yourself  upon  your  peei-s,  my  lords  here 
present ;  and  the\*  have  heard  the  evidence, 
and  have  contidcrod  of  it,  and  delivered  their 
jfidgmeot  upon  the  wliote  matter ;  and  I  am 
to  BCflUaint  your  lordship,  they  are  all  unani- 
mously of  opinion,  that  your  lordship  is  not 
guilty  of  the  felony  and  murder  whereof  you 
itand  indicted;  and  iheri?fore  your  lordsliip  is 
dischargeil  from  your  imprisonment,  paying 
your  fcea. 

Then  the  lord  Mohun  made  lib  reverence  to 
thfl  Lorda,aud  exprcuH'd  himsrlf  thus : 


Trial  of  Lord  Mohum  [W 

Lord  Mokun.  My  lordi,  1  do  tuetknowi 
way  to  ejtpren  m^  great  Ibankfttbesi  i 
knowledgment  ot  your  lordbbipa'  great  I, 
and  justice  to  me ;   bat  1  crave  leave  lo| 
your  lordships,  that  I  will   eaideavour  l« 
It  tba  huftbesa  of  the  future  part  of  my 
to  be  bare  myself  in  my  eonveTsatioii  ie 
world,  as  lo  avoid  all  things  tbztt  may  bctog  i 
under  any  such  circu  in  stances,  as  nuy  i 
roe  to  the  giving  your  lordahipa  an?  tn 
this  nature  for  the  future.*'    [And tbeo 
his  reverences  to  the  lords,  be  weol  awj 
the  bar.] 

CL  oftht  Cr,  Seqeaal  at  Anaa,  otkepi^  I 
clamatioQ,  i 

Strj,  at  Arm,  O  Yes,  O  Yes,  O  Ym^ai 
manner  of  persons  here  present,  areoofmiiidW  / 
lo  keep  silence,  by  my  Lord  High  Hcnrmfif  i 
England,  his  grace,  upon  pain  of  impnait  f 
ment, 

h.  H,  S.  My  lords,  the  trial  being  it  uiil  I 
there  b  nothing  remains  to  be  dcioplitTr,ltf  i 
the  determining  the  commiasioii* 

Lords,  Ay,  ay. 

JL  H.  S,  8ir  Samuel  Astry,  let  i 
be  made  in  order  to  the  dissdring  thee 
sion  of  High  Stewardship. 

CI.  vfiht  Cr,  Serjeant  at  Anus,  Dilir|l 
cldmation. 

Serj,  ttt  Anfts.    O  Yes,  O  Yes,  0  Vrt.  l 
Lord  High  Steward  of  Eu^lantf,  hi*  i 
does  straitly  charge  and  command  all  i 
of  persons  here  present,  and  that  liwtl 
attended,  todep'sr"  h-'v—  ■-*  ■*—  ..-"-</{? 
and  of  our  tov^ 

(jracHJ,   the  Lord  il.^^  ..,,: .  ..  i  ., 

intends  now  to  dissolve  bis  commiitiin 

And  then  the  White  Staff  being  adM^^  j 
his  grace,  the  L^rd  Hi^Stewai4,  heiti^4| 
and  holding  it  in  both  his  hac^,  bnikc  ^f*^  ' 
and  then  leaving  the  chair,  oame  dflVti  t' i^ 
Wool-pack,  and  said,  Is  ityoiirlorditiipi'fi<^ 
sure  to  adjourn  lo  the  House  of  Lordi^ 

L§rdt,    Ay,  ay. 

I.  H,  S,  This  House  is  adjoumcJ  *^\ 
House  of  Lords. 

And  so  ihey  went  back  in  tlie  saB*  '     , 
that  they   came   into  the  court,  and  lU* 
ibly  broke  up. 


*  He  was  nev crtheleaa  kilkd  in  a  dutl  h  ^ 
duke  of  Hamilton,  who  ttoo  ML  Bm  ^oL  t 
p.  9^0,  note. 


W« 


>1 


Trud  ^  Ckartes  Dnncambe,  esq. 


A.D. 


[lOGe 


k  A  brief  Account  of  the  Trial  of  Charles  Duncombe,  esq. 
before  the  Lord  Chief  Justice  Holt,  at  the  King's  Bench  Bar 
in  Westminster-hall,  upon  an  Information  for  false  indorsing 
of  Exchequer  Bills,  and  paying  them  into  the  Exchequer,  as 
if  they  had  been  first  paid  into  the  Excise  Office  upon  that 
Branch  of  the  Revenue:  li  Wiliiam  III.  a.  d.  I699.*  [Now 
first  printed  from  a  MS.  in  the  Possession  of  the  Earl  of 
Radnor,  who  has  obligingly  imparted  it  for  this  Collection, 
A.  D.   I81S.] 


June  17, 1699. 

;S  Court  waited  a  long  time  lor  D'Acoata 
lew,  tiM  loof^a  erideiioe,  upon  which  ray 
Chief  Juatice  rcprofed  the  kiag-'s  conn- 
Ad  aaked  them  if  they  bad  ordered  it  so  on 
use;  to  which  Mr.  Attomey  replied,  that 
Mflta  profluied  to  be  here.  One  of  the  de- 
lat'Booanael  nid  it  was  the  Jews'  Sabbath ; 
IIm  Jews  would  not  fight  on  the  Sabbath, 
■Iber  be  cut  in  pceees,  and  that  the  king's 
•tl  might  have  dispensed  with  the  attcnd- 
o(f  the  defendant's  oouosel.  Mr.  Attomey 
■red,  that  D'Aoosta  promised  to  be  there, 
Mide  no  ebjectieii  as  to  the  Sabbath,  bnt  be 
mtA  the  defendant's  counsel  had  put  him 

i(ddrit 

r.  P'Aouota  being  come,  the  Jury  was 
B  aa  follows :  Warwick  Lake,  esq. ;  Leo- 
Hammond,  esq.;  Richard  Berer,  esq.; 
M8  Blaekinore,  William  Fenn,  Francis 
b,   Francis  Peters,   Michael  Shepherd, 

<*  Another  sort  of  offenders  were  this  ses- 
nimadTerted  upon  by  the  commoos,  but 
lie  good  fortune  to  escape  with  impunity, 
ezcbe^ uer  bills  were  at  this  time  of  very 
i  use  in  the  nation,  by  supplying  the 
sty  of  money,  during  the  re-coining  of  the 
r  speries.  Now  because  there  was  an 
est  of  7/.  19f.  per  ano.  allowed  upon  the 
id  leaning  of  tnese  bills  out  of  the  eiche- 
,  after  they  had  been  paid  in,  on  any  of 
ting's  taxes,  whereas  at  their  first  issuii^ 
if  the  exchequer  they  bore  no  interest,  this 
maged  several  of  the  king's  officerti,  both 
•  excbeqiier,  the  customs,  and  the  excise, 
Mirive  together  to  get  great  sums  of  money 
dm  iodoraemeota  on  these  exchequer  bills, 
ra  they  bad  drcnlated  about,  and  been 
fhl  iato  aov  branch  of  the  king's  re? enne. 
Most  eooaiderable  nersons,  who  bad  carried 
Hms  iw  warrantable  practice,  were  Mr. 
riss  DoDeombe,  reeeirer-  general  of  the  ex- 
i  Mr.  John  Knight,  treasurer  of  the  cu8- 
I;  Mr.  Bartholomew  Burton,  who  had  a 
lis  Ibo  eKciao-oflke ;  and  Mr.  Reginald 


m^  one  of  the  depo^  tdlera  of  the  ex- 
W;  whM^  1hI»  la  prooore  hia  paidon, 


Richard  Poatou,  Matthew  Fern,  Robert  Hedin, 
James  Cole. 

The  Jury  being  sworn,  Mr.  Attorn^  exhi- 
bited the  Information,  which  being  read, 

Mr.  MontaguCy  counsel  for  the  king,  opened 
it  to  the  effect  following : 

The  Record  now  read,  is  an  Information 
brought  by  Mr.  Altomey  against  Cliarlcs  Dun- 
combe,  esq.  for  a  high  misdemeanor  in  the  exe- 
cution oi'  bis  office  as  cashier  of  the  excise.  It 
shews  that  the  lords  of  the  exchequer  had  di- 
rected bins  to  be  issued  out,  and  that  Mr.  Dun- 
combe  being  cashier  of  the  excise  had  received 
$0,000/.  and  more  of  the  king's  money  upon 
that  branch  of  the  revenue,  and  according  In 
his  duty  ought  to  have  paid  it  in  specie  for  hia 
majesty's  use  aa  the  commiasioners  directed. 
On  the  5th  day  of  May,  the  commissioners  of 
the  excise  ordered  him  to  pay  10,000/. ;  not- 
withstanding which,  he,  intending  to  defraud 
the  king  and  to  lessen  the  credit  of  the  excho- 

eom|KNinded  to  accuse  the  rest.  Upon  a  ful 
proof  of  the  matter,  Duncombe  and  Kniglit, 
who  were  members  of  the  house  of  oommona. 
were  first  expelled  the  house,  and  committed 
prisoners  to  the  Tower ;  Burton  sent  to  New- 
gate, and  bills  ordered  to  be  brought  in  to 
punish  them.  The  bill  against  Mr.  Duncombe, 
whereby  a  fine  of  near  half  his  estate,  which 
was  computed  at  400,000/.  was  set  upon  him, 
quickly  passed  the  house  of  commons,  notwith- 
standing the  oppositron  that  was  made  to  it, 
particularly  by  sir  Thomas  Treror  the  attor- 
ney-genetiil.  But,  being  sent  up  to  the  liousa 
of  lom,  and  the  house  beiog  equally  divided, 
the  duke  of  Leeds  gave  his  casting  vote  for  re- 
jecting the  bill.  But,  Mr.  Dunconibe  being 
set  at  liberty  by  the  onler  of  the  house  of  lords, 
without  the  consent  of  the  commons,  the  latter 
reaented  it  to  that  degree,  that  they  caused  him 
to  be  remanded  to  the  Tower  of  Liondon,  where 
he  continued  till  the  end  of  the  session.  Tho 
bills  against  Knight  and  Burton  had  the  same 
fate ;  and  so  alf  the  noise  this  sort  of  for- 
gery had  made,  in  towb  and  country,  was 
bushed  on  a  sudden,  and  no  more  heard  of  it." 


lOCSj  11  WTLLIAM  III.  Trial  of  Charles  Dunambe,  esq. 

qucr  liillu,  did  on  the  Gili  of  May  pay  in  7,860i. 

Jirinri|iai  money  in  exclicqmr  bills,  t*iils<-ly  in- 
Inrsed,  tor  money  that  he  ou<jlit  to  have  paid  into 
the  e^cheipier  in  specie,  he  koowinij^  that  those 
bills  had  never  passed  the  revenue  oi  the  excise. 
Mr.  Aitotnetf  (sir  Thoman  Trevor)  ar^ed 
next  to  the  effeci  Ibllowiujr,  viz.  That  Mr.  Dun- 
combe  had  received  into  his  hands  as  cashier 
of  tlie  excise  the  sum  of  (20,000/.  and  more  of 
the  kinf^'s  money,  which  liad  been  paid  in  fur 
the  revenue  of  tlie  excise  in  old  money,  sent 
afterwards  to  the  Tower  to  be  re- coined,  and 
'  came  back  a^in  io  milled  money  to  Mr.  Dun- 
combe  the  cashier.  This  money  beinir  in  his 
handd,  he  was  to  have  paid  in  according;  to  the 
direction  of  the  cominiss>ioiiers  of  excise.  They 
ordered  20,000/.  to  he  paiil  for  several  uses, 
and  part  of  it  beiu<r  10,000/.  and  more  to  be 
paid  into  the  exchequer  by  their  order  of  the  5tb 
of  Mhv  for  that  pnrpimc.  But  Mr.  Duncombe 
iotrndin^  to  make  an  unlawful  jrain  tn  himself, 
nnd  to  prejudice  the  kin^  did  not  pay  in  miiltrd 
money  accordini;  to  their  order,  but' purchased 
to  the  value  of  7,800/.  in  exchequer  bills  upon 
a  ;;re:it  discount  for  it ;  at  that  time  exchequer 
hilts  i«kucd  for  such  aud  such  sums  were  dis- 
Gouiiteil  at  5/.  |)er  cent,  so  that  he  savett  5  per 
rent. ;    this  came  to  400/.  more  or  less,  that  he 

gained  by  this  bargain.  But  those  exchequer 
ills  he  could  not  pay  into  the  exchequer  with- 
out bein^  indorsed,  lo  ^jew  that  those  bills  bad 
been  really  paid  into  the  excise  upon  that 
branch  of  the  revenue ;  for,  by  the  act  of  par- 
lianu-iit,  they  were  to  he  paid  into  (he  exche- 
qiKT  ns  iiuuiev  tluit  hud  fonnrriy  heen  |taul  on 
the  re\i  owe,  and  ihe  pei-son.s  weiv  lo  write  iheir 
names  ii}ton  theiu  as  ihey  paltl  tin  in  ;  where- 
iipmi  Mr.  I )iiiu'«milM- prevails  witli  Mr.  DMrnsta 
lo  si  I  jiis  own  name  and  oilier  leigiied  names, 
8  »nie  ut*  ilu'in  <'f  persons  !i'>t  in  biioi^*^,  others 
the  iia.nc  s  ol  jktsoiis  that  wcie  nut  privy  lo  it  ; 
an<l  Air.  Daiicoinbe  ki)Owin<r  that  tUev  ucrt' 
falsriy  inilorse"!.  j'a.d  ihem  into  llie  exchequer 
in  pan  of  lo.OtJO'..  ihoiji;li  he  knew  Uiey  Here 
iu»i  paid  ill  to  ilie  »xci>e.  It  \>as  a  "misde- 
ini  an(»r  in  Iii»j  oiHee  :.ij.l  a  jleceii  to  ilie  kintj, 
lor  him  w  Ij. •»*;;-.  niinisit.-d  to  pay  the  kiiij^'s 
int)ney  to  l.ny  ixcluijiicr  I'iils  b\  which  1m* 
Huins  so  uinch  per  cent,  and  pays  iht-m  iiilo  the 
excliiquir  at  so  much  dani'i^e  ai»d  lo.«>s  lo  ih.e 
kin;;  :   lhi>  v*e  shall  provt  b\  <uir  \\itn«.SM  >. 

Mr.  .S.rj,a:it  Durnt!  «p  ike  nr\t,  Jiml  i:">i<t- 
inpf  a  iiiih-  iip.)!i  the  icit'onnaliun.  calicd  U'.-  tiK 
kinif'.s  e\itItiK*i>. 

Tin'  {i'sj  \,  a  ,  >lr.  Claytnn,  wiilj  liie  oiuv  i  oJ 
the  lonls  oMlie  iri:  s:r\.' 

."^I.  />./».-'.  ""ir.  I  l.iv :.»!',  uivea.i  a».'cc»ui. I  o: 
what  "s  I  u  know  of  cxrlit,'|uir  bilia  issued  b\  lin. 
lonls  of  I  ho  iri.i<nr\ . 

Mr  C!:ij\'u.  Tills  .siUe  or.!,  r  of  the  lords 
of  ihc  lri'.iMi.\  .  vvliii  ii  \'.:;t.  re..d  us  follows  : 


April  Jo,  lc.i:.r,  S:i  ,.:ien  I  '\,  Ch.irles  Mo:i- 
**  ta^jMf.  ,l,»hii  N  niiii,  Thon.as  LilllclMi. 
** 'lo  su-  lii'iiiii  Howard,  auditor  ot  liie 
*'cxcheiiv.Li."' 

'*  Whereas  by  act  of  parliameut  forgrantini: 


**  an  Aid  to  his  majesty  by  a  land  ti 
*<  for  one  year,  we  are  authorised  t* 
"  of  the  exchequer  not  exceeding  1 
"  and  to  issue  the  same  in  such  propi 
**  shall  think  (it.  And  w  hereas,  by 
*'  parliament,  and  by  the  king's  pn 
''  when  the  receivers  of  the  rcvenui 
*'  bills  into  the  revenue,  they  are  to ! 
*'  struck,  and  their  bills  are  to  be  ci 
"  more  fully  therein  appears.  Th 
**  pursuance  of  the  autlioritj^  STant 
*'  by  the  said  act,  &c.  fi»r  issain^, 
**  back,  and  cancelling  the  said  bdl 
<*  lowing  the  orders  to  be  (»baerved, 
'*  you  if  you  cause  indented  bills  t 
'*  tor  such  sum  or  sums,  as  any  tbr 
^*  the  lord  hig^h  treasurer  for  the 
<*  shall  direct,  and  that  you  see  the  i 
"  bered  and  marked  with  the  pni 
"  lowing  interest  of  5  per  cent,  am 
<*  keep  an  exact  and  true  account  ol 
*^  and  deliver  the  same  to  the  lellrr 
"  chequer,  taking  their  receipts  at 
*'  an  exact  account  in  the  nature  of 
**  and  chariT:  the  tellers  with  the  n 
**  vou  delivered,  and  keep  a  true  ac 
**  bills  they  leceive  from  you  ;  an 
**  said  tellers  be  required  to  observe 
*'  ticular  directions,  and  such  fuitl 
<*  ue  shall  fn»d  necessary;  and  tb 
**  ha«  c  the  better  intbnnation  how  th 
**  complie<l  wiih,  you  are  everj-  Fritl 
*<  mine  the  accounts  of  the  tellers 
^*  and  to  Leop  ihc  ir  receipts  and  can* 
*'  separate  from  the  other  acrounts 
**  chequer,  and  this  shall  he  your  w 

Serj.  Darnci.  We  shall  next  prove 
mission  ot  the  excise  to  appoint  Mr  1 
their  cashier.    Show  the  commission 

L.  C.  J.  How  do  \ou  prove  it  to 
commission  .-* 

Mr.  Attojnei/.  It  is  a  true  copy  ex 
the  Six  Clerks  oftice. 

Then  the  Commission  was  re 

Sir  Tho.  Poais^  one  of  the  detenda 
St  I.  It  were  prt»pc  r  before  you  com 
this  ohjev  lion,  that  \ou  should  lay  it 
formation,  that  the  conimi>s>ioner$  c 
ney  bills  to  he  issue!  out,  to  be  |>a 
txclieqner:  lliey  are  tirst  to  prove 
it.;  ^  have  not  yet  pruved  it,  lor  this 
ueiiM.il  insirnction  ihat  they  should 
\thi.n  coniinaniUd. 

Ti  «  n  an  Order  of  ihe  Trea.^urv 
•Iriud  Orili  \pril.  1097,  signed,  Fo, 
l.iir.tlon  ;  «:;iecl«*<l  to  sir  H«>ltert  He 
p..:  t■nl^  *'  That  foreniar^^ieirthecapit 
"  ihe  Ji.ink  of  Knu-lund,  there  should 
"  ciM  t'>  lilt  loid  Kanektu^h  n[Mm  ai 
••  tie.!  ortkr  in  his  name,  SJ2,648/.foi 
'*  et  lr;>  n;..jtsi\'s  foices,  and  c 
"  eliar<;es  lo  he  applied,  to  pay  OKHM 
"  ijuarierinif  of  soldiers  betwixt  V 
"  l6*-u,  JOO.OOO'.  ;  to  clear  qoanen 
'*  sisteuce  io  l£n gland,  77,648#.  ftr  th 


1065]  JvrfaUe  indorsing  of  Exchequer  Bills. 

'•  in  Flanden  55,400/. ;  ami  that  they  should 
"  take  care  that  this  should  be  duly  paid,  and 
"  charge  themselves  M-ith  it." 

Mr.  Attorney.  Call  Mr.  Clayton.  Mr.  Clay- 
loo»  were  the  bills  issued  according*  to  this 
onler  ? — Cluuttm,  Yes. 

Sir  Tho.  Fowit,  U|mid  what  account  were 
tkey  iaued? 

ClayioH.  On  the  1,500,000/.  act ;  for  we  did 
DOC  make  out  any  bills  upon  the  second  act  till 
three  months  after. 

8ir  Tko,  Ftavit.  If  this  be  sufficient  proof,  it 
Is  strange ;  it  recites  the  Capitation  act,  and  a 
Sd  act  for  deftciencics,  and  makingr  good  the 
slock  of  the  Bank.  The  order  recites  direc- 
tions for  exchequer  bills  to  pasx  in  all  payments, 
txorpt  the  Si.  Aid,  mi  that  there  are  no  rxche- 
qocr  bills  made  according  to  the  act  ;  for  their 
OTiier  is  subsequent  to  b<»th.  I'he  first  orders 
sxcfaequer  bills  to  go  in  all  payments,  so  afler 
both  are  passed,  here  are  exchequer  biils  that 
ooght  to  be  made  to  pa*:s  in  all  nnynients,  and 
Bot  to  pass  in  all  payments,  so  that  there  is  no 
exchequer  bill  agreeable  to  the  intention  of  the 
Sdact. 

L.  C.  J. The  firRthath  an  exception.  The  se- 
esnd  says,  all  exchequer  bills  shall  pass  in  all 
'Baympnts  whatsoever.  The  first  and  second 
nving  both  |>a8sed,  they  ought  to  have  made 
Ibeir  bilK  payable  ncconlingly . 

Mr.  Attorney,  Their  order  is  only  upon  the 
iMie  of  the  first  act,  that  tlie  exchequer  bills 
•hall  be  current  in  all  payments  but  the  three 
ihiliings  aid. 

Sir  Earth.  Shomrr.  It  is  before  any  procla- 
matiooy  p.  384.  *'  Be  it  further  enacted,  that 
dcbeqner  bills  be  taken  not  only  by  receivers, 
kit  by  all  collectors  of  the  Land  tax  and  sup- 
ply,' &c.  Observe  this  order  of  theirs  re- 
cites both  acts,  therefore  they  ought  to  have 
framed  their  exchequer  bills  to  be  current  in 
all  payments,  and  not  with  an  exception. 

L.  C.  J.  The  exchequer  bills  are  made  ac- 
cording to  one.  Will  you  make  two  sorts  ? 
First,  the  one  act  says,  they  shall  pass  in  all 
paymcDts  except  the  3s.  aiil,  and  the  other  act 
says,  exchequer  bills  shall  be  current  in  all  pay- 
mts  whatever  ;  they  have  authoiity  in  one 
k  10  make  exchequer  bills  current  in  all  pa  v- 
»ts  except  the  3s.  aid,  and  in  another  to  make 
Km  current  in  all  payments  whatsoever. 
Mr.  Attorney.  It  is  another  act  that  makes 
I  current  m  all  payments  :  so  that  you  are 
nsiaken,  sir  Bartholomew. 
8ir  Barth.  ShoKcr.  It  in  to  make  exchequer 
I  general  when  there  is  u  clause  in  one  act 
tkat  tbey  shall  be  current  in  all  payments  ex- 
cept the* 3s.  aid,  and  then  by  another  act  in  the 
nmc  sesuon  thev  are  made  curn-nt  in  ull  pay- 
ments ;  then,  wliat authoiity  had  they  to  make 
Cttliequer  bilht  with  an  exception,  when  the 
net  authorizes  them  to  make  them  payable  in 


A.  D*  1609. 


[1066 


produced  that  they  are  to  make  bills  according 
to  their  order. 

Blr.  Attorney.  Though  there  be  a  general 
clause  in  the  act,  yet  there  is  another  proviso 
about  contracts  for  exchange. 

L.  C.  J.  At  this  rate,  gentlemen,  there  is  not 
one  exchequer  bill  in  £ntr|and  good  ;  yon  will 
destroy  all  exchequer  bills.  Go  on  with  year 
evidence. 

Mr,  Attorney.  Call  Noel.  Mr.  Noel,  did  you 
know  Mr.  Duncombe  when  he  was  cashier  of 
the  excise  ? — Noel.  Yes. 

Mr.  Attorney.  Call  Rumney.  Mr.  Rumney, 
What  do  you  know  of  Mr.  Duncombe's  receiv- 
ing milled  money  P 

Rumney.  On  the  4th  and  5th  May,  1697,  he 
received  <J0,135/.  5s.  S\d.  recoinetl  from  old 
money  ? 

Mr.  Attorney.  How  did  he  receive  it  ? 

Rumney.  He  received  it  from  Mr.  Fouquier, 
accountant  to  the  excise. 

Mr.  Attorney.  How  do  you  know  he  re- 
ceive<l  it  P 

Rumney.  I  went  to  Mr.  Duncombe's  office ; 
I  helped  to  carry  it,  part  on  one  day  and  part 
on  another. 

Mr.  Attorney.  What  do  you  know  of  money 
paid  to  Mr.  Duncombe,  Mr.  Fouquier? 

Fouquier.  On  the  37th  February,  1696,  he 
had  357  ounces  8  dn  is.  hammered  money ;  On 
the  5(h  of  March,  5.^8  ounces  inimmered  money 

repaid  to  his  clerk :  On  the  4th  of  May, 

produce  of  the  money  so  brouuht  in  on  the  97th 
February  ■  ;  on  the  3d  day  of  Alarch, 

then  there  was  paid  him  on  the  4th  and  5tb 


One  of  the  Dcff.ndanl^s  Countel  said.  You 

'    »k.  Did  you  sec  it  carrried  in  P 

ways  received  it  and  paid  it 


speak  by  your  book.  Did  you  sec  it  carrried  in  P 
Fouquier.    I  at 


1. 

Keij.  Darnel.     If  the  fact  were  so  as  sir 
BvtlHilomew  alledges,  it  will  not  conclude  that 
\  can  be  no  exception. 


thus  to  his  clerk. 

Mr.  Attorney.  Mr.  Blessington,  produce  the 
order  of  the  commissioners  Ibr  the  payment  of 
the  money  into  the  exchequer. 

BUisingtoH.  There  is  the  order  of  the  Com- 
missioners  to  pay  the  money  into  the  ex- 
chctjuer. 

Then  it  was  read,  dated  May  5th,  1697. 

Mr.  Attorney.  Notwithstanding  this  order, 
he  bnught  those  exchetpier  bills,  caused  them 
to  be  indorsed,  and  paid  them  into  the  ex- 
clie«|uer  in  part  of  the  10,000/.  Mr.  D'Acosta, 
give  an  account  to  my  lord  and  the  jury  what 
number  of  exchequer  bills  you  sold  to  Mr. 
Duncombe,  for  what,  and  when  ? 

D^Acoita.  I  did,  upon  the  desire  of  the  lords 
of  the  treasury,  furnish  billi«  for  his  majesty's 
service  in  Flanders  the  19th  March  1697  ;  I  was 
to  be  repaid  in  exchequer  bills  when  they  came 
out.  The  exchequer  bills  were  according- 
ly delivered  to  me  on  the  9th  of  May  1697,  and 
wanting  money  at  that  time,  1  contracted  with 
31  r.  Duncomlie  to  sell  him  83  exchequer  bills, 
amountiiif^,  with  interefct,lo  the  sum  of  7,894/. 
9s.  Od.  deducting  5  per  cent,  which  came  to 
394/.  4s.  6d.    The  remainder  Mr.  DuDOonba 


Mr.  Munday.  It  appears  by  the  evidence    paid  me  on  the  12th  of  May. 


1067] 


11  WILLIAM  in. 


I 


I 


I 


I 


Mr.  Attom^,  Wbo  did  you  deliver  them  to, 
and  From  whom  did  ^ou  receive  tbeui f 

D*Acmiu.  I  dettvercil  them  to  ftlJermaQ 
DuDCOoihe.  I  received  theivi  from  the  lords  oi 
the  treasury,  on  tljo  4th  of  May  1697.  J 
bfuuglit  iheoj  to  hitn  luyseif;  be  rtcehed 
thrm,  JMid  looked  upon  ihem;  he  lold  me  J 
i^uld  ftet  my  huid  to  them,  and  I  did  so  to 
several. 

Mr,  Attamey*  Why  did  you  wti  your  bftnd 
to  them  f 

D'Jcosta.  I  thought  it  iiece««ary  lor  the 
currency  of  those  htllSf  tbey  being'  but  come 
mbout  *  week  before  ;  hut  con«i(&rii>g^  wiili 
loyseti'  at  the  same  tiuie,  that  it  might  be  a  re- 
fl^tkm  Qfion  me  to  discouut  to  many  biilst  I 
ti>1d  Mr.  Duncomhe  so  thea ;  he  bid  me  put 
my  own  hand,  or  the  name  of  any  other  pt^rsou 
to  them ;  so  1  piU  my  own  name  to  part  of 
them,  and  to  the  rest,  i  aet  other  names. 

Mr.  Atiornet/,    What  names  did  you  set  T 

D^AcottiA'  Any  names  I  could  think  on  ; 
the  names  of  perstms  ttiat  dealt  with  me  oir 
otben. 

Mr.  Altorfuy,  Tiie  discount  at  5  per  cent. 
you  stiy  atnoimtetl  to  394/.  4s.  6d,  ;  did  you 
■et  your  hand  to  those  bills,  when  Mr.  Don- 
combe  was  by  ?--~D^Acos(a.  Yes. 

Mr.  Aiionu^.  How  came  it  you  did  i»ot  write 
ibis  indursffmc nt  ? 

D^Acosla,  He  desiroil  me  to  do  nothing, 
but  to  set  my  hand,  without  filling  up  any 
thiD^. 

Mr.  ./it /ornery.  Did  you  wt\U  your  name 
upon  all  of  them? 

D'Acoita,  I  wrote  my  name  upon  several  of 
tliem. 

Mr.  Attorney.  Whose  names  did  you  write 
opou  the  rest  ? 

D'Acosta.  1  do  not  remember  any  other 
names  hut  that  of  my  partner,  and  some  others 
that  dealt  with  me* 

Mr,  Atiornei/.  Look  upon  those  bills;  yon 
know  the  uuinoers  of  those  tnllf  you  sold. 

D^Acosta  looked  ii[>on  some  of  the  hills  and 
said,  I  think  this  is  my  hand  ;  thi»  is  the  name 
of  John  Romberg,  one  that  I  dealt  with. 

Mr<  Attorney,  Did  you  write  that  iodone- 
mentf 

D^Acotta,  No,  I  wrote  nothing  hut  the  name 
upon  it ;  there  was  a  blank,  I  know  not  who 
wfole  the  rest 

Mr*  Attorney.  When  did  you  pay  thoae  ex* 
chequer  hills? 

iXAi^im,  On  Uie  9th  of  Majr,  IdQT. 

Mr.  Attorney,  Did  you  write  no  indorse* 
ninrt  tipon  Ihem  ? 

Hi'AikMUa,  No,  only  my  hami  and  a  biank. 

Bir.  Jrfomsy.  Did  you  set  down  no  day  ? 

D'Afo^ta,  So. 

Mr.  Attonmf.  Did  not  you  scruple  the  put- 
ting your  name  to  them  at  first  ? 

D^Acoita*  Noy  1  made  no  sonipls,  becauaa 
k«  told  me  there  shoukl  be  a  naoMfo  them ;  but 
wiiiaiilMiiiy  at  last  that  it  was  a  large  pai^cel  of 
faiO^  and  that  it  woukl  be  a  reflection  upon 


Trial  ifCkarlci  DuAcjmi^,  tsq,  ^ 


tkolhtng  ti»c;' 

lyAcmla.  No,  he  desired  notyag  al  "1^ 
up,  or  any  d»y  ;  1  ixily  set  %ny  own  vookcx^ 
other  names  to  them  v  '<>v  this  tkiog 
wrote  Of  er  tht:  names,  I  know  nmkiog  ; 
some  Mher  Unly  hsth  writ  it. 

Mr.  Attorney,    Did  he  giv<  y^il 
tions  what  names  to  writ«  ? 

D*Acotia.    He  gare  n»9  no 
said  any  name. 

Mr,  AitoTHMy.     What  wai  the 
set  down  teigned  |iersoQ»»8nd  feigned*' 

Sir  7;  Pount.   You  wrote  your  owti  «-j 
many  of  the  bills ;  tell  the  r«siion  wb»- 
not  write  it  upon  nil  f  ~'~ 

D^Acoita.    Bt  cause  1  was  afraid 
disoblige  the  lord tt  of  the  iieaMirvio  i 
BO  many,  and  wrong  my  •  ,   ft 

it  60  to  Mr,  Duncombe,  a.      <        i  imn 
name. 

Mr.  Attorney.  Was  there  any  adriaU^i 
that  time  by  setting  names  to  the  billi;  11 
you  discourse  of  any  advantage  by  n\  or^ 
know  of  aoy  contrivance  in  lu 


>ou 


V 


was  it  for  your  own  sake  or  Mr. 
that  you  wrote  your  name  ? 

D'Acoita.  Mr.  Dunoombe  desired  i 
my  name  to  them  ;  I  knew  of  noadtaonj 
it ;  the  bills  that  I  had  were  ihc  fust  i 
were  issued,  and  the  lirst  ili%t  I  bad,  1 
to  Mr.  Duncombe.  Those  bills  were  i 
to  me  on  the  ith  of  May,  and  betwixt  thiti 
and  the  12th  that  I  signed  them,  1  couli  i 
tell  the  manner  of  them.  Mr^  I>ui]cuuaki  i 
sired  me  to  set  my  name  to  Lbeoa,  and  1 1 
it  was  necessary  to  do  so,  and  aocordu^lv 
my  name  in  bkink  to  them. 

Sir  T.  Pomii*  W  hen  you  put  yoor  i 
upon  so  many,  you  were  utiv>iUiii|r,  j 
to  put  your  onme  to  any  root  e  ;  wns  it  I 
own  sake,  or  dlr.  Duncombt^s,  ili^t  ye 
pled  it  ? 

D^Acii^ta,   It  was  fur  my  own  sake. 

bir  'i\  Ptt&fi*,    Did  ht;  direct  %uy  body  t 
name  to  be  set  to  the  bills  f 

p'Acoita.  i  brought  iboee  bills,  aa| 
aaid,  blank  ;  i  delifered  therai  to  bim; 
me  I  must  set  my  name  to  thetti  ;  I 
several  of  them,  and  theu  cotisidArtHJ  tber 
(lection  it  would  be  upon  me,  if  I  sgnadi 
many  of  them,  as  I  said  hefure,  and  nnrnd 
so  to  him,  and  he  bid  me  $et  my  nnrue. 

Mr,  Nor  they.    Did  ymi  lake  it  tu  he  u(  m 
import,  when  you  act  your  name  lo  UMnf 

D\icoitt(i,    1  tttou^Iu  ii  to  be  oo  mora  htk-i 
kind  of  rt*ceipi,  as  thf  iudorving  af  biUsail 
twixt  merchant  and  merchatit. 

Sir  B.  Shower,     Vou    say    you    diarfiH 
theui  to  liim  at  5  per  cent* ;    Waji  tbat  taiai 
more  than  the  lord^  of  the  treasury 
you  ? 

D'Acoila,    What  the  lonls  oftiial 
allowed  me  was  upon  anolber  poiaL 
them  my  biUs  to  be  paid  tn  Flandfllf 


Ifvrfl 


JbrfaUe  indorsing  of  Exchequer  Bills. 


A.  D.  1699. 


fl070 


discount  there  was  on  the  other  side 

u^B ,  was  upon  the  account  of  exchange ; 

acs  d  sea  we  give  so  many  gilders  per 

i^^^-^riing. 

;jEr*  -      Shower,   Had  you  not  a  greater  dis- 

^  ^"^z»  ni  the  treasury  upon  that  exchanging, 

^^^V**^*"*!  common  exchanging;    was  there 

.^^^    ^>f  that  betwixt  you  and  the  lords  of 

LV^[^  ^€>9ta.  1  cannot  tell  how  much  1  had, 
cVl  «2<iurse  of  the  exchange  Taries  every 
fl^^^*^    every  post. 

01^ >^'"  -^Vor^^ity.  Mr.  Duncombe  had  no  occa- 
^Y^*^  sink  the  value  of  ihose  bills  ;  for  we  say 
f^  ^W^**  *"®'*  allowed  to  Mr.  D'Acosta  over 

j^tirjv^  the  common  rate  of  exchange. 
^^'^^  C.  J,   That  was  upon  another  account  if 
>  ,  ^  ^^  so ;    but  I  do  not  see  of  what  use  it  will 
^      te  ?!!?'^  ^^  ^*  ^»s  80. 

^f^^^tk  vou  remitted  the  money  to  Flanders^ 
•7  5?*  D*Acosta,  did  not  you  write  to  your 
•*.  <w^d  to  accept  the  bills  so  and  so,  pray  now 

.^[|M  this  money  paid,  what  exchanging  had 

%     «    D^Acosta.  I  have  said  already  the  exchanff- 

^g  varies  every  post,  1  cannot  positively  tell, 

)     ^Qt  my  bills  t^crc  paid  wiih  honour,  and  I  re- 

^     ^'ved  the  value  here  in  exchequer  bills. 

.         Sir  Tho.  Pmeis.   Did  you  deal  on  the  same 

.Wms  when  yon  received  the  value  in  exche- 

filer  Inlls  as  if  you  had  received  it  in  milled 

*    liioney,  cannot  von  t(  II  the  difference  ? 

^        D^Acosta,  When  1  made  my  bargain  on  the 

^    19th  of  March,  the  bills  were  worse,  because 

**   the  second  act  was  nut  then  made :  when  I  re- 

ceiTed  them,  1  was  to  tnke  them  in  payment  as 

«.    they  were  then  delivered  nic  there,  being  none 

issued  out  upon  the  first  act ;    thc^'  were  dis- 

»    ooontetl  sometimes  at  more,  sometmies  at  less, 

they  were  discounted  aflerwards  at  9  and  10 

per  cent. 

Sir  Tho.  Powis,  Would  you  not  have  had 
more  allowed  than  5  per  cent,  if  you  had  re- 
mitted them  in  milled  money  ? 

jyAcosta.  Yes ;  but  how  much  I  had  for 
them  1  cannot  say,  for  i  took  them  on  all  ha-* 
sards ;  I  have  known  the  exchange  rise  in  one 
year  from  S7  to  36.  Can  any  merchant  say, 
then,  what  profit  he  had  on  individual  bills, 
when  I  made  use  of  my  money  in  Hamburgh, 
Ilmly,  &c.  and  received  all  sorts  of  coin. 

8ir  Tho.  Powis.  Cannot  you  remember  about 
llarch  how  the  exchanging  betwixt  Flanders 
and  England  was:* 

jyAcoila.  If  I  had  known  what  questions 
would  have  been  asketl  me,  I  could  have  been 
provided ;  but  now  I  do  not  know. 

Sir  Tho.  Powis.  Do  not  you  know  how  many 
stivers  you  had  per  pound  sterling  in  March, 
1696? 

D^Acosta.  I  do  not  remember. 
''\  X.  C.  J.  How  much  had  you  per  cent,  can- 
nolTOu  tell  ? 

jyAcosta,  I  gave  my  foreign  bills  two 
'months  before  I  had  the  exchequer  bills  ;  if  I 
had  bad  the  value  of  the  bills  when  I  drew 


them,  I  reckon  it  would  liave  been  IQ  or  13 
per  cent,  but  I  had  them  two  months  atler. 

L.  C.  J.  How  much  per  cent,  suppose  you 
had  received  the  value  in  money  ? 

D*Acosta,  12  or  13  per  cent,  if  in  money 
when  1  delivered  my  bills,  but  I  was  to  have 
the  value  in  exchequer  bills  when  they  came 
out,  but  did  not  then  think  of  the  second  act  of 
parliament,  which  made  tlicm  better. 

L.  C.  J.  When  you  came  to  discourse  of 
those  bills  with  Mr.  Duncombe,  was  it  he  iiro- 
pose<i  it  to  you,  or  did  you  propose  to  sell  them 
to  him  ? 

D^icosta.  I  proposed  it  to  Mr.  nuncombe, 
telling  him  I  had  so  many  exchequer  bills  to 
dispose  of,  at 

L.  C.  J.  Did  you  deal  with  him  on  the  ac« 
count  of  the  public,  or  only  with  Mr.  Dun- 
combe? 

D'Acosta.  1  dealt  with  him  as  Mr.  Dun- 
combe, and  not  on  the  account  of  the  public. 

L.  C.  J.  Had  you  any  message  from  Mr. 
Duncombe  to  have  those  bills  from  you  ? 

D^Acosta.  No,  I  went  myself  to  him,  hoping 
for  a  better  profit. 

L.  C.  J.  Did  you  think  at  the  lime  that  the 
discounting  of  the  exchequer  bills  at  5  percent, 
would  have  sunk  the  exchr<)uer  bills  ? 

D'Acosta,  No. 

Sir  Tho.  Powis.  Were  those  the  first  bills 
delivered  out  of  the  exchequer  ? 

D^Acosta.  I  take  it  they  were  the  first  bills. 
The  lords  of  the  treasury  ]nt>mised  me  1  should 
have  the  first  payment  as  soon  as  they  came 
out. 

Sir  r.  Powis.  How  long  did  you  keep  those 
bills? 

D'Acosta.  From  the  4th  to  the  12th  of  May. 

Sir  T.  Pou'it.  Was  there  not  a  discount  upon 
exchequer  bills  before  Mr.  Duncombe  nad 
youi-s  r 

U^Acosta.  1  think  not,  but  I  believe  there 
was  about  the  same  discount  amongst  mer- 
chants. 

Sir  T.  Powis,  Do  you  know  it  ^-as  so  ? 

D^Acosta.  I  do  not  know  it  of  my  own 
knowIed|app,  I  did  not  see  it  dune ;  but  those 
that  did  it  told  me  they  did  it. 

Sir  T.  Pomis.  Did  you  agree  with  the  trea- 
sury for  other  remittances  ? 

b^Acosta.  Yes,  about  3  months  before. 

Sir  T.  Powis.  You  discounted  5  \yer  cent  on 
the  bills,  had  you  more  or  less  for  the 

second? 

D'Acosta.  I  cannot  positively  tell  how  much, 
but  1  furnished  more  gilders  ppr  £.  sterling 
I  than  before.  Those  bills  after  the  2nd  act  were 
I  more  secure  than  before,  therefore  we  had  rea- 
;  son  to  allow  more  for  them. 
'  L.  C.  J.  ^Vhat  disconnt  was  there  upon  the 
second  bills  after  the  second  act  ? 

D^Acosta.    I  have  known  the  discount  to  be 
more  than  9  percent,  upon  the  exchanging  be- 
:  tween  man  and  man. 

I      L.  C.  J.    Did  you  discount  more  upon  the 
i  second  bills  than  upon  the  first  ? 
'      D^Acosta.  I  discounted  less. 


r 


m^ 


1071]  11  WILLIAM  m. 

Sir  T,  Posffii.    Was  not  your  eoniriict  fin*  \ 

llioi«  remillaiicea  bciore  itny  bills  were  mtit^iS  'f 

D^AcQila.    Yts. 

8tr  '/*.  Pifwii^  Uow  Aianv  of  iltose  bUit  did 
you  iJeliver  to  Mr,  DuoctJiiilic  f 

B'Acotta.    Eighty  thi^e. 

Sir  r,  Fomii.  ^Wtre  they  deUvensd  out  after 
tUe  secoud  act  ? 

D"Ai:mta^  Yei^  after  tha  2nd  act  Rnd  jiro' 
d.tniatti»n,  but  the  C4)f)tra(^tu<ift  matte  be  lb  re. 

Mr.  Jf£<jrwa/-  Call  Mr.  Fern,  Wr.  Fern, 
what  tlo  vou  kiiow  of  Mr,  Duncombe^i  pay  iiig 
tbdsc!  biUtt  into  th^  exchei^uer  ^ 

Fern,  Hfa  man  i^^houM  have  paid  mnncy 
iiilo  my  office,  and  offered  lue  e^rchequer  bilts^ 
bui  I  would  not  receive  them,  and  so  be  weol 
to  anothi^r. 

One  iff  f  Ae  KjMg*i  CoumeL  It  waa  a  settled 
coiifisc  atiiongthem  for  such  and  such  branches 
of  th«?  rciT«jnje  to  be  paid  into  thi;  respective 
otiioea.  Tbia  uioncy  shouJd  bdve  been  paid  ioio 
Mr*  Fern*a  office,  Mr,  Duncombc'a  mesaeu^^r 
offers  Mf,  Fern  so  much  money;  2^1  r.  Fern 
lokea  down  the  buma,  but  when  be  cauae  to  re- 
rcire  the  money  it  proved  to  be  i^xcliequer 
bills^  upon  vcbidi  Mr.  Fern  said,  Thr^^  biilh 
were  hut  isautd  out  last  week,  you  t^nnol  ha*e 
re«eiv€d  thcnv  in  the  excise  as  yet,  I  cannot 
take  them  ;  if  you  woo't,  aays  be,  1  will  come 
to  yon  again  hy  and  by. 

rern.  Upon  the  3th  of  May,  1697;  Mr, 
0QiieoinUe'is  man  came  to  nve  to  lell  me  bow 
much  he  was  to  pay  that  dn-y.  I  entered  it,  and 
he  went  ta  the  next  office  where  tie  was  to  nmke 
some  other  payment ;  lb  en  he  came  to  nie 
again  and  uffered  me  exchequer  billv  for  3/222/. 
13£.  6d.  1  refused  ihem,  because  we  had  is- 
sued them  out  ao  lately,  thai  1  knew  they 
could  not  have  circulated  throut^b  the  revenue 
so  soon,  1  asked  him  if  they  bad  been  re- 
ceirod  in  theexcis^f  \  he  told  me  be  believed  not ; 
tbeu  1  told  h\m  I  criubJ  not  take  them,  and 
upon  that  be  went  away  from  me. 

Mr,  Aitornt^.  Do  yon  know  the  man? 

Pern.  He  employed  two  men  generally.  I 
cannot  teM  well  vt hich  of  them  it  was ;  but  it 
waK  one  he  used  to  employ  to  tt^ll  inont'y. 

Mr.  AUarm^.  Did  you  evi^r  see  him  before 
thai  time? 

Fern.  Ve0,  Eie^eral  times ;  be  used  to  come 
lo  me  S9S  Mr>  Duncombe's  man. 

Mr.  Aiiom£if.  Wby  did  he  come  to  you  ? 

Fern.  He  came  to  me  as  clerk  to  Mfi  Carj, 
one  of  tbe  tellers  ;  it  felt  to  my  lot  to  receive 
part  of  tbe  eicciie. 

Mr,  Aliorntjf.  Do  you  know  the  man  wht^n 
yon  see  bim  ,* 

Ftrn.  1  think  it  waa  one  Stent  or  one  Rum- 
oey,  hut  ciinn^tt  tell  which. 

Mr,  Attorney.  Why  came  it  to  yo«r  lot  to 
receive  this  money  f 

Frrn.  Bv  as^reement  amongst  ouraelrefl,  we 
aubdif  jded  ibe  receijit  of  the  kmif's  revenue  ;  I 
received  that  jiart  >ome  lime  before^  tberefure 
fac  came  to  me. 

Mr.  AHotncj,  lo  part  of  what  sum  was  it 
ta  be  pud  ? — Fern,    Qb  tbe  S-3ds  «zeise* 


Trial  qf  Charles  DuncamBet  esp 


[1071 


turn 


Sir  T.  Pojx  11,  Ti;*y  all  ih»  while  e^d^voar 
lEt  aficcii  Mr,  Dunoombe  ^itb  fr^ud  i.ad  d«cnt, 
liuit  he  paid  it  iu»t  into  hia  own  otEof  bui  tnm 
another  ;  pray  bow  ikH.*  Any  ibib^  thii  a 
bath  aaid  jiiove  a  trauil  upon  him  ? 

L.  C  X  ijti  tb4  iti  go<m  M  Jib  tbar  etidei 

Mr.  wllioTAfj^.    When  tli**  servant  caixif, 
be  not  till  you  Uc  L*^nw  to  pay  it  frotu  tl 
ejcciae  f 

Fern.  I  enterfd  it  iu  rtiy  bmik  uptm 
2*3  ds,  and  additional  «ixcificf/bfil  wheo  be 
me  it  wwuld  l»c  exchtfjatjer  bills*  I  msed  it  QQl. 

Mr.  Atiarnt^.  Did  be  say  be  wxiuld  ply 
up^n  thcexriite  and  from  Mr.  Duocfjinbe f 

Fern.    Vt^,  and  1  set   it  tlowu  upOQ  tju^ 
particnliir  jnopartiotjs    ai    he  directed  m^^ 
dritwinij  Iht*  bdk,  amd  he  oflered   exchc^ig^ 
bitls  b  disdiarge  of  that  iOooey  ^  ^ 

Mr.  Atim-tifj^*  What  aciswer  did  he  mtbrni 
yciur  obje*?tM>n. 

Fern.    I  uiktA  him,  if  the  iiiow4»y  wu^ 

into  ttic  eirdie,  and  he  ^^Dawcrinl  he  hdm^ 

Mr.  Aitm-ne^.  Whpn  wa*^  Ibia  f 

Ferii,  It  was  upon  I  he  8Lb  of  May. 

Mr  Attortity.  U'bat  Jireuli&nv  bai  |va 
before  tbe  6th  of  May  about  reeelria^  a* 
dinner  bdii? 

Ferru  1  hnd  no  directions  but  the  act. 

Sir  Tho.  pQiAU,  It  waa  only  diif^reooi  d 
opinion, 

1.  C.  J.  He  toW  you  f>n  what  accouol  k 
refusetl  the  excbequtfr  bills  before,  beemoilli 
knew  they  cauld  nut  U^if^  circylated  Itua^ 
the  revt^nue  in  so  little  time^ 

8ir  1\  Pomh,    Wait  Mr.  DuDconabe  mebef  ' 
of  the  ejccise  at  ibat  time  T 

Fern*  He  came  from  Mr.  Doncopiik  it 
tbattime^  and  I  did  noL  know  Mr.  Duncotabc 
W3*  out. 

Mr.  Aitorney.  Call  Mr.  Peters.  Mr,  Petiii* 
acquaitilmy  lord  and  tbe  jury  i^itb  what  jo<i 
know  of  this  matter  P 

FcierM.  On  the  12tb  May  1697,  Mr,  Daa- 
combe'ii  servant,  but  which  1  cannot  t^ 
bnmgbt  me  Ihree  parcek  of  exchequer  bilU  ia 
three  paperii ;  1  take  it  to  be  Rumney.  Tbej 
were  indorsed  Principal  and  Interest ;  he  Um 
me  I  must  charge  tbcm  on  the  ^ariiculart  df 

ibe  excise,  on  additiunal  duty,  .^^  ddiibtt 

excise, ,  Eji^cii^e   far   QQ  years, 

Low  wiuet,  &c.  sweets,  duty  *iti  ctmls^ ^ 

Brandy, -,    iSalt,   -     ■     — .     I  cbu^ 

more  upon  the  addiaonat  dutv» ,  vam 

tbe  oxcise,  -■-.     Low   irities  and  apini^ 

— — -  two  thirds  excise^ — ,      Excise  6f 

09  yciirs,  — ,     Duty  no  salt,  5fc.  whicfc 

came  in  all  to  1,01(9/.  Os.  4{d. 

Mr,  dtiiftnejf.  Did  you  see  any  names  apM 
the  b«lli  f 

P^itrg.  I  found  one  w  ilh  the  naii^e  *^  Fraaer" 
upon  tt,  1  took  them  to  be  alt  uccortUng^  tatlie 
aci  which  nblif^cd  u^  to  take  tbeoi,  I  detifoad 
tbem  lothe  derk  to  examiuef  and  white  thatvii 
doing,  ^tiuek  n  tally  and  entered  *^  recetred  ii 
eaish,"  ■   tbat  he  paid  in  exc 

billA. 


107SJ  for  fake  indorsing  ofEadiequer  BOh, 


A.  D.  16d9. 


[1074 


Mr.  A  Homey.  Do  yon  remember  any  in- 
ilorsement  upon  the  bills  ? 

Peters.  No,  nothings  but  a  name. 

Mr.  Attorney.  Were  they  paid  to  you  as  part 
of  the  excise  ?—Pe£«rs.  Yes. 

Air.  Attorney,  Did  you  not  endeaTour  to 
taiisTy  yourself? 

Peten,  I  took  them  upon  Mr.  Dnncombe's 
credit ;  hts  servant  did  not  tell  me  one  tbiDji;  nr 
9lher  concerning  them,  nor  did  I  ask  him,  but 
Urack  a  tally  for  the  sum. 

Mr.  Attorney,  Was  it  your  lot  to  receive 
Uiem  ? — Peters,  Yes,  in  a  great  proportion. 

Mr.  Attorney.  Were  they  indorsed  with  the 
4?  of  the  month  ? 

PeterM,  I  saw  nothing  but  the  name. 

Mr.  Attorney.  Had  you  known  them  not  to 
fcate  passed  through  the  excise,  would  you 
bare  received  them  ? 

Peters.  I  would  not,  but  the  method  then 
iras  DOl  generally  known,  for  afler  that  time 
W€  received  bilfs  from  Mr.  Burton  withctut 
iMines,  and  sent  them  back  to  the  excise^  and 
they  indorsed  them. 

fir.  Attorney.  When  did  you  first  discover 
Ibat  they  had  not  passed  the  excise  P 

Peters.  About  three  or  four  days  after  tliey 
vrcre  taken  out  as  cash,  and  delivered  to  the 
dcrin  of  the  Million  office,  they  said  they 
ctMUnot  receive  them,  hut  I  cannot  remember 
Whether  it  was  because  they  were  not  indorsed, 
or  that  they  did  know  the  niethod  of  them. 
Bome  time  after  I  acquainted  Mr.  buncombe 
^ilh  it  that  they  were  refused  ;  and  he  answer- 
^  he  had  got  his  tslly  for  them,  and  would 
net  take  them  again. 

Mr.  Attorney.  Did  you  offer  tlicm  him 
Again,  upon  any  discount? 

Peters.  I  desired  him  to  take  some  of  them 


vgaia,  about  3,000/.  worth,  but  he  would  not, 
biit  I  offered  him  no  reward  for  it  if  he  would. 
£.  C.  J.  What,  did  you  go  to  3Ir.  Dun- 
bilf  ■      ■ 


» to  tell  him  the  bills  were  refused,  and 
i  him  to  take  them  again  ? 
\  Peters.  Yes,  I  desired  liim  to  take  some  of 

1  win. 
L.C.J.  Were  they  indorsed  ? 
Peters,  There  was  a  name  I  endorsed  but  not 
Ubday. 
X.  C.  J.  Who  pat  the  day  upon  them  ? 
Ptters.  The  clerks. 
L.C.J.  Why  did  they  put  the  day  upon 


Peters.  Because  the  act  of  parliament  says, 
<lha  interest  should  cease  from  the  day  of  their 
feng  paid  into  tlie  exche(|uer,  and  therefore  it 
IW  thought  fit  to  enter  them  on  the  same  day 
he  paid  them. 

L.  C.  J.  If  they  had  been  indorsed  and  paid 
hj  a  brewer  into  the  exchequer,  it  would  hare 

tied  the  interest  to  the  king  undoubtedly ; 
t  as  you  say  the  interest  would  have  been 
CMUMted  sank  from  the  day  he  puid  them  to 
jnr^Peiers.  Yes. 

Mr.  SolieUor.    (Sir  John    Hawles.)    Was 
Acw  toy  loas  by  those  bills  being  received  ? 
Petan.    Yea,  there  was  a  little  loss  to  the 
VOL.  XIII. 


king  afVer ;  the  interest  should  have  sunk  from 
the  time  they  were  paid  into  the  excise,  there-> 
fore  they  ou<<[ht  not  to  have  been  paid  into  the 
exchequer. 

Mr.  Solicitor.  Are  those  bills  any  of  them 
paid  into  the  exchequer,  upon  Mr.  Duncombe's 
account,  (a  parcel  of  bills  being  shewed  at  the 
same  time)  ? 

Peters.  1  know  nothing  of  that  lock  upon 
them. 

Mr.  Solicitor.  Do  you  know  any  of  the 
hands  that  have  writ  upon  them  ? 

Peters.  Yes,  one  of  the  hands  is  Mr,  Pres- 
grove  the  present  clerk  of  tlie  office,  anotlier  is 
Samuel  Edwards's  hand ;  another  is  Lawrence 
Cook's  hand. 

L.  C.  J.  Let  me  see  one  of  them ;  and  look- 
ing upon  it  said,  How  came  it  to  be  indorsed 
upon  the  bill,  *  paid  into  the  excise?' 

Peltrs.  It  was  the  method  of  the  indorse- 
ment ;  when  they  were  taken  out,  we  wrote  so 
upon  them,  because  1  received  them  as  paid 
into  the  excise,  &c. 

Sir  B.  Shower.  The  clerks  of  your  own  office 
made  the  false  indorsements ;  it  was  their  fault 
and  none  of  ours. 

Mr.  Attorney.  They  relied  upon  Mr.  Duiu 
combe,  because  he  paid  them  as  if  he  had  re- 
ceived them  from  that  branch  of  the  reyenue. 
Was  there  any  loss  by  the  payment  of  those 
bills? 

Peters.   Yes,  there  was  250/.  loss  to  me. 

8ir  B.  Shower.  Your  lf)rdship  sees  no\v,  that 
here  is  nothing  at  all  but  u  man's  name  on  the 
bill,  and  that  vt  as  necessary. 

Just.  Tar  ton.  Neither  the  name,  day  of  the 
month,  nor  indorsement,  are  in  Mr.  Dun- 
combe's  hand. 

Mr,  Attorney.  We  only  say  he  brought  theia 
as  such  ;  one  teller  scrupled  ine  taking  of  them» 
anotlier  did  uot ;  so  that  all  the  time  the  bills 
remained  in  the  tellers  hands.  Were  not  those 
names  set  to  them  when  they  were  brought  to 
you,  Mr.  Peteni  ? 

Peters.  Yes,  I  took  them  to  be  the  names  of 
the  people  that  had  paid  them,  looking  upon  it 
asfomial,  and  knowing  nothing  further  ot  it. 

Sir  r.  Powis.  What  did  Mr.  Peters  take  to 
be  meant  by  those  names  ? 

Mr.  Attorney.  It  is  a  prosecution  for  a  crime, 
why  should  he  be  asked  that  question.  Would 
yoii  have  reccivetl  tiiem,  Mr.  Peters,  if  those 
Dailies  had  not  beeu  -,iui  to  them  ? 

Peters.  1  believe  not. 

Mr.  Attorney.  Who^o  names  do  you  remem- 
ber to  have  been  put  to  thi:in  f 

Peters.  I  remember  but  one,  that  is  Mr- 
Frazer,  and  1  took  it  to  be  acconling  to  the 
act  of  parliament  to  warrant  our  taking  bills  as 
cominsT  from  the  excise. 

Sir  T.  Powis.  "What  hills  came  to  you,  were 
they  not  in  several  parci-ls  ? 

Peters.     In  three.  . 

8ir  T.  Potcis.  Were  there  not  some  indorsed 
as  received  in  the  excise  ? 

Peters.  1  looked  but  to  one,  and  gave  ths 
rest  to  the  clerk  to  examine. 

3Z 


imj 


liWHjaAif  UL 


-  Tnd  tf  Cfcyfai  giwMwh;^         tnHS 


'  BbT.Famit.   Tou  ny  «i 

iWi.  I  «ir  die  nuM  PrtHBr  upcm  om 
tiOfttd  of  .all  ofthemtlMitwtrataiMttoiiKir 
fkf  eheit,  dwrowMiiocaiijof  ttwrnbAdany 
tbyw  «ln  apoD  tkem  biit « iMiM. 
ififfT.Plpvti.  DidymncilherAtaiaitiine^ 
iqriilMiy  tmm  after,  tee  tbajpoiD  ofdioaebilla 
'  JtMi  that  haii  mdoraciimiihi  upoo  tham  at 
repaid  fartothoeaoiwr     .  . 

iM*  Not  onaJ 
ar  21  Pavti:    Dad  TM  IbMir  nbOilna,  or 
BVM  aae  tbat  Mm  or.  1,^/.  ladMd  at 

nrari.  llmoiriMttiiiag^  of  it  at  thai  time, 
teallcrwirdt  oodtritolMrtbai  1,900  and  odd 


.  _ .  wcM  itpnariy  lodoiatdt 
BbT.Pmii.  Wlim did yoii.h«ar  that r 
iVtri.  IhtaiditatthanrlitmeqtHooaa. 
B.8kmer.  Wat  there  l,dOOl.  rq^ulaffly 


PMril  Ihe«rdaO|biitkiioirllBot 
Kr.JMikgr.  .What  cBtry  did yao  make «r 


rirnn.  igife 


PMm.  I  gaf»  it  to  the  deilc  to  otaipQle. 
—-  *'  -*^      Who  had  you  that  aooocmt 
_,  ^_  .    _.  of  Him  wore  refolarly  ia- 
wMHif  haditvoofimnaayoirthedeflitT 
M.  No,  iWarditmmMr.  Daneomhe 
H^hatnetiilwDhogatemetbobiUt;  it 
waaaAff  that,  and  1  iraderat6od  k.waa  1,396/. 
,   mt. Nmikijf.  Howdid yoo enter thote Ult F 
JPlBlfrf.  I  entered  them  in  paroeb,  at  I  taid 


Mr.  Northey,  Why  did  yoa  enter  them  as 
jaid  into  the  excise? 

Peters.  Because  I  took  tbcm  as  such.  These 
three  parcels  were  in  covers  as  I  received 
them,  and  having  seen  one  parcel,  I  gave  them 
to  the  clerks  to  examine. 

Sir  JB.  Shower.  Was  there  any  interest  com- 
puted to  a  further  day  than  the  19th  that  you 
receiTed  them  from  Mr.  Doucombe  ? 

Peters.    No. 

Sir  JB.  Shower.  Was  there  any  indorsement 
of  the  day  when  youreceifed  them  ? 

Peters.    No. 

I%r  B.  Shower,  Can  you  tell  when  Mr.  Pres- 
f  rove  indorsed  any  of  them  f—Peters.  No. 

Sir  JB.  Shower.  Can  you  tell  whether  they 
had  the  same  indorsement  then  as  nowf 

Peters.    No. 

Sir  B.  Shower.  It  must  be  the  fraud  of  Pres- 
frove  and  themi 

L.  C.  J.  Sopoosmg  that  Mr.  Dnncombe 
hath  no  interest  after  the  12th  of  May,  that  does 
not  excuse  him  from  having  the  interest  to  that 
time. 

Sir  B.  Shower.  We  ought  to  have  it,  the  law 
aays  so.  Mr.  D'Acosta  had  interest  of  Mr. 
Duneombe  to  the  19th.  Were  there  any  bills 
in  the  parcel  that  made  up  1,300/.  and  odd 
money  P—Pe/er*.     I   cannot  tell. 

Mr.  Attorney.  Call  Mr.  Pn^grove.  Mr. 
Pre^grove,  on  the  ISth  of  July  the  chamberlain 
Sef  the  Exchequer  issued  out  some  money  bills  P 

Presgrove.  I  pAid  ihem  aooordiogly  |  there 


I 


weraUlbghwiiM^ertiioU^ 
par  the  aame  with.  ,    . 

Mr.  Jltomey/ Do  ymilmaarif 
(ahevirhig  them)were|Ndd  by  Mr, 

Presjgraoe*  Yea,  they  wwe^  1 
faidoMd  hi  my  hand,  and  tbemnra  tmi  etfML 
.  Mr.  Attmrm^.  How  canae  yos  |b  Willi  ith 
Joly,  when  the  Vib  were  taken  ciit  iM  ti^ 
anameopoDthemr 

Prmrooe.  I  lumemhawi  tlwt  li  Ifcf 
hefare,  £|»iae  wna  wratei^eD  tlwm;'  iai  i 
teded  np  the  popen,  hnvhiff,eaBitled  tevdl* 
mgngian  them,  w  weoi^  aiOi||lit  Jtap  e^ 
■onj  we  toppote  Mr«  I/w^eoiMeevhiipl^ 
pie  wrote  Eicwe^pon  the  cgforef  the  fihi 
welowidit'writlfla«M  the  hiliv£i% 
wcretdranontortheMaf'tdM^ 

SurT. Powlk  When  iiegrwn 
Mr,  ENmeomhe,  doyeknow  Mtmnr. 
wnt  npoo  tbeir  eolaiae  P 


JVctfroee.  Yei,npontlM( 
faiwhidithekiniwert  ' 
anyeftiie'kiRi. 

Sir  r.  Pom.  Can 
UiiiHr. 


Mr.IHenir 

Pi 


(i^Kf^lr^dd^^ 


Amtker  ^  %U  Dl^Mbtfa  CiamrfJl 
ftters  remembert  no  ether  mune  kit  MM 
^eannot  hepvt  of  tboat  hilia.      J^ 

nr.  AUofwjf.  Do  yen  ramembwafWa 

i^l,S95f.-*Preigf«V9e.  Idonot. 

Mr.  Attorney.  Were  any  of  those  three  ji* 
cek  marked  with  the  day  of  the  moolh  nil 
they  came  through  the  ex€ise  ? 

Presgnwe.  No. 

Mr.  Attomeif.  Mr.  D'Acosta,  look  upoa  th 
names  of  those  four  bills. 

D*Acosta.  To  the  best  of  my 
they  are  part  of  thote  tliat  I  deltvered  ts  Ik 
DuncoQibe;  Arthur  Pa^  indorsed  thnitf 
them ;  I  take  this  to  be  his  own  hand  viijii^ 

Mr.  Attorney.  Was  there  any  more  M 
names  writ  u^ion  them  when  vou  defifmi 
them  to  Mr.  Duneombe  T—D^Acostm.  Me. 

Mr.  Attorney.  Let  the  jury  aee  tks: 
[Which  was  done  accordingly.] 

Mr.  Attorney.  My  lord,  we  have  done  am 
our  evidence ;  we  do  not  chai^  Mr.  ta- 
combe  with  having  made  thoaa  mdunciaa^ 
with  writing  every  name  or  aettingdoeaii 
day  of  the  month  to  deceive  the  trosteea,  Jg 
should  not  puzzle  the  canse^  It  is  plaia  wKf 
of  fact  we  charge  him  with,  that  he  caassiV^ 
D'AcosU'a  name  and  others  to  hepnt  ogpet  J* 
bills,  and  paid  those  exchequer  billa  laliil 
excise  as  in  the  information. 

Sir  T.  Povis.  If  they  aredone,  weareef  eW 
eel  for  the  defendant.    The  nratter  now  IM 
your  lordship  and  the  jury  is  whetlier  Mf.P'^ 
combe  hath  done  any  thmg,  oreomouttd 
such  offence  as  the  fact  is  la&  in  tUtinlbimi 
and  if  the  fact  be  a  dime  withm  i>>yj>f^ 
being  or  tbat  was  in  Iwing  when  thatwIU 
ia  charged  with  waa  done.   WatueMii 


077]  Jorfake  indoning  of  Exchequer  Bills. 


A.  I).  160». 


[1078 


ourl  of  Uw,  where  the  natore  of  the  crime  must 
w  tried,  and  that  we  are  to  enquire  b,  if  it  be  a 
cgml  offimce ;  for  other  power  we  meddle  not 
vitb. 

£.  C.  J.  Other  power!  lliere  is  no  other 
power  in  £uff]aDd  but  a  legal  p<iwer  to  punish 
looordioff  to  law. 

Sir  Tho,  Povit.  Aly  lord,  1  say  other  )K>wer 
I  Dicddle  not  with,  nor  with  any  thine  out  of 
iiy  sphere,  but  I  shall  shew  your  lordshiii  that 
hm  bath  nothing  been  done  but  by  act  of  nar- 
liameut  and  upou  a  right  understaniJing  of  those 
lets  of  parliament^  or  that  which  wise  and  good 
■en  may  take  to  be  so,  and  then  we  shall  see 
bow  it  rodly  stands  in  his  condition. 

The  information  is  brought  against  him  for 
these  two  crimes,  for  we  agpree  as  to  the  acts 
of  parliament,  that  he  was  cashier  and  deputy 
ibthecommissioDers  of  excise,  and  answerabie 
lo  them  for  the  money  that  came  into  bis  hands 
as  their  cashier.  Hie  information  says  that  on 
As  5th  day  of  May,  he  was  ordered  by  the 
Bonmissioners  to  pay  10,000/.  or  more  into  the 
Bxehcquer ;  so  far  we  agree  ;  the  first  crime 
lint  be  is  charged  with  is  on  the  12th  of  May ; 
be  had  the  money  paid  into  his  hands  on  tne 
5lb,  OD  the  7th  he  was  discharged  from  being 
eashier,  then  he  was  ordered  to  pay,  and  says, 
tbtt  on  the  12th  be  did  buy  83  ezcnequer  bills, 
aaionnting  to  7,884/.  principal  and  interest,  of 

I^Acosta,  to  the  king's  loss  of ,  and  his 

ova  aniawfnl  gain,  &c 

He  pakl  them  into  the  exchequer  afterwards, 
«s  if  they  had  been  reserred  in  the  excise,  in- 
akised  with  scTeral  false  names  ;  this  is  all  in 
tfte  information  that  is  criminal,  and  this  they 
■ijf  be  did  to  the  great  loss  and  prejudice  of  the 
kiug. 

We  insist  upon  it,  that  he  had  by  law 
|Mver  and  right  to  do  it,  for  which  the  two  acts 
iMit  be  oonsnlted  *,  the  first  directs  bills  not 
^loxding  1,500,000/.  to  be  issued  out,  and  to 
^  Koeired  and  paid  in  any  aid  except  the  3s. 

It  was  not  a  general  currency  for  all  pur- 
ttHBWfaatsoefer,  but  with  this  particular  ex- 
vplMD,  and  to  the  intent  (hat  these  bills  might 
we  a  general  credit,  not  only  in  {lay  ments  to 
the  king,  but  to  the  merchants  and  all  other 
frposcs ;  then  savs  this  act,  after  such  time 
^nsmiliesty  shall  by  bis  royal  proclamation, 
a%Biry  that  tne  lords  of  the  treasury  have  con- 
tided  with  persons,.  &c.  then  they  sliall  not 
«aljr  be  payable  to  all  reoeirers  of  the  revenue, 
kMiato  the  exchequer,  for  any  duty  or  revenue 
illhe  king,  by  any  person  or  receiver  whatever, 
i^  any  account  whatever  :  So  by  this  act, 
■iiy  of  the  king'a  receivers  that  liad  received 
■ooey  in  the  country  might  have  iM-ought  bills, 
iml  psid  them  into  the  exchequer  for  money 
be  was  to  pay  to  the  king,  though  it  never 
«is  paid  into  the  revenue,  tbereibre  we  iusist 
(ipoo  it,  that  if  we  be  within  a  less  compass, 
were  is  no  reason  for  tftie  prosecution. 

JL  C.  J.  If  it  be  so  as  yon  say,  there  will  be 
berime. 
-  8ir  Tka^PamU,  It  is  oar  great  disadvantage 


that  the  thing  is  to  be  taken  to  be  otherwise. 
I  proposjB  to  make  it  out  by  the  words  of  the 
act,  the  last  act  which  vhews  that  money 
bein^  scarce,  tliese  bills  were  to  supply  the 
species  of  money  in  every  thing,  not  only  in  the 
revenue  payment  of  taxes,  &c.  but  to  supply 
money  in  any  payment  to  the  kiutj^ ;  so  that  if 
any  payment  u  hatever  be  made  to  the  kiu^, 
and  though  a  debtor  to  the  king,  an  officer  m 
any  part  of  the  revenue,  or  that  paid  liim  next, 
he  might  bring  exchequer  bills  to  the  exche- 
quer and  pay  the  king's  duty. 

It  will  extend  to  any  sum  whatever  upon 
any  account  to  the  king,  so  to  any  person,  not 
only  to  the  king's  debtor  on  any  score,  but 
to  any  person,  though  the  king's  officer  in  ex- 
press words :  This  was  the  express  meaning 
on  the  frame  of  the  act,  we  make  these  bills  of 
universal  currency  in  payments  by  any  man, 
as  if  it  were  money,  nay  they  shall  have  inter- 
est for  them  till  they  be  paid  unto  the  king ;  so 
they  were  better  than  money,  and  by  an  es- 
tablished method  a  man  may  make  it  mo* 
ney  when  he  will,  by  giving  a  recom|)ence  to 
those  tliat  exchange  those  bdls  for  money,  so 
that  the  goldsmitns  desired  rather  bilb  thaa 
money.  VVe  can  make  money,  say  they, 
every  hour  of  the  day  by  thea»,  and  tnerefore 
make  it  our  interest  to  take  them  before  money » 
because  we  have  5d.  per  day  per  cent,  till  it 
come  into  the  exchequer,  but  it  shall  not  be  of 
this  conveniency  till  notice  be  given  of  the  con- 
tract made. 

These  receivers  shall  pay  it  mto  the  ex-> 
chequer  on  any  account  whatsoever,  but  they 
have  narrowed  the  contract  and  raised  the 
premium  to  5  or  6  per  cent,  and  so  make 
the  contract  narrow,  and  will  exchange  them 
only  if  brought  through  the  revenue,  if  deUver- 
ed  out  of  the  exchequer  immediately,  as  soon 
as  they  found  the  bills  sunk,  then  |>eople  were 

Cuzzled  with  exchequer  bills,  there  were  specie 
ills  and  other  bills,  there  were  many  that  did 
not  care  to  know,  thcin,  and  when  they  found 
this  puzzle  they  diil  not  care  to  meddle  with 
them  ;  they  would  not  lie  troubled  with  dis- 
counting, and  with  the  difference  betwixt  spe- 
cie bilh,  and  those  that  were  not  so,  for  the  act 
doth  not  nHjuire  the  indorsing  of  that  branch  of 
the  revenue  they  came  through ;  so  that  if 
tliey  see  what  part  of  the  revenue  they  came 
through,  they  will  exchange  tliem,  and  if  not 
they  will  not  receive  them.  It  was  those  diffi- 
culties and  the  narrowing  the  contract  that 
suuk  the  excheouer  bills.  Jf  sir  Francis  Child, 
or  any  other  goldsmith,  give  a  bill,  every  Chiki 
will  receive  it,  but  if  goldsmiths  make  a  differ  • 
encc  in  their  bills,  and  say  such  a  bill  shall  be 
a  specie  bill  and  such  a  one  nut,  there  is  no- 
body  will  take  them  :  your  lordship  will  find 
this  to  be  the  intent  of  the  act. 

The  present  case  as  to  Air.  Duncombe  was 
this ;  he  was  to  pay  money  tu  the  king  that 
remained  owiug  by  him  to  the  king.  He  was 
debtor  and  not  accountant,  not  that  we  make 
this  our  defence,  we  do  not  need  it ;  but  this 
was  his  condition  he  then  stood  in.    If  he  ha 


lOnQi        lltnLUiMUL  2Vtfff<Si«<teJliiM^«p>.        1^ 


h  ■rr.Dito«ib» ;  doHiy  thtt,  y« 
1ft  fa  kni  mHM  HMMy  .  and  omM 


Wnulie 


CTti 


lawim  bMhlbryimliiidSO,OOa(.iBluuid. 

ttliigfato  Ar  Awn  being  ft  Ikohjthat  if  it 
iNn  tbetoORn  ofthe  e»M|Mr  fbrmeilf  that 
IhnraMifci*  mifflittabrfag  Ihe  jwry  nmmm-' 
M  wumm  wnd  ^mon  tbtt  thjev  rcwfd  Ibr 
Ifm  limnne,  this  net  o««r-nd«s  it,  and  aa^  if 
I  on  anj  aeeonot  whatever,  Arc 

nea  tlM  aat,  To.  80,  Uia  Idag  ibr 
_  tba  aneiaot  oanrae  of  tlie  eaelie* 

f«  te.  'Tiien  there  eomea  a  daaee;  that  it 
AmM  not  otend  to  vary  or  alter,  &e.  aa  lliaf 
itover rulea  the  eame  of  the  exeheqnar,  and 
aa  eooM  not  direet  that  payment  in  the  method 
of  Afa  apt  sbonid  be  diaCofhed  by  this  aet. 

Hf.  Dnii^fntie  paid  billa  fbr  l,59fr.  Of.  5d. 
Iqr  hiai  nioeived  in  the  dotyof  exeite,  and  ^egn-: 
My  Inddiwa  the  aame.  The  aet  aaya,  men  in 
eSabahonId  haveinteiMof  5i.  par  davi  &o.  and 
Man  aiaaay  Aom  any  office  n  |Mld  faito  tb^ 
dBJohcmiar,  there  moat  be  the  name  of  the  per- 
daihaad.  tlie  day  act  down  to  atop  iotereat,  and 
thoaa  ^'he  reeeived  ao  in  bia  office  of      ' 


dvanr  one  of  Aoae  the  intereat  of  them  ia  Imme 
diakiyMoj 

ao  he  migdt,  and  probaUy  he  would 


flatalyatoppedi  aoMr.  Doneombe  acted  re^lar* 
H,  Ttmy  aay  he  might  have  carried  in  tM  reat 
iliapecia; 


tev^done  ao,  if  it  htui  not  been  fiyr  D'Aooata,  for 
H  ia  not  proy^  that  fifr..Duncombe  fished  abont 
Air  etcneqner  bilk ;  biit  Mr.  D'Acosta  know- 
ing him  to  be  a  monied  roan,  came  and  asked 
him  if  he  would  have  exchequer  bills,  upon 
which  be  sold  him  7,884/.  9s.  6d,  at  5  per 
cent,  discount.  Now,  if  that  be  no  crime,  as  it 
is  not,  the  act  allowing  bim  to  pay  it  without 
discount,  if  he  paid  it  so,  he  answeVed  it  to  the 
king  according  to  the  act,  and  so  ho  hath  hin- 
dered the  discrediting  of  Uiosp  bills,  the  first 
time  they  were  delivered  out  they  were  dis- 
counted ;  for,  says  D'Acosta,  they  gave  him 
these  bills  with  discount,  they  made  a  contract 
before  they  came  forth,  then  he  should  have  sO 
much  exchange  and  discount  beyond  the  ex^ 
ohan^,  because  he  was  to  be  paid  in  bills ;  so 
that  before  ever  they  came  abroad,  they  were 
disparaged  with  a  witness ;  for,  if  the. 


think  them  less  worth  than  money,  every  bo<ly 
will  think  so  too.  Mr.  Duncombe  takes  tliem 
with  leas  discount  than  they  allowed  them  at, 
ao  that  he  rather  gave  credit  than  otherwise  to 
those  bilU,  they  rose  higher  and  the  discount 
was  less  upon  them,  so  hitherto  there  is  no 
crime.  Then  the  proclamation  comes  out  in 
the  words  of  the  act  making  the  said  bills  pay- 
able on  all  accounts  whatever. 

Then  as  to  the  indorsement,  if  that  was  a 
crime,  it  was  in  D^Acosta  your  own  evidence ; 
he  swears  he  pnt  his  own  name  to  them,  and 
he  knew  no  hurt  in  putting  Wi^  name  to  them. 
Thos^  bills  he  paid  in  to  Mr.  Duncombe  on  his 
own  private  account  j  but  those  that  Mr.  Dun- 
comlie  had  received  m  the  excise  for  1,300/.  he 
had  abnacd  the  king  if  !fe  had  not  indorsed  them 


he  itemi  thaaa,  an  ly^y  aiiy  wa^i 
intareat  Ant  ttMn  tin  ba  pnM 


aaya.  ware  not  Air  Mr. 

Ibr  Mi  awnaaka^  aadthaatofalaBl 


Whan  Mr. 
tbia 


V  be  hnd  a  mat  Aid  nf  anal 
lia*aii:wban 


banUfril 

iMiMM 


in,taMMr. 
anintbaaBfliaa^il 
oaae  worae}  hut  Hiay  bavn 

Mr*  jPatsni  ■  an  nniWBi 

bi»«wnabadidnol«aK 

that  Mr.  Dunt^mbeisiiiftiietilti    hell»Al 

from  accuiring  htm  with  it,  Ibal  he  <4eijalAl| 

and  ii^ayt,  he  ioH  him  tm  audi  thing.  *^ 

We  »hat1  pro? c  distinctly  ibt?  pared  ttakf^ 
in  the  excii^,  thai  it  wii«  a  {i&rcel  r^gutarlj  m- 
dorsFd.  There  wa?  no  occasion  ibr  tbdrl^ei^ 
dt^eeivffd,  Ihey  bud  the  oppovi unify  of  cannf 
them  up,  Eo  ilmt  thi?  wng  a  gtmd  |fayia«ot  a 
point  of  bw,  im^  the  king  ImS  no  ibrii»g«> 

Sir  B.  Shoncrr.  We  BiHmiit  it  to  (b«  coadfr 
ratioT)  of}' our  lordNhip  anil  ibe  jury  iipiolM 
evidence,  if  it^  had  any  iiifention  lodtfSmodiki 


king;    we  shall  shew  we  con  Id  not  haft  iij 
sst  waj  1 
and  Mt 


for  the  inierest  wai  to  ^ 


such  mtenaoo, 
when  the  bills  wer«  paid  tti. 
Bfrears  the  loaa  wai  hia  nwn  aftd  nol  ili«  ka0i 
fit)  that  tlie  king  hod  no  prejudice  m  hd, 
D'Acoptttdischarfrt  Mr.  Divncombe  frotn  i« 
desigis  to  delVaud  the  king>  h^  *iiy8,  il  w«li 
oirn mottoti  not  Mr.  Duiicombe^s.  Thetiiflrw" 
fiect  of  that  oci  nbout  lb*?iir  iM^ing  rectrtedi* 
the  es chequer,  Mr.  Diincoinbedid  noltrlllls 
Ihal  ttiey  were  paid  into  the  Kxei»e»  Mr.  I^ 
combe's  man  toltl  Fern  at  ibe  s&me  tmaM 
t  he  J  were  n  ol  pa  i  d  into  the  excise .  Then  n  i> 
pniof  that  he  paid  Ihern  as  such  j  on  ^Mfcif 
hlavi  kie  was  directed  to  mftke  lht»  pajai*! 
on  tne  Tth  of  May  he  was  reinored ;  m  ^ 
l£th  he  paid  thuse  bitis  into  the  exihifisi 
judge  then  if  lh<nre  can  b^  any  prkNwi  n 
satisfv  the  jury  thai  be  de^i^tied  a  deceit  «|M 
a  distinct  parcel  bein^  l|30(Ji.  are  mratiearitl 
fre  taken  in  the  excise,  and  the  other  aal* 
Peter  a  pnssetl  tliem,  and  so  it  li  not  poa#b 
there  coulti  he  anv  deri^it  m  thi*«  matter.  H* 
bills  were  in  3  parcels,  some  of  tba  ciali 
must  take  notice  which  came  fhnn  the  attaa 
and  which  not:  the  interest  waa  cast  aptala 
12lh  of  May  upon  88  bills,  ao  tij  a  iT .  s  n^ 
Icnow  they  came  not  all  from  the  exctae.  ^*F 
the  other  point  of  Mr.  Duncombe's  b^ 
cashier  of  toe  excise,  had  thehr  money  in  ^** 
and  paid  it  in  exchequer  bills ;  tt^e  jurj  w* 
consider  if  Mr.  Duncombe  did  pj  thrm  il 
comiugf  from  the  excise,  Mr.  Duoconilei*' 
havincT  siqncd  or  indorsed  thefn  aa 

If  Mr.  Duncombe  had  been  i 
paid  in  the  money,  the  first  in 
to  have  been  for  paying  that  in  atfcari^ 
ferent  frotn  the  eoin  he  waa  tOfay-iM 


1 


081]  Jorfdte  indorsing  of  Exchequer  Bills.  A.  D.  1699. 


[108S 


iticlfls  to  the  coDtnrj.  Bat  tbij  was  a 
layment  ••  debtor  afterwards ;  or  it*  Mr.  Dud- 
iooibe  had  died,  hia  executor  mnit  have  been 
ued  aa  another  debtor,  and  be  migfat  bate  paid 
D  theae  bills  as  a  lawful  iMiyment.  Exchequer 
lilh  rose  upon  an  exigency  of  state ;  page  130 
rill  tdl  OS  the  frame  of  them,  and  the  reason 
(fissuing  them  out. 

Then  the  Clause  was  recited. 

This  transaction  was  after  b(fth  the  acts, 
abcn  botli  of  them  were  in  force.  Another 
cbune  provides,  that  the  receivers  of  the  reve* 
ne  aboald  out  of  such  milled  money  as  thev 
bid  ID  their  hands  nay  the  value  of  those  bills 
to  any  nan  that  offered  them,  so  that  the  re- 
Kiverawere  obliged  to  take  exchequer  bills, 
•d  to  give  money  for  them. 

The  second  act  makes  them  generally  cur- 
at, indnding  the  tliird  aid  ;  and  also  at  the 
naipt  of  the  excheouer  from  the  said  commis- 
ieoera  receivers  collectors ;  but  if  it  be  said 
bene  worda  do  not  take  in  the  cashier,  it  is 
■d  in  anolher  place,  any  other  person  or  per- 
■■a,  eertainly  this  will  take  it  in,  no  man  can 
«e  words  larger  than. those  nniversal  terms, 
■y  penon  in  any  payment  on  any  account 
rkalever ;  but  there  is  yet  a  stronger  than  all 
Us:  the  act  of  parliameot  was  Mr.  Dun- 
•■ibe*B  rule,  he  was  subject  to  take  notice  of 
he  eootraet  bj  wliich  they  were  to  exchange 
H  bilk  coming  through  any  branch  of  the  rc- 
"CBiie  or  not.  The  second  act,  page  S3R,  was 
ead,  and  page  592.  The  two  proclamations 
Mre  aflrreeable  to  this  act. 

Mr.  Doneombe  was  far  from  anj  fraud  in 
hii  matter,  we  must  open  tlie  evidence  in  this 
■tiff  to  remind  yon  of  it,  and  so  went  on  as 
Mfiwc.  Sir.  Duncombe  doubted  the  doing  of  it 
vhn  he  was  cashier,  but  Mr.  Burton  made  no 
sniple  to  pay  those  bills  when  sent  up  to  him 
a  Billed  money  or  bills.  But  when  the  mat- 
m  came  to  be  questiooed,  he  consulted  the 
Muniflsioners  of  the  excise  upon  it,  thej  dif- 
bcd  in  opinion  if  they  could  take  them  from 
Aceii  is  eflkers,  Mr.  Duncombe  was  obliged 
•  pny  them  to  the  kin^  as  cashier  to  the  com- 
■Hionerji  of  the  excise.  Mr.  Burton  upon 
Ua,  between  the  7th  and  the  ISth  of  May,  re- 
cived  and  took  excheijuer  bills,  for  that  which 
Inold  have  been  paid  m  milled  money  or  gui- 
«By  or  speeie  money  received  upon  the  excise, 
ad  Mr.  Duncombe  having  notice  of  it,  Ihonght 
le  B^t  as  lawfully  pay  them  to  the  king,  as 
f  r.  Kiiton  might  receive  them  into  the  excise. 
If.  Bnrton  paid  in  excheouer  bills  for  what  he 
lid  not  receive  so,  but  there  was  no  notice 
■ken  of  it.  He  did  for  six  months,  till  the  con- 
nct  made  them  scruple  it,  not  that  they  thought 
t  to  be  an  offence  in  them  or  any  one  else,  all 
be  oficers  made  use  of  these  exchequer  bills. 
Bat  BOW  because  the  contract  was  made,  they 
mjrted  whether  they  should  pay  any  but  spe- 
tie  kills ;  we  submit  it  to  the  consideration  of 
Mr  lordship  and  the  jury,  if  Mr.  Duncomlie 


■d  Isken  exchequer  bills  of  his  own  he  might 
■ilhatvpBidtlMiii  unto  the.king  as  money.  If 


this  was  then  the  received  practice  and  opinion, 
though  that  would  not  excuse  in  all  cases,  yet 
if  the  words  of  the  law  be  with  us,  and  if  the 
reasonable  construction  of  the  woi-ds  of  the  la%v 
be  on  our  client's  side,  we  hope  the  jury  will 
not  bring  him  in  guilty.  If  the  practice  be 
that  which  wise  and  good  men,  such  as  Mr. 
Duncombe  is  supposed  to  be,  would  have  done 
in  the  like  case,  we  hope  they  will  not  find  him 
guilty.  If  there  be  such  words  in  any  act  of 
parliament  as  oblij^es  particular  officers  to  pay 
in  the  individual  pieces  of  money  they  receive^ 
it  is  beyond  the  memory  of  man  that  ever  auy 
one  was  prosecuted  for  not  doing  so. 

In  the  act,  the  proviso  respects  auditors,  col- 
lectors, tellers  and  receivers,  we  insist  on  thi» 
proviso  (which  was  read.  Provided  always,  &c.) 
It  shews  that  they  had  in  their  other  law  made 
an  alteration  in  the  method  of  paying  it  into  the 
exchequer ;  if  in  the  other  act  it  be  said,  it  ia 
to  be  at  the  receipt  of  the  exchequer,  &c. 

Serj.  Dolhin.  Mr.  Duncombe  had  a  right  io 
pay  it  by  the  act  of  parliament  and  ^ roclama-* 
tion ;  no  man  that  read  the  proclamations  could 
tell  what  was  specie  and  what  not ;  any  man 
that  came  to  the  exchange  could  not  imagine 
that  the  contract  was  narrowed,  because  the  act 
of  parliament  led  them  into  the  mistake ;  if  it 
be  their  duty  to  receive  it,  it  is  the  duty  of  the 
subiect  to  pay  it ;  but  they  distinguish  his  case 
and  say  he  was  cashier  of  the  excise.  But  we 
have  proved  he  was  not  so  then,  so  that  this 
part  of  the  information  must  fall ;  but  if  he  had 
oeen  cashier,  it  was  not  his  duty  to  pay  it  in 
specie ;  if  he  paid  it  in  current  coin  as  these 
bills  were  at  that  time,  there  was  no  fraud  at  all 
in  it ;  so  that  that  part  of  the  information  u  out 
of  the  case;  and  while  he  was  cashier  and  aer* 
vant  to  the  commissioners  of  the  excise,  it  was 
their  payment  and  not  his;  he  struck  bis  taU 
ley,  so  tbat  the  payment  %vas  by  them  and  not 
by  him  ;  but  say  they,  they  were  indorsed  in 
fake  names,  but  that  appears  to  be  nothins'  at 
all  by  the  eviilenoe :  the  act  says  there  shall  be 
indorsed  tlie  name  of  the  person  that  pays,  and 
the  day  of  the  month,  but  we  did  not  pay  it  in 

till  tlie ,  indorsed  without  name  and  date; 

so  that  this  indorsement,  such  as  it  was,  was  of 
no  signification,  but  the  indorsement  taken  no- 
tice of  by  this  act  says,  the  interest  shidi  cease. 

The  bills  thus  paid  in  were  paid  in  part  of 
the  7,800/.  Mr.  Peters  does  not  speak  ad  idem, 
Mr.  D'Acosta  believes  the  bills  were  the  same 
that  Mr.  Duncombe  had  from  him.  D'Acosta 
says  the  bills  that  he  sold  to  Mr.  Duncombe 
were  indorsed,  See.  but  none  of  those  that  Pe- 
ters had,  had  names ;  none  of  these  tliree  par- 
cels tbat  he  had,  had  any  names,  but  one  that 
had  Frazer  upon  it.  Those  shotied  to  the  jury 
have  no  names :  we  have  the  right  of  the  king's 
subjects  to  make  payments  in  exchequer  bills. 
There  ia  a  penalty  in  the  law  ofexchtNjuer  bills 
be  counterfeited,  therefore  Mr.  Peters  ought  to 
make  it  apiiear  to  the  world  whence  he  had 
tliose  bills. 

Mr.  Norikey.  My  kird,  I  shall  bo;  leave  to 
•tnte  the  material  poiotv  in  the  inronnatMui, 


MBS] 


11.WILUAM  UL 


■II 


I  ibiMI  fMu  at  tiM  tertieuli 
Ihit  tfilv  wm -Mid  mio  ihe 
HMgf  hsftt  pm&i  in  4m  iiiAN 

ttMB  ily.it  ill1MtlM«ll0W«d  ft  J 


•mflMwet,  might  pay*  in  «sdi 

A  W  DOt  «||0  ftlMtlOB,  tlUMttil  if  H 

Diiy  tlie  act  B6  migl^  do  It 
oaaliM  k  drns  wlMtiMr  Mr.  Dam 


itii|Vlain 

ToeMietioft  m  Hn^  wbcttM 
«Im  BftM  tbem  il^  Mad  tlMOB  in  «c  ti  M  if  tiMV 
htd  ba«i:TMei¥«dnlbeeiaiMbjlKiii,uidir 
••  Iraly  iodoncd  ftQOordiBg  la  iIm  act,  w|tiS  tiia 
ttia&*a  naae  iImI  paya  tiMM  is,  and  tlie  dajr 
whanbapayatbams  thagr  ara  paaitava  wa  did 
.  do  ao;  we  are  poaitiva  ta  &a 
Hterad  Mr*  •  Pataia  aat  and 
IwillitliaBMn^ 


; 


and  the  daya 
ii  thaaa  we  laid  him  we  leeaiffod  Aoaa 
Tbia-malnaanand  af  ilua  infor- 
or  witnamaa  prawa  it:  weehaarftt 
Ihilijy  hk  own  endapice  it  waa  jmapawbia.  it 
ahanlf  hapaid  in,  aa  narifed  iij  iia.ior  esam^ 
iir  Ihenfll  amoina  the  indorainff  to  alop  the  in-, 
ft,  hoi  TaiaiB  ■nwiiid  iiiiaiMt  foi  thaaii  liilh^ 
mihe  Itth  of  May ;  Mr.  Doncomhe  waa  dia- 
ehamitherth  of  May,  Mr.  Burton  eame  in 
Mapiya,.and.told  PMam  who  knew  thk,  thai 
be.itaildanow  tham  ee  it  to  the  latb,  whaa 
Mtji  Doneembe  was  diaohaigad  on  the  7th, 
TUa  demonatratcd  that  be  2d  not  teU  Mr. 
VaUnithal  be  raoaiTad  aU  tboaebitta  feres- 
Ma}  he  caald  not  ttU  him  be  raeeif  ed  tbam 
that  day  §x  eaeiae ;  thia  ia  postif  e  proof  in 
the  matter. 

We  observe  furtlier,  tliat  Peters  witnesses  he 
look  the  bills  by  consent  and  delivered  them  to 
hit  roan ;  be  did  not  ask  him  it'  they  were  rig^ht, 
be  bath  a  memory  for  that,  but  though  he 
knows  Mr.  Duncombe's  servants,  be  cannot 
remember  which  of  tbem  brought  the  bills  to 
him.  But  we  have  the  servant  here  who  will 
refresh  jiis  memory,  when  Mr.  Duncombe's 
eervant  brought  tliem  those  bills,  they  say  they 
had  not  seen  the  act  of  parliament,  and  that  the 
lords  of  the  treasury  had  given  no  directions  in 
it.  We  shall  read  the  king's  proclamation  of 
the  8dd  of  April  169r,  to  shew  that  if  we  were 
mistaken,  we  were  led  into  it,  by  the  best 
exposition  of  the  act  of  parliament  that  could 
be.  Then  the  proclamation  was  read  reciting 
aH  the  clauses  or  tlie  act. 

Sir  B.  Shower  observed  upon  it,  that  nothing 
could  be  more  olain,  but  least  the  officers 
should  mistake,  tiiough  he  could  not  tell  how 
Peters  could.  Jt  says  we  do  hereby,  &c.  en- 
join   and  tellers.     There  is  Mr.  Peters. 

We  have  this  for  us,  what  can  be  plainer  ?  It  is 

Slain  by  this  first  witness,  there  is  no  fraud  in 
[r.  Duucombe.  This  man  told  them  that  the 
hills  had  not  |iassed  the  excise ;  then,  says  he,  J 
cannot  receive  them,  but  he  cannot  tell  why.  It 
is  plainly  contrary  to  the  proclamation,  which 
eiyoioed  him  to  receive  them.  Peters  should 
have  nten  if  the  bills  had  been  regularly  in^ 
dorsed,  be  took  them  upon  credit ;  and  here- 
upon it  ia  alledged  agamst  as,  that  we  paid 


fUf  if 

lie  iMlfa  done.     It  it  luul  been  eDmctedgea^r 
rally  before,  if  allowed  b^  ihe  commisnoiicn  §1 
the  CBCise  afterwards,  luiii  by  t\ie  direclieiif 
fjke  hwds  of  tlie  tri^asury.     It  is  hard  for  lb  i 
to  be  pro<seciited  for  such  iii«f»| 
t    wbat  lie  did  wo^s  doite  in   many  m*  • 
b«l^>re^  but  wliedier  their  practice  iDi| 
him  tbt^re  m  no  ueocssLty  of  aii^nijief  ! 

erd'  reh  iag  upon,  llj&t  be  is  strictly  jut* 

tiied  bv  the  law,  though  where  m  peraoa  iiia^ 
dieted^  a  fact  in  its  own  naUire  doulitlult  At 
praetiee  brothers  may  givesooie  tight  lowa^ 
the  vindicatiiig  or  condemniug^  hitii.  TkHi|l 
Mir.  Dancombc  be  gq  indicicd,  there  is  iKrt  om 
fiMal  alledged  apr^inst  him  sufEckot  to  Mm 
^kmiuty  to  beliei^e  bim  j^tiilty. 

Tnetoformatton  IS  not  for  htspa^iiig^iltf 
money,  or  if  it  were,  the  act  iaiW 
to  it.  Had  Mr  UuDcombe  brni  m 
lor  that,  the  aoswer  inu«t  h»r«  ^ 
the  eel  itself;  and  $uppr)f>iijf:  this  faot  bad  Imi 
daajgnid  to  be  done  betbre  the  act^  it  cmdl  m 
haie  bt«n  baiter  excused  than  by  thk  aa. 

Tbe  exchequer  bilU  were  not  fftbrljf  m 
*  tbe  ill  form atioD  is  mistaken  iu  ilM 
there  ts  no  other  iadoritmeiil  be 
what  tike  ad  describes,  and  o  tiaioe  widHil 
a  day  mentioned  i^  nothli^g  ;  it  was  tbrirffdl 
they  took  them  m  p^id  iuLu  Ibi^;  exci&c,  WmI 
looking  upon  tbe  Sd  parct'l  tbvy  paid  t!if«a  a 
as  beiny;  truly  iudorsied*  It  id  the  mmt  sbiuti 
thing  iu  ibe  e&rtb|  that  we  sliould  come  to  ftf 
bills  that  bad  not  tbe  dsy  of  the  mooib  tfm 
them  as  if  they  had  bi'en  paid  iolo  tbe  «sai% 
as  if  we  bad  not  coouuoti  sense  ia  see  thit  l&i 
exchequer  uould  not  be  Impmied  opon  ia  M 
manner. 

In  tbe  next  place,  it  woufd  not  bate  bis 
criminal  hud  he  paid  tUem  so.  If  a  persoa  UA 
receif ed  moocy,  and  told  them  timl  be  4i4  !»■ 
ceife  muDcy  tor  the  excise  but  bills,  tbcutlif| 
had  proved  Uicir  inform aUon,  but  tliey  uj  hi 
paid  them  in  as  if  t bey  had  beeio  reoritedit 
excise. 

Your  own   witnesses  put  it  wholly  affli 
these  two.     If  you  Ikil  in  proring  tboMtm 
then  we  must  leave  it  to  the  ocMisidBratisaw 
my  lord  and  the  jury,  whether  yoo  hatepnili 
¥our  information.    The  1st  witness  sm  Ifcv 
Duncombe's  servant  disowoed  it,  and  ih 
fore  be  would  not  take  them,  the  other 
he  takes  them ;  so  that  what  is  criminal  i&  dflOj 
by  the  wituess,  he  commits  a  notorrous  fr<iiiiia| 
justify  himself, and  makes  lalee  indoi^mijino 
if  we  had  done  it.  g^ 

Mr.  Munday.  How  far  the  feet  chami 
the  information  is  crimuial  bath  been  bi 
taken  notice  of. — It  is  manifeal  fieoB  U*i0 
evidence  that  he  was  the  first  panon  ibati 
a  contract  about  exchequer  hiUi |  n^ 
lords  of  the  exobeqoer  Ibea^arifaaM  ml 


^  they  would  have,  therefore  tbey  i 
^ract  with  Sir,  D*Acti8tR,  ttllowintf  ^ 
exchange  ami  {tisconnt  upon  the 
tries  amon^r  the  brokers  bow  he 
em  off,  aufi  at  lii!>t  timli  out  Mr, 
Itnowing^  bim  tn  b«  a  raonieil  njan» 
-A.«€j«ta's  ret|u«sl»  Mr.  Duncorabc  took 
%.licHie  bills  at  5t.  wr  cetit.  dhcount, 
^^^^  .'t^^uch  less  than  the  fords  of  ihe  Irea- 
^  YT  ^  ^iscounte<l  to  Mr.  D*Acosla,  tliis  is 
^V^^  ^*^  advance  the  vohie  of  th^jse  bills  ; 
Bfci^t-^^  *^«rxt  rontracl  Mr,  D%Vcosta  made  with 
^E^^^^^  it  was  for  a  much  less  value,  so  that 
^5^^^  ^Of  the  purticular  reputatiou,  that  Mr, 
Jlte  ^^^^  &a*e  to  those  bi IN  thai  they  were  not 
ii_?*!\-^^«^erialaed.  It  is  plain, iheojhat  he  did 
I  *^^**^«b  the  credit  of  the  exehejuer  bills. 
l^^  ^W  next  place,  it  is  af)  plain  tlial  the  king 
/^rt*tio%  defrauded  far  the  discount,  J  must 
^y  '^  say?;  your  own  witness.  The  interest 
^twi  \i^  allowed  (o  ibc  time  they  were  brought 
Iti,  l\ier€'i?i  no  coulradictiou,  no  deceit  there ;  so 
tJiat  it  1^  manifest  that  as  the  fact  was  not  cri- 
iniafil,  oeitber  was  it  done  for  aoy  such  pur- 
jwie  as  to  defraud  »be  kiu^. 

inn  the  country  collectors  and  rectnrersbad 

c«%Jt  iri  thtir  liantls  from  o!d  money  carried  into 

the  country  raiiitSt  and  tbey  fjive  billa  in  Lon- 

tlnn  i'r>T  f^old  or  new  milled  money,  yetthe  mer- 

*y  it  in  those  bills.    Consult  the  kin&f's 

:,  they  will  tell  you  that  it  would  give 

Qfciiit  to  those  hills  for  the  exchequer  to  take 

t/ieoi,  and  if  so  it  was  beyond  contradiction  an 

^dfaDCeinent  of  their  reputation  for  Mr,  Dun- 

^oinhe  to  buy  those  exchetiuer  bills^ 

Mr.  £yrrj.  I  shall  put  3'our  lordship  in 
initiH  of  a  case  that  was  before  your  lordship 
in  the  GuildhiiU  of  London^  but  I  do  not  oiFer 
it  as  the  oflence  in  evidence.  Dyer  the  news- 
utrtter  had  an  information  preferre<l  ag^ainst  liim 
%i having  wrote  a  news-letter,  with  tk  desie^n  to 
casta  sinr  upon  the  justice  of  the  kingdom, 
coBcerningf  the  prosecution  of  the  gentlemen 
for  the  LaQoashire  plots,  and  iayingthat  in  Mr. 
Staodish's  house  there  fias  so  many  arms 
found,  that  hu>  say,  so  many  birding  pieces^so 
many  hunting  sadcfles,  ^c'  but  there  was  no 
such  things  found  ;  though  this  would  bare  betiO 
in  ofleaee,  if  it  had  been  charged  that  he  did 

Lwith  a  design  to  scandalize  the  justice  of  the 
ktkili,  and  as  not  haTJng  told  the  whole  truth, 
Init  having  charged  it  upon  the  falsity  of  the 
tnfhrmation,  he  was  acquitted. 

Zi.  C  J,  You  mistake  it;  it  was  upon  a  mis- 
take of  the  session  of  gaol  delivery  that  he  was 
0^aitted  ;  the  mefining  of  the  indictment  was 
fbr  ndicultng  the  Flots. 

Mr.  Eyrts,  I  submit  it  to  your  lordship ; 
the  ijocstion  now  before  us  is,  if  there  bath 
been  any  fraud  or  deer  it  committed  by  Mr. 
HiiRCOiiiDe,  what  a  coudilion  wouhl  many  peo- 
ple lie  to  ?  if  all  that  nvied  the  kio^  nioney, 
lliiHitd  have  infbrmaltons  brought  agiuast  ihem 
bere  ui  the  court  of  King's-bencb,  that  they 
Jiavc  not  paid  the  kiu^'^  money  in  specie  but 
btllf,  with  a  design  to  lessen  the  credit  of  the 
c<eb«|U«r  or  to  delraud  his  majesty. 


I 


I 


The  question  is,  whether  the  king's 
receiver  having  actunlly  in  his  hands  the  king's 
money,  whether  he  can  iletain  their  money  to 
bis  own  use,  and  pay  the  king  in  exchequer 
bills,  and  if  those  receivers  be  robbed,  whether 
the  king  must  actuall}' answer  it*  If  a  bailiff 
receives  \m  master's  rent  in  the  country,  and 
keeps  the  money  in  his  hand  till  he  can  coo- 
venientty  pay  it,  if  he  be  robbed  in  the  mean 
time  he  shall  be  allowed  it  upon  his  account ; 
but  if  he  put  the  money  into  another  man's 
band,  and  that  man  be  rubbed  of  it,  be  mighl 
be  accountable  tor  it ;  so  that  I  4fo  not  see  the 
taw  dIIows  the  king  s  otHcer  to  convert  th« 
king's  mouey  to  his  own  use. 

Then  the  JS9lb  page  of  the  Act  was  read. 

Mr.  Brawn,  Mr.  Peters  tells  it,  he  obargea 
himself  with  so  much  muDcy  ;  it  is  impossible 
the  king  should  be  deceived,  for  Mr,  Peters 
discharges  Mr.  Duncoaibe  of  so  much  nioney 
paid. 

IMr,  Attorney,  Let  them  go  on  regularly  ; 
sonoetimes  they  go  on  with  law  aod  theu  wiiJi 
matter  of  fact }  let  them  go  on  with  their  evi- 
dence first. 

Mr,  Brcwn.  Tliis  we  prove,  that  Mr.  Peters 
was  teller  ;  theu  that  he  received  those  exche* 
quer  bills  from  ns ;  that  he  owns  the  receipt 
of  them,  and  those  bills  to  received  are  thrown 
down  into  the  tallev-office,  and  a  talley  is 
struck  trom  them,  wuereupon  Mr.  Dun  combe 
hath  his  quietut ;  for  that  the  mistake  is  in 
Mr.  Peters,  and  not  in  Mi\  Doncombe^  for 
Peters  ought  not  to  have  taken  them  if  they 
ought  not  to  have  been  taken,  hut  it  is  plain  be 
charges  himself  wiili  the  money  actually  re- 
ceive, 90  if  the  king  was  no  sufferer  by  this 
transaction,  we  shall  show  that  Mr,  Duncombs 
was  very  fair,  and  if  they  had  not  been  wilful 
in  the  thing,  they  might  have  distinguished  be- 
twixt those  that  were  regularly  indorsed  as 
coming  through  the  excise  and  those  that  were 
not. 

Then  the  I30tb  page  about  Ihe  Capitation  Act 
was  read,  afterwards  tlie  *2ud  paragraph. 

Sir  B,  Shower  observes,  that  the  1st  act  not 
on  I)'  allows  them  to  pay  exchequer  bills  in  for 
the  aids,  but  allows  the  payment  ol'  them  from 
those  who  have  the  receipt,  the  receivers  have 
the  liberty  of  paying  it.  Read  the  next  clause^ 
we  shall  shew  your  lordship  that  the  king  de- 
sires those  bills  Vat  her  than  money. 

Theu  the  Clause  was  read. 

Sir  T.  Powii^  Your  lordship  sees  that  upum 
the  first  act  adapted  to  pay  the  aids,  money  was 
scarce  in  the  country,  and  Lheretbre  it  makes 
those  hills  not  only  payable  by  those  that  re* 
ceivc  Ihe  revenue,' but  a  breach  of  their  trust  if 
I  hey  did  not  exchange  these  bills  for  tnoncy, 
so  that  if  {  had  exchequer  bills,  1  go  presently 
to  these  men  the  receivers;  and  say,  take  you 
the  bills  and  give  ine  money  for  thetn,  mod 
they  are  obliged  to  it  to  give  credit  to  the  hills, 
and  to  stop  the  interest  due  upon  them  frotH  tlie 


11  WILLIAM  III. 


Trial  <jf  Charles  Dtmcomift  fff- 


I 


Icin^.  If  the  Hilts  he  not  hroujrht  in,  then  die 
receifer  kept  the  mimey  nnd  the  \h\U  paid  in* 
tewa.  to  tliat  it  in  better  i'ur  the  \un^  to  have 
th«  hills  than  the  money. 

L.  C  J.  But  suppose  exclieffiier  hills  come 
to  the  receiver,  aod  the  receiver  huys  those 
hillsi  iJoeA  he  Jo  well  in  thtl  f 

yfr  r.  Pimii,  Yes»  he  dei'rauds  not  the  king, 
for  if  Mr.  Dtmcombe  had  brought  hi«  money 
In  WestMUDster-hall,  I  or  any  man  nn;(hi  hate 
stopped  him  uid  dcmnnded  money  for  exche* 
quer  bills  au^l  it  would  have  been  a  tault  in 

Lhtm  not  to  hare  given  me  money  for  them* 
Mr.  AUornt^J  The  extent  of  the  Act  is  no 
further  than  tonioney  naid  on  tlieduty  charged 
that  session.     Read  Itie  rluose,  page  132. — 
**  And  be  it  further  enacted/*  &c. 
Then  was  rend  the  2d  act,  page  384. — **  And 
irhereat  by  an  act/'  ^c. 
I«  Sir  £.  Sfutwer,  This  clause  is  plain,  it  ought 
ID  hare  Iteen  paid  into  the  exchequer  ^vithout 
Gfftning^  into  any  other  aid,  aud  he  shall  be  al- 
lowed interest  till  it  lie  paid  into  die  exchequer, 
«o  tiiattt  is  payabletnto  the  exchequer  without 
coming  ioto  any  branch  of  the  revenue. 

'Then  the  next  clause  was  read. — **  It  is 
hereby  enacted/*  5cc» 

Then  page  3»8.— "  Provided  always/'  Sec. 

Then  pa^  ^22* — "  Provided,  nevertheless/* 
Ic. 

Then  page  593. 

Then  the  Proclamation  of  $3d  April,  16^7, 
which  isir  B.  Shower  observe<l  was  before  the 
f 2th  &f  May,  the  lime  when  Mr.  Dunconihe  is 
accused  of  having  defrautled  the  king*  and  that 
Mr.  Peters  was  enjoinetl  by  that  proclanaatiou 
tp  take  them  aj  a  teller. 

Mr.  Northey,  Subsequent  to  this,  there  is  a 
•lause  in  another  act  already  reacl.^'^-i-Then 
111*  Prorlamatirni  oiJu\y  SOtli,  1697»  was  read* 
*  "  ■  We  don^t  in^iiA  upon  these  thiugt  tojustify 
the  fact,  but  to  shew  that  this  was  the  tifciicral 
nrectice  of  all  persons  whatever  to  take  tlioee 

Call  Mr.  Cooki  Mr.  ^heldrack,  and  sir  John 
Foch. 

ftir  T,  pQwii.  We  shall  now  prove  that  there 
?re  hills  drawn  by  rnaoy  ,in  the  country « 
Mr  Mheklrack,  pray  acquaint  my  lord  and  the 
jnrvt  whether  when  receivers  lo  the  country 
hud  ilie  product  of  old  mon^y  reosined,  paid 
back  to  ihein  in  milled  money,  whether  whr^n 
they  draw  bills  upon  merchauts  in  Londou  W^r 
s#  tatich  milled  inouey  of  the  kiosk's  in  their 
hands,  did  th^y  dmw  the^  bills  expressly  to  be 
|iaid  in  mil  led  money  and  ^(M,  anil  wnelher 
they  came  with  exchequer  bills,  if  yoa^took 
those  bills  or  made  them  pay  monev  P 

Mr.  Shtidnick.  In  May,  iec>r/l  had  appli* 
csition  made  to  me,  having-  tiie  rare  of  the  bills 
<if  exchange.  Merchants  came  to  me  and  urged 
me  to  lake  exchequer  hills  m  discbai^  of  the 
bills  drawn  upon  them,  upon  whicli  1  went  to 
fif.  Dujiooiii^  wImt  w«t  lli«ii  Guhitr  of  tbc 


I 


I 


excise,  and  acrjaajti ' 

t  here  was  anew  ca*> . 

aifoiu^  outf  apd  th 

for  a  day  or  two,  te  I  ^ 

ceire  directions  froEii  the  ui:'^ 

werx^utd  not  receive  hiMf  y€-\ 

of  the  accounts  of  *2' 

to  lie  made  uti  andtj 

combeand  Mr.  Burion       t  »n  thr,  ijiii{ 

about  11  o'clock,  1^1  r.  Duncumbe 

office,  the  transfer  was  uiii«Ii£,  «imI  all 

and  notes  examined   by    Mr.  Borloa 

brother,  and  as  soon  aiii  they  were  Bali 

were  bills  to  au^wer  the  siuns,  3fr.  Burton 

chargfd  Mr»  ihincomhe. 

Sir  T,  Po7fi$.    Had  you  ever  aay 
ahout  takingf  excbe(|uer  hiiU  f 

SfieldracL  Mr.  Burton  told  me  that  the 
chequer  bilU  bein^  uewly  issued,  it 
B!^y  to  credit  them  as  much  as  we 
same  directions  were  g^iveo  to  the 
and  I   tt^ld  them  it  was  proper  they 
tend  the  new  cashier  for  his  #rders. 

i^ly  r  I,  What  money  did  yon 

in  e\  Is? 

6rW ..*.......  1  rom  the  7^'^ 

of  October  we  received  * 

pay  meots,  mak  1 1 u ►  ?  i  r  n 

them  bills  mad 

jiey,  the  value  , 

[iressin^  whence  tiiey   paid 

two  or  three  that  enter  them 

to  roe,  that  can  witn^ 

8ir  r.  Ptmii,  Hi, 
gold  money  darii^  < 

i>heldrnck.  BeCWf 
2  2d  of  Oclobei  t' 
more  exchequ^ 

13  2  f/    :■'   "    '  *  'II,   nuntiji    Mi'i'«iL\ 

b.  Won  this   Vkli 

comu» — ,.,ri-v,i  J 

SMdruck    I  gave  lliera  an  aoooaiilcC 
under  my  own  h^md.  tiud  cnrtioisarly  tins 
when  the  sum 
chequer  bills  an  I 

8ir  r.  PmU, 
for  a  ? 

Skeidmck.  No,  Mr.  Duncombe  nkct  iini 
ilker*  and  asked  uie  how  I  hkod  Mr. 
our  new  cashtc^r  ;   1  auawered  bioi  J 
to  be  a  veiy  hoaest  |>^entlefitaii.  TliCfi 
me  what  1  did  aliOut  excbeauer  hQIsf 
swered,  that  Mr.  Burton  orocred  i^e 
them  in  all  payments.  Betwixt  ihm  7tb 
and  the  12tlu  we  recsiied  4,00Ot  in  exdbopv 
bilU,  upcm  several  bills  of  exthutgK  drAimwP 
the  country  by  sei^ral  raeilicf>»  aoott  of  liiaB 
payable  at  20  and  SO  ikys  iiA#r  dale, 
the  UZd  of  May,  we  had    hilb   in 
100,000/.  n^ost  of  them  ooeordiu^  lo 
timo,  at  S8  or  30  days  after  dal#, 
that  it  was  40  days  before  Ihcy 
and  ivere  not  usually  uaid  in  tliree  wwd 
und  then  paid  in  eximqiiar  hilh  aod 
count  of  7{  per  ceiiL 

Sir  T,  Fojifit.  It  wn  belter  for  ibe 
be  io  the  cottotryi  aad  for  lbe.kii^  to 


*^^'-    *"thrt 

<  m  I 

d  and  rndleda 

he  col  Ice  Ion,  I 

''  rt  J 

f  y  m 


v,  t6QT,ai 


knnim  to 


f»o  itiitDbiBi 
stilled  m9m$m 
I>id  iUey  ever  repnwaji 


1089  J  for  false  indoning  (if  Exchequer  Bills. 


kh^  for  vrh#n  they  cattle  in  the  mterest  ceased 
Dtiin^  fMJ  in  the  cuyol ry,  so  ihat  ihey  dirl  ir 
to    con»i<1eraii«m  of  ilie  kitit?*s  iiilerest — Mr. 
^ehlrackf  when  you  had  biLh  di'awti  at  30  days 
111,  wtMiltl  ihey  hive  pairi  them  sooner  if  you 
I  taken  it  la  exchequer  bills  f 
IShridrack.   No. 

Ijr  T*  Pitcis.  How  do  you  know  thai  ? 

ISheldruck.    I  am  rharered  iiilh  all  liills,  an<f 

re  Kivfn  tutt  bills  seveml  times,  ami  the  klng^ 

ng  to  |iay  5rf.  ppr  cent  ^ler  day,  it  looked  Hke 

eat  abuse,  ami  I  hey   i>ug^ht  to  have  piven 

Beral  directions  m  their  collectors  tn  pay  it  at 

:  days  s^^h^,  u|)on  which  sir  Julin  Foach  ant! 

lordereii  us  to  atier  the  intthod  of  it  aic^ 

*  lo  the  tra'le  of  iht*  country, and  orderetl 

bttU  were  not  paid  in  twelve  davft  a  tier 

came  dui%  to  return  them  to  the  col- 

hbey  came  from. 

Be  of*  tht  King*»  Voumtl.    ]Vf  r.  SheTdrack, 

did  take  ejrchequer  bilk  from  the  mer- 

ata  iustead  of  lhc«e  \\t\\*^  diJ  you  ever  kuow 

r  money  brought  up  to  town  by  the  receivers, 

ccl)equer  hills  brought  iuto  the  revenue 

id  of  money  ? 

'drack,  I  know  nothinc^  of  that. 

rr.  Foais.  Those  tnercliant^thit  accepted 

inilleil  money   und   j^fottl,  if  you  had 

upon  them  J  they  were  not  able  to  pay  it 

ey  at  the  eml  of  the  lime  if"  you  would 

;  fiave  tiik«n  hills  front  them? 

fSMttdrack.    f  lost  twenty  of  the  best  mer< 

Hts^  that  paid  BOO.OOO/, ;  Mr,  Walker  and 

oy,  ^muel  Trowel,  Josiah  Hityardi  6cc* 

Bute  I  would  t]ut  take  any  moi^  exchequer 

Br  T.  Pou>it,   Did  you  use  to  exchange  ei^- 

uoer  bills  broug'bt  to  you ? — Sheldrack.  No. 

C.  J»    You  make  fuuch  of  this^  because 

expressing-  to  be  paid  in  gfold  and  money 

aid  ill  exchequer  bilU^  was  it  therefore  a 

By  meat  ? 

*,  Shatter*  These  collectors  carried  in 
Bey  to  the  mints  ;  they  had  it  recoined, 
ad  ot'»etidin^  it  up  iney  gel  gooil  biUs 
By  able  in  money  or  ^idd',  and  yet  mer* 
if-paid  it  into  the  excise  in  excheqiier  hillii; 
lews  that  it  wax  the  public  pi  act  ice. 
[7.  J.  But  you  seem  alii  I  to  infer  that  it 
I  and  lawful  payment,  and  would  im- 
'iipOD  the  courti  but  we  tell  you  it  was 
bv  there  was  no  necessity  of  taking  it  so, 
merchants  were  ohligeil  to  pay  them  in 
BiUed  money  or  guineas,  bat  thi^i  that  you  talk 
of  is  done  by  consent^  whereas  you  ullcdge  that 
it  was  good  in  law. 

Another  of  the  Kirig\  Couvsei.^lle  consult- 
id  his  merchants  about  it ;  he  thought  it  was 
belt  to  pve  credit  to  those  bilb,  but  they  did 
Aol  Bay  that  it  was  to  be  dime  by  law. 

Mf-  Montague.  Mr*  Sheldmck,  when  the 
colleclom  paid  money  m  the  country  had  they 
■Ot  the  beuefit  ot'ili<»rotuit  in  it  ? 

SkUdruck,  Nodoiihtol'it;  the  collectors  ona 
nd  the  merchant  one  half 
\M.  Skowrr.    We  say  it  was  so  far  from 
I  cheat  that  it  was  idvnDtageoui  to  llie 
VOL.  XIIK 


A,  D.  1699. 


[1090 


king ;  we  do  not  ui^  it  tliRt  it  was  a  good  pay^ 
ment,  but  that  it  wa>»  the*  opintoit  of  ttiose  thiit 
were  trusted  witli  the  king**  reveaue  to  make 
thtir  bills  current. 

X.  C,  J.  They  hud  authority  to  do  to. 

Sir  B.  Shimer,   They  hsd  uo  mora  than  tfa 
law  gave  them, 

Hir  7*.  Pawhi.    All  that  we  use  tt  for  is  tbisf 
we  are  chnrged  whh  fraud  and  a  design  to  dB 
ceif  e  the  kmg,  whereai  it  appears  that  tho 
officers  ititruHted  with  the  revenue  thought  it  i 
far  finom  heing  so,  that  when  they  gavr  hjDs  l« 
be  paid  in  milled  money  or  gold,  they  look^' 
upon  rt  to  be  no  deceit,  but  allcHved  il. 

Sir  B.  Showfr.    Mr.  Duncombe  did  not  do  I 
tilt  Mr.  Burton  did  it. 

Another  tf  the  Defendonth  Counsel .  Did  th« 
priceof  exchequer  hills  rise  or  fall  after  yd 
were  forbid  takioi^  them? 

Shrldrack.  They  tell. 

Q.    Had  you  any  direction,<j  from  any  I 
else  but  Mr. 'Burton  about  them  P 

Shcidrack,  No. 

Q.    Had  you  any  directions  to  indict 
body  for  it  T—Sheldraek.  fio. 

Q.  To  sir  Jotm  Foach.    What  applieatin 
was  there  made  to  you  and  the  other  commii-J 
sinners  of  theeicc»!*e  alxjiU  these  exchequer  bilbr 

Sir  John  FiMch,     Mr.  Burton,  in  two  daji^ 
afler  his  entry  upon  liis  oflice,  came  and  ao^ 
quainted  us  luat  there  were  a  grreat  many  hills^ 
as  Mr.  Sheldrtck  f^ays,   and   the   merchants 
would  not  pay  them  but  in  exehequer  bilk,  upon 
which   we  ilehated  it  amoni^t  omseltes  and 
ronanlted  the  act;  and  upon  the  clause,  p.  SB4, 
some  were  of  opinion  that  the  parli.iment  had 
made  exchequer  hills  silver  and  gold ;    unon 
which  we  represented  it  the  Tuesday  monuiig 
following  to  the  lords  of  tho  treasury,  and  dis- 
tourtied  with  them  an  hour  or  two  uf^on  it;} 
The  lords  debated  it,  whether  the  law  w<is  i 
or  not,  and  at  la^it  desired  that  Mr.  Attornejf  J 
and  Mr.  Solicitor  should  attend  on  the  Thurf*| 
day  following,  when  Mr.  Burton  and  Mr,  Kno 
waited  to  know  their  opinioDi  and  they  told  iii#l 
the  lords  had  given  directions  to  lake  tliem  |J 
alter  wfaich^  they  were  taken  to  a  great  manyl 
thousand  pounds  without  any  contradiciion. 

Q.  How  did  you  know  the  lords  of  the  tres* 
*ury  ordered  it  so  ? 

A.   We  gave  credit  to  Mr.  BurtOD>  wiio  lok 
tisso. 

8ir  r.  Powii.  Had  you  any  directions  froB 
the  treasury  to  the  contrary  ? 

A.    Not  till  October  following. 

Q.    Did  you  attend  the  lords  often  f 

A,  We  attended  them  ©very  week ;  (hi 
knew  thatsoch  payments  were  made. 

Q.  When  was  it  that  you  first  attended  the 
about  it? 

A,  1 1  was  betwixt  the  7th  and  13th  of  Ma^^^^j 
■a  day  or  two  after  Mr.  Barton  came  in. 

Sir  T.  Poipu.  The  lords  of  the  treasury  trave 
power  to  tssne  out  those  bills  in  such  a  method 
as  they  thought  proper,  hut  could  not  vary  it 
from  the  act  of  parliament,  so  that  there  was 
itothing  to  make  it  crimioal  but  tbs  opinion  of 

41 


WMra  ot' the  excMe. 
Jl^CLX  MiMlwetlMNimWQf  tlwi 


'Sr  r.  Paint.  NOyWa  do  not  My  i*^  Wit 
tht  ionr  mint  not  tluok  that  ife  acted  lirwda- 
kntlTiB  the  matter. 

'   'qftkeDrfaidttme8C9MM$el.   It  was 

do|»pion  at  that  time,  aadcaaatantly 

Jy  the  torda  ef  the  Uianuijf  appwwred  it 

ipaynMuta,  and  theooipnuamiianiofeiclaa 

'  Gomtantly  baibie  the  locda  ef  the 


If  r.  'Cooper.  Sir  John  Foach»  iipoo  what 
eooaidctatMm  waa  it  that  thoee  hiUa  were  al- 
lowed to  past;  yoawerementioiuiigaoai^rea* 
aonaoT  state  why  those  bills  were  allowed. to 
hetakcBr 

A,  Some  were  of  opiDion  we  ooold  not  by 
law  reoeire  them,  others  thought  it  was  fit  to 
five  Ihem  creiiit. 

Q.  Yon  said  there  were  some  merehania 
refiised  to  pay  money,  bat  only  in  exoh«|ner 

A.  Mr.  Burton  told  us  he  was  so  inibrBaed 
^hiaoflkers. 
.  Q,  That  was  then  one  leason  why  they 

wen  reoeired  r 

A.  The  lords  of  the  treasury  permitted  us 
to  raceire  them  till  October  folfowmg,  that  we 
we  prohibited. 

Q.  Was  there  no  notioe  taken  that  you  had 
avad  them  so,  by  those  that  prohibited  youf 

A.  Never  that  I  beard  of. 

Sir  B.  Shower,  It  was  reckoned  gooil  pay- 
ment in  every  body  but  Mr.  Doncombe.  Call 
Mr.  Fitcb,  Mr.  Sturton,  Blr.  Dawtree,  and  Mr. 
Milner. 

Q,  Mr.  Milner,  M'hat  do  you  know  of  the 
payment  of  exchequer  bills,  tor  bills  drawn  in 
milled  money  and  guineas  f 

A,  I  had  all  from  one  Petit  in  1697,  and  he 
told  me  if  I  would  I  might  pay  those  bills  in 
exchequer  notes,  which  accordingly  I  Hid  for 
what  bills  1  had  drawn  upon  me  to  be  paid  in 
new  money. 

Q.  Did  they  insist  upqn  it  that  you  should 
do  so? 

A.  They  came  to  me  and  told  me  I  might 
do  so. 

i.  C.  J".  They  were  hb  friends ;  suppose  a 
roan  be  bound  to  pay  wortii  in  guineas  and 
ailver,  will  paying  it  in  exchequer  bills  be  a 
good  payment,  or  a  rule  for  others  ? 

Sir  B.  Shozcer.  No,  we  do  not  say  that  this 
is  to  be  our  rule,  but  we  Kay  that  those  that 
consented  to  take  exchequer  bills  in  lieu  of  gold 
and  money,  designed  the  public  beuefit. 

X*.  C.  J.  Had  Mr.  Duncombe  the  same  de- 
sign ? 

Sir  B,  Shiwrcr.  Certainly  he  had,  for  we 
obliged  Mr.  D'Acosta,  who  might  otherwise 
have  gone  to  the  brokers  with  his  bills,  and  then 
tbey  woukl  have  been  10  or  12  per  cent  dis- 
count 

L,  C.  J.  It  is  imposin;^  upon  the  court  to 
8ay»  becaose  some  did  it  that  th«rafore  it  is 
lawfnl. 


tfaid^itft 

X.C.X  YeiiMkte 

firlftsuPswJs.  Mr. 
exchequer  bills  wspe 
the  eieha  officer 

A.  I  wwi  enplsyei  hj 
aboettheenWor--     '' 
deraUe  nuidieror 
nuae  of  the-p^non  or 
upon  theae  tliatwan 
tbcre  wero  bills  thus  Mndttlj 
1,500  and  odd  poonds. 

0.  John  Cook,  do  jsnkoeir  sa/ilsMrf 
the  payment  of  the  saaw  Ub  iala  the  «. 
choppier  JhNB  Mir .  Doaeonbe  lo  Mr.  Mhi  f 
.  J.  CosJk.  On  the  18th  of  Mmr,  iMf,  Ifc 
Duncombe  reoaved  rxchsqtr  iSys  fiein  Mb 


lyAcosts^nnd  goingtn  tlie enliemMrisnr 
them  to  Mr.  Aeis,  Irid  Vm  hehai  &^ 


•Mpsivitf 
oeatheodB 


paroeia  of  billa,  ooeof 
therevenne  and  tbeotharnoi 
1,300  odd  pounds  that 
office  waa  indorsed,  and  the 
D'Aoosia  came  not  through  the 

L.  C.  /.  Did  yon  hear  Mr. ! 
so  dirtinetly  F-^.  Yes,  my  Isrd. 

iMe  ^  ike  DefemdmWe   C 
were  divided  into  paroab ;  the  Act 

JLC.I.  Were  the  faiUadelivei«iliyj«%0 
by  Mr.  Duncombe  f 

Cook.  I  carried  them,  but  mysMitftf* 
vered  them  with  h»  own  hand,  and  tiU  U* 
the  difference  betwixt  them. 

Mr.  Attorney,  Call  Mr.  Peters.  Mr.  Pdm, 
as  to  Mr.  CookP 

A.  I  knew  nothing  of  bim  or  of  bis  rc1ati«il» 
Mr.  Duncombe  ;  1  Jniew  not  if  I  saw  biai  ika 
day  or  not,  but  am  positive  Mr.  Duncoaitedil 
not  deliver  me  the  bUla ;  it  waa  either  SteHir 
Ilomney. 

Q,  Are  you  positive  that  Couk  waa  not  daic^ 
when  you  received  the  bills  ? 

A,  I  cannot  be  positive  that  Cook  wsiaa 
there,  but  I  am  positive  thai  Mr.  Dancodb 
was  noi  there  when  the  billa  were  deliverd. 

Q,  When  was  it  yuu  saw  Cook  fint  ? 

A,  I  saw  him  a  day  or  two  after,  but  kiiff 
him  not  to  be  his  servant,  and  some  time  aficf 
I  had  charge<l  myself  wiih  the  money,  I  fss 
Mr.  Duncombe  come  in  at  the  wicket  gitrff 
Westminster-hall. 

Q,  Was  Mr.  Duncombe  there  when  tbekil 
were  brought? — A.  No. 

Q,  Cook  swears  he  was  there,  and  tMj^ 
the  diiference  betwixt  the  bills  expressly  ? 

A,  I  do  not  know  that  1  saw  him  at  M 
time. 

8erj.  Darnel,  Was  there 
Ibebills  be  had  from  D'Acosta 
the  excise  ? — A.  No. 

j^lr.  Attorney,  Did  be  name  D\ 
time  ? 

A.  No,  upon  the  oath  I  have 

Q.  Did  yuu  look  upon  the  bills  T 

A,  1  looked  upon  one  pareeli 
,  signed  Frazer. 


r  any  thing  isidM 
iostabadnst  ps«i  I 


1093]  far  fake  indorsing  of  Exchequer  BiiU.  A.  D.  1699. 


[lOM 


Sir  B,  Shower,  Mr.  Peters,  belliink  yoarseir, 
did  not  you  at  first  Rcriiple  the  takin||r  those 
bills  as  nut  comini^  through  the  excise  ? 

A.  No,  I  (lid  not. 

Q.  But  you  swore  it  you  shall  ha? e  it  by 
and  by. 

Mr.  Attorney,  It  was  Mr.  Fern  tliat  said, 
irhen  those  bills  were  broug^ht  to  him,  be  refused 
them,  because  ihey  had  not  passed  throug^h  the 
excise,  aod  therefore  it  is  the  more  likely  they 
would  conceal  that  objection  from  the  other 


Mr.  Petert.  1  knew  nothing  of  D'Acosta,  till 
I  Maw  bini  in  the  declaration. 

Q.  Did  Mr.  Buncombe  bring  you  no  parcels 
ofbills  that  day? 

A.  I  saw  him  not  till  1  saw  him  come 
through  the  wicket  gate. 

8ir  B.  Shower.  You  saw  him  so  near  as  the 
IkUI  gate,  what  did  you  say  to  him  P 

■  A.  I  said  to  bim,  Mr.  Duncombe,  I  have 
charged  yonr  nsoney. 

Another  of  the  Defendant's  Counsel.  Were 
Hkm  bills  in  3  parcels  f^A,  Yes. 

Q,  This  hel|i8  to  clear  the  matter,  that  there 
was  DO  fraud  in  it ;  shew  him  one  of  the  bills, 
m  tbat  your  name  ? 

A.  No,  there  is  no  name  of  mine  here. 

■  Sir  jf.  Powis.  Did  the  king  lose  any  mo- 
ney bvthis? 

A.  No,  not  one  farthing. 

Q.  Had  not  Mr.  Duncombe  a  demand  open 
the  loan  at  your  office,  of  5,000/.  payable  be- 
fcre  that  day,  and  there  was  not  money  in  cash 
to  answer  bim  ? — A.  It  was  not  paid. 

Q»  Mr.  Stent,  did  you  carry  any  bills  to  tlie 
tichequtr  from  Mr.  Duncombe  ? 
:  A.  No,  I  never  did. 

Q.  Mr.  Itomoey,  did  you  ? 

A.  No,  I  never  (lid. 

Q,  Mr.  iStent,  what  was  it  you  carried  then  ? 

if.  On  the  8th  of  May  my  master  c^ave  me 
a  note  to  strike  a  tally,  1  came  lo  Mr.  IVtera, 
and  desired  him  to  take  three  orders  on  Mr. 
I^lnis,  and  toM  Mr.  PeteVv,  licre  is  my  note, 
•ad  threw  it  down.  Mr.  Peters  told  me  I  must 
ao  to  Mr.  Fern,  it  was  to  be  paid  in  his  odke, 
ror  I  have  no  money,  says  he,  before  Mr.  Fern, 
li  take  them,  and  I  will  take  them  np  again  by 
and  bjT.  Accordingly  I  went  to  Mr.  Fern,  and 
told  mm  1  bad  three  orders  of  conrt  on  Mr. 
Plalma,  and  that  Mr.  Peters  ileairotl  bim  to  take 
them  again,  but  Mr.  Fern  refused  to  do  it,  upon 
which  I  went  to  Mr.  Peters  and  tuld  him  so, 
then  he  went  himself  to  Mr.  Fern,  bat  be  still 
nlnscd.  Then  Mr.  Peters  said  to  me,  come,  1 
will  not  be  obliged  to  him,  then  he  took  the  note 
and  struck  a  tally,  which  1  brou|;ht  on  the  8th 
of  Mav  to  Mr.  Brown  at  the  excise  office,  and 
then  I  went  to  Teddington  to  my  master's 
house,  and  was  there  on  the  12th  of  May. 

Mr.  Fern.  Did  Mr.  Stent  bring  you  any  ex- 
chequer bills  ? 

A,     He  shewed  me  no  exchequer  bills. 

Sir  T.  Povif.  We  say  tbat  tlic  payment  by 
Mr,  Duncombe  was  a  legal  payment,  and  though 
Ihat  payment  by  merchaati  was  not  because  of 


their  undertaking  to  pay  it  specially  in  gold 
or  milled  money,  yet  that  will  be  of  use  to  us 
by  and  by  ;  but  Mr.  Duncombe's  was  as  legal  as 
if  there  I'lad  been  an  actof  parliameullhHisuch 
a  proportion  of  lead  so  and  so  stomped  should 
go  for  money  of  such  a  value  in  all  payments : 
this  at  that  time  was  as  good  lo  the  kiuj;  as 
gold  and  silver  if  made  so  by  law.     If  a  re- 
ceiver in  the  country  had  met  a  man  with  such 
a  parcel  of  atanipe<l  lead  money,  and  had  said 
to  him,  1  do  not  likethiii  money,  I  will  ijrive  you 
this  for  the  king,  and  the  receiver  had  accord- 
ingly taken  it  and  •^iven  him  other  money  for 
it,  this  would  have  been  no  abuse  to  the  king ; 
or  sup|iose  I  have  so  nianv  guineas,  the  king 
takes  titem  at  2^t.  and  if  1  say  to  a  receiver, 
if  you  will  take  them  at  2U.  1  will  allow  you 
so  much,  thus  he  makes  a  profit  of  them,  but 
does  no  wrong  to  the  king  at  all.    It  is  the  king's 
interest  that  all  the  exchequer  bills  should  oa 
brought  in  and  sunk,  for  so  they  must  do  accord- 
ing to  the  act,  so  the  act  says  when  they 
come  in  on  a  proper  fund,  then  that  is  the  kinf^'s 
wish,  he  is  not  wronged  by  having  them  paid  in, 
if  they  be  paid  in  on  a  fund  they  stop  the  inte- 
rest, if  on  a  right  fund  they  arc  sunk  and  never 
go  ont  to  pay  interest  again.     If  people  who 
have  these  bilb,  stay  a  week  before  they  call 
for  their  money  though  due  when  they  re- 
ceive those  bills,  it  is  a  great  deal  lor  the  kin^ 
to  |»ay  so  much  interest  every  day,  so  tbat  it  is 
better  for  his  majesty  to  have  them  all  paid  into 
the  hands  of  his  nfiicers,  aod  if  they  keep  tbem 
two  or  three  days  in  tlieir  hands  there  is  a 
profit  to  the  parly,  but  no  inauner  of  deceit 
to  the  king.     We  tlierelbre  stand  upon  it  thai 
it  was  a  legal  |iayroent  according  to  the  act 
and  procfaination.     The  opinion  of  the  offi- 
cers of  the  king's  revenue  shews  tliat  it  is 
no  deceitfid  payment.     Will  they  let  a  man 
that  hatb  the  king's  money  in  his  hand  |iay  in 
exchequer  bills?  jes,  becawe  tbere  is  no  deceit 
upon  the  king  for  so  doincr,  the  king  is  no  loser 
by  iU    All  tko<*e  roercbanU  that  ^d  exche- 
quer bilU  instead  «rf  apneas  and  milled  money 
may  have  informations  agaiiwt  tbem,  and  every 
one  of  tlie  comnnssi<uiers  of  excise  may  have 
infommti4»n8  against  tbcni  of  the  like  nature,  for 
the  thing  is  the  same.     U  e  took  not  those  hills 
whilst  lie  was  in  the  office,  for  tliose  he  to(»k  then 
weK  regukirly  indorsed,  all  those  complained 
of  were' taken  on  the  12tbday  from  D'Acosta, 
and  why  might  not  hetake  tbein  ?  If  any  man 
had  owed  money  to  the  king,  he  mif^ht  i>^  by 
law  andssk  those  that  had  exchequer  bills  to  lei 
him  have  them  to  pay  to  the  king  for  renewing 
a  lease  or  any  other  debt,  he  brings  tbem  to  the 
exchequer  and  they  take  from  him,  ttie  king 
has  hb  own  to  a  farthing,  and  the  receiver 
charges  himself  with  the  money. 

Sir  B.  Shower.  We  put  it  upon  them  to  dis- 
tinguisb  it  from  a  coll^rtor  of  the  excise  who 
hath  milled  money  of  the  king's  in  his  hand,  and 
let  them  shew  one  word  in  any  one  act  of  par- 
liament that  orders  exchequer  bills  to  be  paid 
in  upon  any  branch  of  the  revenue  btfore  they 
be  paid  into  ibo exchequer.    It  is  in  any  pay- 


1095] 


11  WILLIAM  lU. 


inent  whiterer,  and  the  (ellcn  wn  to  reoeiveiC. 
We  submit  it  to  tbe  jury  if  we  have  not  satiified 
their  information  by  Mr.  Cook,  and  contradicted 
Ptften  by  two  other  witneflses,  and  as  two  other 
eridcuce  swear  they  ware  not  with  him  that 
day,  they  ferity  Cook  and  falsify  Mr.  Peters. 
Mr.  PeUn,  Jt  was  to  the  best  of  my  opinion 
Rumoev  that  brought  roe  the  hilb,  but  oomine 
down  that  same  day  or  soon  after,  we  talked 
with  Stent  about  the  matter,  and  he  said  it  was 
he  and  not  Rumnev. 

Mr.  Sunt.  I  told  you  that  1  was  with  you 
about  three  bi-ders  of  court,  and  not  about  ex- 
chequer hills. 

Mr.  Attorney.  The  information  against  Mr. 
Dnncombe  is,  6ec.     We  have  prored  that  he 
was  cashier  of  the  excise,  tliat  he  received 
SO/KX)/.  in  milled  money,  that  he  was  ordered 
by  the  commissioners  of  the  excise  to    pay 
10,000/.  &c.  that  he  paid  7,000  odd  |iounds  of 
it  in  exchequer   bills  bought  by  him   from 
D'Acosta  at  6  per  cent,  discount,  and  that  he 
ordered  feigned  names  to  be  written  upon  the 
bills,  and  wc  have  proved  that  the  bills  were  in- 
dorsed with  false  names  as  if  they  had  been  re- 
ceiTed  into  the  rereniie  of  the  excise.     Mr. 
Peters  hath  sworn  expressly  that  he  took  them 
to  have  beui  received  iiito*lhe  revenue  of  the 
•seise.     Air.  Peters  hath  swurn  expressly  that 
lie  took  them  to  have  been  received  upon  that 
revenue,  he  understood  so  by  the  names  in- 
dorsed upon  them,  for  that  was  at  that  time  the 
usual  method,  und  thence  heconcluded  that  the 
persons  whose  names  were  iudorse<l  upon  them 
liud  paid  tluiiw    They  contradict  tliis,  and  al- 
ledi^e  the  (lilltTciice  l>vtwi.\t  the  bills  regularly 
indorsiMl  and  those  that  were  not  was  told  to  the 
teller.     If  that  be  made  out  to  the  satitituciioD 
of  the  court  I  know  not,  that  must  be  left  upon 
the  rriditof  that  u  itness  and  Mr.  Peters.     Mr. 
Peters  denie.<  it  t>ositively,  that  eitiier  Cook  or 
Mr.  Ouocoiiibe  were  there  that  da\ ,  and  swears 
he  did  not  see  Mr.  Duueonibe  tillatler,  so  that 
iJi>ok  is  expresMy  coiitradicte<l  in  all  bis  evi- 
dence ;  Mr.  IViers  expressly  denies  any  thing 
said  to  liiin  by  that  man  at  allf  il'Mr.  IVters  ma\ 
be  civdited  i'n  this  matter,  an«l  thoujfh  he  does 
not  say  pv»sitively  thai  Mr.  Onncond)e  or  his 
man   mmu  hiin  expressly  that  those  bills  were 
paid  into  the  excise,  yet  except  they  had  de- 
clared  the    eontiary,   the    oiiicer   iiiUht    take 
their,  so.     irthut  Le  so,  then  the  information  is 
j)r.i%idin  every  particular.     There  is  no  other 

tjurt  of  our  c.idenre  in  question  bul  thai  of  his 
laving  p:;id  tluin  into  tiieixche(pier  as  havini; 
come  ti:n.i:i;li  ilietxcisc,  Mr.  Dnneondie  knew 
it  plainly  iii,\l  niev  had  not  heen  <tt  p-t.d  in,  iiv 
ki:ew  ihcy  w*.re  l':dsely  indoiard,  and  that  liy 
hi.^o;v:i  linuclions  as  D'Aosla  s\\«ars,  that  h\ 
liisdiiv;Lii;».i  se\ci;tl  laUr  and  li  ii;nMl  nanus 
>\ero  v.To.c  upon  tliern.  It"  tins  I.e  pro\ed,  this 
ii»  an  jfii'uce,  liiey  c.unio;  Ki.\  it  is  no  crime. 

JSir  li.  ^ji'uiit  tr.  Ti.rit  dtjiiMnIs  upon  some 
ilanst  oi  tlic;u  i  read  t'>  yoni  l(>rdsliip,  by  which 
tho-  hi-'.s  mijfhi  ha\e  l»een  paid  hy  Mr.  iJun- 
toiiihe  i!i?)nj;li  ihey  had  never  l;een  received  in 
any  bi'auch  of  the  revenue,  the  Sud  cUuse  of 


TfialqfaarteiDukeambefetq.  [lOM 

this  Snd  act,  and  tbe  flrrt  act  lb.  131,  H  Sf- 
paais,  6cc. 

Mr.  Atiamty.  That  it  a  mistake,  thai  6mm 
is  in  the  first  act  that  makes  bUh  current  sni 
to  be  received  in  all  payments  by  oolkrAm 
and  receivers  only,  in  all  ac^h  aids  as  was 

£  "anted  that  session,  only  ezce^  the  3i.  aid, 
c.  They  are  bound  incMfd  if  any  body  com 
and  desire  to  have  milled  money  in  lien  of  bib 
to  exchange  them,  but  Mr.  Duncombe'smoaqr 
was  not  taken  in  upon  any  aid  of  that  iiMia, 
80  that  he  was  not  bound  if  anj  body  bsd  eoiM 
to  him  to  have  exchanged  their  ezcncqner  biUi 
for  money  ;  that  clause  does  not  extend  la  Hi 
case.  It  is  restrained  expreasly  to  the  dssH 
in  that  act  of  |mrliament  for  the  ease  of  Iki 
people  in  the  country,  the  act  aays  tbey  shodd 
exchange  bills  brongbt  to  tlicm  upon  sock  tfi 
sudi  aids,  but  does  not  extend  to  other  ai^ 
granted  that  session  of  parliament. 

Sir  B.  Shover.  Tbe  next  clause  b  upon  ik 
subsequent  act,  fo.  385,  theratbre  Mr.  Da- 
combe  might  have  paid  them  in  LXthcfwr 
bills. 

Mr.  Attorney.  There  b  no  ground  for  ttat 
Then  the  cUuse  was  recited. 

Thus  far  the  clause  makes  tbeoi  nvMl 
only  to  collectors,  receivers,  or  cooaii- 
sinners  of  any  part  of  the  revenue;  ikj 
are  made  current  at  the  receipt  of  excbc^, 
not  only  to  the  receivers  bat  from  thtiv- 
ceivers  to  tbe  exchequer,  it  waa  higblf  M^ 
sonable  they  should  be  able  to  pay  them  ■ii< 
charge.  The  lost  words  they  ground  Bf« 
are  *^  from  any  other  person  and  on  wliilM^^ 
<*ouDt  soever,"  hence  tliey  would  infer,  tkil 
they  may  be  paid  by  collectors  or  recenei 
that  receive  money  in  specie,  but  this  canMl 
be.  This  pnivision  is  thai  they  shall  pay  ihca 
into  the  exchequer  w  hen  they  have  received 
them  ;  they  shall  be  paid  by  those  reeciiei 
into  the  exchequer  ;  the  latter  clause  ilocb  Ml 
extend  to  collectors  or  receivers  but  tu  uj 
other  subject,  as  supjtose  they  are  a  fine  tVsi 
lease  to  the  king,  they  may  pay  it  id  fs* 
clie(|uer  bills,  but  receivers  may  nf>t,  IW  it  s 
other  persons ;  reoeivt* rs  and  collemort  are  bki- 
lioned  immediately  before.  This  cUiu>e  «ili 
not  iin|K)H-er  receivers  and  c«d lectors  to  p»y 
evcheipier  bills  f«»r  money  received  on  the  kinc* 
duty,  there  is  not  a  word  in  tbe  act  empoiNr- 
injr*  i-eceivers  or  collectors  to  pay  exrue^«« 
hills  into  the  exchequer  when  they  did  ooi  if 
ceivo  them  on  the  revenue. 

Thontrh  the  otfieers  of  the  exchequer  wfrt 
iu>t  bound  to  r(><^ei\e  exchequer  bills  thai  vM 
ni>t  indemnily  him,  if  this  payment  was  us* 
lauf'nl  and  made  to  procure  advantage  to  bia* 
si  It',  as  it  is  apparent  it  was,  for  he  got  S90iM 
ptKinds  by  it,  as  is  sw«»rn  by  D'Arosta,  »lW 
so  much  Iff  the  kini^N  mone\  he  (^ot  by  v 
nn  thtid  :  this  is  payin*^  it  deceitfully  ;  ^ 
sii(»uld  have  acquainted  them  with  thetmlhrf 
the  matter,  tliat  they  were  not  paid  into  iki 
excise,  and  then  if  "they  had  taken  tbfSi  it 
would  ha^ejns'.itied  him. 

Fur  the  proclaiuatioo,  it  b  no  largw  ibH  ^ 


k-^.  <1<3«9  Dot  explain  or  con^tnit;  it,  but  noiist 
^%:»3  ^?-crt  CO  the  same  eoostrucuiun.  As  to  the 
^v-^SA^  practice  of  mere  ban  Is  und  others,  if 
ft^^cl  been  allowed  by  the  treasury,  it  will 
K^&^vefore  foHow  that  he  sLioultl  do  it.  If 
^  'v^^^feiAld  imiiili^e  »ho»c  |>eo|jle  tb^is  that  hud 
^     "3^     tx>  pay  Ibr  the  l>€nt;lil  of  the  couiiivy,  it 


of  pet^ons,  that  when  brlh  were  returned  to  be 

fiatd  in  milled  tnouey  and  guld,  ihf  y  paid  ihetn 
notwithsitanditig  in  exchequer  biiJR;  it  wa»  per- 
mitted because  persons  retused  to  do  otherwise. 
It  was  the  kiu^s  iuterest  rather  Ut  ui«ke  an 
abatement  of  5  pr  ceot.  than  U»  sue  bo  many 
persouii^      Could  not  Ihe  king  have  given 


i»e  indulged  to  them  on  thiu  account,  but  i  iiiiich  money  to  D'Acoita  and  got  30a/.  by  it 


'ill  not  excuse  him.     VVe  have  provud  the 
lotion  as  tt  is  laid,  and  us  for  the  contra- 
**«^»:».     between  Mr.    Peters    and    jVIr»  Dim- 
**^^>^*©  servant,  it  most  be  kt\to  the  jury.     It 
^■^  uji warrantable  payment  and  a  iteceit  to 
^lig".     There  was  a  contract  made  for  ex- 
^ingt  exchequer  bills  upon    any    of  the 
but  that  is  no  help  lo  bim  that  makes 
c**^:judicial  to  the  kiu^,  for   ihe  king^  must 
^Hem  acoosideralion  tor  cvchau^fingf  ibem. 
^^^g^vates  tbii  ot^'ence  that  it  wu»  an  ad- 
"*J^^e  to  himself  and  a  prejudiqe  tolbe  kin^*. 
^T**  *Soiiciior,     The  defendants    have   said 
-b  that  13  not  proper,  ami  w  hteb,  if  there  be  a 
CI  aiiraiost  him,  we  shall  hear  of  ag^aio  at 
kcf  tune.      The   puint  now  in  dispute  is, 
ner  Mr.  Dun  combe  be  guilty  of  the  in- 
Mion   of  cAusin^  83   bills  to  be  indorsed 
the  name  of  D'Aeoata,  and  we  hove  prov- 
*  i  cau^io£r  i\mse  bills  to  he  indorsed.     We 
Hot  say   with   what  ilesi^n  this  was  done, 
we  have  proved  that  I  hey  were  pid  into 
,  --  *  excht  quer.    They  liave  a  witnejis  that  aays, 
*      ?***when  they  were  jiaid   in,   the  teller  was 

»^^  that  some  of  them  had  not  passed  Ihe  re- 
^^De  of  the  excise.  After  this  was  found  otit 
^y  the  officer  Ihey  would  have  hail  Mr.  Duu- 
^CM&be  take  some  of  ibetn  a^aia,  but  he  would 
%ot  Though  by  the  act  of  prliament  a  per- 
^tta  may  pay  thosi^  bills  into  theexchequer  upon 
biS  pri irate  accouot  as  a  tenant  or  debtor  to  ihe 
Iciog',  yet  when  he  pays  them  into  the  ex- 
cbtquer  he  ou(^ht  to  indorse  Ins  name  on  tbem, 
J  I'  the  peraon  ji^y  I  hem  to  the  king  as  having 
f  received  them  ou  tlie  revenue,  \\e  is  not  to  iu- 
dorve  h»s  name  onty  to  the  delivery  of  the  bill, 
liiit  it  ou^bt  to  l»eindorsetl  with  the  name  of 
Ibe  payet*' — ^Tbat  is  the  set.  It  is  plain  the 
kills  were  not  indorsed  with  the  name  of  iDun- 
oocnbe^  h^  did  not  pay  them  any  otherwise 
tbaii  as  casliier  to  the  excise.  If  be  paid  ibem 
;  m$  a  private  person,  they  ouirht  to  liave  been 
with  his  own  name,  and  not  with 
^  of  other  persons.  Nereis  the  evidence 
oftbe  fact,  as  well  as  the  evidence  of  .^Ir.  Peters, 
lie  did  ibink  they  had  been  passed  that  re- 
venue, liad  Mr.  Duneoiubii  iuieoded  to  pay 
tfnem  on  his  own  account  he  should  have  set 
hi*  own  nauie  ujiou  them ;  but  doing  the 
contrary,  it  19  plain  he  paid  tliein  in  as 
cashier.  If  Mr.  Duncomhe  had  been  met 
iPtFiih  here  in  the  hall,  and  had  ext^hfNiuer  bills 
tendered  him  to  be  exchanged  for  nmney,  he 
was  not  obliged  to  receive  tliem^^  he  was  not 
an  officer  hut  a  de|mty  of  the  commi^e^iioners  of 
OCifle,  and  discharged  taking  any  anch  bills  in 
iliiB  imne  of  the  comtuiaaiiHiers,  nor  wore  the 
eommiflsionera  bound  to  exchange  such  hUls 
Iwooght  to  them.     As  lo  the  frequent  practice 


OS  well  as  Mr.  Duncomhe,  why  might  not  the 
king  have  done  it  liimself  ?  It  is  not  to  our 
purpose  to  say  how  much  the  king  is  damnifi- 
ed ;  if  he  be  damaged,  it  is  sudicient ;  th« 
question  is,  if  it  be  not  a  crime  to  design  lk& 
damnifying  of  the  ktng.  They  have  adreii« 
tured  upon  a  point  of  law,  we  shall  argue  that 
afterwards, 

Mr.  Serj.  Wright,  It  is  admitted  that  Mr. 
Duficombe  kept  the  cash  of  the  excise  ;  that 
he  had  his  authority  fi*om  the  commissioners  of 
the  excise,  and  that  on  the  5th  of  May  he  re* 
ceifed  so  many  exchequer  bills,  t^he  next 
thing  is,  he  having  this  money  in  his  hand  wat 
ordered  to  pay  it,  upon  which  he  pays  in  ex« 
chequer  bills  to  the  value  of  7,0D0  odd 
pounds.  It  is  plain  that  D\4costa  was  not  tbc 
contriver  of  the  false  iudorsemenlST  ami  it  is  not 
denied,  but  Mr.  Duocombe  ordered  D'Acostft 
to  indorse  them  :  When  D'Acosta  questioDed  It 
because  of  his  own  credit,  Mr*  Buncombe 
found  him  an  expedient.  We  ditier  in  th»s» 
that  he  being  thus  ordered  to  pay  this  money 
into  the  exchequer,  he  pays  those  bills,  parcel 
of  the  money,  as  if  he  had  received  thein  in  Iho 
excise.  It  U  plain  what  we  meaa  by  indorte- 
ment. 

Tliey  would  excuse  him  thus ;  first,  that  he  i# 
not  guilty,  and  secondly,  if  be  did  pay  the  said 
bills,  that  it  is  no  offence  ;  that  he  i>:  guilty  of 
the  payment,  is  fiositively  proved  by  Mr.  Peien, 
GO  far  as  he  is  a  good  witness ;  and  so  Fern  says 
there  w&s  an  efisay  mftde  upon  bun  on  the  8th 
of  May,  to  have  bim  receive  them,  hut  he  hav- 
ing refused  them,  they  went  to  aooiher.  Mr. 
Peters  says  they  were  brought  to  him  as  so  much 
money  paid  into  the  excise.  If  Mr.  Dancornhe 
had  acquainted  him  or  had  not  acquainted  him 
so,  it  IS  not  material.  What  pretence  had  he 
to  make  a  payment  into  the  exchequer  at  that 
time,  but  in  lieu  of  money  that  he  had  received 
in  the  excise?  Jt  is  plain  he  paid  tliem  in  as 
truly  indorsed,  when  indeed  they  were  Jdady 
indorsed;  this  they  do  not  contradict.  Tbib 
an  to  the  legality  of  the  payment  they  inatft 
upon  ;  they  insmt,  that  hy  the  letter  of  the  act 
of  parliament,  ihey  were  made  current,  admit- 
ting them  to  be  as  general  as  they  would  have 
them,  if  they  extend  their  own  case.  It  it 
hoped  the  king^s  case  will  be  as  good  as  that  of 
a  private  man  ;  if  a  private  man,  Mr.  Dun- 
combe  or  any  other,  send  his  servant  from  the 
excise  lo  the  exchequer  with  10, 000/.  ia  milled 
money,  and  by  the  way  he  nu^els  a  liargaio  of 
cxohequcr  hills,  and  £0  gets  C>i  per  cent,  to 
himself,  and  his  master  loses  it,  would  any 
private  man  be  so  served  ;  if  any  man  send  hui 
servant  to  a  goldsmith,  to  receive  l,OlX)/.  m 
new  money  or  guiuea$>  and  he  buysexcheqiior 


L 


1009]      iiwuuAiftnL        awtf^cayfte  jiut^  j^  <y 


Unto 
■od  brimr  lum  MMt  ftr  Im  awcy, 
mcbtbitf  TlMraiiao 
^io  this  cue,  betwixt  Uie  kmg  tad  « 
pivatv  DHni,  ooly  the  act  malEei  Amb  emrciit 
m  ipyacot  10  the  king  and  not  to  other  peeple: 
H  m  9f  breoeh  ol  trust  ftr  any  men  bami^ 
of  mother  iii«i*e  io  Uo  baadiy  to  hay 
bilh  Olid  to  pay  them  iaalBail  of 
little  mooey  was  coRoM  till  daooriod 
byaotofpafliaiBeBt,  mppoae  any  man*!  aer- 
«attl  had  booflrht  Kttle  noiiey  witb  hit  maHer^ 
,  it  would  have  been 
.ftriMtaador 
HMKXML  in  apecie  which  carried  an  intrinaie 
ftthw  in  it,  he  boofi[fat  bilh  that  bad  not  the  ib- 
trinie  vahie  in  them  and  paid  them  to  the  Idttf. 
The  aol  intended  that  all  people  iadebtod  to  the 
Umt  Ibr  rant,  teanf,  eooMiB,  dee.  migbt  pay 
IhoUnff  m  that  coin,  but  doca  Mi  anthonsoaer- 
wrti  to  boy  np  other  apeeio,  and  to  pay  the 
Unff  m  tiiat;  Un  wae  Dancoanbo'a  eaae,  he 
kiptthe  kiBJfa /Bai^  and  difoited  the  meiiey 
■0  vaoMfod  ni  apedOf  brotwfat  op  eiaheyier 
Mi  at  a  diicoiint,  and  paidtheni  mto  the  es- 
alwferlnftaod  of  the  king,  and  therdbre  wo 
hapoMr.  DoAcombo  will  bo  Iband  goil^,  if 
Iho  ftet  b9  with  at.  That  it  la  ao  there  Si  no 
f  WBl  luaMu  todoobt ;  there  can  be  no  eompari* 
Mi'betwixt  Mr.  Petera  and  Cook;  Ibr  thoogli 
Owk  aaya,  Mr.  Dnncombe  deli?ered  them 
arilfe  hia  own  hand,  and  told  him  the  diteeooo 
of  the  billa,  Mr.  PMera  poatirel  V  deniea  it,  and 
makea  a  far  more  eonmleraMe  tonro  Aan 
Cook ;  the  thiogr  speaks  so  plainly  of  itself,  tbe 
truth  must  be  on  Mr.  Peters's  side ;  It  is  plain 
be  paid  them  in  lieu  of  money  received  in  the 
excuie,  which  justifies  the  information  to  be  li- 
terally true ;  it  is  plain  he  paid  them  in  so,  and 
we  submit  it  to  your  lordship  and  the  jury; 

Mr.  Serj.  Darnel.  A  great  deal  of  what  the 
defendants  have  said  has  been  improperly  moyed 
at  this  time  ;  they  ou^ht  to  have  reserved  that 
to  move  in  arrest  of  judgement:  we  hope  we 
sball  have  a  verdict  against  them,  and  then  they 
will  have  a  time  for  that  purpose. 

The  Defendant's  Counsel,  We  hope  not. 

Mr.  Darnel.  Your  plea  sets  out  and  con- 
cludes, that  the  name  is  not  falsely  indorsed, 
though  we  prove  it  is,  we  do  not  charge  you 
with  the  false  indorsing  of  the  day  and  the 
month,  but  with  indorsing  the  name  and  no 
more.  1  would  know  what  the  meaning  of  a 
false  indorsing  of  a  man's  name  and  by  so  many 
fictitious  names  is.  It  appears  by  all  our  wit- 
nesses that  the}'  took  it  to  be  indorsed  as  if  it 
had  been  received  from  the  excise. 

Cook  is  falsified  by  one  of  the  other  two  evi- 
dences in  every  particular,  and  one  of  them  in 
another. 

He  swears  Mr.  Duncombe  gfave  Mr.  Peters 
tbe  bills  with  his  own  hand  ^  Mr.  Peters  utterly 
denies  it,  ^c;  but  that  we  must  leave  the 
jury  to  judge,  whether  Mr.  Cook  falsifies  Mr. 
Peters,  or  if  Mr.  Peters  falsifies  Mr.  Cook. 
The. defendant's  counsel  justifies  his  receiving 
10,000/.  io  money  and  paying  it  in  eichequer 


thminthoaoti 
■at  one  word  in  any  i 
brancfat  to  theolBeeon  a  I 
bat  this  will  not  extend  to  a  I 
hiir  i*«>  aiMl  iMUiV  vao  of  tho  hii«<  4M* 
to  hay  thorn.  The  tot-tBiavoowaaaMOMV 
by  Mr.  Attar»ey,  it  mrtenda  to  tho  lauiiiMi  # 
theaMhil09r.  '^ 

They  offnr  that  it  wna  beneAcial  to  theUtf 
It  waa  for  the  kug^  ndvants^loalspteWW  ^ 
restof  theemhemwrbiili.  bottbnoi 


biOaeannotbo  tunk  tilltlMy  bopudin^ftf 
the  fond  from  which  tfaay  I d  -^ 


Mr:  Gonyen. ' 

thinga  opoirMr. 

noBrBtwDal 


net  oontrovortod,  that  ho  Ail 


itwaaagainto 
tholong:  ho  gains  51.  per  cent ;- bo 
^51.  per  cant  whioh  wni  n  pflndjen  fc' 
kmg;  Ibr iftUambBijhlrioomo into «•< 
chequer  fa  ■paeio,  thoaothat  had  daw   "^ 
the exehefnerimglit  hare  pnidapae 
to  anawer  their  daoMUMb.     Tbay 

of  intmat  k  bomilcid  to  Iho  U^i 

biUainateadof  I 
paid  faiotfio«i 
per  cttit  theroiaalamtotlmkiaf  ofM 
oeiit.  ThtewaadolMalthat  tivb  fcyiWl 
was  an  officer,  thoogii  not  at  the  aetiw^ 
payment,  yet  be  received  the  money  wbci  hi 
was  an  officer,  and  next  he  paid  those  enbc^ 
bills  as  if  they  bad  been  reserved  upas  Ai 
excise,  which  we  most  leave  to  tbe  judgnoittf 
your  lordship  and  the  jury  upon  oorevidaMU 
He  brought  them  in  three  sep^rale  pareeh.  k 
is  not  said  that  some  of  them  were  actosHy  fiB 
into  the  excise  as  they  say,  but  theoffieeradi' 
ally  receives  and  takes  them  as  oaid  frsm  Ai 
excise,  and  takes  them  particolarlyinbiibMk; 
so  that  it  is  plain,  be  that  took  them  st  iM 
time  did  think  them  paid  in  for  excise;  thi 
as  to  the' indorsements  upon  the  bill  tbttdwy 
were  falsely  indorsed,  and  done  so  by  bitdiMe' 
tions,  we  nave  fully  -proved  ;  there  was  * 
settlement  at  that  time  what  rate  they  were  tiki 
paid  at,  they  put  first  tbe  name  upon  tbti^ 
and  afterwards  what  they  tbouffbt  proper,  » 
D'Acosta  gives  evidence ;  So  that  it  is  phia  • 
was  a  false  indorsement  and  dono  by  Mr.  Dm* 
combe's  direction.  ^ 

As  to  their  plea  from  the  act,  lb.  384,  it  oi 
not  admit  of  any  such  construction  as  they  f^ 
upon  it,  whatever  is  said  of  collectors  asa  W 
ceivers  it  will  not  extend  to  any  man  that  MT 
received  tbe  king's  money  to  allow  bin  ta  |^' 
exchequer  bills  for  it.  '-'^ 

They  say  it  hath  been  done  by  several  stht^ 
but  if  80,  it  is  a  faolt  io  them  aod  no  sacemt 
him.    They  are  guilty  perhaps,  and  saiif 
they  are  all  ofienders  upon  one  act  of  |M 
ment. 

Mr.  Cooper,  My  bird,  it  ia 


BIJ 


Jhrjdu  indoning  of  Exchequer  Bills.  A.  D.  1699. 


[IIOS 


etitioD,  bat  I  shall  abuse  your  lordship's  in- 
genoeas  little  as  I  can.  iind  it  been  a  parallel 
e  to  that  oft'  coin  it  would  have  given  us  light 
lee  into  the  nature  of  this  offence.  But  tVom 
I  act  read,  those  bills  are  not  to  be  sold  to  sup- 
r  the  room  of  money  in  all  eases,  but  at  first 
ii  narrow  limitaiions,  and  afterwards  with 
uutions  again ;  the  first  issued  were  issued 
DD  tinking  the  fund,  the  capitation  act,  the 
id  tax,  Ss.  aid,  and  to  be  sunk.  Tlie  first 
Iginal  of  those  bills  were  to  be  received  in  no 
icr  aid  or  tax  but  that  on  which  they  were 
M  issued. 

Then  this  provision  was  further  made,  that 
cavers  and  collectors  of  those  funds,  if  any 
;  tbem  had  money  in  their  hands  rising  from 
ne  aids  and  revenues,  it  is  limited  to  them  in 
le  1,500,000/.  act,  &c. 

Nona  of  these  so  authorized  to  make  such 
lebange;  no  other  but  those,  that  those  provi- 
Msare  made  u|K)n  can  make  such  exchange 
y  the  recited  clause  of  the  act.  What  a  ridi- 
■kos  care  it  would  have  been  in  the  parlia- 
■m  to  keep  the  execution  of  the  act  in  the 
Ittbof  the  lords  of  the  treasury,  if  it  was  in 
k  power  of  receivers,  collectors,  &c.  to  substi- 
me  another  sjiecics  in  the  room  of  money.  To 
ifcroe  Mr.  Attorney's  exposition,  the  SS9th 
*|e  of  the  2d  act  in  every  paragraph  makes  a 
iliiiction,  considering,  &c. 
The  interest  stops  when  paid  unto  anv  re- 
Bnrcr,  collector  of  .the  aid  tax,  &c. :  shall  that 
fearer  and  collector  keep  that  in  his  pockets. 
Id  1,000/.  at  tlie  same  time,  and  then  clap 
«K  bills  instead  of  money  into  the  exchequer? 
kii  moat  be  tolerable,  if  that  which  the  gen- 
fiOieo  of  the  other  side  say  be  law,  for  the 
iledora  in  that  case  may  keep  the  king's 
Ooey,  make  use  of  it,  and  when  the  day 
VMS,  pay  bills  into  the  exchequer  instead  of 
e  kii^s  money. 

Pkvug  into  the  hands  of  the  public  receivers 
coileotors  is  the  paying  of  it  to  the  king, 
kcr  the  king's  officer  hath  it  in  his  hands, 
^  will  say,  it  is  profit  indeed  to  our  client  but 
k  dindrantage  to  the  public,  but  that  will  not 
tagctber  excuse  it,  the  faster  these  bills  came 
lo  the  exchequer  the  faster  they  issued  out  in 
■ebaige  of  tallies,  to  that  it  was  as  much  to 
•  edvftntage  of  Mr.  Duncombe  as  it  was  to 
«  detriment  of  the  public. 
The  question  of  fact  between  us  is,  if  Mr.Dun- 
inbe  boii|(ht  these  bills  on  a  discount  in  order 
'  make  this  payment,  and  if  he  ordered  a  false 
doraement  witli  feigned  names,  and  if  all  their 
iCcui  cuggcst  no  other  cause  fi)r  these  names, 
)d  if  it  appear  that  he  sent  his  servants  with 
low  UIU  to  discharge  a  charge  u|ion  him  on 
le  aoeount  of  the  excise,  it  must  ap|>ear  to  lie  a 
led  upon  the  puUic,  sup|»o8e  on  the  |M)int  of 
wdit  betwixt  HI  r.  Peters  and  Mr.  Cook,  though 
•boukl  be  in  the  opinion  of  the  jury  against 
■»  it  will  be  BO  colour  for  them  to  acquit  H^lr. 


Seppose  Mr.  Duncombe  had  brought  them 
Tfm  toe  exchequer  indorsed  as  paid  into  the  ex- 
■H^  M  il  IP  plain  ha  didp  tupposa  he  found 


himself  disappointed  at  one  place  and  then  goea 
to  another,  wdl  that  excuse  him  ?  they  speak 
as  if  the  fraud  were  in  Mr.  Peters,  as  it  it  were 
so  that  Mr.  Peters's  fraud  could  sanctify  this 
matter;  though  he  had  trusted  Peters  With  the 
thing,  as  it  looks  like  something  of  this :  that 
the  leaving  out  of  the  date  and  putting  nothing 
but  the  name  was  a  temptation  to  any  clerk  of 
the  exchequer. 

X.  C.  J.  That  is  not  in  your  information. 

Mr.  Cooper,  No,  nay  lord,  it  is  not,  but  sup- 
posing the  privity  of  Mr.  Peters,  it  viould  not 
justify  Mr.  Duncombe ;  they  insist  upon  his  not 
being  an  ofiicer  at  the  time  of  the  nay  men  t, 
but  as  he  was  keeper  of  that  cash  and  bound  by 
articles  for  the  performance  of  his  trust  till  he 
made  his  last  payment. 

Mr.  Montague,  I  shall  only  crave  a  word  aa 
to  Peters's  evidence ;  suppose  what  Mr.  Cooper 
has  said  to  be  true,  and  supposing  that  what  the 
other  side  says  gaiu  credit  with  the  jury  that 
Mr.  Peters  be  guilty,  and  Mr.  Duncombe  not 
guilty  in  that  point.'  If  Mr.  Peters  took  them 
from  him  as  from  Mr.  Duncombe  and  not  aa 
cashier  of  the  excise,  and  by  him  received  upon 
the  branch  of  the  revenue.  If  D'Acosta  had 
paid  it  to  him  as  to  BIr.  Duncombe  and  not  aa 
cashier,  and  if  Mr.  Duncombe  had  paid  it  in  aa 
a  private  man  he  should  have  pdt  his  own  name 
and  not  D'Acosta's  to  them.  We  charge  him 
with  having  made  the  payments  as  from  the 
excise,  leave  out  Peters's  testimony,  wc  need  it 
not  for  that,  for  it  will  plainly  api>ear  there  waa 
a  discharge  given  to  Mr.  Duncombe,  as  if  1^ 
had  paid  it  as  coming  through  the  excise. 

L.  C.  J.  It  was  never  the  iuicnt  of  the 
act  of  parliament  that  the  king's  cashier 
should  keep  the  king's  money  to  buy  bills,  and 
then  pay  tliem  in  as  if  he  had  receivcti  tbem  on 
the  revenue ;  the  law  does  not  allow  receivers 
to  convert  the  king's  money  to  their  own  use 
and  to  pay  it  in  paper,  but  that  cannot  be  well 
and  therefore  yoii  gentlemen  who  are  counsel 
for  the  defendant,  and  have  urged  this  as  a 
lawful  payment,  we  are  all  of  opinion  that  the 
law  is  i^inst  you.  Mr.  Duncoml>e  being  the 
king's  cashier,  and  having  specie  in  his  hand, 
and  he  to  pay  7,800  odd  pound  in  exchequer 
bills,  whereof  he  hath  converted  the  money  to 
his  own  use ;  this  is  a  crime,  but  whether  he 
be  guilty  of  iter  not,  we  must  leave  it  to  the 

jury. 

The  information  is,  that  being  ]K>s5)essed  of 
10,000/.  of  the  king's  money,  that  he  paid  ex- 
chequer bills  into  the  exchequer  f(»r  it,  that  is 
tlie  question,  if  Mr.  DuncomlK.  be  guilty  of 
this  crime  as  laid  in  the  inforinatinn. 

8erj.  Darnel.  With  submission,  my  lord, 
that  is  not  the  question. 

L,  C.  J.  It  is  ;  I  have  read  the  brief. 

Judge  liookthi/.  There  is  i|0  evidence  of  any 
bills  when  the  uiuiter  was  so  indorsed  on  these 
bills. 

L.  C.  J.  FIc  paid  them  in  as  if  received  by 
him  into  the  excise,  that  is  the  point. 

Mr.  Muntafpic.  He  paid  them,  in  as  paroel 
of  that  sum. 


1103] 


11  WILLIAM  III. 


h*  C*  X  Tt  b  6Eiifi  he  paid  ibem  oc  at  &c« 

Mr.  3l(Hi^*i|r«'tf-  §u(>|»t>fte  that  be  Idt  out. 

J  uclge  TVrf on t  Th e  iodorspment  goes  tin] j^ 
to  tlve  natue. 

Judlffi  Riwlc*l»sf.  As  to  tile  iDatier<»f  bir,  if  it 
ipjiear  that  there  is  an  atff  nee  with  in  thli  iti* 
formation,  b^  tbat  lie  is  oat  only  com plui tied  of 
MM  n  nubject  [iijuriaTi^  t»  liis  anvereiifii  but  as  a 
wsryaat  itijurintis  to  his  master*  He  wjii.^  tO' 
IrtiHietl  >VLih  the  kind's  moaeytjuid  wb^o  he  re- 
ceived it,  defVawdeit  bi<t  master  and  paid  it  iu, 
that  thiit  h  less  than  the  iniiinsic  talue,  for 
Wbat  be  paid  to  the  king-  (br  100/.  was  btU  93/. 

/«,  C.  X  That  is  true,  but  is  that  id  the  in- 
Ibrmation  f 

Attotftcr  Judge,  That  g^eneral  clause  cannot 
extend  to  Mr,  Duncoaibe,  for  if  it  could  be  so, 
he  tuigbl  have  as  well  paid  the  tnotiey  J  4 
tnotilbs  af\er  aa  wheu  he  did^  he  mtght  have 
kept  Ibe  monej  and  alLc^dged  the  act^  but  that 
he  dill  not. 

L .  C  J*  Oentlemen  of  t  he  j  ury » th  e  chargfe 
agaimt  Mr,  Dunoombe  h  fbr  traud  aiHl  deceit 
against  the  kins;.  It  sapposes  thai  he  vi^-as 
ca^liier  of  the  excbef  and  as  such  received  a 
Ifreat  sum,  beiti^j  possFSsi?d  to  the  value  of 
50,000/.  in  miUed  mnfiey.  He  firalt  i^jth 
D^leosta  ^i*rexche^]ilerbiUs^  for  r,000  and  odd 
pounds,  those  be  hou^bi  from  Mr,  [I'Aeosta 
%t  hL  per  cent,  fliteount:  thi&  a;>pears  upon 
evidence,  bit.  m  iu  tbe  inforroatiou,  and 
he  ia  cbnr^ed  vtiih  |>ayin^  in  Ibo^e  bjlla  into 
the  exchetjuer,  as  heiog-  trulj  indorsed,  and  as 
if  he  had  received  tbeno  ufion  that  branch  of 
the  revenue*  The  question  is,  if  he  be  guilty 
in  such  a  maimer  as  he  is  charged.  The  pre- 
limioartes  to  it  arc  proved »  as  that  he  was 
cashier  to  the  eitciie  on  the  4th  and  5th  of 
May,  1697,  and  that  he  wasi  turned  out  on  the 
Tth,  and  thai  be  had  this  money  in  hia  h^nd 
la  pliiinly  proved. 

That  be  did  euntraci  iviih  D'Acosinis  proved 
by  D^AcDsta  bim^lf  It  seems  that  D'Aooata 
bad  contiacteil  iviiti  the  commissionera  of  the 
treasury  tor  paying  money  beyond  sea  for  the 
ktDLS  and  vrai  to  have  ibe  vaUte  of  hii  bills  in 
exebec|uer  bill«f»  This  contract  was  made 
tome  time  lielbre,  nnd  he  had  alloTranee  ac- 
Cflnlinglv*  because  it  vrat  to  ilepend  upon  the 
credit  of  HO  aet  of  parliament.  He  says,  he 
did  ^ve  fur  those  hiJU  bdk  uf  e3fchan;p^,  and 
baTini|^  occasion  for  money,  be  came  to  Mr. 
Uuncombe  to  know  if  be  won  Id  buy  any,  aOer- 
wards  he  dealt  with  him,  and  let  Mr.  Dun- 
eomb<*  have  those  btUs  on  the  12th  of  May, 
Mr,  Duncambt?  n^re^m^  with  him  for  money 
at  ibe  di>^connt  of  v^L  per  cent,  and  odd 
money.  Th«n  Mr.  Dnticombe  desireil  him  to 
let  hia  hand  upon  the  back  of  the  hill,  which  he 
did,  but  heffiimmg^  to  reject  upon  bimst^lfthat 
be  should  ftirfeit  his  credit  with  the  lords  of 
the  treii,<3ury  to  discount  so  many  hills  in  so  little 
time,  he  wds  uuwilliuj;  to  set  bis  hand  any 
furUier,  upnn  whkh  Mr.  i>um^am)>e  bid  him 
let  any  name,  he  did  s^o,  and  Mr.  Dun  com  be 
had  the  hilla,  and  he  hi.s  money. 
ThoM  bdb  were  afler wards  brought  ta  Mr,  | 


Fetera,  a  teller  in  the  office,  and  *efe  r 
by  bim  tor  f.OOO  and  odd  poautlt,  hn\ 
they  came  tiiitber,  a  servanl  of  A(r* 
oombeU  comes  to  him,  &ayi  Fenn  »i 
couniea  bim  on  Mr.  Drmcumbe''i  icicoun 
paTingJin  those  eiicht^u^r  bit  is,  and  asle 
if  fie  wtiuld  receive  th^m,  he  say^  no,  h 
not  think  they  had  circulated  tb rough 
ciae  in  an  short  a  time,  tod  tJicrel'vre  hi 
nqt  receive  them,  Mr.  Duncnmhe^i  sem 
they  had  not  bcefi  paid  into  the  excii 
wail  ^imt  days  before  they  were  paid  ii 
Peters^  and  supi>osed  to  fiare  t>een  ati 
by  way  of  pr«|>aration  for  wh^t  was  doe 

On  the  12tb  of  >Iay,  the  exchange  in 
betwixt  Mr.  Doncombeand  Mr.  DUoiM 
Peters  says,  that  Mr.  Diuicofube'saervai 
inio  hiaotiiee  vvith  Ihoie  biHa,and  gave 
the  pBrtici liars  ibey  were  recetf<^  <bi 
Peters  gave  them  to  his  aei^ant  lu  kw 
and  be  Innked  all  of  ihrra  over^  he  laj 
were  not  indnr«ed  v*ith  the  tlay  of  the 
but  only  with  a  name,  so  «ay«  D^Am 
look  It  for  granted  ibey  bsfl  been  ptt 
the  excise,  and  thcreopon  cbarsjei  himii 
the  receipt  of  to  much  money,  struck  a 
and  discharged  Mr.  Duncombei  after  ihu 
dis/!ovcred,  that  liiosc  bitla  were  not  pai 
the  CJEcise  ai  they  seemed  to  be»  truly  i 
it  wilt  be  damage  to  me,  I  shall  be  a  ii 
and  therefore  desires  I^lr.  Duncomb«  t 
them  again.  No,  say  a  Mr.  Duncombe 
not  obbged  so  to  do.  J  have  got  a  laity 
discharge,  and  will  he  concerned  ao  fi 
Peters  say»  it  is  a  damage  to  bim  off. 
hatb  totd  you  they  were  in  three  parcels 
of  the  excbcijuer  bilta  be  found  ri'gulii 
dorsef]  as  paid  actually  into  the  eact»e,  ao 
were  put  up  into  a  ehe^t  with  a  cotc 
tbeni,  indursed  e^rchequer  bills  upon  the* 
They  JuLUid  an  omission  of  the  day  wbc 
were  ^aid  in,  and  indorsed  several  of  ihei 
sup  pi  led  that  omisHJoii,  This  \%  the  sut 
of  the  evidence  to  induce  you  to  twhef 
Donrambe  guilty.  First,  6&y  they,  ht^re 
fraud  in  Mr.  Duncombe  la  convert  ttie 
money  to  his  own  u«e  and  in  pay  exd 
bili^  in  lieu  of  money.  Tben  tb«re  «%s 
tempt  made  belore  on  the  clerk  of  tbe 
where  Mr.  DuncomWs servant coiuw 
if  he  would  be  put  upon,  this  waa  hdk 
agreement  with  JJ'Acosta^butin  pro«jiQct 
are  to  s u p pose*  U u t  of  il>e  tru ili  whenf 
must  judge,  and  then  he  comes  v>  Felet 
supposed  them  io  be  rem  veil  in  the  excti 
accordingly  Mr.  OuiienmlM  was  diaehsfi 
so  much  money  ai»  paid  nut  «if  the  exdie 

The  defendants  say  IVIr,  Dunoumbe  hi 
done  an  ill  thing  in  poitit  of  law,  takittf  i 
truei  that  Mr.  Duucombe  paid  thoae  biHl 
much  money  j^aid  into  the  ej^dse  they  i 
might  have  paid  it  in  bilU  received  OQ  aaj 
account.  If  so^  he  that  hatb  tbe  kiiig%l 
iufiteaif  of  tbe  individual  money  [lay  enl 
bills.  This  is  atfeck^d  to  he  \%w^  Iput  I 
court  is  of  another  opinion.  W#lllUi 
b«ea  more  reftsouable  tbr  them  tolii 


tem  toliM|| 


•J 


TruU  of  Spencer  C<mper  and  others. 


A.  D.  1699. 


[iioa 


he  kw  would  MTer  allow  the  king't  re- 
r  to  go  awa^  with  the  kiog's  money  and 
irt  it  to  their  own  use,  but  when  those 
itors  have  received  these  bilb  and  pay  them 
mey,  then  they  took  them  for  money  and 
but  reasonable  they  should  be  aNowed  to 
hem  to  the  king  as  money,  but  the  con- 
was  never  the  meaning  ot  any  act  of  par- 
nt ;  therefore  we  are  to  expunge  all  that 
rf  the  defence  out  of  the  case,  and  must  say 
such  a  payment  cannot  be  just  in  law. 
e  offence  laid  in  the  information  is,  that 
lid  in  so  many  exchequer  bills  as  if  tbey 
een  paid  into  the  excise.  They  say  Mr. 
■ft  is  mistaken,  all  those  bills  brought  by 
>uncombe's  man  were  not  on  that  account, 
swears  he  brought  the  billn,  and  ihat  Mr. 
x»mbe  was  by  when  he  brought  iu  three 
Js,  and  he  gare  Mr.  Petera  a  jmrticular 
mt  what  those  bills  were,  he  says  that  for 
)  and  odd  pounds  they  were  indorsed  as 
ioto  the  excise,  and  he  gave  an  account 
lers  that  those  bills  were  actually  received 
be  excise,  and  that  there  was  no  question 
1  the  other  amounting  7,800/.  paid  as  part 
1 10,000/.  Cook  is  positive  as  to  this,  he 
by  Mr.  Duncombe  at  the  time,  if  so  there 
freat  alteration  in  the  case,  though  it  was 
4t  in  Mr.  Duncombe,  to  convert  so  much 
Vf  to  his  own  use,  yet  it  is  not  the  fault 
B  the  infonnatioo. 

aiher,  if  the  evidence  Cook  swears  true, 
lib  being  in  several  (larcels,  if  Mr.  Dun- 


combe had  a  mind  to  pay  them  into  the  ex« 
chequer  as  tliey  had  been  paid  into  the  excise, 
why  in  different  parcels  ?  here  is  a  plain  dis- 
tinction in  this  circumstance  they  insist  upon 
to  falsify  the  evidence  of  Peters. 

Here  again  there  are  two  other  of  Mr.  Dun- 
combe's  men  called,  Mr.  Peters  says  it  mmt 
be  one  of  tliem  that  brought  him  the  bills,  but 
they  both  swear  that  they  never  paid  any  ex- 
chequer bills,  they  don't  remember  they  were 
at  Peters's  office.  Peters  says,  he  did  see  Mr, 
Duncombe  at  that  time,  bui  that  lie  saw  him 
afterwards  in  the  hall  but  not  at  that  time,  this 
is  a  plain  contradiction  to  the  evidence*.  We 
must  leave  it  to  you  gentlemen  of  the  jury, 
upon  the  whole  matter,  whether  you  be  satis- 
tied  that  Mr.  Duncombe  is  guilty  of  the  crime 
or  not  as  laid  in  the  inforniatkin.  If  he  paid 
those  hills  into  the  exchequer,  as  if  they  had 
been  fu'st  paid  into  the  revenue  of  the  excise  tor 
sojmuch  money.  If  you  lie  satisfied  he  did,  you 
must  brincr  him  in  guilty,  but  if  you  be  satisfied 
that  he  distinguished  between  the  bills  and  tokl 
Mr.  Peters  what  bills  th^y  were,  you  are  to 
bring  him  in  not  guilty. 

The  Jury  did-  immeiliately,  without  going* 
from  the  bar,  bring  him  in  Npt  Guilty.* 


*  **  This  is  a  copy  of  the  frial  of  Cliarles 
Duncombe,  esq.  taken  June  17, 1699,  when  he 
was  tried  before  tlie  lord  chief  JMstice  Holt  at 
the  King's-bench  bar,  Westrainstei^. '  Testified 
by  me  George  Ridpath." 


I.  The  Trial  of  Spencer  Cowpeu,*  esq.  Ellis  Stephens,  Wil- 
liam RoGEus,  and  John  Mauson,  at  Hertford  Assizes,  for 
the  Murder  of  Mrs.  Sarah  Stout:    11  William  III.  A.  P* 


1699. 

July  16,  1699. 
edamatioD  was  made  for  all  persons  con- 
rfto  attend. 

.  ef  Ar.  You  good  men  that  are  em- 
ailed tDenqntr^,  6ic,  answer  to  jrour  qames, 
Mve  year  fines.  Then  Ellis  Stephens, 
am  Rogers,  aod  John  Marson,  bein^upon 
mdanation  was  made  for  them  to  attend, 
I  Dbey  aeooidiDKly  did ;  and  Mr.  Cowper 
noght  into  court  bv  the  under  sheriff. 
^J^r,  Speooer  CSowper,  hold  up  tliy 
(Wbieh  lie  did.)  John  Marson,  bpld  up 
nd.  (Wbieh  he  did,)  Ellis  Stephens, 
ip  thy  hand.  (Whioli  he  did.)  William 
ra,  .hold  up  thy  hand.  (Which  he  did.) 
^Atr,  *  YoQ  stand  mdicted  by  the 
«t  of  Spenoer  Cowper,  late  of  the  parish 
3l  John's  in  the  town  of  Qertibnl,  in 
CMiily  of  Hertford,  esq.  John  Marson, 

Hr,  Cowper  and  Miss  Stout  are  theMoMo 
•an  of  Bin.  Bfanlcy 'a  New  Atalaotis. 
L.  XIII. 


bite  of  the  parish  aforesaid,  in  the  county 
aforesaid,  gent.  Ellis  Stephens,  late  of  tlie 
parish  aforesaid,  in  the  county  aforesaid* 
g^nt.  and  William  Rogers,  late  of  the  parish 
aforesaid,  in  the  county  aforesaid,  gent,  for 
that  you  not  having  the  fear  of  God  before 
vour  eyes,  but  being  moved  and  seduced  • 
by  the  instigation  of  the  devil,  on  the  iSth 
day  of  March,  in  the  1 1tli  year  of  the  reign 
of  nis  present  majesty,  by  force  and  arms,  &c, 
at  the  parish  aforesaid,  in  the  county  afore* 
said,  in  and  upon  one  Sarah  Stout,  spinster,  in 
the  peace  of  God  and  our  sovereign  lord  the 
king,  then  and  there  being,  violently,  felonif 
Qusly,  voluntarily,  and  of  your  malice  afore- 
thoufriit,  did  make  an  assault ;  and  that  you 
the  aforesaid  Spencer  Cowper.  John  Marson, 
^llis  Stephens,  and  William  Rogers,  a  ccr« 
tain  rope  of  no  value,  about  the  nerk  of  the 
said  SJrah  then  and  there  feloniously,  volun- 
tarily, and  of  your  malice  aforethought,  dkt 
put,  place,  fix  and  bind ;  and  the  Mok  and 
throat  of  the  said  Sarah,  then  and  thare  witli 
4B 


iWQ         UWnXUMIIL 


finfiosafbre-tboagiit.  Hi 


•  gllpe  I  .and  ditl  T0«  tiM  iiM  SMMte  0«PMr, 
«Mi  Jfawa,  BUM  StolNM,  1114  WWUm 


•^MiMoff  m4  fripuur  «f  the  MMk  Md  ftiMl 
iiFAe«& amkiviSi the UiOi^f  jFW  llw 
Mid  BpwMMr  Ctowpir,  J«ha  lliiWB»  SSim 


and  WiiSMi  BMki,  «lM»  M 


ywinSin  aAitt-tlMiasliC,  dM  dioiik  wid 
Iflli^^ife  2  •  bv  MMm  ^whkdi  ohMkinff  SBd 
"    iTlMrtWMidStiah'"       ' 


fc^y«« 


Md  flpniMrCoimr,  J.  MMm, 
Imm»  ADd  W.  Ikgmv  Willi  tiwMM 
Aaacflkaf  the  add  OMili  ■»»■>■■ 
odHrdM 

MldttffMt 


iftfMI 


y*"fr 


aforatida  in  the  county  aformid,  in  manner 
and  ^Mn  ybresaid,  felooioiisly,  Tohintaril^, 
and  of  your  malice  aibre  thought,  did  kill 
and  murder;  and  the  said  Sarah  Stout^  as 
aforesaid,  by  you  the  said  Spencer  Cowper, 
John  Marsoa,  Ellis  Stephens,  and  William 
Hogers,  feloniously,  voluntarily,  and  out  of 
your  Budka  afore-thought,  choaked  and 
strangled ;  into  a  certain  river  there,  being 
called  the  Priory  River,  then  secretly  and 
maliciously  did  put  and  cast,  to  conceal  and 
hide  the  said  Sarah  Stout,  so  murdered, 
'affaintt  the  peace  of  our  soverdgn  lord  the 
JuJig,  his  croirn  and  dignity,  &c.' 

Bow  sayest  then,  Spencer  Cowper,  art  thou 
gnUtv  of  the  felony  and  ronrder  whereof  thou 
ilaiidest  indicted,  or  not  guilty  ? 

Mr.  Cowper.  Not  Guilty, 

Ct.  cfArr.  Culprit,  how  wilt  thou  be  tried? 

Mr.  Cowptr.  By  God  and  my  country. 

Cl.^Arr.  God  send  you  a  good  deliverance. 

[Then  the  other  three  pleaded  Not  GuUty, 
•Dd  put  themselves  open   their  comtiy  m 
aibresaid.] 


Then  Pn^mation  was  made  fiv  iofbrma- 


C/.  qfArri^wx  the  prisoner  at  the  bar, 
Iheae  men  tbil  yon  sliall  hear  called,  and  per- 
•ooally  appear,  are  to  pass  between  oar  sore- 
i«i|[n-|ora  the  king  and  you,  upon  trial  of  yom* 
■erani  lives  and  deaiha ;  therelhreif  you  w3l 
MDaOraMjof  themy  yoortinieto 


ftralL 

thatr-x^Hiojierf.  Yespjcs. 

fThm  dte . ^_ 

«rtlMlEk^a^or«ha 
afdUjiii^affbt 

.  Cbwper,   tf  your  totiMip  pieaw,  cbt 
II  now  gome  Ihneugh ,  1  desir«  t^cy  laif 
ime  legal  catsse  foril»eir  eballengn* 
Mir.  Jotiej.    I  ctme^if  e  we  that  are 


ftrthl  kkig  are  not  bound  to  i^weny  cm 

ar  Iha  (raus«  b  sudden  t,  if  we  My  Ibif  «vv' 
~  Ibr  the  kin^,  and  ibtt  is  adowel  ft  III 
abuse  of  challenge  \  *'^r  wiiat  other 
aaa-we  shew  iu  \\m  cioe ?    Xqu  siv  niti 
sbawyoiir  cause^  i,'ouclia.Ueiig«pereaiptoiilfF 
airiaiiis  case  the*kitig  does. 
'  Wki*  Cimiter.    j^ly  iofd,  I  Maud  at  tbc  IM 
amnf  dif advantage,  to  eneoimter  «^efld^ 
J  that  hath  do  cotJCi?niai6Dl  i  hut  liswvi^ri 
I  do  take  it  for  taw,  that  there  mujt  be  i  riM 
■bimtdt  and  that  catiM  mtuBt  be  a  legal  «h, 
and  what  that  ti^nae  Is  tliey  mnmt  cKliiBlr 
make  out.    1  do  Itnnk  it  ought  to  appeatiii 
there  h  some  relatioD^or  some  notorioQi  ift^ 
tion  or  friendiluit^  or  someibiiig  of  IktMli 
or  otherw  ise  it  is  not  a  legal  oanse  of  itekipl 
and  if  tbe^^  seem  to  be  any  difiicallf  ii  ■  ' 
particular,  1  hope  your  lonkhip  *ilU 
counsel  tA  argue  it  wtlh  Ihtr  king's 

Baron  HalstH.  Mr.  Cowper,  you 
under  such  dbadrantage  as  men  as 
that  stand  where  you  now  do.  Von  bare 
educated  in  the  stuify  of  the  kw,  and  iiitf^ 
staad  it  tcry  welL  I  have  aeretal  tisMMi 
how  you  have  matiag^  vourdiesJiaAMi 
their  advantage.  At  Tor  this  natter  of  M- 
lenge,  Mr^  Jonefl,  I  ibink,  yaa  sbouM  abp< 
your  catise  of  challenge,*  tbou^rh  ibe  h* 
allows  tlie  prisooer  liberty  to  Gholkngi  iwefi^J 
peremptorily. 

Mr.  Jtmu.  I  do  not  know,  in  all  wfp^ 
tica  of  ihts  oaUire,  th|t  it  was  e«er  pat  iftf 
the  king  to  ahew  cause ;  and  1  beKe^MMiv 
the  king^a  counsel  will  say  they  haTewitaH 
it  done. 

Mr.  Coviper.    In   my  lord  GhMf 
Hales's  Pleas  of  the  Crown,  p.  fS^ 
axpreash'  ^;    ^^^  in  the  statote  of  3i 
1.  It  is  saifl;  the  king  shtill  not  cbaliengc^ 
oat  cause,  and  that  most  he  tefiK 

U.ofArr.  Call  Daniel  Cwhe. 

Baron  HatselL  Mr.  Jonea^  if  yaa-afl 

•  8ee  the  Case  of  Peter  Cook^  hi  A 
70liiiBe,p.811.     . 


:3 


Jfipr  ih$  Murder  tfMrs.  Sarah  Stout.  A.  D.  1699L  [1 1 10 


ynuui  bath  mid  any  tbingf  concerning 

w,  and  given  his  Terilict  by  way  of  dis- 

r  abew^  his  aficction  one  i^  ay  or  othvr, 

iild  be  good  cause  of  challenge. 

baet.   Hy  lord,  then  we  should  keep 

e  while  to-morrow  morning. 

I  HattelL  If  there  hath  been  any  great 

ip  between  any  juryman  and  the  party, 

lok  ill  if  he  be  insisted  npon. 

>0r/if r.  Mv  lord,  I  do  not  insist  upon 

profess  I  know  of  no  friendship,  only 
-.  C'Urke  in  elections  hath  taken  our 
in  town ;  1  know  I  hare  a  just  canae, 
I  reedy  to  be  tried  before  your  lordship 

fair  jury  of  the  county  ;  tben^re  I 
isist  upon  it. 

I  the  Jury  sworn  was  as  followeth : 

Lloyd,  William  Watson,  John  Prior, 
irrow,  Geofge  Holgate,  John-Stracey, 

Parrot,  Sam.  WalKngham,  Francis 
Lioh.  Crouch,  John  Cock,  Rfehard 
m. 

'<omper.  My  lord,  I  hnmbly  move  that 
ave  pen,  ink  and  paper. 

HaUeiL  Ay,  by  all  means. 
Arr.  Hold  ap  your  hand.  (Which  he 
4  so  of  the  rest.    You  of  the  jur^ , 

0  the  prisoners,  and  hearken  to  their 
They  stand  indicted  by  the  names 
{Prout  in  the.  indicthient,  mutatU 

*) 

My  tord,  we  desire  we  may  bare  pen, 
paper. 

iheAttiie,  There  are  three  of  the 
ire  pen,  ink  and  paper. 
HatieU,  Let  as  many  have  it  ss  will. 
me$.  Blay  it  please  your  lordsliip,  and 
llemen  tmt  areswom,  1  am  of  counsel 
ing  m  this  cause,  and  it  is  upon  an  in- 
i  by  which  the  gentlemen  at  tlie  bar 
nuied  lor  one  of  the  foulest  and  most 
irimcsalnnost  that  any  age  can  remem- 
lelieve  in  yow  counl^  you  uerer  knew 
this  nature  ;  for  here  is  a  young  gea- 
n  of  this  county  strangled  and  mur- 
the  night  time.  The  thing  was  done 
rk,tharefore  the  evidence  cannot  be  so 
•therwise  might  be. 
•be  was  strangled  and  murdered,  she 
wA  down  into  a  rirer  to  stifle  the  fact, 
nake  it  supposed  she  had  murdered 
■0  that  it  was  indeed,  if  it  prove  other- 
lowbic  murder,  a  mnrder  accompanied 
ike  <^umstanees  of  wickedness  and 
iiat  I  remember  in  all  my  practice,  or 
dor. 

fact,  aa  it  was  committed  in  the  night 
it  was  carried  very  secret,  and  it  is  very 
have  badySo  much  light  as  we  have  to 
nuicb  satisfoctkm ;  for  we  liavehere, 
loner,  two  trials;  one  to  acquit  the 
It  is  diead,  and  to  satisfy  the  world,  and 

1  her  reputation,  that  sne  did  not  mur- 
alf,  but  was  murdered  by  other  hands. 
faitt  1  shall  never,  as  counsel  in  the 
Mdyaggrafatii;  I  will  not  improfe  or 


enkuge  the  evidence  at  all ;  it  shall  be  only 
my  business  to  set  tlie  fact  as  it  is,  and  to  give 
the  eviiience,  and  state  it  as  it  stands  here  in 
my  instructions. 

Aly  lord,  fur  that  purpose,  to  lead  to  the  foot, 
it  will  be  necessary  to  inform  you,  that  upon 
Monday  the  l3th  of  Bfarch,  the  first  day  of  the 
last  assizes  here,  Mr.  Cowper,  one  of  tlie  gen- 
tlemen at  the  bar,  came  to  this  town,  and 
lighted  at  Mr.  Barefoote*s  house,  aud  staid 
there  some  time,  I  suppose  to  dry  himself,  the 
weather  being  dirty,  but  sent  hb  horse  to  Mrs. 
Stout's,  the  mother  of  this  gentlewoman.  8oroe 
time  after  ha  came  thither  himself,  and  dined 
tliere,  and  staid  till  four  in  the  afternoon  ;  and 
at  four,  when  he  went  away,. he  told  tlmn  he 
wonU  come  iM  lodge  there  that  night,  and 
sup. 

According  to  his  word  he  came  there,  aad 
bad  the  supper  he  desired  ;  after  supper  Mrs. 
Stoat,  the  yt>Bng  gentlewoman,  and  he  sat  to>- 
gether  till,  near  eleven  o'clock.  At  eleven 
o'clock  there  was  orders  given  to  warm  hia 
bed,  openly  to  warm  his  bed,  in  his  liear- 
ing.  The  maid  of  the  house,  gentlemen, 
upon  this  went  up  stain  to  warm  his  bed, 
expecting  the  gentleman  would  hare  come  up 
and  folkmed  her  before  ahe  had  done ;  but  it 
seems,  while  she  was  warming  his  bed,  she 
heard  the  door  dap  together;  and  the  nature 
of  that  door  is  such,  that  it  makes  a  great 
noise  at  the  clapping  of  it  to,  that  any  lMNli|ria 
the  honse  may  ite  sensible  of  any  one's  ffoing 
out.  The  maid  upon  this  was  concerned,  and 
wondered  at  the  meaning  of  it,  he  promising  t* 
lie  there  that  night ;  she  came  down,  but  there 
was  neither  BIr.  Cowper  nor  Mrs.  Stout ;  so 
that  we  suppose,  and  tor  all  that  we  caa 
tind  and  leara,  they  must  go  out  together. 
After  their  going  out,  the  maid  and  mother 
came  into  the  room ;  and  the  young  gen^ 
tlewoman  not  retoreing,  nor  Mr.  Cowper, 
they  sat  up  all  ni^lit  in  the  house,  ex- 
peeling  what  time  the  young  gentlewoman 
would  return.  The  next  morning,  after  ihey 
had  sat  up  all  night,  the  first  news  of  tiiis  lady 
was,  that  she  lay  floatinff  and  swimming  in 
water  by  the  mill  dam.  Upon  that  there  was 
asveral  ^persons  called  ;  for  it  was  a  snrpriae 
liow  this  should  come  to  pass.  There  she  lay 
floating  with  her  petticoats  and  apron,  but  her 
niglit  r.iil  and  morning  gown  were  off,  and  one 
of  them  not  found  till  some  time  after  ;  and  the 
maid  will  give  you  an  account  how  it  came  to 
be  found. 

This  made  a  grent  noise  in  the  country  ;  for 
it  was  very  extraordinarv,  it  happening  that 
from  thi>  time  thu  maid  left  Mr.  Cowper  and 
this  youii^f  irentlowoman  together,  she  was  net 
seen  or  heard  of  till  next  morning^,  when  she 
was  found  in  tills  condition,  witn  her  eyes 
broail  o|)cn,  floating  upon  the  water. 

When  her  body  came  to  be  viewed,  it  was 
very  mnch  wondered  at ;  tor  in  the  first  place, 
it  is  contrary  to  nature,  that  any  persons  that 
drown  tkemseives  should  float  upon  the  water. 
Wthavemflitieiit  evid«iee,  tkat  it  b  a  thing 


1  111]         11  WILLIAM  Ut.         Trial  of  Spencer  Ckmptr  and  Men,        [ 

Unit  never  was  ;  if  persons  come  «live  inlo  the 
water,  tiico  tfaev  sink ;  if  dead,  then  they 
swim ;  that  macle  some  more  curious  to  Iook 
into  this  matter.  At  first,  it  was  thought  that 
Boch  an  accident  might  happen,  though  they 
could  not  imagine  any  canse  for  this  woman  to 
do  so,  who  had  so  great  prosperity,  had  so  good 
an  estate,  and  had  no  occasion  to  do  an  action 
upou  herself  so  wicked  and  so  barbarous,  nor 
cannot  learn  what  reason  she  had  to  induce  her 
to  such  a  thing.  U|K)n  >iew  of  the  body,  it  did 
appear  tliere  bail  been  violence  used  to  the  wo- 
man ;  there  %ias  a  crease  round  her  neck,  she 
was  bruifsed  about  her  ear ;  so  that  it  did  seem 
as  if  she  had  been  strangled  either  by  hands  or 
ft  rope. 

Geuilemen,  upon  the  exaohnation  of  this 
matter,  it  was  wondered  how  this  matter  came 
ab«iiir.  it  was  dark  and  blind.  The  coroner  at 
tliui  iiin«',  nor  these  |>eople,  had  no  evidence 
^i^en,  but  the  ordinary  evidence,  and  it  passed 
in  a  ilay.  We  must  call  our  witncsicps  to  this 
fact,  that  of  nci'essity  you  most  conclude  she 
was  Strang  li-ft,  and  diil  not  drown  herself.  If  we 
gi're  you  as  stron«r  a  proof  as  can  be  upon  the 
nature  of  the  fjct,  that  she  was  strangled,  then 
the  second  mnttiT  under  that  enquiry  will  be,  to 
know  who,  or  what  persons  should  be  the  men 
that  did  the  fact.  I  told  you  before,  it  was,  as 
all  wicke«l  actions  are,  a  matter  of  darkness, 
and  done  in  secrrt,  to  be  kept  as  much  from 
the  knowledtre  of  men  as  was  possible. 

Truly,  gentlemen,  as  to  the  persons  at  the 
bar,  the  evidence  of  the  fact  will  be  very  short, 
an<l  will  he  to  this  pui-pose. 

Mr.  C'owper  wiw  the  last  man  uiifoiiuDately 
in  hprcoiin»aiiy  ;  I  coiiUl  wish  he  had  not  hern 
so  uitli  all  niy  heart ;  it  is  a  very  iiiirorliinatc 
thing,  that  his  name  .should  iiponthis  occanon 
be  hrouy^ht  upon  the  stage  ;  but  then,  my  lord, 
it  was  a  strant^e  thing,  here  happens  to  be 
three  gentlemen.  Mr.  iMarson,  3Ir.  Koj»ers, 
nnil  Mr.  Stephens.  .\s  to  thtse  thnn;  men, 
my  lonl,  I  (Id  not  hear  of  any  bu»-iiirss  they 
hati  here,  unless  it  wn-s  to  do*  this  matter,  to 
serve  some  inien^t  or  fiienil  that  sent  them 
upon  this  inessii<;e  \  for,  my  lord,  they  came 
to  town,  (and  in  thin«,^s  of  this  imture  it"is  well 
we  hafe  thiscvii!eiii:»;;  hut  if  we  had  not  been 
Ktmiirhtcned  in  time,  it  would  have  brought  out 
more  ;  thest!  thiu^^s  come  out  slowly)  these 
persons,  Mr. .Stephens,  Mr.  Roger?,  and  3Ir. 
ftlarson,  eame  to  town  here   on   the  thirloentl 


them,  nnleas  there  bad  been  a  tort  of  bti 
first.  That  they  should  happeo  to  be  i 
conditron  they  were  in;  and,  aeooDdlj 
upon  the  discourse  they  did  at  tliat  time 
my  lord,  they  called  for  fire,  tod  the  fir 
made  them ;  and  while  the  neople  of  the 
were  going  about,  they  observed  and 
these  gentlemen  talk  of  Mrs.  Sarah  Stoni 
happ^ed  to  be  their  discourse;  one  said 
other,  Marson,  she  was  an  old  sweelhc 
yours :  Ay,  saith  he,  but  she  cast  me  off 
reckon  by  this  time  a  friend  of  mine  hai 
her  business.  Another  piece  of  diseounM 
I  believe  a  friend  of  mine  is  even  with  I 
this  time.  They  had  a  bundle  of  liner 
them,  but  what  it  was  is  not  known,  an 
takes  the  bundle  and  throws  it  upon  lb< 
well,  saith  he,  her  husineSB  is  done,  Mn. 
Stout's  courting  days  are  over;  and  the 
for  wine,  my  lord ;  so  after  they  had  dr 
the  wine  they  taiked  of  it,  and  one  pulh 
a  great  deal  of  money  ;  saith  one  to  ao 
what  money  have  you  spent  to  day  ?  iiai 
other,  thou  hast  had  40  or  60/.  for  thy  a 
Saith  the  other,  I  will  spend  all  the  moi 
have,  for  joy  the  business  is  done. 

My  lord,  this  discourse  happened  to  be  s 
them  ;  which  made  people  ot  the  house  < 
der  and  bethink  themselves;  when  the 
day  they  heani  of  this  Mrs.  Stout's  being 
in  the  water,  this  made  them  recolleci  sa 
to  mind  all  these  discourses. 

My  lord,  after  these  gentlemen  had 
there  all  night,  next  morning,  truly,  it  wi 
served  (and  1  suppose  some  account  w 
ji:iven  of  it)  that  IMr.  Cowper  and  they  dwi 
tofTf  ther,  and  had  several  discourses,  am 
very  day  wi-nt  ont  of  tot%o;  and  I  tin 
soon  as  they  came  lo  lloddesden,  made 
their  discouri^e  an<l  busintss  to  talk  ot 
Ntont.  My  lord,  ue  will  call  our  hiIim 
and  prove  all  these  facts  that  I  have  open 
y(mr  lordship;  and  tiien  1  hope  they  w 
put  to  give  you  some  account  how  all 
matters  came  uhiMit. 

Call  Siiruh  Walker  (who  was  sworn.) 

Mr.  Jams.  Mrs.  Walker,  pray^i^ea 
count  to  m\  lord  and  the  jury,  of  >Ir.  (.'nw 
coming  to  >onr  house  the  KSth  of  Marcb 
what  was  done  from  his  coming  there  at 
to  his  goii;g  ont  i* 

Walker.  Ma\  it  please  you,  my  lord,ot 
<lay  before  the  List  :t^sizes,  Mr.  Cowper': 


of  March  last,  the  sissize  (lay.     My  lord,  whon 

they  came  to  town,  they  came  to  an  house,  I  sent  a  letter  to  .^I is.  Stont,  that  she  miufhte 

hnd    took    lodi;ings  at  one    (Jurrcy's;    tliey  I  Mr.  Cowper  mI  the  ;issize  time;    and  tiiei 

took  a  lieil  for  two,  and  went  out  of  their  lodjf-  j  we  expected  Mr.  Cowper  at  that  time.aa 

ing,  having  taken  a  room  with  a  kuife  bed  in  !  rordingly  proudiil;  and  as  he  came  in  wit 

it ;  and  aftt'iwanls  they  went  to  the  (ilove  and  I  judges,  she  asked  him  if  he  wonid  alight? 

IKdjdiin,  and  thru  ahoiit  j;  aelock  one  Maison 

came  to  them  there ;  in  w  h.\l  company  they 

came,  yonr  lordship  and  the  jury  will  know  hy 

and  b\' ;    they  staitl  ihere,    my    l(»rd,  at  th'c 

Glove  from  8'to  11,  as  ihey  sa\.     \i  11  these 

three   gentlemen  came  all  into  thiir  lotlging 

togetiitr  to  this  (iurrcy*s.      My    lord,  when 

thi^'  came  iu,  it  ^as  very  observable  amongst 


said  no  ;  hy  nason  I  come  in  later  tliao  i 
I  will  go  iniit  the  town  and  show  niycelt 
he  wonitl  send  his  horse  presenily.  She  J 
him.  how  lon^  it  wonId  he  bftiire  be  i 
eoine,  lieeanst:  the\  wnuM  slay  tor  him? 
said,  he  could  not  tell,  hot  he  would  semi 
w-')id  ;  and  she  thun^iht  he  had  tbigo|,aiid 
mc  down  to  know  ,wliether  he  would  plea 


■J&r  ike  Murder  ofMrt.  Sarah  Sout. 


A.a 


[1114 


He  said,  be  had  bosiness,  and  he  could 
e  just  tbeo ;  but  he  came  in  less  than 
r  ofao  hour  after,  aud  dined  there,  and 
I  away  at  four  a  clock :  and  then  my 
asked  biro,  if  be  would  lie  there  ?  And 
ered  yes,  and  he  ctLvae  at  nieht  about 
be  sat  talking  about  half  an  nour,  and 
led  for  pen,  iak  and  pa[)er,  for  that,  as 
he  w^  to  write  to  his  wife ;  which  was 
him;  and  he  wrote  a  letter;  and  then 
tress  went  and  asked  him,  what  he 
ave  for  supper?  He  said  milk,  by 
e  had  made  a  good  dinner ;  and  1  s^t 
supper,  and  he  eat  it ;  afler  she  called 
^in,  and  they  were  talking^  togelher, 
she  bid  me  make  a  fire  in  bis  cham- 
1  when  1  had  done  so,  I  came  and  told 
it,  and  he  looked  at  me,  and  made  nie 
er :  then  she  bid  me  warm  the  bed, 
»ordingl  V  I  went  up  to  do  as  the  clock 
et  en,  and^in  about  a  quarter  of  an  hour, 
the  door  shut,  and  l  thought  he  was 
!arry  the  letter,  and  staid  about  a  quar- 
i  hour  k)Dger,  and  came  down,  and  he 
I  and  she ;  and  Mrs.  Stout  the  mother 
e  Ibe  reason  why  he  went  out  when  I 
minglus  bed  ?  And  she  asked  me  for 
ress,  and  i  told  her  I  left  her  with  Mr. 
and  1  never  taw  her  aAer  that,  nor  did 
per  return  to  the  house. 
ma.  How  long  did  you  sit  up? 
r.  All  night. 

onet.  What  time  next  morning  did 
tier  ?—  Walker.  About  seven  m-dock. 
met.  In  the  water,  or  out? 
r.  Out  of  the  water. 
owper.  Pray  will  yon  recollect  a  Uttle, 
sry  particubr  as  to  the  time  when  I 
at  night? 

r.  Sir,  it  was  a  quarter  after  de?en  by 
k;  the  difference  between  the  town 
loun  was  half  an  hoar« 
Nrper.  But  yoo  say  by  your  clock  it 
trier  after  ele? en  f^Walker.  Yes,  Sir. 
upper.  Pray,  what  account  did  you 
9  the  time  to  the  coroner's  inquest  !* 
r.  I  said  then  it  was  eleven,  or  a 
ifter  eleven,  when  1  heard  the  door 

jB^fT.  Pray>  was  Mrs.  Stout  present 

anroner's  inquest  when  you  gave  that 

— HWA^.  Yes,  she  was. 

mper.    Pray,  what  aoooont  did  you 

»  the  time  before  my  lord  chief  ins* 

? 

r.    1  gave  the  4tcoount  that  it  was 

r  a  quarter  of  an  hour  after. 

Npper.  In  her  depoaitions  there  is  half 

s  difference ;  for  then  she  said  it  was 

Mr  after  ten. 

HaiulL    Which  clock  was  earliest, 

the  town  ck»ck? 

r.  Ours  was  half  an  hour  faster  than 

mper.  How  came  yoa  to  know  this  ? 
r.  By  reason  that  dinner  was  dressed 
•k*S|  and  it  was  ordered  te  be  ready 


by  two  a- dock,  and  it  was  ready  at  two  by  the 
towo^clock.  and  half  an  hour  met  two  by  ours^ 

Mr.  Cowper,  When  you  came  down  and 
missed  your  mistress,  did  you  enquire  after  her 
all  that  night? 

Walker.  No,  Sir,  I  did  not  go  out  'of  the 
doors ;  I  thought  you  were  with  her,  and  so  I 
thought  she  would  come  to  no  harm. 

Mr.  Cowper,  Here  is  a  whole  night  she  gives 
no  account  of.  Pray,  mistress,  why  did  not 
you  go  after  her? 

Walker.  My  mistress  would  not  let  me. 

Mr.  Cowper.  Whv  would  she  not  let  you? 

Walker.  I  said  I  would  see  for  her:  No, 
saith  she,  by  reason  if  you  go  and  see  for  her, 
and  do  not  find  bier,  it  will  make  an  alarm  over 
the  town,  and  there  may  be  no  occasion. 

Air.  Cowper.  Bid  your  mistress  use  to  stay 
out  all  night  ? — Walker.  No,  never. 

Mr.  Cvwper.  Have  not  you  said  so  ? 

Walker.  I  never  said  so  in  my  Ufe. 

Mr.  Cowper.  Pray,  Mrs.  iValker,  did  yoa 
never  take  notice  that  your  mistress  was  under 
mdancholy  ? 

Walker.  I  do  not  say  but  she  was  mdan*. 
cboly ;  she  wa&ill  for  some  time ;  and  I  im- 
puted it  to  her  illness,  and  I  know  no  other 
cause. 

Mr.  Cowper.  Have  yon  not  often  told  people 
that  your  mistress  was  a  melancholy  person^ 
upon  your  oath? 

Walker.  1  have  said  she  hath  been  ill^  and 
that  made  her  melancholy. 

Mr.  Cowper.  I  will  w  you  this  question ; 
pray,  did  you  ever  purchase  any  poison  more 
or  less,  within  these  twelve  months? 

Walktr.  Yes,  Sir,  1  did  so,  and  can  tell 
what  it  was  for. 

Mr.  Cowper.  By  whose  order  ? 

Walker.  By  inv  own  order. 

Mrv  Cowper.  Did  yon  buy  poison  but  oncey 
upon  your  oath  ? 

Waiker.  1  believe  I  might  buy  twice. 

Mr.  Covper.  Where? 

Walker.  Of  Mr.  Ludman. 

Mr.  Cowper.  Both  times  there? 

Walker.  Yes. 

Mr.  Cowper.  Of  him  ? 

Walker.  No,of  the  young  man. 

Mr.  Cowper.  Did  you  ever  buy  any  noiaoii 
at  Luton?— ITn/Aer.  No. 

Mr.  Cowper.  Did  you  ever  buy  any  by  your 
mistress's  order,  or  of  one  Mrs.  Crooke,  upoa  . 
your  oath  ^—Walker.  No,  1  never  did. 

Mr.  Cowper.  Pray,  at  what  time  was  it  that 
you  bought  this  poison  you  speak  of  ? 

Walker.  I  cannot  remember. 

Mr.  Cowper.  Pray  recollect  yourself. 

Walker.  It  was  within  this  half  year,  to  be 
sure. 

Mr.  Cowper.  What  was  the  name  of  the 
poison  vou  asked  for? 

Walker.  I  asked  tbr  white  merGury. 

Mr.  Cowper.  She  sailh,  I  nassed  by  bar 
mistress's  bouse,  and  went  directly  to  BIr.  Bare* 
foot's ;  pray,  did  not  you  come  to  Mr.  Bare- 
foot's  after  me  f-^Waiker.  Yet,  air. 


J113] 


11  WILUAM  III. 


Bf r.  Omptr,  Prnj  did  you  ^ri  the  same 
tccount  belbre  the  coroner,  wheu  thu  matter 
was  enquired  iuto,  tbat  you  have  now  done  ? 

Walker,  Yea,  I  dkl  as  oear  aa  1  cao  tell. 

Mr.  Cowper.  Did  you  gire  thia  account  in 
flttlistanceP 

Walker.  Yes,  I  did. 

Baron  Hat  tell,  Mr.  Cowper,  I  suppose  you 
do  not  mean  in  relation  to  the  poison. 

Mr.  Cowftn  My  lord,  1  mean  in  relation  to 
so  much  of  the  evidence  which  she  nowyiTes, 
and  |)articular]y  respects  me.  For  what  end 
or  puroose  did  you  buy  it  ? 

Walker.  I  bought  it  to  poison  a  dog. 

Mr.  Cowper,  Why  should  you  poison  the 

Valker.  It  was  a  dog  that  used  to  haunt  our 
houie,  that  did  us  a  great  deal  of  miacbief ; 
but  that  did  not  do,  BO  I  bought  it  m  second 
time. 

Mr.  Camper.  Who  gare  it  to  the  dog? 

Walker,  It  was  another  maid  did  give  it 
the  dog. 

Mr.  Cowper.  Why  did  yon  then  swear  it  was 
given  the  dog? 

Walhtr.  Sir,  I  saw  it  gircn. 

Mr.  Comper.  Did  your  mistress  know  of  it  ? 

Walker.  Yes,  she  did  know  of  it  aflervnuiis. 

Mr.  Comper,  How  did  you  give  it  ? 

Walker,  In  warm  milk. 

Mr.  Cowper.  How  did  the  milk  look  ? 
.  Walker,  It  did  not  look  discoloured  in  the 
least. 

Baron  Haitell.  You  said  just  now  your 
mistress  was  ill,  and  that  made  her  melan- 
choly ;  what  illness  was  it  ? 

Walker^  My  lord,  she  bad  a  great  pain  in 
her  head. 

Baron  Halsell.  How  long  had  she  been 
troubled  with  it  P 

Walker.  Ever  since  last  May  was  twelve 
months  was  the  beginning  of  it. 

Mr.  Jones.  Did  you  evtT  iind  her  in  the 
least  iriclinetl  to  do  heriielf  a  miscliiet? 

Walker.  No,  I  never  did. 

Mr.  Cuuncr.  You  bought  poisou  twice,  did 
you  give  all  the  poison  you  bought  to  the  <do\^  ? 

f^'ulkcr.  Yes. 

Mr.  CutLpcr.  Tlie  first  and  the  last  ? 

Walker.  Vcs,  ihi-  whole. 

jMr.  C.V/<^7'(  /.  How  much  did  you  buy  ? 

Walker.  1  a;u  i:oi  certain  bow  much  I 
boui>:lit. 

Mi-.  Ccirpcr.   iVay,  wluit  inisicbief  did  it  «lo 

ihC  d'»tr;' 

KdUr.  1  r.ir.Rjt  tell,  be  may  be  alive  till 
now  tor  ^l•li•;ilt  I  know. 

Mr.  dyri/.fr.  "^N  hui  mi^e'iii'ftiid  the  dofif  do  ? 

Walker.  A  pfreal  ileal,  iie  ibrew  down  M'veral 
tbin:rs  ami  broke  ihom. 

Mr.  Jones.  IJ:d  >lr.  C'o'vih,t,  upcn  your 
oath,  bear  Misfr.ss  Slont  ^ite}ou  order  to 
make  his  fire,  and  warm  hi.N  iicd  :' 

Walker,  lie  kiiows  l>est,  r.l.c'.bcr  he  heard 
it  or  no  ;  but  he  sat  by  her  when  she  spake   it. 

Mr.  Jcmes.  Did  she  speak  of  it  so.  as  he 
might  bear  ? 


Trial  qf  Spencer  Qmper  and  aikerst 

Yesy  ahe  did  ;  for  he  « 


Walker, 
than  I. 

Mr.  Jonei,  And  did  not  be  oontradi 

Walker,  Not  in  the  least 

Mr.  JoMs.  Was  it  the  old  or  yono 
tbat  gave  you  the  order  ? 

Walker,  The  youug  woman. 

Mr.  Cowper,  Pray  did  the  dog  lap 
you  put  it  down  his  throat,  opon  youi 

Walker,   No,  he  lapt  it^  upon  my 

Mr.  Jona,  Did  Mr.  Cowper  seo 
horse  from  yoor  house  the  next  day  ? 

Walker,  i  cannot  say  that ;  I  waa 
way. 

Mr.  Jonet.  Did  he  come  to  your  1 
terwards? 

Walker,  No,  I  am  sure  he  did  not 

Mr.Joaet.  Was  the  horse  in  yo 
whenitwaaaentfor?— -IFolAer.  Yes, 

Mr.  Jo»c5.  And  he  did  not  come 
House  again,  before  he  went  out  of  tc 

Walker,  No,  8ir. 

Mr.  Jonef.  Do  you  know  which 
went  out  of  town  ? — Walker,  No,  Sir. 

Baron  HtUsell.  Did  Mr.  CowperoM 
at  your  house  at  the  aaaizea  P 

Walker,  No,  my  lord,  not  ainoc 
there ;  the  aesaions  before  he  did. 

Mr.  Comper,  Where  did  you  cob 
vite  me  to  dinner  P 

Walker.  At  Mr.  Barefoot'a. 

Mr.  Comper.  Th^u  you  knew  I  wai 
there  P 

Baron  Ifarie//.  Who  wrote  the 
Friday,  that  31r.  Cowper  woukl  \oAsk 

Walker,  I  know  not  who  wrote  ii 
sent  it. 

Mr.  Jones.  Did  he  tell  you  he  woi 
there  that  ui^'bt  before  he  Vent  away 

Walker.  When  be  ^went  from  A 
said  so.  ^ 

Mr.  Jojics.  Call  James  Berry.  (^ 
swuriL)  Now,  my  lord,  we  wilfjjivc 
of  the  manner  how  she  was  found.  M 
Do  you  remember  when  Mrs.  Stout  v 
by  your  mill  i* 

'  Berry.  No,  indeed,  1  do  not  know 
day  it  was. 

Mr.  Jones.  When  you  found  her,  d 
memlier,  how,  in  what  manner  slie  Wi 

Berrtf.  Yes  ;  1  went  out  in  the  no 
shoot  a  flush  of  water  by  »i\  o'clock,  \ 
something  a  floating  in  the  water,  i 
out  to  see  what  it  was,  and  I  saw  ps 
cloaths. 

Mr.  Jones.  Did  you  see  her  face  P 

Bern/.  No,  not  then. 

Mr.  Jonet.  Was  her  face  under 
above  '^ 

Berry.  No  |>art  of  her  body  waa  abi 
only  some  part  of  her  cloattis. 

iMr.  Jones.  How  many  foot  deep  I 
water  be  t — Berry.  Five  foot  deep. 

Mr.  Jones.  And  how  much  was  S 
water,  do  you  conceive  ? 

Berry.  Site  might  bc  under  water. i 
Of  six  inches. 


J^  the  Murder  ofMth  Sarah  Siout.  A.  D.  1603. 


riiis 


Iff.    TbcD  tbe  whole  body  was  not 

WjWtB it?— Berry.  Yes. 

et.  Was  her  face  under  water? 

Yes. 

HaitelL    Did  she  lie  upon  her  face, 

k? 

She  lay  upon  her  side. 

tet,   When  site  was  taken  oat,  were 

tpeuorshot? 

Her  eyes  were  open. 

tet.  Was  she  swelled  with  water  ? 

I  did  not  pereci?e  her  swelled :  I  was 

;  ft,  and  did  not  so  much  mind  it  as  I 

teg.   Bat  yon  remember  her  eyes 

Dg  open  P — Berr^.  Yes. 

let.  Did  yon  see  any  marks  or  bruises 

^"-Berty.  No. 

9per,  Did  you  see  her  legs  ^ 

No,  I  did  not 

vper.  They  were  not  abore  water  ? 

wptr.    Could  you  see  them  under 

Berry.  I  did  not  so  much  nrind  it. 

vper.  Did  she  lie  straight  or  double^ 

^ether  by  tbe  stream? 

1  did  not  observe. 

vper.  Did  you  not  obstrre  the  weeds 

lery  under  her? 

iWa  was  no  weeds  at  that  time 
ts. 

ret.  Was  tlie  water  clear? 
No,  it  was  thick  water. 
19.  Was  there  any  thing  under  her, 
cf ,  to  prevent  her  sinking  ? 
No,  I  do  not  know  there  was ;  she 
r  right  side,  and  her  right  arm  was 
ween  tbe  stakes,  which  are  withm  a 
» another. 

t<i.  Did  any  thing  hinder  her  from 
-Berru.  Wot  that  I  saw. 
ftet .    Oid  you  help  to  take  her  out 
iiakes  ?— Berry.  No. 
let.  Call  John  Venables. 
mper.   Mr.   Berry,  if  I  understand 

you  say,  her  right  arm  was  driven 
be  stakes,  and  her  head  between  the 
ould  you  perceive  her  right  arm,  and 
I  her  left  arm  ? 

Within  a  small  matlerupon  the  water. 
EutmlL  Did  you  see  her  head  and 
MtlM  stakes? 

Yes,  lier  arm  by  one  stake,  and  her 


let.  Did  ker  arm  hang  down,  or  how? 
I  did  not  mind  so  much  as  I  might 
u 

len  3ohn  Venables  was  sworn.] 

Iff.    Did  Tou  see  Mrs.  Stoat,  when 
iken  out  of  the  water,  as  she  lay  in  h  P 
St.  Yes. 
let.  Give  an  account  how  you  found 

!«.  She  was  floating  upon  the  water. 
MS.  How  p  was  all  her  bw<i y,  or  what 
s  water  ? 


Venables,  She  lay  upon  her  right  aide,  and 
this  arm  upon  the  water,  rather  above  the  water, 
her  ruffles  were  upon  the  water. 

Mr.  Jones,  Did  you  help  to  take  her  out  ? 

VefMhks.  No,  Sir. 

Mr.  Janes.  Were  her  eyes  open  then  ? 

Venables.  Her  eyes  were  open  when  I  saw 
her,  but  I  did  not  see  her  when  she  was  taken 
out. 

Mr.  Jones.  Did  any  thing  hinder  her  from 
sinking? 

Venables.  I  saw  nothing  to  hinder  her  if  she 
would  have  sunk. 

Mr.  Jones,  Call  Leonard  Dell.  (W\\o  was 
sworn.)  Did  you  see  this  Mrs.  Stout  m  the 
water?— De//.  Yes. 

Mr.  Jones.  Pray,  tell  us  in  what  posture  she 
was  found  ? 

Deil.  I  saw  her  floating  in  the  river ;  I  saw 
her  face  and  her  cloaths. 

Air.  Jofie^.  Were  her  deaths  all  above  the 
water? 

DelL  Her  stays  and  her  coat  that  she  had 
next  her. 

Mr.  Jones,  Were  these  plainly  above  the 
water  ? — Dell.  Some  part  of  them. 

Mr.  Jones.  Did  you  see  her  ftoe,  was  that 
above  the  water? 

DelL  No,  Sir,  it  was  between  the  piles*;  she 
lay  on  her  right  side,  and  her  head  was  betweed 
the  stakes,  and  her  right  arm. 

Mr.  Jones,  Did  you  help  to  take  her  out  of 
the  water  ?—De//.  Yes. 

Mr.  Jones.  Did  any  thing  hinder  her  from 
sinking? 

DeB.  Neither  stakes,  nor  any  thin^  there. 

Mr,  Jona,  Did  her  arms  or  neck  stMk  to  the 
stakes? 

Dell.    Not  to  my  thinking. 

Mr.  Jones.  Was  the  water  clear,  or  weedy  ? 

Dell.  It  was  very  dear. 

Mr.  Jones,  How  many  f$Qi  deep  was  it  ? 

Dell,  I  know  not  but  it  might  be  five  foot 
deep. 

Mr.  Jones,  Did  you  help  to  take  her  out  ef 
the  water  ? 

DtlL  Yes,  Sir,  and  we  took  her  and  carried 
her  into  the  meadow  just  by,  and  bud  her  on 
the  bank. 

Mr.  Jones,  Did  you  observe  her  face,  neck, 
or  arms,  to  be  bruited  ? 

DelL  I  saw  no  bniise  at  all. 

Mr.  Cowper.  How  did  you  know  but  her 
right  arm  did  reach  to  the  ground,  since  yo« 
did  not  see  it  P 

Dell.  We  could  see  her  arm  lie  in  this  dmui- 
ner  between  tbe  piles,  the  right  arm  was  down- 
wards, for  she  lay  en  one  side. 

Juryman.  Did  you  see  any  arm  aliove  io  the 
water?— De//.  No. 

Baron  HaiseH.  You  shoohl  propoie  your 
questions  to  the  court. 

Jurynian,  My  lord,  I  desire  to  know  where 
was  her  left  arm  ? 

Baron  HaiselL  Where  was  her  left  arm  f    ' 

DelL  I  cannot  tell  how  it  did  lie;  IdidliOt 
obecrveit 


;^ 


U 19]  11  WILLIAM  111.  Trial  of  Spencer  Cm^ 


Baron  HutsdL  When  you  took  her  oat  of 
rtlje  wnier, did  you  observe lier  body  swelled? 
1  Veil.  We  carried  ber  into  ihe  nieatlow»  and 
[laid  ber  on  the  buitk-side^  and  there  she  lay 
about  an  hour,  and  then  was  ordered  to  be  car- 
ftied  into  tbe  miller's. 

Baron  HaUdL  Did  you  obaerve  that  any 
|;Water  was  in  ber  body  ? 

J>c//,  None  at  all  i  bat  1  could  see ;  but  there 
[  ivas  Bome  small  matter  of  froth  came  frora  her 
I  tnouth  and  nostrils. 

J     Juryman,  My  lord,  I  desire  to  kcKtw  wbether 
her  stays  were  faced  ? 
Dell.  Yes,  ahe  was  laced. 
Mr.  Copper ^    If  I  take  yoii  right,  yoa  say 
rshe  wi»  strait*  laced  ? 

Dell.  Her  stays  were  laced. 
Bir.  Cowper.    And  you  say  there  was  froth 
5>od  foam  came  out  of  her  rooatb  and  nostrils? 
DelL  Yes,  Sir, 

Wr,  Jona.  Pray  what  quantity? 
DelL  1  coukl  hold  it  all  in  the  palm  of  my 
nd. 

Mr.  Cowper.  How  was  she  take^n  out  of  tbe 
Bterf 

Dell.    My  lord,  we  stooit  tinon  the  bridge,  I 
l^nd  another  man,  where  she  lay,  und  be  laid 
tiold  ot  her  and  took  her  out. 

Mr  Jon^i    And  did  you  not  perceive  she 
naa  bun§['? — DtlL  No,  iny  lord. 

Mr.  Ojwper.  Fray,  where  was  she  laid  when 
be  was  taken  out  ? 
DelL    In  the  place  called  the  Hopperti,  just 

Mr.  Cm  per.  How  long  did  she  lie  there? 

DelL  About  an  hour. 

Mr.  Cowptr.  Did  you  stay  tbere  all  Uiat 
lime  ?—!>€//.   Yes. 

Mr.  Cowptr.    And  did  tbe  froth  continue  to 

sue  from  her  mouth  and  nostrils  ? 

fiaron  HntieiL  He  told  you,  Mr,  Cowper, 
be  could  hold  it  all  in  the  palm  of  hiH  hand. 

Mr,  Jona.     Call   John    Ulle.     (Who    was 
vorn.)     John  Ulfe,  did  you  see  Mrs,  Stout 
I  ibe  wag  taken  out  ot  the  water  ? 

Ulfe.  Yes, 

Mr.  Jonci.  Gtre  ati  account  of  the  condition 
be  was  in. 

Ulfe.  She  lay  on  one  aide ;  I  be1|^l  to  take 
^  her  out. 

Mr.  Jonei^  Did  she  hang  or  stick  to  any 
Ibing  ? 

Uy'e.  There  was  nothing  at  aU  to  hold  ber 
up  ;  she  lay  between  a  couple  of  stakesj  but 
ibe  slakes  cuuld  not  hold  htsr  up, 

Mr.  Jana.    Did  vou  see  her  after  the  ^  . 
Uken  out  ?—{///'«.  Yes. 

Mr-  Jonet,   Did  any  water  come  out  of  b' 

Ulfe,  Nothini^  at  all,  only  a  little  (WKb  r . 
ODt  of  ber  nostrils. 

Mr.  J<m«.  Call  ICalbefitie  Dew.  (V  ' 
•worn.)  Did  you  see  I^Irs,  Stoot  Uk' 


Ibe  rif  er  ?- 


Yes. 


Mr  Jonr^    Did  yuu  aee  her  ia  < 
hclere.^— DoL.  Yes*  8ir. 
Mr,  Jpnei.  How  did  abo  lie  in  tl>«  n' 
JUm*  Slie  lay  side- way  with  h^^  <^ 


M  III  I 

1 


and  ber  teeth  clifiK  bfd  in  t 
fl»mio>f  a  hale  from  lierj 
and  ber  |iettico)iU  wer^i 
Mr,  Jones.  D^ii  notlti 

i»g?  I 

Dew.  Her  n^bt  arm  1 

Mr.  Jofi€*.    Did  you  i 
taken  out  of  the  river  ?-*^ 

Mr.  Jones.  Was  «Ue  swi) 

Deti\    I  did  nolperoai^ 
all, 

Mr.  lontt.  Did  yoo  | 

Dew,    No,  1  touc 
coat.  ' 

Mr,  Jt/tiei,   Did 
in  the  water  ?-^Dfir, 

^Ir,  Coti.per.   Did 
arm  was? 

Dew.    I  tv>n)d  nu 
waterfliMv    '      > 

Mr.  C 
lime  ? 

Dew.   No,  Sir. 
afterward. 

Baron  Hat$%V 
lay  on  i 

Baron 

Dew 
eyes ;  I  <T 
waa  out  - 


Ll! 


'Afn-Sffroft  ^tnd. 


A.  D.  1690.  [1126 

*>«r  I     Mr.  Jbttcff.  IVbat  colour  was  it  of?  . 

Pilkimgtim.  It  leeined  reddish  and  blackish : 

t  colour,  it  wA^tiko  a  scttlingr  of  hlnod :  I 

'U  how  to  make  it  out  very  well. 

*   Had  ahe  any  circle  round  about 
'^Ston.  No,  out  that  I  see. 
-  did  not  you  make  5om« 
f  hat  you  know  ot? 
"f.  and  dare  not 


iiich 
Tilrs. 


ion  was 

when  she 

'J.  Siout  de- 

.;iid  takings  a 

.ii\e  her  body 

water  came  out 

I'lt  iK'rceire  any; 

v  a  redness  on  the 

iier  ear  was  black, 

ik  upon  her  breast  on 


i  in  tho 

was  not 

our  exa- 

^ome  words, 

of. 
swore  so,  upon 

iicliere  T  did ;  if  I 

.  examination,  it  is 

.  r.  Yonn^  of  Hertford, 

lien  you  were  examioedP 

le  was  so.   The  ni«xt  day 

inc  ag^in  to  put  on  her 

.  and  I  was  one  that  hH|>ed 

a  way,  and  there  was  nut  one 

onie  from  her;  and  I  laid  a 

i'hio,  when  I  helped  her  into 

i  did  not  see  the  least  moisture 

•  r. 

r.   What  day  was  it,  that  you  put 
coffin  ? 
'on.  The  next  day  after  slie  was  dead. 
"iper.    Do  you  know  nothing  of  her 
■liveyed  into  tlie  barn? 
ington.    1  happened  to  be  in  the  bam. 
Stout  desired  me  to  go  with  liorf  and  she 
:)rought  up  in  an  indecent  manner,  and  I 
I  a  sheet  about  her.     1  was  in  Mrs.  Stout's 
»iiKe  before  her  daughter  was  brought  thither. 
Mr.  Jones,  Call  Dr.  Coatsworih,  Dr.  Nailor, 
Dr.  Woodhouse,  Dr.  Bkle. 

(Mr.  Coatsworth  was  sworn.) 

Mr.  Jones.  Pray,  doctor,  had  you  a  ticw  of 
the  body  of  Mrs.  Stout  ? 

Qoatsaorth,  Yes,  I  bad.  Sir :  I  am  a  sur- 
geon. 

Mr.  Jones.  Pray,  give  an  account  of  it,  and 
what  your  opinion  was  how  she  came  by  her 
death? 

Cotttsworth.  My  lord,  in  April  last  1  was  sent 
for  by  Dr.  Philips,  tu  come  to  Hertford  to  see 
the  Inidv  of  Mrs.  Stout  openc<l,  ulio  had  been 
six  weelks  buried  ;  and  he  told  mc,  that  there 
was  a  suspicion  she  was  murdcied,  niid  that 
hi^r  relations  were  willinj;  to  have  htT  taken  up 
and  0|»eiutl.  I  canio  down,  1  think,  <»n  tho 
27th  of  April,  ami  lay  at  Mrti.  Si«miI*m  house 
that  iii;rht ;  and  by  her  dtscoursr,  I  understood 
she  wanted  to  heM.itisfied,  Mhelher  her  daughter 
was  with  child  ?  I  told  her,  it  was  uiy  itpinioo 
we  should  find  the  parts  contained  in  the  ab- 
domen so  rotteui  that  it  would  be  impossible  tA 


inihjMM,  V9km 

_f.'J3bK  fiw.  Mid 

imiBli/QQnniplML  ib«t,  w^'  irm  ivviliiBff  1i* 

wmiM  lwf9U.ifoiie»  •iidMn«4id  opettlm^ 

rtoaMeh  aod  ffote  were  m  fall  or  wind  i^ 
INbig^  JIM tNikU0wn with  »  jfmraiWkmi 
MMtWffutouicte,  airi  c«M  to  the  olmtt, 
flMwPhriiiNitiieireaillwin  bit  ImunI,  ufl 
aftewvde  cot  it  oirtend  Iii4  tt^Mi  tbel»Ue|Md 
gawedrkiiid:  we  mw  «|q  the  c«?iiy  of  it»  ftiid 
ir  tliere  iuid  been  eoy  thii^  ibere  ein  miiiate  at 
a  btir,  we ctifrbt  kn^iS^mmi^  Iwiit  «ts  per- 
iMy.'ImaiidMohr;  ood  iillBr.ttel»  wti  pot 
tlMUrtettiiietiDto<£eir  pbcei;  tJuT-MlNdlrfm 
»fto  tbi  ItfiBltcmMd  ft  >rt#-optM4  Mb  an 
iMMW-koife,  aiid  It  mink  Aitfr  eofd  M  <Mil  iribii^ 
fctioyirfcitrt-iftenwftikwji  o|M^  tHe  bttiHi 
•ad  Jobet  of  liie  loogt,  aiid  thOvl  wit  no  woltrt 
|lMm»  toM.«i^'«Mlrtid0,  uid  look  up  Ibr 
MM^flflheliMi^loOt  toteo  if  tbeiawwito 
Mir  h  tbo  diMhnfiii,:  oad:  thonwiff  mm, 
W«il  iry.  "Aeir  I  mMmber  I  iiid»  tbfc 
JMwtoeoiddaot  bo.drawnod,  Ariffho  bttf 
Mfliio«iter,thomter  mptt  htferallod  ofi 
JlM|^tt:  thui  wat  llienoMtUiiiliiwil 
iltfcent  botfbrti^ntrktoboiiiber 
iMOlEt  it  watimpdMUeibr  m  to  diieo^ 
^tote  tbey  were  to  rotten. 

MT.Cciiper.  Yi^ut^r^ilkh  intpeetkm  wit 
mode  about  six  week's  after  slie  wat  dead  t 
:   CoaiuDQfth,    It  was  made  on  tbe  S8th  of 
April. 

Mr.  Cowper.  She  was  drowned  on  the  13tb 
itfMardh. 

Mr.  Jont$.  Did  yon  make  an  incision  info 
those  parts  of  the  neck  and  head  ? 

Coatsuorth,  No:  I  toki  Mrs.  Stoat  and  her 
SK>n,  if  you  imasrine  the  skull  tobeiiyured»  I 
.will  open  the  hdid ;  for  if  the  scalp  be  never  so 
rotten,  yet  if  the  skull  has  suffered  any  im- 
pression }  shall  discover  it ;  they  said,  they  did 
not  suspect  a  broken  skull  in  the  case,  and  so 
\we  did  not  examine  it. 

Mr.  Jona.  But  all  her  other  parts  were 
ao«nd  ? 

CcaUvorth.  Yes,  sound  to  a  miracle ;  for  I 
idid  not  imagine  we-could  find  them  to. 

Mr.  Jones,   Call  John  Dimsdale. 

Mr.  Cowpfr,  My  lord,  1  would  know,  and  I 
.desire  to  be  heard  to  this  point:  I  think  where 
the  coroner's  inquest  bare  viewed  the  body,  and 
the  relations  have  been  heard,  and  the  body 
buried,  that  it  is  not  to  be  stirred  afterwards  for 
any  private  inspection  of  parties,  that  intend  to 
•Dfute  themselves  prosecutors ;  bnt  if  it  is  to  be 
taken  up,  it  is  to  be  done  by  some  legal  autho- 
rity I  tor  if  it  should  be  otherwise,  any  gentle- 
man may  be  easily  trepanned :  for  instance,  if 
they  should  have  thought  fit,  after  the  coroner's 
view,  to  have  broken  the  skull  into  a  hundred 
pieces,  this  was  a  private  view  altogether  amopg 
thesnelf at.    Certuoly,  if  they  iolaiidtd:  to 


hnte  prowcuteii  ine,  or  any  dibit 
upon  thi«  evidence,  they  oaght  to 
us  notice,  that  we  migUt  hate  bm]  f*4i 
f^eoris  am^)ii|^  them^  in  superiatrud  Uifir  pt* 
ceedini;.^.  My  lord,  wrUi  subfaicmoii,  thiiQC|kl 
Dot  to  be  given  in  eridence. 

Baroti  UqIuIL  Mr  Cowper,  I  lUWkfoi 
are  nf}l  in  eai'oe«>t  \  there  is  no  ooloor  tnr  Itei 
ohjectbn  t  if  they  did  take  up  the  hm\y  wiikal 
notic-e,  whv  should  not  thai  be  efiilaM^/  ts* 
less  yoa  ttiiok  ihey  had  s  dmigtk  to  tmmm 
themaelves* 

Mr«  Cowprr*  Had  you  a  MtMii*  Inqdrw^ 
i|umt  or  any  bwfol  fvaffttnt  for  makiiif  Uiiiir 
spiction  ?-^Cmtm&rth.  No,  ther«  vnmm* 

Bartia  BMtdL  Suppose  they  dia  an  iil  llii| 
in  Ukiri^  up  the  liody  wiihyut  lOfiMrof^ 
ihuui^h  1  do  not  koow  any  more  Ul  m  l^liaf  f 
thai  tf^Hly  than  any  other  i  hut,  hoveter.  itiini 
any  reason  why  we  should  not  bear  ilui  ffi» 
dencG  ? 

C^mt^worth .  Mr.  CambUn, sir  Wm, Cow^ 
Burireou,  was  there  by. 

Mr,  Jmet^  Cdl  Mr.  Dimsdale,  sen  Sir.  pff^ 
waa  sworn.)  Bsd  you  *  *  i^w  of  the  bodj  tim 
it  wiis  taken  im  P — 'Dimaiiik.  Yfa, 

Mr.  Jm£^.  Fn»y,  give  your  ojtinwHi  of  k 
JJim%dah.  On  the  amh  of  Aoril,  iKtli»> 
member,  I  was  sent  for  down  by  Mix  >*uiiiHi 
view  ibe  body  of  her  dsng^hfer*  Htfi^  lUuiffcil 
was  just  Isken  n«t  of  the  sfroum),  but  nol  *^ 
e4 ;  ihey  had  juNt  toacliefj  ihe  body,  but  li 

ojjened  the  skin  when  T  came  ihere 

Baion  BattflL  Are  vou  a  siirgeon  f  T 
Dipuda  U.  Yes,  my  ford ,  Fiodi  og  \m  ki 
io  much  mortified t  flown  to  Lcr  o«t,  w 
thought  all  the  parts  were  fx.\t^\  and  lall 
consultation,  whether  we  ahould  oiieo  be  a 
not ;  but  Mrs*  Stout  wait  very  much  *nfipi| 
because  a  great  scandal  bad  W^n  ms«ilt  iitf 
her  daughter  was  with  child  ;  and  ^t  mi, 
she  would  hove  her  opened  to  dear  bfr  rtpfr 
laiion.  With  that  we  opened  her,  aad  ftwrf 
her  body  at  sound  aa  any  Dash  could  be;  m 
inantier  of  putHfication  in  her  tuni<^  ^  ^ 
other  part,  but  she  waft  tctv  full  o*  wittd,  ^ 
searched  the  ttonoach  and  the  thorax,  aod  IM 
tiot  one  drop  of  water  about  it.  I  vi^  mk 
curio oa  than  the  rest,  and  turned  away  i« 
1e^,  to  see  if  the  coffin  waa  aoUeiU  %^^ 
coffin  aod  fthrowd  were  not  tvei.  U^t  utcf^ 
was  taken  out,  and  I  saw  no  manner  of  M|pa 
Cimception*  After  ijjw  we  had  a  eooiuiuta* 
to  ecrD^idcT,  whetiier  ahe  was  drowiied  of  (<* 
4rowned  ;  and  we  were  atl  of  o|>iuion,  ibai  ^ 
was  not  drowned  ;  only  Mr*  CamMio  dann^ 
he  mj^ht  be  excuse<1  from  giviog  \m  o^tiaiv^ 
wbeth«'  »b©  was  dfowned  or  not;  Uit  all  if 
r«8t  of  undid  gir^  otir  opiotont,  that  abi  atf 
not  droH  ned« 

Mr-  Jnms.    Give  your  reaioiro,  why 
lieved  she  was  [tot  drowned. 

Ditmdal^.     My  reaa^jm  was  Ihif^  Bi 
we  found  no  water  in  h&r  ;  her  intestinepi 
not  pntrjfied  ;  f^r  if  there  had  b««ii  «1 
her,  that  would  have  eause^i  a  txemiel 
and  that  wotild  hare  n>ltfi4  th«  luugaiOl 


,  JSir  the  Munkr  ffMn*  Sinift  «M. 


A.D.  1690. 


[UM 


Hsi$elL  Cottld  yoa  tell,  m  mny 
er,  whttwr  she  was  drowsed  or  noF 
i/e.  Yes,  mj  lord,  for  tbisreosoo; 
:  bed  been  drowned,  tbere  bad  been 
I  of  water ;  and  if  tbere  had  been  a 
iter,  it  would  ^tLie  rotted  her  lights 
l^ats ;.  and  that  is  done  in  a  week's 
ermeotation. 

vp€r.  8ir,  I  desire  to  know,  whether 
to  reason  and  your  skill,  after  six 
le,  it  is  possible  ibefe  should  be  water 
rax? 

tie.   I  do  believe  tbere  maj  be  some ; 
not  eome  out  nfter  the  body  is  dead, 
trilaction ;  aqd  there  was  no  fHitriiho- 
t  was  6rin  and  sound, 
UatseU.  What  parts  would  bafe  been 
IV  the  water  ? 
Je.  The  Iqngf  and  bowdls. 
Haiteli.  And  they  were  firm  ?  . 
Ue,    They  were:    and  if  there  bad 
T,  tbey  would  have.been  putriied* 
iifli.  Call  John.  Dimsdale,  junior, 
n.  Was  her  uavel  started  r 
i/ceen.  No :  I  never  aaw  Sacba  body 

toper.  Bid  yo«  ever  see  a  body  that 
ned,  opened  m%  weeks  after? 
Ue  sen.  No,  never.  Jf  a  body  be 
ft  fortoij^bt,  the  bowels  will  be  so  rot- 
will  be  no  coininir  near  it ;  and  I  took 
ncftiee,  and  I  did  not  see  one  drop  of 

HaiselL  Was  the  coffin  dose  ? 
\ie  sen.  Tes;  it  was  elose  and  diy  as 
whatsoever;  and  all  the  parts  sound, 
ad  and  neck,  and  left  arm. 
u$.  What  do  you  think  coiUd  be  the 
that? 

k  een.    The  left  arm  was  rottener 
ther,  the  neck  was  rotten  before. 
RSff.    Wliat  did  yon  take  to  be  the 
t? 
i/esfB.  leaDBOtjndgeof  that. 

I  Dimsdale  junior,  Who  was  sworn.) 

^jun.  My  lord,  the  body  was  opened 
ame  to  see  it,  and  they  were  drawinfjr 
davit,  that  there  was  no  water  in  the 
they  deoned  me  to  sign  it ;  but  I  de- 
tohiok  into  the  body  ;  and  I  did  kiok 
I  turned  the  intestines  aside,  and  tbere 
ilerinit;  but  the  head  from  the  neek 
mnch  pntrified. 

icf.  Do  you  believe  she  was  drowned? 
/e  jun.  No,  1  believe  not 
wi.  Did  yon  open  the  child  that  was 
Whatdiflercoce  was  tbere  between 
if  that  child  and  this? 
ie  iun.    The  chiM  was  extremely 
I  the  belly  and  stooBacb,  and  bad 
lofwnfterm  it. 
nk    Was  the  child  bead  that  you 

lejoB.  It  was  bud  upon  the  table  be- 

vper.  How  kiif  wm^  k  btfbm  ibe 


Dimtifsft  jUB.  It  was  drownnd  in  the  after- 
noon, and  opened  the  nixt  morning. 

Mr.  Cdspper.  Yon  said,  8ir,  you  was  asked 
to  sign  the  aQdaviiP  belere  you  saw  the  body* 
and  yon  were  honest,  and  would  see  the  bo^jr 
first ;  pray,  who  asked  you  P 

DkmAiUjon.  All  of  them  did.  * 

Mr.  Camper,  Who  in  particukr  f  If  yea 
please,  name  then. 

Din/jdb/ejon.  Mr.  Coatsworth,  Mr.  Philips) 
Mr.  Ckmblin,  &c.  they  asked  me  to  set  my 
hand  to  it,  because  tbey  thought  1  bad  seen  il 
before. 

(Then  Dr.  Dhmdale  was  sworn.)   ' 

Mr.  Jone$.  Mr.  Robert  Dimsdale,  was  yon  at 
tbe  opening  of  the  body  ? 

Dr.  Dimidale,  I  came  after  it  was  qiened  ; 
my  brother  Midi  came  together. 

Mr.  Jonei.  What  profession  are  yon  of|  n 
physician  ? 

Dr.  ^Dimedale,  Yes :  when  tbe  body .  was 
taken  op,  tbey  desired  us  to  be  there,  to  in- 
spect the  body  ;  but  before  we  came,  it  liap* 
|Mned  they  had  opened  tbe  body,  and  were 
setting  their  hands  to  a  paper,  a  sort  of  affida* 
vit;  and  when  I  came  in,  tbey  would  have  had 
OS  set  our  bauds ;  but  we  would  dot,  till  we 
had  looked  upon  the  body,  and  went  and  laid  it 
open  again,  and  we  did  not  find  the  least  drop  of 
water  neither  in  the  thorax  nor  abdomen. 

Mr.Cowper.  Is  it  possible  there  shouUi  be 
water  in  the  thorax,  acconling  to  your  skill  ? 

Dr.  Dimtdmle,  Tes,  we  did  think  there  would 
have  been,  if  slie  had  been  drowned. 

Baron  HaiselL  Coidd  you  expect  to  find  it» 
so  long  as  six  weeks  after  ? 

Dr.  Dinisdaie,  We  should  have  expected  that 
or  a  putritaction ;  but  we  tbimd  no  putrifaction, 
neither  in  tbe  bowels  nor  intestines,  but  only 
upon  her  head  and  shoulders,  and  one  arm. 

Mr.  Comper,  Pray,  by  what  passage  deea 
the  water  go  into  the  thorax? 

Dr.  Dimsdule,  It  will  be  very  difiicnll  fir 
roe  to  describe  the  manner  here;  but  weabonld 
have  found  some  in  the  stomaoli  and  inteatinea. 

Mr.  Cowptr,  Pray,  Sir,  how  should  it  go  inio 
the  thorax  ? 

Tyf.DmsdaU.  By  the  lympbseduct  if  carried 
by  any  means. 

Mrr  Ciwper,  When  the  party  is  dead,  can 
any  water  pass  into  any  part  of  the  body  ? 

Dr.  Dintsdule.  We  o|>eoed  the  abdomen  of 
the  child  that  was  drowned,' and  found  in  the 
several  cavities  abundance  of  water. 

Mr.  Jonts,  When  a  person  is  dead,  can  they 
fseeive  any  water  after  ? 

Dr.  Dumdmle,  No,  for  all  tbe  parts  am 
dosed  and  contracted. 

Mr.  Comper.  Pray,  if  a  dead  body  be  put 
into  tbe  water,  will  not  the  water  come  into  tbe 
wind-pi|)e? 

Dr.  Dimadmk,  I  question  whether  it  will  or 
no. 

Mr.  Jr»net.  Was  her  mouth  shut? 

Dr.  Dimtdale,  Site  was  pntrified  about  the 
bead  and  shouhlers,  and  one  arm  that  i  nssr 
wupotriftedi  itwaMbelnftanDiMltakeiu 


11  WILLIAM  m.         liid  tf^ftm§r  Cmper  ami 


IISI] 

iflilbr 

'  Pt.DmadtOe.   I  beNete  If  the  Imd  lyp 
'  there  'wooM  hft^  bets  s  -  putriAu^' 


Hfmmm9  9Mmm1tm\  wmIHwm  berex* 
traoMlMurtty  ber  arm,  b«r  bead,  and  bar  breaat, 
Ibit  waa  mitriliedy  bal^iar  bawda  aeama4  flrm 


Wlf^Joim.  Than  yon  daaH  think  lier  death 

iraa by dnNrniiMrP— Dr. Dnafdal^.  No. 

.  Mr.  C$mptr,  PraVy  did  noi  you  gifa  aaoM 

cotftteala  ar  papar,  dadaiibg  tlia  death  of  thia 

fwdawooHUi,  before  yon  aaw  the  body  at  all  r 

Dr.  DtMMla/e.  No,  1  did  not 

Mr.  Camper,  Sir,  I  wpald  atk  yoa,  waa  not 
yaa  eDfrr  that  Mr.  CamUiif  wotild  not  join 
.vKh  yoa  in  opinion  P— Dr.  DimtdaU.  No. 

Mr.  Camper,  DM  not  y<ta  tellhliB  that  yon 
weraacpradnata  phyneiaa,  and  waa  angry  ha 
wottM  not  join  wiih  yon  f 

Dr.  DiMidale.  Bnppoae  I  did. 

Baton  Aalietf.  fintdidyooeoornor- 
Jh.IHm$daU.  Yea,  my  hMd,  we  had  eema 
wmda  about  it. 

Mi^Jpnei;  Swear  Dr.  Coataworth.  (Which 
»)  Now,  my  hnd,  wo  call  theaa  mh^ 
ithatare  daelaraof  akiH.tohnow  their 
I  of  them  that  are  fbaad  floating  withonl 
water  hi  them,  how  Ihay  came  by  tfamr  death . 
•Pr.  Coaitmorik.  1  hara  not  aeen  nnmy 
drowned  bodice  to  make  obeerratioo  upon ;  hot 
It  ia  my  opinion,  that  every  body  that  ia 
drowned,  ie  auffbcated  by  watar  paming  down 
the  wind-pipe  into  the  lungatipon  rmpiration; 
and  at  the  same  time,  the  water  pressing  upon 
the  gullet,  there  will  be  a  necessity  of  swallow- 
ing a  great  part  of  it  into  the  stcmacb  :  I  have 
been  in  dangc^r  ot*  being  drowned  myself,  and  I 
was  forced  to  swallow  a  ereat  quantity  of  water. 
If  a  nerson  was  drowned,  and  taken  out  irome* 
diately,  as  soon  as  the  suffocation  was  effected, 
I  ahould  not  wonder  if  there  were  but  little 
water  in  the  stomach  and  guts ;  but  if  it  lay  in 
the  water  several  hours,  it  must  be  very  strange 
tftlie  belly  should  not  be  full  of  water ;  but  I 
will  n<it  say,  it  is  impossible  it  should  be  other- 
wise. 

Mr.  Cottper,  I  desire  to  know,  whether  this 
l^tleman  attempted  to  drown  himself,  or  was 
lu  danger  of  lieing  drowned  by  accident. 

Dr.  Coattworth.  It  was  by  accident :  I  was 
passing  up  tlie  sbip  side,  and  took  hold  of  a 
mee  rope  instead  of  the  entering  rope,  which 
bailing  me,  I  fell  into  the  water. 

Mr.  Cowptr,  But  you  struggled  to  save 
yourself  from  drowninf;  ? 

Dr.  Coaisworth,  I  dtd  so;  I  have  seen  seve- 
ral persons  that  have  been  drowned,  and  they 
isave  Uin  several  days,  until  by  fermentation 
they  have  been  raised ;  but  I  never  made  my 
observations  of  any  persons  that  have  been 
drowned  above  six  nours. 

Mr.  Jones.  Did  you  ever  hear  of  any  per- 
aons  that,  as  soon  as  they  were  drowned,  had 
awam  ahof  e  water  ? 

Dr.  CoaUMortL   I  have  not  known  such  a 


_  O* 

Mr.  CW/jfr,   Did   f  oil  ever  fcnwf,  Sf^  i 
body  Ibal  wAk  otherwise  tdUed,  to  iwt  dhi 

Br.  QisliMr^iL  I  never  made  way  discfiv 
tioaeftU. 

HAiteiL  Dr.  Brow^  hu  a  Iriia^ 
\  in  hif  Vulgar  EmifH ,  npmi  lliii  mk^ 
jOCtfOOncemiiig^  the  do^tinir  (^f  Jt^ii'l  Mm;  i 
do  net  ajbderttaod  it  myself,  but  ke  hjki^twhk 
chapter  about  it. 

J^Then  Dr,  Nmitn-  was  iw<im,^ 
omu.    We  ask  you  the  tame  aueaiM 
that  Drl  Coatswonh  wfl#  asktai.  Why  »  %m 
Ofiinhm  of  dead  hmHes  f  Ifa  bi^dy  he  droiM» 
win  •it  hi  ve  water  In  it  or  no  f 

Dr.  Kailor,  My  lord,  I  am  of  op bi«io»  ili 
it  w&l  hate  a  (quantity  if  si  be  deowacd ;  b«t| 
there  be  no  water  lo  the  k^Jy ,  I  bdieve  thu  Ai 
was  dead  bdora  it  waa  pal  ioUif 


Vf^Cm^ptr.  1  would  ask  the  dodwuf 
qoeithNK  my  brd.  Whether  he  w^  cut  tcoi* 
atant-foletr  a^nainst  tb«»  uiterest  of  our  f«{uil|  n 
thia  corporal] on  f 

.  Dr.  limkr.  I  never  ilid  oonoe  to  give  i  vtt^ 
but  aurWiJJiam  Cowper,  or  \m  aoo  o|ipwi 
nit«  ttd  ^d  I  Imd  DO  right  to  vote^  « 

Mr.  Co&j^cr*  I  would liave  aKkcd  tWan* 
^oeitkNl  of  the  Biinsdales,  if  1  had  t^meoiiNfd 
it ;  they  are  of  anoiber  party,  at  thb  gud*- 


Baron  Baiteli,  It  is  not  ai  &U  mitiniLiI 
the¥  are  wiiuesseft.^Tli^  caU  Mr.  B«bu|na 
(Wno  vras  sworn.) 

Mr.  JoTta.  Fray,  what  is  your  opislea  d 
this  matter  ? 

Mr.  }ia^ingimt.    I  am  of  opuiioo,  thai  il 
bodies  lb  at  i;o  intn  the  wal«r  ativt'i  isl 
drowned,  have  water  in  them,  and  wmk  »i 
as  they  are  drowned,  and  dii  nol  tiae  lo  sm 
this  gentlewoman  did, 

Mr.  Coa^per*  Pray,  what  is  your  proUi^ 
Sir?— Mr.  BaUngion.  I  am  a  surgvoo. 

Mr.  tamper.  Because  Mr.  Joaca  caM  yw 
doctor. 

Baron  Uattell*  Didymiero'iee  any 
bodies? 

Mr.  Bahmgt&n^   Yes,  my  lofd,  oaoe  I  Id* 
gentlewotnau  a  itatietit  iKat  w^  bait  n  ^m. 
under  water,  and  she  lived  several 
and  in  all  that  time  she  d  ischargad  a  _ 
tity  of  water :  1  never  b«afd  of  an;  ibst 
ahve  int<i  the  water,  and 
floated  so  soon  as  Ihia 
have  heard  so  from  phyi 

Baron  Hatieli,  I  liaTa  heard 
they  are  forced  to  tve  a  hiillet 
thrown  into  the  sea',  thai  they 
again. 

Mr.  Compete  The 
shouki  not  rite  «||f«Jn^  oat 
sink  without  it.    But  1  w 
ton,  whether  the  gentlawnssan  ba  mm 
went  into  the  water  voliatorily»  ar  HJ 


accident? 

Mr.  Babimgtom.    By  acd 
that  doea  not  alf  tbn  f  ,i, 


li 


SS]  fir  ike  Murder  of  Mrs.  Sarah  Siout. 

Mr.  Jdiieff.  SwetrDr.  Burnet    (Which  was 
le.)  'Dr.  Bamet,  jou  hear  what  is  the  mat- 
io  question  ;  what  is  yonr  opinion  of  \i'f 
Dr.  Burnet.   My  lord,  I  think  that  if  any 
rson  fall  into  the  water  by  acci<ient,  or  throws 
pself  in,  the  body  will  receive  water  as  long 
it  is  alive,  and  there  are  endeavours  for  res- 
atioa,  and  after  these  endeavours  are  over, 
ve  is  no  water  will  come  in,  for  all  the  parts 
I  closed ;    to   consequently  there  must  be 
ler  in  all  probability  found  m  her. 
Hr.  Junes,  What,  do  they  swim  or  sink  ? 
Dr.  Burnet.  They  sink  ;  1  never  saw  a  per- 
I  drowned  taken  up  without  water  in  my 
k;  but  I  have  seen  several  full  of  water. 
Mr.  Cotcper.   I  think  you  say  when  the  fa- 
jtv  of  respiration  ceases,  no  water  comes  in. 
Dr.  Burnet.  Yes,  that  is  my  opinion. 
Mr.  Camper.  But  the  water  does  pass  into 
ND  while  there  are  endeavours  for  respira- 
■  f— Dr.  Burnet.  Yes,  that  is  my  opinion. 

[Then  Dr.  Woodhoute  was  sworn.] 
Mr.  Jotiei.  Doctor,  what  is  your  opinion  of 
is  matter  ? 

Dt.  Woadkoute.  Bly  opinion  is,  that  no  per- 
I  is  suflbcmted  by  water,  but  he  must  have  a 
Mt  deal  of  water  within  him,  a  great  deal  of 
iier  in  the  stomach,  and  some  in  the  lungs. 
Mr.  Ctfwper,  Pray,  Sir,  did  you  ever  open 
vortheseboilies? 
Dr.  Woodhoute.   Yes,  1  have  opened  a  child 

isetfithat  had  a  great  quantity  of  water  in  it. 
f  r.  O'wper.  Did  you  find  any  quantity  of 
Iter  in  the  throat  ? 

Dr.  Woodhoute.   There   was  some,   but  a 
He,  but  a  great  deal  in  the  stomach. 
Mr.  Cmcper.    Pray,  which  way  can  it  pass 
Is  the  thorax? 

Dr.  Woodhoute.  While  the  person  is  strug- 
hg  for  respiration,  there  may  he  a  relaxation 
<  and  the  person  must  suck  in  water  as 

fll  as  air,  and  some  water  may  get  into  the 
bi-pipe,  and  so  enter  into  the  lungs. 
Mr.  Co»per.   Js  there  a  passage  from  >the 
■n  to  the  thorax  ? 

Uf.  Woodhoute.  The  thorax  is  the  vessel 
Wrcin  the  lungs  lie,  the  lungs  in  the  thorax, 
M  breast  is  the  cavity  where  the  lungs  lie,  the 
iid-pipe  is  the  conveyance  to  the  lungs,  and 
pRiOD  in  respiration  takes  down  somo  water 
M,  but  no  doubt  the  greater  quantity  will  be 
I  the  stomach. 

Banw  HuttelL  Pray  let  me  ask  you  a  qucs- 
ia:  some  of  the  witnesses  said,  that  if  a  ncr- 
Mibe  dmwned,  and  lies  dead  a  great  while, 
b  iuwarda  will  be  putrificd ;  what  is  your 
ibMnofitP 

Dr.  Woodkomse.  No  doubt,  my  lord,  where 
Mtr  gels  into  the  stomach,  or  wherever  it  is, 
*wiU  putrify  very  soon. 

Mr.  Jones.  Call  Edward  Clement.  (Who 
^  sworn.)  Are  not  yon  a  seaman  ? 

Ckmeni.  Yes,  Sir. 

Mr.  Jomes.  How  long  have  ^ou  been  so  ? 

i^tment.  Man  I  have  writ  myself  but  six 
**iit  but  I  have  used  the  sea  nine  or  ten 


A.  D.  1699.  [1184 

Mr.  Janes.  Have  you  known  of  any  mem 
that  have  been  killed,  and  thrown  into  the  aea, 
or  who  have  fallen  in  and  been  drowned  P  Pray 
tell  us  the  ditlercnce  as  to  their  swimming  and 
sinking. 

Clement.  In  the  year  89,  or  90,  in  Beachy 
fight,  1  saw  several  thrown  over- board  durinjaf 
the  engn'^eincnt,  but  oue  particularly  I  took 
notice  of,  tlj»t  was  my  friend,  and  killed  br 
my  side ;  I  saw  him  swim  for  a  considarabiu 
distance  from  the  ship;  and  a  ship  comings 
under  our  stern,  caused  me  to  lose  sight  of  him, 
hut  I  saw  several  dead  bodies  floating  at  tha 
same  time ;  likewise  in  another  engagement^ 
where  a  man  had  both  his  lag^s  shot  off,  and 
died  instantly,  they  threw  over  his  legs;  thougli 
they  sunk,  t  saw  his  body  float :  Ukewiso  i 
have  seen  several  men  who  have  died  natural 
deaths  at  sea,  they  have  when  they  have  beea 
dead  had  a  considerable  weight  of  ballast  and 
shot  made  fast  to  them,  and  so  were  thrown 
over- board ;  because  we  hold  it  for  a  general 
rule,  that  all  men  swim  if  they  be  dead  beforu- 
they  come  into  the  water ;  and  on  the  contra- 
ry, 1  have  seen  men  when  they  have  beea 
drowneil,  that  they  have  sunk  as  soon  as  thu 
breath  was  out  of  their  bodies,  and  I  could  see 
no  more  of  them.  For  instance,  a  man  fell 
out  of  the  Cornwall,  and  sunk  down  to  righti, 
and  seven  days  afterwards  we  weighed  anchor, 
and  he  was  brought  up  grasping  his  arm  about 
the  cable :  and  we  have  observed  in  several 
cases,  that  where  men  fall  over-board,  as  soon 
as  their  breath  is  out  of  their  bodies  they  sink 
downright ;  and  on  the  contrary,  where  a  dead 
body  is  thrown  over-board  without  weight,  it 
willswim. 

Mr.  Jonct.  You  have  been  in  a  fight ;  how 
do  bodies  float  after  a  battle  P 

Clement.  Men  float  with  their  heads  just 
down,  and  the  small  of  their  back  and  buttocks 
upwards :  I  have  seen  a  great  number  of  them, 
some  hundreds  in  lieacliy-liead  fight,  when 
we  engaged  the  French.  1  was  in  the  old 
Cambridire  at  that  time.  1  saw  several  (what 
number  I  will  not  be  positive,  but  there  were  a 
great  number,  I  cannot  guess  to  a  score)  that 
did  really  swim,,  and  I  could  see  them  float  for 
a  considerable  distance. 

Mr.  Jonet.  Have  you  seen  a  shipwreck  P 

Clement.  Yes ;  the  Conmation,  in  September 
1691.  1  was  then  belonging  to  the  Dutchest, 
under  the  command  of  captain  Clement ;  wu 
looked  out  and  see  them  taking  down  their 
masts ;  we  saw  the  men  walking  up  and  down 
on  the  risrlit  side*,  and  the  ship  siitk  down,  and 
they  swam  up  and  down  like  a  shoal  of  fish  one 
after  another  ;  and  I  see  them  hover  one  upon 
another,  and  see  them  drop  away  by  scores  at 
a  time ;  and  there  was  an  account  of  about 
nineteen  that  save<l  themselves,  some  by  boatSy 
and  others  by  swimming ;  but  there  were  no 
more  saved  out  of  the  ship's  complement^ 
which  was  between  five  and  six  hundred,  an4 
the  rest  1  saw  sinking  downright,  some  twenty 
at  a  time.  There  was  a  fisherman  brought 
our  captain  word,  that  in  laying  ia  of  fail  i  ' 


h^inm  m  BOtne  oien  cloie  tttid«r  (lie  mki  )     Hn  €^)jtftv  #Mikf  «ttif>« 

We  geiterally  tfaroir  iu  b«g»  of  b&lfast  with     ciriTuitiiit*i'lltEeY?  *    ; 

I      Mr.  Jonei.     1  suppose    dD    paeo    thai  ire 
4lo^n«df  you  ftink  tb^ m  with  weitrbis  F 
:  4^emmU  Fornieriy  shot  was  albwed  f<*r  that 
atrfwie ;  there  uwd  to  he  tbr^^eore  weight  of 
Iratsj  hilt  now  it  »  4  tm^iorWltft  slitl  b  mmAe 

,' ifn  JoAff^  Tlien  ymi  ttke  k  for  a  certain 
i«fo,  lliat  tbote  thRt  are  drowneit  mnk^  but 
^t«e  that  ire  thrown  over'bomr<t  liu  not  f 

€^km€nt,  Ytf9 ;  elh^rwise  why  ahoald  tire 
gof eminent  be  al  thiit  thei  etiarge  to  bAIow 
thretfiietire  or  <burs<?ore  weight  of  iron  to  iiuk 
ercry  man,  but  mHy  th«t  th^ir  BwiitiRtiog- 
d>uut  titiouki  mvt  be  a  discouragcfneEitto  othefs? 
[Tli«a  Riiiiiird  Gin  was  sworn.] 

Ur.  jQHfi*  Yoti  ritAr  the  ^aevtjoQ  ;  |iniy 
irbat  tlo  \oitiny  to  it? 

Gin.  i  flras  It  sea  a  freat  while,  and  atl  the 
mru  ibal  I  setj  turneiJ  uvet-btiijU  bud  a  great 
w«jf  lit  St  ihcnr  heels  to  sink  lUcm. 

Mr.  Jme$.  Then  will  tlicy  »wijii  othisrwiie  f 

Cm,  i^  tbe^  aay. 

Mr*  June^*  Are j/mi  aeenmiin  f 

0iB,  I  went  Bjifttinst  my  will  in  two  ti^htf. 

Mr,  Jg4rf,  'liien,  gtfntU*ui«n  oft li«  jury,  1 
liopa  we  baf e  gti^en  you  3«ilEsfiit;tion  liiat  Mrss^ 
B^toutdtd  not  droit  5  herself,  but  was  carried 
tjito  the  water  after  she  was  killed,  Thst  wa« 
the  first  qut'stirm ;  for  if  it  ht  tr^e  that  all  detd 
bodiei  when  they  ure  put  into  the  wuter  do 
swim,  and  the  bodies  that  go  tttire  into  the 
water  and  are  d It) wned  do  stnki  this  is  suffi- 
cient evidence  that  she  came  by  her  death  not 
by  drownings  biiL  some  other  way.  Now,  my 
locd,  as  to  the  second  matter,  and  thut  is  to 
give  such  evidence  as  w^  have  against  these 
gentleman  at  tlis  bar.  Mr.  Cowper,  tt  appears, 
was  the  last  man  that  any  one  can  give  an  ae> 
count  of  was  in  her  company.  What  became 
pf  herallerwardSf  or  where  tliey  went,  nobody 
can  teJl ;  but  the  other  witnesses  ha^ e  ^ireo 
^011  evidence  that  h«  was  the  last  man  that  was 
with  her.  1  shall  only  give  ibis  further  evi- 
dence as  to  Mr«  Cow  per,  that  notwithstanding 
&U  the  cisility  and  kindnesses  that  paiise^l  be- 
Iween  him  and  this  familj,  when  the  bruit  sod 
DOtse  of  I  bis  fact  was  spread  abroad «  Air.  Cow- 
|ier  did  not  come  to  consider  and  consult  with 
fild  MfS' Btovit  what  was  lo  be  done;  hulhe 
took  DO  roaooer  of  notice  of  it,  and  the  nest 
diy  b«  r«^e  out  of  town,  without  further  taking 
notice  of  it. 
Call  George  Aldrid^e  and  John  Archer. 

[Jokm  JreAer  was  sworn,] 

Mr.  J&neM^  Do  yon  know  any  thing  of  Mr. 
Cowper^s  going  out  of  town  about  this  bnsiness 
Df  Mrs.  Stout's  being  drownal  P 

dreker.  Ycip  t  did  see  him  go  «ntt  ef  town 

:Mr,  Jme$.  'Which  way  did  he  go  F 
Archer.   He  went  the  baek  way  from  the 
0l9fi  I  1  foppioie  b«  CAmt  thit  wiji 


not  tbe  way  \ 
cireuit  into' Essex? 

Arfhir,  Yes,  I  bellerc  if^ '. 

Mr,  Cou^per*  I  todged  at  ]fi 
be  has  a  back-door  to  the  ^ 
liorse  wos,  and  i  went  the  ^weei 
E*«cx,  and  it  was  Wednesday  I 
day  was  it  yon  8<?e  mc  go  ?  £ 

Arc^rr,  It  w»  oti  Ibe  Wc 

Mr.-C0^^«p. 
into  Essex, 

[Til en  George  AHH^gi  was  ai 

Mr.  Jonri.  When  did  Mi»  C^J 
of  lown  the  last  a^oi^es  ?        « 

Aidrid^t,  On  Wedncsda;^* 

Mr.  ifoiffjt.  Whit'h  wsy  did  he  gki 

Al4tidg€.  He  went  the  way  10  C 

Mr,  Jmu.  Did  yon  not  frteh  hm  t 
BimV%l^AldHdge.  Yes.  Sir. 

Mr.  Jimm.  ll&vi  ofWu  di^fii^N 

Aidnd^€.  Three  limes, 

Mr.  Jt^flfj.  When? 

Aidridgt*  On  Tuesday  night  I- 1 
and  went  twic^c  tnyself ;  the  ikit  I 
was  nr>body  at  bom*^  ui  deliver  the  b 
went  to  Mr.  HioutX  ^n^l  os^^ed  bina 
horse,  and  he  ssid  he  cuuld  not  deli« 
the  maid  went  honied  and  tbea  1  m 
11  o*oU)ck  and  had  the  horse. 

Baron  Ho/fte/i.  Was  it  eler^  MJ 

Aldn4$€.  Veil,  tpy  MnL 

Mr.  Clipper,  When  J  sent  joate 
horse^  what  directions  did  t  give  yOn 

Aldridge,  You  gave  medirectioB 
your  horse,  because  you  said  yomli 
occasion  to  go  out  next  tiKNuing  hei 
the judge, 

Mr.  Covp€r.  The  reiaoo  I  aent  foi 
was  this  ;  when  I  heard  she  had  dfo 
aelf^  1  think  it  concerned  me  in  pi 
send  a  commiKi  hoetlir  ior  hina,  foi 
toni  of  the  inaiior  should  seize  aM 
there  asforieiletl. 

Baron  HaiutL  Tbefe  was  no  dan| 
for  she  was  found  *  Ntm  oocnpoa  fnei 

Mr.  Omptr,  No,  my  lofd,  J  sent 
verdict 

Mr.  Jones.  It  seems  you  did  not  I 
go  sikI  take  horse  there  yuttnelf,  tb 
put  ?our  horse  there. 

Now,  my  lord,  we  will  g!o  00,  IS 
oilier  evidence  that  we  opened  t 
these  three  other  genllcfuefi  that  c«a 
two  of  t belli  look  lodgings  at  Gumg 
in  the  atternoou,  but  did  not  eocot  < 
ti^een  eieven  and  twelte^  '^i^ 
brought  another  in  with  iliMi  t  m 
he  had  been  in  town  6ve  or  mm  Ml 
were  nret  in  his  aboes,  ^%\^  bis  bsad 
ri!eky  sweat ;  be  had  been  al  mm^ 
hour  1  belief  e,  and  not  driill^g^^ 
audi «  swenL  i  ""^^ 

Call  John    Gnrrey,  HittM 
Elizabeth  Gurrey.  W 

{J^hn  Gmm^mBm 


.  fit  the  Murder  qfMn.  Sardh  SUnd.  A.  D.  1699.  [1 138 


met.  Do  you  knoir  edv  of  the  gui- 

t  tbabttrf— J.  Gurrey,  Yes. 

ifus.  Name  who  you  know. 

rrey.    There  is   Mr.  Stepheof,  Mr. 

and  Mr.  Marson. 

tnes.  Pray  do  you  remember  when 

k  lo^nflf  at  your  house  ? 

rrey.    'Hie  kit  assizes;    when  they 

c,  there  was  only  Mr.  Stephens  and 

;crs. 

ynet.  At  what  tioM  did  they  take  it  ? 

rrejf.  I  was  at  church,  and  cannot  tell 

y  hired  the  lodgings  of  my  wife. 

yita.  What  can  you  say  more? 

"rey.    I  was  in  at  ni^it  when  they 

here  came  three  of  them  at  eleven 

,  whereof  Mr.  Marson  uas  the  third 

nd  he  said  he  was  destitute  of  a  lodg- 

I  he  asked  for  a  spare  bed ;   my  wife 

she  had  one,  but  had  let  it ;  wiiere- 
r.  Stevens  and  Mr.  Rogers  said  he 
idge  with  them  ;  so  they  went  up  all 
,  and  they  called  for  a  fire  to  be 
ind  asked  for  the  landk>rd,  which  was  I, 
asked  metoletch  a  bottle  of  wine;  and 
em  I  would  fetch  a  quart,  which  1  did ; 
I  they  asked  me  to  sit  dowu  «nd  drink 
n,  which  1  did ;  and  then  they  asked 
i  Mrs.  Sarah  Stout  did  not  live  in  town, 
ther  she  was  a  fortune  f  I  said  Yes. 
!v  said  they  did  not  know  how  to  oome 
jfht  of  her ;  and  I  sakl  I  would  shew 
T  to-morrow  morning,  not  questioning 
j^ht  ne  her  sometime  as  she  was  oom- 
I  the  street ;  so  they  said  they  would 
I  her.  BIr.  Rogers  and  Mr.  Iwepbens 
Mr.  Marson  wiUi  being  her  old  sweet- 
aith  Mr.  Marson,  she  hath  thrown  me 
k  friend  of  mine  will  be  efen  with  her 
ime. 

HaHelL  What  o'cUn^  was  it  then  P 
rrey.    I^  reckon  eleven  of  the  clock 
J  came  in. 

HattelL  Did  jrou  observe  in  what  con- 
r.  Marson  was  in  ? 

rrey.  I  did  not  observe,  only  that  he 
and  put  by  bis  wig ;   I  see  his  head 

and  he  said  he  was  just  oome  from 
and  that  made  him  in  such  a  heat. 
me$.  Had  he  shoei  or  boots  on  f 
rrey.  I  did  not  observe  that. 
ma.  What  dui  they  do  the  next  day  ? 
nreff.  The  next  morning  I  heard  this 
MS  w  the  water ;    I  sat  up  all  night, 

fiuB  to.  wait  till  my  daughter  came 
look  after  the  ahop ;  and  then  I  went 
if,  and  she  was  removed  into  the  barn, 
y  were  wiping  her  face,  closing  her 
d  putting  up  her  jaws;  and  as  1 
ck  these  persons  were  walking,  aod 
ir.  Marson  and  Mr.  Stephens,  and 
•  the  news ;  said  I,  this  person  has 
a  sad  accident :  say  they,  so  we  hear ; 
iftbeless  we  will  be  as  good  as  our 
nd  go  and  see  her.  I  went  with 
d  overtook  Mr.  Rogers ;  and  Marson 
are  going  to  iM  Mn.  Stent.    O  Jand- 

XIII. 


lord!  said  Rogers, yoo may  take np  that rogoe 
(pointing  at  Mr.  Marson),  ior  what  he  said  Tail 
night ;  but  I  did  not  tliink,  they  speaking  so 
jocularly,  that  there  was  any  suspicion  of  their 
being  concerned  in  the  mnnlet.  A  second  time 
1  went,  the  barn-door  was  locked  ;  1  knocked, 
and  tl^ev  opened  it,  and  let  us  in,  and  they  un- 
covered her  laoe  to  let  me  see  her,  and  1  toucheil 
her ;  and  looking  about  fbr  them  they  were 
gone,  and  I  cannot  say  they  see  her  or  touched 
her :  Then  Mr.  Marson  and  they  were  consnlt- 
ing  how  to  send  a  great  coat  to  London,  and  1 
directed  them  to  a  coachman  at  the  Bell-inn  ; 
but  I  did  not  hear  he  went  to  enquire  after  the 
coachman;  then  they  went  to  ^our  kMrdahip'a 
chamber,  and  I  went  home ;  and  about  eleveii 
o'clock  I  saw  Mr.  Marson  and  Mr.  Stephens 
coming  down  with  Mr.  Spencer  Cowper. 

Mr.  Marnm.  I  did  not  go  out  that  nighl 
after  I  came  in. 

Mr.  Jones.  No;  we  agree  that  Did  yoa 
see  Mr.  Cowper  and  these  gentlemen  togetfier  ? 

J.  Gur.  Only  at  eleven  o'olock  on  Tuesday 
noon,  Mr.  Cowper,  Mr.  Marson,  and  Mr.  Ste- 
phens were  coming  down  to  the  market-place. 

Mr.  Janet.  Did  not  they  take  their  leave  of 
you  when  they  went  away  from  you  that  fore- 
noon P 

J.  Our.  No ;  only  in  the  morning  they  told 
me  they  would  send  me  word  at  noon  if'^they 
intended  to  lodge  there. 

Mr.  MartoH.  I  desire  to  l^owof  Mr.  Gurrey, 
if  his  sister  was  not  in  the  room'when  we  came 
inf 

J.  Our.  She  was  in  our  house  that  day  ; 
but  whether  when  they  came  in  I  cannot  tell. 

Mr.  Covper.  Pray,  have  you  not  had  soma 
discourse  with  your  sister,  the  widow  Davis, 
concerning  some  suspicion  that  you  had  of 
Sarah  Widker,  that  bath  been  produced  as  a 
witness  ? 

J.  Gur.  I  do  not  renumber  any  such. 

Mr.  Comper.  Then  did  not  you  say  these 
words.  We  must  not  concern  ourselves  with 
Sarah  Walker,  fbr  she  is  the  only  witness 
against  the  Cowpers  ? 

J.  Gur.  1  cannot  remember  any  such  thing. 

Baron  Hatsell.  You  may  answer  according 
to  the  best  of  what  you  remember ;  if  you  say 
you  have  forgot  when  you  have  not,  you  are 
tors  worn. 

Mr.  Cowper.  If  your  lordship  pleases  to  gire 
leave  to  Mr.  Ourrey  to  recollect  hinuelf.  I 
ask  him.  Whether  he  did  not  talk  with  his  sister 
Davis  about  some  suspicion  his  wife  and  he 
had  about  Sarah  Walker,  the  maid-servant  of 
the  deceased? 

J.  Cur.  I  believe  there  might  be  some  talk 
of  a  pei-son  that  was  seen  to  ao  into  the  church- 
yard at  some  distance  with  Surah  Walker. 

Mr.  Couper,  Did  your  wife  sav  that  she  did 
suspect  that  person  ? — J.  Gur.  Yes. 

Mr.  Cowper.  Didyourwifesay  they  behaved 
themselves  strangely,  and  that  stie  would  have 
persuaded  the  widow  Blewit  to  have  watched 
her  ? — J.  Gur.  There  was  sometliing  of  that. 

Mr.  Cowper,  Wm  them  not  •«■€  aask 
4  D 


BIr.  Cowper.  Pray  did  not  the  widow  Davis 
warm  thfe  sheets  for  these  gentlemen  ? 

J.  Gur.  She  was  with  my  wife,  bat  I  cannot 
iay  whether  she  warmed  the  sheets. 

Mr.  CoK'per.  When  they  came  home,  had 
you  any  loggers  thai  wanted  to  come  home  P 
Had  not  yon  one  Oape  f 

J.  Gur,  I  cannot  say  whether  he  was  in 
before  or  afVer  them. 

Mr.  Camper,  Did  not  you  say  to  your  sister 
Davis,  Now  these  gentlemen  are  in  bed,  if  Mr. 
Ga|»e  would  come  home,  our  family  w<tuld 
he  qiiiet  P— J.  Gur,  I  do  not  remember  that. 

Mr.  Cowper,  Pray,  did  not  you  go  to  look 
for  Mr.  Gape? 

/.  Qur.  Vf^  I  went  to  Hockley's. 

Mr.  Cowper,  Who  did  yon  employ  to  speak 
to  Mr.  Gajief-^.  Gur,  Mrs.  Hockley. 

Mr.  Cowper.  When  you  came  home  to  your 
•wn  honse,  and  after,  you  had  been  at  IIoc*k- 

a's  to  speak  with  Nr.  Gape,  what  accoiiut 
you  give  of  the  time  of  uiglit,  uud  other 
^rtMuhirs? 

/.  Gur.  I  gave  no  account  of  the  time. 

Mn.  Covper.'  Not  to  Mrs.  I>a?i<i  ? 
.  J.  Gur.  I  cannot  tell  whether  I  did  or  no. 

Mr.  Cowper.'  Did  not  you  say,  Mr.  Gape 
asked  Mrs.  Hockley  what  a-clc»ck  it  was? 
.  J.  Gur.  No,  I  Jo  not  rciricmbor  that ;  but 
Mrs.  Hockley  went  in,  and  told  liim  uliat  lime 
of  night  it  was  ;  it  was  chvcn  or  twelve  of  the 
clock,  whether  I  cannot  say. 

Mr.  Juuts.  Call  ?ilarilju  Clurroy.  (Who  was 
sworn.)  Which  of  these  gcniluiiui  <lo  you 
know  ? 

Mi-s.  Gur.  Mr.  Marson,  IMr.  Rog^ers,  and 
Mr.  Stephens. 

Mr.  Jones.  What  time  of  \\iv.  nii»ht  was  it 
when  thoy  came  to  \  our  house  ?  jjive  an  account 
of  it,  andwhut  aou  IjcanI  them  sr.y. 

Mrs.  Gar:  It  was  a  little  after  five,  or 
thereabouts,  that  they  curac 

JVir.  Jirncs.  \\\\o  v:\n\v  !' 

Mrs.  Gur.  Mr.  Sti-pUrus,  and  l\Ir.  Uo;;ors, 
and  there  was  one  Mr.  (liibert,  that  married  a 
first  rouhin  of  mine;  he  came  ami  asLed  ine 
for  my  husband ;  and  I  askid  him  his  hubiness, 
and  he  said  he  wanted  to  speak  with  him. 

Mr.  Jonts.  Pray, come  to  these  men ;  when 
did  they  romc  to  your  house  ? 

Blrs.  Gur.  They  hired  the  lodgiiinr  at  five  of 
the  clock.  When  they  first  came  to  .see  ihem 
i  was  not  at  house:  Mr.  (jilk-rt  hrou;f||t  tluin, 
and  as  1  was  coming  alont^  the  sireet  I  saw  Mr. 
Cilliert  uaikin^ofl*,  and  would  not  liiokat  me. 

Mr.  Jotitii.  \\  hen  did  tlu }  ^<i  out .'' 

Mis.  Gur.  They  never siaid  there. 

Ml'.  Jif/u .;.  y\  heii  did  I  hey  coiuf  in  a<;ain  ? 

Mr*.,  (riir.   Uetween  eh-ven  and  twelve. 

Ri-op  ii'./.sf//.  What  did  they  do  when  they 
came  iu  a(^m  ? 


nSO]  11  WILLIAM  IIL         Tridl  of  Spencer  dper  anJollirs,        [1140 

wordsi  that  they  matt  not  meddle  with  Sarah  Mrs.  Gur.  I  M-as  laying  oo  aome  riieets  t«s 
Walker,  for  she  is  the  witness  ag^ainst  the  pair  of  stau^  when  they  cmme,  and  then  there 
Covpers?  was  three  of  them;  so  they  saw  me  a  linle 

J.  Gur.  I  said,  Do  not  concern  yourself  with    after,  and  begged  my  excuse  for  hnngiaria 
fiaimh  Walker,  for  fear  of  taking  off  her  evi-    another,  fw  they  said  it  was  so  late  that  tbsf 

could  not  fvet  a  lodtpng  any  wbere  else:  aJ 
said,  if  1  thoug^ht  fit,  the  ijentl^man  sboaM  Be 
with  them  :  And  1  told  them  1  liked  it  fsrj 
well. 

Mr.  Jones.  Wliat  firing  had  they  ? 

Mrs.  Gur,  The  firing  Haid  on  in  theiwn- 
ing,  and  they  sent  for  my  husband  to  tdA 
them  some  wine. 

Mr.  Jones.  What  did  you  hear  them  talk  on? 

Mrs.  Gur.  They  discoursed  with  mj  ba^ 
hand,  and  asked  him  if  he  knew  Mrs.  Ihiih 
Stout ;  and  one  of  them  said  to  Mr.  Blaraos,  E 
tlu'nk  she  was  an  old  stveetheartof  yoora;  Aj, 
said  he,  but  8hc  turned  me  off,  but  a  fnead  if 
mine  b  ercn  with  her-:  And  Mr.  Rogen  nii 
he  was  in  with  her ;  and  afterwards  laid,  kr 
business  was  done.  They  had  a  bundle,  tbi 
was  wrapt  up  in  a  pure  wfiite  cloth,  like  Is  ■ 
aprou,but  1  cannot  say  it  was  an  apron;  oi 
there  was  a  parcel  han<riog  loose  by  it;  and  wlsi 
he  laid  it  down  he  said,  he  would  pass  his  «rf 
Mrs.  Sanlh  Stout's  courting  days  were  om; 
and  I  said,  f  hoped  it  was  no  hurt  to  the  ra- 
tlewonian  ;  and  then  I  looking  upon  Mr.  Mff* 
son,  saw  him  put  his  neruku  aside,  sod  Ui 
head  reeked,  and  he  told  them  he  was  but  jaS 
come  from  J^ndon  that  night,  which  mk 
him  di.<mppointc4l  of  a  lodging. 

Mr.  Jones.  What  did  you  hear  them  bj 
alci't  aiiV  mono}'  ? 

Mis.  (jur.  I  a^kcd  them  how  t'.iey  wmM 
lia*o  tht-ir  hcd  warmed  ?  And  Mr.  Mai-snoar- 
swcrcd,  very  h.Jl:  With  that  I  wtnt  donni* 
bond  my  daugfhter  up,  and  she  coukl  not  v 
pre^i^iti y  ;  I  told  her  then  she  must  ^'o  a»  mm 
as  slio  could. 

.  15aron  UaiscU.  Pray,  do  not  tell  us  ^)bA 
pabsed  between  you  and  yourdau:»hter:  Wbit 
di*  you  know  oftbese  gentlemen  ? 

Mrs.  Gur,  I  went  to  the  next  room,  to  « 
if  every  tiling  was  as  it  should  Ij.; ;  I  luarkec* 
cd,  and  tliev  had  some  discourse  ahoiit  luowr. 
and  1  heard  somelHidy  (1  do  not  know  «lio  it 
should  br  except  it  wertf  Mr.  Slepheiit)  zwvte 
and  say,  the  use  money  was  paid  to  ni:;bt;  )rA 
what  money  tiiey  meant,  I  cannot  tell. 

y\v.  Jones.  What  did  you  find  when  lU} 
were  j^oih*  ? 

Mi-s.  (inr.  Sir,  1  found  a  cord  at  theeoilrt' 
the  trunk. 

Mr.  Jonts.  Was  it  there  in  the  rooniiogi  « 
before  they  came  •' 

Mrs.  Gur.  No,  it  could  not,  for  I  swept  ^ 
room,  and  \s'\\\e<\  down  the  dust. 

Mr.  Jonts.  Was  the  cord  while? 

Mrs.  Gur.  Mo,  it  was  more  dirty  tbaa  H  > 
now,  for  my  husband  and  1  have  worn  ilislV 
IMckets.  ^ 

Mr.  C-ou'per.  Pray,  who  brought  the  ew 
down  from  al>ovc  stairs? 

Mrs  Gur.  My  daughter  that  lived  with 0*^ 
and  she  laid  it  upon  the  shelf. 


for  the  Murder  of  Mrs.  Sarah  Stoidi 

Zcmper,  Did  not  yoa  bear  there  was  a 

S  inquert  tittiDg  ? 

Gur,  The  nezl  day  at  night  I  did  bear 

Zowper.  Why  did  not  you  go  to  the 
'a  ioqoesl  and  give  an  account  of  it 

Gur,  T  told  my  husband  of  it,  and  I 
ly  husband  if  he  did  not  hear  what  they 
iceming  Mrs.  Sarah  Stout?  And  he 
!d,  yes,  thev  ought  to  be  taken  up  for 
ds  they  said  hst  night :  Why^  saith  I, 
'ou  take  notice  of  it  P  I  think  you  ought 
ibem  up.  But  he  went  out  of  doors, 
w  no  mere  of  him  till  the  afternoon, 
heard  the  words,  I  thought  somebody 
e  away  and  got  to  bed  to  her. 
'lowper,  Prav,  if  your  husband  beard 
)rd8,  why  did  not  he  go  to  the  coroner's 

Gur,   I  did  speak  to  him  to  have  them 

>. 

hwptr.  Why  did  he  not  do  it  ? 

Gur.    He  said  he  would  not  do  it ;  he 

enow  but  it  might  cost  him  his  life. 

ones.   How  came  you  after  this  to  dis- 

Gur,  Because  I  was  so  troubled  in 
could  not  rest  night  nor  day ;  and  I 
I  if  he  would  not  tell  of  it,  I  would  tell 
self,  for  I  was  not  able  to  live. 

EUzabeth  Gurrey  was  sworn. 

ones.   Pray,  do  vou  know  Mr.  Rogers, 

>ben8,  and  Mr.  Marsnn  ? 

ur,  I  know  Mr.  Marson,  and  these  are 

r  gentlemen,  I  reckon. 

fo»€t.    What  discourse  did  you  hear 

nn? 

ur,   Mr.  Marson  asked  the  other  gen- 

low  much  money  thev  had  spent  ?  the 

iswered,  what  vms  that  to  hin^ ;  you 

d  forty  or  6fty  pounds  to  your  share. 

le  other  asked  him,  whether  the  busi- 

I  done  ?   And  he  answered,  he  belieTed 

but  if  it  was  not  done,  it  would  be  done 

.    Then,  my  lord,  he  pulled  a  handful 

y  ont  of  his  pocket,  and  swore  he  would 

all  for  ioy  the  business  was  done. 

ouct.    Was  Mr.  Cowper's  name  men- 

ir,  I  heard  them  mention  Mr.  Cow- 
ne,  but  not  Mrs.  Sarah  Stout's. 
wa.  i  What  condition  was  the  gentle- 
loesinP 

IT.  I  think  it  was  Mr.  Marson,  his 
ere  very  wet  and  dirty;  one  of  them 
f  hot,  and  he  wiped  his  head  with  his 
chief. 

onei.  Now,  my  Jord,  we  have  done  as 
nrideaoe.  Mr.  Marson  pretended  he 
then  alighted  and  come  from  London, 
in  a  great  heat,  and  his  &hoes  were 
wonw  what  Mr.  Marson  had  been 
br  w|wi  he  was  examined,  he  said,  he 
town  about  eight  of  the  dock,  and  went 
l0f e  and  l>9lpbin  ioo,  and  stoycd  there 


A.  D.  1699.  [114$ 

till  he  came  to  his  lodging.  Now  it  was  a 
wonderful  thing  that  he  should  come  i^etshod 
from  a  Uvem,  where  he  had  been  iittiug  four 
or  five  hours  together. 

Then  the  Examination  of  Mr.  John  Maiison 
was  read: 

The  ExABfiNATiON  of  JoHif  Marson,  taken  be- 
fore me,  this  S7th  day  of  April,  1699. 

"  Who  being  «amtned  where  he  was  on 
Monday  the  ISib  of  March  last,  saith,  That  he 
was  at  the  borough  of  Southwark  (he  beiti^  an 
attorney  of  the  said  court)  till  past  4  of  the  clock 
in  the  afternoon ;  and  saith,  that  he  set  out 
from  Southwark  for  Hertford  soon  after,  and 
came  to  Hertford  about  8  the  same  afternoon, 
and  put  up  bis  horse  at  the  sign  of  >  an 

inn  there,  and  then  went  to  the  Hand  and 
Glove,  together  with  Qod&ej  Gimbart,  esq, 
Ellis  Stephens,  William  Rogers,  and  some 
others,  where  they  stayed  till  about  eleven  itf 
the  clock  at  nighty  and  then  this  examinant 
went  thence  directly  to  the  honse  of  John  Gur- 
rey,  with  the  said  Stephens  and  Rogerti 
who  hiy  altogether  in  the  said  Gurrey'a  house 
all  that  night.  And  being  asked  what  he  said 
concerning  the  said  Mrs.  Sarah  Stout,  deceas- 
ed, this  examinant  saith,  that  on  Siinday  the 
13tb  of  Maroh  last,  this  examinant  beiug  in 
company  with  one  Thomas  Marshall,  and  tdU 
ing  nim  that  this  examinant  intended  the  next 
day  for  HertfonK  with  the  marshal  of  the 
King's  Bench,  the  said  Thomas  Marshall  de- 
sired thU  examinant  and  the  said  Stephens^ 
who  was  then  also  in  company, that  they  would 
go  and  see  the  said  Sarah  Stout  (bis  sweet- 
heart) He  confesseth,  that  he  did  ask  the  said 
Gurrey,  if  he  would  shew  this  examinant 
whero  the  said  Stout  lived;  telling  the  sai4 
Gurroy  that  his  name  was  Marshall,  and  asked 
him  if  he  never  heard  of  him  before;  and  jocu* 
larly  said,  that  he  would  go  to  see  her  the  next 
morning,  but  doth  not  believe  that  he  said  any 
thing  that  any  friend  was  even  with  the  said 
Sarah  Stout,  or  to  such  like  effFCt.  And  doth 
confess,  that  he  did  the  next  day,  upon  the  said 
Gurrey's  telling  him  that  the  said  Stout  wai 
drowned,  say,  that  he  would  keep  liis  won^ 
and  would  see  her.  And  saith,  that  meeting 
with  Mr.  Cowper  |[who  is  this  examinant's  ac« 
quaintance)  he  believes  he  did  talk  with  hini 
concerning  the  said  IStout's  being  drowned,  this 
examinant  having  seen  her  body  that  morning. 

**JoHN  Mabson." 
Cogn.  Die  ct  Anno  antedict. 
Coram    J.  Holt. 

Mr.  Jones,  All  that  1  observe  from  it,  isthia: 
That  he  had  been  five  hours  in  town,  and  when 
he  came  to  his  Iodising,  be  oeme.in  w«tan4 
hot,  and  said  he  was  just  come  from  Lnndoin. 

Marson,  I  had  rid  forty  miles  that  day,  and 
could  not  be  soon  cold. 

Baron  UatselL  They  have  done  now  for  the 
king ;  cone,  Mr,  Cow^ier,  whall  do  you  saj 


1 1  WILLIAM  III.         Trial  of  Spmeer  Cowper  end  etkent 


1143] 

Mr.  Jone4.  Tf  your  lonlship  please,  we  will 
^calt  oa«  witness  mort;«  Mary  Richardson.  Mni, 
FBichiiitlsoii,  dn  yi>t%  know  Mr.  Marson,  or  «ny 

Mrs.  RichardsQfi,  They  caine  on  Tuesday 
knight  to  I  lie  BvW  at  Hodilesdim,  and  lay  Ihere^ 
l«nd  OIK  of  the  vjentleinen,  when  1  was  warm - 
|i|}K  tiie  ^heeiH,  asked  me  it  1  knew  i^f  rs.  ^rnli 
litout  ?  And  1  said,  Yes.  He  asked  me  It'  I 
I  J(new  whicli  way  slic  came  to  ber  end  ?  And  J 
rfotd  Itim,  1  could  m*t  tc-tL 

Mr,  Jones,  U  ibnt  all  ?  What  did  tliey  say 
f  moi*  ? 

Mrs,  Rkhttrdwn*    Tboy  did  desire  and  wisli 
(  it  mi;i;hi  be  fuujid  out  how  il  c«me  al>out ;  and 
*  one  ^eutletnan  louk  no  notice  of  her  at  alL 
[  H'ljey  bad  a  bule  bvjfidks  but  what  was  tn  it  J 
f  cunn(»t  tiU^  but  there  1  saw  it  bound  up  in  some 
eoloun  d  stufl'ur  other,  but  what  it  w^  I  can- 
Dot  ti^ib 
M  r.  Jonei,    Ts  that  all  you  can  nv  T 
Mrs.  Hichiirti&an.    Yes,  that  is  alL 
Mr,  Jo§uk,   I'ben  we  buve  done. 
Baron  Hatxeii,    Come,  Mr,  Cowper,  what 
do  you  i^iiy  to  it? 

Mr,  C\jU'ptt\  Now  they  have  done  on  the 
part  of  ihe  ktDg»  my  lortl,  and  you  ^intlemen 
©r  the  jury,  t  must  bej;  your  patience  For  my 
defcuce.  I  L-oult«s  it  was  an  unfortyuate  ac- 
cident lor  me  (a*)  Mr,  Jonen  calls  it)  that  I  hap- 
iiened  to  he  the  larit  peri»oii  (fWr  aot^ht  apiiears) 
an  the  company  of  a  melancholy  wnmnn.  Tbc 
4]iscoun»e  occasioned  by  this  accident  liad  been 
m  sufiieient  misfortune  to  me,  without  any 
thing  else  to  a^fj^ravate  it ;  bnt  t  did  not  in  the 
}enst  imagine  that  so  liule,  so  trivial  an  evi- 
d<M|ce  as  here  is,  could  possibly  have  aflV'Cted 
tnc  to  so  great  a  degree^  as  to  iiringf  me  lo  this 
place  to  answer  for  the  worst  fact  that  the  worst 
vf  men  can  |»e  gnilly  of 

I^ly  lord,  your  lordship  did  just  now  observe, 
that  I  have  appeared  at  the  bar  for  my  clients ; 
trill  I  must  say  too,  that  I  nercr  appeared  for 
niyself  under  this,  or  the  like  rircuni stances ,  as 
a  criminal,  for  any  offeuce  whatsoever. 

Air,  Jones  very  well  said,  wbeu  ho  spfike  on 
the  part  of  the  kmg-.  That  if  this  j^ntlewnman 
%ras  murdered,  the  crime  was  lillainoits,  L>a*c, 
liarbarouS;  and  cruel ;  and  for  my  part  l  think 
«o  t«io ',  the  Clime  would  be  so  great,  that  it 
could  DCfcr  be  sufficiently  condemned  ;  bat  at 
the  same  tiij^e  I  may  aver,  that  to  suppose  a 
murder  ^y/thout  fguyi  Aounds  for  it,  and  afler- 
wards  %o,  chpi^^^mff^i  mon  with  it  know- 
inijly  and  tonilidousl^,  is  i{^^^  triile  as  base  antl 
Wbarous  as  the  tnunJer  itsAf  could  be.  My 
lord,  I  speak  for  my  own  part ;  1  know  not  at 
what  price  other  men  may  value  their  lives  ; 
lint  1  bad  much  rather  myself  was  murdert^il 
than  my  repistatioii ;  whicli  yet  I  am  sensibte 
haih'  snfferefJ  greaUy  bitberio  by  the  nialice 
iwd  artifice  o<  some  men,  who  have  gont^  pretty 
lar  in  making  ib)^,fa£i^  as  barbarous  as  it  is,  lo 
be  credited  of  ^.  And  therefore  I  arnsi  beg 
jfour  lordship^s  und  the  jury's  patience^  while 
I  not  only  defend  my  life,  but  justify  myself 
§ki>  from  these  iliiDgs  that  have   unjusUy 


U:\ 


aspersed  me,  by  the  conspiracy  i 
my  accusers. 

My  lord,  in  all  the  eridence  tii%^ 
sriven,  1  must  observe,  iImI  there  im  ^ 
('vid^ce,  with  submission,  to  indi 
or  any  onetiv  bdteve  the  trcoerid,  t{t»  r  ( 
tie  wo  man  was  murdertfd  ;  hi 
siipfKiniiions  and  inferences,  \ 
dieted  by  other  circumstanc«^,  in  iiu-  ^n 
deuce  of  the  prosecutor,  ihtil  niskelitlJMi 
lo  prove  she  was  not  lomiiered,  ii 
was ;  so  that,  as  it  sunds,  it  can  immiatl 
to  a  bare  8up|H>sitioa  that  she  iv«i  i 
any  bo«ly* 

^'hen,  as  to  the  etidence  tbalf 
relate*  to  myself,  or  the  ijcotleinrn  wlwi 
w  ith  mc  at  the  bar,  tl^ai  they  m  I 
cerned  in  it  (if  she  was  murdereii)  iI 
one  syllable  of  proof;  at  inost,  it  .ii 
to  make  us  suspect  a  cnurder,  nnt  i 
only  suspected:  this  1  ftU^jt^f  ai*"  ■ 
deiice,  as  it  now  stands  v  *       ^ 

has  tiecn  given  on  tlie 
far,  in  the  case  of  lite,  u,^  m  ^^..^.j  I ' 
with  eiidt'nrc  of  this  nature,  wb 
proves  the  murder  in  general,  nnr  li 
It  in  particular  ^  though  no  tI< 
or  anv  further  answer  given,  i 
your  lordship**  and  the  jury 'sjinl^jumiL^ 

But,  my  bird,  I  do  not  ♦foubt  Imi  h"'' 
aide  to  »*ipe  away  even  that  rcnioif  i 
by  my  defifuce:  they  have  been  \\mg^ 
eviilcitce  for  tb«»  kiiifj,  and  therefore  I  lom 
}our  paiiCncc  while  1  give  a  particiikk 
to  every  ptirt  of  it,  in  a^  good  a  iikib<}d  i 
able:  and  I  will  waxte  a»  hit(e  (luitf  ti  i 
coui^ist  with  the  jmrtifyir--^  n^*  r<-i.Hiiii;«i- 
which  1  know  your  lortl 
a  regard,  to  see  it  doth  n- :  _  j  ,    ' 

for  my  life  itself^ 

AncI  I  promise  your  lordstdp.  Isbs'*'' 
you  with  no  evidence  which  i 
plain;  no  inuendoes  or  5us»ph 
prove  fully  and  clearly,  iu  ibt  tu*i  plat-*, 
there  was  no  ground  at  all,  in  tlust        ^ 
pose  she  was  murdereil  by  any  one  bii^  '    ^ 

The  fmii  fact  that  liiey  insisted  uih^**^^ 
n  murder  from  it,  was,  tbat  the  body  ^^    j 
floating  :  now,  my  lord,  tlmt  fact,  i  a* 
the  evidence  I  have,  as  well  as  hum  I 
prosecutor,  lo  deny  ;  for  the  fact  i 
otherwise,  tbat  t%ehv  was  not  Ibund  I 

And  whereas  the  prosecutor^s  wil 

have  been  proiluceil  to  this  pointy  at<    

and  poor  men,   and  your  Inrdthip  <f^ 
havt:  been  taught  to  say  generftlty  1^ 
6oBted  ;    which,  when  tliey  i 
plaiiit  and  describe  how  tikiv  lBy,t||cy4 
tlieinselv#»s  in,  by  shewing  she  lay 
between  the  stakes,  and  almusi  all  nuA 
Now  I  shall  yive  your  lonlahip  aod 
full  and  particular  account    and 
from  the  parish  officers,  men  employ 
coroner  to  take  the  (mmI^   out  of  the 
the  very  manner  and  pusture  in  wfiit 
first  found  ;    which  thry  are  ' 
to  do  than  the  proaecu 


•U 


wi#^ 


Jvr  the  Murder  of  Mrs.  Sarah  Stout.  A.  D.  1699.  [1 IM 


bflbre  all  or  moit  of  those  people ; 
e  officers  clearly  affree,  that  her  body 
ler  water  wheo  toand,  except  some 
learanceof  her  petticoats,  near  or  on  the 
if  the  water ;  which  may  be  ?ery  easily 
d  for,  because  the  stakes  the  witnesses 
,  and  which  are  driren  into  the  g^ond 
9  river,  to  prevent  weeds  and  trumpery 
imag  into  the  mill-stand,  as  the  wit- 
sre  already  said,  about  a  foot  distance 
s  another,  and  are  set  with  their  feet 
I  mill,  and  their  heads  inclining  toward 

with  the  stream.  Now,  my  lord, 
le  knows,  thai  thouffh  a  drowned  body 
vt  sink,  yet  it  is  buoy  ant)  and  does  not  go 
bt  and  real  in  oneplace  like  lead ;  for  a 
ody  is  aekkwa  or  never  in  astream  found 
«re  it  WIS  drowned :  a  body  drowned 
lea  has  been  often  found  by  fishermen 
no,  and  that  before  it  came  to  float 
Iter.  Now,  if  a  body  fs  so  buoyant, 
i  IS  driven  down  by  the  impellent  force 
iorrent  (though  it  do  not  float  above 
t  seems  a  oonsequence,  that  when  it 
I  be  stopped  and  resisted  by  the  stakes, 
e  with  their  heads  downward,  inclining 
■tream,  the  stream  bMrin^  the  body 
die  stakes,  must  needs  raise  it  upwardw 
mother  passage  if  possible,  when  the 
'  and  natural  v^  olHtructed.  I  have 
wnember,  that  where  weeds  have  been 
Mm  a  river,  and  have  been  rouled  along 
iltom,  when  they  have  come  down  to 
or  stakes  of  a  wyer,  or  turnpike,  they 
m  by  the  force  of  the  water  raised  up 
those  boards  or  stakes,  and  forced  over 
bough  without  such  obstruction  they 
oubMly  oontinuHl  to  roul  under  the 
I  do  not  know  of  any  other  symptom 
«iend  io,  of  her  not  being  drowned, 
y  thing  observed  of  her  in  the  water. 
B  io  the  flatness  of  her  belly,  when  she 
t  into  her  coffin,  I  shall  shew  it  is  a 
I  and  natural  accident;  sometimes 
I  bodies  are  swelled  more,  sometimes 
netimes  not  at  all :  I  think  it  hardly 
I  a  phj'sician  to  prove  that  a  body  may 
Mu  with  very  little  water ;  that  a  man 
I  drowned  by  strangling  or  soiTocation, 
ij  a  little  water  in  the  lun^,  without  an^ 
lanti^  of  water  received  in  the  body,  is 
B  and  established  truth ;  for  1  am  told 
en  respiration  ceases,  the  party  dies, 
receive  no  more  water  after  that :  so 
tfiing  is  to  be  inferred  from  a  body's 
more  or  leas  water  found  in  it,  espe- 
jonr  lordship  will  give  me  leave  to  ob- 
iM  distinction,  where  ^a  bod v^  is  volun- 
lowDad,  and  where  it  is  drowned  by 
I ;  fbr  people  that  fall  in  by  accident  <fo 
»  aod  strive  as  long  as  they  can ;  every 
ly  rise  they  drink  some  water  into  the 
i«  to  prevent  its  fMUsing  into  the  lungs, 
r  browned  no  sootier  than  needs  must ; 
MM  that  voluntarily  drown  themselves, 
n  desperately  plunge  into  the  water, 
Mh  •  BMwiaMc  life  at  soon  as  they 


can ;  and  so  that  little  quantity  in  the  lungs 
which  causes  death  may  hie  the  sooner  taken 
in ;  afWr  which  no  more  w  received :  and  I 
hope  by  physicians  it  will  appear  there  is  good 
ground  for  this  difference. 

The  next  is  the  evidence  that  the  surgeons 
have  given  on  the  other  part,  rf>lating  to  the 
taking  this  gentlewoman  out  of  her  grave  after 
she  had  been  buried  six  weeks.  Whether  this 
ought  to  have  been  givenr  in  evidence,  for  the 
reasons  I  hinted  at,  in  a  criminal  case,  I  siib- 
mit  to  your  lordship ;  but  as  it  is,  I  have  no 
reason  to  apprehend  it,  being  able  to  make  ap- 
pear, tliat  the  gentlemen  who  spoke  to  this 
point  have  delivered  themselves  in  that  man- 
ner,  either  out  of  extreme  malice,  or  a  most 
profound  ignorance ;  this  will  be  so  very  plain 
upon  my  evidence,  that  I  must  take  the  liberty 
to  impute  one  or  iMth  of  those  causes  to  the 
gentlemen  that  have  argued  from  their  obser- 
vations upon  that  matter. 

And  now,  if  your  lordship  will  but  please  to 
conrider  the  circumstances  under  which  they 
would  accuse  me  of  this  horrid  action,  I  do  not 
think  they  will  pretend  to  say,  that  in  the 
whole  course  of  my  life  i  have  been  ^ilty  of 
any  mean  or  indirect  action ;  and  I  will  put  it 
upon  the  worst  enemy  I  have  m  the  world  to 
say  it.  Now,  for  a  man  in  the  condition  I  was 
in,  of  some  fortune  in  possession,  related  to  a 
better,  in  a  ^ood  employment,  thriving  in  my 
profession,  living  within  mv  income,  never  in 
debt  {I  may  truly  say  not  nve  pounds  at  anj^ 
one  ume  tliese  years  past),  having  no  possi- 
bility of  making  ady  advantage  by  her  deaths 
voiff  of  all  malice,  and,  as  appears  by  her  own 
evidence,  in  perfect  amity  and  friendship  with 
this  gentlewoman,  to  be  guilty  of  the  murder- 
ing tor,  to  begin  at  the  top  of  all  baseness  and 
wickedness,  certainly  is  incredible. 

My  lord,  in  this  prosecution  my  enemies, 
seeing  the  necessity  of  assigning  some  cause, 
have  been  so  malicious  to  suggest  before 
(though  not  now,  when  I  have  this  opportu- 
nity of  vindicating  myself  publicly),  that  t  havtf 
been  concerned  in  the  receipt  of  money  for  this 
gentlewoman,  had  her  securities  by  me ;  and 
sometimes  that  I  had  been  her  guardmn,  or 
her  trustee,  and  I  know  not  what  1  now  see 
the  contriyers  and  promoter^  of  that  scandal, 
and  they  know  it  to  be  base^Valse,  and  tnali* 
cious ;  1  never  was  concerned  inldtorest  with 


her,  directly  or  ^ 
when  1  was  bef 
true,  it  was  tl 
cutoni,  I  then  d( 
thank  God,  I  hat 
need,  to  deny  the 


ao  I 'told  them' 
bhiefjo^bc:  it  is 
ited  b;^'the  prose- 
,  WW  1  deny  it  still.  I 
not  been  used,  nor  have  I 
ith. 
My  lord,  'you  find  the  prosecutors  have  no- 
thing to  say  to  me  mm  this  head,  after  all  the 
skmlers  and  stories  Iney  hare  published  against 
me,  of  my  having  money  in  my  hands  which 
belong  to  the  deceased :  Bdt  though  they  do 
not  stir  it,  I  will,  and  g^ve  y<mr  lor&hip  a  full 
account  of  all  that  ever  was  in  tliat  matter. 
When  1  lodged  at  Hertfbnl,  some  time  since, 
shn  desired  dm  to  recommend  to  beta  security 


1140      II  W«JJA||  in. 


i&r  HQOL  Wli  came  mmy  way  ;  my  Tor4«  vrbe:o 
Totne  tp  tonut  I  understood  that  one  Mrs. 
Pttlltri  a  client  of  mine,  harj  q  mortgage  *br- 
loaerly  made  lo  Let  by  oae  IHr.  Lofiui,  ofLaEH' 
lielti  in  SiH-rey,  for  the  liko  soiu,  and  thai  she 
t'W&&  willid*;  lo  ba*e  in  her  mout^^' :  I  wrote  Id 
Muis  realletv0(DaD,  the  derx^fl§«:i)|  lo  ticqudint 
%er  of  liie  st'Citritj  ;  she  ihereupoti  did  sf  ad  up 
'  30Q  and  some  odd  pounds  for  intent  c&l  (the  ac- 
^unt  of  which  I  prcidnc^  to  my  Loni  ebkf 
jiwlice^)  this  money  \^%w  s^nl  to  me  hy  Mr 
^ramikhUfls  t  have  been  informt-d^  and  by  him 
jfiveu  to  Mr,  Tolier's  clerk,  and  by  himbrou§*bt 
jvublkly  to  met  my  lord,  ibis  niort^wge  I 
imiflediately  ii"ansferrefl  by  asi-ijppiment,  eiidor- 

!%iistee  lor  Mrs.  Ptdler,  tigged  find  Mijed  it,jind 
iLat  very  tOO/.  aail  iuterebt  diif^,  14  as  at  oBe  and 
the  same  tiote  paid  lo  Mr$.  Pulkr,  and  Sy  h^r 
the  principai  was  paH  lo  her  diitightcr,  in  part 
of  htr  portion,  All  tbi*  was  traii^cted  the  be- 
.ffiaeiDg  of  December  last,  an«1  j^hsi  w&s  not 
*>4rowned  till  ibe  tSth  of  Mari^h  following:  and 
■my  lord,  these  people  Uial  are  now  the  prose- 
caiors,  did  oh  a  before  my  lord  chief  justice 
thul  they  bad  fountl  this  tnortir^e  aimoOH^  the 
ilfCffljed'i  wrilifig^  in  ber  cabinet  at  thetliue 
of  ber  deatb.  Naw,  my  hri^  I  my ,  that  sarinjf 
thk  oneaerrice  I  did  her,  as  I  said  in  December 
last}  t  never  wa*  otherwise  concerned  with  her 
in  the  receiving  or  dii^po&iiig  of  any  of  b£^r  mo- 
ney I  nor  hmL  1  cfer  any  of  her  fifct»*iliei  for 
raoney  in  my  keepiiig  i  and  I  defy  any  adv«r^ 
sary  I  have  to  eh^w  the  contrary. 

Mjr  lord,  as  there  appear*  no  malicet  no  in- 
terest, so  they  bare  prored  for  me  lb  at  there 
wai  no  concealment  of  «^bamo,  lo  induce  me  lo 
commUso  barbarous  an  aclion ;  other  wise^  per- 
baps,  now  Ihey  |i ad  they  can  assign  no  other 
eause,  they  would  content  themselves  to  gife 
thai  retULon.,  $nd  flio^  that  scandal  at  me  i  and 
though  I  take  it  by  the  experience  I  have  had 
of  them,  ibey  did  not  design  to  do  me  any  fa- 
vour^ yet  I  thank  thC'm,  in  cndearonrin^  to  vin- 
dicate her  bononr,  tbey  faavc  secnri^d  my  re- 
putation ng^mst  that  e::atumny  ;  and  thiiugb  I 
mm  ^tbfied^  as  I  said«  tbey  did  not  hi  tend  me 
kindnesi,  yet  I  tbank  Gmi^  they  have  given  me 
M  jn£t  oppctriiinity  to  take  advantage  of  their 
{gunning  for  ibe  clearing  of  my  innocence  in 
that  particular. 

Then,  my  lord,  nol  to  rest  it  here^  bat  to  sa^ 
tUfy  the  jury  and  the  world  hnw  lhi«  q^entle- 
woman  c^me  to  de&^roy  h«r»etf ;  1  shall  g^ve 
jtbe  c1i?ar«st  eviilence  that  was  ever  given  ifi 
Any  court,  that  she  murdered  hemclf^  Wli^ii  I 
«Dier  upon  Ibis  prooJ',  I  mnsil  of  necessity  tree* 
imEs  upon  the  character  of  i\m  ^ntlewotnan 
|bat  h  dead.  I  conl^sa  this  h  a  tender  point, 
iUsalhin^  I  would  wiUingly  |m?  extnised  from» 
«d)d  it  IS  not  witliDut  a  in'eat  deal  of  rehidan^^ 
aud  compulsion  forced  from  me.  That  she 
was  melancholy  the  [iro»ecutnrK  them <ic$v^&  have 
luovetl  ;  bui  I  must  of  nece^ity  shew  vou  ilie 
CH3icsi2hions  ami  reAsonis  of  itt  ami  ihe  witnesses 
W]<]  %tM  yorir  lor<ljibip  wb»i  dtf^p«.-r;&£e  ne^u- 
U^m  ^  bid  be«n  ttfttlit  lunu4rlyt  itiid  SLai 


Tfud  qf  Bpe^^t  Cuwper  and  4fiherh   ^ 

will  kad  me  lo  near  the  time  of  h& 
Kliew  \irhy,  and  upon  what  accidenlft, 


away  ber«cU',  I  will  noi  enumetafi 
lara  by  way  of  opeoing^ ;  nnl^  t  ttuti 
lordship,  thitt  some  Wuers  ut  ber *i  m 
cessity  l>e  pi-oduced,  which  truly «  aj 
should  not  meddle  with,  if  1  had  not 
nocent  (^entteineit  here  to  defend  as  it 
self.  Pi'th^pf  it  may  be  said «  thai 
I  ought  to  concciil  tbo  «  eakne^  nf  tl 
MO  man  ;  but  then,  in  honour  and 
these  geiitfemen  that  are  falwiv 
with  me,  I  cannot  do  it :  I  hone  tbi; 
son  will  cvcufie  me  lo  the  w*/rft,  (br 
other  that  could  have  obliged  me  to  bi 
b- Iters  upon  the  slajje.  I  solemnly  p 
stood  here  singly  m  the  case  of  mj 
upon  the  evidence  given  a^tast  me^l 
be^o  inctiiisiderdbk«  I  would  nol  dol 
must  do  it,  to  shew  that  ifiese  gteotki 
ai-e  Lauocent,  and  to  presenre  tSfll^ 
am  satisfied  in  my  own  mind  they  an 
lord«  when  I  have  dune  that,  1  ^ball  « 
loniibip  in  the  next  place^  tb»t  it  is  it 

Iiosdble  1  could  be  coucerned  in  tbb 
lad  had  all  the  motirea  and  profOi 
the  viQrki  to  have  done  h;  I  maMd 
lordibipi  in  point  of  lime  it  cf>ubl  not 
The  maid  Sarah  Walker,  who  is  I 
witncsi,  I  take  it,  tliat  myn  any  tbii 
least  Tf^lating^  to  me,  taid  but  now  the 
siraxk  deveu  before  she  carried  np  1 
and  almut  a  quarter  of  an  hour  after, 
was  warming  the  bed  above  ^tair^  i 
the  door  clap,  and  some  ume  after 
came  down  and  fouml  that  J  aud  ber 
wi^re  [^one.  Now  in  point  of  time  I  si 
it  utterly  impossible  I  c^juld  be  gttill 
fact  I  am  aceuseil  of,  bcnng  seen  to  1 
the  Glove- inn,  as  the  town- cluck  stnM 
and  slay  in  (I  there  more  than  a  qnan 
hoor«  was,  aiter  several  Ibiugs  don 
lodging,  in  bed  before  twdte  o^ckM:^, 
DO  more  out  that  night,  a»  I  shall  pt 
for  thttt  little  circumttance  of  sendiit 
horse,  which  they  have  made  uae  of 
to  back  thia  prosecution,  their  very  t 
of  lb  at  matter,  shews  how  much  Ibv 
to  their  shifts  to  juiitif^'  their  accusiai 
aay  In  prudence  1  ouj^hl  tii  have  done  w 
1  sent  for  him  on  the  Tue^iay  ;  but,  as 
nesa  ^th,  I  told  him  at  the  tiui«  I 
fetch  my  horse,  not  to  use  tlien,  nor  ti 
course  of  the  circuit  1  was  to  go  inm  Bt 
the  jud^fet  the  next  moruin^  i  and  i 
the  prosecumr^s  wrtnes«,  wlm  if  iba  I 
the  Glove-inn,  vraa  ordered  to  aetMi^ 
10  litter  him  dowo,  and  lo  take  tviipl 
feed  hitn,  and  that  be  should  be  iWQU 
gio  |n  Chelmsfbrd  00  the  inorrpff.  V 
went  i«ith  the  other  cuuna^l  iha  Pf^M 
bein^  Wedaesdtiy  :  and  this,  Id|  fk 
wbuk  o(  that  inatier. 

My  brd,  this  busings  dept  ^ti 
aAer  the  coroner'i»tnque«t  bmn 
imagined  myself  to  be  «^ 
was  oevei-  surred  tUl  UHf  jfl 


for  the  Murder  of  Mrs.  Sarah  Stout 
tfionft,  had  laid  their  heads  to- 


;  leave  to  let  yoar  lordship  a  little 
*r,  to  shew  you  how  this  prosecu- 
16  managed  with  so  much  noise 
as  it  hato  been.  I  can  make  it 
le  of  the  greatest  of  the  Quakers, 
name,  has  Tery  much,  and  imli- 
cemed  himself  in  this  matter :  it 
iicy  the  reputation  of  their  sect  is 
t :  for  they  think  it  a  wonderful 
absolutely  impossible  (however 
nay  be  liable  to  such  resolutions,) 
was  bv  her  education  entitled  to 
ithin  ner,'  should  run  headlong 
r,  as  if  she  had  been  possessed 

of  this  they  think  their  sect  is  to 
)ngh  by  spilling  the  blood  of  four 

The  other  sort  of  people  that 
le  Quakers  in  this  prosecution,  I 
now  I  come  to  obser>'e  what  the 
that  have  been  produced  against 
them  I  have  nothing  to  object  to, 
re  extreme  indigent  and  uoor,  and 
)ed  by  the  prosecutor ;  tnose  that 
thin|^  as  to  me ;  others,  who  live 
nd  give  their  opinions  of  the  man- 
th,  are  possessed  with  much  pre- 
t  me,  upon  feuds  that  have  risen 
s  of  my  father  and  brother  in  this 
se,  with  the  Quakers,  have  wholly 
I  matter  for  several  ends ;  the 
naintain  the  reputation  of  their 
i  others,  to  destroy,  or  break  at 
«st  of  my  family  m  this  place : 
ifectual  these  designs  may  have 
nade  a  great  noise  in  the  world 
[,  I  am  satisfied  now  that  1  am  in 
ice,  where  no  person's  reputation, 
life,  will  be  sacriGced  to  the  po- 
of a  party  without  proof;  and 
five  talcen  up  so  much  of  your 
e  true  rise  of  this  prosecution  be- 
:lear  light. 

i  to  my  coming  to  this  town  on 
IS  the  first  day  of  the  assizes,  and 
-eason  that  brought  me  hither: 
out  of  town,  I  confess,  I  had  a 
a  lodging  at  this  gentlewoman *s 
been  invited  by  letter  so  to  do ; 
D  why  I  did  not  was .  this :  my 
I  he  went  the  circuit,  always  fa- 
h  the  offer  of  a  part  of  his  lodg* 
;  of  ^ood  husbandry  1  always  ac- 
ist  circuit  was  in  parliament  time, 
ler  being  in  the  Money-chair, 
•nd  the  circuit  as  he  used  to  do  ; 
ood  lodgings,  I  think  one  of  the 
m,  where  1  used  to  be  with  him ; 
'tiys  kept  for  him,  unless  notice 
se  contrary.  The  Friday  before 
to  the  assizes,  I  happened  to  be 
ith  my  brother  and  another  geu- 
en  I  shewed  them  the  letter  by 
amestly  invited  down  to  lie  at  the 
Ipentlewoman  during  the  assizes 
9tb  of  March  last) ;  and  design- 
with  the  invitation,  I  thereupon 


A.D-  1699.  [1150 

deahred  my  brother  to  write  to  Mr.  Barefoot^ 
our  landlord,  and  get  him,  if  he  could,  to  dis*. 
pose  of  the  lodgings ;  for,  said  1,  if  he  keeps- 
them  they  mast  be  paid  fbr,  and  theii  I  cannot 
well  avoid  lying  tfiere :  my  brother  did  say  he' 
would  write,  if  he  could  think  on  it ;  and  tliiis, 
if  Mr.  Barefoot  disposed  of  the  lod^ngs,  I  own* 
I  intended  to  lie  al  the  deceased's  nouse ;  but 
if  not,  I  looked  on  myself  obliged  to  lie  at  Mr. 
Barefoot's.  Accordingly  I  shall  prove,  as  sooz\ 
as  ever  I  came  to  this  town,  in  the  morning  of 
the  first  day  of  the  assizes,  1  wont  directly  t(i' 
Mr.  Barcfoot's  (the  maid  and  all  agree  in  this),, 
and  the  reason  was,  I  had  not  seen  my  brother 
after  he  said  he  would  write,  before  1  went  out 
of  Louflon  ;  and  therefore  it  was  proper  fbr  me 
to  go  first  to  Mr.  Barcfoot's,  to  know  whether 
my  brother  had  tvrote  to  him,  and  whether  be' 
had  disposed  of  his  lodgings  or  not  As  soon 
as  I  came  to  Mr.  Bareibot's,  there  was  one  if  r^ 
Taylor,  of  this  town,  came  to  me,  and  [  in  his' 
hearing  asked  Mr.  Barefoot,  his  wife,  and  maid- 
servant, one  afler  another,  if  they  had  received' 
a  letter  from  my  brother  to  unbespcak  the 
lodgings ;  they  told  me  no^  that  the  room  was 
kept  for  us ;  and  I  think  they  had  made  a  fire, 
and  that  the  stiects  were  airing.  I  was  a  little 
coucernetl  he  had  not  writ ;  but  Mug  satined 
that  no  letter  had  been  received,  I  said  imme-. 
diately,  as  I  shall  prove  by  several  witnesses,' 
If  itfaie  so,  I  must  stay  with  you,  1  will  take  up^ 
my  lodging  here :  Thereupon  I  aliglited,  tna 
sent  for  my  ba;;  from  the  coffee-house,  and 
lodged  all  my  things  at  Barefoot's,  and  thus  1 
took  up  my  lodging  there  as  usual.  X  had  no 
sooner  done  this,  but  Sarah  Walker  came  to  me 
from  her  mistress  to  invite  me  to  dinner,  and 
accordingly  I  went  and  dined  there ;  and  wbeu 
I  went  away,  it  may  be  true,  that  being  asked^ 
I  said  I  would  come  again  at  night ;  but  that  I 
said  I  would  lie  there,  I  do  positively  deny ; 
and  knowing  I  could  not  lie  there,  it  is  unlikely 
I  should  say  so.  My  lord,  at  night  I  did  come 
again,  and  |>aid  her  some  money  tliat  I  received 
m>m  Mr.  Loftus,  who  is  the  mortgager,  for  in* 
terest  of  the  200/.  1  before  mentioned  (it  was 
0/.  odd  money,  in  guineas  and  half-gnineas) : 
1  writ  a  receipt,  but  she  declined  the  higning  of 
it,  pressing  me  to  stay  there  that  night ;  which 
I  refused,  as  engaged  to  lie  at  Mr.  Barcfoot's, 
and  took  my  leave  of  her ;  and  that  very  money 
which  I  paid  her  was  found  in  her  [jocLet,  as  I 
have  heard,  af)er  she  was  dmwne<l. 

Now,  my  lord,  the  reason  that  J  went  to  her 
house  at  night  was,  first,  as  1  &nid,  to  pay  her 
the  interest  money  ;  in  the  next  pinre,  it  was 
but  fitting,  when  1  found  myself  under  a  neces- 
sity of  disappointing  her,  and  lying  at  iSare> 
foot's,  to  go  to  excuse  my  not  lying  there, 
which  I  had  not  an  opportunity  at  dinner -time 
to  do.  My  lord,  1  ufien  my  defence  shortlj  , 
referring  the  narticulars  to  the  witnesses  them- 
selves, in  calling  those  who  will  fully  refub? 
the  suppositions  and  inferences  made  by  tlie 
prosecutor,  whom  first,  my  luid,  1  idiull  begin 
with,  to  shew  there  is  no  evidence  of  any  mur- 
der at  all  committed ;   and  this,  I  saya^ia^ 


1151] 


11  WILLIAM  IIL         Trial  qf  Spencer  CiMper  and  otherst        [lltt 


ought  to  be  indisputably  made  manifest  and 
proved,  before  any  man  can  be  so  moch  as  sus- 
pected for  it. 

Baron  HatselL  Do  not  flourish  too  much, 
Mr.  Cowper;  if  you  have  opened  all  your  evi- 
dence, call  your  witnesses,  and  when  they  have 
«nded,  then  make  your  observations. 

Mr.  Cowper.  l^hen,  my  lord,  [  will  take  up 
no  DHire  of  your  time  in  0|>ening;  this  matter. 
Call  Robert  Dew.  (Who  appeared.)  When 
Mrs.  Sarah  Stout  drowned  herself,  was  not  you 
a  parish  officer  ? 

Dew.  I  was.  I  was  next  house  to  the  Coach 
and  Horses ;  and  about  six  o'clock  came  a  little 
boy  (Thomas  Parker's  boy),  and  said  there  was 

•  woman  fallen  into  the  river.  I  considered  it 
was  not  my  business,  but  the  coroner's,  and  I 
sent  the  Imy  to  the  coroner,  to  acquaint  him 
with  it,  and  the  coroner  sent  word  by  the  boy, 
and  desired  she  roi^^t  be  taken  nut ;  so  I  went 
to  the  river  and  saw  her  taken  out :  she  lay  in 
the  river  (as  near  as  I  could  oniess)  half  a  foot 
in  the  water;  she  was  covered  with  water ;  she 
bad  a  striped  petticoat  on,  but  nothing  could  be 
seen  of  it  above  water.  I  heaved  her  up,  and 
aeveral  sticks  were  underneath  her,  and  flags ; 
fod  when  they  took  her  out,  she  frothed  at  the 
nose  and  mouth. 

^r.Cimper.  How  was  she?  Was  she  driven 
between  the  stakes  ? 

Dew.  She  lay  on  the  right  side,  her  head 
leaning  rather  downwards ;  and  as  they  pulled 
her  up,  I  cried,  *  Hold,  hold,  hold,  you  hurt 

*  her  arm  ;'  and  so  they  kneeled  down  and  took 
her  arm  from  tlie  stakes. 

Mr.  Cim-per.  Did  vou  see  any  spot  upon  her 
arm? — Dezv.  Yes, Sir. 

Mr.  Cowper,  What  sort  of  s|»ot  was  it  ? 

Dew.  It  was  reddish  :  1  believe  the  stakes 
did  it ;  for  her  arm  hit  upon  the  stake  where 
she  lay. 

Mr.  Cou'per.  Pray,  liow  do  these  stakes 
stand  about  the  brid;;e  of  tlie  luill  ? 

Dtir.  1  suppose  they  stand  about  a  loot 
asunder ;  they  stand  slanting,  leaning  down  the 
stream  a  little. 

Mr.  Cozi>per.  Could  you  discern  her  feet  ? 

Dew.  No,  nothing  like  it,  nor  the  striped 
petticoat  she  had  on. 

^Xf.Covper.  Mic^ht  not  her  knees  and  leg>i 
be  upon  the  grouiul,  for  what  you  could  see  ? 

Dtw.  Truly,  if  1  were  put  upon  my  oath, 
whether  they  were  so,  or  not,  [  durst  not  swear 
it ;  sometimes  tlie  wuter  there  is  four  feet, 
sometimes  three  and  a  half ;  i  Mieve  her  feet 
were  very  near  the  bottom. 

Mr.  Coupcr.  Are  not  the  stakes  nailed  with 
their  head  ajrainst  the  bridi^e  ? 

Diw.  They  are  nailed  to  the  side  of  the 
bridge. 

Mr.  Couper.  Pray,  describe  the  manner  in 
which  thcv  took  her  up. 

Dew.  'f  hey  stooped  do»vu,  and  took  lier  up. 

Mr.  Couper.  I>id  they  take  her  up  at  once.* 

Dew.  They  hati  two  heavings,  or  more. 

Mr.  Cowper.  What  was  the  reason  they  did 
not  take  her  up  at  once  ? 


Dta.  Because  I  cried  out,  'Thijkmthv 
am.' 

Mr.  Cowper.  Wassbenot  withiDtbe^ska? 

Dew,  Nuy  this  shoohler  kept  her  out. 

Mr.  Camper.  When  you  oomptaioed  tbev 
hurt  her  arm,  what  answer  dki  they  make  yea? 

Dew.  They  stooped  down  ami  look  her  am 
out  from  between  the  stakes ;  they  could  bM 
have  got  her  out  else. 

Mr.  Cowper.  Afler  she  was  taken  out,  dii 
you  observe  anv  froth  or  foam  come  from  kr 
mouth  or  noser 

Dew.  There  was  a  white  froth  came  frM 
her,  and  as  they  wiped  it  away,  it  was  on  agiii 
presently. 

Mr.  Cowper.  What  was  the  appearueeif 
her  face  and  upper  parts  at  that  time? 

Dew.  She  was  so  much  dis6ffured,  1 1^ 
lieve  that  scarce  any  of  her  neigbboun  kaet 
her,  the  slime  of  the  water  beinff  upon  bir. 

Mr.  Cowper.  Did  yon  aee  her  maid  8mb 
Walker  at  that  time?— Dew.  No. 

Baron  Hatteil.  Mr.  Gowpery  do  yoa  vHai 
to  spend  so  much  lime  wiu  eveiy  witacs? 
I  do  not  see  to  what  purpoae  many  of  thv 
questions  are  asked. 

Mr.  Cowper.  I  have  done  widi  bin  s  id 
Young. 

Baron  Hatseli.  Mr.  Cowper,  I  woaU  Ml 
have  you  straiten  yourselt,  but  oaly  Mk 
those  questwns  that  are  pertinent. 

Mr.  Cowper.  Pray,  give  an  accoonlcf  wU 
you  know  of  the  matter. 

Young.  On  Tuesday  morning,  betwceiS 
and  G  oVIock,  last  assizes 

Mr.  Cowper.  What  officer  was  yon? 

YuunfT.  I  was  constable. 

Mr.  Cifwper.  Was  you  employed  bj  tk 
coroner  ? 

Youiif;.  Not  by  him  in  person.  Betwen 
five  and  6  o'clock  some  of  the  men  that  cut 
into  ray  yard  to  work,  told  me  a  womso  «• 
drownetl  at  the  mill ;  I  staid  a  little  and  wttt 
down  to  see,  and  when  1  came  there  1  saw  a 
woniau,  OS  they  had  told  me,  and  I  saw  put 
of  her  coat  lie  on  the  top  of  the  water  to  k 
seen,  and  1  looked  strictly  and  nicely  willui^ 
the  bridge,  and  saw  the  face  of  a  woman,  iiJ 
lier  left  arm  was  on  the  outside  the  sukfli 
which  I  believe  kept  her  from  {Toini;  tbivo^; 
so  I  looked  upon  her  very  wishfully, and** 
goint^  back  again  ;  and  as  I  came  back  I  ami 
witli  R.  Dew  and  two  of  my  neighlNMBS,  aW 
they  asked  me  to  go  back  wTth  them,  soil  iai^ 
they  \vere  going  to  take  her  up;  and  bdB| 
constable,  1  told  them  I  thought  it  was  art 
proper  to  do  it,  and  they  said  they  had  onfaj 
for  it ;  so  f  being  constable  went  back  to 
them,  and  when  I  came  there  1  found  her  ia 
the  same  posture  as  before ;  we  viewed  fc" 
very  wishfully  ;  her  coat  that  was  drives  i* 
the  stakes  was  seen,  but  none  of  her  other enj 
«»r  her  legs ;  and  after  we  had  looked  a  i* 
while  upon  her,  we  spake  to  Dell  and  Uk** 
take  her  up,  and  one  of  ihem  wok  holdoffc* 
coat  till  he  brought  her  above  water;  aai* 
her  arm   drew  up,  1  saw  a  Uack  phe^  ■* 


.fir  the  Murder  of  Mrs.  Sarah  Siout. 


tiileiray,  that  be  could  not  take  her  up 
liad  let  her  down  again,  and  so  they 
her  out  aideway  ;  for  the  stakes  were 
together  that  sue  could  not  lie  upon  her 
"  upon  her  back  ;  and  when  they  had 
Br  up,  they  laid  her  down  ujran  a  green 
ind  atW  slie  was  laid  down,  a  ffrcat 
'  of  froth  (like  the  froth  of  new  beer) 
out  of  her  nostrils. 

I  HatuU.  Uow  much  do .  you  call  a 
uiotity  ? 

g.  It  rose  up  in  bladders,  and  run  down 
ides  of  her  face,  and  so  rose  again ;  and 
ler  look  like  a  gentlewoman^  we  de- 
e  Ulse  to  search  her  pockets,  to  see  if 
'ere  any  letters,  that  we  might  know 
t  was ;  80  the  woman  did,  and  I  believe 
u  twenty  or  more  of  ua  tliat  knew  her 
ell  when  she  was  ali?e,  and  not  one 
ew  her  then ;  and  the  woman  searched 
lets,  and  took  out  six  guineas,  ten  ahil- 
(,  three  pence  halfpenny,  and  some 
ings  ;  and  aAer  that  1  desired  some  of 
fbbours  to  go  with  me  and  tell  the  mo- 
3r  when  it  came  to  be  known  who  she 
(new  we  must  n?e  an  account  on  it, 
id  it  upon  a  block  and  told  it,  and  they, 
p  in  a  hauflkerchief,  and  I  said  I  woukl 
i  money,  and  they  should  seal  it  up  to 
any  question  about  it ;  and  during  all 
le  of  discourse,  and  sealing  up  the  mo- 
froth  still  worked  out  of  her 'mouth. 
meper.  Have  you  measured  the  depth 
ater  ?  What  depth  is  it  there  d> 
^.  I  measured  the  w  ater  this  morning, 
as  so  high  that  it  ran  over  the  floodgate, 
height  of  it  was  about  ibur  loot  two 
but  sometimes  it  is  pent  up  to  a 
height  than  it  is  to  day. 
Zowper,  Was  it  higher  to  day  than 
e  body  was  found  ? 

(.  To  I  he  best  of  my  remembrance,  it 
ligh  to  day  as  it  was  theu. 
2owper.  Waa  any  part  of  the  body 
iter? 
If.  No,  nor  nothing  like  the  body  could 

owper.  Could  you  see  where  her  legs 

^.  No,  nor   nothing   but    her  upper 
hich  were  driven  against  the  stakes. 
(Mcper,  Pray  give  an  account  how  long 
tliere,  and  when  she  was  conveyed 

f.  I  stayed  a  quarter  of  an  hour,  and 

rest  and  scaled  up  the  money  at  my 

■e,  so  that  I  did  not  see  her  removed. 

met    Was   any  body   there  besides 

at  this  time? 

^  Ye9 ;  twenty  people  at  the  least. 

pjiet.  Now  herb  is  ten  of  them  that  hare 

at  the  body  was  above  the  surface  of 

r. 

HaUeli  No,  her  cloaths,  they  say, 

t  the  body  was  something  under  the 

cwper.  Now  I  will  troubia  your  lord- 
.  XIII. 


.A.p.lG99.  [1154 

ship  no  more  with  that  fact,  but  I  will  give  you 
an  accouiit  of  the  coroner's  inquest,  how  oili- 
gent  they  were  in  their  proceedings,  ami  pro- 
duce a  copy  of  the  inquisition  itself^  that  ah# 
was  found  to  have  drowned  herself. 

Baron  Hatsell,  Mr.  Cow  per,  that  is  no  evi- 
dence, Jf  it  be  produced  in  order  to  contradict 
what  these  witnesses  have  said,  thai  have  been 
examined  for  the  king  ;  but  if  yon  will  pruve« 
that  they  have  sworn  otherwise  beCorc*  the  co- 
roner  than  tliey  now  do,  then  youjuy  some- 
thing, otherwise  the  coroner's  inquest  signifies 
nothing  as  to  the  jiresent  question. 

Mr.  Cowper,  Uall  Thomas  Wall.  I  am 
loth  to  be  tcoublcsome  ;  hut  if  you  please  to 
favour  me,  I  desire  to  know  of  them,  whether 
they  do  admit  there  was  an  inquisition,  and 
that  she  was  found  '  non  compos  mentis,'  and 
did  kill  herself. 

Air.  Jone$.  We  do  admit  it. 

Juryman,  We  desire  it  may  be  read. 

Baron  Hatull,  Why,  will  not  you  beliere 
what  they  agree  to  on  hoth  sides  ? 

Juryman.  If  tlieydo  agree  so,  I  am  satis- 
fied. 

Mr.  Cowper.  Thomas  Wall,  pray,  do  yoa 

give  an  acconni  of  what  you  kuow  of  Airs. 
toot's  being  taken  up. 

Wall.  My  lord,  I  was  one  of  the  jury,  that 
viewed  her  at  the  place  where  she  was  laid 
when  she  was  taken  up,  and  there  was  no 
marks  upon  her,  6nly  a  little  mark  about  her 
ear,  and  something  near  her  collar  bone ;  that 
was  all  I  see  upon  her. 

Mr.  Cowper,  Do  you  know  any  thing  of 
any  surgeons  being  employed  to  view  those 
marks  ? 

WalL  My  lord,  we  had  several  persona 
that  came  before  us  that  we  examined  ;  we 
had  a  dispute  concerning  these  marks  what 
might  effect  them,  and  we  desired  Mr.  Dima- 
dale  and  Mr.  Camlin  to  see  them,  that  we  might 
be  the  better  satisfied ;  and  they  both  went 
down  and  viewed  the  body  alter  it  was  brought 
down  to  Mrs.  Stout's  ;  and  they  came  back, 
both  of  them,  and  Mr.  John  Dimsdale  told  us, 
that  these  marks  were  no  more  than  were  usual 
in  such  cases,  and  it  was  only  the  stagnation  of 
blooil. 

Mr.  Cowper.  Was  it  the  old  man  or  the 
young  man  ? 

WalL  It  was  the  young  man. 

BIr.  Cowper.  Usual  did  he  say  ? 

Wall,  i  can  tell  the  very  words,  I  have  them 
writ  down. 

Mr.  Cowper,  Pray  do  so,  for  he  has  denied  it 
here. 

WalL  (Looks  on  his  paper.)  Here  it  is.  Mr. 
Dimsdale  and  Mr.  Camlin  came  to  us,  and'Mr. 
Diui8«tale  spake,  and  said  these  marks  are 
usual,  or  might  be  u&ual ;  or  if  they  were 
marks,  it  was  no  more  than  was  usual  in  such 
cases ;  and  that  it  was  the  stagualioo  of 
blood. 

Mr.  Cowper.  Now  you  have  your  notes  in 
your  hand,  pray,  what  did  ^<arnh  W^alker  say 
to  you  as  to  the  time  1  went  fcem  Mrs.  MoiU'b  f 

4fi 


fr 

Wttiim  m^*l,  II    itit    0mm 

O 

<lii»  <«*f«itif  nfft  9t*ff  ^iA  nm 

r  ' 

ii. 

,....,         ...H-        IMi          f*^      «||# 

i 

<«Miiir 

l>, 

i"<i  • 

iv 

wprit 

f,   ,,  ,„, 

1  "^    *  '      r-     •  •■    1.    ulwtit^ 

hiir*  Irtttcn  litn^ctly  uriilrr  tuy  uwn  tiDrjnl 
Aft  l»  lUy  0(jiHf*iii  'ijf  ilniwiijfip,  it  h  trial  n 
»f  •  gr*!»t  <j(»ariijty  «f  water  be  swnhuin 
llM>f  uM^  intri  ihv  9ir»nitich,  it  m'tU  ntic  i4$ 
m  if  row  n  I  fie  |>*nno  ^  Dnmkardi,  whn  < 
fh'rly  A  invnt  fl^ffl  tjf  liquor,  Aiid  tba 
fiiri'iffl  by  lb«  HtU  law  li»  itruLk  s  | 

it  »  cAllffi])  ii  |i4>i]rcd  iDt«  iT 
tiir^  lo  mnkfl  Uit<m  coitfM 
HtiiTciciition  nr  ittimtttn^  hiff  r« 
M  tiM  «llMr  iMMAftWitaamv 
lilotii«wM|l«ibtraiikr^ 

tte  pinwIiitfMiftM.   m^uwmm^ 
tl^y  iriD  ^  mmmAmb  » 

Milillwlc 


Wii(»il  itiiti  itm  |i«iliiiir,  imd  tt»r  iiuNfiiMM  itm 
Hmiiii  NNfiW/.  Hiik  itfiiiiiiv  Mill  lilt  iimft 

tktNH 

i.    '    '.' 

Hup ^111    14^1  t«i//    UliU  liiM  yini  111*  {ilbt^kl  ilUl 


h  ii  nii#iiM«ry  lit  liii«  |iir1iciy* 


1*14^  /  ■  -  1  ^»ii  fntl  fifths  n^M^  h 

Ah 


i|n««ari 


Jib*         l4(iMll^iHiM>V«^ 


W^  s  M   s-  vvi  ^    

^vn.    ■•      ^>  V     >^»**  V    (x«u*  ♦     ^  •*.  -.^  «\     .<«h.     » 

^s        K        N     ■'*^     »w»    *,*«^  ''-«. -...».    .  e*. 

>^%      **          ■       .              ••      •.      ^       %  •  r^.t'^      *.     .X'^B* 


T^    >■>. 


«im  3tt«  :£iis :  :^ jc  n  rssc  &  : 

HI*  : 


157J 


Jgr  the  Murdir  of  Mrs.  Sarah  Stout.  A.  D.  1699.  [11S8 


t  the  lue  of  any  fpices,  which  b  thought 
a  grcftt  nieaiure  to  oe  brought  about  by  the 
weoMs  of  the  coffin,  and  himiering  of  the  air 
im  ooiDing  into  the  body. 
Mr.  Ctmper.    It  it  possible,  in  your  judg- 
nt,  for  any  watef  to  pan  into  the  thorax  ? 
Dr.  Sloani.    I  believe  it  is  hardly  possible 
Kl  any  should  go  from  the  windpipe  into  the 
f  ity  ef  the  thorax,  without  great  Tioleoce  and 
loe ;  for  there  is  a  membrane  that  co?ers  the 
Inde  of  the  lungs,  that  will  hinder  the  water 
im  passing  through  it  into  any  part  without* 
m. 
Mr.  Camper,   Now,  do  you  think  it  possible 

find  water  in  a  drowned  hody  after  six  weeks 
■e? 

Dr.  Sloane.  I  am  apt  to  think  if  there  was 
ly  quantity  in  the  lungs,  the  sponginess  of 
M  part  would  suck  up  some  part  of  it.  As  to 
li  stomachy  I  have  not  known  it  tried ;  but  it 
like,  if  there  was  a  great  fermentation,  a  great 
eal  of  it  would  rise  up  in  vapours  or  steams, 
adgooflftliatwav. 

Mr.  Cowper.  Dr.  Garth,  1  cannot  tell  whe- 
bir  you  were  in  court  when  the  surgeons  who 
It  witnesaes  for  the  king  gave  their  evidence. 

Br.  Garth.  Yes,  1  was. 

llr.  Ciwper,  Then  I  desire  yon.  Sir,  to  give 
mr  opinion  as  to  those  particulars. 

Dr.  Garlk.  I  observetl  in  this  trial,  the  first 
Dan  called  for  the  king  tliat  s|ioke  to  this 
*  waa  Mr.  Coats  worth :  He  xaith  he  was 
M  for  10  open  her,  upon  an  aspersi*^  of  her 
■ine  laiil  to  be  with  child.  1  agree  with  him 
■  vhat  he  speaks  to  that  point,  but  must  differ 
lib  bim  whijre  he  infers  she  was  murUereil, 
Muise  he  found  no  great  quantity  of  water  in 
Mr,  u  also  her  head  extremely  mortified,  but 
Ht  ber  lungs  (lungs  and  bowels  I  think  were 
1  promiscuously .)  Now,  my  lord,  as  to  the 
''T  of  |Hitrifaction,  I  think  it  is  not  much 
■Mrial  whether  thei-e  be  any  water  or  no  in 
m  cavities  of  the  body  ;  if  water  would  hasten 
■nfoctioo,  it  would  do  it  as  well  in  the  lungs 
laibenvise;  there  is  always  some  water  in 
!•  lympbeitucts  there,  the  breaking  of  which 
^  be  one  occasion  of  catarrhs.  As  to  what 
KtaB  to  the  putrifaction  of  the  liead,  it  may 
topen  from  a  stoppage  of  the  n'flucnt  blood, 
bicb  is  staid  there  in  a  great  quantity, 
t^ugh  the  suffocation  in  the  water,  or  from 
B  veamess  of  the  brain,  which  is  observed 
tab  to  mortify  first. 

Tke  next  was  Mr.  Dinuulale  (I  would  s^ienk 
them  all  in  onler  if  my  memory  would  per- 
^ ;  I  think  be  waa  ot  the  same  opinion  as 
r.  CoaUwurth ;  he  laiil  the  stress  of  his  sus- 
sioa  upon  the  mortification  of  the  head,  which 
Ihiak  isoot  at  all  material,  no  more  than  what 
^  inter  fmm  her  floating  ;  it  being  impos- 
m  the  body  should  have  floated,  unless  it  had 
■led,  or  had  been  entangled  an>ong  the  Makes, 
i^attSB  all  dead  bodies  (I  l>elieve)  fall  to  the 
iMB,  anicss  tliey  be  prevented  by  some 
^■^iMdinary  tumour.  My  lord  we  have  uot 
py  fUloaophv,  but  experiments  for  this, 
■iwtinwii  Jl  ■gwa  aha  wu  fonod  upoD  ber 


side,  which  to  suppose  her  to  float  in  this 
posture,  is  aa  hard  to  be  conceived,  as  to 
imagine  a  shilling  should  fall  down  and  real 
upon  ita  edge  rather  than  its  broad  side ;  or  that 
a  deal  boadi  should  rather  float  edgeways  than 
otherwise ;  therefore  it  is  plain  she  was  en- 
tangled, or  else  the  posture  had  been  otherwise.: 

As  to  the  quantity  of  water,  I  do  not  think  it 
necessary  it  shoukl  be  very  great.  I  must  owd* 
the  water  will  force  itself  into  all  cavities  where 
there  is  no  resistance.  I  believe  when  ahe 
threw  herself  in,  sbe  might  not  struggle  to  save 
herself,  and  by  oonaequence  not  sup  up  much 
water.  Now  there  is  no  direct  passage  into  the 
stomach  but  by  the  gullet,  which  is  contracted 
or  pursed  up  by  a  muscle  in  nature  of  a  sphinx 
ter :  for  if  this  passage  waa  always  open  Uke 
that  of  the  wind- pipe,  the  weight  of  the  air 
would  force  itself  mto  the  stomach,  and  we 
should  be  sensible  of  the  greatest  inoonve* 
niences.  I  doubt  not,  but  that  some  water  fell 
into  lier  lungs,  because  the  weight  of  it  would 
force  itself  down  ;  but  if  we  eonsiiler  the  wind* 
pipe  with  its  ramifications  as  one  cylinder, 
the  calculation  of  ita  contents  will  not  amonni 
to  above  twenty-three  or  twenty  four  aoUd 
inches  of  water,  which  is  not  a  pint,  and  which 
might  imperceptibly  work  and  fall  out.  I  re-« 
member  I  offered  a  wager  at  Garraway 's  cofice-t 
house  to  a  gentleman  here  in  court. 

Baron  HatselL  Fray,  doctor,  tell  us  yooc 
opinion  as  to  what  the  seaman  aaid,  and  alao  at 
to  what  Dr.  Sloane  said,  whether  water  in  the 
body  will  putrifV  it? 

Dr.  Garth.  I  say  not ;  for  in  some  placef 
they  keep  flesh -meat  from  corrupting  by  pre- 
serving it  in  water,  and  it  is  well  known  it  will 
putrily  le«s  so,  than  when  expose<l  to  air. 

Baron  HutuU.  But  what  do  you  say  aa  te 
the  sinking  of  dead  bodies  in  water? 

Dr.  Garth,  If  a  strangled  body  be  throws 
into  the  water,  the  lungs  being  filled  with  air^ 
and  a  cord  itiX  about  the  ne<:k,  it  is  possible  it 
may  float  because  of  the  included  air,  as  e 
bladder  would;  but  here  is  neither  conl,  noe 
any  mark  of  it,  nor  nothing  but  a  common 
stagnation. 

Baron  Uatsell.  But  you  do  not  observe  my 
qnetition  ;     the  seaman  said,  that  those  thai 
die  at  sea,  and  are  thrown  overboard,  if  yoi| 
do  not  tye  a  u  eight  to  them,  tliey  nili  not  sink 
what  say  you  to  that  ? 

Dr.  Garth,  My  lord,  no  doubt  in  this  they 
are  mistaken.  The  seamen  are  a  superstitious 
people,  they  fancy  that  whistling  ai  sea  will 
occasion  u  tempest :  1  must  coutesH  I  never 
saw  any  body  thrown  over- board,  but  1  have 
tried  some  ex|>eriments  on  other  dead  animals* 
and  they  will  certainly  sink ;  we  have  uied 
this  since  we  came  hither.  Now,  my  lord,  [ 
iliiiik,  we  have  reason  to  suspect  the  seaman's 
evidence  ;  for  he  saith,  that  threescore  |K>und 
of  iron  is  allowed  lo  sink  the  dead  bodiefi 
whereas  six  or  seven  pounds  wouUI  do  as  well. 
I  cannot  think  the  cHiuimissioners  of  the  navy 
guilty  of  so  ill  husbandry ;  but  the  liesign  of 
tying  wfighu  tp  .tbair  bouiea»  if  to  prevent  thtir 


1 159]         1 1  WILLIAM  in.         Trial  of  Spencer  Omper  and  athen^       [IIGO 


ilpatingf  at  all,  which  otherwise  would  happen 
in  some  few  days:  therefore  what  I  say  is  this, 
that  if  these  (rent'caiGii  had  tbimd  a  cord,  or 
the  print  of  it,  about  the  ueck  of  this  uiifortu- 
mHe  (Dfentlewoman,  or  any  wound  that  had  oc- 
casitiiifd  her  death,  they 'might  then  ha?e  said 
something^. 

Mr.  Coapper.  Do  you  apprehend  that  any 
quantity  ot  water  can  enter  into  the  cavity  of 
uie  thorax? 

Dr.  Garth,  It  is  im|tossih!e  there  should  till 
the  lun^s  be  quite  rotten  ;  there  is  no  way  but 
by  the  hing)*,  which  are  invested  with  so  strong 
a  membrane,  that  we  cannot  force  breatli  with 
our  blow- pipes  through  it ;  and  there  is  a  great 
providence  in  such  a  texture ;  for  if  there  were 
any  large  pores  in  the  membrane,  the  air  would 
INI88  through  it  into  the  cavity  of  the  thorax, 
and  prevent  the  dilatation  of  the  lungs,  and  by 
coo8e<juenc6  there  would  be  an  end  «)f 
hreathing. 

Mr.  Covper.  Dr.  Morley,  pray,  be  pleased  to 
give  your  opinion  of  theite  matters. 

Dr.  Alorley.  Those  which  seem  to  be  ques- 
tions of  greatest  moment,  are  whether  then* 
ivas  a  necessity  for  this  body  (if  drowned)  to 
liave  a  great  quautity  of  water  in  it,  and  whe- 
ther bodies  thrown  tlead  into  the  water  float. 
To  the  first  1  answer  |>05itivcly,  that  there  is  no 
absolute  necessity  that  she  sho  hi  have  a  great 
quantity  of  water  in  her ;  and  1  think  the  ques- 
tion Mr.  C.'uwuer  askeil  Dr.  Coatsw«irth,  whe- 
ther he  had  like  to  have  been  drowneil  by  acci- 
dent or  desit;n,  suits  with  mv  assertion';  for  if 
thisgenlleiiomttii  diil  %'uhiiitaril\  ilrowii  lierst  It'. 
she  then,  in  all  likelihoiMl,  threw  iienielfii:tr>  tlso 
water,  with  a  reM^Uitiitn  of  kei'piiii,'  her  [)rt:tili 
for  asipeedy  siitf(>i*ation  ;  niid  Mk-d  if  upon  tite  | 


because  by  putrifaction  they  rarify,  by  mic- 
tion they '  now  lighter,  which  bru^''  iWb  to 
the  top  of  the  water. 

Mr.  Coaper,  1  desire  to  know  if  any  miif 
skill  in  phidenoe  would  give  hisopinioB? 

Baron  HatselL  This  is  not  a  proper  qootiDa. 

Mr.  Camper.  Then  I  will  ask  it  thus:  dojos 
think,  doctor,  it  is  to  be  known  six  weeks  ste, 
if  a  person  was  drowned  ? 

Dt.  Mnrley.  I  think  it  is  morally  imposAk. 

Mr.  Cowptr.  Can  tliere  be  aoy  water  io  tki 
thorax? 

Dr.  Morley.  By  an  impostbume  or  som 
violence  to  liature,  possibly ;  but  I  tbiak  h 
otherwise. 

Mr.  Coaper.  Dr.  Woollaston,  what  b  Tor 
opinion,  if  a  person  be  drowned,  whether  iteH 
be  discovered  six  wef>ksafler? 

Dr.  IVoofiaston.  My  lord,  I  think  it  is  iiiip» 
nWAe  to  be  known;  fur  if  there  had  ben  isNr 
so  much  water  in  the  body  at  first,  it  eouklMt 
lie  there  so  lon^Ti  but  mujt  of  necessity  Invt 
forced  its  way  out.  We  see  in  iiersons  tbstii 
of  dropsies,  that  the  water  will  work  itsdffri 
(and  sometimes  burst  the  body)  befbie  it  if 
buried  ;  and  I  am  suit,  if  it  do  so  in  dropaa,' 
where  there  are  no  visible  passages  for  il  M|a 
out  at,  it  must  do  so  much  more  iu  drovitl 
persons,  where  the  water  lies  only  io  tbefl^ 
mach  and  guts,  and  has  nothing  to  hiaJeriH 
working  out  when  it  ferments,  as  it  alwsji 
doih. 

Mr.  Cotrper.    Have  you  ever  made  aoy  ci- 
pcriiiiriits  in  that  nature,  doctor  ? 
j      Dr.  Woftf'asron.    1   have   made   no  exner- 
I  nieiits,  bull   have  seen  a  very  particuLtr  ic- 
j  siancf. 

Haron  llut^tll    That  is  very  wei! ;  praj  lit 


Arst  endeavours  forrfspiratiou(vvlucli  nauira  Iv  !  us  hear  it,  doctor. 
must  be)  she  drew  inio  In  i-  lunj:s  tvvoounrts  oj'  I  Dr.  Ho  'Uaston.  My  lord,  about  il.rre  y^rt 
water,  it  was  thesauit-  iliiii«;'lOfli-owniniroriier,  since.  I  ^aw  two  men  tli.U  weiednniurdtiif^ 
as  if  there  had  been  two  tiiu.  W  e  see  the  s.ime  .  tin  same  lN>at.  They  were  takvn  op  the  next 
thni^  done  b\  divers  iu  order  to  save  themscli « s,  ■  d,i  \  alVr  ilu'v  \vn  e  drow  rud  :  one  uf  'h-iu  w« 
at»  it  happeTied  to  this  uutbrtunate  ;fcntie%«o-  !  iudt-cd  prtMli'^iousty  swtdli'H,  so  much  that  bii 
miin,  iu  lit»r  diViiTii  of  destroyiinjr  herself:  if  a  !  cluailis  woretiursi  in  several  plac^es  «t  hissidfi 
diver,  hct'ore  he  «!omes  to  the  suiTuce  ot' wafer,  |  and  iiruis.  and  his  stockni^rs  in  these:iui>:  Im 
should  so  far  mistake  his  power  of  hoIdin«4  his  !  bauds  auil  fiiiirrrs  wcn^  strangel\  e\tec>kd; 
breath,  that  he  should  \w  lorred  to  eiiileiivour 


respiration,  the  little  wattr   he  drew  into   iii< 
luni^  by  his  attempt  to  i empire,  may  druwn 
him.     VVe  last  nitrht  dntwned  a  do^r,  and  atier- 
wanis  disseettd  iiim.  and  fo'^iul  not  a  spooutui 
of  water  iu  his  stoinueh,  and,   I  l)elie>e,  ahoiii 
two  uunoes  in  his  lungs  ;  while  we  v*ere  diiinjr 
this,  we  drovvneil  auotluT,  aud  ho  Iny  at  i!ie 
iNiitoni  atid  dill  not  Huat :    no  more  would  hr 
have  \\o\w,  if  ho  had  been  hangrd  before  thrnwn 
ioiu  tlip  water:    we  took  liifn  up,  and  ojKuin:; 
him,  wo  f  uud  much  about  tl  e  >an'.e  tjoantity 
of  v«ater  III  his  liincs.  ami  Liile  «.r  ivme  mi  his  ' 
•toiuaeti.    Theyl«n:Ut  oih\l.ii  ;M-i<oand  iiiouih.  ' 
lv*oauM?  the  vva  er  couLOi;  into  the  hiile  li!ad-  . 
d-'fs  of  the  luM-^s,  aud  x\\*tc  nueti:i;»'  wiih  ar. 
n  co:umot!i.i:i  ar>is<.*  l»e:v\ieu  the  water  and  air,  ■ 
which  caused  the  fn»ih.     To  the  M'tnuul  que>-  . 
tioo,  I  thi.  k  iibodit^  new  kisled  ^wi^l.  it  is  by  i 
act ideot  \  tvr  ihc  reason  that  bodtc«  sw  im,  is  |  is, 


his  face  wan  alniosl  all  over  black ;  but  ilil 
oiher  was  i.ot  in  the  least  swelKd  in  riiiy  |Urt, 
nor  diM:(d:iiind  ;  he  was  as  lank.  I  biliru*.  a 
ever  he  wa^  in  hislitie  lime;  anil  there  was  Dot 
the  leswi  ^i:ri!  of  any  water  in  him,  evcejiti'tf 
\*atci\  t'«.«!i  ni  his  luouth  and  uoMiils.  My 
iitrd.  i'h>  I  saw  myself,  aud  took  ver\  partial- 
lar  notireol  ii. 

'Mr.  .^''.vv  Did  yoii  •ipp  these  bodies  laUi 
out  ot  tin-  *t.  i«r  V'orselt,  tlocior  ? 

I>r.  l!i-'/'u*r- ?i'    No.  Sir. 

.^Ir.  J.-Hii.  How  loiiu  had  they  been  tahi 
out  wIm  ».  v««ii  saw  theru  .■* 

hr.  ll'uPi  t.'s.'.in  1  enquired.  And  to  tbcW 
M'  luv  ireiimry.  it  was  th  '.tsaine  day. 

Da:i-:i  iiulill.  Hut  wliat  do  you  think,  ^ 
tor,  <<f  a  |w  ixuTs  benigdruwnetl  witboutiib^t 
ina  \  ":i!rr? 

l>r.  M'^Mation.    My  hMfil,  what  istskM* 

I  bcbere,  chiefly  at  the  turface  of  the  ^^t  < 


sil 


Jar  the  Murder  of  Mrs.  Sarah  Stmt. 


A.  u.  1699. 


[1163 


eo  they  open  their  moakhi  for  breath,  ind 
iratec  that  rushes  in  thej^  are  forced  to  drink 
m,  to  keep  it  from  the  lung^ :  but  when  the 
id  itouite  underwater,  1  don't  think  it  it 
aible  for  any  quantity  to  get  down  into  the 
nach ;  because  it  }mng  oreath  they  open 
,  the  Fery  first  water  they  take  in  wonid  lOf 
■essity  fill  the  lungs ;  and,  when  (he  breath 
loppetl,  I  don't  see  how  they  can  swallow. 
Hr.  Cowper,  Dr.  Gelstrop,  what  is  your 
nion  cif  this  matter  ? 

Dr.  Gelstrop,  I  don't  think  they  can  make 
fjndj^ent  of  persons  being  drowned  after 
weeks  time. 

Mr.  Covper,  Can  any  water  get  into  the 
nraz? 

Dr.  Gelitrop.  No,  not  unless  the  Inngs  be 
irified. 

Mr.  CoKptr.   Is  a  great  quantity  of  water 
sessary  to  persons  dying  by  drowning  ? 
Dr. Ge/f/ro;/.    No;   only  so  much  as  may 
ider  respiration, 

Hr.  Covper,  Now,  my  lord,  I  would  call 
r.  William  Cowper ;  and  because  of  his  name, 
BBSt  acquaint  your  lordship,  that  he  is  not  at 
lelated  to  me,  though  1  should  be  proud  to 
IB  him  if  he  were  so  :  he  is  a  man  of  groat 
miBg,aDd,  I  believe,  most  people  admit  him 
t  best  anatomist  in  £umpe.    Mr.  Cowfier, 

Swill  you  gire  your  opinion  of  thiv  matter, 
r.  W.  Cowper.  Ny  lord,  I  hope  what  I 
all  say  will  not  be  suspected  because  f  am  of 
Bsame  name,  for  this  gentleman  is  an  utter 
Mfrrr  to  me. 

Baron  HatMelL  Pray,  Mr.  Cowper,  without 
ly  apology,  give  your  opinion  concerning 
Mons  drowned,  and  how  it  is  with  them  in 
fir  inward  parts. 

Nr.  W.  Cowper,  I  will  gi?e  you  a  short  ac- 
Nmt,  I  ho|»e  to  your  fsaliidaction  titn,  my  lunl. 
viH  not  only  speak  tr(»m  reason,  hut  give  yon 
IB  testimony  of  the  exporiments  1  have  made 
psp  this  occasion.  Riy  lord,  1  heard  it  made 
■igfaty  argument,  that  this  |>erson  ha>l  no 
Her  that  seemed  to  tlow  ont ;  but  the  wit- 
BKS  agree  that  there  was  a  froth.  Now,  my 
id,  it  was  not  reasonable  to  expect  any  thing 
>  froth.  My  lord,  had  she  l>een  thrown  into 
leasier,  and' made  her  utmost  efforts,  which 
IS  would  then  have  done  to  have  saved  her- 
tf,  and  been  often  hiinyed  up  to  the  top  of  the 
ucr,  no  iliHibt  but  she  would  have  swallowed 
eonsiderabte  quantity  of  water  before  she  had 
Bra  dniwoeil ;  and  it  may  be  expected  to  flow 
«B  her,  it  her  head  had  been  inclined  down- 
irds. 

This  is  a  troth  that  no  man  can  deny,  who  is 
Dqusiated  uith  any  thing  of  this  nature,  that 
m  tlie  head  of  an  animal  is  under  water,  the 
nt  time  it  is  obliged  to  inspire  (or  draw  in  air) 
^  water  will  necexnrily  flow  into  its  Inngs, 
*t}ie  air  would  do  if  it  were  out  of  the  water  ; 
1^  quantity  of  water  (if  the  dimensions  of 
■windpipe,  and  its  branches  in  the  lunga,  he 
Hindered)  will  not  amount  to  three  inehes 
taa,  which  is  about  three  ounces  of  water, 
^ii •  gitatcr  quantily  of  wtMr  in  the  wind- 


Cipe  necessary  to  choak  any  person,  if  we  do 
ut  reflect  what  an  ebullition  is  caused  by  its 
meeting  with  the  air  which  remained  in  the 
Inngs,  whereby  a  small  quantity  of  water  is 
converted  into  froth,  and  the  channel  of  the 
windpipe,  and  those  of  the  bronchia,  are  filled 
with  It,  insomuch  that  no  air  can  enter  the  lungs 
for  the  office  of  reeiii ration.  Alter  a  suflbofitioQ 
is  thus  commencetl  (I  am  apt  to  think)  all  re- 
gular animal  actions  are  perverted,  and  parti- 
culariy  that  of  swallowing  ^or  deglutition) ;  and 
what  water  flows  into  the  lungs  at  the  instant, 
or  after  this  suflbcation,  is  from  its  own  weight, 
which  is  more  or  less  as  the  body  is  far;  her 
lyider,  or  nearer  the  surface  of  the  water.  My 
loni,  I  do  not  speak  this  by  way  of  conjecture 
or  hvpothesis,  but  I  have  made  experiments, 
which  have  suggested  what  1  here  offer.  I 
shall  by  the  bye  tell  you  how  fallacious  the  first 
experiment  was,  witen  I  proposed  to  satisfy 
myself,  whether  a  dead  body  would  float  in 
water?  it  hapuem-d  that  a  spaniel,  that  had  a 
great  deal  of  louif  hair,  ^ns  hanged  for  this 
pur|)08e,  which  I  found  to  swim  on  the  snrliice 
of  the  \»ater  ;  but  tvhen  I  considere^l  that  his 
hair  micfht  buoy  him  up,  1  caused  another  dog, 
which  had  shorter  and  less  hair,  to  be  hanged 
and  put  into  the  water,  uhirh  ^at;i'eeable  to 
what  1  had  al\%ays  conceive<l  ol  a  human  body) 
sunk  directly  to 'the  bottom,  lu  order  to  sa* 
tisfy  mysell  what  quantity  of  water  was  neces- 
sary to  enter  the  Inidy  ul  an  annual,  and  cans« 
a  sulfocation  in  water,  I  caused  three  doga, 
uheii  alive,  to  be  suddenly  pluu>;ed  under  naier 
till  they  wen-  stitled;  one  was  beture  I  left 
London  ;  the  other  t\«o  1  made  the  exjierimcnt 
on  last  night,  in  the  pre-jence  of  D= .  .Sliwne  and 
Dr.  Morley,  and  we  could  not  coinput«  iher« 
was  more  than  three  ounces  ol'  water  in  their 
lungs,  and  none  that  we  could  jierceiic  in  their 
stomachs. 

Dead  bodies  necessarily  sink  in  water,  if  no 
distention  of  their  parts  *  buoy  them  up  ;  this 
disientiiHi  sometimes  happens  before  tkalh,  at 
other  times  soon  alter,  and  in  liodie<  that  are 
drowned  after  they  lie  under  water :  This  en- 
largement of  them*  is  cansetl  b\  a  rarefaction  of 
the  humours  within  the  cavities,  and  the  iMxIies 
neressarilv  rise  to  the  surface  of  the  water. 
Your  loi-fiKhip  may  infer  this  from  what  the 
seaman  told  you  ;  and  the  ercat  weight  they 
use  10  fjsten  to  their  boilie^  that  die  of  diseases, 
was  not  of  such  use  to  sink  them,  as  it  was  to 
pri*veiit  their  filiating  aftertvartls  ;  so  that  the 
weight  was  necessary  for  thiiscthat  were  killed, 
as  well  as  those  that  died  of  diseasi  s. 

J t  is  so  commonly  known,  that  the  contents 
in  the  stomach  of  a  dcatl  l>ody  arc  discharged 
by  the  mouth  and  nostrils,  so  soini  »s  it  liegins 
to  ferment,  and  the  lielly  l>ecumes  distended, 
that  it  is  no  wonder  that  water,  if  the  greatest 
quantity  of  that  hud  been  in  the  Ktoniurh,  or 
any  thing  else  that  was  fluid,  must  be  forced 
from  them  six  weeks  after  death. 

My  lord,  I  cannot  lint  think  it  ridiculous  to 
expect  water  in  the  cavity  of  the  thorax ;  it  it 
■aw  «  conceit  m  nothing  in  nature  can  nucount 


«m     n.iiiHMK  m.  ,.  jfef4rfnanw>  nnnKti  tmnji,.   xm 


for,  tioieta  Uie  Lud^a  bad  iiifer«f]  ^me  apostu- 
amtidii,  m  tli^  like,  wherc^b^  the  w&ler  inu)- 
pttin  ibtHr  outward  mt^tubiJiyi-K  mi&  Ihat  cavity. 
iHf^  Cimpfr.  VViili  your  Jf>iilsliij»**  (%vi>ur,  1 
SOW  ibink  it  a  proper  time  tu  iimke  tbis  ob- 
■erv^iion.  Tbo  witi^euieK  Uiat  bare  givea  evi- 
dcnC4^  fur  ih^  king  do  say.  ilitj  believe  sSie  was 
QOt  drowned  |    but  ihey  bate  uut  (pret^xuled  lo 

^P^  bow  fibt;  crifi)  otberwiiK^. 

IlJarriiT  HtilBrU.  Tiuit  iirf  vcrj  true. 

'      Mr,  Vim  per .    Dr.  Critll^  I  tii'StitK  yi>ii  mill  be 
pleaned  lo  gtve  an  uuirimia  i»r  ibiH  iniiiu^r. 

Df.  CrtiL  My  )or<l>  I  bave  lilile  in  &ay  in 
tbi*  afltiir^  tb(^  (ib^fiicmnii  ttiat  tia^e  been  exa- 
nbed  alieaUy  hai^ii>i^  itiiide  il  out,  tbal  pi?riQQ« 
wba  are  dravvut^iL  may  bave  but  little  vt  iiter  lA 
tboir  bodiee;  but  Ibute  taken  if  bat  |»aiii!»  I 
«oubl,  M]jiuj  su  nbtni  >varniti^f  atid  I  will  IdJ 
yna  tbc  optintin  of  sevejiil  t;notni»iil  aulborit. 
My  i>iA|i  i^intikm  [9^  tbat  j%  vory  iftnalt  (|U9itiltty 
of  water,  itnt  L'3fcr(^dtti(|  tbrtrtf  onticeM,  is  iin(b> 
enmt  Id  di*<nvn  any  body  ;  and  1  kdtf  ve  Itial 
ih9  rt*asoj^  €i(  ib«^  Ku^bcatiMt,  or  of  arty  pefEou^s 
Wmi^  htiOf^d  tjiiiler  water,  is  from  ibf  lutcrc^pu 
iatf  of  tbt*  i«iiv,  tbnt  tbf  person  ca^mut  brrntlj^, 
wjiWut  wbicb  be  cannot  live.  Now,  tuy  Ifjrd, 
I  iiiti  s^ivG  yon  tbi:  apininn  of  ftevc^fal  nocieai 
aiilbor«t 

BamiLi  HuittlL  Pmy,  doctor,  lell  lis  your  own 
obM^lvatuiri»i. 

^  Dr.  CV*^/*    >ly  loptl,  it  mu«t  be  readinir,  a.s 

^tU  an  a  tnati^  J««  n  ejcpe^iifni  c-,  that  ia  ill  make 
•DV  oti«  •  ubyucian;  tor  wit  bout  tbr  reading 
oflKmkfl  of  tbi^t  art,  the  art  iUtlf  cannot  b«  at- 
tftinccl  to ;  beifcliks  il^y  bn'df  [  boukblv  con« 
^iiip,  tbat  in  aticb  a  difiicnjt  case  as  tliit «  we 
ttilgbt  t«»  have  a  gtt- at  d^lercnee  for  ihe  rviwrU 
aotj  ofiiaiouA  of  te4i  nc^d  queu :  Neitber  do  I  see 
iDy  r&asoo  wby  1  ^bouLd  m>i  qiviie  the  fatbet^  of 
my  |»rultiJ^iuii  11^  tbis  ca&e,  a&  well  asiyou  ^^ntle- 
men  of  tb«  long  rub*?  iinole  Cake  upon  Litik too 
10  oibei-s ;  But  i  sbttll  uot  (roubte  the  cmirt 
loo^ ;  1  feball  only  iositit  tipoti  wbat  Aiiihmse 
parey  refat%'w  in  Ua  eliapter  of  Rinmacii&tioos 
11^  wi^  chwf  inrgtjbou  to  Fmnciji  the  ]>t,  em- 
ploy^ by  bini  lu  luoea  of  bb  sietfett  and  battles 
frpiiiist  till?  map^Jtir  Cbark&  ibe  Stb,  and  eoti* 
i«quenlly  inu«it  ubcterve,  tind  eunld  not  be  isrua. 
rant  of  &nf  b  bk<^  CJbiujitti^  111  nucb  i^fn^at  bo- 
divHf  of  nwa.  lie  |ell«  n«,  tliut  tUfi  certain  sign 
Dt'  a  uian's  bebi^  draword,  i«  an  ap^je^rancc  of 
frntb  abi>ol  hi^  ntHSinU  and  nioiUb.  Noii,  my 
lortl,  1  ibink  (but  every  ooe  ai'  tbe  kiog^  «ti* 
d»riicf^  ub^rFvi^U  it  in  tbe  present  case,  and  a 
wuomn  ttv%  ore,  I  bat  i^Iij®  ^w  tier  pnr^i?  at  tbe 
ftUtte;  wbidi  conlil  not  be,  as  be  declares,  if 
bad  btieu  atrangUd«  or  nUiti  wise 
i  brfiun;.  At  to  tbe  f}uaotii|  uf  wattr  r«  ■ 
^  ffli  dr^iw  n  a  perso{i,  1  believe  tlkat  tbree 
t  ar  ]es»^  i»  «^}ou(; b ;  to  W4t,  fvii  mucb  asi 
will  till  tbe  irmdpi|)ej  itod  io  £top  the  breath o)g 
«i^thc  j;iinioo  dm^tsiug,  I  mu  not  iKkw  to  des- 
oailt  iiiioin  luatttT  at  fact,  t«  brtbt^r  «be  tlroitned 
kertelf;  but  inv  drino^iinioR  i«,  ihut  sbe  was 
^tttVMvd  ;  fi»i  tUiMigh  MUiicliJtw»«  not  Aluay^, 
|l>«rc  ii  water  looiMi  ki  llio  boiUvi  of  agt  b  p^* 
W9^  I  yet  wliirif  ii  il  Ht  hmii/&  ibt  kofit  it 


ia  superfluouii  a^  lo  tbjs  end;  utd  amkaiil 
njion  violent  atni^glioi^, 

Mr*  CQtsptr.  I  desire  Mr.  HarKat  mif  l« 
aaketl  what  obserraUoiia  he  batb  mada c^oti^a^ 
ing  llii^  matter n 

Mr.  Marrioi,  My  brd^  when  1  wtaaiiff- 
geon  in  tbe  lleet,  1  made  it  altt^ayi  my  uker< 
vatiotif  wbeu  vfe  tbr^w  men  overboant  ikl 
were  killed,  some  of  them  nwaiu,  aM 
»iink  ;  and  I  remember  {laiiicubriy,  ^hvu  Ik 
SiHdwich  was  burnt,  we  «aw  ahtiadartoy  \^ 
olf  from  on  board,  stiil  I  bey  nutik  dirvciiv,  lit 
ill  a  tittle  time  I  ob&erved  m^rne  «wini  a^un. 

Biirun  Hati^iL  W  beo  a  dead  bfidy  11  tluvi| 
Ol'erbimrd^  does  it  aink  or  nwiiti  Y 

Mt^  Hutriot.  1  a^wt^yu  obM^rved  tint  11  M 
t^mk:  Wben  we  were  ia  tbt  cbannel,  uidji 
lime  of  peace,  we  lu^ter  tlirew  any  utcriiiiid 
btU  we  put  some  weifi^ht  to  lb  em  ;  but  il  m$ 
not  to  make  tbcrtn  Mit^k,  boi  for  dei^mcy  mk, 
that  they  might  not  be  ilrtten  to  tbor«  wki 
tboy  bpirao  10  flyat* 

Mr.  CW/KT.  I  de»ii«  Ujit  Sir,  Eiftlet  Mf 
be  Ani^iid  tu  the  tunie  purp4ise* 

Mr.  Bartkt.  1  ba«e  been  lu  »ev«nj  of  ii 
kinif'ii  &bipsi  of  war  tlmt  hare  tt«ro  diaiiWi^ 
turcc^J  to  I  le  by ,  i  nsen  (?ral  en  ifJfgaciJtDii ' 
the  Frcnob  and  En^U^b,  ami  1  fi«f «*r  1 
Irodiesi  tiiMiif  either  nt  the  mrti  tb^t  w^n 
tu  uiir&hip,  or  in  the  &hipii  that  bave  bc^aiiir 
ua;  I  ha^e  not  seen  a  bJdy  upoo  tbe  mrlMiil 
tbe  water.  , 

Baron  HatulL  Atiotlier  ^viiness  a^ 
after  an  eotftti^euieni  be  saw  (beor*  s«f  imi 

Mn  Burtkt.  I  cAiiriot  tell  what  be  ui>,Bf 
hinl ;  but  what  I  say  1  am  readj  Ma  mik 
uatb  of. 

Mr.  Cowper.  Dr.  Camlio,  will  you  |^<Mil| 
give  my  lord  and  tlie  jury  an  aeaxmt  vtmlif  • 
you  were  e(U|doyed  in  tbe  curooeT**  iu^nciiil 
iiew  tbe  ho<ly  of  IVlrs.  Hlout  atUr  ikie  nl 
drowned,  and  tbe  marks  upon  it,  and  Id!  w§' 
luriJ  your  opinioo  of  it  ? 

Mr.  Clin  in.  I  was  &enc  for  by  the  ooMflK 
and  Oie  ji^fy  tbat  sat  upon  the  oody  t4  Mib 
8iirab  bti^ut,  the  corooer  beiug  tbc^n  at  ittt  pt^ 
tber^j^  house,  and  tlie  e^irooer  d^orrd  Nb 
Dnnidale  and  me  lo  ^  and  lake  notice  af  ill 
ritarka  upon  ber  neck^  and  upon  Ucf  Ifsalt 
We  viexveil  all  atHjui,  aod  percriictl  a  m^ 
under  hei'  ielt  ear  i  we  looL^  lo  a«c  €  Ai9 
waii  any  contusion,  and  we  perotsffdi 
tnent  uf  blood  upuo  ber  brt^&^i, 
upon  lier  arm  ;  afid  uhea  we  v^imm 
Uiin^d^h  made  a  re|toiT,  1  stood  by  faiBiti 
Ume,  timt  d  Wfi»  only  a  eommun 

Mr.  Cimptn    fray,  Ht,  CmaAia 
spat  above  or  Udow  the  r¥4kr  buw  T 

Mr.  Cuai/ta.  Bcluw  tli«  csUftrliM 

Mr.  Ctw/^.    VVbaldidMr. 
say  tbeii  f^aceroiaf  tliifi  otatler  ? 

Mfi  (^sfUTi,  I  under«ioii4  t^ai  \m  m 
opiorun*  that  it  was  only  m  ctuttmua  M| 
ef  youd^  tbat  ha|»peiia  iu  ibc  case  «1  li 
|ir«pJe.  ^j 

Baioo  lf«i«dL  J>i4  ha  say  « |«il 


J^  the  Murder  6fMn.  Sarah  Steut.  A.  D.  1699. 


[1166 


F  anderitood  him,  that  it  was  a  stafif- 

it  did  comiDonly  happen  to  drowned 

nd  that  was  my  opinion  of  it  too. 

fper.  And  that  you  agreed  to  be  your 

Mr.  Camlin.  Yea. 

rper.  Pray,  Mr.  €am1ni,  was  you 

len  the  child  that  was  drowned  in  the 

e  was  taken  up  ? 

nlin.    Yes;   it  was  taken  up  some 

,  near  the  same  place,  as  I  was  told, 
was  more  and  greater  signs  of  the 
of  hlood  on  the  body  of  this  child, 

he  body  of  Mrs.  Stout;  the  child's 

Jack  and  discolonred. 

HatseiL  Bow  old  was  the  child  ? 

m/in.    Between  ten  and  eleven,  as 

rould  guess. 

^atttti.  Had  Mrs.  Stout  any  signs  of 

ngled  when  voa  saw  her  first  ? 

tm/iR.     Nothing  at  all,  that  I  could 

vper.  My  loni,  I  will  give  yon 
trouble  upon  this  head  ;  I  shall 
0  the  next  thing  1  opened,  and  shall 
bstantially,  that  this  gentlewoman 
dy  more  to  be  suspected  to  have 
herself  than  to  be  murdered  by  any 
t  it  is  almost  a  certainty  that  she  was 
of  her  own  death.  iVIr.  Firmin  I 
▼in  withal,  if  he  be  here.  (Kut  he 
jlly  ap|)earinpr.)  Tlien,  my  lord,  if 
if  1  will  desire  Mr.  Bowd  in  the  mean 
ve  your  lonlsliip  an  account  of  what 
\  ot  the  melancholy  of  this  gcntle- 

7vd.  Tt  was  much  al)Out  this  time 
jnth  1  had  some  business  in  London, 
L'nt  to  roe,  to  know  when  1  should  go 
I ;    and  1  waited  upon   her  before  1 

she  desired  me  to  do  some  business 
and  when  1  retume<l,  1  acquainted 
ivhat  1  had  done ;  and  sitting  together 
I,  1  asked  Iut,  what  is  the  matter 
?  Said  1,  there  is  something  more 
lary ;  you  seem  to  l>e  melancholy. 
,  you  are  come  from  London,  and  you 
tt  something  or  other:  said  1,  1  he- 
are  in  love.  In  love !  said  she.  Yes, 
ipid,  that  little  tM)y,  hath  struck  you 
be  took  me  by  the  liand  ;  Truly,  said 
ni  conftssit ;  but  I  did  think  1  should 
guilty  of  such  a  folly  :  and  I  answer- 

1  admire  that  should  make  you  un- 
the  person  be  not  of  that  fortune  as 
^ou  may,  if  you  love  him,  make  him 
lid  yourself  easy.  That  cannot  be, 
:  the  world  shall  not  say  I  change 
ion  for  a  husband.  And  some  time 
lad  been  in  London,  having  bought 
ia  good»,  she  came  to  my  shop  and 
>iue  of  roe  for  a  gown,  and  at^erwards 
to  |Niy  me  for  it ;  and  1  asked  her, 
poulike  it?  have  you  made  it  upP 
ihe,  and  1  believe  1  shall  never  live  to 

mmer.  Pray  how  long  is  it  since  P 
It  WM  about  Febmaiy  or  January 


before  her  death.  I  asked  her,  why  she  did 
not  come  to  my  honse  oftener  f  She  said,  8L# 
had  left  off  all  company,  and  applieil  herself  to 
reading  ;  and  conipany  was  indifferent  to  lier. 

Mr.  Cowper.  Mr.  Firmin,  will  you  please  to 
inform  my  lord  and  the  jury  what  you  know  of 
Mrs.  Sarah  Stout's  being  melancholy  ? 

Firmin.  I  did  observe  about  three  quarters 
of  a  year  ago,  that  she  was  melancholy;  1 
cannot  say  that  she  acknowledged  herself  to  be 
so,  but  1  have  charged  her  with  it. 

Mr.  Cowper,  Did  you  belterc  she  was  me- 
lancholy  when  you  charged  her  with  it  ? 

Firwin.  Yes,  I  did. 

'Mr.  Cowper.  Mrs.  Bendvy  if  yon  please  to 
inform  the  court  what  you  know  of  this  gen- 
tler oman's  being  melancholy. 

Mrs  Btndif.  Sir,  i  can 'say  she  always 
acknowledged  herself  extremely  melancholy ; 
and  when  1  have  asked  her  how  she  did,  she 
has  said,  pretty  well  in  health,  but  so  much 
troubled  with  melancholy  she  could  not  tell 
what  to  do  with  herself. 

Mr.  Cowper,  Did  she  tell  you  any '  thing 
particularly  P 

Mrs.  Bendy.  It  disordered  her  so,  she  said, 
that  she  had  rather  have  chosen '  sickness  than 
so  much  disorder  in  her  mind. 

Mr.  Omper,  Have  you  any  thing  more  to 
recollect  ? 

Mrs.  Bendy.  Nothing  but  what  I  heard 
from  Mrs.  Cowper. 

Baron  Haitell,  How  old  was  this  gentle- 
woman ? 

Mrs.  Bendy.  About  six- and -twenty. 

Mr.  Cowper,  Call  Mrs.  Jane  Low,  Martha 
Grub  and  Mrs.  Cow|>er.  Mrs.  Low,  pray  do 
you  inform  my  lord  and  the  jury  what  you 
know  concerning  the  melancholy  of  Mrs.  Sarah 
Stout,  and  when  you  first  observed  it  P 

Mrs.  Low.  it  was  a  week  before  Whitsun- 
tide was  twelve-month. 

Mr.  Cowper.  What  did  she  say  then  ? 

Mrs.  Low.  She  oflen  complained  to  roe, 
that  she  was  v<'ry  melancholy  and  uneasy  ;  one 
time  particularly,  as  we  were  walking  together 
in  the  fields,  1  asked  her  the  occasion  of  it ; 
and  bhe  told  me,  that  was  a  secret ;  but  she 
said,  she  led  a  very  melancholy  lifie:  said 
i,  1  am  apt  to  bt>lieve  you  are  in  (ove ;  she  did 
not  disown  it,  ami  with  a  little  more  speaking 
she  owneil  she  was.  J  asked  her  wIm>  tho 
person  was  ;  she  said,  that  should  be  a  secret, 
but  it  would  end  her  d>i3s:  said  1,  a  woman  of 
your  fortune  may  Cfiuimand  any  Ixnly :  she 
shook  her  head  and  said,  no :  |>erhaps,  said  f, 
he  may  not  be  a  Quaker,  and  you  may  be 
afraid  of  disobliging  your  mother  ;  but  if^^yuu 
tell  your  mother  that  your  life  depends  upon 
it,  your  mother  (:athrr  than  Ume  her  on!y  chdd) 
will  consent  to  it :  she  said,  no  ;  it  was  a  |>cr' 
Non  she  could  not  marry  ;  and  shook  her  head, 
and  l(K)ked  very  melancho'.y. 

Mr.  Cowficr.  When  was  this? 

Mi's.  Low,  Tliis  was  the  we<'k  before  Whit- 
suntide ;  and  in  Whitsnn-week  she  saw  me 
oAcOi  and  said,  she  wouU  take  her  full  swing 


1 167]  1 1  WILLIAM  IIL         Trial  of  Spencer  Cooper  and  oikert. 


of  melancholy  whm  her  mother  was  away ; 
aad  she  used  to  lie  a-bed  that  week. 

BIr.  Cowper,  Have  you  obaenred  any  melan- 
•holv  in  her  since  ? 

Mra.  Low.  Yes;  at  several  times. 

Mr.  Cowper,  Do  yuii  remember  any  thing 
of  an  intermittini;  t'erer? 

Mrs.  Loan.  Yes ;  she  told  me  her  melan> 
choly  had  occasioned  an  intermitting  fever; 
and  1  mentioned  Dr.  Eales  to  her,  and  she 
said  her  distem|ier  lay  in  her  mind,  and  not  in 
her  boily,  and  slie  would  take  nothing,  and  the 
sooner  it  did  kill  her  the  better. 

Mr.  CoKper,  Did  the  say  any  thing  of  her 
disoosition  to  reading  ? 

Mrs.  Low.  8lie  said,  nothing  delighted  her 
■ow,  neither  reading  nor  aoy  thing  eke. 

Mr.  Cowper.  My  lonl,  8arah  ^Valker,  when 
I  ask«d  her  if  she  did  not  obseiTe  the  melan- 
choly of  her  mistreto,  and  whether  slie  had  not 
said  that  her  mistress  had  been  melancholy  ? 
denied  that  she  had  said  so:  pray  have  you 
beard  her  say  any  thing  to  that  purpose? 

Mrs.  Low.  I  have  often  asked  her  how  her 
mistress  did,  and  she  wonldauswer,  very  much 
indis{M>sed,  but  not  otherwise. 

Mr.  Cowper.  Mrs.  Cowper,  what  do  you 
know  of  Mrs.  Stout's  melancholy  ? 

Mr.  Cotrper.  My  lord,  this  is  my  brother*s 
wife. 

Mrs.  Cosrpcr.    About   spring    was    twelve 
month  she  came  up  to  Londtin,  and  I  believe  it 
was  not  less  than  once  or  twice  a  week  I  saw 
her  ;  and  I  never  bad  an  opportunity  to  be  an 
hour  alone  wiih  her  at  any  liiiie,  but  I  per- 
ceiveil  sdinc  thinp:  of  lier  melancholy.     1  have 
a.ske<l  her  the  reason  of  it  several  limes,  and 
sometimes  ^ho  seeuied  to  dislike  her  proles:- ion, 
being   a  Quaker  ;  and  sometimes  she   uould 
say,  liiat  she  was  uneasy  at  something  that  lay 
upon  her  spiritkc,  \%hieh  site  shonld  never  out- 
live ;  and  that  she  .should  never  be  wt-ll  while 
she  was  in  this  world.     Stjmetimes  I  have  en- 
deavoured I'j  persuade  her  out  of  it  seriously, 
and   sometiiiics  hy  raillery,  and  have  said,  are 
you  sure  you  bhall  l»e heller  in  nnotljer  world  ? 
And  jKirtieniarly  1  rfMieiisber  1  havesaiflto  her,  i 
1  believt'  \ou  Ii'avf  ."Mr.  .".larsiiall  in  your  head  ;  ' 
eillierh:r, e  hnu,    or  do   not  trouble  yoniNelC 
about  him  ;  make yoiriSiIt't asy  eiilier one  w ay 
or  ajiotfier  ;  and  bhe  hath  said  no,  in  an  in- 
different way,    I    eannot   make  myself  ca-y  : 
Then  I  h:ive  s^iid,  marry  him  ;  no,  saith  she,  1 
cannot.     Sonn-iimis  with  c(»m|»a»iy  she  would 
be  diverted,  smm!  had  tVe(|ueniIy  a  wiiy  of  throw - 
iu;^- her   hiuuls,  and  shewed  yrcat  disturbance 
and  uiieasiiu'ss.     Tliis   time  twelvemoulh,   at  . 
the  summer  assizes,   I  was  here  six  day^,  and  1 
1  saw  l.ir  e\iMy  djiy  ;  and  one  time,  amonac  i 
otluT  di».voni5!»',  she  tsdJ  iiif  she  had  reeeivetl  I 
great  di^iuibani.i' from  ono  Theophilu'«;,  a  ua-  i 
terman  iMid  a  Uu.»ker,   who  ooming"  down  to  ' 
old  Mrs.  Stout.  t!i:U  Wiis  then  latUf,   she   had 
gatheri'J.  :\\nt\]\  JO  «.r  :\i)  |ieo|ilo  toijrther  to  hear 
him  preaeh  ;  and  silt-  s:iid  he  direeteil  his  ihs-  ' 
Cuutn.'  to  luT,  ai.d  exasperatt'd  Iier  at  that  \\\w,  : 
that  she  had  thou<;iits  of  seeing  nobody  aunin,  | 
2  "         I 


and  said,  she  took  it  heiooiisly  iH  to  1 
and  particalarly,  that  be  toM  her  ihi 
ther's  fiUlioff  oatwardly  in  the  flesh 
a  warning  tnat  she  did  not  fall  inwm 
such  *  canting  stuflf,^  as  she  allied  it 
said,  thatTbeophilus  had  so  used  h< 
was  ashamed  to  shew  her  bead.  An 
the  same  week,  she  bad  a  fever,  an 
slie  was  in  great  hopes  it  would  end 
and  that  she  neglected  herself  in  d 
things  that  were  necessary  tor  lier 
hopes  it  would  carry  her  off,  and  ofi 
herself  dead.  Another  time,  whic 
was  the  Isst  time  I  saw  her,  it  was  at 
lodgiuffs,  and  I  sent  for  her  to  drin, 
tea  wiA  us,  and  she  came  in  a  gre 
melancholy :  Said  I,  what  is  tlie  n 
are  always  iu  this  humour  ?  Saith  « 
not  help  it,  I  sliall  never  be  othen%i 
mty  sister,  for  God*s  sake  keep  such  tb 
ofyour  head  as  you  have  had,  do  ni 
more  of  throwing  yourself  out  of 
Saith  she,  I  may  tbank  God  that  f 
your  face,  otherwise  I  had  done  it,  I 
not  promise  I  shall  not  do  it. 

Baron  UatseU.  \\  hat  is  yoor  name 

Mr.  Cowper.  It  is  my  brother's 
lord.  1  desire  Mrs.  Toller  may  give  t 
of  what  she  knows  as  to  her  tieing  mi 

Mrs.  Toiler,  5Iy  lord,  she  was  oi 
me,  and  she  looked  very  nielancliu 
asked  1ier  what  was  the  matter.^  ain 
something  bad  vexed  her  that  day ;  ai 
her  the  cause  of  ir,  and  she  stn|)p< 
while,  and  then  said,  she  wuuld  dru^ 
oat  of  the  way. 

Duron  H,itstll.  flow  Ions'' a:;o  w. is 

!Mrs.  ToiUr.  About  three  ijuuriers 
ago. 

John  Siout.  I  desire  to  know  wis 
has  always  said  so,  or  not  told  anotlic 

Mrs.  Toller.  I  told  \»)U  no  stor\  ;  i 
I  did  not  say  so  much  to  >ou,  but  I 
talked  somei hi nir  of  drowning:.  I 
with  her  when  Mr.  rowjiur's  confer: 
name  has  been  mentioneil,  and  she 
kept  but  little  company  ;  that  some 
wtnl  to  Mrs.  Low 's,  and  that  she  kep 
civil  moflest  cou'.pany,  and  th.it  .^Ir 
was  a  ei\d  modest  t;entleman,  and  tti; 
uothintf  t(»  say  a>;raiu<n  him. 

31r.  C'o-v/.eV.  This  is  Mre.  Eliz.  T 
lord. 

Eliz.  Toller.  My  lord,  she  came 
sonie  time  atter  (.Miristuias,  and  seen 
eheeriul  a*;  she  nseil  to  he  ;  said  I,  w 
matter  J*  U'hr  are  you  not  so  mcrr 
used  lo  be  ?  Why  do  jou  not  c«iroe  ol 
me  ?  Saith  she,* I  do'not  think  lo  gu 
much  iis  I  used  to  do,  and  said,  it  w< 
mui.'h  a  rariiy  to  see  her  go  abroad, 
tiie  sun  >hine  by  niljht. 

>Ir.  Ct'Ufi'r.  I\Ir>.  (Jruh,  what  do^ 
ei)!,.  J  riling  .>lrs.  Stout's  pulling  out  I 
hir  b:  ilii!-.  Mr  .lolmStom*'..'  Givea 
of  it.  :nid  wiiai$hcsaid  upon  that  OOO 

?.lrs.  Oruk,   I  have  a  daughter  tin 


UOD] 


Jar  the  Murder  of  Mrs.  Sarah  Stout. 


A.  D.  1699. 


[1170 


Ctterniey,  and  flbe  aent  me  »  letter,  and  I 
myed  An.  Sarah  Stout  to  read  the  letter ; 
ana  while  the  waa  rcadiog  it  1  cried ;  saith  she, 
why  do  yon  cry?  aaid  I,  becauae  my  child 
aa  ao  far  off.  Said  ahe,  if  I  life  till  winter  is 
ater,  I  will  f(0  o? er  aea  aa  iar  aa  1  can  far  the 


.  Baron  HattelL  What  waa  the  occasion  of 
far  aayinif  ao  ? 

•  Hra.  Grub.  I  waa  waahin^  my  master's 
ilndy,  Mra.  Sarah  Stout  came  m,  and  I  had  a 
kiterfroro  my  daughter  at  Guernsey,  and  I 
fnycd  Mrs.  Sarah  Stout  to  read  it,  and  she 
itad  my  letter,  and  I  cried,  and  she  asked  me, 
why  1  cryed  ?  Said  I,  because  my  child  is  so 
fcroff:  &uth  she,  if  I  lire  to  winter,  or  till 
vbter  ia  o?er,  I  will  go  over  aea  aa  far  as  1  can 
Artheland. 

*  Mr.  Cmoptr.  Now,  my  lord,  to  hring  this 
SMtler  of  melancholy  to  the  point  of  time,  1 
triB  call  one  witnesa  more,  who  will  speak  of 

•  vemarkable  instance  that  happened  on  Satur- 
day before  the  Monday  when  she  did  destroy 

BCfSClf. 

Call  BIr.  Joseph  Taylor.  Pray,  will  you 
iaibnn  the  court  and  jury  of  what  you  obeerved 
9m  Saturday  before  the  Monday  on  which  Mrs. 
Stat  deitroyed  hersdf. 

*  /..  TayUr,  I  happened  to  go  in  at  Mr.  Fir- 
Mb'a  abop,  and  there  she  sat  the  Saturday  be- 
ihie  thia  accident  happened,  the  former  assiz 


r  assizes, 

1 1  waa  aaymg  to'fier.  Madam,  I  think  you 

^akatrMgely  discontented  ;   I  never  saw  you 

"^        '    » in  my  life:  Saith  she,  the  dress  will 

i  me  aa  kmg  aa  1  shall  ha?e  occasion  for  a 


Mr.  Cowper,  in  what  poature  did  she  appear 
htfaashop? 

J.  Tatflor.  She  appeared  to  be  very  mclan- 

r^  Mr.  Cowper,  What  part  of  her  dress  did  you 
bilknltwith? 

*  X  Twflor.  It  was  her  head  deaths. 

*  Mr.  Cotsptr,   What  waa  the  matter  with 

*  J.  Tmylar,  1  thought  her  head  was  dawbed 
^M  aonoie  kind  of  greaae  or  charcoal. 

*  Mr.  Cowptr.  What  anawer  did  she  make  ? 

*  J.  Taylor^  She  said,  they  would  ser?e  her 

'  lb".  Coaffjtr.  As  to  this  |Hece  of  evidence,  if 
Jaw  kirdship  pleaaes,  I  desire  it  may  ha  par- 
Bodarly  taken  notice  of ;  it  was  her  head-dress 
Ite  abe  aaid  would  serve  her  time. 

'  PiraTv  Mr.  Ta>k>r,  was  you  at  Air.  Barefoot's 


[  came  there  on  Monday  moruiD^? 
/.  IV^Ior.  Yes ;   I  went  up  stairs  with  you 
'  ^our  chamber. 
ir.  Omptr.   Pray,  what  did  I  say  to  Mr. 

'  J.  ^i^ar.  You  asked  him  if  they  had  re- 
iMied  a  letter  from  your  brother,  and  he  saiil, 
Vi^BOi  that  he  knew  of,  but  he  would  call  bis 
'Vifey  and  he  did  call  hia  wife,  and  asked  her 
if  M  had  received  a  letter,  and  she  said.  No ; 
Jb«i  aakl  you,  I  will  take  up  this  lodging 
«  BHne;  and  accordingly  you  went  up 
VOL.  XIII, 


atairs,  and  I  went  with  you,  and  staid  there 
about  four  times  as  long  as  1  have  been  here. 

Mr.  Cowper.  Are  you  very  sure  that  I  aaid, 
1  would  take  uu  my  lodgings  there  ? 

J,  Taylor.  Yes,  lam  very  sure  of  it. 

Baron  UattelL  What  time  of  the  day  waa  it  f 

J.  Taylor,  It  was  the  fore  part  of  the  day  : 
while  1  was  there,  my  k>rd,  Mrs.  Sarah  8tout'a 
nmid  came  to  invite  Mr.  Cowper  to  her  house 
to  dinner. 

Mr^  Cowper,  Did  you  know  any  thing  of 
my  sending  to  the  conee- house  ? 

/.  Taylor.  You  sent  to  the  cofiee- house  for 
your  things. 

Baron  Jlat$elL  Did  Mr.  Cowper  use  to  lie 
at  Mrs.  Barelbot's  ? 

J.  Taylor.  His  brother  did,  but  I  do  not 
know  whether  this  gentleman  did,  but  at  that 
time  he  took  -up  that  place  for  his  lodging; 
and  saiJ,  it  was  all  one,  my  brother  must  par 
for  it,  and  therefore  I  will  take  it  up  for  myselK 

Mr.  Cowper.  Call  Mrs.  Barefoot  and  her 
maid. 

[But  they  not  presently  appearing.] 

BIr.  Cowper.  My  k>rd,  in  the  mean  time  1 
will  go  on  lo  the  other  part  of  my  evidence^ 
in  opening  of  which  I  shall  be  very  short. 

My  lord,  my  wife  lodging  at, Hertford,  oc- 
casioned me  frequently  to  come  down.  Mrs* 
Stout  became  well  acquainted  with  her :  When 
business  was  over  in  tlie  long  vacation,  I  re- 
sided pretty  much  at  HertfonI,  and  Mr.  Mar*,, 
shall  came  down  to  pay  me  a  visit,  and  this  in-' 
troduced  his  knowledge  of  Mrs.  Stout.  When 
she  was  first  acquainted  with  him  she  received 
him  with  a  great  deal  of  civility  and  kindness, , 
which  induce<l  him  to  make  his  addresses  to 
her,  lis  he  did,  by  way  of  courtsbiu.  It  hap- 
pened one  evening,  that  she  ana  one  Mrs.. 
Crook,  Mr.  Marshall  and  myself,  were  walk- 
ing together,  and  Mr.JJ^IarshaJl  and  Mrs.  Crook 
going  some  little  way  before  us,  she  took  thia 
opportunity  to  speak  to  me  in  such  terms,  I 
must  contess,  as  surprised  me.  Says  she, 
Mr.  Cowper,  I  did  not  think  you  had  been  so 
dull.  I  was  inquisitive  to  know  in  what  my , 
dulness  did  consist  Why,  says  she,  do  you 
imagine  I  intend  to  marry  Mr.  Marshall  r  I 
said  1  thought  slie  did,  and  tliat  if  she  did  not, 
she  was  much  to  blame  in  what  she  had  done : 
No,  says  she,  1  thought  it  might  serve  to  di- 
vert the  censure  of  the  world,  and  favour  our 
acquaintance.  My  lord,  I  have  some  original 
letters  under  her  own  hand  which  will  make 
this  fully  manifest ;  I  will  produce  the  letters 
atler  1  have  called  Mr.  Marshall.  Mr,  Mar- 
shall. 

Mr.  Marthall,  If  your  lordship  pleases,  it 
was  in  the  long  vacation  I  came  down  to 
spend  a  little  of  my  leisure  tiiue  at  Hertford ; . 
llie  reason  of  my  going  thither  was,  because 
Mr.  Cowper  was  there  at  that  time.  The  first 
night  when  1  came  down  I  found  Mrs.  Sarah 
Stout  visiting  at  Mr.  Cowpei-*s  lodgings,  and  . 
there  1  first  came  acquainted  with  her ;  and 
she  afterwards  gave  me  frequent  opportunitira ' 
4F 


fm\        llimilAkTIL        TM^Mfmm 


biof  Mrto 


Jpi 


Mft  to  MVMttiM  «*l  it  MflM  I  WM 

dr.  Wbaof  oMMWliiVd,  ii^y  tovi,  I  WW 
9Bf  tM  ^  mf  «Mrtiiv  Mis.  Sloiit, 
ilamfciiftiitwttbMiBMyfc— <;  tat 

if  Mag*  MMteoltd  t6«ieCi»nii  _ 

iMMulftWftMfffle^lSld 

mv  Applieitioa  to  ber;  but  upon  w^rf 
Ml  «r  lllftt  MTt,  I  «0o6it»d  « tary  Mr  4 
MdilMra^iMleclaiyMiC;  lir.€o#pflr  btviqjf 
Hieo#f  toM«,«itogh»ne  noimW 
Mthkiff^tbitooiiTUMedmToaglM  to  Itt 

Mllllnil  I  uM  86tfMM  to  ito  tnttl  iMf* 

JBanm  Ha<i^/(.  Wheo  dU  Ae  OMl  jfM  tfirf 
'We.MmrdUak  IcMMtb«|Mittii««todM 

r  Mini^  tat  it  WM  te  *Mir«r  to  Hm  flul^r 
I  ef«r  writ  to  tar ;   at  1  r^ 

.  I  #iB>iM»t  or«r  JBipartuBito  to  XhtA 

>  lOr  I  DBWT  Wal  ■  ^^'J  f  mWli  ■IfCI* 

[M  ffHielll   Wdl»  tat  Cdlfta  time  ti 
ninr  M  TOO  MD.. 

Mf.iMankaiL'  I  bdim  it  WM  m  tMmid  or 
AWtitae  I^fttoe  down  to  Hertford,  whtefa  \& 
•loM^MTindttbiiritooa;  and,  dmiiif  itte 
larto5i  antttidlltoiiae  wUh  tar,  i Heter  tiil 
»  to  any  pnltaM]  tfifetoe  I 
taiatattaiitoiliMtutotar  rtootntioii  wat  not 
to'Mtoplj  ilith  wtat  I  dMtad,  1  toek  her  at 
tar.Mrt,  tafktfpMtijr  ly  tttj^^ 
wfay  tort  liaorB'M^  Mr*  Oawpera 
tala  fMity  wcHafite  to  gbito  at  ber 

'Mr.  (kmper,  Became  wtat  vou  ear  mmy 
•fafid  eoofinned  beyond  oontradicfion,  (  deaire 
yta  to  »y  whether  you  have  any  letttTs  from 
bertoyonrself? 

Mr.  Marshall,  Yes,  I  liare  a  letter  in  my 
bittd  which  the  sent  tue,  upon  occasion  of  sum^ 
•ODffa  I  sent  her  when  I  came  to  town,  wlticli 
she  nad  before  desired  of  noe ;  and  this  is  a  letter 
IB  answer  to  mine ;  it  is  her  hand -writing,  and 
directed  lo  oic. 

Baron  Hatsell.  How  do  you  know  it  is  hpr 
hand- writing:? 

Hr.  Matthall,  I  hare  seen  l:er  write,  ^lad 
seen  and  received  several  letters  from  her. 

Mr.  Cottper,  Pray,  shew  it  Mr.  Beale. 

Mr.  Beaie,  I  befie?e  it  to  be  her  hand  ;  I 
hare  seen  her  write,  and  have  a  receipt  of  hers. 

CterkofArr,  It  is  directed  to  Mr.  Thomas 
Marshall  at  Lyons-itiii,  and  dated  Sept.  26, 

«Sir,  8ei>t.  26,  1697. 

••  Vours  came  Tary  safe ;  bat  I  wish  you 
bad  explained  yoor  meaning  a  little  more  aliout 
the  accident  vou  speak  of;  for  1  have  been 
puzEling  ny  brains  e? er  since ;  and  without  1 
shall  set  myself  to  conjuring,  I  cannot  imagine 
what  it  should  be,  for  I  know  of  nothing  that 
happened  after  you  went  away,  nor  no  discohrse 
about  you,  onlv  when  we  weie  ti]^;etber,  the 
damnany  would  sometimes  dritik  your  health, 
or  wtob  you  had  beea  there,  or  the  like ;  so  that 
I  foiicy  tt  most  be  •omelbhig  Mr.  --«« —  has 
lomMlfotdifmtai;  ttaiiq;h  I  ttuai  eonfeta 


#atai«maifi  af  pHptali 


cm 

iiiiniiiiiiil 


wtiijtay  af  ii  ■  liM  tm^ji^^^ 


1 


Hr.  Campfr.  Uave  you  any  maiv  lettets?  ^ 
Mr.  Marvktili.  VeS)  f  tiAve  anotliifr  IrOei 
tare;  but  before  it  is  n;A4,  I  ihlok  it  wi[l  It 
proper  la  give  the  court  aa  acc<»im£  of  tbeooci*  i 
iiOA  dim  being  wKl.  I  H^ied  on  )ln.  M 
one  air etiitig  at  her  lodgi&gs  m  HonsdiJik^ 
aiiidat  our  p^rung&be  apiKHut^  to  inifl  i^ 
the  nasi  dj^^  -  and  to  ^ccufie  b«r  iiot««o^ 
acoordbtg  to  ikai  ^^j^iniya^ui^  she  sent  mtlk 
letter. 

Ci.p  Arr,  It  k  dir^cteil  10  Mr.  llMI, 
Uanh.li ;  It  la  wllbotii  Oaie. 

M  Mr.  Mnfaliali, 
«« I  met  uuexpedeil  wfik  mM  ttat  esme  fm 
H"  ■  ti  liut  nigti^  who  fletAiaed  icte  fi  1^ 
wilii  rfelailn^  itie  most  noLarjous  laT«Aima«Hd 
Ijrai  ttat  are  now  titant  4iu4»ngiFit  thuse  piifli« 
I  dould  uoi  possiUlj  corns  till  ri  w«  ta| 
ItM?  flay  was  appoinfed  ii»  bosineM,  Ihs  1 
unc^riMB  when  ii  will  b«  finisbcil  ^  i«ii 
I  believe  I  cannot  see  yoii  whilst  t  aiti  in  wn. 
I  have  no  wore  at  pni^sent,  btitt  that  I  m 
YMr  abtigcil  I\ieii" 

Mr.  Caoipir.  NoWiiny  !otd^  tf  yoorlopiif 

please,  I  proceed  to  ahetv  you,  ih^t  I  neat  ii 

,  so  mudi  ?(flnutanly  oa  pre^gscd  bv  her  lo  oai 

I  to  this  house,  and  for  tti^t  I  will  product  «4 

I  letter  from  iier;o  mjself ;  aod,  my  ford,  I  arf 

I  a  little  uifortu  you  of  tlie  ttatare  of  ibis  tdUl^ 

•  It  IS  on  the  outside  dlreuled  to  Mrs^  Jiinf  £)b% 

I  to  be  lefL  for  her  hi  Mr.  Hoigrare*!  eiA^ 

house.    For  her  to  direct  for  me  at  a  crfli* 

house,  migbt  make  the  sertants  wontbt  ■! 

tlie  po&t-jnan  mi^^ht  !»n^pect,and  for  that  itww 

she  dir<?rlf  d  it  in'that  mafitier,    Tijen:  wis  Ik 

Marsh;ttt  by  when  I  receif  ed  it^  and  I  caopwl 

tiie  haiid  by  Mt,  Berii^ 

Mr.  Manh^lL  Uy  lord,  I  reril^*  bdkf»  t 
was  by,  aod  that  Mr<  Coi^rper  s tiewad  m»  ^ 
letter  immeilistclj  oo  rec^eipt  of  it,  as  be  W 
done  several  olbers  froui  the  same  hand. 

a.  ufArr.  This  t%  dirwted  IW  Mil.  Itfl 
Ellen.  It  U  dated  March  the  Stb,  wittali^ 
year. 

*<  Sir,  March  lla 

**  I  am  glad  ymi  have  not  qdie  fbml 
there  is  such  a  person  as  I  in  baia^  |  Cil 
willing  to  shot  my  eyes,  aad  not  asa  IM  i 
Uiat  looks  like  unkindoeKS  to  ya«,aiii 
oooteot  myself  with  what  tita—i  fH 
ptawed  to  mata,  ttan  ta  itopilsilifakllFi 
muiit  not  know.    ItbouMvaryfiad^^ 


d 


1 173]  Jbr  the  Murder  ^Mrs.  SartA  Shut.  A.  D.  1699.  [1 174 

Mr.  W.  Coiepcr,  I  con  bear  vay  brother  wit- 
De89»  that  when  he  has  been  advised  to  make 
these  letters  part  of  his  defeoce  he  hath  ex- 
pressed ^reat  unwillingness,  and  has  said,  no- 
ihin^  but  the  life  ot*  these  gentlenieu  could  in- 
cline hiui  to  it. 

My  lord,  alt  I  can  say  to  this  matter  is  this : 
1  do  remember,  tliat  w1u.mi  she  was  one  time  im 
London,  1  think  it  was  about  a  year  and  a  luilf 
since,  1  am  not  positive  as  to  the  tiiue,  but 
when  she  was  in  London,  my  brother  came  in. 
the  rooruiug  to  my  chamber  in  the  Temple, 
and  alter  some  discourse,  he  told  me  he  had. 
received  a  letter  from  Mrs.  Stout  that  da^, 
wherein  he  said,  she  intended  him  a  visit  at  his 
chamber  that  aAcnx>on ;  he  told  me  at  the  same 
time,  that  his  friend  Mr.  Marshall  bad  some 
thoughts  of  her,  and  therefore  for  that,  as  well 
as  otner  reasons,  he  would  decline  receiving  the 
visit  intended  him ;  and  upon  consideratioD^ 
this  was  tiie  method  agreed  upon :  at  that  time 
I  lived  with  my  father  in  Hatton  Garden ;  and 
this  gentlewoman  having  writ  in  the  same  let- 
ter Inow  speak  of,  tliat  she  designed  to  dine 
there,  and  to  come  from  thence  in  the  after- 
noon ;  says  my  brother,  you  may  casually,  ae 
it  were,  take  occasion  to  say  at  dinner,  that  mj 
business  obliges  me  to  go  to  Deptford  in  the  af- 
ternoon, as  in  good  earnest  it  did,  as  he  then, 
told  me ;  and  from  that  she  may  take  a  hint  of 
my  not  being  at  home,  and  so  save  herself  the 
disappointment  of  coming  to  my  chamber.'  I 
told  him  1  would  tiud  an  opportunity  of  doing 
it  if  1  could.  At  dinner  my  father  happened  to 
ask  me,  as  he  often  did,  when  I  saw  my  bro- 
ther ?  I  took  this  hint,  and  said  I  had  seen  hioi 
at  my  chamber  in  the  morning,  and  that  he 
was  gone  to  Deptford  that  anern(»on  about 
some  law  business.  My  lord,  Mrs.  8tout  was 
then  at  the  table.  I  no  sooner  said  it,  but  1  ob- 
served she  changed  colour  presently »  and  rose 
with  her  napkin,  and  went  into  the  back- yard* 
and  we  saw  her  through  a  sash-window  fall 
into  a  woman's  fit  of  swooning ;  and  they  gave 
her  the  assistance  that  is  usual  in  such  cases. 

My  lord,  the  next  thing  I  can  sneak  to  is 
this :'  The  parliament  sitting  late  therrtday  be- 
fore the  Monday  of  the  last  assizes  at  Uertfurdi 
I  came  late  from  dinner,  1  had  dined  about 
seven  o'clock,  as  1  remember ;  and  hnving  oc-: 
casion  to  speak  with  my  brother,  I  tound  him 
out  by  eiKjuiry-  at  the  'Covent- garden -tavern, 
and  there  was  Mr.  Marshall  of  Lion's- inn  with 
him.  I  bad  not  drunk  above  a  glass  or  two  of 
wine,  but  my  brother  bei;un  with  me,  and  said, 
I  seldom  trouble  >-ou  with  affairs  of  mine,  but 
now  1  do  not  know  well  how  to  avuid  it.  I 
have  receivL*d  an  importunate  leuer,  which  I 
will  shew  you  ;  it  came  from  a  lady,  whose 
name  1  lielieve  you  will  guess  ;  so  he  pulled  it 
out  of  his  pocket  and  read  it  si)  often,  because  of 
the  odduessof  thcexpres^iion,  that  I  can  Nay,  I 
am  sure  this  is  tlit?  vcr^  letter  lie  iiheweil  nie  at 
the  Covcnt-garden  tavern  (he  Friday  before  the 
last  assizes ;  saith  he,  the  occuMon  of  my  abew>« 
ing  it,  is  not  to  expose  a  woman's  weakness,  but 
I  wfiuid  not  wiUiogiy  Us  under  too  nisoy  eUi- 


wUb  your  proposition  of  changing  the  season,  if 
it  were  in  my  power  to  do  it,  but  you  know  that 
lies  altogether  in  your  own  breast :  I  am  sure 
I  lie  winter  has  been  too  unpleasant  for  me  to 
tlesire  the  continuance  of  it;  and  T  wish  you 
were  to  endure  the  sharpness  of  it  but  for  one 
hour,  as  1  have  done  for  many  long  nights  and 
fUys ;  and  then  I  believe  it  would  move  that 
rocky  heart  of  yours,  that  can  be  so  thoughtless 
of  me  as  you  are :  But  if  it  were  designed  for 
thet  end,  to  make  the  summer  the  morf  delight- 
ful, 1  wish  it  may  have  the  effect  so  far,  as  to 
csontinue  it  to  be  so  too,  that  the  weather  may 
never  overcast  again  ;  the  which  if  I  could  be 
nwnrcd  of,  it  would  recompense  me  for  all  that 
I  have  ever  suffered,  and  make  me  as  easy  a 
ocature  as  I  was  the  first  moment  I  received 
breath.  When  you  come  to  H  d  pray  let 
your  steed  guide  you,  and  do  not  do  as  yon  did 
the  last  time ;  and  be  sure  order  your  affairs  to 
be  here  as  soon  as  you  can,  which  cannot  be 
■ooner  tlian  you  will  be  heartily  welcome  to 

Your  very  aincere  Friend." 
**  For  Mrs.  Jane  Ellen  at  Mr.  llargrave's, 
near  Temple-bar,  London." 
Mr.  Cowper.  Though  it  is  directed  to  Mrs. 
Jane  £llen,  it  begins  in  the  inside, '  Sir,'  and  it 
m  dated  the  5th  of  March,  next  before  the  13tl). 
•   Baron  HatgelL  What  March  was  it  P 

Mr.  Marshall,  1  kept  no  account  of  the  time, 
bat  1  am  very  positive,  by  the  contents,  that 
Mr.  Cowper  shewed  me  this  letter,  and  I  read 
it,  but  by  my  now  remembrance,  it  slionid  be 
k>oger  since  than  Alarcli  last, 

Mr.  Cowper,  It  was  March  Ust.  That  which 
vill.8etMr.  Marshall's  memory  to  rights  is  tliis 
other  letter,  which  I  received  at  the  Rainbow, 
wbeo  be  was  by,  and  he  read  it ;  and  it  impor- 
taoing  me  to  a  matter  of  this  kind,  I  dul  pro- 
dnoe  it  to  my  bmtlier  and  him ;  they  both 
koew  of  it,  and  both  read  it,  and  tlmt  will  re- 
fresh his  memory  coneeruiug  the  date  of  the 
ether. 

Mr.  Marshall,  My  lord,  1  was  in  the  coffee- 
house with  Mr.  Cowper  when  be  received  this 
letter;  and  lie  afterwards  shewed  it  to  Mr. 
William  Cow|>er,  at  tlie  Covent-gardea  tavern. 
ynheu  I  was  by. 

CL  ffArr,  This  is  datcfl  the  9th  of  Mojch, 
and  directed  to  Airs.  Jane  Ellen,  at  Mr.  liar- 
graTe*s. 

"  Sir  \  March  9, 

•*  I  writ  to  you  by  Sunday's  post,  which  I 
hope  you  have  received ;  however,  as  a  contir- 
mation,  I  will  assnre  you  1  know  of  no  inuonve- 
luency  that  can  attend  your  cohabiting  with  me, 
■nlessthe  grand  jury  should  theren|M>n  find  a 
bill  against  us ;  but  I  won't  fly  for  ii,  for  come 
life,  come  death,  I  am  resolved  never  to  de:-*rt 
won  ;  therefore  accord in<r  to  your  apiiointment 
1  will  ez|iert  you,  and  till  then  1  shall  only  tell 
jou,  that  I  am  Yours,  ^c  ^* 

«  For  Mr!c.  Jane  Ellen  at  Mr.  Hun^ve's, 
near  Temple- bar,  London." 

Mr.  Cfuoptr,    If  your  hardship  please,  i  will 
r  ^Dtfve  Ibis  ilelter  k^  my  brother. 


i^a      iit9tf2£ikftm.      )«ii»^^Vi&P€SNpr^4«rMHiib      CtM 


gutiooi,  nnr  engage  too  far  ;  nor  an  the  otber 
haadj  w'ouLi!  I  Ee  at  an  uti necessary  eicpenee 
ibr  a  M^ug.  Upon  thii  tiitliject  tbeie  was 
£0me  dt$coar«e^  1  Ihicik,  loreigq  to  ihii  pur- 
pftse»  and  thei-efore  I  would  not  trouble  your 
lonJaliip  with  ik  repetition  af  ii  ^  that  ^Wich  m 
inatert&I  is  this  ;  I  dii!  undertake  to  write  to  Rtr. 
Barefoot';!  to  dispose  of  his  lod^ng»,  wbere  1 
used  to  be  itt  the  time  of  the  assizes,  and  my 
brotlker  wiib  me.  I  asid  I  would  write  the  ttt^i 
titty,  \mn^  Saturday  ;  but  when  1  should  have 
writ|  it  was  very  Jate,  and  I  was  weary »  beiug 
then  tied  down' to  the  busineas  of  pai  Itanif^rit  j 
and  partly  for  Ih^t  reason^  and  |iartly  iu  point 
of  dtscretion,  which  I  had  upon  nay  seeond 
thoug'bis,  that  it  would  be  better  for  my  bro- 
ther's business  to  be  al  Blr.  Barefoot's^  wliich  is 
near  the  c^urt,  and  ia  tbe  ntiirket-pbcef  I  did 
neigleet  writing" }  and  though  I  thought  of  it 
ftbout  eteveii  o'clock,  yet»  as  I  said,  part!  v  for 
one  reason,  and  partly  ihv  the  other,  I  dicf  not 
write  tliat  time*  My  lord,  my  brother  could 
know  nollnugof  this  matter  ;  tor  I  did  not  see 
him  from  ttie  Friday  he  shewed  me  the  letter, 
litl  he  went  to  the  aiisizes  ;  ao  tbat  he  coutd  not 
kdow  before  be  was  at  Hertfbril,  that  I  had  not 
writ,  I\ly  lord,  1  ^v,  as  to  this  letter^  1  am 
iure  he  shewed  me  the  Friday  neatt  beJbre  the 
last  assizes. 

Baron  Hatseli.  Let  me  see  that  letter. 
(W«tich  was  shewn  bis  lordship.) 

Mr,  Cowper.  My  lord,  onp  or  two  ofihe  joiy 
mem  to  questioii  whether  Ibe  letters  are  suffi- 
eletitly  proved;  for  tbeir  satisfaettoni  1  will 
fyrlher  proTe  them.  Call  Mr,  John  Beale, 
Wilbam  Oaker,  and  Mrs,  Low,  My  lord,  31  r, 
Beale  ts  one  of  their  own  sect. 

[The  Witnesses  prored  her  hand.] 

Jury.  My  lord,  we  are  satisfied. 

Baron  Hatidi.  I  believe  you  may  ask  her 
aiother,  she  will  tell  you  whether  it  be  her 
daurbter*s  baod, 

Mrs.  Sfoul*  How  should  I  know*  1  know 
she  was  no  such  person,  her  hand  may  be 
counterfeited. 

Baron  HattelL  But  if  it  were  written  in  a 
loore  sober  stile,  what  would  you  say  then  ? 

Mn.  Stotiit  I  shan't  say  it  to  be  her  band, 
'  *     it  saw  her  wHie  tt. 


[Theo  the  Letter  was  shewn  to  Mr,  Stout.] 

Mr,  Stmt.  It  is  Uke  my  sisier^a  hand. 

Baron  HaticiL  Do  vou  belief  e  h  to  be  her 
liaadr 

Mr.  Stout,  No,  I  don't  beliere  it ;  because  it 
don't  suit  her  character. 

Baron  HatictL  But  do  yon  think  she  might 
Hot  conceal  from  yon  what  were  her  inward 
tboiig^hts? 

Mr,  Stout.    Not  in  such  a  degree  as  this. 

Mr.  Couper.  Call  Mrs.  Barefoot  and  her 
maid.  I  desire  they  may  be  asked  what  they 
know  about  my  talcing  of  lodgings  st  their 

B  rron  HniitU,  This  is  taken  for  granted. 
Mrs.  M&rrfoei,  W  hen  you  came  to  my  liDOi^ 


•lb»' 


yon  asked  me,  if  I  had  receited  a  letter  irtim^ 
yonr  brother  ?  And  I  told  you,  no.  ^ 

BIr.  Ci^per.  WhM  did  I  say  to  disrt  ?  i 

Mrs,  Bartfpat.  Then  ynuaisked  me,  if  f  ex-' 
peeteJ  you?  And  I  told  you,  yetf^  by  nsaon  %* 
had  heard  DOthiiie:  from  too,  '  i 

Mr,  Cmfpfr,  Where  did  I  lodge  Ihi^  iiiKhl?^ 

Mrs.  Barefoot  I  had  prepared  the  bi^ii^ 
before  you  canie«  earpccting  you  m  Mr.  Cow^ 
per  your  brother.  I 

Mr.  Cots  per.  And  I  did  come  ?  • 

Mrs.  Barefoot.  Ves,  as  you  used  lo  do.        ' 

Mr.  CowDfr.  Did  I  send  for  my  ibutp  5«it 
the  coffee- bouse?  '  , 

Mrs.  Barffaot.  Yes,  you  dtdjcMUMttU 
them  up  in  your  chamber  as  UHi|iifc  '   ** 

Baron  HatteiL  Where  did  * 
that  day? 

Mrs,  Birefoot.   Mrs.  StonaintiHr. 
desire  him  to  come  to  dinnefUl 
whether  he  went  thither  or  i%  1 
but  he  went  out.  '  - 

Mr.  Ctmpcr.  What  time  di|  I  C|Mi 
lodging  that  night  ?  ^  ■  '" 

Mj^,  Barefoot.  It  was  alitt 

M  r.  Ctfmper.    You  s  re  sure* 
afler  eleven  f^Mrs.  Bare/.  YmL    . 

Mr.  Jmu,    By  what  clockr    9f 
clock?— Mn.  Barff.  Yes.        . 

Mf.  Cowper,  Did  I   go  oat     ^ 
night?— Mrs,  Bflrr^:  No. 

Mr,  Cimper.  Is  y«»ur  maid  Awif    - 

Mrs.  Bar^«»l.  Yes. 

Baron  E&tHU.  What  is  yoar  wnef 

Mrs.  Hunteeli,  Mary  Han  well. 

Mr,  Vowper.  Fimy,  what  time  wasit  Icnr 
to  my  lodging  f 

Mrs.  E^nmelL  Yon  came  io  a  little  lAr 
eleven  o^clock. 

Mr.  Compcr,  Are  yon  very  poaitiva io  thil? 

Mrs.  H&nwttl.  Yes,  J  am  very  poailife. 

Mrs  Cowpet,  What  was  done  befera  I  fN# 
to  bed? 

Mrs.  Hanweil.  My  tortf,  I  went  o^  mi 
made  a  6 re,  and  then  I  came  down  agaByttl 
then  I  went  up  and  warmed  Mr.Cowpcr'sM 
and  then  be  desired  another  Manhtft,  aaA  1 
camt?  down  for  it  ;  and  all  this  took  up  a  etai" 
deroble  time ;  and  Mr.  Cowpor  waa  in  Mil* 
fore  twelve  oViock. 

Mr.  Cowper,  Bid  I  goout  agaiotbataigit! 

Mrs.  HanweiL  No*  you  u  eot  out  no  BfR* 

M  r «  Cowper,    Now ,  if  your  lordship  ({jMU^ 
f  would  explain  that  part  of  Sarah  Wafev 
the  maid^s  evidence,  where  she  aaya  her  ■■", 
tress  ordered  lier  lo  viarm  the  bedi  and  I  MfV 
contrachded  it.    Your  lord<%hip  obsarrat  Al 
words  in  the  last  of  the  two  Icktefi,*  NoiaBMt, 
venience  can  attend  yoin*  cohabiting  with  atf 
and  atlei  wards,  '  1  won't  fly  for  it:   Far  MM 
lite,  come  death,  t  am  residred,'  uadmm^ 
had  rather  leave  it  to  be  obserredy  tbani 
the  obseinratjon  myself,  what  migbt  be  ibl 
pute  beti«een  us  at  the  time  the  Mai4  H 
uf.     I  think  it  was  not  m^ceamy  abe  8 
be  present  at  the  debate;  and  ibafMhii  ll 
t)0(  interrtipt  her  aiiati«ai  m  Hm  9fttk 


>^  the  Murder  ^Mre.  Sarah  8hid.  A.  D.  1«9..  [1170 

from  tttrt .  8tout*t  to  the  place 


nH  if  MMO  as  tb«  maid  wai  sone,  I 
le  of  tbew  olgections ;  and  1  md  Mn. 
r  what  aoddeiil  I  was  obliged  to  take 
bdgioif  at  Mr.  Barefoot's,  and  that  the 
rat  fitting  iw  for  ooe :  that  my  staying 
onae  under  toeM  circumstances,  would 
biKty  provoke  the  censure  of  the  town 
otry;  and  that  therefore  I  conid  not 
tiaterer  my  inclination  otherwise  might 
,  my  lord,  my  reasons  not  prcirailing, 
forced  to  decide  the  controversy  by 
\  my  lodging ;  so  that  the  maid  may 
ne,  when  she  says  I  did  not  contradict 
$rs. 

I  HatuU,  I  b^eve  you  have  done  now, 
s'perP 

'^ifwper,  Ko,  my  ]ord«  I  have  more  evi- 
»give.    Call  Elizabeth  Spurr.    If  your 

pleases  to  observe,  I  have  already 
by  two  witnesses,  that  I  was  actually  at 
pefoot's  a  little  siler  eleven ;  so  that  if 
I  rest  upon  this  proof,  here  is  not  the 
icle  of  time,  in  which  it  can  besappoaed 
mployed  in  this  matter :  but,  says  Sa- 
lker>  the  maid,  to  obviate  (i  presume) 
lenoe  of  mine,  our  house-clock  went 
lan  the  town-clock.  Now,  to  answer  this 
lall  further  prove  to  your  lordship,  that 
I  came  to  my  lodging,  J  was  at  the 
lad  Dolphin  inn,  where  I  had  a  little 

of  about  six  or  seven  shillings,  as  I 
ler,  for  horse-keeping,  and  which  1 
id. 

Zowptr^  00  you  remember  my  coming 
house,  and  at  what  time  P 
>Krr.   The  clock  struck  eleven,  just  as 
ie  into  the  door. 
"kmper.   How  long  did  I  stay  at  the 

mrr.  About  a  quarter  of  an  hour. 
"Umjter.   Bow  far  is  it  from  the  Glove 
phm  to  Mrs.  Stout's  house  ? 
mrr.   About  a  quarter  of  a  mile,  or  not 
far. 

hamper.  Call  Mary  Kingitt,  and  George 
rbo  not  then  appearing)  in  the  mean 
would  observe  to  your  lordship,  that  to 
Mrs.  Stout's  house  to  the  place  where 
drowned,  and  to  return  from  thence  to 
re  and  Dolphin,  will  take  up  at  least 
hour,  as  1  shall  prove,  and  then  the 
srill  stand  thus?  Says  Sarah  Walker, 
It  about  a  quarter  after  eleven ;  but  our 
BBt  half  an  hour  too  fast :  then  accord- 
ler  aoeountf  I  went  three  quarters  after 
be  town-dock ;  and  if  it  requires  (as  I 
ball  prove  it  does)  half  an  hour  to  go  to 
e  where  she  was  drowned,  and  to  re- 
B  thence  to  the  Gtove  inn,  that  would 
a  quarter  past  eleven  when  i  came  to 
by  the  town  clock,  which  it  was  not  ( 
itoid  there  a  quarter  of  an  hour  (which 
sd  I  did  not),  it  must  be  half  an 
■r  eteven' when  I  came  to  my  lodgii 
UDe  dock,  which  it  was  not ;  so  tl 
to  iBBttor  as  to  the  time  is  very  dear. 
9i9  fivfe  the  time  it  raqairef  to  go 


where  she 
drowned  heradf,  and  to  return  to  the  Glove,  I 
desire  sir  William  Ashurst  may  be  called. 

Sir  W,  Ashunt,  My  kml,  I  cannot  say  I 
walked  as  ftst  as  I  could,  but  I  went  with  a 
gentleman  1  see  here  to  satisfy  myself  about' 
the  probability  of  this  matter ;  1  walked  as 
people  usually  do,  and  I  found  it  took  up  half 
an  hour  and  a  minute,  when  I  walked  with 
that  gentleman. 

Baron  HattelL  Who  was  with  yoo.  Sir  P 

Sir  W,  Jthurtt.  Mr.  Thompson  was  with 
me  the  time  I  mention.  1  walked  it  before 
with  sir  Thomas  Lane. 

Mr.  Thompson.  My  h>rd,  indeed  it  will  take 
a  complete  half  hour. 

Mr.  Cowper.  I  desire  sir  Thomas  Lane  may 
give  you  an  account  of  the  distance  between 
one  place  and  the  other. 

Sir  T.  Lane.  Sir  William  Ashurst  and  I  did 
walk  to  the  place  mentioned,  and  we  were 
careful  to  take  notice  of  the  time,  and  it  took  op 
about  three  ^uartera  of  an  hour,  according  to 
my  observation ;  and  we  did  not  stay  at  alTby 
the  way,  except  just  to  look  upon  the  hospitaL 

Mr.  Cowper.  Now,  mv  lord,  Mary  Kin- 
gitt and  George  Man,  Ine  servante  at  the' 
Glove,  are  come :  prajf,  Mrs.  Kingitt,  do  voir 
remember  my  commg  into  the  Glove  and  Del* 
phin  P— M.  Kingitt.  Yes. 

Mr.  Cowper.   How  long  did  I  stay  there  P 

M.  Kingitt.  About  a  quarter  of  an  hour. 

Mr.  Cowper.   What  was  my  business  there  ^ 

M.  Kingitt.  You  came  and  enquired  what 
you  owed. 

Baron  Hatull.  What  o'clock  was  it  then? 

M.  Kingitt,  I  thought  it  was  about  deven  ; 
our  other  maid  told  it  deven, 

Mr.  Jonei.  How  came  you  to  take  notice  of 
the  time  P 

She  heard  the  dock  go  eleven^ 


Af.  Kingitt. 
but  1  did  not. 

Mr.  Cowper. 
the  account  P 

M,  Kingitt. 


Was  there  any  dispute  aboot 


You  asked  the  hostler  how 
that  camelo  stand  in  the  book  concerning  the 
horse ;  for  you  told  him,  you  thought  you  had 
paid  aome  part  of  it ;  and  be  told  you,  you  had 
not. 

Mr.  Cowper.  My  lord,  with  your  lordship's 
favour,  I  would  ask  George  Man  a  question  to 
the  same  point.  Do  you  remember  my  com- 
ing  into  the  Glove  and  Ddphin  P 

G.  Man.  Yes. 

Mr.  Cowper.  How  long  did  I  stay  there  P 

G.  Man.  You  staid  but  a  quarter  of  an  hour, 
as  near  as  1  can  guess. 

Mr.  Cowper.  I  will  now  call  a  witoess  to 
prove  that  this  maid,  Sarah  Walker,  is  not  so 
cautious  and  careful  how  she  swears,  as  I 
think  ahe  ought  to  be. 

[Cdl  Mrs.  Minee.1 

Baron  Hatull.  Pray,  wherein  hath  Sarab 
Walker  said  any  thing  that  is  lalse  P 

Mr.  Cowper.  In  this ;  1  asked  her  when  she 
give  evidiMi^  wheCiMr  ibe  went  out  to  ic« 


11  wnxim  tn- 


Tnd  ffSpiMir  Cuwp^  and  tUimh 


far  his  mt^nm  all  iliat  rti^U  vail  'wk^lh^t 
htr  mii^l^'&  did  nol  u»l^  lo  st4Ly  out  i  oigbUi 
■nd  wlietber  abr  U^rvdlf  biul  uul  tiuarl  to  say 
i> f   J  r  y out  lonM" p  pi eu«s  to  i cmombcr,  lAie 

Ikqi'4  Mrs,  moulu  m%)d  my  cor)e«rnia|;bi?t' 
mixlreatt,  |»artR-ukvlj  as  la  Uer  ^lajrb^  aui  all 
aklitf 

dii  not  tofe  til  k^p  cc>nipftny  wiUi  Qualers ; 
Aod  til  At  *\w  paid  fi)r  li^r  ovn  boiurd  nad  bt^r 
m«d'i  ;  and  tbati  wh«u  »lie  ctjitnajiusil  %ay 
fiody,  it  vran  at  hsr  own  clmrp^,  And  tilifr  Katri 
sAbK  lba(  BIrs.  Stout  used  to  atk,  wbo  b  wlit) 
y&u,  diild?  swd  ibe  would  not  t4fU  btr;  And 
UiatKbt*  did  en  Ut  la  in  bsr  <t-Iciid»  in  tbe  Auto* 
mff^Uousit  now  and  then  wilb  n  hDtlk  of  witi£  ; 
«Dd  whrn  her  mr>lb«^r  ^ktil  \yhi>  was  th<:rc  ? 
bt'r  T«i«trc*fi  would  &ay,  faring  it  la  bere,  I 
mtf  JI03W  tbare  is  iiunc  ont  (mn^U :  and  at^ier 
ibe  cofUMny  was  gonn,  »bi^  u««d  to  tnitke  lur 
mmbf r  ^U«;re  Lbat  «be  wcul  iu  bed ;  bul  jdi« 
tnad  tQ  fi  out  and  take  tha  key  witb  ber,  «4i4 
tometlmci  uh^  wonld  ;^n  uul  ta  the  wiiidi»w  ; 
and  ^a  taM  parlieukriy,  od«  time  aba  w«&i 
em  m  tbc  cmrden  window^  ^1i«ti  tb#  gtrikii 
dooriraabmt£d,  und  lb  At  ihe  bid  hirr  not  »it  u|» 
fi>rb«r»  fombe  WQiM  ni»l  vmn^  in  at  qkny  liixkc. 

BtToii  IhUtil  1>id  (^vitf  Sarub  Walker  1^11 
yon  that  Mi^.  f^iout  iuid  out  oil  nigbt  * 

Itn.  ii^nc^,  Siif  kilb  said,  &kti  cc»u]d  unt 
t£ll  wbai  time  ibe  C4in«  k,  for  ibe  neol  tu 

Mr,  Cmpir.  Now^  if  ynnr  Tonkbip  pTtisef 
I  will  prove  to  yaui  if  U  m^y  be  ibongbl  ma- 
leml,  ilmt  Uun^^y,  al  wl)o«e  bttixse  IheM  gin- 
ti^meD  lodged,  fcbntild  nsy,  tiiEil  if  I  had  visited 
Mi^,  i^tlout,  uono  of  all  iltis  b;uL  beet\  (upon  bo 
little  aa  omis&Mui  a  ^£ms  did  this  prosecution 
^fjjend).  To  which  I  give  ihi*  aiiiwer,  n^y 
lof  d  I  1  nererdtd  opce  go  to  visii  ber  in  my 
lifoi  she  knowst  it.  Now,  for  a  man  officiously 
lo  make  a  new  visit  in  tb«  lime  cd"  ibe  a^Ktiees, 
one  f-ngasjed  in  busine'is  as  I  wn*,  aud  Gigie- 
ciaily  upou  so  melaadkuly  an  ocGasiun ;  I  say, 
for  IU&  to  1^0  o&ciouKlv  Xti  see  a  vioiii:in  I  tiever 
bad  the  leait  kuowleifge  of*  would  have  been 
tbou^^b I  more  strange  (and  justW  migbt  havo 
lieen  so)  than  the  orniiiiiiion  of  that  ceremony, 
For  B^y  partj  1  cannot  conetive  what  Mr. 
Gnrrey  couU  m^Oi  ibis  bcioi;^  ibe  case,  by 
savnu^i  that  if  J  bad  vii^ited  Mri.  I^^Uint,  ima- 
IbiojL:  oV  thi^  had  haptK'titTd. 

Barot)  Hcitidi.  Mr.  Cow  per,  be  ig  not  ihe 
pro«ecult)r,  I  tlnnk  it  hi  lio  ni:Uti^r  vvhai  he 
said. 

Mr.  Csupcr.  I  luke  ilj  my  lard,  with  humble 
ppluinuiioii,,  it  is  lualcnal,  as  htt  b  a  phncipul 
wimeKK  ii^aitist  tbcse  f^enilemiin  ;  and  llie  ra» 
Micr,  for  t|iat  lie  ttow  proiend!i,  that  nbat  be 
did  wa»  out  of  cojiselenc^^  I!hly  Wd,  1  have 
only  one  lliing  more  to  say,  I  know^  not  whe- 
ther it  will  W  requisite  tor  in^,  or  no,  to  give 
some  Ecuouut  of  inyself.  bir  WiUiam  Ashumit 
ifyiiu  (defl<*e, 

Sir  It .  ^*/^lx^i^  fliy  lord,  if  1  had  not  had  a 
good  o^akQ  of  4kL&  j|eQlbiiw,  I  bad  luit  mm% 


on  purpose  to  bear  llii»  ca»«e,  vrbicb  k« vrf^ 
so  sreat  a  tK>b€  all  Eii|;bwi  mm",  ]  1 

fiaroii  HuiitlL  Bul  vital  doi««»j«  1%^ 
^Ir.  Ca0per'^  rcptitaLiffii,,  l«r  Wliicli  y9«  ii% 
called  ?  ^ 

Sir  IT,  i*A^rii.  I  alivaj»  lliOii|^t  Mr,  C^  ^ 
per  to  be  a  ginlkina»  of  aiiigularlMij 
UDd  mim^riiy ;  bis  ja  a^  ofievs-  m  Iau  * 
a^  to  hfi  i».'nii:;^^u>4^al  of  tii*  oScCf  I 
man  ever  [  *  It  bctt«f,  or  ba  a 

r^puUlion  y  ,  ,  mjc  irber«  !m  IvrcL 

Sir  r.  jI*«*^k,  AJy  lordp  I  tame  bitkif  ii 
[inrpost^to  ovr0  thi«  giuUciiiati,  and  mikd  If 
di^rves  lo  be  owncrd  by  bis  frleod^i  aod  &«i^ 
that  kmm  bink ;  lila  cb&raelrr  v  aHogdlff 
untsiinted  with  tii^,  he  has  gained  a  ipKnif^ 
isLtioo  ai  tlie  buftioea;!!  wbctieiD  bt  i»  coaoMiiC 
be  hat  hchiLi^d  bitiiae'ir  ia  lijc  oMce  m\a^  h. 
hold*  of  tJir  city  of  Lctudoo  very^  koa^f  ai 
well ;  I  aercr  kuew  bim  d4«<dfcr  aay  mH' 
lurt^ia  hai  teiQper  \  I  think  be  msoM  )mmi^ , 
pect«<t  of  thii  or  any  other  act  of  baiiantr* 

Mr,  Crx^tr.  My  kird^  in  ib*  mart  fimi 
would  €ilt  Mr.  CojTt  wbo  baa  the  hommia 
aerre  m  {i^rliami^nl  f<ir  tbe  boniiijfh  of  Sm^ 
tfftfk,  and  bai  l)cc-n  luy  nv^r  i»t.i^bb(ayr  Ika 
e^t  or  nine  year«*     If  y  on  pleaae,  Mf  ^  fa^ 

bare  in  Ibcst  ptaoe. 

I^lr^  Cat.  My  lord,  I  l(r#  m  8«iitb«i4> 
whci t^  Mrt  Cawiicr  lives  :  ]  litate  lit £d  K|  UiL 
oi^'bt  or  UEivcyem-« ;  1  knaw  him  io  W  a  pciai 
nf  intt^^rity  iiud  worth,  dltbe  niUj|bl»aunciat 
bia  com]>any«  J  take  him  tv  ha%e  as  ermI 
honour  aed'hoaesty  m  tmy  «|euil«:^:uati  Mfbabi- 
ever  I  and,  of  all  mc^n  that!  ko^jw^  be ff till 
he  the  last  man  ibat  I  should  ^u^pev'tof  uictiL 
fact  na  tblsis^  I  bebeve  oothiug  in  tbe  w^ 
could  move  him  to  entertsLUKbc  lea^t  ikotigkl 
of  so  foul  an  act, 

BJr.  Coit'pir.  Mr«  ThoQapaon^  I  deafe  fM 
would  be  pleased  In  jflve  an  aooouot  of  ww 
you  know  of  uic  f 

Blfp  Thompson.  If  yOu  please,  t^  lardflb 
llrsl  acf]UEniitat>ee  i  had  with  Mr.  dovfrrazt 
in  our  (^Ujldb{:»od,  I  liad  Ibe  houoiir  lo  fa  ii 
VVsitmi  lifter  n^hool  willi  hliu  i  I  did  iOli»* 
new  my  actjuainUmce  with  him  tUi  aboat  £it 
years  ago  j  sidCf^  that  time  1  haveb^^oflei 
wiib  him,  and  have  several  tlones  b&d  riiiiifOiM 
to  ask  his  advice  in  matters  i^laliog^  to  bis  ]«9- 
fe&iion  ;  aud  I  ibiuk  no  tua»  more  fiutbfid  il 
I  the  sow  ice  of  bia  chieut  thaa  he  ia,  Aod  1  ta 
sut^  be  iM  very  deserving  di'  the  em/eem  of  mf 
oian,  aiul  I  WlieYe  he  never  cnlcrtaiotf)  & 
thoug'hl  o[  so  foul  and  biirharous  n  liu:t  a$  dusi 
of  whidi  he  is  aeeuiic-d. 

Bamn  HattelL  Mr.  Manoo,  juvk  have  brvi 
tbe  ev  id  t  J  Lee,  wbi^l  doyim^y  toil? 

Mr.  Mttrmn*  My  lord,  our  bu^me^  at  UfiV 
ford  was  ibiii :  Mr.  Ellis  ^lephi^^s  aod  1  v^ 
dawn«  be  is  elerk  of  tbe  paptm  ol  the  &iaf  s* 
hrncb,  and  Mr.  lingers  lh  steward  of  tin 
Ring'a-bench,  and  U  wu^  tlieir  duty  to  aiil 
ui>on  my  Lord  cbief  justiije,  wjib  ihe  martbalirf 
tbe  Km|r'!j.licncb,  out  of  town  ;  4iod  on  Hisr 
.  ilay  itiuLaiun  we  wentlo  xi>y  lor^^^lu^iiiiPPe'l 


1181] 


Jot  the  Murder  of  Mrs.  Sarah  Stout* 


A.  D.  1699. 


[1182 


konse  Id  liineolnV  Inn-fields,  as  we  used  to 
49f  and  there  set  uat ;  but  I,  bcinflf  an  attorney 
•f  the  borooirh  oonrt,  could  not  with  any  con- 
vanenoe  go  nrther  with  tbeni  than  to  a  place 
wiiidi  I  think  is  called  Kingsland,  and  there- 
lbf«  I  retnmed  to  my  basioess  in  8onthwark, 
1 1  attended  the  court,  as  wns  customary 
1  necessary  for  me  to  do,  and  set  f<»rtli  from 
I  at  past  four  in  the  altemooii :  hy  the 
lr«y,  as  iTemember,  about  Waltham- Cross,  I 
VMt  one  Mr.  Hanks,  a  clerg-yman  of  my  ac- 
«lMiDtanee,  who  had  been  likewise  to  attend  my 
lonl  chief  instice  to  Hertford,  and  was  retum- 
hag  from  thence ;  with  some  persuasion  I  pre- 
vailed with  hi  ill  to  gn  back  agtin  with  me  to 
Hertford,  telling  biro,  I  did  not  knoir  the  way ; 
•nd  we  galhiped  every  ste[>  of  it,  beeamte  night 
wae  coming  on ;  it  was  abOut  eight  o'clock 
wImh  we  came  in.  Mr.  Hanks  and  I  found 
the  marshal,  Mr.  i^tephens,  Mr.  Rogers,  JMr. 
fUrtkiD,  and  others  of  the  marshal's  acqnaint- 
■Bce,  at  the  coffee- house ;  and  truly  when  I 
i  in,  I  mij^ht,  for  aught  1  know,  be  in  a 
t  with  riding  so  hard  as  we  did,  but  eren 
I  was  not  in  such  a  sweat  as  the  witness 
Wvald  have  it.  My  lord,  we  went  from  thence 
to  the  Glove  and  Dolphin,  and  stayed  there  till 
^  dereii  o'clock.  Mr.  Rogers  and  I  had  a 
who  should  lie  with  Mr.  Htephens  at  the 
witness  Mr.  Gurrey's;  at  last  it  was 
between  us  to  go  to  Gurrey's  to  see 
conventence  he  could  make  for  us,  and  to 
a  glass  of  wine  at  our  lodging ;  but  after- 
it  came  in  Mr.  Uutkin's  head  that  he  was 


'M«ed 
Mtatc 


•»  Me  with  the  marshal,  and  for  that  reason,  he 
miAf  he  would  go  back  again ;  and  accordingly 
he  went,  and  Mr.  Hanks  with  him,  after  they 
had  seen  iis  into  our  lodgings,  and  Mr.  Ste- 
phens, Mr.  Rogers  and  1  drank  throe  bottles  of 
nine  togetlier,  Mr.  Gurrey,  our  landlord,  was 
MM  to  fetch  it ;  and  afterwards  in  jocular  con- 
vention, I  believe  Mr.  Htephens  might  ask  Mr. 
Gurrey  if  lie  knew  one  Mrs.  Sarah  Stout?  And 
the  ratson  wh)r  he  asked  that  question  our  wit- 
^ — I  will  explain.    I  believe  he  might  likewise 


ttk,  what  sort  of  woman  she  was?  and  possibly 
I  Might  eay  the  words,  My  friemi  may  be  in 
whh  Der,  ttaoogb  1  remember  not  I  did  say  any 
tMw  Hke  it ;  l>iit  1  say  there  is  a  possibility  1 
■right,  because  I  had  heard  she  had  denied  Mr. 
Manhall's  suit,  and  that  might  induce  me  to 
■ay,  My  friend  may  be  in  with  her,  for  all  that 
I  remember.  1  confess  Mr.  Rogers  asked  me 
fihit  money  I  had  got  that  day,  meaning  at 
the  borongh  court  P  1  answered,  fifty  shillings ; 
Mrith  he,  we  have  been  here  a  spending  our 
money,  I  think  you  ought  to  treat  us,  or  to 
that  purpoee.  As  to  the  bundle  mentionerl,  I 
had  DO  such,  except  a  |iair  «if  sleeves  and  a 
ueekdofth.  As  to  the  evidence  which  (foes  to 
wonleepokea,  the  witnesses  havo  ftiiiiful  in- 
ventions; and  as  they  have  wrested  and  im- 
proved the  instances  f  have  been  particular  in, 
whave  they  the  reft,  or  otherwise  forged  them 
.ewt  of  their  own  heads. 

Baroa  HaticlL  Mr.  Rogers,  what  do  you 


i 


BIr.  Iloger9.  We  came  down  with  the  mar- 
ahal  of  the  King's-bench,  it  rained  every  step 
of  the  way,  so  that  my  spatterdashee  andsboes 
were  h\n  to  be  dried ;  and  it  raining  so  hard, 
we  did  not  thmk  Mr.  Marson  would  Imlvc  come 
that  day,  and  therefore  we  provided  but  one 
bed,  though  otherwise  we  should  have  provided 
two,  and  were  to  give  a  crown  for  our  niglit's 
lodging.  We  went  from  the  cofibe- house  to  the 
tavern,  as  Mr.  Marson  bos  said,  and  from  the 
tavern  the  next  vray  to  our  lodging,  where 
there  was  some  merry  and.  open  discourse  of 
this  gentlewoman  ;  but  I  never  saw  her  in  ray 
life,  nor  heard  of  her  name  before  6he  was 
mentioned  there. 

Mr.  Stqthera.  We  never  stirred  from  one 
another,  but  went  along  with  the  marshal  of  tlie 
King's-bench,  to  accompany  my  lord  chief 
justice  out  of  town,  as  is  usual. 

Baron  HattelL  I  thought  it  had  been  as 
nsnal  for  hiiu  to  go  but  half  the  way  with  my 
lord  chief  justice. 

Mr.  Bigen.  They  generally  return  bock 
after  they  have  gone  half  the  way,  but  some  of 
the  head  officers  go  throughout. 

Mr.  Stephcnt,  It  was  the  first  circuit  after  llie 
marshal  came  into  his  office,  aud  that  is  the 
reason  the  marshal  went  the  whole  way. 

Baron  Hnttrll,  Did  not  you  talk  of  her 
courting  days  being  over  ? 

Pri$oner$,  Not  one  word  of  it ;  we  abso- 
lutely deny  it 

Mr.  Stqfhens.  I  never  saw  her. 

Mr.  Jc;ncf.  Mr.  Marson,  did  you  ride  in  boots  F 

IMr.  Marton,  Yes. 

Mr.  Jones,  How  came  your  shoes  to  be  wet? 

Mr.  Marson,    I  had  none. 

Call  Mr.  Heath,  Mr.  Hunt,  and  Mr.  Foster. 

Mr.  Marson.  Mr.  Hunt,  will  you  please  fee 
acquaint  my  lord  and  the  jury  with,  what  dis- 
course we  had  on  Sunday  night  before  the  as- 
sizes, at  the  Old  Devil  taveru  at  Temple-bar  ? 

llujit.  On  Sunday  nvj^ht  I  happened  to  be 
in  company  with  Mr.  Alarson,  and  three  oir 
tour  more  of  Cliiford's-inn,  and  there  was  a 
discourse  of  the  marshars  attending  my  lord 
chief  justice  out  of  town  to  Hertford,  and  Mr. 
Marson  said,  *  It  may  be  the  marshal  mar  re- 
'  quire  my  waitiufjf  upon  him  too ;'  and  the 
whole  company  bem^  known  to  Mr.  Marshall, 
and  there  neing  a  discourse  of  Mr.  Marshall's 
courting  of  Mrs.  Stout,  saith  one  of  the  com- 
pany, *  If  you  do  go  to  Hertford,  pray  enquire 

*  afier  Mr.  Manhalrs  mistress,  aiid  bring  us  aa 

*  account  of  her.* 

Mr.  Jones.  Who  was  in  company  f 

Hunt.  There  was  Mr.  Heath,  Mr.  Foster, 
Mr.  Marson,  Mr.  Stephens,  Mr.  Baver,  sad 
Mr.  Marshall. 

Mr.  Marson.  Now  it  was  thb  discourse  that 
gave  us  an  occasion  to  talk  of  this  woman  at 
Gurrey's  house,  which  we  did  openly  and 
harmlessly.  Mr.  Foster,  do  you  remember 
any  tiling  of  our  talking  of  this  gentlewoman 
on  Sunday  night? 

Foster.  Yes ;  I  and  they  were  talking,  that 
they  should  go  t^  lta^q»T^  >2Dfe  laeixSw^^  v^ 


118S]  11  WILLIAM  III.         Triidqf  Spencer  Cawper  and  oiUn, 


wait  on  the  manhal,  in  compKment  to  my  lord 
chief  jmtiee,  and  go  as  far  as  Hertford ;  and 
there  heing  a  report,  that  Mr.  Bfarshall  comted 
this  woman,  we  put  K  in  a  iestiogr  way,  *  Pny, 

*  enqaire  after  Mr.  Marsnall's  mistress,  bow 

*  *  the  match  goes  on ;  ibr  there  was  some  wa- 

*  MS  between  him  and  .the  company,  who 

*  sheald  be  married  first  P'  And  so,  m  a  jocular 
way  it  went  about,  and  Mr.  Marson  or  Mr. 
Stephens  said,  *  They  wouM  do  their  endea- 
^  four,  and  they  would  enquire  after  the  huiy, 
^  and  give  as  good  an  acooont  of  her  as  they 
« could.*  • 

Mt.  Stephens.   If  yoo  please,  my  kvd,  we 
will  call  another  to  this  purpose. 
'     Baron  HtUselL   No,  I  think  you  need  not, 
for  it  seems  not  material. 

(Then  Mr.  Hanki  was  called.) 

Hankt.  I  came  as  fsr  as  WalthamVcross 
to  wait  upon  my  lord  chief  justice ;  1  stayed 
there  till  about  four  or  fire  o'clock,  and  then 
set  out  for  London  ;  and  I  met  with  Mr.  Mar- 
son,  who  importuned  me  to  go  back  \«ith  him 
to  Hertford ;  and  accordingly  I  did  so,  and  we 
casne  in  about  seven  or  eight  at  night,  and  we 
-enquired  after  the  marwal  of  the  King's - 
bench,  and  where  he  had  set  up  his  horses, 
and  we  found  him  in  the  cofiee-nouse  just  by 
the  court,  aad  n  e  went  and  set  up  our  horses, 
and  came  again  to  him ;  from  thence  we  went 
to  the  Glove  and  Dolphin  tavern ;  these  three 
gentlemen  and  the  marshal,  and  one  Mr.  Rut- 
kin  came  afterwards  to  us,  and  we  staid  till 
about  eleven  at  the  Glove  and  Dolphin. 

Mr.  Murson.  Do  you  remember  how  we  rid  ? 

Hanks,    Yes,  very  hard. 

Baron  llatselL  U  hat  time  did  you  come 
■  into  the  tavern  ? 

Hanki,  Between  seven  and  eig;ht,  as  I  re- 
naember. 

Baron  Hattell,  And  did  you  stay  there  till 
past  eleven  P 

Hanks.  Till  about  eleven,  little  more  or  less; 
We  went  away  tog'ether  in  order  to  drink  a  j^lass 
of  wine  with  them  at  their  ludgiufif ;  but Mr. 
Rutkin  considerint^  that  he  was  to  drink  a  srluss 
ot*  wine,  and  lie  with  the  marshal,  thought  it 
would  disturb  tlie  marshal ;  *  So,*  saith  he,  *  I 

*  will  not  go  in  \*  but  we  saw  them  f^  into  their 
■lodgings,  and  returned  to  the  Bull,  where  we 

eat  part  of  a  fowl,  and  1  was  never  out  of  Mr. 
Marsoo*8  company  all  that  time. 

Mr.  Marson,  When  you  took  your  leave  of 
roe,  do  not  you  remember  that  the  door  was 
clapped  to  ? — Hanks,  1  cannot  rciuemher  that. 

Mr.  Marson.  Mr.  Gurrey  saith,  I  ni?ver  went 
out  after  I  came  home.  Mr.  Kutkin,  pray, 
give  an  account  to  my  lonl,  and  the  ^MilJenicn 
of  the  jury,  of  what  you  know  of  my  coininij 
to  Hertford? 

Rutkin,  My  lord,  I  came  to  wait  on  the 
marshal  of  the  Ktng's-bench  to  Hertford,  and 
when  we  were  come  to  Hertford  we  put  up  our 
horses  at  the  Bull,  and  made  ourselves  a  little 
clean ;  we  went  to  church,  and  dined  at  the 

•  Bull,  and  then  wa  walked  in  and  about  the 


court,  and  diverted  ourselves  till  al 
o'clock ;  and  between  seven  and  cigl 
came  Mr.  Marson  and  Dr.  Hanks  to 
then  we  agreed  lo  go  to  the  DolphiB  i 
to  drink  a  glass  of  wine :  the  manha 
see  an  ancient  geutlemany  and  we  m 
Dolphin  and  Gkive,  and  staid  thefe  ti 
o'clock,  and  after  tlie  reckoning  wai 
went  with  tliem  to  their  lo<^w,  vriti 
to  take  a  gfatfs  of  wine  ;  but  then  I  i 
I  was  to  he  with  the  marshal,  and  foi 
son  1  resolved  not  to  go  in,  but  cai 
and  went  to  the  Bull- inn,  and  drank 
pint  of  wine,  and  afterwarda  went  to 
door  to  the  BuU-inn,  where  I  lay 
marshal. 

Mr,  Jones,  What  time  dkl  the  genl 
to  their  lodging  P 

Rutkin,  I  am  not  positive  as  to  tl 
believe  it  was  about  eleven  o'clock. 

Mr.  Marson.  If  your  lordship  pie 
I  will  call  some  persons  to  give  an  ai 
me.    Mr.  Cox. 

Cor.  I  have  known  Mr.  Marson  all 
and  had  always  a  good  opinkm  of  h 
not  believe  5,000/.  would  tempt  him  u 
a  fact. 

Mr.  Marson.  Captain  Wise,  I  d< 
would  please  to  speaiL  what  you  know 

BIr.  Cowper.  My  lord,  because  tfc 
tiemen  are  strangers  in  the  country,  1 
in  taking  an  account  of  any  evidence  f< 
there  is  any  thing  occurs  to  me  that  ti 
have  a  just  ailvantage  of,  I  think  I  ou| 
conceal  it,  for  I  am  as  much  cuocernc 
tify  their  innocence  as  my  own.  Tlir  { 
witness  against  them  is  one  Gurrey 
will  prove  to  you,  that  since  he  appear 
court,  and  c^ave  his  evidence,  he  went 
triumphant  manner,  and  boasted,  tba 
his  management,  had  done  more  a^^ai 
gentlemen  than  all  the  prosecutor's  v 
could  do  besides.  To  add  to  that,  1  b 
ther  piece  of  evidence  that  1  have  beet 
quainted  with  :  my  lord,  it  is  the  uidu 
GurreyN  wife*s  sister,  that  1  would  oil 

Alajor  Lane.  My  lord,  1  have  kot 
Marson  ever  since  he  was  two  years 
never  saw  him  but  a  civilized  man  io 
he  was  well  bred  up  amon^  us,  and  I  u 
him  ^ivta  to  debauchery  m  all  my  lift 

Baron  HatsclL    Where  do  you  live 

Major  Lane.    In  Southwark,  my  loi 

Baron  HalselL  Well,  what  do  you  i 
Davis  ? 

Mrs,  Davis,  I  came  to  the  house  wb 
gentlemen  lod<ye<l ;  J  was  in  about  half 
and  uiy  sister  ai»ked  nic  to  air  two  or  ti 
of  sheets:  when  1  had  aired  the  sIm 
asked  me  to  go  up  and  help  to  lay  t 
and  before  I  had  laid  them  on,  these  gi 
came  into  the  room. 

Baron  Haisell.    What  hour? 

Mrs.  Davis.  By  the  time  of  my  f 
again,  1  believe  it  might  be  about  liB,i 
thing  better,  and  tl^  *'™^.'^'U 
wine,  and  they  had  i  -    ^  ■- 


ft^t  the  Murder  of  Mrs,  Sarah  Stout. 


A,  0-  1699. 


[1185 


r  cmrried  up,  aod  so  they  \s-^ai  to  bed  ; 
aHrr  toy  brother  went  to  i'eXvh  Mr,  G&pe, 
.  by  at  hh  house,  from  Hockley's. 
Mr/Citwper,     J  ouly  Ijcg  leave' tu  observe, 
tliat  Gurrey  deoied  lliat  he  went  for  him. 
n.iron    HntttU*    Ay  ;  but  ihis  sig-nifies  f  ery 
Ijer  tt  li€  true  or  faJse. 
lU,   The  next  fluy  tfler,  these  ^^n- 
t  ««t$re  about  tiiu  ti>\vu  ;  and  she  sairl,  she 
efc  ih«y  »»'cr«?  corue  to  clear  a  youni; 
un:  I  iMhat  was  tried  at  the  bar 

i  asked  vf\\y  »he  thotig^tit 
siif  wtts  surcolil :  and  1  asked 
ktbc  could  be  sure  utit,  when  she  was 
fso?   Why,  siiid   I,  do  they  aecuse 
B*e  trtnrJtmfeij?  Vhey  ou^bt  rather  io  take 
I  llio  i^ciUlLMiian  that  v^ws  with  Mrs.  Stout's 
and  bhe  said.    Jf  they  took  up  Mrs. 
t;»  muid,   tliey  should  have  never  a  wit- 

_       HnttelL   Wbn  was  that  that  iras  taik- 
^  with  Mrs.  8iout's  maid  ? 
lir&,  Davis,  I  do  not  krioiv,  but  she  lald  she 
Dot  like  their  actioog ;  and  ihererore  she 
^Ut  to  hiive  been  examined  who  she  was 

^Caj>t.  IVke.    I  have  known  Mr*  Marson  se- 

-^,  and  he  is  a  person  of  as  fair  repu- 

iiy  in  the  Borough » 

.f.     1  havf  b^Q  acquainted  with  Mr. 

I  to  J  ears,  he  Uve«  near  the  house  where 

do:   be  lias  a  (general  gucid  chiiracter 

non^  his  iietg:bbour«,  for  a  fair  niuo  in   his 

ncticei  an  lionest  luan,  and  a  man  of  i^ood 

Oinverfation. 

Baron  HafseiL    Wdl,  Mr.  I^pbens,  what 
49  \oti  say  r 

Suphtns.    I  desire  sir  Koberl  Au»tio  to  git e 
^■pi  account  of  me. 

^Hsir  R.  AuUin.    I  have  known  Mr«  Stephens 

^H|iDjr  years  ;  his  brotUer  is  captain  in  a  nei^^^b- 

^HpanD^  country  ;  lie  is  reckoned  not  oidy  an 

^V«D9t  man  in  his  practice,  but  has  thtr  jnreneral 

cftia  rafter  of  a  (jfood-natiired  in:in  ;  and  he  is  so 

fjr  frt*ti»  btfjn^  a   iK'ri>on  bkely  to  do  such  an 

action^  tti^t^  fur  ayouiig^er  brother,  he  ivas  very 

frell  provided  tor;  Uh  father  left  bim   1,U00/. 

ati<t  be  is  clerk  of  the  pa.per»,  which  is  rep u led 

north  100/.  a  year,  and  is  in  good  practice  be* 

^K  Juryman,  I  ha?e  known  htiD  several  years, 
Hpiid  he  has  the  satue  reputation  sir  Robert  baa 
Hpiiren  him. 

Sir  J.  Sh^w.    I  know  Mr.  Stejdiens,  and  lus 
bfother  captain  Stephens:    as  lo  this  gentle- 
!,  be  bntb  always  beba?e<l  him(»etf  wdl  io 
couatry^  and  hatb  the  character  of  an  ho* 
gfeutleman. 
£vant.    1  bafe  known  him  for  these  eight 
^ears,  and  to  be  a  very  civil  [»erson,  and  welt 
educated,  and   never  beard  but  a  tj^ond  cha* 
racter  of  him  :  1  ha%e  also  known  Mr.  Mar*oo 
these  ten  years,  and  never  saw  any  ill  by  )iiui» 
juid  do  believe,  that  be  or  the  otiier  would  not 
liave  done  such  an  ill  thing  to  have  gained  this 
country, 
Mejiiovt.   My  lord,  Mr.  Stephent  was  my 
VOL.  XJIL 


clerk,  and  lie  behaved  himself  very  honcitlJy 
with  me.  And  smce  th«t,  1  have  kepi  a  eor- 
respoudence  with  him,  and  f  believe  he  would 
not  do  such  a  thing  for  all  the  worit!. 

Baron  HtU$dL  Cull  somebody  to  speak  for 
Mr.  Itogfers,  if  there  beany. 

Evans,  My  lord,  Mr.  Ilfi«yera  hath  a  j^fcneral 

character  in  Houthwurk,  for  a  very  honest  man. 

Mr.  Hogen,    Pmy   call   Mr.  Lygoe,     8ir, 

please  to  gfive  my  Jonl  and  the  court  an  acoouut 

what  you  know  of  me. 

Lifgoe,  My  lord,  i  hai-e  Icaown  all  the  three 
geuilenien  at  the  iwr,  but  particularly  Mr,  Ro- 
gers and  Mr.  Sieuhens,  from  their  infancy-  I 
have  employed  them  both  in  bm;iness  several 
limes,  and  always  found  them  fair  practisers ; 
and  beliei^c  neither  of  them  would  be  guilty  of 
duii)^  an  ill  act. 

J\rr,  Rngcrs.  C:ill  Mr.  Thurlby.  Sir,  pray 
give  the  court  an  account  Imiw  1  behaved  my- 
self in  your  service. 

Baron  HalselL  Come,  Mr.  Thurlby,  what 
do  yuu  nay  of  Mr,  Rogers? 

Thurlbif.  My  Ion  I,  Mr.  Rogers  lived  with 
me  about  eight  years,  in  which  time  I  fre- 
quently trust  eil  him  with  very  great  sura  a  of 
niouey  ;  I  ever  found  him  just  and  faithful, 
and  cannot  believe,  that  any  money  could  tempt 
him  Io  do  an  act  ot  this  kind. 

x>[r.  Jones.  My  lord,  we  insist  upon  it,  that 
Mr,  Cow  per  hath  given  a  different  evidence 
now  frofD  what  he  did  before  the  coroner ;  for 
there  he  satd  be  never  knew  any  distraction,  or 
love- fit,  or  other  occasion  she  had  to  pot  her 
upon  this  extravagant  action.  Now,  here  ba 
comes,  and  would  have  the  whole  scheme  turn- 
ed upoo  a  lo?e-fita  CallJobn Mason.  (Who was 
sworn.) 

Baroti  HatieiL  What  do  you  say,  Sir,  to 
this  matter  ? 

Mr.  Stout,  When  Mr.  Cowper  was  examtocd 
before  the  corouer,  he  was  asked,  If  he  knew 
any  reason  why  she  should  do  such  a  thing  f 
and  he  said,  she  was  a  very  modest  woman, 
and  he  knew  no  cause  why  she  sboiUd  do  such 
a  thin^  as  this.  John  Jnasou,  was  you  by 
when  Mr.  Cowp«"r  i»ave  etidence  before  the 
coroner? — Muwn.  Yes. 

M  r.  Jonet.    W  hat  did  he  say  ? 

MoKGn,  He  said  be  did  not  know  any  thing 
was  the  cause  of  it,  but  she  was  a  very  modcat 
peraou. 

Mr.  Jimes.  Was  he  upon  bis  oath  ? 

Mason.  Yes,  he  was,  ^^H 

Barun  HuddL  Wbeu  did  he  say  tbisf      ^^| 

Mtuan,  It  was  the  same  day  she  was  fouiil^^ 

Mr.  Jones.  Hid  they  ask  bins  any  question^ 
if  he  ktiew  any  penou  that  she  was  iti  lovn 
with  ?  '   - 

MoiQH.  He  satd  he  knew  hut  of  one,  and  hit 
name  w^is  Mar?ihul1,  aud  Mr.  Marshalt  told 
him»Tbul  be  was  ulviays  reputsed  by  her, 

Mr,  Stout.  1  desire*  Joliu  Archer,  may  be 
askf>d  the  same  question.     (Who  was  sworn.) 

Mr.  Jonti*  Was  you  prescat  witli  Iht  est* 
rooer's  inquest? 

J.  Arck^r^    Yea. 


I 
I 


I 


n  WILLIAM  111. 

Mr,  Jonct^  Wan  Mr.  Coirper  ezamined  by 
thrii)  ? — J,  Ar<ktr.  Ye%  be  w»», 

Mr.  Jone*^  Wbal  did  he  wy  conceming  Mrs. 
Siuiit  tbni  ? 

J.  jJrfA«:r.  Tbev  a«ked  biro,  If  be  knew  any 
occusion  fur  Mrs.  ^toui's  deatb  f  And  be  said, 
be  knew  nodiingofit^  or  of  any  teUers. 

Mr.  Cowper,  Then  1  romit  call  over  tb« 
wlu»l<2  cofOaer*8  ioqnest  to  prove  l)»c  contrary. 

Baroti  Hat  tell.  Did  tbry  aiik  tiim  ootioeni- 
ing^  unv  letters  ? 

J.  Archer.  They  askcil  biro,  If  he  knew  of 
any  tbui^  tbat  might  bo  the  occasioo  of  ber 
deatbf 

Baron  EaittU.  1  *sk  you  again,  if  they 
asked  Itifu  if  bf  knew  of  any  lettera  ? 

J*  Archer.  My  lord,  t  do  not  remember  that 

Mv,  Stout.  I  would  bare  called  eonie  of  ibe 
coroDtfr'd  ioquetiti  bnt  1  waa  slopped  Id  iL 

Juryman,  ^e  bare  taken  mioutea  of  what 
has  flushed  :  If  your  lordship  ple^iae  we  will 
witlidrMW. 

Baron  HatscH.  They  must  make  an  eod 
first, 

Mr.  Jones,  if  your  lordship  please^  we  will 
call  one  witnecs  to  falsify  one  piece  of  tbeir 
cf  ideoc<>,  and  thai  ii  ooe  widow  Larkin.  (Who 
WHS  sworn.) 

Mr,  Jo  lies.  Do  yon  remember  one  Mr  Rat- 
lin beiti;;-  at  your  hou.«M*? — Larkin.  Yes, 

Bir.  Jones*  At  what  time  did  be  come  in? 

Jerkin.  Between  nine  and  ten  of  ibtf  cltick. 

Mr.  Jtm€$.  Was  ibe  mtrsbal  tlien  in  the 
boufe  ? 

larkin.  No ;  the  marsbai  did  not  come  till 
iMarau  hour  atW. 

Mr.  Jimc*.  Did  not  he  go  out  afterward*  ? 

iMrktn,  Not  %Uh\  I  know  of. 

Mr.  RuikinM.  1  uui  satiatied  it  was  past 
ekren  when  \  came  in. 

Barori  u  .i..it  1 1  jg  Jibely  it  may  be  true  ; 
ibr   I  ty  did    not'  keep  very  good 

bonis  ae. 

.1  deiiire  to  call  some  witnesses  to 
1P\  tepuluti<»o. 

h\t,  Jones^  My  U»rd^  ibey  would  call  wjt- 
niaseato  this  gentle wouj a n'ti  repuianon  ;  1  lie- 
fievetlie  whole  town  would  ^itte^t  for  ihat,  thai 
■he  was  a  woman  <d'  a  ijuod  rt«putatt<in.  In- 
deed tliey  bote  proJuc<^d  some  I r- Iters  withmil 
a  name,  but  if  they  insist  ii|iijn  Any  tiling 
againtt  ber  repotaiion,  we  itiu»t  call  uiir  wil- 


Baion  hattctt,  I  lielievo  nobody  di^iputes 
that ;  fiho  mis^ht  he  it  vtrtuonA  woinnui  wnd 
]>t<r  t.. M.i.x^  tni^ht  be  turned  by  her  passion,  or 
ir  iper* 

II  of  the  jury,  vow  have  heard 
a  very  lon^"  evidence.  I  am  sure  that  v«« 
cannot  exptct  tliat  i  ahould  sum  U  up  fnfly  ; 
but  [  will  take  notice  of  some  things  to  y*>« 
that  1  think  Ui*t  mobt  mnttnul;  anil  if  I  omit 
bay  thing  thai  ik  materml,  1  VpOuM  dusire  ^Ir. 
Joaea  (that  is  counsel  tbr  the  king)  and  Mr, 
Cowper  to  put  m^  in  roiud  of  it. 

The  indictment  against  the  prisoners  at  the 
bar  is  for  a  rery  great  cnm^  it  is  for  tnurder, 


wbtob  it  one  of  ill*  rkmI  bomi  of  iD 
Yov  are  to  eoaMew  tifvt  wbil  wmda 
have  heard  to  prove  it  ;  mmd  ibMCbi 
no  direct  procii;  you  mF€  la  eoomr 

circumstaotitiL 

They  An  licgrn  with  Haf&h  Walker,  what 
Mra,  8arah  Stout's  maid  ;  Mid abe  lelkyoii,  ll 
MrCowper,  when  h<«  cBjxae  to  tfaia  town  oalMii 
day  the  I3th  of  Matrdi  iMt, 
Stotit^tf  house  and  dinad  thera^ 
about  four  o'clock  in  the  mfkiEnuna  * 
IfUayoQ,  that  the  Friday  before,  them 
letter  from  Mi.  Catvoer'a  wtteto  Wrm  ^tat^lj 
let  her  know  that  Mr.  Co«rn«r  woid4  ( 
and  lodge  at  their  htnme  ol  llertfbrd  at  I 
aaaizes  \  to  that  wben  be  cane,  ( 
that  be  had  intetidei!  lo  bave  doiM  i 
that  letter.  8he  aaitb^  that  after  i 
Cow^ier  went  away,  and  enme  ag^fn i 
night,  and  there  he  siipp*  ii 
to  do^  (and  iudoc^)  had  i 
also  that  day)  aud  iibe  dotn  »;i 
per  there  was  a  tire  made  ifi  i 

this  vouivj   "     *' ■:  TT    ^V  II 

him  tu  lit  i<rti 

m:iiil  Ui  vi;i ,  ^^f.  »  .i..i.  1  ^^.,_*i,i 

Mr.   Cow  Iter  h*r*r*l   her  say  ao,   for  hf  rttl 
nearer  to  ner  than  f,  atibattime^  ami  krM| 
not  deny  hut  tliat  he  heard  it     Hbe  oiyi,  I 
accfinlint^ly  she  went  up  to  wano  tbeMti 
havnig  Miuy<*d  there  a   while,  «lie  betfi  1 
door  clnp ;  aod  whcHi  nlie  came  ikMUtt  brtfti 
parlour,   wb^re  she  had  left  tbcno,  tbcTOI 
hoUi  ^tine«  and  that  the  could  not  lull  wbali 
mcanuig  (4'  it  wh%  ;    aod  r^d  fer  brl 

all  ni^ht,  old  Mrn.  fitoutaj  id.  aa44l| 

did  not  cr»me  in  ad  night,  not    ma»  aCM 
aeen  alite  ;  hut  Mr.  Cowper  waa  tbo  liilpV<l 
son  seen  in  her  f -     r- 

The  other  \k  >  'i^i  cran^r  i 

s^ieak  coTn**f"  ,  iini*  ettKf  hrtd*  m"^ 

riter,  ami  >    ■^'-  h;.!  ;M'siin  «-  k    ,*  ■-•.   I 

shall  not    m  i  .  i  i^i\H  j^  r.u    Uj*    |).i;iirii-|l  j 

of  their  evidence  ;  but  they  lelJ  v^u  »hebj« 
her  n^ht  side,  the  one  arm  up'e**ri  wttli  tk 
surface  of  the  water*  and  hev  i«^i 

water  ;  but  some  of  her  Hoaih>  -* 

water  ;  particularly  one  «&ya,  tlie  rufflc«| 
left  arm  were   ahove  the   water,      Yfl 
heani  also  what  the  d^ actors  aud  biirgc 
oti  the  one  t.ide  and  the  other,   ctf»nc«niti 
auimming-and  «inkuig  of  dead  iMMbea  I 
water;  hut  1  can  find  no  certainty  itttt|  i 

whtc  . .r ., »*'     , 

lank,  and  ilint  there  *•  In 

sav  they^  wlie**  a  m 

iri^al  d*»»l  ofw 

tosweh  ;    but  li 

ingahe  was  taken  out,  ain 

h»»r  month  rwA  tutsfriN,  '" 

the 

|)erli 

soon 

you  may  noi  noudcr  ai  liiai  ^    u 


Il8i)} 


Jbr  the  Murder  of  Mrs,  Snrak  Stoui, 


A.  Ut  JG99. 


[1190 


I  herselff  she  wouM  eodeavour  to  he 

I  «9  soon  as  she  cr>ul<J ;    for  thofie  per- 

but  are  dro^vnfd  sgmnsi  their  own  eanseni 

lilow  n  jTiTiitdeal  olnaier.  bul  tho«e  that 

|vva  Llieniselves  ill}  notswajlaw  much  water, 

ih^y  are  cb  naked  immediately  by  I  he  water 

iy^  iiUo  the  wiuilf»ipe  ;    that  we  coniiftordy 

*"  going  the  wmnjf  way.     The  ijoctor^  aiiri 

iiMnn  have  talJceil  a  great  deal  to  tbi»  |>ur- 

,  sni]  of  tb<^  water's  ^**mg  into  tlie  lungs 

f-  thorax;  hut  unless  you  ha?e  rnure  iktil 

ill  anatucny  than  I,  you  woulil  not  be  much  edi- 

1  by  it.    I  acknowledge  I  nt'ver  studied  atia- 

fiy  ;   but  I  i^erceive  that  the  doctors  do  diflfer 

their  notii>n>J  about  tbene  thingrs.     Oiitt  as  to 

liter  of  fact,  it  is  aj^reeil  to  by  aJI  the  wit- 

I  for  Ihe  king-,  that  her  body  was  lank,  her 

J  was  chin,  and  there  was  dosiitq  of  any  water 

|lie  m  h :   Hiey  on  the  otlier  !«ide  tell  you,  that 

rsfaya  wtka  on,  and  hhe  wan  i»trail-taced,  and 

^t  tni^fht  oc  ca^ioo  her  belly ^s  being*  so  small, 

1  hinder  the  water  from  ^oiot^iu. 

[•tMitletuen,  J  was  very  much  puzzled  it)  my 

^UjCrhta,  and  was  at  a  loti<*  to  6nd  out  what  in- 

oent  iliere  could  be  Vi  draw  in  Mr  Cow- 

,  ^r  the^e  three  other  gentlemen,  to  commit 

rh  a  borri  ^  fmrhttroua  murdc^r     And  on  Ihe 

hatid,   I  could  tioi  ium^ine  what  there 

I  be  to  induce  this  f^entlewoman,  a  pemon 

plenlirul  fortune,  and  a  rery  sober  good 

|tOo,  to  destrt'v  herself. 

K  gentlemen,  1  muit  Ciintess,  the  evidence 

t  defend  ants  have  jfiveri  by  these  letters^ 

helif've  them  to  be  this  gentle  worn  a  u'k 

l-writinof,  do  seem  to  Worlify  atl  that  Mr. 

rper'B  witnesses  liave  iaid»  concerninef  her 

J  mr'lancholy  :    It  might  be  a  love  di«trae- 

I,  and  she  might  have  beea  a  viriuous  woman 

*  aJI  that ;   for  it  niig^ht  be  a  distemper  whicii 

oc  upon  her,  and  turned  her  brains,  and  dta- 

aposed  her  mind  ;    and  tlieu  no  wonder  at 

r  writidiT  *hu8»  in  a  manner  difTcrenl  from  the 

;  of  ibe  Bctioas  of  her  life*    Gentlemfu,  you 

to  consider  nud  weigh  the  evidence,  and  I 

uot  trouble   you  any  more  about    that 

iter. 


Afe  to  tiiese  tliree  other  geoUeraen  that  cam«  I 
to  this  town  at  the  timeof  the1aata£sizeS|Whal 
there  is  agatufil  them  you  haie  heard :    they 
talked  at  their  tfidgin^j  ai  a  slraort^erate,  concern^  | 
ing  this  Mrs.  Sarah  ^tout,  saying,  her  business  ' 
is  d»ne,  and  that  there  was  an  end  of  her  court* 
ing'day%i,  and  that  a  fri«5nd  of  tlteirs  was  erea 
with  her  by  thi&  time.    What  you  can  louke  olT | 
it,  ihut  1   ratist  leave  to  you;    but  ihcy  wei-^  ( 
very  strange  tfxprcssioos  -,     and  )0U   are  to 
judge  whether  they  were  Kpokenin  jest,  as  they 
pretend,  or  in  earnest.    There  was  a  cord  fbuo4  ! 
ID  the  room,  and  a  bundle  M?en  there,  but  I 
know  not  what  to  make  of  it.     As  to  Mrt, 
Stout,  there  wa>i  no  sign  of  any  circle  about  her 
neck,  which,  as  they  aav»  mut^t  have  lieen,  if  | 
she  bad    been  atranglci :    some  hpota  ther» 
were;    bul  it  is  said,   posjiibly  those  mi|j|^ht  bt 
occasioned  by  rubbing  against  sortie  piles  or  , 
stakes  in  the  river.    Truly,  gentlemen,  thest^ 
three  men,   by  their  talking,  have  gii'cn  great  i 
(Tauiie  of  suipidon  ;    but  whether  they,  or  Mew 
Cowper,  are  guihy  or  no,  that  you  aretudetecr 
mine.     V    am  sensible  I  have  omitted  many 
things  ;    but  I  am  a  httle  taint,  and  cannot  re# 
peat  any  more  of  the  evidence, 

Juri/.  We  have  taken  minutes,  my  lord. 

Barim  UatsclL    Well  theti,   gentlemen,  ft  < 
together,  and  eooiider  )our  evUlence  j   and  t 
pray  God  direct  yovi  in  giviug  your  Tert^icL 

[Tlien  one  was  awornYo  keep  the  jury,  itnd  J 
in  about  half  au  hour  the  jur}'  returnttd.] 

CL  of  Arr^  Gentlemen,  are  you  all  agree! 
in  your  vefdict  ?~^ihnnew.  Y*is, 

Ci,  of  Arr.  Who  shall  say  for  you  P 

Omna.   Foreman. 

CI.  of  Arr.   Spencer  Cowper,  hold  up  thy  I 
hand.  (Which  he  did,)  Look  upon  the  prisoner. 
How  say  you  P    Is  he  guilty  of  the  felony  an4 
murder   whereof   he  stands  iodioteij,  or   ool 
guilty? — i-'oremau.  Not  guilty. 

In  like  manner  tlie  jury  did  give  their  Terdicl» 
that  John  Marson,  ElUs  Stepheus,  and  Witliaoi 
Rogers  were  Not  guUty. 


le  Cask  of  Spenceu  Cowper,  esq.  Johk  Mahsok,  Ellis  Ste* 
PHENs,  ami  William  Rogers,  gentlemen.*  [Published  by 
tbcm  in  1699.] 


First,  in  general ; 
[THE  said  four  gentlemen  were  In  very  good 
^Biplovmeats,  and  easy  in  their  circumstances ; 
Ulr.  Marson  aod  Mr.  Hlephens  are  attorneys  at 
iaw^  in  good  busiaess,  and  Mr,  Rogers,  a  aci-i* 
veaer,  in  (^ueen-street,  London,  and  of  un- 

*  *♦  A»  Mr,  Cow  per  *s  Case  made  so  great  a 
lise,  nod  he  otadc  so  consideraidc  a  tigure  to 
(li'oper  to  insert  ilnise  curious 
vroteatthst  tune  relating  to 

i^oic  uj  toiiwer  Editlou. 


spotted  reptitations ;  the  last  an  utter  vtrtoger 
to  >Ir.  Cowper;  when  at  once  they  were  ac< 
cused  of  beiag  together,  with  the  basest  and 
most  execiuble  crime  that  the  greatest  villain 
in  the  world  is  capable  of  committing. 

Nay,  iu  one  respect,  they  \>  ere  accused  of  i 
doing  what  the  most  hardened  in  wickedoe»» 
never  did «  that  is  to  say,  of  having  co^tracled 
the  guilt,  and  run  Ihe  immioeut  hazard  tff 
murder,  without  any  temptation  or  provooftlioB 
to  it,  or  other  cause  whatsoever. 

For  it  has  pleaib«d  the  ProvtdeiiM  of  0^  &• 


'f  Mk]        11  WittKAlf  IIL 


1liatch«ir 

10  niflU  tbcjr xaludlnij  W 
world,  It  WM  nttmmity  i 
^■eim^i  udllhcRfiiretli^ 


P?*<«^t 


Mrtl^Md^ltbOTCk 

,  rtboMkeorfoiiil*; 

Jir.  Gof^p^)  berar  ooee  IM  the'  inpudoioo  ot 
Ae  triid^n  mdcbif  totegoifetko  MBOb  * 
Ottj'othertaW.'tiMiigfaoAaii  p«l  ia  niBdof 
it:  Qoraurtheyyel,  wJthtUtfcrir^iiaB,  hi* 
ttec;'miidr  kH  pra^,  tho  loMt  gtswd  or  n»* 
m  flntoooldftacileflwiQ,  ori^dTltaB,  to' 
r  o  oio  00  nauntaroT  fal  teei;  ottd 
,  FCM«tdaadpttiihed^o9iralliB 
Ab  world  00  that  to  ooMo;  ll^... 

Aod  Ml  tall  widoMtolij  pnov  tMd  o^tavdof 
ajnaoaoMaillM  IgraoyoM;  h  be)ogllMtfli^ 
met  ipf .tho  oofoiiot^  loaoiat^iMrij  iiidoo«dl>li 
(telholiMhvioar  of^  fcodj,  oa  elimMag 
oaaa  a  aaa'aim  wao  vna  aad  ffeo 


lAaBMlofi 
_.  J  af  their  ooet,  to  oloir  it 
t4odM  «aa  hrffanriliaitharat  oT 

M  oi^ioiM^  ihaTta  0^ 
It  ia  ihoit  btioaghiy  edald  over  Imvo 
up  a  pfooocutioa,  aad  bora  mode  so 
much  none  in  the  world,  with  it,  out  of  sueb 


Holt,  ootoParticolars; 

Mr.  Cowper,  tho  day  on  which  the  de- 
oeawd'a  body  was  found*  was  examined,  among 
maoy  others,  before  tho  coroner's  inouett ;  and 
which  is  f  ery  romarkaUe,  did  then  nreely  give 
an  exact  and  full  accouot  of  every  the  least 
cbicum8tance  of  feet  that  has  been  at  any  time 
ohice  proved,  &r  pretended  to  be  proved  against 
him,  throughout  the  whole  prosecution. 

When  tlie  circuit  was  ended  (for  this  acci- 
dent happened  while  the  assizes  were  holding 
at  Hertford),  which  unhappily  drew  these  gen- 
tlemen to  that  town,  about  a  month  after  the 
sitting  of  the  said  coroner's  inquest,  the  said 
tour  gentlemen  were  severally  sent  for,  and 
readily  come  to  the  lord  chief  justice  Holt,  and 
were  examined ;  and  what*they  then  inf'oimed 
the  chief  justice  of,  on  such  sudden  ami  ;»<:«  eral 
examinations,  has  not  been  falsified  oi*  contra* 
dictotl  in  the  least,  but  on  tiie  contrary  was 
constantly  adhered  to,  and  at  last  proved  and 
made  good  at  their  trial. 

That  after  their  said  first  examination  they 
were  dismissed  without  bail,  and  thereby  had 
an  opportunity  of  flying;  as 'undoubtedly  they 
would  have  done  if  conscious  of  any  guilt. 
Then  they  were  sent  for  a  second  time  and  ex- 
amined, and  admitted  to  hail;  and  afterwards 
(the  prosecutors  havioff  in  the  mean  time  col- 
iMtaii  aaveral  mlbnnatiotti  and  aectiiicattt^  ooa- 


taiQto^  ohserratlons  nnd  OfMoiooo  of  thc^ 
and  planner  in  which  the  ikceased^t  k^ 

fuimd,  %.n4  vf  hat  amieared  on  Tiei^ihefl 
weeks  after  il  had  beeo  buried  bv  ihac 


cutors,  iiiid  used  liefore  as  they  \i 

Cow[»f  r  ami  Mr.  JVIarson  were  < 

the  fjther  two  siitl  ecmtiaiied  upon  b«il/ 

It  h  remarkable,  thut  in  |imctirUg  d 
formatiotis  and  ec rtiticnt^a,  and  in  iM 
conduct  of  the  prnceiS  (%it  far  as  enrfid 
the  cmintry)t  the  prosecuiorie  applied 
selves  at  HenfonI  to  thotie  very  perf«( 
those  only,  wht>  lUcy  knew  wore  |iTota| 
mtes  to  Mr.  Con  pier's  rdAtU^nw^  Upon  j 
of  control' ersicB  ari^tng  at  c^eciions.  aai 
wise,  ' 

Mr 


to  brfii  h«l  mA 
i|itOMiag  ia  tlw  KiNE^biach,  aa  « 
wnL  tba  ooartwati 


TbOTB 

aTlba 


Imm 


tVflIf  JVPPitl 


loaff  ^aoafiaa,  lar' Aa  laaea  < 
^  tiffthaatriaii  at  «ttilMdf«i 


aot  bouwff  that  aw  Witt  SMI  aaid  aal 
il,  hi  OTior  to  Ma  toM  at  fiaMi 
awiitto  ba  iMMd  a«t  fhr  tbi 

in  ga3,  or  at  kiot  to  aqoliii 


TJM?'  presatUHOffs  aadai  Hiadlaf  tliiti  •■ 
tho  Idee  writ  at  their  inttanee :  and  Mr. 
per  was  removeil  on  that  writ,  lest  going 
own  writ  should  have  shewn  too  great  a 
donee  in  hb  innocence,  which  was  ac 
endured. 

These  lew  steps  of  the  proceedhig, 
many  of  the  like  nature  (which  are  omi 
avoid  length)  may  serve  to  shew  that  tl 
seciition  was  far  from  being  a  faint  oi 
was  industrious  and  artificial  to  the  last  i 
and  was  (unluckily  for  tho  four  geo 
concerned)  assisted  by  a  circumstaac 
material  to  the  justice  of  their  cause,  be 
riously  true  :  that  an  election  intere 
thought  in  great  measure  to  depend  up 
rying  on  the  accusati*m :  which  w 
harder  upon  Vlie  four  geotleaieo,  Ibr  thi 
of  them  were  at  all  concerned  in  that  < 
versy,  and  three  of  them  not  so  tnudi  i 
wish  one  way  or  other. 

Notwithstanding  this  unhappy  juncti 
their  trial  their  innocence  was  so  dcii 
they  were  acqnitted,  to  the  satisffbditB 
indifiererit  persims  there  preoent.  "^ 

After  the  trial,  which  was  aft-  tbt 
mer  assizes,  in  the  year  1699,  thdrji 
tors,  that  they  might  l)e  further  vooaW 
keep  up  the  talk  aguinst  tbeoe  ftNirgMj 
(though  they  had  nothing  to  otjptf  fr* 
ness  ot^  the  trial,  uor  any  defect  lar^ 
rati«jns  towards  it),  immediatelj  it 
an  heir  male  to  bring  in  an  apMfe 
a^ain,  and  put  th<»i  to  mHlk:m 
keep  them  longer 


for  the  Murder  of  Mrs.  Sarah  Stoul, 


A.  D.  1G99. 


C1I9* 


ui  infamy  on  the  Tery  same  evidence, 
It  any  preteneeof  the  least  addition  to  it. 
he  same  longvacatinn,  1G99,  they  found 
B  infant,  Henry  Stout,  (whose  name  was 
ards  made  use  of  for  bring^iug  the  appeal) 
night  have  sued  out  the  writ  of  appeal 
before  the  then  next  Michaelmas  term, 
:,  in  the  vacation  following^,  or  in  Hilary 
lAer ;  but  their  end  was  purely  malicious 
Bh  the  accused  with  the  calumny  ;  and 
3re  to  keep  up  the  same  as  longas  pos- 
the  writ  was  not  sealed  till  the  very  last 
itliin  the  year  aAer  the  deceased  drowned 
f,  and  not  above  three  or  four  days  before 
d  of  that  year  (the  time  limited  by  the 
r  bringing:  such  writ),  and  then  too  with* 
te  con»ent,  nay  without  the  privity  or 
^ge  either  of  the  plaintiff  himself,  or  of 
other,  (bis  guardian  by  nurture)  without 
i  approbation  the  writ,  by  law,  should  not 
been  sued  out,  nor  an  mfant  encfaged  in 
I  prosecution  for  blood,  which  after  a  fair 
tal  is  adjudged  innocent. 
Nit  a  month  afler  the  said  time  limited  by 
or  the  bringing  the  said  writ  was  passedf, 
several  letters  had  been  sent  to  the  same 
I,  which  made  no  mention  of  the  appeal)  a 
was  sent  either  from  some  of  the  prosecu- 
pf  by  their  order,  to  an  aunt  of  the  infant, 
og  the  child  might  be  sent  up  to  sue  an 
I ;  which  the  said  aunt  said  she  read  to 
other,  and  was  the  first  notice  pretended 
pveo  ;  bat  the  aunt  being  a^ked  (when 
natter  was  examined  before  the  lord 
r)  if  she  then  knew  the  meaning  of  the 
Appeal  ?  she  owned  she  then  did  not ; 
le  mother,  to  whom  the  letter  was  read, 
ed  before  the  lord  keeper,  she  did  not 
vaow  what  it  meant,  it  not  being  explained 
lettef  ;  but  that  she  imagined  it  was 
pmceeding  in  order  to  put  her  child  into 
■km  of  the  deceased's  estate,  or  ilonYe 
bervof,  which  the  said  Mary  Stout  (to  in- 
the  mother  to  part  with  her  chiln,  and 
be  nid  Mary  Stout  to  prove  his  pedigree) 
dbre  fraudulently  caused  to  be  insinuated 

I  thus  the  appellant  or  his  mother  (who 
»uld  legally  do  it)  were  so  far  from  liav- 
led  out  this  writ  within  the  year  and  day, 
bey  never  heani  of  it  till  a  month  af^er, 
len  only  as  aforesaid  ;  so  that  the  said 
ros  unlawfully  sue<l  out. 
soon  as  the  mother  and  the  infant  (the 
iff)  came  ti»  understand  what  had  been 
,  and  that  nothing  was  done  towanis  let- 
ie  child  have  an^  |»rt  of  the  estate,  but 
0  provecule  a  suit  of  rcven^t*  after  an  ac- 
I,  agam<it  gentlemen  of  giMid  charnct(?r«, 
here  no  murder  at  all  hud  been  provi>fl ; 
Icclared  their  utter  dislike  of  the  proceed- 
id,  withniitto  much  as  treating  with  any 
taM  fmir  persons  prosecuted,  or  with  an v 
ycd  by  them  (purely  from  an  abhorronce 
•  action,  and  their  resentment  of  the  cheat 
Ml  Ihem,  and  the  advice  of  their  friends, 
itiBty  to  food  ooiitdeiioe,  and  their  in- 


terest, to  let  Mary  Stout  the  petitioner  haro  the 
proving  the  infant's  pedigree  in  an  appeal,  which 
was  his  title  to  the  lands  in  Mary  Stunt's  posses- 
sion,) went  with  an  uncle  antl  aunt  of  the  in- 
fant, and  demanded  the  writ  of  the  sherilf,  ten- 
dering him  his  fee  for  the  return  thereof,  whicti 
he  (notthen  knowing  of  any  guardian  asniii^ncd) 
delivered  to  them ;  and  though  it  sliouiil  lie  ad- 
mitted, that  the  sheriff  in  so  doiiiuf  did  not 
strictly  pursuethemandateoftlie  writ,' which  re- 
quires a  return  at  the  day  in  court ;  yet  the  (came 
mandate  is  in  most  original  writs,  and  notwith- 
standing the  sheriff  never  srruplrs  to  drliver 
the  party  his  own  writ,  with  the  rctnrn.  And 
in  this  case  the  plaintiff  and  his  mother,  and 
two  of  his  nearest  relations,  demanding  the 
writ,  and  the  sheriff  having  no  notice  of  any 
other  guardian,  it  seems  as  excusable  in  the 
sheriff,  as  if  a  plaintiff  of  full  age  had  come 
for  his  own  writ:  but  it  is  admitted  the  court  of 
King*s-bench  was  of  opinion,  that  the  sheriff  in 
strictness  is  to  return  his  w  rit  at  tho  day  and 
place  mentioned  in  the  return ;  and  fur  not  do- 
mg  so,  the  sheriff  was  fined  and  paid  two  hun- 
dred marks. 

The  sheriff,  before  the  said  fine,  was,  hy  or- 
der of  the  King's -bench.  €*xamineil  very  strict- 
ly on  interrogatories  in  writing,  tending,  among 
other  things,  to  discover  how  far  the  'tii)pellees 
were  concerned  in  procuring  the  writ  from  the 
sheriff;  to  in  hich  tne  sheriff an^weriHl  on  oatli 
fully,  in  writing,  and  very  truly  denici  all  cor- 
respondence with  the  api>el!ees,  or  any  on  their 
behalf,  touching  the  delivery  of  the  said  writ» 
all  reward,  or  promise,  or  security ;  and,  in 
short,  that  he  never  knew  of  the  appellants  and 
the  other  persons  coming  to  him,  nor  any  ways 
had  heanI  thereof,  till  he  saw  them  :  and  then 
delivered  the  writ  and  return  (o  them,  as  be- 
lieving it  fair  and  lawful  so  to  do;  and  for  n(t 
other  reason  whatsoever. 

Notwithstanding  the  petitioner  preferred  her 
petition  to  the  now  lord-keeper  (by  adviee  of 
uer  counsel)  to  grant  her  a  new  writ  of  appeal 
in  the  same  form,  as  havincf  sufTiricnt  autho- 
rity so  to  do :  and  the  (.a:;!  infant,  the  appel- 
lant, and  his  mother,  prcferi'ed  an(»tlicr  petition 
to  the  said  lord -keeper,  disowning  the  funner 
writ,  as  sued  forth  withuiit  their  consent ;  tlut 
they  never  knowingly  approvcil  tht'iTof*  and 
desiring  that  no  new  writ  might  issue  in  ilie 
infant's  name:  and  the  lord- K»»rprr,  Mnff  as- 
sisted by  the  master  of  the  rolls,  the  late  lord 
chief  justice  of  the  Common  Pleas,  the  loni 
chief  bar<)n,  and  Mr.  justice  Powell,  one  of  the 
judges  of  the  Common  Pleas,  the  appellant  and 
his  mother  appeared,  and  owned  their  fu'uh  pi'- 
titiijn  ;  and  on  a  full  hearing  on  both  the  *«:iiii 
petitions,  anil  counsel  on  Imth  sides,  the  said 
lord  kwper,  master  of  the  rolls,  lord  chief  ju-*- 
tire,  lord  chief  baron,  and  judge  Powell,  were 
ai'i  of  opinion  unanimously. 

1 .  That  the  Chancery  find  power  to  relieve  in 
such  case,  and  renew  the  writ,  if  it  were  just 
so  to  do. 

2.  But,  that  in  this  caie  it  was  not  just  or 
reasonable. 


f 

I    The  reasoni  thetij  lud  j^,  tngUted  on  to 

^mabtaia  the  latter  of  lljeae  [Kimts,  vtere  tdese ; 

.  1.  Betiause  lUc  apjicllant  iRfWil,  or  his  nia* 
theff  guardian  Uy  uiirture,  had  no  naike  thai 
the  writ  w4S  stieu  out,  lUI  abo¥e  a  moDili  alWr 
t|ie  jear  and  day  past ;  and  cuiiKefiueRtt^  the 
wril  was  never  well  sued  out:  it  beitkg  m  no 
twd^^'ji  power*  hy  law,  but  I  lie  appeHatii's^  to 
«iie  out  such  wilt ;  and  id  case  of  iiiraacyi  as 
wdL  as  ill  t!tc  ckjm?  of  (tii  a^jpdbnt  of  ivU  age, 
the  writ  is  sueiL  out  in  the  persnn  nl'  the  appet- 
latit,  and  ishoulil  be  iiona  hy  iltc  conaenl  (if  ht» 
next  ffiends  ;  and  no  guardian  af^igned  hath 
any  thing-  to  do  thei^with  till  tbt:  tvril  be 

3,  Jlecausc  it  apitenred,  that  im  sood  m  ever 
thi^  appellant  ami  im  mi3/lhut  knew  ivhat  was 
doin^»  they  fenoimcril  the  s»id  wiit.  aud,  to  pre- 

I  ?ent  prWcutiug-  the  same,  weol  a&il  wilbdrew 
it  frpin  the  shen^,  logt?ther  witli  au  ancle  Atid 
aunt  of  Ibe  infant. 

3*  Because  the  aprieKleo^  were  none  of  th^m 
in  the  least  privy  to  tbii  U^jitaction,  noe  did  iim 
petition  pretend  to  prove  or  alleilg©  (Ut'y  were  ; 
But  on  the  e4>ntrary,  the  sh<;riff ,  having  hem 
examined  on  the  strictest  iiitetTog:ataries  th&i 
could  befranied,  had,  on  hUoaih/acijuiUfcd  all 
the  appfllt^ff^  tVoru  baTiui?  t be  least  tM  do  in  (but 
matter^  but  thai  he  did  it  as  couepiving  it  law^ 
ful  and  n^utki  to  ddiirer  the  plaintiff  in  any  iic- 
tiOQ  bh  own  writ ;  and  not  kuiiwint^  at  that 
time  tbat  any  guirdian  was  aligned  to  proie* 
cute  fhi?  sain«. 

4.  It  IB  a  maxim  it)  law^  that  what  is  done 
amongst  others  ought  not  to  hurt  a  thinl  per- 
ion  I  and  a»  the  appellees  would  bare  been  de^ 
i^y&i  and  kept  under  cat u (Any  by  Ibis  means, 
without  Ibeir  fault  j  so  do  stecunty  could  bu 
giren  them  that  the  new  writ  should  be  literally 
the  same  with  tbe  former,  as  it  ouglit  tu  be  ^ 
and  no  writ  being  now  legaUy  to  be  pro$«t:ui«d 
ajgain^t  them,  they  ought  not  to  be  deprived  of 
the  bene0t  and  protection  of  the  law,  without 
any  act  or  default  in  them  so  much  m  pre- 
tended or  assigned  by  the  petition, 

^.  Tbe  infaiit  by  law  plainliffiu  appeal,  has, 
Dntwithslandtng  his  guardiun,  such  power  over 
the  iuit,  that  three  eates  were  cited  wbereiti 
the  infant  wa»  by  the  court  permitted  to  be 
Doosutted,  without  nud  agaiiiil  tbe  consent  of 
the  guardian  ai^igned  lo  prosi^cut^  ihe  same; 
and  no  instance  is  to  be  foun4»  wherever  an  in- 
fant was  denied  so  to  be  noo^uited, 

6.  If  an  iufafit  may  depict  from  prosecuting 
a  wnidependingi  without  consent  of  bis  guar- 
dian asitii^jiifd,  jt  is  much  more  unreasonable 
sDcli  |j;:uardim)  assigned  ^iiould  force  tbe  plain- 
tiff to  have  or  sue  out  »t»ch  writ,  eaipecially  to 
be  restored  to  it  whether  he  will  or  no,  in  an 
extrnordioary  manner^  which  reason  i«  en- 
forced in  ihiif  their  uup^ec^denteil  applying  to 
the  jegi-^tntive  power  in  this  matter. 

T.  To  make  good  Ihe  lait  rfasoUi  a  petition 
was  pr<fterred  to  tbe  lord -keeper  by  Ibe  plain* 
tiff  and  hh  niotht^r,  againit  Ittiving  fhe  writ, 
and  diiowniiu^  ihdr  ktiowledgo  of  the  eQectof 
die  tbrmer  wht^  and  both^  with  an  uncle  and 


196]  1 1  WILLIAM  ra.  Tria!  nfS^mctt  Cowper  and  f^ihm,      [m 


«tl,  IK     ' 

'"1 


aunt  of  the  plaimiffi  appoired  tajgitifjtiiiipi. 
tition  ;  and  the  woman  avoftd,  ditlwtieflik 
partetJ  with  her  ^on,  to  sue  the  tpj^l,  h 
thoMght  that  it  WJt^  in  order  tn  obtaib  lU  ' 
cease^r*  estate,  a^  the  |jelitio(iiT  M  fi 
lently  induced  her  to  behtte, 

3.  The  appellant  and  bis  mothrr  mud, 
that  the  infant  being  heir  si  hvf  tt>  tbe  ^ 
t^easerK  and  so  entitled  to  her  cssiite  naliiiMi 
way  diverKnl  by  will  or  settlemmt  («»bid  Hi 
petuioner  wtmU  never  fatisfv  tbrm  m>)iii4fc 
petatiouer,  with  her  aim  Jobn  8iaul,  tirnfi 
pssession  of  that  estate^  tb^|  tb^injjhl  k  *ff 
improper  the  petitioner  should  have  tbt 
the  nlaipli^)^  pedi^^rcc  in  an  nppci], 
was  his  title  to  an  e*itat^  lb« ju'tititioer  hM\ 
him  J  foT  rQt'Oir'ery  whcr<»ol^  tbe  iafanl  *n4l  ^ 
mother,  aa  guardian »  preferred  th^ir  biil  I 
Ciiaacery  ;  whicU  suit  ts  giiti  'leiHrndioj;, 

These  Reasons  were  enforced  by  st^Kfilei^ 
stderations,  shewing,  ttiat  this  writ  «f  t[f4 
of  allothera,  ought  not  Ui  \m  tarourd; 

! .  Because  sued  out  cbudestjudy  taiikm 
dulentiy,  m  flft^resaid,  bj  <^e  who  hd  9 
Iiower. 

a.  Becaoie  deferred  two  whole  Iitibi 
the  acquittal  ou  the  iud^nient,  ftod  uot 
lill  the  last  seal,  about  funr  days  wjibm 
year  ;  which  sheiA  s  they  did  not  4e«ip  ji 
huttospinoula  scandal  a«  long  a^  tlitjr 
maiiciously  and  vexation  sly. 

3.  An  acquittal  on  indtdment,  wast 
an  appeal  at  the  onmmon  law|   s 
th^t  har  be  taken  away,  stal.  Ht  T.  (wl 
in  the  iudictnicot  withm  the  year  and  iltf] 
peraona  should  procure  theasselFcs  to  ' 
quitted  oil  iudietments  by  Jaint  proi^c 
yet,  fiiuce  thi^  prosecution  was  far  frrna 
tbe  appellees  in  thi^  case  are  ivithiu  ibc 
und  equity  of  that  pka ;    and  the 
that  the  petitiuuer,  who  would  |ir«i 
anp^K  wita  the  principal  proseotftof  of 
dictmeni,  atul  did  it  with  all  imagijul 
dujitry,  aisistcid  by  the  united  iuiercst^ 
Q,uakers,  anil  the  prejudice  ot'  a  party' 
town  of  Uatfordy  di^bliged  on  the 
elections. 

4*  Appeals  bare  not  been  ^rouctid  fisoii 
Stat.  H.  7,  eirceut  in  caies  of  couticti4ti 
pardon  obiiuned  by  surprize,  or  afVr  sotna 
or  fi"efi|i  discovery  hy  additional  en' 
wfaich  neither  is,  nor  can  bo  pretended, 


The  case  or  Mm.  BURY  STOUT,  Wrs 

In  March,  1699,  being  within  the  spwsi 
y«ar  after  tbe  sup^joi^d  murd^oj  Mfs^ii 
Ntoiit^  a  writ  of  appeal  was  sued  osi  if  J 
high  court  of  Chance«-y ,  aj^ainst  HpimGtff 

f»er,  esq,  John  Marson,  Ellis  Steveosi  9mM 
iam  liog^ers,  geutleuif  n,  tn  order  (iar  *^ 
of  them,  at  ihe  suit  of  one  Henry  ^^lo^ 
law  to  the  dtK^ea£edf  and  tb«  appsli 
in  the  writ  of  appeal,  who  nt  the  li^ 
out  such  writ  was  abotit  the  a^^ 
Mrs.^tnul^  the  motl)^  vf  lli«4 
iuch  appefd  wm  soed  i»iil»  t 


I 


lo  one  Mr.  Boelock  Toller,  ll»e 

nff  far  ihe  cowoiy  nf  Hertford^  b 

^€V»»-      his  ai>(*rebem1in!5   of  the   appellees 

>^«.l  in  liie  flail  I  writ.      Anil  itie  fearing 

•^oulil  \m  ^-ilher  rerobs  or  unmindful  in 

Om^^       ^seciitkiD  ihereof,  some  short  time 

^%  »  ^   ssenl  Ik  oei^bbour  uf  bers  to  M r.  Toller, 

*<t>^*r    -v^bat  he  had  done,  or  would  ilo»  witb 

I'^^t'mt  ^     Whether  he  bad  txecote<l  the  same, 

f ''^H  .      ":     1    be  would  retUTu  the  parties  were 

'  ^*  ind  ?  Which  message  was  diily  ear- 

^*  ^*  H.H  a  particular  account,  that  Mrs.  Me r)' 

^^*  tlie  mother  of  the  deceased,  was  ibe  per- 

Wiat  sent  the  same.     To  which  Mr,  Toller 

this  answer,  *  Mrs.  Stout  is  a  very 

^y  »  uneasv  woman;  but  however,  when  the 

^  ^^  *s  out,  I  will  make  such  return  theri^of  asi 

••^Ww  directs.' 

' '      ,  Stout  having  received  such  an  answer, 
'"►iKTClingto  have  a  return  of  the  writ,  ac 
r  lo  Mr.  Toller*s  pt-omise,  ou  the  iStb  «f 
ollowing^,  was,  in  order  thtreto^  and  for 
her  dvsigneU  prosecution  of  the  uialtpr^ 
dmitted  guardian  to  the  a|»|i«llaut  \    ond 
on  the  15tb  of  the  «ame  mo  nth  of 
I  bem^  the  lirst  day  of  the  then  Easter- 
tip|>eared    personally    in    tlie    court    of 
N-bench,  in  order  to  arraign  the  apjielh-'es, 
♦'i"  under-sheriff  should  have  return etl 

uch  attendance  of  Mrs,  Stmit»  Mr. 

was  fre<]tiently  called^  pendiniij  the  whole 

•  >r  rhe  c!Ourt  sate,  (the  writ  bein^  then  return- 

f  make  a  return  of  the  writ :  hut  bn  made 

J  and  instead  thereof  Mr*  Marsoo,  one  of 

*.  .  -•  ai^pellees,  appeared  in  court,  and  prayctl 
'  ^Jlb^r  to  be  arrai^neti  or  disL'harfjed  ;    though 
I  writ  was  not  then,  or  ever  rince,  seen  or  re- 
in court :    so  that  stieh  Mr.  Marson^s 
k  ftppearinif  only  to  be  a  shew,  or  bravado, 
or  advanta^^e  beinfir  to  be  sustained 
I  to  bim  thereby,  the  ^ame  was  re- 

i  the  second  day  of  the  same  term,  the 

of   Kin^^^  bench  was  moved  on  the  he- 

'  of  Mrs.  8iouf,  that  a  short  day  might  b-^ 

l|>p<»itite<1  pert-mpforily  for  Mr.  Toller  to  make 

,  ^iji    return.      But  then    ^though  Mr.  Mur^on 

of  the  writ  of  appeal's  coming  to  Mr 

,  tt  band,  as  appears  by  his  prtiymfr  an  ar* 

t'«iii|{oment  but  the  day  before)  it  wai;  sujr^t^^ced 

»ri  rotiri.   that  no  writ  of  u|»peiil  waj  fevt-r  left 

'    ,     'INdltr  a^^aiuft  the  appellei'S :    and 

suirtrt»*tion,  Jfrs.  Slout  then  lost  the 

t»._  '    I,  and  was  forced  the  next 

tie  t  of  the  dehvery    of  the 

.Writ,    HI  Ml'  ri!io!^ly  did;    and  there - 

^lipon  she  itk  h  fur  a  pereinptory  return, 

^tea    '^'^^  ,i  ..ii's  f*?«'tipt  of  the  writ  of 

"^pprJil  i^'d,  and  tht^iUfioii  a  rule  of 

^ouft   I  -   i  '•>  compel  hun  to  appear,  and 

tii«kc  a  return  of  the  writ ;    v%bjch  rule  was 

nt  r^  iHil,  and  thereupon  Mr,  Toller  sonu  after  at- 

[,   and  by   atSdarit  informed   the  court, 

L)»nn  the  l<ith  day  of  the  same  month  of 

^pt*l  (which  uati  a  duy  after  ihe  return  of  the 

Wf Ut  »M*i  Uiree  days  ailer  Miii.  Hiry  IStaut  was 


admUted  ^ardiao  to  the  appellant)  he  deUrerel 
up  the  writ  into  the  infant's  hand. 

Upon  wbicii  account  given  by  Mr.  Toller; 
the  court  of  KJngVbench  ordered  him  to  1 
examined  upon  interrogatories,  touching  tt 
delivery  of  the  writ ;  and  aecordiogly  Mr 
Stout  the  guardian  prepareil  the  same,  bi 
could  not  without  considerable  difl5culty  gt 
him  examined  (bein^  fbrceil  to  be  at  the  cbargi 
of  t"0  or  three  orders  of  court,  for  that  purpi 
before  he  came)*  At  last  his  examination  w 
taken,  in  and  by  which  be  owns  the  receipt 
the  writ  of  appeal ;  and  thnt  lie  was  informed 
that  Mrs.  Mary  8tout,  the  rnolher  of  the  di 
ceased,  prosecuted  the  said  writ ;  that  she  scf 
the  same  to  him  ;  and  that  the  infant,  the  ad 
pellant,  was  a  perfect  stranger  to  him,  when  in 
delivered  it  into  hiK  bands  :  but  then,  to  extB 
nuale  the  matter  on  his  own  behalf,  the  reaso' 
he  aliedges  in  hi^  examination  for  sucb  his  6& 
livery^  are,  that  the  appellant  came  with  tbi 
mother,  uncle,  aunt,  and  one  Mr.  Woodford,  a 
old  acauaintance  of  his,  for  the  writ ;  and  thi 
Mr.  Woodford  informed  him  f»f  the  reality  * 
the  appeltaul^  and  his  relations  *,  and  deliven 
him  a  note  under  the  hand  i»f  William  Cowpe 
esq.  purporiiukf  the  samei  that  the  inlant  w\ 
the  pluintifT  in  the  appeal;  that  one  of  tbj 
women  was  his  mother,  and  that  the  other  m 
and  woman  were  his  uncle  and  aunt ;  whie 
togellier  with  the  ready  answers  they  gave 
»»uch  qtjestions  as  Mr,  Toller  osked  them,  i 
dnced  htm  to  believe  them  tfj  be  the  real  pajf 
ties;  as  to  hiseximvination  he  sets  forth, 

Mr.  Toller  says  I'urthifr,  That  on  the  36th 
the  snme  month  uf  April  he  desired  the  iofanl 
his  mother,  uncle,  and  aunt,  to  deliver  him  bat 
the  wnl ;    hut  they  det^lared,  that  the  infaj 
With  advice  bad  burnt  the  same. 

Mr.  Tidier  in  bis  examination  gives  this  bi 
count  ;  That  some  short  tirrjc  before  bis  receti 
of  the  writ,  he  receive<l  a  letter  Irora  Mr. 
Cow  per,  to  know  nbeiher  any  writ  of 
was  come  to  his  hands  ai^^aiost  Mr 
Cowperj  to  which  he  answered  th' 
none :  that  some  short  time  after  snci 
was  eoroe  to  bis  hatids,  be  received  anothi 
letter  from  Mr,  William  Cow  per,  to  the  fiftn 
effect  as  the  former;  to  which  Mr  Toll 
nnswered  tliere  was  ;  and  sent  him  the  contenl 
of  the  said  writ:  that  after  sucb  writ  came 
hi*i  bauds,  Mr,  8pencer  Cow^ter  sent  htm 
letter,  to  know  whether  he  bad  received  an; 
writ  agatnst  him  ;  to  which  Mr.  Toller  iofor 
e\l  him  he  bud.  8o  tliat  by  Mr.  Toller's  o' 
examinitjon  a  perfect  correspondence  is  owaedi 
and  an  iutelligence  from  time  to  time,  and  froi 
one  party  ti>  another,  is  given, 

Thui  upon  thi^  last  day  of  the  said  tern 
Mr>  Tuller^s  examinntion  was  i-eported  to  tl 
court  of  Ring's- bench  ;  who,  upon  bearing  tk 
same,  were  of  opinion,  that  he  was  guilty  of 
high  misdemeanour,  and  was  in  contempt 
that  court ;  and  ihereujMjn  was  committed  I 
the  mariihal,  and  fined  QOO  markis. 

That  Mrs.  htout  having  received  no  aatif 
faciioQ  for  the  blood  of  her  daughter,  by 
8 


anl 


3 


y^}      iLipjiAM m.    .:.Tnri,^JitKm.Cmmml0$^ 


under- sberifl'^s  betiij^  lo  fmtil^  did  jtelitioD  the 

.jM)W   loitl  ki-efi^r   *ui'  ft  Dew  wrU ;    llie  time 

ri|p|||g  dupsied  then  for  the  ftmn^Aut^f  another 

PikWirife:  iki  tvLiich  litiH^  also  Ihere  was  «  cr«3si 

^piHitiOD  prdWiTeil  ill  lU*-  lutknt^a  uattni^,  [irajrinefp  | 

that  Do  urw  writ  of  aji^^eal  should  be  suect  out 

in  hii  5am*.     Aitd  th«*  suJyc^t  maUer  <>f  bi»ih 

petULons  being  il^bateil  bt^Jbre  the  now  lord* 

keepeiv  the  m^ler  ol'  ihe  rulU,  tht:  late  lard  chief 

jjiifiiiije  Trehy,  the  lonl  chief  baroQ  Ward,  anil 

JUr  justice  Powell;    upi^n  «uch  dehat^s  it  not 

Ibtn  afipiaarijiofi  hj  any  noiilivt;  jiroof,  that  tlie 

apfiell^ea  in  the  writ,   nor  any  of  theni^  were 

|ixivy  to  thu  dee^tfUGlton  of  ibe  writ  -    it  was 

^  tlierelbre  thought  b^rdly  reaisonable  that  a  new 

,  itrit  should  be  ^ranteif ;   which  was  a  ipreaL 

£8Ui£  of  Mrs.  Btoul'«  pi^libifni  heitig  rejected.^ 

Now  Mrs,  Stout^s   petition   was  grounded 

i  pyrelv  u|>0Q  aiiotbi^r  butioio,  (lihe  not  imagiu^ 

iRg  that  such  an  Dbjection  woa)d  have  been 

started)  for  she  was  atJ^ii^eiL,  thai  if  jusiice  b;id 

W&n  obstructed^  wbellier  it  bad  mtea  by  ac^ 

cidi^nt  or   design^    in  titb«r  f&«e  a  suilabk 

remetly   might    hare   been  l^^nnd  t    as,  sup- 

13051  n^  tbf!\vnt  ofappeut  h»d  been  acddantal- 
y  by  rut  when  tn  ib^;  i^lierltTs  custody,  as  it 
^really  w&&  wbeii   it   was    ont^  iu  respect  to 
,haTe  a  discovery  of  truth,  tlic;  court,  which 
p  first  gave  the  writ  {^be  viav  advi«etl  by  conn- 
\  iel  karncd  iu  ibo  larv)  could  supply  ilit'  )o^ 
of  It. 

Had  she  imagined  that  yi  Uie  appellees 
wouM  hare  so  much  as  iostanced  their  total 

*  The  Case  h  reported  in  lord  Raymond  and 
other  books.  It  is  obserrable  that  great  men 
have  entertained  different  opinions. 

In  the  Report  of  the  Case  (Stout  v.  Towler), 
in  13  Mod.  373,  (8ee,  also,  lord  Raymond's 
Report  of  the  Case,  Rex  v.  Towler),  it  is  said 
that  Treby,  Cb.  Just.  C.  B.  and  othera,  alleged 
that  an  appeal  was  a  refeogeful,  odious  prose- 
cution, and  tlieretore  deserved  no  encourage- 
ment 

On  which  occasion,  Holt,  chief  justice,  with 
great  vebemence  and  zeal,  said,  that  he  won- 
dered that  any  £ngUshman  should  brand  an 
mppeal  with  the  name  of  an  odious  prosecution ; 
that  for  his  part  be  looked  upon  it  to  be  a  noble 
proaecntion,  and  a  true  badgis  of  English  liber* 
lies.  Hee  per  contra  the  Case  of  Bigby  e  v.  Ken- 
nedy, A.  D.  1770,  reported  by  Burrow. 

Lord  Nottingham,  in  bis '  Treatise  on  the 
King's  Power  of  ^franting  Pardons  in  cises  of 
Impeachment,'  (see  a  Note  in  vol.  7,  p.  1624,  of 
this  Collection)  p.  19,  sect.  50,  says,  *  An  ap- 
-peal  of  murder,  because  the  king  cannot  pardon 
It,  is  therefore  an  odious  suit  in  law,  and  is  tied 
t04nore  strictness  and  formality  than  any  other 
■nit  whatsoever :  nor  do  any  of  those  statutes 
which  were  made  on  purpose  to  en  re  deiects  of 
form  extend  to  appeals.' 

In  the  Case  of  Bigbye  v.  Kennedy,  as  re- 
ported by  Burrow,  the  proceedings  on  an  ap- 
peal of  murder  are  set  forth'  with  great  parti- 
oularity.    Sir  l^lUam  Blacfa^onc,  in  bis  re- 


ignorance  as  to  lh«  destniotMm  of  the  ^ 
could  have  much  betirr  preparrd  N| 
hare  gii«^a  tbt'Oi  nti  answer ;  «h<t 
S4?i  forth  Uow  tlj<i  iotknt,  his  mother^  { 
api^Heeh'  altomey»  wrnt  in  a 
harsiji  to  the  unit««^-&h«riir  at  H* 
there  lt>4>k  the  writ  of  apjieal  fnifn 
trom  thence  brought  it  it»  London ; 
have  inHinBeil  the  court  of  a  mor«  p| 
inteUi^euce,  lately  cont)rmed»  eottoeif 
destructtot)  of  the  writ«  by  wboae  ordci^ 
whose  cbarnSer  the  iumc  was  bariit  i 
matters,  if  yet  exauiineii,  will  «a| 
eviuce  wh<^iher  the  ap(>elleeb»  or  sdii^ 
ibem,  wei<  privy  or  not  to  tbe  deMr^ 
the  writ,  i 

There  was  an  o^ijcciion  agaiosl  Mrt, 
petitioti,  ttiat  the  writ  of  appeal  wu  am 
liued  out  (tbe  infant,  uor  hi»  inothrr^  d«I 
lug  of  tlie  same  tiU  afti^r wards) ;  l^ut  | 
b^des  thi^  proofs  j\ln.  btout  coubl  liif 
to  the  contmty,  she  wac  and  is  »titl  i 
that  her  being  duly  admitted  guanlu 
free  cooseiit  of  the  inf«ot  (ihougb  in 
in  time  to  the  suiug  out  of  liie  writ),  I 
in  taw  is  very  aulheotjc,  and  taake» 
well  sued  out^  And  it  is  presuiiiif(l«  I 
person  will  say,  that  the  lord-kteper,| 
other  judges,  did  ail  agree  to  tbc*  Qt 
upon  debate  of  the  niattf  r!»  bdHre  ltirt%| 

It  was  mightily  TUs4isted  upon  by  tii| 

sel  lor  tbe  appeheeSf  at  the  bearing  v(U 

titiocis^  as  il'  Mrs.  ^tout  should  i^iiiey 

_ ^ 

pbrtof  ihatcase,  says,  **  I  wai  prcs«M 
Obi  Bailey f  on  the  trial  and  conficlkia 
ap^>ellees  in  February  ;  and  it  was  m 
inoiit  foul  murder :  but,  lb  rough  the  p^ 
iriediaiinn  of  their  ahXev,.  who  was  ii^ 
coun<^cled  v^iih  soino  pci'sons  of  §iialiJ||i 
ilitioiml  iHirdon  for  transtwirfsiti^n  wm  m 
for  Blaitbew,  who  bU-uck  tha  UiyiAit 
was  on  board  a  tender,  when  tbe  SM 
exiiibited  at  the  Old  Bailey.  PMrickhs 
respited  two  or  three  times,  on  tbe  vcn . 
ings  appointed  for  his  execution.  Aai  l| 
peal  was  at  last  taken  up  and  prosecnirf 
set  of  persons  in  London,  who  wers  is' 
opposition  to  the  government;  msr^t 
an  odium  and  popular  damoiur,  on  asDi 
so  unadvised  a  pardon." 

Of  these  Kenned vs,  I  received  iktU 
account  from  the  late  ezcellant  ar  fl 
£den :  '*  When  they  were  tiaaMrtail| 
rica,  tbey  got  thither  to  Bf arylssi  fp 
my  father  was  governor)  with  i 
recommendation  to  mj  father 
rank  in  this  country,  I  suppose  Is  i 
from  the  coast,  where  thej  y 
more  particuUurlj^  known  as 
them  was  drowned  in  croiniig  ; 
and  the  other  (I  have  beard  " 
secretary^  was  some  time  silSi 
in  Ireland."  See  more  com 
murder  in  Kelyng's  repsiisf  | 
strong  0.  Lisie.    SsesW!ni| 


lsf>l] 


fur  the  Mnrdtr  of  Mrs.  Saroh  Stout. 


A.  D.  1R99. 


[1202 


b#  sdinittcil  gfuartiiaD  to  tUe  infant^  only  to 
|iiroi«*rt  hrr  cstnte  ivotn  Ihe  iufiuiY,  and  tlinl 
wtUifHti  Itie  privitj'  oflhc  mfanl\  inotlier,  or 
mn\  r»r  his  relations  ;  but  (l»esi«!e»  ilie  Tcry  ad- 
roit lance  iliteir,  wliich  is  purely  for  pros*  run uij 
ibw  )«(»|ie^l,  and  tor  nothing  c\^^)  Mrs.  8tutit 
%«vii  iilii'iiys  leady  to  discover  the,  titio  nf  her 
•Intuit! ;  ami  never  hut  decbred,  tliat  ihe  iid'inl 
llBil  no  rit^ht  thereto  ;  und  as  tu  the  itduia*^ 
iSMi^tier  not  knowing  of  Mrs,  8ti>iii*s*di?.<i*rus, 
it  is  rery  easily  atisvvcred ;  for  it  i«  not  otdy 
0«ii>rn,  unil  lUc  aHidaviui  tiled  in  the  Kirj|^V 
bench,  that  .^Irs.  8tout  wtiJte  to  the  infant's 
imilher  what  her  designs  were  ;  hut  also  a  par* 
lii^tar  account  is  in  those  atiiilavits  set  forth, 
Jmvw  wilting  the  infant's  mother  wan  to  send 
her  lion  to  Mr^.  Stout,  ordcrinir  one  of  his  unel^« 
lo  carry  hhu  to  her,  for  Mrs.  Stoiu  toilo  with 
liiai  iiH  her  occasions  rc*«jiiirefl ;  itid  ivithal,  di* 
l«pting-  such  iincte  to  ddiver  her  son  to  Mrs. 
Slont,  aad  to  none  but  her,  and  to  do  accordin«^ 
to  hrr  directions. 

h  hath  commonly  been  reporled»  as  if  the 
|itf»6cculioti   in   this  u[)p«al  hath   been  purely 
LiOiH,  be|^iin  by  a  hiMiy  of  Quakers^  and 
'  by  a  faction  at  Hertford*  a^Inst  Mr. 
's  mierest.     But  uhoc-ver  the  fotnai- 
spreaders  nbroad  of  such  reports  are^ 
would  do  ^fell  to  consider,  if  it  were  their 
case,  to  have  an  only  chilil  mnrdered. 
her  reputation  rend  erect  infamous  to  pos- 
1^,    nhetlier   nature  and   duty  would  not 
e  thera  to  use  all  means  to  make  a  diiiscy>- 
of  Ihc  c^iise  thereof?  And  whether  they 
M  not  think  it  hard  to  have  their  own  en- 
Ivourei  redecteti  on,  and  their  utmost  dili- 
irr  accounted  to  be  the  cause  of  a  parly  ? 
II  bath  uIko  lieen  reported,  and  perhaps  by 
leof  the  appellee^  may  be  object©!,  that 
▼cry*  method  in  the  process  of  this  ap|veAl 
l)«en  malicious,  in  d«hiyin^  the  suiii^  out 
lie  writ,  until  the  time  was  almost  eUpsed, 
lo  keep  the  appellees  in  an    uneasy 
>nBe.     But  in  answer  to  thiit,  it  is  con- 
tliat  it  tvas  much  longer  before  the  writ 
u  sneti  out  than  was  desired  or  ex- 
befiaufie  it  was  near  half  a  year  betbre 
8tout  could    6iid   out  (though   sill  that 
lie  she  maile  a  diligent  search)  the  proficr 
Sim  to  make  an  u|ipcllant ;    and  idler  nhe 
ii\%ii  was  forced  to  examine  moMofihe 
[tsfcrs  in  l^ndon  and  S>iithwarlc,  to  make 
bis  pedigree;    and  which  as  soon  as  i» he 
Ihe  very  next  day  sb^  caiiheiJ  tlie 
appeal  to  be  sued  oitt:  so  that  it  was  her 
toe,    and    not    her   mntiee :    it  being 
the  nPTf^fsity  t>f  so  Joiip-  a  delay- 
i  commonly  nrqpp<K  hs  a  strT>n^'  arg^ument 
hinfil  a  svctHid   inul  of  (he  uppcllees,  that 
ts  no  utw  evidence  that  Mr*..  Stout  hath 
kinst  them  :  hut  stteh  persons,  whoever  they 
mil  oiily  aAKei*t  what  they  uro  intaUy  ii;^nti' 
of,    but   also  conclude,'  that  Mrs*   8tout 
a  cfreai  deal  of  pleasure  (especially  now 
^Jier  old  a^e)  m   txnn^  in  a  conMant  fatig'ue, 
consider abli*  expence,  purely  to  be  render- 
ridictibtiK  to  thcHoHd^and  unoosy  l<iber- 
VOL    XIJI 


self,  tn  the  fresh  and  daily  renefrtTs  of  he 
great  loss.     In  ati«wer  to  w^iich,  she  is  au(ti«i 
cit^ntly  assured,  that  she  t^oes  and  acts  by  i. 
principles  and  designs ;  and  that  she  hath  na 
material   evidence  than    ever  yet  was   mat! 
public  ;    and  that  site  beheve^  the  appelle 
(ihongfl)  tliey  pretend  their  innocenry  is  fene 
providenttally  with  such  circumslances  as  iha 
they  nenl  not  fear)  do  not  care  to  come  to  lb 
test ;   or  «be  why  should  tliere  l>e  so  viiron 
an  opposition  ag^ainst  so  plain  an  act  of  justice/"! 
if  there  was  no  matter  of  fvct  that  could  b|1 
proved    a&^iust     them,    nor    no   concurrin^ 
circumstances    that    would    any    way 
them?   (as  they  seem  to  insinuate.^     It  wouK 
ba?e  redounded  much  more  to  their  honoti^l 
and  reputation,  and  have  wiped  off  all  occasio 
of  reproach,  if  (mstead  of  so  mean  an  under 
minin^^  of  ju^tice^  in  the  destnietion  of  the  wrij 
of  appeal)  thr*y  had  undergone  a  »econtl  trial  i 
It  being  impossible  (ihccordinyf  to  their  own 
sertions)  fur  them  io   miscarry,  or  be  foun 
g'oilty.      All   persons    must  certainly   knoir, 
that  it  would  be  no  prudence  in  Mi's.' Stout  i 
dirul^e  her  evidence  iKffore  a  tnal  ;    and  ifsh^l 
doth  but  act  prmtently,  for   any  therefore 
alledge  she  hath  no  proof,  is  purely  to  speii| 
at  random  and  at  a  venture,  ami  ought  lo  f 
regarded  accordingly.    [But  this  affair  came  l#J 
nothing.]  1^1 


THE  HERTFORD  LETIER  t         H 

CONTAINIKO    SSyERAL    BRIEF    0&!%£RVAT(ONs    O^ 
A    LATE     PBl?tT£0    TillAL,    CONCErt?«IMa    TUf 

Murder  of  Mrs.  Saeau  Stout.  / 

Sir; 

I  am  favoured  with  yours  of  the  20tb  olti  J 
whereby  I  perceive  your  pleasure  it,  thai  l| 
should  give  you  my   sentiments  concerning  1 
Mrs,  8arah  Stout's  dealh,  the  tritil,  'Uc,     lar] 
answer,  1  am  very  ^n^tible  of  my  own  wealc^  I 
nees,  and  how  unfit  I  am  to  enter  mte  a  contro- 
versy, wherein  so  many  doctors  have  been  wor« 
ged   already :    nevertheleat,   in  obedieoee   10 1 
your  reiicratetl  commanils,  (though  m  doin^  iti 
I  may  expose  my  own  i(^norance)  t  shall  giv#] 
you  my  thoughts  concerning;  the  natural  caos6.{ 
ofdro%vnintf,Hoatingof  dead  bodies  atlerwards,  I 
the    various  sentiments  of   the  doctors,    tb#i 
manner  of  her  detith,  the  letters  produced 
comtf  her  melaneholiness,  why  no  mfotiou  watrl 
madeof  the  money  ;  and  lastly,  concerning  twft 
public  experiments,  w  hereof  one  w  as  made  I 
and  the  other  in  the  river  *»f  Thames. 

It  k  a  common  observation  of  most  people  j 
not  used  to  divt%  that  upon  their  ptun^nt^  lhem« 
selves  in  the  water,  whether  it  be  rotuntarily 
involuntarily,  they  find  a  g^reat  confu'«ion 
their  spirits  ;    so  that  it  is  morally  imfKivtibIc  j 
for  them  to  regulate  their  actions  in  this  sur- 
prize, by  the  dictates  of  reason  ;   in  thin  con* 
ttemation,  tbey  lay  hold  ou  any  thiti^  ibiit] 
eom OS  in  their  way*.  I  '     '  it 

may  contribute  to  tlv 

In  thi-ii  hurrv  of  the  i^iru%  rocc»iiot4«d  pstuy 
4U  ' 


I 


llWILUMinL     .TI^^i^mmCaKt0rwt*wmf, 


ptrtly  tVom  itsrtioning  \n^  ihei rears,  DD»tn1s^ 
&c,)  tbe  «  biiie  animal  epconomy  ii  brong^lil 
i^ku  d border.     Iti  tbis  eoiituKit^A  tt  i^  no  ways 

mersed^  sbould  ineiauate  ilseW  into  tome  vaou- 
lliat,  no  vray^  adftpteJ  for  Its  rat^eption  :  and  it 
being  obvious  to  fill,  ihai  no  m&n  tjotti,  or  c^n 
lj?e  wUhout  iies^iratino,  i^bateTer  eletnenl 
ftoevet  he  is  iti  -,  if  in  ihe  air,  be  swcks  diat  in, 
^liii;b  naturally  tbws  into  ibe  Itingfs  ^  if  iq 
^iter,  IV bat  €Oin«s  into  iJie  inoulb,  ai;  Longf  at 
bia  ettise^  conUniiei  he  sw^Uowb  tbat  itoun  tbc 
fillet ;  »j»  long  as  be  dofb  not  breaibe,  lliere 
ta  tittle  duiT|^ernf  drowiiii>gi  but  on  tb€  ftr^t  in- 
apiration,  11  be  is  hi  tlit-  iuriiiee  of  tbe  wa.tcr,  it 
Ii  much  if  be  dotb  notaw&ltow  dov^oibe  win4- 
mpe  (wilb  the  air)  some  suitJl  t^tiaiitity  of  irater  ^ 
but  if  be  it  totaUy  tmnaefaed  m  it,  it  ii  net 
imppobabte,  ^bat  npoti  inspiration^  a  f»r  greater 
quantity  of  water  lb  an  air  mH  enter  iiit^  the 
«aniy  of  ibe  lungi. 

In  eftty  e^spubJoa  of  air  out  of  tlie  lungi, 
the  epiftotti^iB  titW  up ;  if  the  nmutb,  at  tlie 
maae  ^ksm^  abouIU  \m  fuLl  ot  waier,  it  tstmpm* 
ftNe  hat  Bome  cif  it  will  pi»i  down  Uie  wind- 
PIH  ;  an  is  ohsc^able  in  Iboae  that  ic«:;deiit- 
mux  laiigb  labile  tbey  are  a  drJnldnq^  if  a  drop 
CaUi  ioto  the  atpcrti  arUrm^  it  will  cau&e  a 
«ou^b ills',  wtiicb  Ei  a  convulsive  motloii  of  Ibe 
ImigBi  ice,  Vflitrehy  nature  ilotb  com  in  only 
-  thim  U|i  any  tbiug  ibai  dotb  casualty  fail  u]>on 
tUem  ;  by  tbis  atrti|^1iTig  of  aature,  to  eac[ie1 
tbc  water  already  sUp|>ed  down,  the  epiglottis 
ii  titled  upf  anil  instiead  of  ejecting  the  water 
just  swallowed^  tbe  mouth  bemg  futi  of  it,  a 
gT^t  deal  tuore  force!  b  itaetf  down,  by  its 
fiatuml  ^avity,  which  gravitated  tbe  niofe  by 
Tvmmi  of  tbe  cylinder  at  cone  of  tb«  air,  that 
€t>iicjnually  pr^setb  oti  ila  superictef.  As  soon 
as  the  scusas  are  gone,  the  epiglotlia  b  kept 
open  by  the  force  c>t'  the  streaui  that  runs  into 
tb&  wiod^pipe,  until  the  bronchi  a ,  and  all  their 
ramifications,  are  fiUcd :  as  kmg  as  the  seusea 
cckniinue,  they  swallow  tnosl  of  tb«  water  that 
Gomea  into  tlieir  moutlis^  into  thttr  atomacbs; 
but  when  they  are  near  auflbeatetif  tl^  water 
runs  into  tboie  duetSy  where  it  moetfl  witb  tbc 
leofit  resistance. 

So  long  as  Life  cnntiniiest  tliereis  aconvnl&ira 
■tru^^gling  of  Dature,  to  expel  out  of  tbe  lungs 
all  those  ibmga  that  are  noxioot  to  tbeui, 
especially  water ;  being  never  uaed  to  be  recep- 
iadt's  for  aoy  thin:^  hut  air,  ibey  use  tbeir  nt- 
UkoU  effortii  to  eject  it,  by  a  riolcut  contracting 
their  lobes  nearer  together  ;  by  these  exorbi* 
lujt  contraptions,  tbe  water  contained  in  the 
raoiiGcauona  of  tbe  broncbiaj  &c.  are  aomep 
times  forced  into  tbe  cavily  of  tlie  thorax,  either 
by  dibitmg  tbe  jtoresofthethin  membrane  that 
inveat«  the  lungs,  (as  quick -silver  is  forced  by 
the  tireicture  ot  a  band  through  a  piec@  of  lea- 
Iher)  or  by  tbp  rupture  ot  th^r  luaicle,  or  by 
tome  mrnute  vessek,  not  yet  described  by  ana- 
toui(i»i^.  If  any  practitioner  in  pbysjc^  He. 
aball  assert,  that  anatoftiy  is  brouglit  to  a  ne 
|>^  uiita^  aiid  tbiiiaU  diiclii  Ihcuvgh  wbicb 


tbe  jaices  of  animals  at^  strdnedf  are  dilc 
1  would  desire  f hem  to  tell  me  tbrougb 
vessels  tlie  pus  in  an  empyaaip  WoQ 
matter  liej  ou  tbe  midrifi',  urbiea  tlicfe' 
uloer  of  the  lungs,  is  expoot^raied  ^  or  lb 
what  pas^ges  whett  ii  h  carried  off  by 
it  is  conveyed  into  tbe  ki<lney^|  or  !io« 
injectbns  cart  into  the  thorns,  ca»  iff^ 
mouth  with  its  taste  (as  the  ohsrrviii 
physicinns  dodenHHislraie);  or  let  ibei 
a  tre^^ti^  of  Robert  Boyle,  caq.  called  N« 
periments  Physical -Modlailicatp  toncbii 
spring  of  ibe  air  \  wbefe,  amon^<l 
€uriou4  observatiouM  about  the  lun^x^  bet 
tbiit  the  diligent  W alliens  ret^ilps^  Tb 
diveiB  times,  < divert ed  in  the  dissection  i 
bodies,  Uat  tbe  membrane  tbwt  tuvf« 
Itiogs,  had  pores  in  it  ai  big  as  tbe  kiQgi 
of  peas,  p,  ^:4S. 

Wat^r  is  as  frequently  fmM  ia  tba ' 
of  the  abdomen,  m  of  tJbe  tborai  |  I 
what  ducts  <ir  passages  (iNbea  tb«* 
visible  rupture  of  tbe  i.'nai^  of  tbe  MQm 
gnti-jit  is  can  led  iliere,  I  leave  it  loihti 
M^pLcal  aaaiomist  to  determine  ;  I  cooe 
enough  tor  riie»  at  |»resent,  to  tdl  you,  ibi 
fact,  f  am  cotiscbt»  you  are  not  ^ 
that  tiieie  are  many  thiogifi  that  ha|i|iettt 
aoimal  aeoonomy,  that  cannot  be  piv 
priori :  yet  when  Ihej  are  a  pmtcriai, 
are  admilled  by  thest^^uobi  aj  un^eniaUai 
taenia.  If  an^  are  »  seeptieal  ai  l» 
what  ts  not  capable  to  be  fvot ed  o  fri«St 
would  be  put  to  it  to  prove  tbe  circuta 
the  blood  t  nootion  of  tbe  a  nimal  spirits^  or « 
or  bow  the  chyle  is  trau:»colated  tbroegj 
eoats  of  the  gutSi 

Aft  soon  as  ibe  lutigv,  aloQttcbt  Acdii 
of  water*  the  body  naturally  ayiks,  sod  di 
more,  until  there  la  a  puir eviction  m  fk 
ward  parts,  which  iu  cold  couiitnes  ill 
thaft  in  bolter  regions  ;  hut  the  ^oiMr  ] 
faction  is  begun,  ll^  sooner  the  corpse 
IV hereof  no  oertain  calculsuioa  can  be 
tlie  tim^  of  tbeir  rising  difierimr,  ^i^  1 
to  the  regioDL,  and  in  tbe  san^e  clinali 
respect  to  tbe  sea^ous  of  tbp  yeiri  ii 
parts,  according  to  tbe  oommuti  reetaflj 
Aoat  in  nine  or  leu  days* 

The  comtuoi)  cause  assigned  for  ta 
bodies  drowned,  iSt  ^^  breaking  af  ll 
which  you  know  in  a  vulgar  efttrr;  il 
need  say  nothing  in  opposition  toil;  ibi 
assigned  by  the  modems,  is  iiuiiiiftrlii 
how  this  pufriilacyoti  reiideim  iba  Ml] 
buoyant  than  it  was  bclbre.  Is  itot#i 
every  eye ;  tb«d^f«  I  aball  flat  .1 
Ibougbts  conceruing  its  modm  mpmk 
Uefaction  is  a  species  of  fermentilMft.iJ 
mentation  the  air  eonlMned  iu  tbafiM| 
breast,  body,  stomach,  <^k%  thoqi^^'M 
full  of  water,  yet  tbe^^  ciaitaiA  8i*fft9 
of  air,  which  m  raritied  with  lEa^'^'' 
proportkonable  to  th  e  degreivoCpail 
this  iui^ensthle  dilatatJtMi  of  thi 
graduitUy,  unlit  %\^  cor 
paaiaga  tbfiOMgb  th^ifcwi  i 


fit  the  yftmitr  f  Mrtm  ^^rak  ^icm . 


\.  D.  'K99- 


■w  10  iMliu  in  cirrau  w*im  irsi 
;  iftw  h0  htth  lain  some  -vpeiis  n  -n* 
i  be  tt  Inst  30  or  40  inches  latti^euin- 
iMi  gndioai  aUmairan  «it  'tie  ^^ouy. 
2  it  the  mIc  cnae  of'  :ti  n«a^  'o  lit 
■  ttBiraicr.  aAer  woe  >.*eftiuu  s.tiiie, 
will  Bore  or  liav  biiovaniD«s!i  otter- 


■•9»W 


%4k«.i 


I  I'y  ywi  »iiT  thfin^its  ODcerniu^ 
^w  AnwMy/ot'  the  duatin^  -it'  itHi 
■'■■■fli  ;  I  shuil  aow  acquaiut  vou 
■jtiBm,  «l^  buiiies  thrown  'ieud  into 
^**>Mifct  lod  why  some  are  luure 

tt  httOKUi  boiiies,  atler 
cspectaJiy  sodbcaieti,  a» 
■Be  wcwks  since  Uotii 
;  became,  a»  snuo  a» 
sphiacu^r  ausd^,  io 


« In  :  lie  tMtitrarv .  t  uw  ii«rMia  • 

*I«IU.    lUU  a   <:Uidtl  «'tlVM,    »o»     .11       i.t< 

was  'uruHti    'iio  -.re»u    .•!    -iiaiiuiv 
v%iil  ^ivitii    .'K.  iiore   iiiiici  •«Aa'i . 

I  'IO  HOC  'wrvfivi'  <.o  ^'tai  .i  i!'«i'»j«»*»a.jc.    ■«.  - 

>iouaiir.      f'*^e  *i..lt^aif>  'iu-    nv  x^i'^;    ;».i'v*».vC^ 
thttfc  :l  Wdj.    '.:  •    i     M-..HOM,  •.»M»    :•»»    ;H.iNUU      .v  *.- 
waa»«  ii'   iO»>sui\  c<>aiii  Ot,'   liV.v iK»i,  .li.'.i  *Kui  "i^* 
waitr'ii  .luii-  !iiii«;s,  siDiit«AC4i,  \c.  kiivi  liiai   \«k 
far  M  uii'V    >i<itl   'iiatie   aus    -.th^v* «  tijou.^   •>4& 
-lroMii«:ii    |KiM.>u»,    iiic^    .it%*.t\t   lu.nul     ^>^'<-is. 
quttiiiitie«    ul    wuiti-   III    liic    iln«a.ti     ;ui:  i.'«    •■a. 
>iiti»iieii  iiei-suim;  |miI  •hct«'Of'i..Maail\  .  lu  Ul  t 
ii»«>   tlieui  «iuc  oi   the  vtatei,  luiit  v>tii  oft  itio^t. 
!iosc  or  iiiuuili  ;  that  u|h>ii  ihcii  Ji<«»ci'iii»u,  ih%- w 
batJ  tbttiiil  ct'UMilirrubiv  i^iiaiiuiiCN  «»l    it  iu  ^^a!^ 
ctttitica  of  their  hiKhe*  i    auii  ilMi  a  %« i»  th^rkv 
CQsiracttlieiiiseUi'«,  tbr    jud«jfiiivu(,  that  the  iiiwarJ  |Nute  ut  JiMUut-^ 
w  eas\'  to  inj(*ct  any     i>ersuuk  woultl  |Hilrit'%  lu  Icmm  ihau  Uh  m  cv  ^  ^ 
time.      Uhether  thi-M.*    ai«;    utii  u&ul0ftil«U|^ 
iruth«,  I  lea%e  it  tu  the  drlei  auiiaiiMa  Ml'  |(<k 
wlf,  aiMl  all  iiiibiaHifeMi  iia«i|iltf  lUal  havn  tiia 
aii\  real  (uut  iiuliuiial)ufei»vr%allMiUi  Ott  Jif'vtu^ 
botlieM. 

Theii'  leariml  aiit«yuiii«ti»,  nhiaM^Mf^  *^<^ 
vuur  aiiil  hukiiirM,  a«  iar  a*  1  miuM  ^*i^*^^  ^ 
wan  tfi  rvii«li:i  II  a  uiuiu  i«aa.  bfr  ftliM/  ^^^' 
uu«ly  urtfiiiK.  *  'riml  lw«  i 

*  W«ll-r  Ma*  ailltli  iirlil  M  itnMTfl  4  ^<*;f  . 

iriiin  any  oIimi  » •iliuut  ag  ^ 

rriiiiia  |iri»ai«r«|*fiiiMMM  *i  ^ 

iv««  hull  \i4u\imA,  «a  I  til  MM;  Sii  -  '^^ 

I'l  Miiiik  lliirre   •»•« 

fiiiMifly  111  lliafiitrnf  tliWMi  IT 
|«rratf«fi 

IJ.    niMfia  «|f|||,  •  ^ 


k  haveilieiii,  aa  twlure': 

^r,  the  factntiea  («ihivh  i 

en  cwamres  ar?  fiill  of  water)  are,  in  . 
^••■■f  by  their  death  some  irther  i%a\ ,  ; 
r,  which,  by  natnral  experiiBeiil«,  'i» 
•  be  a  thinund  tiineii  litfhtvr  ttiaii  ' 
J^  fcy  tfce  tan»e  sort  of*  fXiieriim-iiH, 
■  is  nliLi  led  to  be  but  a  iiltle  lieai  iui  | 
fcr:  if  %aa  ^rant  this,  which  is  i-uMly 
■tol,  h  win  be  no  hanl  matter  I'ui-  nuy 
HeoMa  lobeliefe,  that  ri»h  (wliiih 
ny  lai]^  cif  itiea  in  it  filUil  wiih  air) 
^     If  you  duubt  iIms  iiniiifiJiatf  Hum- 
unma  thidies,  throwti  iIrai]  inin  ihf 
Wi  may,  for  yriur  liifititirfioii,  i-iiiinuii 
M  of  aeomen,  «viio  hatr^  Im-mi  i1i«.  ||,.^i 
»eral  enga^renKuu  wjih  il«r.  Frri'li. 
that  have  Jjerin   ik    Ofjiii«-u    fuyiygf  , 
Hian   ihey    throw   r)i«t  »l#^*l  urjt,tf^ 
<  they  neT^r  fay  %iij  wi-i^iit  i<,  i|,rir 
■k  them,  as  they  Si.  f>»  *tiii»  igifn     ii 
that  ail  cboae  n^^i^Afk  .mfh^jUiuMy 

iee«  iImi:,  if  lecrMinf:  0*rtt   •'-.nUI  ^fi^cKi. 
lalh. 

>iViiiii^7«i.  ir   a  '^sui^i^  A  1ii»  'Hit 
'■^n  he^  fftfir. 

nn*^  ^.:  <•    II 


nr^^  Luir.     "  :4V      I 


vaaOi  b>  lh«/  •'/^•••^    - 
w  Af  i£ra«  't^**^    'j^ 


mm 


mm 


mm 


11  WILLIAM  m. 


l«73 
'  AJB^  ^  *^  *P^  *^  tJiiuk  ii  woiiU  111  re  fin  Ire- 

direct  luid  snlisfaLtiirv  tbis  tttt^wer  vrM  to  lli« 
^iii^tisn,  ymt  mm  drlFrmioe.  I  ob«eiT€  ft 
teocrjil  fluciimi),  (fivr  what  intvutbo  I  ctoDol 
divmv)  which  «fl8,  U iK'ther  any  w»t^  wnyhJ 
IT*  ujti»  tbif  ilirjrsu?  If  ii  diii^or  Sid  not,  t  can- 
i]t»l  coneeiii:  ^%Uut  biftirJit  or  (*f«jut)ir«  li  would 
be  mthis  ca*c,  ihtjii^ti  1  iiiti  apt  tu  think  the 
fiictiil^nitii?  limt  mtcsiHtljij  lun«i«»  rimy  tsM^itv  lie 
torn  by  Tiolifijt  ruLiqliifiir,  nludv  1%  ^bfu-ned 
%u  atk  prriaiii  t»li&u  uiiy  thbg:  fiilb  uito  lUc 

??oflr  llii*  foot  of  Htf  diiciiniYc*,  Ut  stith,  *  I 
*  mn  4pt  to  tiitiikf  if  ilmre  »*ai  any  quantity  * 
(4*f  wilier)  '  in  tijt*  luii^,  t|jp  Jtpon^nit****  of  ffie 
^  |iAt't  would  huck  nil  sjiitte  }Mi't  rif  it:^  wlio 
puil  tlie  contrar)  ?  Bm,  dccior.  i<  tliey  bflcl 


if  ftli«  litit  tie4^    ilrawn«d;    M  ii  4k  iB 
tlirown  LKi  tl^dt  tl»erc  ksnofhiag  oNrei 
thill  Ibf  it  ta  fiiMit  i  ftiM  lhi»  my  i 
moietitiintxHiM  to  llie  uoiniiiil 

wlifn  any  lit  tbiiir  »l4i%«»  tli^i  Uwj  1iin«^t 
ovcrhoai^,   wtlUoiit   any  i*isi|^lit  i«»  tlidf  M»  I 
jLtid  lUr^  filial  imm«<<liatdv- 

Ttiat  slie  wus  l«4ttitl  uttjAiiig  Ml  1^  wiiiti  1 1 
a  init^hty  Ar^timvoi  with  liii«  doi^tor  Iklii  / 
ctid  not  0ojit ;   tml  gt^nt  sibtr  wsi  iniy0y 
( wfiw! h  i»  ikiiied  Ly  *c r **r&l >  1**^  vr«u  tb* iw  I 
HM  it  in  a^*<frtp4t,  I  thiuk  il  m*  ipr^ler  ) 
thitii  for  B   4ebt-^uttnl 
(wliicli  ulioold  ftoeltei^ipgiiiiMfipl 
two  »ic»fic»,  not  4ib«>f  c  nioi?  ivjc£cs  iHaai    _ 
from  tht*  oUi^-rj  to  fla«l  eil^titiuj,  «**»?i*Li»-, 
ii  iut^ii;lv«l  b«iw«tm  iliwii-     Xaj,  on  tAia»  f  j^  ^ 
Irajy,  1  ibiuk  it  f^o^»My  mynaj^  hr^lts^i^^ 


i^m^ff^ 


^*ir. 


hv^a  nwHUf,  ibaii  if  tlicy  hsKl  iiicki^ct  up  imm f  Im^j^  ttiat  i«  luueb  bro»di-r  th«ii  ^l  ii  timkM  Itt*^  t 
Bnt  fli.s.  Stout'si  wcfy  I'tt'ilvfcv  rtrMJr  Ihaii  usually 
tliiy  dfi'  Hi  fliMil  ii^rffon*;  tiic^iiiirr— *  X»  in 
'  tlK^  4i*>iiiot  !i,  I  Ii4vr-  uot  kiiovrn  it  inivd  ;' 
hnirr  yau  Luown  it  ti'i^^d,  m  to  tlit  hmu»r  W 
lirtE,  w'^  Ajv  «i»  iruich  in  the  dark  ns  UcIVht,  1111- 
'icjsv  wc  tr.Sic  your  » |  am  upt  to  iJiitik^  for  de- 
ipwtislmiiim 
TI1J8  d«H  lor  ttkiiirs  kk  *piitiin«nty  wiih  '  If 

*  Uigre  w*'*  a  ^i-f il  f*rintjiiatioo>  a  gTi?*t  df ftl 

*  afiV  (filter)  *  wiHild  ri^e  up  in  vajnturs  or 
'  HieAiiH,  iiiid  {^'0  n(f  tbiil  way  ;*  titT^  lir;  trr* 
nuojitot  &II  witU  Ati  ^iV  iMippost^  I  should 
l^r-mi  liim  thne  xfanikgr^at  ferotentatlAD^  to 
he  aa  lryt%  as  I  am  coo  ml  tut  it  h  false*  his  to* 
fercTire  I  doubt  would  not  lb  I  low,  vv£,  *  That  a 
'  gri'at  deal  flf  it  Wfiuiri  risfi  up  in  vapours  i*r 
,^  steams,  and  go  off  that  way  ,  if  it  should  ris*- 
tiilo  rrtjwifs  in  tho  stumacLj  I  am  subject  to 
Iwrieve^  that  the  coldness  of  the  parts  through 
which  the^  muut  pass,  would  coudenSM?  them 
ay^qii>»  bdorc  ihcy  could  get  out  of  the  body- 
"IVhttl  way  he  means  by  *  that  ifray/  I  cannot 
jinapn« ;  i^  it  ^a  through  the  |rullet»  the  eon- 
tractiiiLL  of  thi!  mouth  of  the  t^tomach,  gullet, 
{wliicU  as  Dr,  Gurili  says)  eontmcied  or  pursed 
up  by  a  tnusele  in  ihe  uaturts  of  a  ^{i^^Q^^^i'i 
and  tki€  elosure  of  the  Hpa,  5cc,  would  either 
keep  them  in  the  i^tninach,  01  else  the  robluess 
of  i be  part p  through  which  they  must  tjf  oe^ 
ceasUy  pas? ^  would  copdonse  them  in  their  pas- 
fige  out  of  |,be  body  i  if  thruugii  the  gurs, 
the  pyloruji,  the  roldue&s  of  the  giit^,  or  the 
f|»hineter  aui,  woaJJ  olwtruct  their  pois^jige;  if 
it  could  be  ima^ned  that  the  subllf  uess  oi  |})«se 
Tspoure  could  get  throu^^b  the  coats  of  the 
Mamachr  I  c^^CMha  the  coldness  of  the  mnen- 
tum  pRritoni^irm,  and  the  thickness  of  the 
lonscleSf  fatj  &c.  of  the  abdomen,  would  iai- 
pede  I  heir  exit  out  of  the  body,  lu  fine,  tt 
i«?ettis  very  probable  to  me,  thai  if  there  had 
beeo  any  fumt^s  raised  iu  tb£  stomach  by  fer- 
raeotjkticin,  that  ihey  could  net er  get  an  exit 
through  so  mauy  inipediuientt. 

Dr .  n art  h  tel§  you ,  t bat  M t  is  i m po^i hi e  th at 
'  the  budy'  (of  Mrv.  t§toiit)  '  slK>uld  have  Ami- 
'  miy  unless  It  liad  rested ^  or  been  inlangled 

*  jokopfti  the  itAk^.'    T^M  i«  f  emim  trut)i| 


con  tin  ue  mote  or  Umm  td{giliogi  tiil  kaim  tL  ■  hn 
laiiiflijd.  k'tLyn 

lolwcrvr  thft  jildg^  a»k«l  lIiii^»iB*  jjj**"' 
whetlKY  wtkUst  in  Ihtj  t*ftdy  »*miW  prttdV*  iii  n* 
If  e  auHWerril,  *  1  wiy  not  ^  fur  inimif  ^  iii  ^ 
M  hey  k  kV|i  flii»h  *  iiic4 1  f riiiu  corru j>tw£,  J?  P     *^?J! 

*  Bcrtiiigit  in  v»at«-rr'  if  be  mnm  f»AW  •'  11!^ 
dcq*  i*  etl  wi  d  k*'f  |j  It  a  day  «r  tw<)  in  M  <• 
trie*,  1  may  admil  it  ;  but  lb*t  it  »'''  J^ 
M%  w«ck«.  or  iiJorr»  I  ul1«'rly  dray  i^  5  "^J? 
nol1ccc|t  lU^h  fron^  |*uJrofat:tiMif«tjf*^^^ 
it  haih  little  analogy  with  the  c«e  «i**  ^ 
bate*  ,|^^ 

*  Tbis  doctor  tells  yon,  *  IJc  mo»l  ^^'^^i* 

*  him'  (Mr.  Coats%iorth)  *  where  h*  >^^^^ 

*  was  m unified,  because  hfi  taaml    ^i**^l  ' 

*  quanlity  of  water  in  her/  Thi*  in  S  -^^^tjij^^^  1 
for  neither  he,  u«r  any  of  the  other  ^^T  ^^J^ 
surgeons,  that  were  preseut  at  her di^ ^l!?S 
inferred  ihe  was  mimlei^t  d,  becay«r  >dw^^  ^^'^ 
i^reat  (|uaiit]ty  of  water  in  her;  bwt  1^^  ^ 
she  had  none'at  all  in  her.  ^^^  oM 

Dr.  ftlorley  Milh,  *  That  these  wUic!f^-<^ 

*  to  be  the  qiiestiotis  oi'  the  greaietl  1 
^  arei  Whether  there  t^s  a  necessity  4 

*  body'  (if  drowned)  *  to  hare  a  grwt  1 

*  of  water  io  it?    And  whether  botlies 
'  dead  into  the  water  float?'  To  the  fifkt  I  -         > 
s^ver  positively,  "  That  there  i^  no  nhsobit^^^,^ 

*  ees&ity  that  she  should  have  a  great  iptiit*^  ^ 
'  of  water  in  hen'    With 


!i:^ 


^iibiniisif»o«  dod^^p 
pray  tcU  which  of  yoiiropfHisites  said  tliaiw-^^ 
an  absolute  necessity  for  Mrs.  Stuui  to  haTt  ^ 
great  (]uanLity  of  thaler  in  her  ;  thev  saidt  ikf^ 
could  nut  eoocttve  that  she  was  druwoHl,  tli«^ 
bod  not  one  drop  of  water  in  faer.    I  f  you  woolv 
have  C4)ulradtctetl  tbem,  you   ahouhl  barf  di- 
monstrated  to  the  jury,  dlher  by  rcaMfO  or  a* 
fieri  men  t^,  h(jw  a  pemou  niig^t  bi^  ilrunatJ 
without  any  water  in  them ;  if  you  c^utd  bin 
donetbisj  you  had  answered  the  ijuesh^  4 
greatifst  moment. 

This  doctor's  diffiirence  between  ptiMW 
drowned  by  accident  or  design,  I  would  ftsiier 
niyieti^  wii  tiaito', »  ^1^  imgusj  ibpa  bit 


»1 


for  the  Murder  of  Mrs*  Sarah  SiouK 


A.  D.  1699. 


[J2I0 


ri 


'  •  for  it  is  cerrain,  villi  vthatso- 
iwan  may  ^o  into  the  wnter,  be- 
r  i»  ball  nU'^A  hp  is  deji rived  r,f  hi»  scnseif 
w  be  {ifoverns  bimself  then,  ynn  may 
To  ibtf  second  fiiieftUoii,  be  sail  h^  *  t 
Hkf  if  |}«>f jiet  new  kilkd  fl<mt,  it  is  hy  ac- 
'^Bt:*   it  is  HH  arcidctktiil  for  bnrties  new 
>  irben  I  brawn  intti  water,  to  si[ik»  as  it 
B  jusi  drowTipd  lo  swim. 
stun  being-  askei]  bi?»  opin5f>n,    *  If 
I  be  drownef^  whether  it  ran  be  dis- 
?te*l  liix  %*eek8  afu?r?'     His  answer  ivas, 
iiL  1 1  imti't*.<^il>le  to  be  known  :*  I  am  apt 
1,  tliiit  it  k  iu^iosNihle  fire- 
wliiU,  ami  bf*w  mnny  inju- 
er  msrcia  iiA*]  iret*piveiK  or  what  acrndetita 
afH»er»ed  iniio  ibcm  foriy-six  days  after 
fierson   is  drowned  ;    fnr'  nntitrally   ihey 
I  have  lieen  (lulritied  in  hcilf  that  lime; 
I'ben  the  bowels  are  reduced  into  a  pu tre- 
llis inuciliiirPi  ^*'l»o  ^'an   (rive  a  rational 
r^etit  tiT  tlic'ir  former  iie«fe.  posi- 

or    I  lid  been  affected?    This  is 

t'-iiiaiut..ii>  ru,,.|*e-ns  to   a  druwne«l  peraun, 
re  was  nothing^  of  this  in    (VIrs.  8tou( ; 
no  small  aivunienl  wrth  m**»  that  she 
drowned.      I  sholl  take  Ijiile  notice 
contradicts  his  brothers,  by  his  afBrtrt- 
'bat  in  drownetl  fkTstms  the  water  lies 
ita  the  stomach  ami  g^ut^  '     A^  to  his  ex« 
T,  1  doubt  lie  is  not  candid  ;    for  I  be- 
kmave  heard  the  same  Mury,  which  was 
t-^%^0  men  (jnarrel)ing^  in  a  wnerrv*  one  of 
^*>^ik  nji  ihe  stretcher,  and  knocked  the 

k^«>wn;  in  bi^  fallinj^,  he  aceidentaUy 
t  itold  of  bis  adversary,  and  I  hey  both 
^  the  *vaii*r  together ;  be  tl»at  was  knoek- 
^  «^  was  not  swelled,  but  the  other  was 
Jaaijriy. 

*  ^Iow|iiir  affirms^  *■  That  it  is  not  reason- 
^in  Mrs.  Stout,  (bou|^h  drowned)  *  to 
^%  any  thinsT  but  froth-'  What,  will  alt 
fcl>«r  turn  tn  friiih,  that  a  d\  inaf  person  re* 
"ort' he  isdrowni^lf  It  is  a  paradox 
•li^w  contrary  lhit»  surgeon's  senliiuents 
tlie  imiversal  experience  of  the  Irarnetl 
kleamed  jmrt  of  niiinkind,  let  the  iia- 
judf^e.  11  he  had  consulted  Amhro«iC 
*y  ♦  and  hint  thought  him  a  rensonahle  man, 
pi<?ss  lie  woidd  liavc  bct*n  of  anotlu  r  opi- 
n  wb*i  sailli,  *  Ihe  belly  of  him  ihut  %Tas 
P^n  ill  alive,  viill  l)e?iwollen  or  puffed  up  by 
BNio  ol'the  wuter  thai  i^  cttutnitieil  therein.* 
pbe  whole  stress  of  this  g-entlemnu's  argu- 
B  Hceiiis  to  depend  on  a  stipposcfl  difference 
itlheri'  ifi  between  perttons  that  drown  them- 
llfes,  ftnd  iho«e  that  are  casually  suffocalcHl 
f  water  t  whereas  1  am  apt  to  iluuk  there  is 
tie  more  dtffert^ncet  than  bclHet  n  him  who 
III  ih«?  halter  about  liis  own  neck,  and  one 
It  the  haniriiiuti  forceth  it  on  ;  there  is  a  pa- 
f  of  causies,  why  the  effects  in  the  same  spe- 
hi^uhl  extremely  difter,  is  more  than  my 
lleet  c»n  comprehend  :  in  Ixith  I  con- 
,  Lluit  in  lens  than  a  minute,  their  rational 
uHy  ia  to  esrretfinudy  distorted,  ihattiotbing 
Ispifrregutailyi  or  by  ita  dictate^. 


I      The  verity   of   his  private  experiments,   I 

doubt,   l*ecauNC  when  he  m&de  a  nublic  one«  it 

infmuely    conlradtctcil    bis  clande^ine  ooca. 

Thi»re  is  n  vast  difference  in  drowning  a  creji* 

r  ture  in  a  tub,  tim^  m  a  river  ;  in  Biolcing  biru 

'  with  a  weiiibt  tied  lo  him,  and   pcrmittiufi;' him 

1  to  sink  by   his  own  ffnivily.     1  am  not  ot   opi- 

I  nion,  that  it  is  ridiculous  to  expect  water  in  tli6 

cavity  of  tbctfior.ix,  thoogh  the  hm\rH  had  not 

I  aufferefl  an  inipt^slhnmation,   or  the  like,  for 

reasons  formerly  assitjned. 

Dr.  Orel!  saitli,  He  shall  only  insist  upon 
what  Ambrose  Pa rcy  relates  in  his  chapter  of 
renunciarions^ne  tells  us,  *  That  the  certain 

*  sig^n  of  a  man^s  f>einG^  drowned,  is  an  apfiear- 
*ance  of  troth  about  his  nostrils  and  mouth  ; 

*  which  could   not  l>e,  as  he  declnres,   if  the 

*  person  had  been  strangled,  or  otherwise  killed 

*  before.*  For  the  confirmation,  or  cont'nta- 
tton,  of  these  nositire  assertions  of  this  learned 
doctor,  i  shall  {jive  you  the  verbal  expressions 
of  Ambrose  Parey  :  <  Whosoever,'  saith  he, 
'  is  found  ile:id  in  tlte  waters,   you  shall  know 

*  whether  they  were    thrown  into  the  water 

*  alive  or  dead  ;  for  atl  the  htllv  of  him  that 

*  was  thrown  in  alive  will  be  swelled  and  puffed 

*  up,   by  reason  of  the  water  that  is  contained 

*  therein  ;  certain   clammy   excrements  come 

*  out  of  his  mouth  and  nostrils.^  In  the  fore* 
goin^  parofrniph  he  gives  you  the  signs,  whe- 
ther OOP  is  banged  dead  or  alive  ;  liia  formal 
expre»sinDS  are^  '  If  he  was  han^iped  alive,  there 

*  uiU  be  a  foam  about  hii>  mouth,  and  a  foamy 

*  and  fih  by  matter  hanging  out  of  his  nostrils,* 

ClUerve  this  author^  whereon  he  only  insists, 

saith.  There  i^  a  toam  and  tilihy  matter  about 

the  Diouth  and  nobtri!sof  tlicin  that  are  hanged 

alive.     Now  whether  froih  at  the  mouth  and 

I  nostrils,  is  a   certain  sij^Ti  of  a  man's  being 

tiruwned,  or  whether  it  is  not  incident  to  per- 

^  sons  that  die-  of  oilier  diseases,  any  physiician  can 

easily  determine  P  If  you  will  be  pleased  to  read 

t*au)us  Zachieus*sQua?stiones  ]\ledico-Legales« 

I  oa  the  same   subject,   you  may  fmd  that  Ue 

I  agrees  with  Aintjrose  Parey,  That  an  appear- 

I  attce  of  foam  about  the  nostrils  and  mouth,  is 

j  no  certain  sign  of  drowning.     By  such  positive 

I  assertions  of  the  learned,  how  easily  may  the 

iii^norant  he  imposed  on  ?  Oy  this  you  may  evi- 

I  denily  see  the  difference  between  a  witness  on 

lus    parole,  as  this  gentleman  was,  and  0Qt» 

''  u]Min  hU  oath,  as  the  king^'s  iiere. 

I      Mr.  Herriot  being  asked  by  Mn  Cowper, 

what  observations  he  had  made  concerning  this 

matter?   answered,  *  When  1  was  a  2»urgeon  in 

*  tlic  tleet,  1  tnado  it  always  my  observatioi^ 

*  when  we  threw  yten  over* board,  that  were 

*  killed,  some  of  them  svvam,  and  some  sunk.* 
Then  being  interrogated  by  the  jud^e,  *  When 
*a  body  is  thronn  over- board,  doth  it  sink  or 

*  swim  1*    his  answer  yras,  *  [  always  observed 

*  that  it  did  sink.'  What  incoherence  is  here  ! 
First,  *  f  made  it  always  niy  observation,  when 
'  we  threw  men  over^mard  that  were  killed,  some 

*  of  them  swam,  and  s»ome  sunk  :*  and  almoiit 
in  the  same  breath  saith,  *■  I  always  observed 
'  that  it*  (a  dead  body  thrown  over-board) '  die) 


II  wiLtiAM  ra. 


IS"] 

'  sink.*    \  am  apt  to  ta  of  Mr.  ilerfiol'i  miod, 

^it  to  )h$  fiffit  asficrliop,  Tb&t  Dien  kiilf?!]  in  a 
figbt  beJHg-  tlirotta  over-liofliriJ,.  srime  of  lb  cm 
silok,  fitlierg  swam  j  tUose  wlicuMsbrciifel  ttiitl  beHy 
are  no  ways  iujured  iloiit,  but  ihi^se  wthasebreiiflt 
nird  btll^'  ure  iserforuted,  so  lb  ill  v  atfi  y^els  i**io 
their  cavmes  ilirougb  lUe  wouail,  I  iluabt  nwl 
but  ibey  wilL  5bk» 

Mr.  Bartleit  Id  Li  jou  ^  He  never  saw  aoy 
bttdy  float,  lUougli  be  bad  been  m  seveiiil  e«- 
^aoiements.'  It  is  reiy  probable,  he  kept  kisa- 
Keif  all  that  titn^  m  the  Cix:k-pitf  and  it  uiujf  brr 
lo^if  after  dressing  the  wuu tided  j>epsons.  The 
fittest  persona  in  this  cme  to  giie  ib«ir  obser- 
vation, arc  officers  and  seam^ti,  Mr  ho  are  al- 
wars  upon  deck,  and  oAen  obliged  to  bok  (»ui; 
and  not  ^mrj^c^ons,  Mf[m  are  alt  the  time  of  en* 
g^rmcnt.'i  secured  in  the  Loid  of  ibe  ship* 

Mi\  Cftinlin  smith,  *  There  never  vveretnpre 

*  and  greater  t^i^ns  of  the  stiignation  of  hLood  on 
^  the  bod^  of  this  child,  thau  od  the  body  of  Mrs. 
<  ^liiiit/     But  on  u  bat  parts  thts^c  ^  more  and 

*  greater  signs*  were,  iv bother  on  the  breniit^ 
billy,  6ec>  not  one  word.  The  owther  of  the 
chiid  assorts,  there  wa*  not  t\m  least  sign  of 
inv  ^ta^nntion  of  blood  on  aoy  paj*t  ol  bor 
cbUd ;  8b e  bavbg  laielv  h&d  the  snmll-poxt 
her  face  where  the  smiill*uox  bad  Bujc«4,  was 
ik;iUi(?wbat  discoloui-ed  ;  Tkut  it  waa  no  uQore 
^iscolotircd,  after  her  droifinlogf,  th&n  itnsi'd  to 
be  (wben  &ht  Mt&s  cold)  before  her  death  ]  tbe 
soil  of  the  water  doth  generally  alter  the  tkces 
pf  people ;  ^o  Mrs.  Stout  was  not  known  by 
htt  neighbours,  till  that  was  friped  o^.  The 
settlefneiits  of  blood  on  BIrs*  8tout  were  dts- 
per^dljr  on  ber  eav,  both  sided  of  ber  neck, 
nreaGtt  arm  i  hut  on  what  part  of  the  child't> 
body  tliese '  more  and  gteatcr  sififna  of  &ia§f* 

*  nation'  vrere,  ha  doth  not  specify  \  because 
liad  be  assigned  anj  particular  ptace,  tliere 
ivere  several  present  that  would  have  coutra- 
dicted  him.  General  teriu!!  are  die  fittest  covers 
for  fal^Jiood. 

If  this  gen  tleu  Oman  was  not  drowned,  as  the 
doctors  and  surgeons  fni'  the  prisoners  seem  to 
tu^nutite,  tbe  qja^ty  then  witl  be,  liow 
fthe  came  to  bdr  end  f  With  submission  to 
|>etterjndgntc[its,  t  shall  here  o^er  my  private 
lentiinents  concerning  it.  I  am  induced  to  be- 
HevCf  sbe  wd£  knocked  down  with  a  blow  on 
ber  Wi\  ear^  from  the  large  settlement  of  blood 
tbere,  which,  as  Mrs.  Kimpson  swearsi  w^  as 
much  as  ber  hand  could  cover,  and  more:  AAer 
she  WBfi  feliert  to  tbe  ground  by  the  blow,  it  is 
probable,  with  the  gripe  of  a  strong  bandt  she 
was  ibro tiled ;  From  the  stagnation  of  blood  on 
Ikitb  sides  of  her  neck,  under  her  ears,  which 
jilr*  John  Dimsdale,  jnn.  swears  there  wa», 
and  from  the  (settlement  of  hlood  on  her  breast, 
I  am  incltned  to  heUeve,  that  the  person  that 
throttled  her,  to  support  bis  hand  that  be 
might  gripe  the  stronger,  rested  his  arm  on 
her  breast,  which  occasioned  the  stagnation 
there. 

Tbe  circumfttanccs  that  induce  me  to  think 
the  was  not  acceasary  to  her  own  ileath,  ore 
thefie  folio^riog  :  Uer  betng  found  wilbout  htr 
3 


trial  ofSpmeev  Covptt  and  ulhtn, 


qfSpm 


gown  (wbicli  probably  wb»  tc^ra  in  tk  ie4i) 
and  nightrail:    her  gown  ooiikl  )3«thi:M| 
though  tbe  river  was  dilk^ily  nkdftTw' 
tapes,  until  about  a  we^  before  tlie  Ui< 
was   thmid  banging  en   a  atMis,  ttid»  L. 
miller  had  cleaned  from  thetnriilltfl^| 
i»n  it  aliout  hall  an  hour  Urfafe^iadbf  vil4f^ 
pose  that  it  was  not  tb^re  then  i  tt  mmi 
rags,  ^vhhout  one  of  it^  sleev^  Miaeptilfi 
wereus  rotten  as  dirt*  <»f  her  firm ;  ymmMlm 
it  (which  wai  made  of  a  soit  ol  ^^urwiaiA 
and  the  lining  (iv  bich  was  a  filk  damaA)  lii 
your  fingers,  as  1  did  i    Query,  Wbri^isf 
or  £ilk  will  niiturally  rot  so  soon  iintkr  miff 
Here  is  no  news  of  her  nightrad  yd.  t,  fil 
her  fioating;    w hereof  I   iii»U  ntidiiiik,  b 
cansf;  it  is  sworn  h^^  several  itiifie&Hai.   3  Bl^ 
<'an%e  her  belly  »**«  not  stvolk it.     A,  btxtm 
no  water  canie  outW  her  when  Mk4«tfdf 
tbe  rif  er,  nor  purged  out  of  btr  aticrw^ 

5,  Biiivaiifie  her  inward  parts  wtrt  e«l  f*> 
Iknl,  thougb  her  on t ward,  thai  bad  mmit 
jureil,  were  ?  Wlmh  I  aupp^te  i»W  iMfsrii 
tbey  Hhonld  bave  continued  so  46  ^  ilf 
ber  death,  had  there  been  any  naliriiitf 

6.  Frfim  the  i^veral  dintinet  attlliagi  d  blMi 
which  is  tinusanl  in  drowned  peitoirf  i  If  is 
been  occasioned  (as  iocne  may  ilM)iatfl 
blow,  which  she  received  when  ihuilirr»i# ' 
sdf  iOp  I  nm  subject  to  ItebeveT  tiMt  tk  i^ 
oes^  of  the  watt^r,  iu  the  month  of  Mi^ 
would  bave  hindered  its  settlemifnl  m  lU^ 
taneons  parts  of  the  bod  v.  as  it  w  gei»ti^ 
ohserved  to  do  j  for  wfaat  b  morE  teaaA; 
than  to  dip  a  linen  rag,  or  a  pi«w  ui  )«• 
paper,  in  cold  \\ater,  and  apply  to  s  In^ 
part,  to  binder  the  hlood  from  settling  the* M 
From  tbe  continual  disturbance  that  Mfi.  ti«' 
rcy  » Eis  under,  both  in  mind  and  bodv  :  ^W 
the  less,  she  woukl  not  discover  it  till  ibt  vj 
almost  frighted  out  of  ber  aens»i  by  ihe  fm 
as  she  thought,  of  Mr^.  ^f^ut,  if  hicb  utM 
these  words,  '  lllvulge,  conceal  notbiaf^'  K 
From  what  h  sviom  by  the  Gumff*  ^^^ 
their  lodgers  at  the  trial,  viz.  *  Mr.  Utxtm^ 
*'  hot,  and  put  hy  his  wig  ;  I  see  bis  1>^^ 
'  wet-*- — they  came  in  about  1 1  aad  li^M 
* Bshc  turned  me  off,  but  a  frivnd  of  bW 

*  will  be  even  with  her  by  tliis  tim*' — ^W 

*  business   was   done — >-^l]o   nouhl  paiBi  U 

*  word^  Mrs.  Sarah  8toitCs  court] ng'dd\«  v^ 

*  over^ Tbe  use  money  is  paid  to*nigtfc-* 

*  You  have  forty  or  fifty  {wunds  for  your  ihil 

* Asked   bim,  Wliether  tbe  bunaesi  >> 

t  done  ? And  he  answered,  he  kbtrrfj 

^  wa«  ;    but  if  it  was  not  done,  il 

*■  done  to-night^-^-Fulieti  a  bandfd  of 

^  out  of  his  pocket,  and  swore,  i 

^  it  aH  fur  joy  tlie  business  wis  dOoe.^ 

llie  sentiments  of  the  grand  jury,  ^\^0t  ^ 

a  nice  examination,  were  of  an  n^i^M 

she  was   inurdf^red  ;    as  were  setatf' 

petty  jury,  buthy  wbotnthey  ihdn4 

As  to  the   letters  produceil    fQ 
thoughts  itrn^  they   are  not  nf  a  i«§r 
uf  a  spurious  production.     1*  Beoi^ 
doth  no  w«ty  iuit  bet 


ndfd  of  niV 
tone.'  9,  m 


cbwactw.  4 


Joy  the  Murder  of  Mrs.  Sarah  Stout. 


A.D.  1699. 


[lSf4 


lierdolh  affirm,  the  letter  sbewn  her 
fras  of  a  amaller  character  than  ever 
srred  her  dau^ter  to  write ;  neither 
•V  brother  think  them  to  be  genuine. 
uae  Uiere  waa  no  mention  made  of 
itten,  till  the  oommon  report  of  her 
rith  child  (which  had  been  industrionily 
•brand  by  aereral,  but  by  none  more 
1y  than  by  a  nominal  Quaker,  her 
m  admirer)  was  proved  to  be  utterly 

Ltbe  oath  of  several  doctors  and  sur- 
It  had  opened  her  body.  4.  Because 
ama  ana  Mr.  Archer,  on  the  trial, 
[tad  several  of  the  ooroner's  inquest  were 
io  swear)  that  Mr.  Cowper,  before  the 
r's  inquest,  being  on  his  oath,  deposed, 
Mrs.  Stout  was  a  modest  person  ;  that 
i  not  know  of  any  thing  that  was  the 
of  it'  (via.  her  death) ;  '  That  he  did 
BOW  any  person  she  was  in  love  with, 
*  one  whose  name  was  MarahaH;  and 
larshall  told  him,  that  he  was  always 
nd  by  her.'  Whether  this  oath  is  not 
tieaUy  oppoaite  to  his  pleadmgs  on  the 
rou  may  determine.  5.  Because  they 
insist  on  these  letteri,  when  Mr.  Jones 
Indeed  they  have  produced  some  letters 
at  a  name ;  but  if  they  insist  upon  any 
against  her  reputation,  we  must  call 
itncsses.'  If  the  witnesses  then  present 
1  (who  wen  seme  of  the  most  reputable 
town)  had  been  called,  to  sneak  to  her 
bn,  a  great  deal  of  that  dirt,  tliat  is 
Bt  upon  her,  would  have  been  wiped 
cannot  but  take  notice  here  how  seem- 
nwilliug  he  was  to  expose  the  weakness 
gentlewoman,  or  to  meddle  with  her 
Dad  he  not  those  innocent  gentlemen  to 
;  wlien  before  her  death  1m  had  shewn 
>  Mr.  Marahall,  a  repulsed  k>ver,  and 
rtber,  and  after  the  trial,  the  printers, 
\  the  trial  did  not  take  them  in  short 
iwe  fiiioured  with  them,  to  be  exposed 
wM»  world. 

liconoems  her  melancholy.  I  am  bdnced 
ivey  that  she  vraa  no  more  than  is  incident 
aople  that  are  sickly,  or  much  troubled 
he  head  ach ;  from  what  her  maid 
p  « That  she  was  ill  sometimes,  and  1 
ted  it'(nMlaiicholy)  *  to  her  illness ;  and 
w  no  other  cause.'  And  Mrs.  Walker 
■art.  That  Mr.  Cowper  told  the  ooro- 
iqoMt,  That  he  did  not  observe  her  any 
■eiancholjr ;  thai  he  should  not  have 
■aliee  of  it,  had  not  such  an  accKleiit 
Md ;  only  now  he  remembers,  that  she 
Mao  free  in  discourse  at  dinner  as  somc- 
iha  med  to  be ;  and  tliat  the  discourse 
raa  oUotly  between  him  and  her  mother. 
lather  aad  brother  do  affinn  they  never 
ad  her  melaBcholy,  and  all  her  intimate 
MMN  do  assert  the  same :  It  is  much 
aaa  tot  this  gentleman's  sister,  and  two 
saatfa^a,  devoted  to  a  party,  shonldob- 
ithmg. 


.  Fna,  hie  mfc,  and  several  others  tliat 
b  her  company,  with  Mr.  Taylor,  do 


affirm,  thai  alio  did  not  say  her  head  cloths 
wouldserve  her  time,  or  any  thing  like  it,  and 
that  they  ealeemed  his  discourse  with  her  pure 
banter ;  that  she  was  in  her  night  dress,  and 
presently  went  home  and  put  on  dean  linen :  I 
am  apt  to  think  there  are  many  relations  and 
friends,  bigotted  to  a  party,  that  will  not  bogle 
to  tell  a  lye,  to  save  a  friend,  or  near  relation 

from 

The  atteinoon  before  her  death,  she  was  ob« 
served  to  stand  to  see  the  judges  make  their 
entrance,  with  her  iriends,  as  brisk  and  airy  as 
any  there :  About  four  hours  before  her  death, 
asl  am  told,  she  was  in  company  with  a  knight 
of- that  county,  and  several  others,  who  ob^ 
served  her  to  he  as  merry  and  pleasant  as  any 
amongst  them  :  At  nine  at  night,  she  earnestly 
importuned  a  young  gentlewoman  of  that  town, 
to  tarry  and  lie  with  her  that  night,  as  she  had 
formeriy  done  several  times ;  which  she  re- 
fused then,  for  some  particular  reasons.  When 
Mrs.  Stout  perceived  she  would  not  tarry  all 
night,  she  mvited  her  to  dinner  next  day, 
and  told  her  what  she  had  provided,  and  that 
she  should  be  glad  of  her  company  ;  not  in- 
tending to  go  out  of  doors  the  next  diay. 

I  am  ant  to  think,  that  if  she  had  been  such 
a  furious  lover,  as  is  pretended,  or  bad  any  in- 
tention that  night  to  destroy  herself,  that  she 
would  not  bare  fallen  out  with  any  body  about 
the  payment  of  money  ;  much  less  bare  re- 
fused to  sign  a  receipt  *for  tix  pounds,  which 

her  d st  had   prepared  when   he  paid 

her  the  interest  money  ;  what  was  the  true 
cause  why  slie  refused  to  sign  this  receipt,  is  a 
riddle  to  most. 

If  she  had  so  great  a  kindness  for  some  years 
ftnr  this  Joseph,  as  is  insinuated,  cprtainly  his 
wife  would  liave  observed  sonietliing  of  it ; 
and  then  she  would  not  be  importuning  her 
every  month,  by  her  letters,  to  come  to  London, 
that  she  might  enjoy  her  sweet  company  : 
neither  M'ould  she,  in  all  probability,  (if  she  had 
been  so  de.sperately  in  love  with  him)  have  lived 
here  several  months  together,  without  his  com- 
pany, even  when  importuned  by  his  wife; 
but  would,  as  we  may  reasonably  conjecture, 
hare  resided  in  your  city,  where  she  might  the 
ofVener,  and  more  privately  have  enjoyed  bix 
company :  and,  as  for  her  going  out  at  the 
window,  it  is  morally  impossible,  the  bars  being 
so  close  together,  that  a  child  of  a  year  old 
cannot  get  out  between  them ;  neither  was 
there  any  occasion  for  it,  the  keys  being 
always  leh  in  the  doors. 

Because  there  is  no  mention  made  on  the 
trial,  of  the  missing  of  any  of  her  money ; 
several  are  apt  to  report  that*  her  relations  want 
none  of  it,  which  is  a  grand  mistake }  for  they 
want,  as  they  comjiute  it,  at  least  a  thousand 
pounds  of  her  original  fortune,  besides  the  im- 
provements she  had  made  thereon,  which  were 
considerable;  they  made  little  mention  of  it 
there  (that  was  taken  notice  of),  because  their 
evidences  that  could  speak  materially  to  that 
point,  were  Quakers,  whose  affirmation  will 
not  be  taken  in  criminal  crses. 


nil]         U.WIUIAMIIL    .    Tria^S^Mi^a^imdiakt, 


L  Tbe  lait  Mvia&tfi,  1i«re  wii  a  man  liangciL ; 
mllor  be  wm  t\tm\^  was  cut  domin,  and  barieti 
%itlbovl  a  KnBn,  tli^  grave  filled  up,  and 
tlw^  i*»itl>  w*Hl  ihHl  dowu;  in  iJie  evening  lie 
wn«  tfig^i^il  ijji  *g;nin,  beitig"  prcssc^l  jilinost  ^ui 
Vy  lh«  wiri^ht  of  tbt;  eailb,  ff»E  privately  casi 
into  tlKM^vcTf  aiift  wlien  it  was  obfierti^d  that 
itUr  crtrpse  *vould  ^iiik,  ii  wajiexjio^ed  to  puhbc 
vie^v,  »nil  an  mkerti^ernetit  of  it  was  |iritit*?il  id 
lb«  Pti^tuiHiif  tlte  25tLi  of  July  lant^  irilb  a 
greil   fcUcw  of  e^tiiliaiioti,    by   tbeir  sayiiigf 

*  Mtiuy  IiMoilrtids  baling  R^en  tbb  e^ieiiofieai 

*  wiib  Ihcir  n^rn  eyes,  llie    upiniaos   of    the 

*  iurgi^oiiii  |iro<hieeti  on  tba  part  of  Ibe  king[  k 

*  iberrby  d€*trii>eii  and  exploded,  and  a!l  [la-- 

*  Ititis  c?4mf  bcttl  of  (he  contrary  :*  >Vbat  influ- 
•nc(9  tbb  c*x(HMitneiit  may  ^i  a  re  mi  you,  1  knaif 
not ;  but  i^iivu  iiW  tbe  circuuisiaaoi^s  altaQdiD^ 
il  «re  ckily  eouKutert'd,  J  am  of  n piston  it  will 
tUMke  lyixe  a^^iitt^l  tliemitb«ii  Ihdr  opposil^i  r 
If  tiiry  hail  tHH^Ev  ccriab)  af  ^ui^f^eifSp  t^hat  need 
of  so  nnicb  art?  IVIiv  did  tbey  not  insert  in 
tbeir  ad¥^rti»enient^  naw  the  body  had  been 
managed  before  it  w^  tiirowo  into  fbe  water, 
liowr  tbey  opened  H  after^vards,  aiicj  bow  they 
made  a  strict  s^^rutiny  atler  water,  yet  could 
tioi  find  a  drop  in  it .  Not  one  word  of  tbb. 
Ihlfrtliiuks  this  pDrtial  relation  i«  calenlated  oa 
pur(»ose  to  magnify  their  own  eridcnces,  and 
put  a  slur  on  the  klng^s. 

1  doubt  nnt  but  (he  ingetiiouft  contrtrera  of 
this  expriment  did  not  ooly  eicpec^i  it  would 
ainkf  but  tbat  It  woidd  hate  some  water  in  it 
also.  I  am  apt  to  ibttik  it  rt^fi^onfible,  to  ex* 
pect  thai  tiM  w^hi  of  the  earth  would  have 
drif en  out  the  wind  contained  in  the  cafit]^  of 
the  breast  throafl^h  the  wind -pipe,  which  is  im- 
possible  to  be  done  without  lAiing  up  of  the 
epiglottis,  which  continually  closes  the  mouth 
01  The  aspera  arteria ;  but  in  expiration,  this 
being  once  forcibly  removed  out  of  its  natural 
situation,  it  was  rery  likehr  that  it  would  not 
cover  itaffain  so  nicely,  but  that  some  small 

aoantity  of  water  might  insinuate  itself  through 
lie  small  passages,  which  the  violent  forciofl^ 
out  of  the  air  had  made :  If  thb  had  suoceedecl, 
what  a  triumph  there  would  have  been,  you 
may  easily  determine. 

Some  weeks  since  a  soiveon,  that  had  been 
an  evidenccat  the  trial  at  Hertford,  going  into 
a  bookseller's  shop,  meeting  some  acquaintance 
there,  he  fell  into  discourse  about  Mrs.  Stout, 
and  asserted  there,  what  he  had  affirmed^  the 
trial,  viz.  *  That  two  or  three  ounces  of  water 
'  will  drown  a  dog> :  One  of  the  company  told 
him,  *  He  could  not  conceive  that  so  small  a 

*  ooantity  would  do  the  business :'  He  replied, 
'  Sir,  I  will  hiy  a  guinea,  that  I  will  drown  a 

*  dog  in  the  river  or  Thamea,  and  he  shall  not 

*  have  above  three  ounces  of  water  in  him.' 
The  proffer  was  no  sooner  made  than  accepted, 
time  appoiotedt  dog  brought,  and  with  a  weight 
tied  to  his  hiiuler  feet,  flung  into  the  river :  some 
time  afUr,  be  was  taken  out,  and  dissected ; 
where  instead  ef.  three  ounces^  there  was 
dbout  thtrty-tiirfe;  whereby  be  not  only  lost 
bis  wager,  but,  in  a  great  measure  bis  reputa- 


ia  thfi  ccmlrary  on  the  trial. 

Having^  in  fMUne  mt^ama,/  ^ 
coiiiii>4ndSf  though  by  ii|  I  have^ 
a  Utile  loo  oioeU  trc^|iai«aed  on  you 
fihail  take  httle  tioiice  un\r^  wbat  cm 
alieratiiins  there  are  in  the  priflteil 
1^1  r.  8te|fbei>^  nas  t^kpnvi  hb  astra 
fit,  (juat  oiler  the  petty  jury  wentou 
turbed  the  whok  <x»urt ;  or  bow  a  w 
Soulbwark  (wlm  came  clown  «0  wm 
the  pnso tiers)  feW  bto  a  sott  if 
and  all  the  time  uf  the  trial  was  a 
couiposed  10  hi»  mindi  so  that  be 
be  tied  in  bed^  yet  wouTd  oftfu  i 
trial  wentf  aoiJ  whether  tbey  wen 
cleared  ;  and  woulil  otlen  tell  t)ie  i 
him,  that  be  bad  done  a  vtry  bail 
would  not  coafass  what,  though  oft 
it :  but  shall  concluile^  desiring  tbal 
of  this  horrid  iii order  mi«y  he  d* 
brought  tti  eontli^  punialimeat ; 
the  ionoeent  tnay  be  cleared  from  al 
thrown  undeservedly  on  tbenj^  wbj 
aott  but  that  the  Ureat  Jehofab^ 
litne,  will  bring^  to  jHtss ;  and  th»l  li 
shall  be  the  daily  prayers  c^  iir,  yi 
servant.  .    r. ' 

Hertford,  ^epl.  4i  l€f99.  t 


I  doul)t  net  Intt  you  have  be&rd,  ll 
tlemen  tbit  opened  Mrs*  Sarah  §ii 
did  dqioae^  that  she  was  a  vir^n  ^  t 
formation,  I  will  i^ive  you  a  true  coj 
certificate,  which  ts  as  foltoweth: 

Hertford^  April  m 
*  We  whose  iiAmes  an;  here  und 

*  having  examined  the  body  of  1 
*■  Stoutt  deceased^  do  find  the  ntera 
(  free  and  empty ,  and  of  the  nainral 
^  magfuitude,  m  usually  in  vii^ins. 

*  no  water  in  the  stomach,  iuteatiiio 

*  [unga,  or  cavity  of  the  tbora^E. 

JoH»    DlXflOA 

Robert  Pims 
John  Dimsdi 
WlLUAM  Co4 
Samuel  Cam 
Daniel  Paiu 

Ailar  thii  certificate  was  delivicci 
lationSf  tbey  de&ired  the  gentleiDC) 
signed  ii^  to  give  their  o^^nioos,  wi 
thought  she  wa«  drownerl  or  cof  A 
vt^n;  uiiauinious  that  &he  ivaa  mi 
ejccept  ]>lr,  Camliu^wbo  was  uuwfll 
hj^  (tpiuiou,  either  pro  or  con ;  Miff 
wotty  only  anv,  *  There  vfemw^ 
cm0istanee»  :^  i^  at  last,  wbi«biil 
whether  he  did  eooceiie  Miy  ptM 
drowned,  that  had  no  water  iajM 
intestines^  abdome^,  luugi,  .mtjS 
thoratf  He  replied^  ^Bfjm 
thought  TirtiTilly  taJTlWtjJil 
bad  said*  ,  .^  ^^ 


^  the  Murder  of  Mrs.  Sarah  Siout. 


A.  D.  1699. 


[1818 


ro THi  HERTFORD  LETTER: 
IB  Case  of  Mrs.  Stout's  Deitu 
I  particularly  considered;   and 

>WPER  VINDICATED  FROM  THE  SLAN- 
ACCUSATION  OF  BEINO  ACCESSARY 
SAME. 

your  letter  from  my  bookseller,  on 
^utember  last:  And  thoiig;h  I  aip 
inkiD]^  voar  sentiments  upon  this 

either  desired  or  commanded ;  yet 
uouffh  pleased  with  your  apology, 
I  tell  us,  you  are  yery  sensible  of 
weakness,  and  how  uD6t  you  are  to 
controTersy,  Ace. 

lUst  confess,  may  be  of  some  use  to 
:,  b^  forestalling  their  ezuectation 
lerful  discovery  ;  but  for  tne  learn- 
pliment  might  have  been  spared, 
rformance  does  so  evidently  dis- 
f  ou  acknowledge, 
oduction  does  indeed  promise  ns 
!rs,  viz.  *  I  shall  give  yon  my 
concerning  the  natural  cause  of 

floating  of  dead  bodies  aflerwards ; 
IS  sentiments  of  the  doctors;  the 
'  her  4leath ;  tlie  letters  produced  in 
r  melaocholiness ;  why  no  mention 
of  the  money ;  and  lastly,  concem- 
iblic  ex|)eriments,'  Sec* 
1 8ir,  if  we  find  your  thoughts  arise 
ultitioD  of  a  heated  lancv,  and  that 
^r  zeal  for  your  friend  has  carried 
aes  to  over  hasty  conclusions;  if, 
well-grounded  and  rational  solution 
enonoena,  we  are  only  entertained 
front  expressions,  false  grammar, 
groundless  surmises,  and  want  of 
word,  if  these  pregnant  thoug^hts  o£ 
bund  to  be  onere  trifles,  had  it  not 
jrourself  alone  had  been  still  master 

Or,  if  there  was  a  necessity  for 
ng  out,  had  you  not  better  have 
tM  them  only  to  your  friend  in 
an  to  have  exposed  yourself  thus 

to  the  learned  world  r 
My  make  good  what  [  have  alledg- 
low  proceed  to  your  letter.     *  It  is 
observation  of  most  people,  not  used 
cc. 

leave.  Sir,  here,  only  to  question 
your  proposition,  whether  or  no,  the 
nber  of  those  who  are  not  divers, 
any  observations  upon  drowning,  or 
iwn  ex|»erience  can  satisfy  us  of  the 
»n  that  ensues  plunging  themselves 
ttt?  But  admit  the  conrusion  (as 
ibc  it  is)  to  be  very  great ;  it  may 
bitow,  that  the  very  first  moment  of 

reason  must  be  lost :  or,  in  your 
,  that  *  there  is  a  moral  impossi- 
•galatfi  their  actions  by  the  dictates 

e  Ityipg  bold  of  any  tiling  in  their 
III. 


way,  it  is  what  equally  happens  in  the  fall  from 
a  house,  and  seems  not  so  much  to  argue  a 
total  eclipse  of  the  rational  faculty,  as  a  want 
of  time  to  deliberate :  lor  the  action  of  falling 
being  instantaneous,  it  b  impossible  to  form  a 
settled  act  of  judgment 

We  all  know  the  prospect  of  sudden  death, 
by  what  way  soever,  impresses  a  certain  horror, 
(which  I  must  yet  think  is  not  so  great  to  one 
who  wilfully  destroys  himself,  as  to  him  who 
either  by  accident  or  constraint  is  pot  upon  it) 
but  that  it  leaves  us  immediately  destitute  of 
choice,  or  a  power  to  refuse,  both  which  are 
acts  of  free  will,  and  import  reason,  1  cannot 
allow ;  as  conceiving,  if  it  were  so,  he  that  wil- 
fully throws  himself  from  a  house,  and  he  that 
falls  accidentally,  would  both  eij^ually  lay  hold 
of  any  thing  that  might  save  their  fall. 

*  In  this  confusion'  (you  say}  *  it  is  no  ways 

*  surprising,  that  water,  wherem  they  are  im- 

*  mersed,  should  insinuate  itself  into  some  va- 

*  cutties  no  ways  adapted  for  its  reception.' 

On  the  contrary,  I  must  altedge,  that  whe- 
ther in  or  out  of  this  confusion,  it  is  not  only 
very  surprising,  but  absolutely  impossible,  that 
water  should  insinuate  (though  never  so  cun- 
ning), or  enter  into  any  cavity,  which  is  at  the 
same  time  no  ways  fitted,  or  (if  you  had  rather) 
adapted  to  its  entrance. 

I  will  not  stand  to  comment  on  your  notran 
of  suction  ;  I  thought  such  kind  of  notion  had 
been  long  since  exploded :  For  my  own  part, 
instead  of  believing  that  the  lungs  do  auck  in 
the  air,  I  think  it  more  rational  to  conceive, 
that  as  by  pulsion  they  are  emptied,  so  by  the 
weight  of  the  air,  froih  the  pressure  of  the  at- 
mosphere, they  are  presently  filled  again.  B« 
this,  however,  as  it  will,  1  cannot  grant  you 
that  every  man  under  water  swallows  down  the 
same  into  the  gullet  whilst  his  senses  continue: 
For  I  doubt  not  but  that  he  who  designedly 
drowns  himself,  may  choose  to  let  it  into  tb« 
windpipe,  that  he  may  thereby  the  sooner  %% 
choakM. 

The  swallowing  of  air  or  water  down  tha 
windpipe,  is  a  term  1  do  not  readily  apprehend ; 
1  take  deglutition,  or  swallowing,  which  is  the 
sole  oflice  of  the  gullet,  and  respiration,  or 
breathing,  which  only  appertains  to  the  wind- 
pipe, to  be  two  different  actions,  and  diversely 
effected.  Whoever  swallows  any  thing,  either 
in  or  out  of  the  water,  must,  by  opening  the 
sphincter  of  the  gula,  let  it  into  the  stomach : 
and  whilst  a  person  under  water  continuea 
swallowing,  there  may  be  no  great  danger  at- 
tending him  of  being  drowned;  it  being  very 
probable  that  during  this  action  no  water  gets 
into  the  lungs  ;  but  lieing  unable  to  hold  out  for 
want  of  breath,  he  must  necessarily  make  an 
attempt  to  respire ;  when  ceasing  to  swallow, 
the  cpiglot  riseth,  and  the  water  spontaneonsly 
(if  you  will  allow  me  the  expression)  rusheth 
on  the  lungs :  so  that  when  a  person  is  totally 
submersed,  provided  he  swallows  not  at  all,  or 
cannot  swallow  longer,  it  is  not  only  not  impro« 
bable,  but  I  believe  certain,  that  in  his  attempt 
to  respire,  a  fiur  greater  quantity  of  walm  than 

41 


■^^ 


m 


Iff S]  1 1  #i Ltl  AM  IIL         Tnat  ^Spmcer  Cmcper  m4  ^Asn, 

^r  (l>crti»p»  nothing  but  wrfttcr)  will  g^  into  f  |iv«fuia«t  •*«  full  liafane  iJ«y  ar« 
In  <  V4?ry  &^pul^0n  <if  &tr  out  of  th«  1unt(i« 


lill  isoi  iio»  1  wtMkli!  Kit  iitftmttedj  h  ev^y  sm- 
^uImou  ill  the  oil  iuto  thf^ai  ^ 

It  IK  mj  opiiiiou,  lliat  tlih  ^mrt  does  net er  «ir* 
ttcilj^  clom  \i\ioj\  I  he  l&rynv,  but  npon  ilcgtiiti- 
tlori :  ttod  iiUligii;{li  by  y4>ur  acc4iutit  it  m^y  be 
lUougtillubo  raiit?t}ii]>  Re  a  lrip*(fo(>r,  ind 
prrttfoUjr  fthiit  duH  n  A|fftin  ^  I  Jo  hnd  it  a.  sort 
«»f  it|irbjf  J  hody^  ttitil  is^  t  doubt  tjot,  itt  all  tifnet 
icimijwhut  HeviiM  H  uwi  ibe  i^toltii,  uolcsfi,  as  I 

l»>  till*  fvi'igtilof  tbe  alimetils,  w  belli rr  liquid 
i»r  Kuliij,  Ki*trie  (MT'Ciiltai:  i]Miv<:tes  aMiitidg,  It  is 
thrceti  duwii  ]  ani\  after  thU  action  h  of  cr,  by 
113  nnn  pnj|>rr  tlujiicUyv  (r  raisetb  iuelf  again, 
IliuUbc  siiaeitniKii c  iijJuKii*  cif  iri^ijimiiott  Aud 
expiraiion  luny  hv  orderly  carried  (in. 

\VbcA  oiice  iIk'Ji'*  is  ajiv  i:nfj*iik^mlde  qiitnlity 
of  wak*r  ff^it  into  ibc  v^iiiifpijn*,  1  ioiaipii^  tlin 
tnt||'bt^  ^trui^i^k  ol'  uattfrt  tbtli  tii^t  lua^  c^a* 
tinui'  ;  itid  tjK'R'fore  r^rtimoi  crbc^oae  hut  wonder 
10  beiif  you  to  siiy^ '  By  ibk  rtrnggk  of  nature 

*  tin?  i't>i*;loi  is  tiik'd  ujl^5c<J. 

It  atm-ni^  m  rrty  npifitou,  tery  natunl ;  the 
cover  tt>  Ibt^  i^iudpipe  bvb|C  ft  tipnairy  bod^. 
bod  lor  lite  ittubl  prt  iiu'lmm-f  itmu  borUomnl 
i»<j*SUoTi:  thiifj  1  s*y^  ctJU\iteed,  if  the  rnmiih 
be  full,  Mild  lb(^  ^H-ranii  nln40«t  ttpiit^  or  tht^itj^b 
bf  can,  y^l  if  he  will  nni  swaIIoiv,  the  oaturi^ 
of  all  lluidi  is  isucli,  lb  lit  tbay  viW  T*m  into  aoy 
d«c1i¥hy  \  utjk^»(ii9  upon  aiiutb^'r  account  you 
have  ii^  ihf?y  art?  shut  out,  uf  tbat  ibc  va^cuity 
m  no  Hray>,  adu|rted  to  let  ibetii  in. 

'  As  auon  an  Lhe  s^na^t  are  gone'  [you  say) 
'  Ibe  cjugrottis  is  kcjit  o|icn  by  tbe  forc«  of  ifie 
'  stream/  To  which  ]  re  ply » that  the  natural 
posture  of  tbe  epiglut  hAiig  such  as  I  have  de- 
scribed it,  vie  mii^bt  rather  tlitnk  tbe  foive  of 
the  stream  abouJu  chiti  it  liown^  lb  an  keep  it 
Ojjeo  ;  unless  hy  tbe  iorce  uf  Itie  streura,  you 
mean  sotneit  hat  jilfe  i\iM  of  an  injectiou  ibrougb 
&  large  syphon^  whereby  the  said  trap-iloor 
may  be  beat  within  tbe  nitinlu^  of  the  bryux ; 
hut  in  sttg-nanl  viptera  Ibe  forcfi  of  the  liireani 
will  be  loconsideraMe. 

'  As  lontj  as  the  senses  cantiiiue,  they'  (I 
suppose  you  mean  pergous  under  water)  ^  s^m* 

*  low  most  of  ibc  water  which  eomuB  into  their 

*  moulb«,j"nto  their  stomachs.'  And  ibe  i'«sl, 
you  tell  ilii  else  wberei  I  bey  siWaUow  into  Ibeir 
windpipes.  But  ihbi  I  deny ;  for  as  long  as 
tbe  seuset  coutinue,  and  they  can  hold  ilmr 
hreaib, tliey  rery  ofkin swallow  none  t  and  after 
tliiSf  in  lhe  caae  of  roluntary  drovvning  (vrbieb 
you  unty  smile  at  as  lon|^  as  you  please  J  it  is 
more  Hkety  by  far  that  tuey  admit  it  into  tbeir 
lungs  J  since  by  sw^llowiug  never  so  much,  they 
do  not  df^lroy  theuiscWesj  but  by  letting  a 
am  all  quautiLy  into  the  lungi,  tbey  presently 
put  a  pf  riotl  to  their  miserable  lives. 

*  Hut  wbeQ  they  are  near  suffocated*  {you 
aay)  *  the  water  runs  into  those  ducta  where  it 
*■  meets  with  the  l^a&t  re^iitaucc/ 

1  wonM,  metbitiks,  be  intormed  what  you 
meiui  hy  tbose  ducts*    Tbe  uos^  mii  tars,  1 


itK  entranee  inUn  t||#  ¥«Blllob^  wte«|« 
rem»iiia«  uule^  that  mi  liie  wttidfiftr  0Mrf 
which  too,  afk^  •isdbc^tion,  hh^oM  mpmik 
but  it  may  he  k^t%  by  the  ronliguitj  rf  ik 
ltiopi«'ii  U~34iQi  to  ibe  paT«le. 

^Ha  bing  as   life  couiiaiMa'  ^«o  yi  w4 

*  there  ia  n  coo?  Mlaire  strucegfiB^  of 

*  e%iie\  out  of  Ibe  Jungs  ^  CboK  Ihiaei  tow 
» imAious  to  I  hero,  ^pedaTly  waler,'  kg;. 

f#et  me  kit  yini,  Sir,  I  iun  *|it  to  ibiai  III 

doubt  not  but  any  tliioj;  of  a  more  ttaerfOls^ 
tiire,  Hipping  into  the  lifiigv.  will  eieite 
atfonffer  cocitulsloiu  itiafi  ihoMi  frdoi  i 
But  bdfiHl,  &ct»niiii£^  to  tome  nfmmm 
lately  uiadft,  f  eoul4  nfit  percrif  c  rhe  sm^4 
tbome  violefil  con^uUiori>  yon  hervipeik4 

I  took  a  doj*-,  ati4  by  a  w  ri^hl  liwtJy  ^ 
him  under  three  fool  of  watrr,  whkh  «i  • 
clear  that  I  euuUI  i^ercei*«  what 
hill)  r  and,  toti^  pTam  wtib  you,  I 
for  altnoht  a  minnic  he  lliri.*w  his  beid  ^ 
derly  abuni  beforr}  Itr  ^apcd  ;  ujhmi  vtWtdk 
water  i^eiting  iuto  his  %tu\dnipf,  b  Ittif  i# 
note  more  he  fell  down  with  hi*  nv<k  imkk^ 
loin,  void  of  sen  we  ahtl  mot  tun.     ¥iet  iiaj 
pluftgv*^!  anothrr  nouiCwbai  Ipsi ;  wb«*,i»% 
tnanoer  asthr  fonncf-r  t  i'ntm\  wlifa  U  hi 
turned  hia  neik  Iv^u  or  tbr«c-  tijitesi  ttl«i,  jl 
was  to  appearance  dead  in  a  minule'*  niw. 

Now  in  all  lbi»  there  weit  none  of  tiSMli* 
lent  efforts^  to  ihruw  the  wr.tef  md  d'tlie^ 
diicernihle;  or  did  I  ibink  it  aH  mtmiiUfl* 
pect  the  same  forced  into  the  caritiei  ''^^^ 
I  borax,  either  by  ih  latin  |r  ihe  pofe*  of  ^*2i     ^ 
membrane  that  investn  ibe  lungs,  as  aa^t^J 
is  forced  by  tbe  pressui-e  of  a  hftoi     "^^w 
a  piece  of  leather  ^  or  by  a  ruptured'  ^ 
nicle,  or  by  some  minute  vrsseb  not 
scribt'd  by  anatomists;   and  liie  reas 
thinking  so  it  lb  is,  beous«  1  caaU 
little  more  io  effect  it,  but  the  specific 
nf  tbe  water;  which,  according  to  the 
(he  libration  of  liquors,  I  take  to  be  k 
able,  -«^^ 

1  know  of  no  physician  that  boasts  ¥   ^^ 
pltti  uHru  in  anatomy  \  nor  should  1  ^ 

any  such  pretensiun  Irom  a  pbytician,  i*^  ^^ 
as  tVtim  the  anatoiulst :  These  two,  you  t  *1(» 
are  not  always  inseparable  coui  pauioas^  '^  t 
as  to  yoiirinknncc  about  the  empyema^  tlA^  ^ 
I  tbinlt  it  foolish  to  deny  f:4Cis,  wlien  I  anrf**  ^ 
able  to  account  for  the  raann€;r  bow  tbeyC^^ 
brought  iibout ;  yet  I  see  nothing  to  bii)deB-'^'^ 
from  believin^^  that  very  oAcfi,  where  ^^ 
Toatter  yon  speak  of  is  cast  forth  by  eicret*^^ 
th^  \m\^  I lave suffered  a  solution  in  their  fl^  j 
tiLuiry.  tn  two  personal  have  inapectediVf'  . 
died  under  these  circuujFiances,  it  was  ^^f^^ 
rent  J  in  b4^th  of  which,  as  I  sunjKse  fmaif**^ 
pi^eceding  iierifineumony,  there  had  been  it^^ 
scesses  formed  in  tbe  lohes  of  the  lunga^whitf'ji! 
bad  rotted  their  outward  nietubrane  ;  so  lh*jjj 
whether  tlie  puruJeut  matter,  which  '^^^^^'^Mf^^ 
ed  up,  came  from  Ibe  said  abscess,  or  whdbe^ 
ii^me  of  thftl  wbkb  fltictuatej  ^u  1^  di>f>hrafs^ 


J\a'  the  Murder  ofMru  Sarah  Stout, 


A.  D.  1699. 


[IS9t 


0  be  inabibed  by  the  ulcerated  lung 
ertain. 

on  of  bitter  liquors  afTecting  the 
f  are  cast  into  a  fistula  which  took 
m  internal  apostem ;  or  otherwise, 
tion  has  been  of  long  continuance, 
^  great  quantities  of  foetid,  icho- 
isivc  matter;  I  should  less  won- 
iment  should  answer :  for  in  (hese 
le  of  the  Tiscera  is  yery  much 
le  patient  Tery  frequently  dies 
5  find  upon  dissection,  that  very 
e  lungs  are  corrupted.     It  may 

1  a  recent  puncture ;  but  then  we 
ise  sometimes  uncertain,  whether 
e  of  the  lungs  received  no  damage, 
t  that  greater  stress  should  be  laid 
ases  than  they  will  readily  liear  : 
ist  aver,  that  in  penetrations  of  the 
lot  always  happen ;  for  in  a  pnnc- 
cen  injected,  and  a  fistula  of  this 
ich  I  have  cast  at  times  several 
itter  decoction,  with  a  tincture  of 
ocs  ;  during  which,  1  can  safelv 
icard  any  such  complaint,  though 
«ly  enquired. 

m  of  Mr.  Boyle's  citation  from 
latter  of  fact,  might  be  pretcma- 
s  to  his  finding  the  same  divers 
ligent  soever  he  might  be,  rather 
yself  uncivil  to  him,  by  saying  it 
tall  turn  sceptic,  and  suspend  my 
m  better  satisfied :  at  present  I 
'  there  was  an  ailmission  of  air, 
s  much  smaller  than  tliose  made 
sort  of  |)eas,  into  the  cavity  of  the 
spiration  could  be  carried  on :  and 

think,  that  Dr.  Garth's  remark 
is  very  pertinent ;  where  he  tells 
a  great  providence  in  such  a  tex- 

(saith  he)  *  there  were  any  large 
s  membrane,  the  air  would  pass 

the  cavity  of  the  thorax,  and  pre- 
station of  the  lungs,  and  conse- 
e  would  be  an  end  of  breathing.' 
night  put  this  matter  yet  farther 
'crsy,  being  willing  to  be  made 
e  utmost  efforts  of  a  drowning 

the  result  of  the  most  violent 
could  make  to  save  itself;  I  sent 

lest  you  should  find  fault  had  I 
tub,  I  procured  the  use  uf  a  dis- 
rhich,  if  I  may  call  it  so,  is  a  sort 
itaining  in  dimension  thirty  font 
I  half  as  much  of  breadth :  into 
led  with  water,  1  caused  the  ani- 
,  having  before  ordered  his  fore- 
together, 
e  of  the  fall  he  was  plunged  over 

but  rising  up  attain,  made  to  the 

be  could;  and  though  several 
I,  continued  struggling,  and  by 
lb  hind -feet  often  raised  his  head 
if:  opon  which,  seeing  no  likeli- 
inf  drowned  under  a  very  long 
il  Tiim  to  be  taken  out,  and  his 
10  lie  fastened  together.  Thus  he 


was  a  second  time  thrown  in,  and  continued 
struggling,  sometimes  'under  and  sometimes 
above  water,  whh  his  head  and  neck;  ifa  a 
quarter  of  an  hour's  time  his  navel  started,  and 
soon  after  there  was  a  visible  prolaps  of  the  in- 
testinum  rectum :  having  thus  between  while 
had  the  liberty  of  an  imperfect  respiration,  it 
was  half  an  hour  before  he  nad  done  struggling ; 
after  which,  under  water  he  gaped  several 
times.  When  dead,  I  left  him,  and  returned 
fire  hours  after ;  at  which  time  I  desired  be 
might  be  taken  out  with  his  head  erected,  that 
we  might  lose  no  water. 

I  think,  if  it  had  been  possible,  1  had  reason 
in  this  case  to  expect  water  in  the  two  cavitiea« 
i.  e.  the  thorax  and  the  abdomen,  which  seemed 
much  tumefied ;  but  was  so  far  from  it,  that 
upon  the  opening  the  peritoniEum,  instead  of 
an  inundation,  I  found  not  a  drop  of  water ;  and 
even  the  small  intestines  had  received  very  lit- 
tle, if  any  at  all  from  the  pylorus.  What  was 
contained  in  the  stomach  vras  much  short  of 
half  a  pint,  or  Httle  mure  than  four  or  five 
ounces.  Having  raised  the  stemon,  we  per- 
ceived the  thorax,  in  like  manner  as  the  abdo- 
men, perfectly  clear  of  water.  Out  of  the 
windpipe  there  issued  a  spumous  matter,  and 
the  whole  of  what  we  pressed  from  its  ramifi- 
cations was  about  three  ounces. 

Thus,  Sir,  have  I  given  you  a  faithful  his- 
tory of  the  fact ;  but  if  you  think  the  experi- 
ment was  made  clandesunely,  or  that  the  dog 
was  half  strangled  before  tlirown  into  the  water, 
as  you  pitifully  insinuate  about  Mr.  Cowper'a 
experiments,  ror  your  farther  satisfaction,  yon 
may  be  informed  of  Mr.  Harrison,  without 
Bisliopsgate,  of  Thomas  Serjeant,  esq.  gentle- 
man porter  to  the  Tower  of  London,  Mr.  John 
Litchfield,  surgeon,  with  sundry  other  persons, 
as  honest  and  judicious.    But  to  proceed : 

'  Water  is  as  frequently  found  in  the  cavity 

*  of  the  abdomen  as  the  thorax.' 

It  may  he  so;  but  if  the  stomach,  guts,  &c, 
in  the  former,  and  the  IvaifB  in  the  latter,  con- 
tinue firm  and  sound,  (as  is  reported  they  were 
in  Mrs.  Stout)  I  cannot  aee  how  it  should  hap- 
pen to  be  found  in  either.  I  must  confess,  I 
nave  never  seen  it,  nor  was  there  any  thing  like 
it  in  my  late  experiment.  If  the  viscera  are 
putrid,  I  should  not  wonder  at  it ;  but  if  other- 
wise, 1  should  be  tliankful  to  your  iiiicrosco|i- 
tic  anatomist  to  shew  me  how  or  which  way  it 
should  enter. 

*  As  soon  as  the  lungs,  stomach,  &c.  arc  full 

*  of  water,  the  body  naturally  sinks.' 

I  suppose  the  Sec:  inclucfcs  the  thorax  and 
abdomen,  as  well  as  the  guts  ;  but  though  the 
lungs,  stomach,  and  the  6lc,  are  full  of  water, 
in  the  sense  of  fullness  here  meant,  I  deny  that 
the  body  will  always  sink,  as  having  seen  the 
contrary,  and  can  bring  proof  oft  he  same. 

*  It  IS  observable*  ^on  say)  *  that  human 

*  bodies  after  death  admit  no  water ;  because  as 

*  soon  as  death  seiases  a  man,  the  sphincter 

*  muscles  in  all  parts  do  naturally    contract 

*  themselves.' 

How  it  in  in  human  bodies  I  cannot  sajt 


1923]  1 1  WILLIAM  UL         Trial  nf  Spencer  Cofvoper  and  Men, 

baying  made  no  experiment  of  thet  kind ;  hut 
that  it  is  always  so  in  other  animals,  I  deny  ; 
ami  indeed  can  see  no  reason  why  it  should  not 
te  admitted  for  a  parallel  case :  for  though  you 
sav,  the  sphincter  muscles  do  contract  them- 
selyes,  yet  the  epiglot  stands  open;  so  that 
unless  the  tongue  and  palate,  by  their  conti- 
guity, or  some  spumous  matter  already  in  the 
windpipe,  intercept  its  passage ;  what  uioders, 
in  a  supine  position  of  the  bray,  but  that  some 
small  quantity  of  water  may  slip  within  the 
rimiilee  r  But  whether  or  no  the  sphincters  do 
always  naturally  contract  tliemselfes  before 
death,  may  be  disputed ;  for  they  sometimes 
labour  at  tlmt  time  witli  such  a  paralysis,  as 
occasions  a  resolution  of  their  nervous  fibres, 
and  forces  them  inToIuntarily  to  let  go  their 
contents :  thus  nothing^  is  more  common  than 
for  dying  animals,  whether  rational  or  irra- 
tional (if  soon  before  they  did  not  exonerate)  to 
let  fail  their  urine  and  intestinal  fteces. 

That  1  might  inform  myself  whether  the 
water  would  get  into  a  dead  body,  I  causeil  a 
di^  to  be  snflfocated  over  the  fumes  of  a  spiri- 
tuous liquor,  prepared  tor  distillation,  in  tlie 
time  of  its  fermentation  ;  and  though  his  nose 
was  held  some  little  distance  from  the  surface, 
yet  it  stifled  him  to  death  in  two  or  three  mi- 
nutes time ;  ai\er  this  he  was  thrown  into  the 
water,  and  sunk  presently  to  the  bottom,  where 
he  lay  several  huurs.  being  carefully  taken 
out,  1  opened  his  throat,  and  found  the  epiglok 
(as  is  always  usual)  raised  fmm  the  windpipe, 
which  inclining  downwards,  there  was  tlis- 
chart^eil  about  three  spoonsfull  of  fair  waier. 

Tlie  immediate  floating  of  human  hiKiies, 
thrown  dead  into  the  water,  1  believe  to  be  very 
uncertain  :  anil  whoever  goes  about  to  estalilisli 
it  for  an  infallible  hypothesis,  I  must  needs 
think  very  rash,  if  not  guilty  of  a  downright 

folly  :  fur,  though  your  scamon  should  tell  me 

a  thousand  idle  stories,  I  know  thfrc  are  so 

many  causes  that  may  alter  the  case,  that  it 

would  be  very  ridiculous  to  credit  so  bohl  an 

assertion.     I  cannot  say,  1  have  as  yet  trie<l 

the  experiment  on  a  human  body,  but  of  those 

other  animals  (both  alive  and  dead  when  thrown 

into  the  water)  which   1   have  made  use  of, 

there  was  but  one  which  floated,  and  that  I 

thoug^ht  most  likely  to  be  found  at  the  bottom, 

as  having  received  most  water  into  the  luii^s 

and  btomach.     If  the  dead  body  of  an  ascitical 

person  should  hot  sink,  it  might  seem  strange : 

«n  the  othi'r  hand,  if  that  of  a  purely  tympani- 

tical  should  not  float,  it  would  be  etiualiy  a 

wonder. 

*  It' the  person  died  in  the  very  act  of  inspira- 
tion, llie  lungs,'  (you  say)  *  will  be  full  of  air,' 

Ice. 

Here,  Sir,  you  must  give  me  leave  to  think 

you  very  much  out  of  the  way  ;  for  unless  in 

the  case  of  some  very  sudden  and  violent  death, 

f  urn  apt  to  l>elieve  all  persons  flnish  their  lives 

in  the  act  of  expinition  ;  and  even  in  the  most 

sudden,  setting  aside  that  of  strangling  by  a 

ligature,  where  the  air  is  forcibly  included,  and 

its  paaaage  from  the  windpipe  intercepted,  1 


make  it  a  c|aestion,  whether  the  lasts 
the  lunga  is  not  that  of  its  systole  or 
tion :  For  although  to  outward  ap|ief 
roan  6r  other  creature  nuy  be  tbmig 
inspiring,  and  seem  perfectly  devoid 
and  motion;  yet  by  bying  any  pol 
diaphanous  body  to  the  mouth  and 
there  is  oflentimes  a  damp  contracte 
same ;  which  is  nothing  but  the  air  ii 
proceeding  out  of  the  lungs,  and  coni 
the  surface  of  the  said  body. 

It  is  tills  general  opinion  that  hath  f 
to  that  very  common  expression,  i 
would  signify  the  deaih  of  a  friend,  h^ 
He  is  expired,  or  hath  breathed  out 
But  admit  the  assertion  good,  of  dyu 
act  of  inspiration,  it  will  not  follow 
dying  person  can  take  a  tenth  part  < 
he  did  in  pcrt'ect  health  ;  and  so  cona 
cannot  fill  his  lungs  with  air :  for,  i 
stance  in  asthmatic  persons,  who  at  \ 
take  but  little  air,  by  reason  of  the  obs 
of  the  bronchia;  and  are  therefore  for 
quick  brtfatliing ;  it  is  very  rational  t< 
that  immediately  before  death  the  coi 
flbres  are  much  weakened,  the  blood 
stagnize  in  all  parts,  and  being  carrio 
arteria  venosa  into  the  lungs  f iister  tba 
off*  by  the  vena  arteriosa  into  the  left 
of  the  heart,  a  great  part  of  the  pt 
celh  are  so  stuffed  that  they  can  a 
little  air :  so  that  the  quantity  of  Hha 
in  perfect  health,  and  that  which  w 
dyingf  is  vastly  disproportionate. 

By  filling  the  tlit»rix  with  the  * 
forced  into  the  wiiMlpipe,  unU'ss  you  i 
iuif  the  lunj^s  in  the  thorax,  it  serms 
the  jargon  of  tiilin«>^  the  thorax  uith  ^ 
of  the  lungs.  For  my  part,  I  hav 
times,  through  a  tul>e,' h  o\* ed  with 
force  as  I  could  into  the  lobes  of  the  In 
caused  at  the  same  time  a  lightetl  car 
held  ni;^h  their  extremities,  and  run 
them  ;  I  never  could  perceive  ihe  leas 
of  the  flame,  whereby  1  ini^ht  conjc 
air  had  any  vent :  so  that  I  must  Ihi 
|H>ssible  that  either  air  or  water,  ^^h 
texture  continues  firm,  can  insinuate 
the  cavity  of  the  thorax  ;  till  you  c 
me  some  of  the  diligent  Walla'us's  £^ 
that  have  [lores  in  tlie  investing  men 
their  luniks  as  hig  as  the  longer  sort  ul 
I  think  it  \ery  hkcly,  that  a  dead 
he  more  buoyant  in  salt  than  in  fres 
hut  your  ex|>eriment  I  take  to  be  iooo: 
for  uuleus  you  had  saiil  that  a  ship 
some  inches  lower  in  a  sea  of  fresh  w; 
in  one  of  salt,  your  adversary  may  ol 
the  reason  of  the  lower  sinking  in  the 
may  perhaps  bo  as  much  ouingto  lb 
depth,  as  salt. 

The  discordance  of  the  physidu 
perceived  by  reading  over  the  trial:  f 
of  the  disagr(H.>ment,  as  i  remember, 
sist  in  this,  that  whereas  on  thekiK 
was  athrmed,  the  lungs  of  Urs.  m 
firm  and  sound,  aud  not  th«  tat  ip 


for  the  Murder  of  Mrs,  Sarah  Stout. 


^w^t^r  in  the  tbomif  \  for  the  prisoner,  Mr. 
^vrp^r^  it  was  repiteil,  lb  a  I  if  the  mvesting- 
emUr-^n^  of  ibe  \1n1g9  was  souiic),  il  was  ruli- 
iloas   tt>     expect  %raier  in  tbe  lb eikt,  tli€ir  «n- 


Ag«i.irB  -^  for  tbe  kltig[,  il  waa  thotigbl  itnptNi- 
lil«  tHsK^  any  per^QO  tbmwn  dive  into  tbe 
«ter,  sixould  be  drowned  wiibnul  swallowing 
'  Iftkt  n^^  io  a  ^rtal  tjnantily  of  the  same  into 
ic  *^ior«*4acli,  uiiil  otiier  cavities  ;  whereas,  fur 
ri*<^c>iier,  it  was  ibouj^bt  very  possible  two 
«unces  toight  be  siifFicient  to  ilrown 
^s^iLvmerscil  person.  And  tbis  leads  me  to 
»er^  <«  tUe  last  cited  pajje  ;  wbere  I  tinil 
iim«::rti  concerneiL  that  Mr.  Cowper**  phy- 
klioulii  Ktrenuout^l y  urge,  that  so  small 
^Qt-i  t.  T  of  water  was  mufficienl  for  this  pur- 
^^^^  liich  you  say  they  ifroundetl  on  a  pri- 
^^c:|:»e  rime  Jit  on  a  dog  half  bnnged,  you 
^l>%  to  ibink  that  there  was  ariiSce  in  ibe 
*A  •  id  indeeil  so  sbotild  I,  if  I  were  sure 
■**AiJ  half  hanged  biiii :  but  if  you  were 
•^^  10  your  Hleep,  it  may  happen  to  be 
»  «^rif  not,  1  think  you  are  but  httJe  obbg- 
^ta  J  per^n,  who  wo»  so  officious  as  to  tell 
uniruttt.  However,  that  you  may  not 
of  any  artifice,  made  U9e  of  in  my  ex- 
tots,  I  s»hal1  refer  you  to  the  afor>eattid  Mr, 
^Dt :  he  is  a  gentlemaQ  very  cnrioua  in 
^rjcjuiries,  a  man  of  uni|ueatiuuah1e  pro- 
^1  and  ^try  well  known  in  our  city  of  Lon- 

■^  ^m  presence  with  divers  others,  I  caused 

^y^t  Hbo  bad  been  kept  fasting  almost  twen- 

^'"'i'    honru,  to  he  plungetl    under  water* 

ufTiTing  bim  to  rise :    When  he  bad 

id  s<>rae  lime,  [  look  bim  with  his  head 

,  that  we  might  not  lo»e  a  drop  of  water 

ad  taken  in.     Having  made    a  hgature  ou 

^ub,  I  turned  down  the  larynx,  and  with 

^  niodemle  pressure  there  was  diKisbar^ed   of 

^'>4ratHV,   mixed  with  a  spume   or  frothi  about 

1  /our  larg-e  sfiooufuls. 

A^ler  ibis  I  came  to  the  stomach,   which  I 

eiTrived  to  be  very  lank  and  flaccid  ;    when 

into  it,  there  was  not  a  drop  of  water 

nid,  nor  indeed  tbe  least  remains  of  the 

^  juice,  which   bad   been  before  carried 

I  through   bis    Long  fasting  ;     so   that   the 

liles  of  the  inward  membrane  were  very 

pDOO^picuoua. 

8oon  after,   i  drowned  another  before  tbe 

com(>any,  and  do  assure  yen,  have  all 

Inagiitable  reafson  to  persuade  myself,  that  all 

file  water  be  bad  received  was  let  into  the  lungs, 

Lwhich  did  not  exceed  two  ounces  anti  un  half: 

rHiit  in  this  latter  (having,  unknown  to  us,  been 

)  Ic4l  a  liwle  before)  the  stomach  was  half  full 

^  ©f  indigested  aUments  ;    yet  no  appearance  of 

>  im^\eri  which  in  drowning  we  could  suppose  he 

bftd  gulped  down. 

I  come  now  to  your  pleasantry  with  Dr. 
6U>ane,  who  it  seems  was  so  unhappy  as  to  tell 
the  judge.  That  cases  of  that  kind  were  very 
iiocommott;  and  lest  some  ignorant  person 
slioijld  be  to  seek  for  tlie  meaning  of  the  words, 
pjim  ii  »  parenihesis  dapped  iO|  to  leU  us,  that 


by  caiics  of  this  kind  is  meant  ^  (for  Mrs.  Slout  to 
be  drowned  without  any  water  in  ber)' 

I  tbank  you,  Sir,  for  your  inforujation  ;  till 
now  I  did  not  think  the  doctor*s  wo  nit  were  10 
mysterious,  but  harmlessly  gave  them  quite  a 
different  construction,  which  befare  you  were 
pleased  to  be  so  wiltv  with  them,  1  thought 
very  natural ;  and  naving  since  asked  others^ 
they  tell  me  tbe  doctor  means  the  cases  of 
drowned  bodie«  remarked  upon,  cspecialljr 
when  they  have  been  laid  six  weeks  under 
ground,  and  afterwards  inspecieil  to  tind  wat^. 
Now,  8ir,  if,  since  the  creation  of  man  or  wo* 
man  either,  you  have  heard  of  such  a  case  be* 
fore,  or  if,  in  the  multiplicity  0 1  vour  practice, 
you  have  met  witb  any  thing  like  it,  1  tbink 
It  is  great  injustice  that  you  have  so  long  con- 
cealed It. 

I  Hould  gladly  know  precisely  what  you 
mean  by  drowning.  You  think  ibat  no  per- 
sim  can  projM'rly  be  suid  to  W  drowned,  who 
hath  not  swallowed  (t  shun  Id  rather  like  re- 
ceived or  let  in  ;  becauMes^tallowiti^,  as  I  have 
already  told  you,  is  proper  to  the  gulkt)  abov9 
two  or  three  ounces  ot'  water:  And,  I  tbink, 
that  if  under  water  those  two  or  three  ounces 
do  effect  his  destruction,  he  is  as  truly  said  to 
be  drowned  ait  if  be  had  taken  in  two  or  three 
gal  loos. 

If  respiration  could  hj  any  coutrivaiiee  bft 
aecurcd  to  a  person  under  water,  b«  would  then 
be  in  no  ilan^^er  of^  drowning,  xigain  ;  bet  hioi 
up  to  the  4'bin,  and,  il  it  were  posjtihle,  let  him 
swiillovv  a  tun  ;  ihuugb  it  may  be  otherwias 
mischievous,  tt  will  not  drown  liim  ;  For  if,  as 
may  he  inlerred  from  your  opininn,  drowning 
must  be  measured  by  a  great  quantity  of  bquor 
swallowed  into  the  sioniarb,  we  bjive  abund- 
ance of  those  drowned  persons,  somt-  of  tbetn 
top  full,  daily  reeling  about  our  streets  in  Lon^ 
don,  and  1  bliliefe  vou  have  some  lew  of  tbetn 
in  your  town  of  Hertford  :  Hitherto  we  have 
calicfl  them  drunken  persons;  and  you  wtll 
find  it  a  very  difficult  matter  to  persuade  them 
that  ibey  are  properly  or  truiy  drowned. 

iSince  then  it  is  Dot  ibe  ^eater  quantity  swal- 
lowetl  into  tbe  stomach,  but  the  lesser  t&keti 
inlo  the  lungs,  that  kilU  the  creature;  and 
since  there  is  no  such  thing  at  all  a^  drowning^ 
but  by  thai  smaller  quantity  eutering  tbe  said 
part  ;  J  reckon  that  if  a  man  dies  under  water, 
without  tbe  distinction  of  more  or  less  water 
taken  in,  he  is  as  much  and  Oh  really  drowned 
as  any  thing  can  be,  I  know  tbe  word  is  some- 
what ambiguous,  and  custom  has  applied  it  dif- 
ferently ;  for  if  a  person  upon  land,  by  liquor 
accidentally  rushing  on  the  lungs,  or,  as  it  it 
culled,  going  the  wrong  wav,  receives  hi« 
death  ;  this  1  say  is  named  suAocatiou  :  But  if 
the  same  thing  bf^tides  him  under  waler,  we 
usually  cull  it  drowning  ;  though  the  latter 
isa^iimt'h  suffwaled  as  the  former.  But  I 
have  alreatly  been  too  long  on  tliis  maitcr,  and 
shall  tberetore  proceed, 

I  hope  by  this  time  you  arc  no  great  sirangtr 
to  the  meauirig  of  that  general  question  you 
ttkeuolice  vf|  about  water  m  the  t]iomz|  if 


1327]         11  5WLLIAM  UI. 


1 


Trial  of  Spencer  Cowper  and  oihin^ 


l>emg  scEsible  of  the  UtiDiJer,  ttity  h»d  in^ 
irenuousJy  quitted  it,  1  betieveithad  lieen  rwucb 
better  ;  luU  whciberor  no  Ibeir  pprsislbir  ^w  U 
Las  been  any  ftdroBtage  to  tliefOj  lb«  lewiied 

p.*  1  cannot  till  ok  Hie  In  Testing  meinbrane  of 
^e  luttfT*  so  easijy  tom  in  cougtiiri^  j  if  it 
r^ouid,  Ih^e  may  an  ulcer  of  tUe  lungs  ensae  i 
im  the  soluuon  would  not  prest?ntlj,  (f  at  all, 
bne  re-unUeiL  But  w  hai  of  tliis,  or  what  would 
^u  Inffrr  ?  I  cannot  persuade  myself  there  is 
fttt^  cough iiig  under  water  that  should  break 
^eir  continuUy. 

'\  I  fiud  the  fl«ict4)r  is  not  yet  got  ^iit  of  your 
dutches:  He  brijifa  us,  jioor  g-entlemiin,  m 
nskDy  ir«  and  And  -  s,  that  Lis  sentences  happen 
'  to  [irore  uomtellig'ilite ;  for  where  \m  telk  u^, 
iiat  if  there  was  a  gte^i  fermentmtion,  a  grctii 
deal  of  ttte  witer  would  rise  up  in  vapours  and 
^am$,  and  p  off  that  way ;  we  are  at  a 
loss,  it  seemtith,  what  way  he  mecina. 

'  I  cannot  imagiue*  (say  you)  •  by  that  way 
pTvLat  way  he  means.' 

1  kuow^  not  what  you  may  imngtne ;  yet  I 
4»nnot  think  y^Vk  aUo|rether  so  dull  ag  yr^u  pre- 
tend :  Uni  otiierg  4o  ifiiag'ioe,  that  by  the  way 
oftteam^and  vapours,  be  means  th£  way  of 
•teams  and  vapours;  or,  if  it  will  be  more  easy 
10  your  imagtoation,  under  Ibe  forro^  after  the 
tnanuer,  or  by  the  way  of  cTaporaiion.  Thfongffi 
whatpassEiges  these  vaponra  ware  to  make  their 
i»ay,  was  uuotlier  queaiiou ;  which,  if  yon  were 
to  ask  him,  he  would  perhaps  lell  you»  tbroQgh 
the  pores  of  the  body.  Bui  it  seems,  to  ter^e  a 
luroj  alt  ouihts  most  be  barred  and  bolted ;  the 
tphincters  must  be  locked  up,  and  all  the  cover* 
iog^  of  th<3  bmly  grow  bo  dense  and  aim  pact, 
fbat  not  one  po'^r  curpn!<iclc  dmlt  gtiin  ita  li- 
NHftv  ;  So  that  aLthou;;T-[]  sonae  steams  carinot 
extricalfi  theuvseWes  trom  putrid  Aesb,  yet 
others  will  get  tfa rough  ptaiatered  and  bnck 
waHi  ;  nay,  the  very  stones  tbemselfes  are 
DOt  a  fence  ajrajn&t  tlieir  pencrtmtiou.  But  if 
a  certain  person,  present  at  the  di&section,  does 
not  retract,  I  was  told  there  was  a  moisture 
tome  what  J  ike  these  steam*  on  the  burial- 
clothes  of  Mrs.  Stout ;  in  others  1  have  beeu 
inforu^cil  it  liiis  been  t're(juent1y  observed  i  But 
rather  than  this  putrefucLite  moisture,  or  li^nrt 
of  dew,  whicli  has  been  seen  upon  the  sbro^i  ds 
of  tlie  dead,  should  be  ihougbt  to  arinefVom  the 
^dy ;  ]  supjiose  you  would  choose  to  account 
for  It,  from  the  subterraneous  damps,  working 
through  the  coffin,  and  so  settling  on  thecorpse> 
I  make  do  doubt,  but  that  dead  fleiih,  whe- 
ther in  or  out  of  w&ter,  wit]  quickly  ^row 
futrid  I  but  whit^h  of  them  will  be  so  sounc^t, 
cannot  be  positiire  ;  ttiooj^h  I  am  rather  in* 
isUning  to  Dr.  Garth ^s  opmron,  and  to  tlsrnk 
that  water  will  rather  retanl  than  hasten  putre- 
faction :  Jn  a  little  time  I  &{vA\  be  better  able  to 
^re  sal  is  faction  to  them  who  i-pquire  it. 

Ton  muH  excuse  me,if  1  do  not  come  up  to 
^nur  bi'lief,  that  there  was  a  iaptHs  lin^tae  in 
thedocliir'8  di^^tlnciiflo  of  accident  and  d^^igo  ; 
ms  be]it^Tiu|r  it  foimded  both  on  reason  and  e.t- 
^rteoce ;  But  if  you  will  iJiow  theui  as  much 


El 


diBarence  a»  may  be  i&nnd  in 
mtk,  between  the  pera^o  wlto  pvllilfi'  ibt 
bmlter  about  his  ovrn  tieefe,  aod  ooe  (atytas^ 
press  it)  that  the  hang^man  fi^rreth  jt'iNi ;  I 
know  not  whether  they  will  desire  My  hmtt. 

Tlie   animals  I  drowned  had  ail  of  tka 
much  froth  come  from  th«ir  fOMmh  tuA  n^ 
trils  I    and  aHer  harm^  token  emi  af  osf  if 
iLem  tbe  lungs  and  wimtpipe,  and  laid  thmtm 
Ifie  table,  I  oWrred  this  spamoBs  malMr  |lii^ 
tiJally  to  ri^^e  up,  and  to  nm  orer  t]ieepf|^j»; 
tofiomuch  that  it  seemed  likely  the  lobt^iafM 
be  quickly  emptied  i»f  ibeir  waler  by  tbii  ity 
of  purgation,     i  imnDoC  say^  this  Itoth  a  pec^ 
liar  to  drowneiJ  pcrsous  i  far  tboti|t^i  jteitifa 
the  lungs  may  not  furnisib  the  master,  jrt  H 
persons  dytnj;^  otherwise,  there  rmy  oflajbtf* 
pens  so  quick  a  ferment  in  the  stouiad),  M 
the  contents  thereof  are  frequently  <fadhiOT 
by  the  gullet^  u Elder  this  appeiarance.    f  km 
it  is  prraiiively  a^^ncd  bv  t»ne  of  ibe  fkji* 
ciaos,  that  if  Mrs,  Stout  had  not  bettt >»»il^ 
there  had  been  none  of  fbtt  |liirpiti4i»:   f  » 
pose  he  means  froen  the  wividpijit ;  and  to  | 
am  inchned  to  the  satue  Ofkinion* 

Mr,  Iferriot  must  be  a(i«u«ntb1e  for  hif  Mt 
contradiction  ;  I  am  so  far  firom  def^ndinf  kii; 
that  if  he  or  any  one  else  should  tet!  mt  it  tif 
so  general  a  rule  as  did  admit  of  no  exefpiil 
I  should  give  little  heed  to  them,  stnc«  1  mi 
vtry  uncertain, 

Hatini^  now,  as  yon  tuppoa^,  d«ir«ddi 
WHy,  and  knoeked  down  &U  brfore  }vn ',  i* 
next  thing  is  your  account  of  her  de^tb ;  Stf 
if  f  am  not  much  di^orii^ed^  the  eQifiJoce  jo  iin^ 
either  through  your  unfitness  for  ihe  ta4i 
or  the  weakness  of  your  intelleclj  usbord  i| 
with  a  very  great  mistake. 

*  If  ibid  gentle  XV  urn  an*  (say  yon)  *inii4 

*  drovrnedj  as  the  doctors  and  surgeotis  fbrtfcl 
'  prisoners  wtem  to  insinuate.*-- 

How  1  Did  the  doctors  for  the  prisfinenMJ 
nuate  that  she  was  not  drowned?  1  ^(^^l 
thought  they  had  all  luken  it  for  ^tmt^  ^ 
she  was  drowned.  Dr.  Cretl,  I  lbiak>|tj 
ticular,  was  a  physician  for  the  prisoTifni  *" 
be  erjiressly  lt?Us  the  judge,  that  he  ii  i*  fl 
descant  upon  the  matter  of  fact^  wbdiJK  m 
d ro w oed  I lersel f  j  yet,  saith  he,  my  fif*  'ff'** 
i*j,  that  she  was  drowned,  ^^ 

Now  if  to  be  positive,  or  firmly  to  fc*J 
she  was  drowned,  be  the  same  thtag  u  ■■" 
nuating  she  was  not  drowned,  I  see  nrt  *•■ 
any  man  can  rightly  apprehend  itwrtwl 
meaning,  hut  by  the  role  oi  (»Qtranei,  I  ^ 
fMs  you  have  already  told  us  of  the  *^^ 
of  your  iotellect;  hut  how  weak  loer^  "* 
may  be,  I  must  needs  tliink  your  m*fi*«jl 
Tcry  treacherous.  Now  as  to  the  maao*'  ■ 
AJrs.  l^totit*s  death > 

First  then  we  arc  to  undensiand, '  st*  ■• 

*  knocketl  down  with  a  blow  upon  her  left  ^ 
Secondly,  *  after  sb«  was  down,  &be  '***^ 

*  tJed  witli  (he  grijje  of  a  strong  ban*! :'  M 
Thirdly,  *  that  the  person  who  ^^^'^}f\l 

*  tnight  gripe  the  stronger,  be  rioted  Ju*  •* 
I  *  upon  her  hreoftl.' 


^1 


1^ 


I. 

t 


M, 

m 


I 


»] 


Jot  the  Murder  of  Mrs.  iSarah  Sfi>ut. 


A.  D.  1699. 


[1S9D 


B  my  word.  Sir,  you  bare  made  it  out  ex- 
d y  well ;  I  find  it  is  a  rare  thing  to  have 
lick  ioTeDtiou :    And  I  nnust  tell  you,  for 

*  encourBj^ment,  it  is  a  question  whether 
lest  matheaiaticlan  in  our  city  of  liOndon 
d  ba?e  done  it  more  exactly.  It  was  well 
r  fruitful  fjfenius  was  consulted  to  untie  this 
:,  otherwise  we  might  have  met  with  much 
»lty,  and  perhaps  had  never  l>een  able  to 
!  aolved  so  many  perplexing  phccnomena 
I  so  much  perspicuity. 

luast  confess,  it  was  very  unlucky  for  Mr. 
^per,  these  settlings  happened  so  pat  for 
r  leamcfl  comments :  But  had  they  been 
where,  I  fcdr  they  would  not  have  escaped 
r  penetrating  judgment.  Thus  upon  the 
Y  they  might  have  been  made  by  kneeling 
«pp  her  down ;  upon  her  back,  by  falling 
llie  said  iMrt  against  the  ground :  Her 
[hs  might  happen  to  be  trampled  on  in  tlie 
ffle;  and  nothing  more  likely,  than  that 
irliotly  should  lie  upon  lier  le^s,  for  fear  she 
idd  rise  again  before  they  had  dispatched 
Thns,  right  or  wrong,  rather  than  it 
old  be  thought  she  was  accessory  to  her 

I  death,  we  must  find  out  the  best  means  we 
,  on  which  to  ground  a  persuasion  than  it 
yrned  otherwise,  that  then  of  necessity 
re  must  be  violence  in  the  case. 

Vc  come  now  to  the  reasons,  why  you  pan- 
lielieve  she  did  destroy  herself:     Which  I 

II  briefly  speak  to,  as  they  lie  in  order ;  and, 
li  jou,  submit  my  self  to  better  judgments. 
%t  first  is, '  because  she  w  as  found  without 
vgown  and  nis^htrail ;  which'  (that  we  may 
c  a  salve  for  every  sore)  *  were  very  proba- 

?f  torn  in  the  scuffle.' 
a  to  this,  I  roust  think  it  rational  to  suppose, 
t  ibe  herself  mi^lit  take  them  off,  to  pro- 
tc  (ss  she  might  imagine)  the  speedy  smk- 

*  or  prevent  the  discovery  of  her  body,  by 
tr  inreailing  on  the  surface  of  the  water ; 
'do  1  see  any  great  difficulty  in  the  thought, 
t  a  Norwich  stuff  may  berolted  under  water 
^little  time  as  the  gown  was  of  which  we 

•petkiog.  If  the  nic^htrail  l>c  never  found, 
N]ie  it  does  not  follow  that  she  was  nuinler- 
-  1  should  rather  think,  if  the  gown  was 
Vght  and  throwu  in  afterwards,  so  uiii^ht  the 
iwail  too;  which  would  have  been  as  easily 
ted  elsevihrrc  as  the  )>i)wn,  and  with  the 
Be  trouble  both  mi;^ht  have  intvn  cast  into 
'  viler.  I  cannot  suppose,  aihuitting  it 
■  been  in  the  river  from  the  time  of  her 
^'WUBg,  that  it  would  have  been  always 
^M  pltce ;  but  rather  carrieil  by  tlic  stream 
"Cr  water,  sometimes  to  one  place,  some- 
'cUd  another;  sometimes  lotlgcd,  and  somc- 
••»  at  liberty ;  as  we  find  other  trumpery 
"■  be  under  a  current;  So  that,  supfms- 
rtbe  miller  bad  very  diligently  cleared  that 
^itake  but  half  an  hour  before,  what  liin- 
^  Ibe  possibility  but  that  the  next  half  hour 

*  C^^D,  cither  by  itself,  or  together  with 
*^  trash,  might  be  carried  thither  by  the 
^aodkdmir 

"^coiidly,  *  S«Gaiife  aha  wu  found  floating ; 


I 


<  of  which  you  make  no  doiibt,  because  it  iraf 

*  sworn  by  several  witnesses.' 

I  fiavc  already  taken  notice,  that  from  this 
there  can  be  nothing  certainly  inferred  :  Dtmd 
bodies  thrown  into  water,  1  am  satisfied,  will 
ofUn  sink ;  and  drowned  bodies  sometimes  will 
not :  But  as  to  the  case  before  us,  it  is  plain 
that  some  of  those  who  viewed  the  body  gave 
a  different  relation  from  some  others.  Thus 
some  of  them  said  she  did  float,  though  it  was 
under  water :  whilst  others,  who  should  know 
best,  being  the  parish -officers,  and  employed 
by  the  coroner  to  take  her  out,  depose,  that  the 
body  lay  half  a  foot  under  water,  and  that,  for 
any  tlang  they  could  perc(  ive,  her  feet  might 
touch ^the  bottom  ;  and  farther,  that  when  she 
was  heaved  up,  there  were  several  sticks  aud 
flags  on  which  she  rested:  But  without  all 
this,  Sir,  I  think  it  very  natural  for  a  dead  body, 
which  is  always  buoyant  in  a  current  four  or 
five  foot  deep,  by  the  bare  force  of  the  stream, 
when  it  meets  with  a  slanting  opposition,  to  be 
raised  from  the  bottom. 

Thirdly,  *  Because  her  belly  was  not  at  all 

<  swoln.' 

Nor  was  it  at  all  necessary,  though  drown* 
ed,  that  it  should. 

Fourthly,  *  Because  no  water  came  out  of 

*  her  when  lifted  out  of  the  water,  nor  piu^ged 

*  from  her  af\erwanls.' 

This,  with  submission,  is  a  mistake:  For 
though  there  is  no  quantity  of  water  taken  no- 
tice of  to  issue  from  her,  yet  it  is  agreed  on 
both  sides,  that  she  did  purge  at  tlie  mouth 
and  nostrils ;  some  say  more,  others  leas.  The 
two  principal,  who  took  her  out,  and  stood  by 
for  some  time  aflerwanis,  do  affirm,  that  the 
fi-oth  came  out  after  such  a  manner  as  to  run 
down  the  sides  of  the  face,  and  that  as  it  wae 
wi|ied  off,  fresh  froth  came  |uresently  on  again  ; 
which  Dr.  Crell  does  assert  could  not  have  hap- 
pened, had  she  been  strangled,  or  otherwise 
killed,  before.  Whether  this  be  so  or  not,  1 
believe  it  very  possible,  whfre  little  water  is  re- 
ceived (and  very  little  will  suffice  to  drown  a 
person),  if  there  be  so  great  a  purgation  at  the 
mouth  and  nostrils,  most,  if  not  ail  the  water 
may  be  tunie<l  into  a  spumous  matter,  at  least 
so  much,  that  there  will  be  no  absolute  neces- 
sity for  water  to  run  out  upou  the  motion  of  the 
body  afterwards. 

FiAhlv,  <  Because  her  inwards  were  not  pu- 

*  trf  fietl.*' 

After  six  weeks  time  I  should  indeed  have 
expected  putrefaction  from  any  person  under 
ground,  that  had  not  been  embalmed,  without 
regard  to  water  takcMi  into  the  bofly  ;  which, 
w  h ether  or  no  it  hasten  putrefaction,  is  very 
ilisptitable  :  What  it  may  do  under  the  earth, 
I  know  not ;  Hut  I  much  question,  whether 
dead  flesh,  covered  over  with  water,  will  grow 
putrid  so  soon  as  that  which  is  exposed  to  tlie 
immediate  contact  of  tlie  air.  Of  this  I  shall 
he  able  to  say  more  in  a  little  time,  and  lor  the 
present  leave  it  as  a  problem  undeci<led. 

Sixthly,  *  From  the  several  distinct  sel 
'  of  blood,  unusual  in  drowned  penoM.* 


laSl  ]  n  WILLIAM  m.         Trial  of  Bpmcer  Ctrntper  and  oti 


Upon  tbe  triaK  it  ts  affirmed  by  Mr.  Ciifnlin, 
thftt  both  Mr,  Dimsftale  and  him&elf  havings 
TJevr^d  the  body,  did  ^ve  U  in  as  their  opinion 
in  the  coroner,  iJiai  there  were  no  oiher  suUle- 
inents  or  stagnations  of  the  bloorf.  than  what 
nia^  usutiUy  happen  to  drowuetl  bodies :  Mr. 
CamVin  instances  in  the  cliihl  for  one  ;  but 
whether  that  were  so  or  not,  1  have  percei?eil 
U  royself  on  tlie  superficies  of  a  dmwneil  bo^ly  ; 
nor  ui>  I  iee  why  it  may  not  be  found  on  tne 
Deck  and  breast^  as  soon  as  on  other  parts. 

Seventhly,  *  From   the    conlinoai    di-slurb- 

<  ances  Mrs.  Gurrey  was  under,  both  in  mind 

1^  and  body  ;  ne?erthe)es£  she  would  not  dis' 

'  cOTer  ii^  till  she  was  almost  frightened  out  of 

^  Iter  i»enseii,  by  the  voice,  as  she  tbouf^ht,  of 

Mi^.  Stout,  wliich  uttered  these  wortlitf  Di- 

▼  uig-e,  conceal  nothing.* 

If  Mrs.  Gurrey  was  disturbed  in  mintl,  it 

rould   seem   stninge  tliat  she  should  not   be 

rilisturbed  in  boily  ;  tlie  \a.ltei  bein^,  as  I  ^n[i~ 

«e,  sehloni  or  never  easy  whilst  the   former 

t  under  trouble  ordiBqiiift.     llut'wheiherMrs. 

Surrey *a  mighty  disturbance  hjul  other  rise 

bma  whtmofthe  brain,  foumted  upon  astrong 

sion  of  fancy,  may   very  reasonably 

^qncftiooed :  For  my  part,   I  took  on  it  so 

atuml  for  a  doating,  ignorant  old  woman  to 

f  terrified  with  the  diw^rder  of  her  own  ima- 

|i  nation,  be  Jure  hand  perverted  by  too  deep  re- 

Beciii>u,  though  the  &ame  has  nothing  but  a 

ebimsra  tosiip^xirt  it,  that  I  am  never  startleil 

Hen  I  hear  of  their  pretences  to  voices  and 

velations.     Tliese   you  know  are    not  in- 

mI,  though  more  peculiar  to  a  distinct 

80  that  if  once  such  persons  happen  to 

sirongty  opinioued  that  any  thing  may  be 

^so,  they  need  but  fatl  aiiileep,  for  a  coofirmattou 

that  it  is  so. 

Had  you  not  already  acquainted  ns  with  the 

l-^n^eaknesa  of  your  intellect^  and  your  incapacity  ^ 

Tdcc.  I  should  have  been  sinrtteil  tliat  n  man  of 

^learning  and  solid  ju^Tgmeot  should  buitd  on 

^the  idle  fUncies  of  a  dreaming  old  woman.     I 

(^hink,  how  greatly  soever  sht*  might  be  dis- 

Imbed  before  in    mintl  or  body,    she  has  now 

nofe  reason  to  be  coucenied,  that  by  a  Ion  J 

leUef  of  a  revelation,   those  men  should  t*e 

'brought  into  danger  of  their  lives,  whom  we 

[liave  a  great  deal  of  reason  to  Wlieve  were  as 

onocent    as  her*df,    and  little   or  none    to 

K think  they  should  be  goiliy  of  such  a  horrid 

rikct  as  they  were  accused  oV, 

t      Eighthly,  ^  From    what    is  sworn  by  the 

1^  Giirrc'V'*  against  iheir  hMlgers  at  the  trial/ 

Could  J  belrere  all  to  be  true  llmt  the  Gnr- 
Pteys  swore,  I  should  make  no  qutfstion  of  the 
■Jikehhood  of  these  men***  guilt :  But  that  they 
f4id  stretch  in  lome  things^  is  very  easy  to  be- 
btieve,  by  some  particulars  at  the  trial  ;  and  by 
[their  hehariour  beliire,  at,  and  after  the  same, 
we  have  great  iuducemenis  to  persuade  us  thai 
hey  did  ao  in  others.  Thus  it  is  proved  that 
teurrey  himself  went  out  ol'  the  court  in  a. 
fl^ttsttne^  way,  to  tell  some  of  hia  acquaintance, 
[tliat  he  had  iloue  Cowpcr's  busiacsa^  or  to  that 
ifect.    And  «t  auotber  tiist  be  iaidj  that  if 


Mr.  Cowj>er  bad  vttited  old  ] 

this  trouble   had  befallen  t 

disc  riiahce  oft 

thoii_  Ive^susp 

Vet  tilts  \\  i^  not  to  lie  1 

of  taking  off  lier  evidence  , 

could  so  readily  turn  the 

M arson  had  that  day  received'' 

for  business  lU^ne  in  the  ] 

6rty  poundi,  supposed  to  fie  | 

dering  Mrs,  8«nih  Sroiu  at  \' 

by  thei^me  kind  of  impmreiiient,v 

liike,  understontl  all  the  rest. 

It  seems  indee<l  to  me  the  m^ 
absurdity  that  can  be  imaginr  \  tiiiil  t_ 
men  really  come  down  cm  such  a  1 
should  tjo  ilirectly  to  tell  tbcif  1 
Stout's  business  was  done; 
her  courting  days  ;  and   that  i 
received  li hy  |H)unds  for  ilom^ 
In  matters  of  this  natun 
have  nottiing  but  idle  •itoriel 
dream,  to  rat^  the  suspicion,  I  thS 

behoves  us,  before  we  pass  our  <      

a  just  regard  lo  the  character  soil  Jtf^ 
the  person .  Thus,  indee<K  fhonerU  »t 
impotusibtc  for  Mr  Cowj  .1  bdl 

the  opinion  of  every  one  ^«^ 

hifiit  yel  V  am  ready  to  trnsjK,  ni«al 
uho  know  him  (unless  some  particuUr| 
that  upon  any  <enus  would  v^  "' -s  •^'^ - 
tuter^st  of  his  family  iu  that 
brought  to  iL  i^ersu&sion,  U*-  r,r. 
imbrue  bis  hand«  in  hi* 
the  |»retenile«l  one  thou- 
have  gaineil  ten  :   an<l  a«  to 
it   is  lisible  tliey  live  iu  cretlii 
thetr  charactera  well  attested,  aad  ui. 
them  iu  the  least  likely  to  make  an  UH 
the  hicrc  of  5ve  bunnred  pounds.  J 
Ninthly,  From  the  sentiments  r 
Jury. 

Tmust  needs  thfnk,  thai  on  ao  I 
tlictraent  drawn  up  against  the 
such  strenuous  allegations  of  their 
»a  foul  a  crime  char^^ed  on  thef 
cumstaoco  attending  a&  that  of 
being  last  in  her  comjiany ,  and  tlM 
acquaintance;  especially  when  Mr 
tale  had  been  set  out  with  abundance 
vation;  1  see  not  how  for  nuhlic  aatii 
well  as  private  the  grana  jury  cual 
than  find  tho  bill.  But  as  la  the  pctt 
you  call  ihem,  I  wish  you  bad  mi 
several  wlio  did  beheve  her  uiunlerti 
trial  r  I  am  assured  that  itonitf  of  || 
openly  declared,  they  thought  lbs  | 
we  speak  of  had  bt-en  s«i  much  ibf 
proaec'utor's  estate,  if  it  were  ten  |{i 
lb  an  it  is,  waa  little  enough  to  mi 
reparation. 

As  to  the  letters  pro<fuced  in 
thoughts  it  seems  are,  ttiat  th«fy  I 
legitimate,  but  a  apurious  issc 

1*  Because  the  ttite  dotlt  no  wtj 
character. 
It  the  author  of  the  UcrtfonI  Lc^ 


r1 


or  A  a. 


^  the  Murder  of  Mrs.  Sarah  Stout. 


A.  D.  16e&. 


tl2S4 


,  or  perhaps  no  knowlalffe  at  all 

takes  every  tbin^  on  trust  from  her 

^^  ^rAcl  relations;  he  ought  not  to  he  so 
^v^v  -ft-liat  the  stile  does  no  way  suit  her 
*^t«?«"  -  If  by  stile,  as  the  word  g^enerally 
^•*<^»'"«5't<)od,  you  mean  the  onler  of  her 
fif^"^*^  ,  or  the  manner  of  her  expression,  you 
^  *^^^'-  KB  she  roi<jfht  ha?e  sense  enou||rh  ti>  be 
^^^"^I'ao*-  of  those  compositions.  I  it  I  find 
*^^^W^  so  bold  wiih  llie  use  of  words,  and 
'  ^^^nrm  so  differently  from  other  learned 
[•■•  ^ij^^^t  in  some  places  it  occasions  a  little 
^^V**-^'  to  understand  you.  If  by  stib-  then, 
•^?  *^^^^ine,  you  wr»»!d  «';jfnity  the  subjecl  of 
5  *^^^iOuv8e,  or  the  nuittcr  of  the  coinpo»»re ; 
••  ^  '•iiorc  reason  to  lliiiik,  than  1  w  ill  at  present 
•'^^  I'^ublic,  that  ihe«ie  letters  do  well  enough 
^\  *^^r  character  with  some  that  know  her : 
1^^  ^  *"»iust  tell  you,  that  i  am  ready  to  believe, 
Mj^*^«r  mother  been  asked  the  question  some 
^*^y*^*«  before  she  died,  when  she  had  some 
^?^^*  ^ith  her  one  eveninc^  in  the  p^rden,  or 
.^^JJ^^  tlie  time  when  Thcnphilus  was  sent  for 
Jj?!^P*^?e  her,  about  her  fallinfi;  from  theliyht ; 
"  '^'^y*  at  these  times  I  cannot  think  her  mother 
^    'W^      ^^^  denied  but  ttiat  these  h  tt<  rs  might 


w> 


-■•■'C^*  *■  now  out  of  a  capacity  to  defend  herself; 
.^  .Sr*^  Upon  that  aocouni  it  mi^ht  seem  ill  with 
'^  ■  a?y*^P*  ^^  itf^^  upon  her  ashfs :  I  shall 
r^  ^ppfbre say  no  more,  but  that  I  would  not 
*^  2?^  y<*"  ^'^  ^^'wy  **'*^*^  ^1»^  rliararter,  lest  you 
I^^IbU  happen  to  make  ^ruwl  an  old  proverb. 
^- J.  'Because  the  mother  doth  atfirm,  the 
*  ^tkllers  shewn  in  court,  were  of  a  smaller  chu- 
c^tfeler  than  ever  she  observed  her  d&U4rhter  to 
.  finite ;  neither  doth  her  brother  think  them  to 
*te  geouinc.' 

:-  Would  it  not  have  been  very  odd,  if  the 

■other  and  brother,  who  came  to  secure  the 

''japutalion  of  so  near  a  relation  (though  never 

10    well    satistied    that    it    was    her    hand), 

■hoald  have  said  otherwise  than  they  fiid  'f  Fur 

.  my.ptrt,  I  take  both  their  answers  to  be  so 

^%aosti8(ictory,  not  tJ  s»y  foolish,  that  nothing 

the  relation  they  were  sfieakiug  for  can 

d  their  excuse. 

The  mother  being  asked  by  the  judge  whe- 

ahe  thought  it  was  her  'daughter's  hand  ? 

only,  *  How  should  I  know  ?    I  know 

f  wbm  was  no  such  person  ;    her  hand  may  be 

*  OOQDterfeited.'    I)ein<;  questioned  again,  what 
-!ihe  would  say  to  it  ii'  U  had  been  writteu  in  a 

'BBOK^iober  stile?   she  answers,  *  I  shall  not 
^  My  it  to  be  her  hand,  unless  I  had  seen  her 

•  write  it.' 
The  brother  being  interrogate«l  on  the  same 

aimtioii«  says,  *  It  i>  like  my  sister's  hand :'  tint 
feeio^  asked*  if  he  did  believe  it  was  her  hand  ? 
He  replies,  *  No  :'  And  why  ?  *  Because  it 
doea  not  suit  her  character.'  Now  let  tlit* 
world  juflge,  if  this  contains  any  more  than  if 
the  mother  had  said,  liecause  she  was  my 
deofrhter,  or  the  brothei*,  bcKsausc  she  was  my 
'■ilter,  we  will  not  believe  it,  lest  the  world 
■bould  ktok  on  her  to  have  been  a  lewd  woman. 
.  8.  *  Because  there  was  no  mention  made  of 
VOL.  XIII. 


<  these  letters,  till  the  common  report  of  her 

*  being  with  chiM  (which  had  been  industrious-* 

*  ly  spread  almiad  by  several,  but  by  none  more 

*  zealously  than  by  a  nominal  Q: inker,  her  fur- 

*  mer  admirer)  was  provet!  to  Ik-  false.  \'C.' 

If  (licrio  Iftitrs  werr  taken  notice  of  bo  soon 
as  the  report  of  her  bL-iuij  witli  i.hi'.d,  it  was 
very  eai-l}' ;  for  lliat  mi^ruing  slit;  was  takcu 
out  of  the  water,  it  was  wliisirerrd  in  the  coun- 
try, and  lit  nii»Iit  I  hcani  fntm  joiuc  in  London, 
that  thoy  hciioved  it  \ery  lilit;ly  ibr  l»e»'  to  be 
with  child;  and  that  to  prevent  the  ensuing 
inlkniy  she  had  uiaiU-  herself  aw  uy.  This  was 
no  more  than  what  i-:  ffORc-ridly  sns]»ected,  when 
a  siugic  gcntltiwumau  is  by  any  ine  :»3  acces- 
sary to  her  own  death.  2So  ttiat  v;i.!'<)ui  dis- 
pute, if  the  nominal  Quaker  had  u(tl  !;ceu  con* 
cprncd  in  it,  the  report  would  have  spread 
wiihoul  iiim.  iiut  1  judge  ibis  epithet  is 
bestowed  on  him,  not  so  much  fur  that  he 
thotiglit  and  reportoil  her  to  be  with  chdd» 
wliich  hundreds  did  besides  him  at  that  time, 
but  because  he  w  as  so  very  officious  to  prove 
her  hand  by  his  receipt. 

This  may  indeed  be  thous^ht  a  mean-spirited 
action  from  him,  as  he  had  been  her  i'ormer 
admirer :  and  1  think  if  U.t  hand- writing 
could  have  been  prove<l  without  iiis  apjirarance, 
he  should  havotirred  last.  However,  I  would 
not  ha^e  you  so  very  angry  at  him,  since  I  do 
not  fnid  tiiat  he  got  any  thin^  more  by  ii,  than 
to  have  the  judge  informed  iliat  he  was  one  of 
their  own  Meet.  Aud  if  ibr  this  only  he  must 
be  a  nouiinal  Quaker,  1  could  tell  you  of  some 
thai  have  had  great  parts  to  aet  in  this  prosi'CU- 
tion,  that  are  as  tar  from  beiii<.r  real  (Quakers 
(if  to  be  so  is  a  perlection)  as  Mr.  \\ . 

4.  *  Ueitause  31  r.  M arson  and  Mr.  Archer 
^  on  the  trial  i^wear,  That  Mr.  Com  per  deposed, 
'  that  Mrs.  Stout  was  a  inoirest  pri-son,  &c.' 

When  ^ir.  Cowper  was  before  the  coroner, 
he  dreamed  not  of  the  n])proachinir  storm  that 
v.as  coining  upon  hiui :  and  I  think  it  was  not 
reasonable  that  he  should  concern  hi'nself  at 
all  with  her  character ;  there  were  not  want- 
ing thoiie  who  were  ready  enough  to  think  be 
had  been  too  familiar  with  her,  and  that  on 
some  resentment  taken  at  his  carriage  to  her 
she  had  destroy eil  herself:  so  that  if  it  were 
only  to  wipe  oflf  this  suspicion,  his  account  of 
her  was  no  other  than  what  any  man  under  bis 
circumstances  might  have  given.  J  cannot 
tell  what  you  might  have  tluuiijht  of  him,  but 
had  he  told  the  coroner  he  knew  she  was  me- 
lancholy ;  that  it  waH  upon  his  account,  for 
ihat  having  formerly  lieeu  very  civil  to  her,  he 
grew  of  Uie  sick  of  her  ac<piair.1'U)ce ;  and  that 
liecause  in  his  last  visit  he  had  betrayed  siMiie 
little  indiflference,  and  notwithstanding  her  im- 
portunity, wouM  not  stay  to  lie  at  her  house; 
she  hadthereforc  in  a  passion  thrown  herself 
into  the  river;  if  Mr.  ('ow|)er,  1  say,  had 
i;iven  the  coroner  such  a  relation  as  this,  I 
should  have  thought  him  a  person  of  very  little 
understandingi 

As  to  her  melancholy,  I  believe  it  was  such 
as  did  make  ber  head  and  her  heart  ache  also  ; 

4K 


1935] 


11  WILLIAM  lU. 


and  that  it  was  more  than  a  common  hemicrane, 
whaterer  yon  (who  had  perhaps  no  jreatinti- 
snacT  with  her)  may  imagine,  or  her  mother 
and  brother  g;i?e  out,  I  am  satbfied  there  wants 
no  proof  of  such  a  melancholy  as  was  next  to 
distraction.  There  is  a  certain  gfentlewoman 
now  in  beinjsif,  who  cannot  deny  that  she  had 
heard  Mrs.  Stout  wish  herself  dead,  8ayin§f, 
ahe  was  the  miserablest  creature  living; ;  and 
that  she  hoped,  if  it  were  possible,  to  die  afW 
inch  a  manner  that  the  world  might  know 
aothing  of  the  matter,  nor  e?er  so  much  as 
mention  there  had  been  such  a  i»erson  living. 
But  indeed  her  melancholy  is  too  well  attested, 
to  be  so  much  as  doubted  of  by  any  disinterested 
person ;  and  therefore  as  you  are  apt  to  tliink 
there  are  many  frientls  anil  relations  bigotted 
to  a  parW  that  will  not  boggle  to  tell  a  lye  to 
■avc  a  friend  or  near  relation  from    ■  1 

suppose  you  mean  the  gallows;  so,  on  the 
other  hand,  I  believe  there  may  be  those  in  the 
world  who  would  not  scruple  to  tell  an  untruth, 
which  is  of  near  kin  to  a  lye,  and  if  it  were  in 
their  power,  would  bring  a  man  to  tlie  said 
place,  rather  than  it  should  be  thought  a  near 
friend  and  relation  was  in  love  with  a  married 
man. 

The  gentlewoman  you  take  notice  of,  so 
much  importuned  by  the  deceased  to  stay  with 
ber  that  night,  if  she  has  not  altered  her  story, 
will  acknowledge  that  Mrs.  Stout  did  tell  her 
she  was  very  much  indisposed;  and  farther, 
aaith  she,  you  see  I  am  very  nielancholy,  so 
that  it  will  be  the  greater  unkindness  if  you 
leave  me  at  this  time  alone. 

You  say  there  are  a  thousand  pounds  want- 
ing of  her  ori^rinal  f'vrtune :  1  wish  you  had 
lold  us  wlietlior  you  srt  aside  the  charge  of  the 
prosecution  ;  if'you  include  this  in  the  want, 
one  half  might  be  cxjuindcd  that  way ;  for  1 
suppose  there  up.s  notliin^  spared  to  carry  it  on. 
1  have  heard  i>i'i)(>ti))le's  wantinuf  that  i^hich 
they  never  had  ;  an<l  1  am  crwlibly  informed 
this  is  the  ease  in  d«*bate.  Some  of  \  our  coun- 
trymen, tlial  have  been  many  years  acquainted 
in  the  t'amily,  do  tell  me  there  is  as  much 
found  as  ever  she  could  be  tlmn^ht  worth  ;  but 
if  you  woubl  be  credited,  you  must  give  better 
proof  than  yours,  or  her  relations  say  ko. 
However,  I  think  this  to  l>e  very  lillle  mate- 
rial ;  she  mio^iit,  thoiinr|)  jn  some  things*  be  very 
frugal,  in  others  l»e  as  extravagant ;  but  which 
way  soever  it  is  gone,  it  si-ems  notliinir  less  can 
repay  it  than  the  lives  of  persons  who  had 
never  seen  her. 

Thougb  the  Quakers'  atTirmati'm  will  not  l»e 
taken  in  criminal  cases  (it  whs  well,   I  think, 
that  it  was  not  admitted  in  this  particular  one),  ' 
yet  they  liav**  now  the  pvi^ile'Tft  to  publish  their  { 
reasons,  «hy  they  suspe(;te'l  !VIr.  (Jowper  to  l)c 
privy  to  the  re<'ei|)l  of  any  of  ber  wowi  y,  more 
than  that  which  the  writmgs  found  in  Imt  cus-  } 
tod}',  and  his  own  acknowledgment  do  evince.  • 
I  am  sure   he  has  hid  them  a  lair  dctiance,  1 
having  openly  chidlenged  the  worst  of  his  ad-  ' 
Tersaiics  to  discover  \ihat  they  can  of  this  na- 
ture. 


If  they  think  fit  to  dnw  ap  ut  tluf  rf  tkb 
kind,  I  shoakl  adriae  them  to  OMke  ate  ef  asoN 


abler  clerk  than  the  aathor  of  the  HcitM 
Letter;  fiar  if  he  haathe  aiaMgamaot,  itisi 
great  chance  if  we  are  not  caterwoed  wiik  m» 
of  Mrs.  Gurrcy'a  dreama, 
lous  innoeodo. 

lo  thia  place  we  are  onee 
with  the  use  of  the  epiglottiay  which  job  ai 
hafe  oontmuaUy  (to  cinae  oa  the  auniUi  diki 
aspera  arteria,  tmless  id  ezpiFatiao.  Oa  Iki 
contrary,  I  hare  told  you  (aod  will  aobmitBf- 
self  to  any  anatomist  in  Europe),  that  it  ■  ir 
the  most  part  open,  and  never  exactly  dsm 
but  upon  deglutition;  so  that  whatever  ^ 
build  ujpoa  tw  notion  must  fall  to  the  gndii 

1  thmk  it  is  but  reasonable,  that  Mr.  hna 
Hatsell  return  his  thanks  to  you,  for  thecv- 
pliment  you  put  upon  him  in  the  ckMe  of  jfm 
letter.    I  am  ready  to  apprehend,  thattbsnil   I 
no  trial  suffered  to  be  pnnted,  till  afkcr  the  CI-   I 
aminatioD  of  the  judge,  and  his  penuiaminl  t 
obtained ;   and  therefore  naust   acedi  ihak  P 


onsiasions  and  alterations,  especialiy  of  pil  f . 
moment,  aa  theae  aheuld  be,  waich,  yooiBB»  Lf 
ate,  ia  a  very  great  injustice  to  the  warii  m 
injury  to  truth,  aod  too  ainisler  an  actisa  Ari 
^udge  to  be  guilty  of.  But  let  who  will  md 
m  your  way,  I  see  you  will  have  a  i^rt 
them  ;  and  rather  than  be  thou^t  to  haiaii* 
thing  at  all  to  say,  will  be  telhng  us  of  Ai^ 
which,  if  poesibte,  comes  to  leas. 

Thus,  to  heighten  the  auapicioo  ef  |*Mi  ^ 
are  entertained  with  a  tale  of  a  tub,  ahMit  Ir. 
Stephens's  being  ill ;  or  as  you  express  it,  Ilka 
with  a  strange  sort  of  (it.     I  hope,  Sir,  it  ii  ■! 
always  an  argiunent  of  a  man's  guih.  daili 
cannot  carry  himself  uncouccrncdiy,  iHwofcl 
sees  his  life  hanging  by  a  hair,  or  depeodinpM 
the  delivery  of  a  word' or  two  from  tnefurflMi    j 
of  a  jury;  it  is  time  enough  to  censorcwhi    * 
we  (Mirselves  have  undergone  the  tritl.  J 

Your  story  of  the  wine-cooper  1  hare  ssaf 


heard  of;  and  really,  1  am  so  desperate jcilia 
of  your  relations,  that  1  dare  not  credit  th« 
till  they  come  with  more  authority:  wins  I 
have  better  inforuied  myself,  1  shall  be  baiV 
able  to  give  you  my  oniiiiou. 

Your  prayer,  inethinks,  with  which  ?«■ 
conclude,  had  better  have  been  lell  out ;  ase^ 
though  it  wants  the  length  of  the  Pbana^ 
whoever  takes  notice  of  the  spirit  ihst  niil 
through  the  whole  letter,  will  need  no  irfi* 
ment  is  to  persuade  him  that  it  proceeds  fna 
an  hypocrite.  There  is  httle  appearance  tW 
it  is  your  desire  the  innoceut  may  be  cleaw 
from  as|>ersions  cast  undeservedly  oa  dies, 
when  for  more  than  six  pages,  you  are  vestaf 
the  utmost  of  your  malice,  and  by  the  bn^ 
means  imaginable,  would  insinuate  tlio«e  j;**' 
tiemen  are  guilty,  who,  for  any  thing  f* 
know  of  the  matter,  may  be  as  ianooeot  d 
yourself. 

Let  me  tell  you,  Sir,  1  think  it  a  very  Wi* 
tempt,  and  such  as  it  is  great  pity  dot»  tm 
come  under  the  lash  of  the  law.  H  bcfl  af**' 
tkmaa  haa  taken  4U8  trial,  and  it  do«  apf^ 


Jtr  ike  Mwrder^Mrt.  Sarah  Siaut. 


A.  D.  1S99» 


[1238 


it  trial,  tbcK  if  M  proof  of  the  fact  be 
ed  with,  nor  indeed  aoy  thing  on  which 
id  M  mueh  at  aaiupicioD,  imleM  that  ot 
I  oiifortiiDatdy  the  lart  penoo  io  her 
p  ID  a  word,  wheo  fiictioo  and  personal 
e  appear  the  only  motives  of  the  pro- 
,  wtioeyer  brings  the  business  afresh  on 
e,  does  only  expose  the  restlessness  of 
mind,  and  plainly  efidence  that  he  is 
i  true  gentleman,  nor  a  good  Christian. 
3  lookiM  over  your  postscript.;  and,  as 
pUces  of  the  letter,  perceive  through 
luiess  of  your  intellect,  or  Your  nnfit- 
r  the"  controversy,  you  have  made 
or  prognostic  of  betraying  a  little  ig- 

yf  all  yon  teH  your  friend,  you  make  no 
It  he  nas  heard,  that  the  suigeons  that 
Mrs.  Stout's  body,  deposed  she  was  a 
Now  if  he  had  heard  as  much  before, 
nake  no  doubt  he  had,  I  don't  see  to 
'pose,  or  what  news  it  eoold  be  to  in - 
1  of  that  he  had  heard  before ;  but  be- 
lli it  had  not  reached  every  bodj^'s  ear, 
no  doubt,  this  intelligence  is  to  inform 
d.  But  doubt  you  as  you  please,  had 
the  suigeons  deposed  as  you  report,  I 
B  ready  to  doubt  whether  they  were 
1  or  fools. 

nothing  like  it  in  the  affidavit,    of 
^ou  say,  you  have  delivered  na  a  true 

tell  U8,  indeed,  *  They  found  the  uterus 
ly  free  and  empty,  and  of  the  natural 
and  magnitude  usually  in  virgins;' 
y  this  will  not  amount  to  a  deposition, 
was  a  virgin  :  all  that  can  be  hence 
ia  only  that  she  had  not  conceived ; 
}e  possible  for  a  woman  in  coitu  to  miss 
ptu>n ;  if  missing  of  a  conception,  the 
ay,  notwithstanding  the  carnal  oon- 
ia  the  natural  form  and  figure  usually 
I ;  Mhy  then,  I  say  all  this  implies  no 
a  a  bare  probability  that  she  had  not 


I  cooiess,  till  now,  1  never  heard  that 
re  or  magnitude  of  the  womb  were 
d  amongst  the  indubitable  marks  of  vir- 
md  as  to  the  state  of  the  va|pna,  the 
m  caruudes,  and  hymen,  which  mo- 
tpercom  herself  could  only  guess  at, 
IO  notice  at  all  taken  ;  if  there  had  in- 
weuld  only  have  furnished  matter  of 
the  body  having  been  so  long  interred, 
vou  see,  for  any  tbiog  pretended  to 
odavit,  or  elsewhere,  she  might  not  be 
;  though  charity  should  oblige  us  to 
east  that  ahe  was. 

Postscript. 

this  Reply  went  into  the  press,  I  have 
nned  by  a  gentleman  of  unquestion- 
lity  diat  the  story  of  the  wine-cooper, 
MM  of  tlie  HerUbrd  Letter,  took  its  rise 
B  what  follows :  There  was,  it  seems, 
going  down  to  the  assises,  who  had 
MlHie  !•  be  tbrowB  fran  hii  benty 


and  was  taken  up  as  dead :  beinff  carried  to  hia 
lodging,  he  began  to  rave  and.talk  idly  ;  which 
was  DO  more  than  the  effect  of  a  delirium, 
arising  from  the  concussion  of  his  brain,  which 
might  have  made  any  man  light-headed  m 
well  aa  he ;  and  which  nothing  but  one. as  mad 
could  have  improved  after  such  a  manner  an 
the  letter- writer  has  done.  By  this  the  pub«> 
lie  may  be  informed  of  the  disiogenuity,  not  to 
say  down- right  villainy,  of  some  people  in  the 
world  ;  who,  missing  their  design  of  taking 
away  a  man's  life,  seek  all  possible  ways  ok' 
murdering  his  reputation. 

SOME  OBSERVATIONS 

On  the  Trial  op  Skncer  Cowper,  J.  Iff  akaki, 

£.  Stephens,  W.  Rooers,  that  were  triep 

AT  Hertford,  about  the  Murder  of  Saaab 

Stout  ;  together  wrni  other  things  kb^ 

LUTING  thereunto. 

To  lead,  and  to  give  some  light  into  this  mat- 
ter, it  may  be  necessary  to  give  some  account 
here,  how,  and  upon  what  occasion  the  ao« 
qnaintance  of  Spencer  Cowper  and  Sarah  Stout 
b^an.— The  ground  and  rise  thereof  took  ita 
original  from  lier  father,  who  at  allelectiona 
promoted  the  interest  of  the  Cowpers,  to  the 
utmost  of  his  power ;  through  which  a  great 
intimacy  was  created  between  the  femaiies  of 
the  Cowpers  and  the  Stouts ;  which  did  natex** 
pire  with  the  death  of  her  father ;  for  her  bro* 
ther,  by  the  faiher'a  side,  continued  his  respecia 
to  that  family,  and  spared  no  pains  to  espouse 
and  carry  on  tlieir  interest,  in  order  to  their 
being  chose  parliament  men  for  thai  town. 
These  obUgauons  engaged  the  two  families  to 
a  frequent  conversation ;  insomuch,  that  whe« 
they  were  in  the  country,  some  or  other  of 
them  w€re  often  together,  as  well  the  younjg 
women  as  the  men ;  as  ajipeared  by  what  hia 
brother's  wiie  said  at  his  trial,  <  That  she  was 

*  but  six  days  at  Hertford  the  summer  belblt^ 

*  and  that  she  saw  her'  (to  wit,  S.  Scout)  <  every 
<  day.'  Anil  great  pretensions  of  love,  and 
proffers  of  kindness,  were  expressed  by  the 
Cowpers  in  general  to  the  Stouts ;  and  by  this 
man,  Spencer  Cowper,  and  his  wife,  in  particu* 
Jar,  to  tlie  deceaseo  young  woman  :  and  thus 
it  continued,  in  appearance,  till  the  day  that  she 
was  forced  off  the  stage  of  this  world! 

When  her  father  died,  he  left  her  sole  exe* 
cutrix,  and  gave  her  most  part  of  his  personal 
estate :    and  a  considerable  part  of  it  being  in 
the  brewer's  hands,  and  in  malt,  which  site  sold 
afterwards,  she  was  often  advising  with  one  or 
other,  how  to  dispctse  of  this  money,  so  as  le 
have  gooil  securities  for  it.     About  a  year  be-  . 
fore  her  <leath,  she  went  to  London  about  those 
occasions,  and  lodged  at  a  goldsmith's  house  ; 
as  soon  as  the  Cowpers'  wives  heard  where  she 
was,  they  made  her  a  visit,  both  Spepeer's  and 
his  brotlier's,  and  invited  her  to  their  honsw. 
Whilst  she  lodge<l  at  this  goldsmith's  house,  h 
laid  out  several  hundred  pounds  lor  her  in  ma 
tk)kela,  and  other  aecuritiei  ef  tbefofw 


w 


^i^ 


W 


w 


11  WILtlAM  III. 


Trial 


1930] 

\fm  sbe  h&ing  not  v>  Uling  to  by  otit  m«ieb  tliat 

way,  liul  rotber  oa  som«  mnrl^Hi^e  of  luod,  whe 
wroi  10  ti  tawyer,  witii  whoui  fite  wn«  ocqtiaioi- 
«il  Ift  M^*'  if  lit  coultl  disclose  of  some  (or  her ; 
}i^  toll  I  lirt  he  ci>ultl  tic^lp  ker  to  a  mortgage  Ibr 
SUO/.  but  ih^y  woul<l  ^ate  but  live  in  the  bim- 
dwil;  so  «hV  lakes  it  mto  tfinsklrratUm  ;  but 
otWwJinlB,  slke  bfint";  iitBIr.8|ieDcerCow|ier'ftt 
Qml  lit*  fiiHin^  inl*>  somR  iliscoofs^  witb  her 
Almut  Iti'r  Mtf^irSi  aud  imikv-slamiing  eh€  biiil  a 
CotiniiWraye  sum  ot  raouey  to  tuil  out,  he  jirof- 
fered  tu  do  her  till  ttie  kin^lopj^  that  by  in  hia 
pD^verj  aoil  would  hetp^  lit^r  to  u  nmrtj^qfe  of 
briii  thrive  liuit^s  ibe  vnltie  ol  lUe  juoney  leut  on 
it,  at  six  in  ibe  Uuiiiirt'd;  and  uould  Kce  that 
the  tiUe  jtU^uld  btr  giHn!,  aud  be  as  careful  in  it, 
m  if  it  were  his  ovi'i)  conct- rns ;  and  if  she 
waut^d  cotiiis*'!  at  miy  tlifi**,  either  lo  piit  out, 
or  to  recotcr  moiioy  that  was  owiog  her,  <^r  any 
tiling  «i^e,  fi>r  vpfiich  she  had  occasion,  be 
would  pve  II  h^r  ^^nilis,  which  from  an^itlier 
mui^t  Lt^si  her  ^naie  ^uiopaii  i  «o  she  actf  ptt^d 
of  his  profFer,  and  toid  him,  s\w  won  Id  depend 
oo  hi^  ndvicc*  not  question  iuif  to  liave  j^ood  a^- 
curiiy  i or  her  money.  When  she  c^me  home 
to  hl^r  hnlgittg,  sliw  told  the  gidrt smith  where 
she  h>il£rpil^  that  tmw  Mr.  SSpencer  Cow  per  had 
pnmimd  10  help  bei-  to  seeui'ities,  anti  hts  ^ras 
to  di-^p.iie  of  iier  money, 

fck>oti  nftfi*  thi»j,  ^he  wtut  Ikonjc  to  Hertrord, 
•nd  told  her  mother  the  sam^,  and  a&kcd  hpr  if 
ihe  bad  any  money  to  put  out ;  if  sh^  had,  it 
might  go  aiDon£ri£tber\aad  her  inoihershoubl 
Iwt  e  no  trouhb  with  ii ;  for  she  would  pay 
her  the  interest  aa  it  h^^came  due  r  her  uiottier 
then  ask^d  her,  if  Eihe  couM  so  far  cottdde  in 
binij  as  to  receive  her  mooeyj  to  pay  i',  and  to 
maki'  tilt'  wriiiEi£^!$j  and  lu  [ituk  after  the  title, 
and  all  withoui  tiic^  kispecti  m  of  any  hiMly  t^hef 
«he  said,  Ve««,  she  beti*rved  thai  he  i*iis  a  Tt-ry 
honest  omu,  and  *jh^  thuiight  fihe  mighL  trut»t 
htm  with  more  than  bhe  bad  to  put  oitt ;  aiul 
be  beiij^j  a  man  of  it^|>iiti?^  it  \%^&  M^tw  him  to 
itroo^  hifr.  Tht'ii  jicr  uiofher,  thinkiu^  the 
iame,  s£a\e  h»^r  150/.  to  put  amongst  her's, 
wbicb  she  hnlh  nevei'  beard  of  aincej  but  it  ia 
gone  viith  the  resL 

About  a  luo^nh  aOer,  Spencer  Cowper  eame 
to  Hertford,  and  tonk  lLNl|fiiijr.s  for  his  wife  aad 
laind}',  and  then  brijii|^lu  hb  wife  to  j^ire  this 
^'01 1 II 11^  woman  a  lisit,  and  to  hi?  further  ae- 
^uatutt'd  with  hi^r.  After  iliis^  she  !»ei?Hied  to 
lo^e  and  like  htri'  comp»ny  so  well,  thai  she 
Baid,  *  8be  did  uiit  dp»,ire  the  comjiany  but  of 

*  ftw,  or  none  el**!-  in  llie  town  ;    and  ihrreliire 

*  wi^ulcl  mnkf  im  returti*i  ol  tiieir  viiats^  lih  liip 

*  weirk  bel'Mf  ibe  M^ni  home  to  L^mdon  ;'  and 
would  come  frt^qiif  mly  two  or  three  timefl  in  a 
week  i'^  visit  h€r :  and  ^rben  her  buiibaud  nas 
in  the  i:tjuntry,  he  ^sometimes  won  hi  come  lA^itb 
heti  and  ihert^hy  had  ttie  ojjportiinity  of  Am* 
coursing  her  shout  her  affairs. 

When  ahe  had  giitUered  hi  near  what  sh^  la- 
tended  he  sbpuhl  put  out ^  from  the  brewers  and 
others  thai  were  i*Tdebied  in  her,  she  writ  a  let* 
ler  (o  London  io  hivn ;  and  one  of  her  ac- 
qtiamtanco  commg  to  vieiit  her,  before  bhe  had 


k) 


efSpetwtr  Cmiper  nn^  clAm,      p8ft  |!i 

sealed  it  up,  she  bid  her  rrad  it^irtiidjilwii; 
in  whicb  Mipr  ihe  writ,  fi*.  'Tkiibtyi 

*  thoufiand  ptmoda  to  put  out,  tod  tint 
hundreds  of  t^  were  then  reiidj;  m\  i1kii|   « 

*  to  make  up  that  sum,  woiiM  kmiiili 

*  time,  or  so  soon  ai;  he  could  d»po«eof  i^ 

*  rant^geously  for  her.' 

After  this,   she  lereral  timet,  ia 
with  this  woman,  hath  told  ber/  Tbihi 

*  huyiug  an  estaie  for  her,  hi  p^vM' 
^  which  he  bid  recommeuded  to  hc^r^iti 

*  traoidinnry  penny  wdfth  ;'  anil  tlmt  it 

*  hettolil  fur  a  tliuu^aiid  pounds,  but  U' 

*  it  wan  worth  more;  and  if  hecoMltinwt 

*  her  with  it,  be  h^fikcd  upon  il  to  U*  s(*  ^ 
'  harfTuin^  ihat  he  would  buy  it  for  bi«««« 
anfl  she  also  told  her  tuoiher  the  sanvr. 

The  next  (jiiarler  ae^ons  uAer  th«, 
wasthebst  before  that  siisis^e,  atnliid 
her  days  were  eaded^  S pence i*  Cow^pff 
Horlf'jrrd^  and  in  the  eTifaibg  he  iT%oaety' 
quired  for  Mrs.  Sarah  8tout,  at  litr 
hoiise^  where  lie  %riM»  not  ^t  all 
lodge,  be  not  bar'mg  lodged  ihext  fw 
years,  viz.  tint  since  her  Mher  died ; 
about  an  lionr^s  diacourse  with  hrr,  Irf 
'  He  wa*  destitute  of  a  lodging  J  or  hU 

*  Bate^*  (w  here  h«  used  to  iwlg^-)  *  wja 
'  po^ed,  and  made  a  great  u^i^,  and  lif 

*  hke  to  lodge  tliere.'      So  »he  ibi>(n;lit 
could  do  no  I^h^  in  civftity^  than  tsk 
lodge  at  her   mi*lher*«  houie,  he  kunnij 
broitght  her  thai  mongiige  deed  fi^r  '?t.?rtl 
which   he  mado  s.iith  a  hmg  di^^twursf  il^ 
trial  I  nhich  money  had  he^n  earring 
to  bim  some  time  befure:    at  ihe  rnsai 
which  security,  ube  seemed  to  he  im 
pleased.     But  Aha  having  tohl  him,  tkitik^ 
tended  to  reserve  some  part  id'  h^r  p#ii** 
her  own  particular  uses  in  case  fche  W 
marry,  vvhi(  h  she  woidd  put  oui  tW  ditl 
she  fiauni^  enough  tH-stde*;    he*  wA^md 
then  to  keep  it  private  fr^^m  all  perif<iov 
her  et}d    wnnhl  be  frUfilrati^ ;    wbirii  ii 
hkelihoodj  he  thought  hhv  h  d,  Mail  tW     ^ 
had  knowu  her  iiduil  in  thai  p^riicuhr  t^iilin 
self,  he  haviijfj  adcibed  her  to  p<^mu'v.        " 

Indeed  H.  Cowper  doth  suui;  ''^  '^  *"* 
lately  presetited  to  no  me  id  the  iU¥itMx->  ■*!  p# 
liameur,  (see  p.  IW9)  litat  hi*  |m^  i'uli<r*lij 
not  the  imjKiilence  in  jiiiggest  at  his  [fmi  ji**'^ 
put  in  tuind  of  it),  Ih^it  wh^t  khty  B«x:n^ 
nf  was  done  ior  »be  ^nke  id'^iHiu  lti*t™ 
did  demand  a  proof,  that  he  hud  ar.v  id  ibtj 
ceased  yuunif  wi^iikan*s  o^ottey  io  ln«  m 
and  itaiiufjOt  be  i^uppctireti  thai  be  \%Mim 
real  it,  if  he  knew  ihere  wjtfi  any  cm**  iliw' 
coubt  make  jn^skive  pro#if  of  it  ;  itf^ 
wuul  J  hai  e  htjtn  iu  vuin  m  bite  dtnu^ 
her  moilier  did  then  ittcuipt  to  «pi^k 
knew  in  that  particular,  and  otlrer 
but  waN  stopptd  i^everal  ijiue^i^  and 
to  apeak,  unless!  she  woL.hl  swi«*rj  w1 
knew  well  enough,  her  ptfrtuaiiut  ^ 
admit  her  to  dn^ 

The  next  thing  ob^ervible  is,  ihe 
t»iin,  before*  tuetitioQed,  wbich 


W^  ^ 


Jvr  the  Murder  ofMrt.  Sarah  Stout. 


Ji.  ty.  1699. 


[ISIS 


stter  sent  to  bim,  which  gave  an  account 

Hftooey  she  inteDdetl  he  should  dispose 
r  her,  and  that  she  had  several  hundred 
,ds  of  it  then  reody :  she  being  with  her 
lay  in  her  chamber,  about  two  weeks  be- 
her  death,  she  bid  her  look  in  a  drawer 
(*,  and  bring  her  the  uioney  therein  ;  upon 
eiving  it,  *  Am  not  I  very  rich  ?'  said  she. 

other  dcnianding  the  reason  of  tliat  qnes- 
» ^  Because,'  said  she,  '  it  is  all  the  money 
M I  am  now  niislress  of;'  which  was  only 

ipnneas  and  a  little  silver,  notwithstanding 
md  so  many  hundred  pounds  in  her  posses- 
I  nut  lonfT  before.  And  about  the  same  time, 

being  m  discourse  with  another  person 
ut  bcr  concerns,  she  said,  *  That  Spencer 
Hrper  had  a  great  deal  of  her  monies  in 
■  bands,  and  that  he  was  to  have  more  :* 

her  relations  d(»  miss  about  a  thousand 
ads;  and  they  know  of  none  she  disposed 
■y  other  ways,  aUer  she  writ  that  letter  to 
I.  And  when  her  mother  asked  him  before 
lord  chief  justice  Holt,  what  money  he  had 
it  bands  of  her  daughter's  ?  He  said '  None;' 
•bo  said,  <  Hethougiit  his  reputation  would 
ive  secured,  or  carried  him  above  suspicions 
cxaminttions  of  that  kind.' 
kit  it  may  easily  be  gathered  who  carried 
money  away,  fur  a  great  deal  of  it  was  in 
i ;  and  that  very  morning  he  went  away, 
»  be  had  lodged  at  her  mother's  house,  he 
r  much  importuned  her  to  come  to  his  house 
Loodon,  and  told  her  how  glad  his  wife 
dd  be  of  her  company,  and  used  many  ar- 
■ents  to  persuade  her  to  it ;  and  at  length 
i,  *  He  wouhl  not  go  out  of  the  house  till 
tf  bad  proini««ed  him  to  come:'  but  sh»;  re- 
Bd  to  prontisc,  and  said,  '  She  did  not  know 
beoslie  should  come  to  Lf»ndon.'  Tliis  dis- 
ne  was  in  the  hearing  of  one  that  will  evi- 
ee  it  u]»on  (tath. 

%e  week  before  that  assize,  she  received  a 
er  from  his  uife,  which  wiii?  writ  uHer  ttie 
j|l  manner,  us  she  had  several  not  lonir  be- 
i,  very  earnestly  inviting  her  to  her  house  at 
idoo,  with  hii^h  expressions  of  love;  and  so 
eh  the  more  she  desired  her  comfiany  tiien, 
rase  she  believed  they  shoulil  not  come  to 
ft  at  Hertford  that  summer:  and  in  that 
rr  teib  her,  '  that  they  must  ex|»ect  her 
laliaud  at  their  house  at  the  assize;'  ihe 
icb  she  told  lier  mother  and  others  who  read 
letter.  This  letter  iSpenper  Cowper  con- 
ifed  to  the  c(»roner'%ijMjuest,  that  he  (irdered 
wife  to  write  it  for  his  Imlging  at  her  mo- 
r** bouse;  but  when  he  was  examined  by 
(lord  rhief  justice  Holt,  he  then  denied  it, 
I  flaid,  •  bis  wife  writ  no  letter:'  but  her 
ii|l,  Hirah  Walker,  k'ing  present,  told  him, 
la  wile  did  send  a  letter,  and  that  she  herself 
wkit  in  of  the  post- man,  and  ga«e  it  to  her 
MHrets;'  so  tlien  he  could  not  deny  that 
^  was  a  letter  sent.  i 

Aad  accordingly  he  came,  and  sent  his  horse 
H^r ;  and  being  asked,  before  he  rid  from 
*  daor,  whether  he  would  conic  to  dinner  ? 
)«id,  •  He  WM  not  cettain,  bat  he  would 


<  send  word :'  but  her  mother  and  she  staying 
long,  and  he  not  sending,  they  sent  her  maid, 
to  see  whether  he  would  come  or  no  ;  who  then 
quickly  came,  and  dined  there :  and  when  he 
went  from  thence,  the  young  woman,  8arah 
Stout,  going  to  the  door  with  him,  asked,  *  If 
*  his  tlioughtto  lodge  at  their  house?'  He  said, 

<  Yes,  he  would  come  and  lodge  at  their  house.' 
This  she  said  as  s<M>n  as  he  was  gone,  and  then 
bid  the  maid  go  get  his  lied  ready :  at  night, 
when  he  came,  her  mother  being  in  the  room 
with  her,  he  fell  into  some  discourse  remote 
from  any  thing  of  her  daughter's  business ; 
and,  after  some  time,  called  for  pen  and  ink^io 
write  a  letter  to  his  wife,  although  it  was  not 
post- night,  nor  did  any  carrier  go  next  day. 
When  he  went  to  write,  her  mother  and  she 
went  out  of  the  room,  and  staid  a  considerable 
time ;  but  it  growing  late,  the  young  woman 
went  in,  to  see  if  he  had  done,  and  if  he  would 
jiave  any  supper ;  and  what  he  desired,  he  had. 
Her  mother  went  not  in  again,  because  she 
knew  her  daughter  expected  he  would  give  her 
some  account  of  her  money,  and  have  brought 
her  security  for  it,  as  he  did  the  sessions  before 
for  200/. ;  and  she  findinir  that  he  would  not 
8|»eak  of  it  before  her,  would  n(»t  interrupt  them, 
but  gave  her  daughter  time  and  op|M)rluuity  to 
speak  to  him.  What  discoun»e  they  had,  is 
not  known  ;  but  sure  enough  it  was  very  dif« 
ferent  from,  and  inconsistent  with,  what  he 
rendered  it  to  be  at  his  trial ;  for  he  had  writ  a 
receipt  in  full  for  use-iuoney  he  paid  her  then, 
whicn  lay  on  the  table,  but  was  never  signed 
by  her,  all  hough  he  pressed  her  to  it  several 
times,  and  hid  her  put  on  her  considering-cap, 
(as  he  confesbed  to  the  coroner's  inquest)  and 
asked  her,  If  she  \%as  lazy  Y  yet  stdl  she  re- 
fused to  sign  it;  which  plainly  shewed  her  dis- 
satisfaction, and  that  there  uas  more  due  to 
her,  else  siie  would  never  liave  reruse<l  it. 

Between  ten  and  eleven  o  clock,  she  called 
her  maid  to  luHke  a  (ire  in  his  chuiuber,  and  to 
warm  his  bed,  in  his  hearing;  and  while  the 
maid  was  doing  it,  he  went  out :  her  mother 
hearing  the  door  clap,  went  into  the  parlour,  to 
ask  her  what  the  reason  was  of  his  going  out 
when  his  l>e<l  was  a- warming,  anil,  to  her  sur- 
prize, found  she  m  as  gone  tf»o,  and  never  saw 
her  ali«e  afterwards.  She  udinirt-d  what  the 
meaiiin<4f  of  this  should  be,  kiiowinir  that  she 
ne\er  used  to  ^a  out  so  laie  ;  lu  itli«-r  cf>uid  she 
imagine  whither  they  should  U'lroue  ;  liut  alter 
some  considerntion.  did  think  he  imgl.t  tell 
her,  that  the  secUiitit'H  she  ('X|ii>itf(l  v-.cietobe 
siirned  and  sealeil  souicw lit  ic  in  '.If  io\i  u ;  and 
that  he  had  pers<iude<l  her  to  go  mJ  upon  that 
account,  and  so  was  in  expect:) lion  of  \\ivn\ 
quickly.  The  maid  that  was  warntiL]^  l.'.s  !>ed 
stayeil,  ex|>e('ting  him  to  come  up;  li.tT.kitig, 
when  she  lieani  the  noise  of  tlie  door,  lie  w  as 
gone  to  carry  his  letter  sniiK^Mlu're  ;  m  liii-h,  it 
is  thought  by  some,  was  his  pretence  in  going 
out,  thereby  to  draw  her  to  the  door,  to  let  him 
out ;  for  there  is  no  ground  to  believe  she  went 
any  farther  with  him  willingly :  so  they  sat  up 
all  night,  both  her  moUier  and  the 


^miF 


^wi^ 


1243]  11  WILLIAM  III.  Tnat  of  Spencer  Caifsper  and  atlttTt, 


jietiifisf  them  every  ininulc*,  not  k no wiug- where 
to  Jook  tbr  H*fr  at  iml  tttne  ofnigUt  5  but  if  tliey 
Ltti!,  vvfiulU  i*e%er  liavc  gone  to  the  river,  nhere 
sli€' wav  foimtl  Hoalini^  the  next  mornmg ;  for 
lb  ere  was  nn  irianner  of  eircum^tantf?*  either 
in  her  wonh  or  aelionh,  Ihiit  diiJ  give  them  any 
CJkum  U»  ihink  she  wtiukL  drown  herself,  or  that 
she  e?er  had  anj^'  lUlng  of  ih^t  nature  in  her 

thoui^lilii. 

No  KOLtner  was  she  taken  out  of  the  riFer, 
but  it  was  spreiid,  hv  his  party,  Wlh  in  cil^ 
and  ctiuutrj,  tlmt  she  was  with  ehild,  an  J  liaa 
tli'owne*!  herself  to  avoid  the  sli^ime.  That  she 
wa>^  not  drovvuifd,  is  dear  unto  a] I  who  are  im- 
pfirtial,  and  have  had  a  true  account  of  the 
caise,  either  sit  the  triul,  qt  oI  her  wise ;  a«  il 
plainly  appeared  hy  thbsie  selLleTuents  of  hlood 
and  hroJEia^  ulioot  hor  hetid  and  neek,  and  oa 
one  of  her  arms ;  and  her  buving'  no  wafer  in 
her,  hut  was  empty  and  laiik,  when  she  was 
first  taken  out  of  ih'^  Wjitt^r, 

The  evidence  was  very  full  and  ]duin  agiLitiit 
them,  and  the  judgments  of  the  doctors:  fitiMid 
firm  and  jsjood*  und  are  not,  nor  ever  can  be  dif- 
prort^d,  by  all  the  evasions  and  dultnctions  of 
vofnutacy  drowning,  and  drowning  hy  acddent  j 
nor  by  all  thoce  little  Ericka  made  use  of  by 
tbose*on  !be  other  side,  by  drowninij,  and  lialf 
drowning  of  dogs,  and  otiier  such  like  experi- 
ments, whereby  they  have  only  exposed  thif  en- 
eelvGS,  But  when  she  was  taken  up  a^ain, 
After  she  had  heen  hurled  six  wocka,  in  order 
to  be  cleared  of  ibat  infamous  report,  wbieh 
then  was  given  out,  for  the  only  reason  why 
she  drowned  Uerstlf  (lo  wit),  ber  hein^  wiih 
child ;  then  nothing  could  be  n^ore  plain,  than 
that  she  waa  not  drowned,  but  came  hy  her 
deaib  some  other  way,  a^  the  doctors  and  sur^ 
geons  did  j^^ive  tbcir  ojvinion  upon  oath,  before 
the  lord  chief  Justice  Holl^  and  at  the  trial  al&o. 

And  it  is  very  probable,  that  these  three  ffea^ 
tleraen,  John  M arson,  Ellis  Stfpbens, and  Wm. 
Rogers,  knew  very  well  bo^v  she  came  hy  her 
death,  (whose  livt'^Spencc'r  Cow  per  seemed  to 
lie  mote  Under  of  than  of  bis  nwn)  hy  their  dis- 
course that  night  {ter  death  ^vas,  about  an  bonr 
after  she  \ras  tni^f^in^;  for  %^  soon  as  tlkcy 
eam^e  into  tlieir  JodgtU|rs  at  John  (Inrrey^ci,  they 
eonld  not  furliear^  bnt  began  to  ask  hitn  several 
question,?  ahuut  her.  Ahbongh  wtf  do  not  ua< 
der^tand  tl»at  either  of  Ihem  bad  any  former 
knowledge  of  her  I  yet  M  arson  pretended,  tliat 
he  liad  made  love  to  her,  and  Ibat  she  had  cast 
him  ofT'y  *  Bulf^  S3t{l  be,  *  a  friend  of  mine  is 

*  even  with  her  by  this  limef  then  one  of  the 
others  asked  iiim,  Mf  the  busioess  was  done  ?^ 

*  If  it  is  not,'  said  be,  *  it  will  be  done  this 
'  night.*  *  Yes,*  says  the  other,  *  ber  business 
'it  done ;  8arab  Stool's  courting  days  are 
^  orerJ  What  couM  have  been  spoke  idaioer, 
eicept  they  hail  said,  ^  8heis  deadf '  This  was 
positively  proved  againi^t  lb  em.  Aho^  the  said 
Blarson,  when  he  came  into  his  lodging,  was  in 
a  greiit  sweat,  and  e^lleil  for  a  Bre  to  dry  his 
feel  anti  shoes,  they  lieing  wet  both  without 
aiidwiibln;  and  pieteuded,  that  be  ^^  at:  just 
then  k'ome  from  London^  it  being  then  between 


eleven  and  twelve  o^cloek  at  night;  vWruit 
waa  proved,  thai  be  came  into  lowti  itu «  _ 
three  bo ura  before.  And  when  M»]i»ai4d  ' 
the  other  two,  ^  what  tbey  bad  «pet!l  thit  dif ?* 
one  of  them  asked,  '  what  was  thai  ^  Wf 
'  He  was  to  have  forty  or  Efty  puuili  (« JH 
*■  simre.'  The  said  5l[irson  alia  yd\a^  §$ 
money  out  of  his  pocket,  swore  Ihitbevnil 
spendfitall  next  day,  torjo^^  the  bail»«if|i 
done.  And  w  b  e  reas  they  say,  m  theti  Cm  t 
the  parliament,  ■  The^  are  mea  in  pvA  lt» 

*  noss  at  London  f  if  they  are  to,  il  hM  bi 
well  if  tbey  bad  staid  in  it;  for  sure  HM^ 
tbey  had  nnj^ood  business  at  Harlfoni;  nBw 
did  they  pretend  to  any  at  all,  biit  uid,  % 
'  came  'only  to  see  foshiona^^  Ut  tbe  mmt, 
w  here  they  lodged. 

And  it  IS  very  observable,  bow  bi^M)  "fct 
pl^Lsed  Spencer  Cnwper  was  at  her  tH^iiif  t^ 
up,  and  hciw  Ue  earnest) v  besought  ibc  juija, 
that  what  the  doctors  did  and  ^d  thuny  m^ 
not  be  allowed,  or   taken  for  eirid*fiicf^i^ 
legiugf  that  she  ought  not  to  have  betn  tibl 
out  of  hvt  grave  without  legal  antlicinJjfT  fe 
prifitetn-specLion  ofjiartics,  alu»fHltcr  itaa^ 
themselves  ;  ^bei'eas  there  oo^bt  to hm m 
some  otk  both  sides,  he  savs,  lest  thr^  iMIi 
have  broke  her  icull,  and  tW  genllinfico  Mt 
harelieeu  trepanned;  and  yet  doctor  €uii|» 
air  William  Cow  |>er*s  doctor,  was  wnii  ii^ 
all  the  while,  as  doctor  Coats  worth  u^iM 
judge,  and  was  sent  for,  on  purpoM-  to  tilt 
any  such  objection;  and  did  set  bii  lii^ 
the  certificate,  nf  her  clearness  of  that 
whh  the  rest  of  the  doctors:   which  is  'm 
loweth  : 

*  We  w  hose  names  are  here  uodM' 
'  having  ejcamined  the   body  of  Mi«.  Snl 
*•  Stout,  deceased,  do  tlod  tbt:  uterus  I'^dM 

*  free  and  empty,  and  of  the  natural  6j;wtB 

*  inaguitude,  as  usually  in  virgins.  ^^^*'^ 
*■  no  watfr  in  the  siomacb,  inle±itincs^alKl«M| 
^  lungs,  or  cavity  of  the  thorax.  | 

JqUH   D|1IS£UL£,  f^ 

WitxLiii  CoAisWiem 

ROBEAT   DiilsniU,llJI( 

JoHK  DmsBALE,  joi«    I 
Hertford^  4prU  SSiA,  t699<         (Copi*  vfiij  ' 

When  all  mouths  were  sto}^)ed,  ioii  p^^ 
silenre  in  that  malterf  and  no  reasrju  cooU  l| 
given  why  sh#  should  drown  ber^;  iM 
Spencer  Cnvvper  wai«t  a  loss,  aod  katwril 
what  to  pretend,  why  she  sho«U  do  la;  W 
(to  use  tiis  own  words)  siime  htarls  w«J*|5 
tc^etber,  to  contrive  that  she  was  in  I«r«  iil^ 
him. 

In  order  to  this  desigri,  those  letteis 
vented,  which  were  protluced  in  cotiri,  (fcli 
a  word  was  ever  heard  of  them  before 
taken  up  again)  and  a  witness  was  prufi 
prove  the  receiving  of  ibem    both;    but* 
Jriend   Marshall^    who  was    hb   wilit'Cs,  feii 
forgot  the  year  when   the  first  v***  wrilt  • 
«aid}  it  waa  March  w&a  twdveoioutli 


amabi  1^ 


I  fiir  the  Murder  of  Mrs.  Sarah  Stoui. 

rf  was  refmhed  by  the  second,  which 
litd  balfbor  days  after;  and  itieems 
lad  forffotten  to  date  that  second  teller, 
to  giTe  It  aay  credit  at  all.  This  was  that 
I  b0 calls  that  importanate  letter  by  which 
■  ips ited  down  to  lodge  at  that  gentle- 
M^  hoiiar,  which  was  dated  the  ninth  of 
b. 

w  if  her  maid  Sarah  Walker's  evideDce  is 
fed,  which  she  begins  with,  *  My  lord,  on 
lay  before  the  last  assize,  my  mistress 
It  receiTed  a  letter  from  Mr.  Cowper's 
r^  to  let  her  know  we  must  expect  Mr. 
pper  at  the  assise ;  and  accordingly  we 
ided  him,  and  proTided  for  his  cominif .' 
ii  was  the  same  day  on  which  he  says  he 
ed  her  letter  of  invitation  that  she  received 
It's,  by  which  he  invited  himself  down. 
It  if  she  had  really  writ  that  letter,  his 

most  needs  be  writ  and  sent  the  day 
her's  could  come  to  his  hands. 
1  how  those  letters  should  be  known  to 
from  flarah  Stout  is  very  unaccountable : 
there  had  been  such  a  person  as  Mrs. 
Ellea  at  that  coffee-house  he  mentions, 
li,  apoB  enquiry,  we  cannot  hear  there 
what  be  had  to  do  to  open  her  letters  P 
m  couhl  he  tell  that  they  were  for  him, 
me  from  Sfrah  Stout,  seeing  they  were 
«cled  to  him,  nor  cither  S.  &>wper  nor 
nt  within  them,  but  only  Sir  ? 
prove  these  letters  to  be  her  hand,  he 

his  friend  Alarshall  to  shew  letters 
be  pretended  she  writ  to  liim,  as  iklse  as 
her ;  in  one  of  which  there  were  thanks 
I  sopgs.  ft  is  very  unlikely  that  she 
I  desire  or  accept  of  son^,  one  who  was 
beard  to  sing  a  song  m  her  life ;  and 
Iftrsball  too,  whose  courtship  she  never 
ed:  for  he  himself  said  at  the  trial,  that 
rarj  little  trial  she  gave  him  a  very  fbir 
.  And  Spencer  Cowper  also  said  to  the 
r*s  tnqoest,  that  Marshall  told  him,  she 
I  gave  him  the  repube. 
I  eonfirms  the  falseness  of  that  story 
he  brinp  to  introduce  his  letters.  And 
^  abe  IS  gone,  and  not  in  a  capacity  to 
herself;  yet  the  woman  who  he  says 
I  with  them  is  alive,  and  doth  affirm  it 
which  is  as  followeth  : 


■jfs.  It  happened  one  evening  that  Mrs. 
•M  another,  and  Mr.  Marshall,  and  he, 
ivalkiog  together;  and  Mr.  Blarshall 
i^her  being  a  little  before,  she  took  that 
mity  to  speak  to  him,  in  such  terms  as 
fcsaed  it  sorpriied  him,  and  said,  she  did 
■k  ke  had  been  so  dull :  he  desiring  to 
whefcin  his  dulness  did  consist;  she 
ifhetbonght  she  would  marry  Marshall? 
I,  Yea ;  elee  she  had  done  ill  in  what 
d  done :  the  said,  No ;  she  thought  it 
serve  to  divert  the  censure  of  the  world, 
NMf  her  ac^uaintaBce  with  him. 
liiicomst,  if  it  had  been  true,  would  have 
Irtetshe  kept  Marshall  company,  and 
ite  believe  she  would  have  him:  where- 
mm  riM  iMid  nenr  teen  kim  in  all  her 


A.  D.  169a  [1216 

life  but  once,  and  that  was  but  two  or  three 
days  before;  and  they  were  not  so  much 
acquainted  then,  as  to  speak  cue  to  the  other : 
and  tberefoie  there  could  be  no  grounH  for  such 
discourses  if  she  had  walked  alone  with  Spencer 
Cowper,  which  she  did  not ;  i'ur  the  two  young 
women  having  been  taking  a  walk  in  the  6ehJ, 
as  they  were  coming  home  they  met  Spencer 
Cowper  and  Marshall ;  and  they  both  turned, 
and  walked  back  before,  and  the  two  young 
women  together  behind  him :  and  she  had  no 
private  discourse  at  all  witii  Spencer  Cowper  ; 
neither  had  they  four  any  walk  together  after- 
wards, in  the  held  or  elsewhere. 

These  letters,  which  were  ushered  in  by  thit 
discourse,  he  would  have  it  thought  that  the 
shewing  of  them  was  so  tender  a  point  with 
him,  and  that  he  did  it  with  so  much  reluctancy 
and  compulsion,  that  nothing  else  should  have 
furcefl  liim  to  hare  brought  them  upon  the 
stage,  if  he  had  not  thoxe  three  innocent  gen« 
tlemen  to  defend  ^surelv  they  had  greatly 
obliged  him) ;  and  he  solemnly  protested,  that 
if  he  had  stood  there  singly  upon  his  own  life, 
on  that  evidence,  he  wouul  not  have  done  it : 
when  at  the  same  time,  and  with  the  same 
breath,  he  himself  proved  it  false ;  for  he  says, 
upon  the  recei\  iug  of  them,  he  shewed  one  to 
his  brother,  and  both  to  Blai-shall,  and  they 
both  saw  it,  and  read  it :  that  was  the  last,  the 
Friday  before  that  assize,  when  neither  his  own 
life  nor  his  three  gentlemen's  were  in  any 
danger;  for  she  was  then  alive.  And  if  there 
had  been  such  letters  of  her*s,  he  could  not 
have  shewed  them  to  one  that  in  all  probability 
would  have  exposed  or  defamed  her  more  than 
Marshall,  a  repulsed  lover,  a  kinsman  of  hit 
wife's,  unto  wnom  he  endeavoured  to  betray 
her ;  who,  u]M)n  some  slight  or  disgust  she 
gave  him,  told  S[)encer  Cowper,  that  if  he  was 
his  friend,  he  would  shoot  her.  This  she  told 
both  her  own  and  her  mother's  maid :  and  also, 
as  it  is  observed  in  the  Hertford  Letter,  the 
printers,  who  writ  the  trial  in  short-hand,  not 
naving  taken  those  letters,  were  favoured  with 
the  copies  of  them,  to  be  exposed  to  the  worid. 

Then  there  was  an  account  given  to  the 
judge,  in  the  court,  of  his  p^ing  to  I>eptford, 
and  was  said  to  be  told  his  father  at  dinner  in 
her  hearing,  about  a  year  and  a  half  before ; 
which  put  her  iuto  a  swoon,  if  any  botiy  will 
believe  it :  and  the  use  that  was  made  of  this 
was,  to  render  her  as  bad  as  possible,  and 
make  the  worid  believe  how  deeply  she  was 
in  love  with  him.  But  it  is  matter  of  adrnu^- 
tion  to  most  that  hear  it,  that  he  diil  not  tell  his 
wife,  as  well  as  his  father  and  brother,  how 
fond  she  was  of  him :  if  it  had  been  true,  sure- 
ly that  would  have  diverted  her  from  frequent* 
ing  her  company  so  ollen  as  site  did  «N  that 
summer  following,  as  is  before  mentioned, 
which  all  the  neighbourhood  can  witness.  And 
if  she  was  such  a  person  as  they  now  render 
her,  why  did  they  scek«nd  desire  her  compa- 
n^r,  as  they  did  ?  For  she  has  several  tiinet 
said,  she  never  sought  theirs. 

And  also,  it  it  as  orach  to  be  irondered  «t( 


■Pfip 


I^SH 


HIT]  U  WILLIAM  UL  Tfid  nf  Spencer  CtMper  andptien,        {m 


th&i  £0  cbastc  a  mim  fi»  he  woM  appear  to  be, 
ftntlntie  in  so  flminshi£i|r  a  coniiitioQ,  a^i  be  iisiys 
ht  is,  sboiilcl  order  hh  wife  to  write,  or  biiVe 
Biiy  Ihtmglils  of  Nidging;  at  a  hwuse,  for  saTing 
the  chariff  aV  a  guiuen  (Ihr  so  he  laid  al  ht^ 
tmli  that  hi^  iro»<I  Liuiiban<iry  to  save  a  guintf^ 
"hmdhrougblail  that  ini«chierup<iH  bim),  where 
•o  levpil  A  wotimii  rs  he  would  have  hertlkOfrifbt 
to  be  tftd  ilivel)^  if  be  hnd  h^tn  rttaHy  ioviteiL ; 
which  sore  eooui^b  be  was  oot,  hyl  invited 
iitm&df ;  aod  so  she  told  ber  mother  before  he 
cmtie. 

Bui  ii  is  plaioTy  to  he  iindersbodd,  thut  the 
rcsfiect  she  hati  for  bin*,  i^as  not  as  for  one  tbftl 
•he  heliered  to  l>e  viciously  incbiied,  hat  as  for 
ail  honest  itmn ;  as  appeared  by  the  f  rtist  sbe 
fepo«e4  in  him  ;  nnd  ako  hb  heiog-  relaled  to 
th»t  tiimtly,  whom  sb^,  as  well  as  her  rela- 
t*oii«,  dul  m  bigblj  value  »od  esteem,  that  she 
couhl  have  put  nut  only  her  money,  but  her 
lite  inlo  »oy  one  ol"  their  hondst 

Khe  hale  tliou^jbi  vvh»t  sort  of  a  malt  $hc  had 
to  do  I  with;  she  was  ao  tlecKived  by  his 
seetuin&f  s^ibriely  wbcn  in  her  con^paaVt  &nd 
the  ifreai  iireteodetl  kiotiness  to  ber  by  him  and 
hit  wife,  Jiulh  tor  her  own  sake  aod  her  tli- 
ther*i»,  she  cihiM  nol  iaiagino  tbat  a  hrtincb  nf 
tbiil  fmiiiJy  could  have  touched  a  hair  of  htr 
heads  lo  liuve  Imit  her,  or  have  wroo^jed  ber  of 
one  ikrlbiotr  -  she  was  so  honest  aod  phio- 
Jiinirted,  itnd  £o  iuaoceot  bpnielf,  aod  so  far 
from  dfserviog'  any  iU  iistige  from  fiiru,  or  ttny 
of  ihHl  fjimih%'or  indet^d  from  auy  die,  thai 
«he,  ax  welJ  as  her  relations,  could  have  served 
tbt^m  to  the  utmost  i*f  their  power :  but  w  Iiat 
Tetorns  of  kindness  hav^  het^n  inade^  and  how 
ihe  bath  betn  treated  mn\  defumed,  no^v  she  is 
^one,  and  not  in  a  ca|»actty  lo  defend  or  answer 
lor  herself,  Icl  tbe  worbt  jiid|re. 

Bui  it  i«  efident  and  plain*  tbat  most,  or 
chiE^flv  what  he  made  use  of  at  his  tri^I,  to  de- 
fend fiimself  and  hi»  Three  gfentlcmen,  wberi  be 
was  riot  upon  his  oath,  is  proved  faJse,  even  by 
wha'Viint self  did  sw^^ar  when  ]io  was  examined 
by  the  coroner's  ini;oe^  i  tor  when  ibf  y  a^ked 
him,  if  be  knew  atiy  ihin^'  thflt  troubled  or  put 
her  mto  a  discontetit,  or  di^crncil  she  was  mC' 
Inncholy,  or  knew  any  one  she  was  in  love 
virh,  or  any  caufse  why  she  should  drown  her- 
ftelf  ?  Unto  all  whreh  he  aniivvered.  No,  upon 
his  oath  ;  he  discerned  notbiofj  of  melantlicjly, 
neither  knew  he  any  that  she  was  in  love  with  ; 
he  knew  one  ^Marshall  that  was  in  lof'e  wiiii 
her,  but  she  had  none  for  him,  but  always  gave 
biin  the  repnlse ',  and  she  was  a  very  mode«t 
woman,  and  he  knew  no  cause  why  ^tie  gliauid 
drown  herself 

And  yet  at  biBtnal  lK)t1i  he  and  his  witnessc!;s 
pf  el  ended  to  know  her  to  be  ^o  inelaocboty  as 
fvag  near  to  a  distraction  i  and  this  depth  of 
melancholy  be  would  iimnuate  a^  for  love  of 
him  ;  and  there  lore  *ihe  drowned  herself 

Noir  what  can  be  more  eontnidictory,  or 
more  fully  prove  that.whieb  he  sipake  at  his 
irial  to  tie  fal^ei  than  thii  whieli  be  himself  did 
iwear?  And  this  warn  evidenced  by  two  of  the 
#9f  eiiet^c  iuquest|  Aod  ierecal  ifKire  would  have 


done  the  same^  if  they  had  been  siiSered 
HjieiLk  ;    but,  aa  tbe  Irial  relates,  thrj^  vi 

Many  observations  mi|f  ht  be  made,  mat  i 

staneeii  ^ireo,  to  clear  her  reputatiutt,  ml 
prove  the  falisene^s  af  what  wai^  civ%i  optm  hi 
as,  in  particular,  her  9i>  eameatJy  tori 
youne  woman,  an  acijuaintar^ce  of  hen, 
had  kept  her  company  thai  »f^rm<Hm, 
U'^ed  to  lie  wilb  ber  sometimei,  to  my  i 
wit  1 1  her  thai  nij^t  her  death  wai ;  n 
teihit^  ber,  she  could  not  well  slay  1% 
encf^ired  her  U>  eomc  and  dine  mih 
ne\l  day,  aiid  told  her  what  wa<  for 
desiring  her  company  «ll  day  artrr, 
intt'oding^  to  g'o  from  home  ;  whldi  ibf{ 
mi  sell  to  do. 

And  it  is  very  olwervable,  from  the 
of  (be  trial  to  the  end,  what  sbitt^  And 
he  i^  forced  to  make  uiie  of  to  dnil  ont  diili^ 
titat  there  tuiijbl  not  be  enough  fwlhfWln 
nes&e,s  on  the  other  side  to  be  heard  ;  ud  ik 
kh  endeavotirioi^  to  ba^e  the  evidoase  ignl 
him ;  a^  first,  above  twenty  frivotocit  Mft 
linnt  be  asked  her  maid  abH>iit  pdifM,  M 
she  bouj^iit  to  poijkOti  a  miscbiet^oas  dc|f  «iii| 
baimted  the  house;  and  if  he  ooald  ^^ 
meau^  confuse  and  put  her  out^  if  sht  N 
bad  irutb  on  her  side,  antfgladly  wuoMl 
picktd  s^Hiietbing:  oiii  of  it,  if  be  e^tiM  I 
told  wliat. 

Also,  the  many  impeninent  mm^nk 
otdls  to  prove  hisiulenlior)  to  lodge  it  Bu^ 
tlnit  Diiflit  her  deulh  was,  and  «endiaf  lar] 
h^i^  tliitber,  nn^I  lodg-ing^  bis  i\m^  ifcfl 
which  ]|geemi»  was  not  ai  all  e.¥|ieettrd  hviW 
for  J  oi u i  Da ri U ord  $  wi te  sa id ,  1 1 1 h la  Int  > 
sbe  ht^lieved  8j»eucer  Cow  per  did  nol « 
to  lod|^e  al  her  hou^e  P  Hut  uai  ^urpnae^li 
be  bent  to  her,  bi^tweeu  eleven  aad  n 
o^cloek  at  ni^bt,  tci  ^et  liii  bed  rts^^i 
came  before  it  was  quite  done. 

And  the  nejtt  night  after,  when  b«  w* 
for  by  tlic  cfiioDer'ji  inquest  to  give  in 
where  lie  left  her,  he  b^id,  in  the  parlour ^ 
wefi.il.  And  hein^  asked,  if  he  dnt  not^ 
bcr  bid  ber  maid  w^rin  his  bal  ^  Ht  m 
thought  she  had  meant  her  own  bed.  ^" 
very  uolikLdy  tbat  she  waald  ^  tnMv 
leave  bini  sitting  there  ;  or  tbat  when  l*^. 
out  she  should  sit  still,  and  oot  ligltt  bus  I'P 
door.  But  if  it  were  as  he  say »» that  I«*>i 
her  in  the  parlour  ;  tor  a  man  "f  h\^  r\>\-^ 
and  figure  m  the  world  to  po  awiw  nt  i--'  "j 
of  nigtit,  when  he  knew  there  wiiis  j  jjre  »ji 
chamber,  and  liis  bed  naa  a  warming,  *iwl 
himself  out  in  the  dark,  and^ay  notljtrigMi 
Isody,  it  certainly  looks  very  darkly. 

And  then  his  sending  for  bi«  ht^nf  1 
times  to  ber  mother's  house  ihe  niL'NtiJli 
deatli,  befor^^  he  \%&a  examined  by  »»f  c 
infjuest,  and  would  have  goneioul  of  WffI 
if  he  could  have  had  him^  as  he  < 
the  lord  chief  justice  Hdl  ;  but  «t  iJ»f  D 
said,  I  sent  for  him,   for  fear  the  \<^  ' 
manor  bhouUl  sei^e  bim. 

AiiOp  wbeu  it  was  taken  aoiice  ofai  ^* 


J] 


Trial  ofMaryButkr. 


A.  D.  1(S99. 


[IS50 


le  coomd,  that  he  never  came  afler  that 
t  her  death  was,  to  i^if  e  her  mother  any 
int  where  he  left  her,  or  in  any  wise  to 
her  aatisikction  ;  to  thii  he  answered.  It 
It  be  strange  for  me  to  come  and  visit  a 
an  that  I  never  had  the  least  knowledgre 
%Dd  yet  he  had  several  times  lodged  at  her 
e  wlien  her  husband  was  limine.  And  that 
t  also,  that  he  was  examined  by  the  co- 
t's inquest,  when  they  asked  him,  it*  he 
ned  her  (laughter  to  be  melancholy  ?  He 
No  ;  only  he  thought  she  was  not  so  free 
loourse  at  dinner  as  sometimes  he  had  seen 
for  most  of  the  disconrse  then  was  between 
nother  and  him.  Surely  he  will  be  hard 
o  it  to  reconcile  himself  in  this  discourse, 
id  it  is  very  remarkable,  what  great  dissi- 
ition  he  manifested  at  that  time ;  for  in  his 
wie,  he  taking  occasion  to  speak  uf  the 
le  called  Quakers,  be  expressed  so  great 
fi>r  them,  and  for  their  principles,  that  if 
be  chaiigred  his  religion,  he  said,  it  should 
rtheirs :  Notwithstanding  he  derided  them 
inch  at  his  trial,  alwut  their  being  by  edu- 
n  intitled  to  the  light  within. 


ThnSj  in  short,  upon  the  whole  matter,  it 
may  be  concluded,  that  the  defence  he  had 
i  made  for  himself  and  his  three  gentlemen,  and 
the  most  material  things  he  made  use  of, 
whereby  they  got  off,  and  were  actiuitted, 
were  proved  false  out  of  his  own  mouth  before 
he  went  out  of  the  court ;  as  it  may  \te  seen 
in  tlie  trial,  where  the  counsellor  for  the  king 
says  thus  :  *  My  lord,  we  insist  upon  it,  that 
'  this  is  a  different  evidence  from  what  Mr. 
'  Cowper  gave  to  the  coroner's  inquest ;  for 

*  then  he  said,  he  knew  none  she  was  in  love 

*  with,  nor  any  cause  why  she  should  do  sucli 
<  an  extravagant  action  as  to  drown  herself. 

*  But  now  he  would  make  the  whole  scheme  of 

*  thin;^  turn  upon  a  love  fit.'  And  then  he 
moved  the  court  to  give  leave  to  call  several 
persons  of  quality  and  good  repute,  who  were 
there  present,  to  speak  to  her  reputation,  in 
contradiction  to  the  letters  producefl^;  declar- 
ing, that  he  believed  the  whole  town  would  do 
the  same.  Then  the  judge  said,  they  would 
grant  that ;  and  did  not  question  it.  Bo  there 
was  none  permitted  to  say  any  thing  to  that 
purpose. 


I  The  Trial  of  Mary  Butler  alias  Strickland,  at  the  Old 
Bailey,  for  Forging  a  Bond  of  40,000/.  in  the  Name  of  Robert 
Clayton:*  11  Willia3i  III,  a,  d.  I699. 


October  1«,  1699. 

L  ofArr.    BrING  Mary  Butler  to  the 
[Accordingly  she  was  brought.] 

iary  Butler  alias  Strickland,  you  stand  in- 
led  l»y  the  name  of  Alary  Butler  alias 
iekland,  hite  of  London,  widow ;  for  that 
I  codeavouring,  and  maliciously  intending, 
Aeeeive  and  oppress  sir  Robert  Clayton, 
ghtand  alderman  of  London,  the  1st  day 
December,  in  the  7th  year  of  his  now  ma- 
ty's  reign,  at  London  aforesaid,  in  the  pa- 
I  of  St.  Mary  Woolnoth,  in  the  ward  of 
ighome,  a  certain  false  writing,  sealed  in 
■  of  a  bond,  bearing  date  the  14th  day  of 
ril,  1687,  in  the  name  of  the  sud  sir  Ro- 
t  Chyton,  for  the  payment  of  the  penal 
n  of  40,U00/.,  to  be  made  by  the  said  sir 
ktti  Clayton  to  you  Mary  Butler  alias 
iddand,  with  condition  there  under  writ- 
i;  eooeerning,  among  other  things,  the 
jmeai  of  90,000/.,  to  be  made  to  you  Mary 
fUsr  alias  Suickland,  ailcr  the  death  of  the 
id  sir.  Robert  Clayton,  by  his  heirs,  exc- 
ioiB,  and  administrators ;  talsely,  know- 
fly,  unlawfully,  and  subtilly  did  make, 
VMerfeit  and  write,  and  cause  to  be  made, 
■rtafeited  and  written :  And  further, 
it  you,  Blary  Butler  alias  Strickland,  af- 

Por  the  law  of  Forgery,  see  Kast's  Pleas 
•  Crown,  c.  19» 
K>JL  XIU. 


'  terwards,  viz.  the  1st  day  of  December,  m 
'  the  7th  year  aforesaid,  at  London   afore- 

<  said,  in  tlie  parish  and  ward  aforesaid,  a  cer- 

*  tain  false  and  forged  writing,  sealed  in  form 

*  of  a  bond,  in  the  name  of  tlie  said  sir  Robert 
'  Clayton,  for  the  payment  of  the  penal  sum  of 
'  40,000/.  by  the  said  sir  Robert  Clayton,  t» 
'  you  Mary  Butler  alias  Strickland,  with  con- 

*  dition  under  written,  concernint;,  among  other 

*  things,  the  payment  of  20,000/.,  to  lie  made 
Mo  you  Mary  Butler  alias  Su-ickland,  after  the 

*  death  of  the  said  sir  Robert  Clayton,  by  his 

*  heirs,  executors  or  administrators,  as  a  true 

*  bond  of  the  said  sir  Robert  Clayton,  as  if 
'  really  made  by  him ;  falsely,  subtilly,  and 
'  deceitfully,  did  publish,  you  Mary  Butler  alias 

*  Strickland  well  Knowing  the  said  writing  to 

<  be  false,  forged  and  counterfeited,  and  not  the 

<  deed  of  the  said  sir  Robert  Clayton,  tu  the 

*  great  damage  of  the  said  sir  Robert  Clayton, 

*  to  the  evil  example  of  all  others  in  the  like 

*  case  ofTeiifliug,  against  the  peace  of  our  sove- 

*  reign  lord  the  king,  his  crown  and  dignity.' 

Cl.ofArr,  How  tayest  tbou,  Mary  Butler 
alias  Strickland,  art  thou  guilty  of  this' forgery 
whereof  thou  stundcst  indicted,  or  not  guilty  1* 

Prisoner,  Not  guilty. 

CI.  of  Arr.  Prisoner,  hM)k  to  your  chal- 
lenges. Oyer,  swear  the  jnry,  which  follow: 
^Villiam  Clark,  William  Christopher,  Thomas 
^Vharton,  George  Kimble,  James  Church, 
John    Whistler,   George    Ludlam,    Kiohanl 

4L 


HI 


nJAM 


,        ui«.  iiTT  that  are 
.,ri%  .'.  uMiNndken  to 

•i^  Tour  kirdsliip, 

nt 

rfiut* 

nr!«>ncr  at  the 

I  C^rtm,  did 

^  '  '  ",    ^    be 

••^  •Iff  {aymeot  of 

«  mku  Id' the  slid 

.Mttto.  tfter  ike  dfiiifcttt 

■  bi^plewkd 
«.    jK   ^ct,  1  do  not 
^  .«r  ^sJtT,  that  she 

.  ..     .ui  eMDsel  for  the 
•     vm  what  sort  of 
^^»    41  ^a  prisoner.    It 
^m  pAiaJiy  than 
."""'     This  IS 
I  Ckyton,  and 
9    -^j  a  little   alter 
««A*4i«<^  or  administra- 
►  1,^00/.  a  year 
of  thb  som. 
.u  30t  rest  here,  (a 
v    fpeoed  to  you.) 
'i*t\\  with,  in  the 
>  of  40,000/. 
%v.;c  years  Ijail  a  . 
. .-,  ifulaie  duke  | 
•  .-.r  iiatl,  nr  pre-  i 
-.    i;:'.l  lor  ;',000/.,  j 
.      t  .1.!),  :  1..1  U!l    lUl-   I 

■  -.  ■'  t'u»priiiripal  1 
.    I  .:!■;;•  a  trustor  ^ 

.      j;.  :iiriil  of  his  j 
•.V.  .r.ily  I"  sir  Ko-  i 
wv  uiul  irit<.i»»^t  ! 
0\\  ihis  uccuiiiil  ! 
..s  cotirpiiJiy  ami 
'.  nLu'  jircteiulutl  \n 
..  -"le  was  sorry  for 
.  ,  1  ilu'  duke  ;  that 
^>,  .1(1(1  if  she  should 
«4tid  her  into  a  nun- 
...  vHinterfeit,  and  in 
.   V  I'iaMon  ;  and  he 

.  '.  m»t\ullislandiD<y  I 
.     1  -Mil  Uvc'lve  years 
..    1  s:i,i-e  tliat  site 

\  \  it  ( 'ia\l:M)  had 
I   in.  that  tlio  pr"    i 
.    t.-n,  ii«»  hsH  tli;«u  I 
»    ".   '.  C'laytnii  frud;  j 

■  I  it  oiiU  :u"l  I  \-  j 
..  .     si  fur.  rif'd  <r,\w  > 

»,  I    whi  iher  ih('\ 

..    '.    his  fstili'.       Tn 

.  .va  j.uai»cr,  that  bhe 


\^' 


Trial  of  Mary  BnOer,  [m 

had  no  claim  i>r  demand  ijnaDttlNBM«| 
account  nr  hatsoefer     W  hlk  i!us  wu  ■  uih* 
tion,  the  pruojier  catpt  to  Mr.  Wwivii^  ■ 
attorney  of  tliis  city  and  brotwht  Sm    vot^ 
ing^  purporting  a  l>ondj  wttbuflaM^BM 
Clayti>ti,  lubscribLvl  lo  it,b^UiiiMMAk 
ibar  witnesses,  as  the  bond  ofsirHnleitCbh 
ton ;  and  told  Mr.  H'oodwanl,  'TiutMia 
ppeti  to  her  hy  sir  Robert  i  1^3    .     <  ^^, 
good  considerations ;  but  it  liaTing  oka  ■, 
some  uneasiness  had  risen  afiont  it  in  nrBAn 
C  :|aytop\^  tUinily  \  atid  (a«  Ehe  prcttidBl)Mi 
this  account  he  had  exhibited  1  bill  is  i» 
a{(ainst  her,  herdbre  tbi«  biotl  oust  be » 
vered  np     and  sir  Robori  litii  promioii mm 
her  a  new  bond  fur  ^o^ooo^.t^^^^^^ 
muney  in  arrears  fur  interest,  wcb  to  be  tnd 
to  pnucipalf  and  put  into  the  nev  boid:  li 
this  vvds  to  be  done  very  pijviitdf,ioaiBrti 
be   known  by  any  of  ur  Hubi^  Cdtlsl 
family ;   and  therefore  acme  «f  hii  mfl 
were  to  be  prit  j  to  it."    Tiwrcapft  ib«  p« 
to  Mf  Woodward  the  bond,  (]e$inif  Mat 
naake  anew  bond  by  it,andtotumilillil^ 
rest  that  was  due  Inio  prineipftl.  Uptt^ 
iMr.  Woodward  made  her  a  bond  of  tJie  f«rifl  p*  ^  - 
of  54,000/. ,  conditioned  for  parment  «f  W  ^ 
after  sir  llobcrt  Clavton^i  death,  andiHirdl^ 
the  mean  time.      I'his  bond  she  took  Ml 
with  her,  and  likewise  the  lirst  bond;  Irttw 
she  dul  with  them  since,  we  are  not fnT^t* 
And  a  great  chai*nre  she  laid  upon  Mr.  ^^it 
ward,  to  carry  it  with  all  possible  prnicvv 
that  no  notice  uiijjht  be  takoii  by  bir  fenbetti 
family. 

Some  few  months  :iiro  llii-.:^  v  as  a:r.'j« 
iutiiiiation  sent  to  sir  J\.  i  i.i\l«'n,  \\\r.  t\ 
iTfeutlewcman  i:r».le!ulcd  t.i  li'>ea  cru^ic-.-i 
upon  him  of  a  L,':e;il  sum  «.fr,. <.:ic-\  il;jit»»<"J 
l»e  jiaid  h'-r,  ehl-er  at  pr.senl.  ur  ai icr  '.-.is  ufr.=  : 
and  thr.t  Mr.  Wt-odwurd  nnt-lu  il-.r  Lo:].!.,*;- 
he  rould  «;i\v.>  r.n  aoc.'iutil  nl  it.  I  ;»«>n  il-.i'- 
Robert  Clayt'-'ii  S(  nt  to  'Ir.  V,  or»,:\var.!.  »jJ 
like  a  very  Ijoik  ^t  man,  told  t'lc  wh.dc  luvi^;. 
in  w hatmannc.  it  was  the  p: :  n,iti-  cimt- i-h.a; 
and  how  he  oiiuie  to  mak.  ilie  l.'oiul  ;  zwi  r.ii 
\w  WAS  deMrc^l  \<  he  ilcn;  in  il ,  sir  ii  jb-.  rl  (.  -j.v 
ton  havin«r  dc  [rod  this  b,.!i  !  sbu  ih  W  n  adtflot 
of  his  own  houve,  th;;t  ii  jl  o|  hbtkmii  njdri 
take  notice  of  if.  Sir  U.('ia>tnn  ho\in:;'ilii«L»> 
lice,  and  tindi:ij,r  tVom  .Mr.  V\  oodii  ar-l.  tin-  j-n- 
sou»ir  had  taken  this  e^iursc  t'>  ca;T\  on  tlr.s  !<• 
sijrii  to  char^a?  hi-  <  ^t..to,  \\r  ^.-t  a  «iim:t 
fromihe  h.rd  <]ii;.i'  jii.  titc  tj  I,i>i-  h-.r  iut:»i« 
him,  to  ho  e.\amini'd  I.  .••.-.v  his  hird<li.|,': 
\\  loTe  beii!«»-  bronq^hl,  s'^-.  uji-f!  her  f  \i!ii: 
i.ailon,  has  conii.^.M  ;1  tin-  v. 'v.''--  r:uiltci.  Kt 
hr.virii;-  ilic  first  in.:i/!.  ai-.!  wV.  n-  if  uois  ivJc 
\>  Ii;"l  i^  Ipci.im-  v\\'  i;.i:  1  .Ihm-  i. '»::.',  we  c;inD"< 
p-t  out  of  I. M-.  i.cv  vl.itlui  v^li,  j^^_r  uJriuJ 
the  na'iir  of  wji-  (».  (;i;!y:!.n  i.M!iU.  IJiii  vi 
nill  jirodiKT  I  ri'.'ir-K' 
•juihy  of  liu'-jiiin-  ii,»; 

i.M'M  of  nvrntv  thouviiHJ  pnoii-i^  ;  aiul  iliiiit 
liaii  t!ie  name  asid  sml  ♦•:  >'r  ;,'.  (I.ivt.wi  A- 
ti\ed  to  it;  and  lliat  sin-  .-.ti.itL'ed  ;*!  to  l»t  s 
*,^ood  bund,  v»eli  cxLculcd  hy  k.r  Jt.  Clayiyii. 


\»iti.  •  N.  <  lo   prove  bt-r 
tll>t    I. nil  '    foi-   ilu^   jijy. 


«  was  interest  dtw  upon  it  from  sir 
uid  that  the  intereet  was  in  the  ae- 
be  turned  into  principa).  We  will 
s  to  prove  this,  and  then  I  hope 
5  aacn  punishmeot  assbe  dcservea. 
£y.  My  lord,  what  the  nature  of 
will  be,  I  shall  inform  you.  It 
zpected  from  us  to  produce  ihe 
lat  she  carried  away  from  Mr. 
so  that  we  cannot  ^ive  the  writinff 
nee  ;  but,  if  sbe  insist  on  it,  we 
I  prodnce  the  bond.  We  hare  the 
lyMr.  Woodward)  ofthe  first  bond 
id  from  ber,  that  he  might  draw 
md  by  it.  But  we  can  prove  from 
lyrees  wiUi  our  record,  that  she 
t  the  first  bond  that  she  produced 
layton's :  That  that  bond  which 
I,  of  which  this  is  the  copy,  she 
)  sir  R  Clayton's  deed.  We  shall 
atkerwards  prove  her  publishing 
idictment  is  against  her  tor  ibrginflf 
d  publishing  that  forged  Mnd, 
!>  be  such,  and  close  aR  with  lier 
on.  And,  my  lord,  there  is  this 
e  could  be  nothing  in  the  bond ; 
9  time  she  pretend^  to  have  this 
9he  was  to  have  twelve  hundred 
r,  she  remained  a  prisoner  all  that 
I  herself  out  by  swearing  she  was 
ve  pounds  in  all  the  worid.  Call 
)rd. 

)  appeared  and  was  sworn.) 

^ht.  Mr.  Woodward,  you  hear 
.rge  is ;  pray  give  sn  account  of 
ow  in  reference  to  it. 
.  My  lord,  Mrs.  Butler  has  been 
aay  years.  About  two  or  three 
ore  or  less,  Mrs.  Butler  came  to 

?;ht  me  a  bond  ;  she  gave  it  me 
told  me  another  must  be  drawn 
B  I  had  perused  the  bond,  I  foond 
d  Robert  Clayton,  and  tour  wit- 
I  set  to  the  bond.  It  was  a  bond 
ilty,  as  I  remember,  of  forty 
tttds,  and  I  think  it  was  in  the 
ir  to  pay,  I  think,  twelve  hundred 
*ar,  by  four  quarteriy  pajrments 
1^  sir  Robert  Clayton's  life,  and 
hm  aix  months  afler  his  death, 
some  other  things  in  that  bond, 
tpear  by  the  co|iy,  which  indeed  I 
sr  Mrs.  Butler  desired  it  might 
beiug  of  a  very  great  concern, 
her  why  such  a  Mnd  shoald  be 
«igbt  it  must  be  great  generosity, 
Hmey  lent.  But  she  told  me  the 
id  was  to  be  delivered  up  to  sir 
isked  her,  why,  since  she  had  it, 
:ecp  it  ?  She  said,  tliat  be  would 
tber  bond.  She  told  me  it  had 
i  my  lady  Clayton  had  some  dis- 
; ;  and  for  my  Udy 's  satisfaction, 
neery  was  exhibited  against  her, 
9  was  to  put  in  her  answer,  and 
limiuiy  aoft  of  bond,  or  iniafiaty 


A.  D.  1699.  [lieSt 

or  any  pretence  that  she  had  upon  sir  Robert 
Clayton. 

fiierj.  Wright.  Sbe  told  yon  this  herself  r 

Woodmmrd.  Yes;  and  when  she  gave  ma 
the  bond,  sbe  told  me  it  was  sir  Robert  Chiy« 
ton's  hood,  or  to  that  purpose.  But  there  be- 
ing about  nine  or  ten  years  arrears  of  interest* 
SM  desired  me  to  cast  up  the  interest  that  was 
in  arrear,  and  that  it  might  be  pot  to  the  pria^ 
cipal  in  the  new  bond,  saying,  that  sir  Robert 
would  give  her  a  bond  for  the  whole  together. 

Serj.  Wright.  Was  the  wh<rfa  interest  prs« 
tended  to  be  in  arrear  P 

Woodward,  1  cannot  say,  all  the  interest. 

8eij.  Wright.  How  did  you  compute  il,  from 
the  date  of  the  bond,  or  from  what  abe  told  you  P 

Woodward.  She  said  abe  bad  received  8om4 
money,  and  I  computed  the  rest  rather  under 
than  over,  and  so  made  the  interest  to  come 
to  7,000/.  ^the  interest  pavable  by  the  bond  be* 
iug  1,2001.  a  year).  Whereupon  she  de^ 
sired  I  would  draw  a  bond  for  it  myself;  and 
acoordingly  sbe  left  the  first  bond  with  me.  I 
took  some  time,  and  drew  it;  and  made  th« 
]>enalty  thereof  54,000/.  conditioned  for  the 
payment  of  S7,000/.  And  it  was  to  be  made 
m  the  same  nature  as  the  former  was,  in  re- 
spect of  the  principal,  and  in  the  mean  time  t* 
continue  the  payment  of  the  interest  yeariy, 
by  proportionable  quarterly  payments. 

Mr.  Montagu.  iVhat  disorarse  bad  yo« 
with  her  about  it? 

Woodward.  I  did  draw  a  bond,  and  did  take 
notice.  That  whereas  sir  R.  Clayton  had  given 
her  this  bond  of  40,000/.  and  at  his  request  she 
had  delivered  it  up  to  him ;  and  upon  an  ac- 
count staled,  there  did  remain  7,000/.  in  ar- 
rears for  interest,  which  in  all  amounted  to 
27,000/.  or  thereabouts  ;  when  I  gave  it  her, 
1  said,  it  was  a  very  great  sum,  it  ooocems  yon 
to  have  witnesses  of  credit,  for  nobody  will 
believe  sir  Robert  Clayton  did  give  you  this 
bond,  especially  after  his  death,  unless  it  be 
very  well  attested.  I  told  her,  if  she  pleased^ 
I  would  go  and  be  a  witness  tor  b«  to  see  it 
executed.  So  she  went  away.  And  when  she 
came  to  mc  again,  she  told  me^  that  sir  Robert 
knew  me  very  well,  but  did  not  think  fit  to 
have  me  for  a  wimeas.  I  answered,  I  do  not 
care ;  but  it  being  a  very  great  sum,  take  care 
it  be  well  execnted.  1  gave  lier  both  the 
bonds,  and  fromUiat  time  heard  no  more  of  it 
till  about  two  months  since. 

Mr.  Northey.  Was  tliera  any  bofly  came  to 
discourse  with  you  of  making  a  new  bond,  be« 
sides  herself? 

Woodward.  Not  that  I  know  of,  I  do  not  re* 
member  any.  It  was  an  extraordinary  sum,  I 
did  take  a  copy  of  the  bond. 

Mr.  Nor  they.  Have  you  it  here  P 

Woodward.  Yea,  I  have  it  here. 

Mr.  Northt*f.  He  swears  he  took  a  copy  of 
it,  and  delivered  it  to  the  prisoner  again.  We 
desire  it  mav  be  read. 

Mr.  MtUfet.  Is  it  a  true  copy  ? 

Woodward,  I  cannot  say  I  examined  it. 

Mr.  JNorrA#y.  Did  yoa  write  it  from  the  boodf 


I 


1SK6]  n  WILLIAM  IIL 

Woodward.  I  did. 

Mr,  Northty.  Do  yoii  beliere  it  ia  a  tnj©  oopv  ? 

WW«?/jr^.  I  WUeveit  b,    TUe  reftsou  wliy 

1  djii  not  examine  h»  waa  betause  it  wm  to  be  a 

BGCTiH, 

Mr.  Malfct,  Do  you  Juuk  i]|K>ci  joarieir  ta 
U^inlkliiMei' 

8#-rj.  ^V>%A^    Htd  ywi  mny  ilireclioo  from 
tba  (iriJwner  ta  t»k**  a  ci»|t_v  ? 
.    iToor/nriJrf/,   I  Cftrtnot  uay  tlmt, 

L*  C.  i.  i/o/i.  Wijy  ifid  you  Write  it  out ; 
iW  yuurr  dl recti nii  to  ilmw  the  new  bond  ? 

mmd&'urd..  I  did  tvrite  it  out,  because  it  is  a 
Epecjiit  conditioii,  more  than  is  Ufiual  ia  iM>m$j$ : 
lor  it  iM  eipr«s«edt  that  tUerc  i^tiould  be  no  pro- 
ieoutifin  atTaiast  her  by  sir  Robeii  Clay  ton ,  or 
h'm  cx^^'utorsj  tither  »t  bw  or  iu  «C|iiityj  tor  ibe 
110,000 ^  or  th@  mteresl,  or  to  do  any  act  to  ob- 
■miiH  hc*r  in  rtjceivrng^  the  sami** 

L.  €.  J,  Holt.  Wheu  did  yoo  tike  %  copy 
of  it? 

IFixtifs^ari/^  At  the  same  tlmst  itid  before  I 
}«tufned  iu 

L.  C.  J*  HqIi,  Did  you  make  the  new  bond 
by  tbU  ^'opy,  or  by  the  fivrtiier  \vmtl  T 

Wtiotiwurd.  Very  Ukfly  I  mij^bt  mo  I>otli. 

L.  ('.  J,  Ho/f.  bid  you  keep  iht^io  botfi  ? 
^    Ifboe/it^dir^.    I  did  ke&jj  iheni  both  bv  lue  till 
1  dahver^^  the  nei*  liood. 

8o*j.  HVi^/i;.  Is  the  copy  your  own  bfuid* 
wrttiiijf  ?' —  Wttodifiard,  Yes, 

Mv.  Mimlugu,  VVbut  tltd  yoti  take  it  frotnF 

Wmidicard.  Ffom  ibe  original. 

Mr.  WrigKii  Aud  do  you  take  that  to  be  a 
true  copy  ? 

WoQdmQrd.  I  belief e  U  ii  a  true  copy. 

Mr.  Hiiil.  Did  you  read  it  orer  at  tbut  time  ? 
I     Woodti^ardM  I  did  read  it  oFCr. 
,    L,  C.  J.  Ho^i.  Did  you  write  it? 
^    Woo^Ei^drtJ.  I  did  writt:  it, 

Mr.  Mullai.  Aud  did  you  examiue  it  afVer- 
ward  ? 

Woodfifard,  No^  I  did  not  examioc  it ;  it  wbs 
not  to  be  taken  notice  of. 

Mr-  iiaii.  Cat!  you  say  yoa  refld  it  oirefully 
over  at  ttiat  time  ? 

i^lr.  CuiH*  It  may  not  be  tlie  rery  same 
bond,  if  be  did  not  t^tatnitie  it  by  the  original, 
aig'MeiJ  by  sir  ilobert  C  by  too. 

Mr.  Norihetf.  They  may  shew  the  boniL 

Mr.  MatirJ.  Did  the  prisoner  bring  the  bortd 
to  you,  of  which  tliia  is  the  Gopy,  and  teii  you, 
this  was.  her  bond  ? 

ftlr>  iWiAcy,  We  will  prove  it  by  ber  own 
oanfcs&iun. 

Mr.  Miiitet.  f  f  tt  be  not  the  same  bond^  she 
cannot  be  coovieted. 

Mr.  Nijrthey,  ^o  doubt  of  it« 

Scrj,  Wrtghi,  Produce  the  copy;  and,  if 
your  Inrdship  please,  it  may  be  read. 

L.  C*  J.  HoU.  Lpt  ii  lie  read. 

"  Noverint  Univensi  per  pre^^ntes  me  Ro- 
bertunt  Clayton,  Mihtetu  ti  Deeurionem,  Aag- 
lice  Kt.  (ft  Alderman  de  i^mdtia,  it^neri  et  lir- 
miter  nbli|fnri  Mary  Bwder  uiias  Strickland,  de 
^uth-iitr4?et  in  Parocbta  de  Eilmootoii,  iu  Co- 
mitata  MiddlflK^,  ridue,  duadragiEta   ndUe 


TnalofMartf  ihaUr, 

Ubns  bone  et  legalb  tmmet'  iii|JI«,  m\mi' 
eidetn  Mary  Butlef  aUai  ^irickluid,  ut  m 
certo  Attomat'  Execoifit^  tel 
BUis,  ad  f|nai)i  quidem  soJutinnem  Woe  «l  ||» 
liter  facieudam  oblign  me,  htf  m!^  " 
et  Administratores  meos,  l&rmilo  D^rfttfli 
^ij^illat'  dat'  decimo  quano  Die  im^  im 
Befoul  Domini  nuistn  Jacobi  SecnadkUvifQi 
tia  Aitg-lie,  Sfc.    li«^s,  ienM»,  Aaii«<^^  Ptatf 

"  The  condtti0fi  of  thia  obUgatko  ii  m|^ 
thai  if  the  alwve  boundf »  »if  Mflbtn  Or^^ 
or  his  aligns  do,  and  shiilt  wdl lading 
or  cause  lo  be  paid  unto  tliqiiboti 
Butler  alias  Htnckbod,  b«r  csavem^ 
tratori,  or  aaugn«,  or  any  of  than,  itiri^ 
every  year,  during  the  ttantk  dliiioikiinl 
the  iul)  and  just  auui  of  1,^00/.  of  hafd 
uey  of  Eoglaud,  by  four  ei|uil  i^uiriMrljf 
menlJ^  beit^  thejuKt  and  tegal  iu«iitti,ti 
due  of  and  for  ikte  priiiciptl«iW«f 
hereiuafier-meiitiouedf   id  mmtttmt  i&d 
following  ^  that  ii  tv  aay,  lAuoL  on  t)ie  1 
July  next  casntnk'  ibedait^of  th^-st 
3001.  on  the  lith  of  Octijber  next  cominj; 
on  thi*  I4ib  of  J.ipuary,  whidi  tftliili  ^» 
yrar  ot  our  Lord  1688^  and  3iMJ/.  wtb»' 
oi'  April  (bllowiu^  ;  acid  so  on  ever;  1^ 
14  th  day  ot  the  laid  toootba  in  evi 
neati  and  coniequetitly  ct^cuiag  i 
the  like  sum  of  5Q0L  durijii^  the  tinit  tiil 
of  the  natural  lite  of  the  said  m  HiAcflC 
ton  I  and  &L#o»  if  the  heirs,  execoioc^,  td 
miuktratorsof  the  said  sir  Robert  C1s)Im 
and  iihall^  on  or  before  tlie  end  and  *^^  jt 
of  fix  mouths  nejct  after  the  death  oriltctfM 
hiiu  the  said  sir  ftobert  Clayton,  miinif  _- 
and  truly  pay,  or  cause  to  be  paid,  WBm 
said  Mary  Butler  alias  ^trkklatnt,  \itf 
tora,  administrators,  or  assigns,  ihc  ivlim 
just  sum  ol'  UQ^OOiH.  of  Jaw  iul  nioMy  of  lifr 
laud,  above  expre^aied;  but  al^  all  «i)di 
rest  thereof^  alter  the  r4ie  afures^ud^  u  ^i" 
in  arr^ar  and  unpaid  at  the  d«^th  d  tbcii^ 
said  sir  liobert  Clayton,  and  aM  tU  iS^^* 
iihall  EfTOw  due  to  be  jiaid  for  ihefaiBeri^* 
lou^  time  of  tlie  said  six  tnontht  m  tli<^  9dt^^ 
of  20^000^,  aha  11  be  ut^^stied  and  unpai'i  ik 
tlie  death  or  decease  of  the  said  ^^Lr  Iwd 
Cla\lQOi  without  et^fveo,  fr4ud,  or  d^cciu  f^ 
shall  not  conuuenee  any  &uii*  eitlm  ii*l***' 
e*iuity,    aifftinst   the   said  Mary   Hail<f  *^j 
^itrtcklaud,  her  heirv,  executors,  or  sdiottii^ 
tors^  ibr,  eoncerniugr  <*r  in  reapet^t^tf  il*i 
20,000/.  and  interest,  or  any  part  tlKrwf, ' 
shall  not  do  any  act  or  thing  to  ohktxuii*  H 
or  hinder  her^  them,  or  any  of  IbtWt  'Tailt^' 
ceiving,  havings  or  enjoying  the  i&mti 
this  obligation  to  be  void,  and  etfimc  i' 
else  to  remain  in  tutl  ibrce.     Roai^Kt  C'^ 

Sealed  aod  dehrered  iu  lin  |o    >  i^  'jf| 

J.  PEWNr?fcTOM,  J'HLs   (iri-HS^ 

Serj.  llVig^i.  Did  the  priAoiier  i 
the  bond,  ot  which  this  k  a  cofjj^, 
bond  ^-^Wi^m^dn  Vet|  iny  krd. 


'  J^fo^ng  ^  Bond. 

il.  I  ask  3roo  this,  Had  you  a 
ler  to  keep  this  matter  secret  ? 

Yes ;   and  that  I  would  write 
my  own  hand. 
i^.   She  giving^  you  this  charge, 

matter  to  be  known  then  ? 

Mr.  Nicholas  Baker  came  to  me 
ert  Clayton,  and  asked  me,  if  I 
f  the  prisoner,  and  particularly 

and  whether  I  did  not  make  one 
as  not  in  my  memory  at  first,  till 
rse  occasioned  me  to  remember  it ; 
I,  that  I  did  do  some  business  for 

me  sir  Robert  Clayton  had  some 
ivcn  him,  that  there  was  such  a 
y  me :  then  I  told  him,  I  did  re- 
was  such  a  bond  brought  to  me, 
1  made  a  bond  for  Mrs.  Butler, 
I  a  copy  of  the  first  bond,  which  I 

and  also  of  the  second  bond,  m 
ft  out  a  material  word  in  the  obliga- 
fain  to  write  it  over  again,  and  had 
ght  by  me  till  about  a  month 
ne,  when  meeting  with  it  among 
;brew  it  into  the  tire  in  my  doslet; 
Jid  remain  by  me. 
You  say  this  copy  is  all  your  own 
? — Woodward.  Yes,  it  is. 
Was  it  sealed  or  cancelled  ? 

No ;    it  was  sealed,  I  am  very 

Are  you  positiye  the  seal  was  on 

^---Woodward,  Yes,  Sir. 

■.  Did  she  tell  you  that  bond  was 

She  told  me,  she  was  to  deliver 
to  sir  Robert  Clayton ;  and  that 
e  her  another  instead  of  it. 
t.   Was  the  bond  then  delivered 

I  cannot  say  she  did. 

Did  you  never  hear  any  bill  in 
9  what  end  was  this  bond  delivered 
what  reason  ? 

,  I  asked  her  why  the  bond  was 
sd  up,  and  she  told  me,  there  was 
less  in  the  family,  and  my  lady 
sot  the  air  of  it ;  and  theremre,  to 
here  was  a  bill  preferred  against 
eery,  and  she  was  to  put  m  her 
1  that  be  would  give  her  another 
it  was  to  be  deUvered  up. 
tjf.  We  have  other  witnesses  to 
•rging  of  it.  Call  Mr.  Baker, 
ed  and  was  sworn.) 
ht.  Mr.  Baker,  were  you  present 
ioner  Mrs.  Butler  was  before  my 
stice  concerning  this  bond  ?  Look 

was  present  at  my  lord  chief- 
iml)er  when  the  prisoner  was 
re  his  lordship  ;  and  she  did  there 
,  that  the  bond,  of  which  she  was 
bad  onlered  to  be  made. 
kt.  Was  that  the  bond  in  question  ? 
'es,  she  did  confess  she  caused 
ft jtM'i  name  to  be  lel  to  it,  and 


A.D.  169S.  [1S58 

the  witnesses  names ;  and  that  it  was  done  by 
one  Mr.  Lewkar,  a  scrivener  in  Bisbopsgate- 
street. 

Serj.  ViTright.  She  said  so? 

Baker.  Yes,  Sir. 

Mr.  HalL  Did  she  confess  it  ?  Where  was 
it? 

Baker,  At  my  lord  chief-justice^s  cliam- 
her;  she  confessed  it  was  her  own  act; 
she  caused  it  to  be  made,  and  directed  the 
scrivener  to  set  sir  Robert  CUyton's  name,  and 
the  witnesses  names  to  it. 

'Ult.Malkt.  Was  there  not  at  that  time  a  dis- 
course  of  a  bond  that  she  bad  on  the  late  duke 
of  Buckingham  ? 

Baker.  I  cannot  be  positive  in  that; 
but  this  was  the  fact  she  was  charged  with  ; 
and  she  did  confess  that  she  caused  it  to  be 
done,  and  that  the  persons  as  whnesses  were 
innocent  of  it,  and  that  she  did  direct  Mr-  Lew* 
kar  to  set  sir  Robert  Clayton's  name  to  it. 

Mr.  Hall.  How  do  you  know  this  is  the 
very  same  bond  ? 

Baker.  Mr.  Woodward  shewed  me  this 
very  bond  when  I  went  to  him  froai  sir  Robert 
Clayton,  to  know  whether  he  was  acquainted 
with  the  prisoner;  who,  after  some  discourse 
with  him  relating  to  this  bond,  very  frankly  and 
ingenuously  told  me  the  whole  matter  oi  lact, 
as  he  has  ((one  here. 

Mr.  Mallet.  But  we  ask  you  about  hereon- 
fession  ;  did  you  shew  her  that  copy  ?  Did 
she  confess  that  ? 

L.  C.  J.  Holt.  What  was  the  discourse  of  at 
that  time  ? 

Baker.  It  was  about  the  bond  of  40,000/. 
with  which  she  was  charged  before  your  lord- 
ship to  have  counterfeited. 

Mr.  Northey.  Did  he  give  an  account  then 
of  this  bond? 

Baker.  Yes;  Mr.  Woodward  produced 
this  copy  before  my  lord  chief -justice,  and  she 
owned  she  had  ordered  Mr.  Lewkar  to  make  it, 
and  to  put  sir  Robert  Clayton's  name  to  it. 

Serj.  Wright.  Now,  my  lord,  we  wtll  shew 
you,  thai  she  is  going^  on  still,  and  that  very 
lately  she  has  owned  it,  and  that  she  is  going 
about  to  make  the  bond  of  50,000/.  a  very  good 
bond. 

Mr.  Mallet.  When  it  is  in  question,  you 
may  then  invalidate  it. 

Serj.  Wright.  Mr.  Woodward  has  told  you 
he  did  make  the  bond  of  54,000(.  but,  I  thmk, 
we  have  no  need  of  it. 

Mr.  Hall.  They  have  failed  in  the  indict- 
ment, so  that  it  cannot  be  bupported  by  this 
bond ;  it  should  be  laid  especially,  according  to 
the  condition  of  the  bond  to  be  paid ;  for  it  is  a 
bond  of  40,000/.,  to  be  paid  by  his  heirs  after 
his  death  20,000/.  Now  the  bond,  whereof 
they  produce  a  copy,  is  of  other  things. 

Mr.  Northey.  It* is  for  the  same. 

Mr.  Hall.  It  is  a  different  thing. 

L.C.J.  Holt.  Not  at  all. 

Mr.  Mallet.  It  is  laid  in  the  indictment,  to  be 
paid  by  sir  R.  Clayton :  in  the  bond  it  is  said. 
It  is  not  to  be  paid  till  after  hiadetth. 


ISbff]         11  WILLIAM  in. 

Seij.  Wright,  It  ift  laid  in  the  indictment, 
thai  the  bond  was  of  the  penalty  of  40,000/. 
to  be  paid  by  sir  R.  Clayton,  with  condition 
thereto  under- written,  concerning,  amon^ other 
things,  the  payment  of  20,000/.  to  the  prisoner, 
after  the  death  of  sir  Robert  Clayton,  by  bis 
cxt'cutors. 

L.  C.  J.  HolL   Let  your  exce|itions  proceed 
from  the  indictment ;   it  is  to  be  paid  after  the 
deat^of  sir  Robert  by  his  executors. 
•   Serj.  Wright.   Have  you  any  more  to  say 
for  vourseWeii  ? 

Mr.  HalL  We  have  a  great  many  witnesses 
liere  to  prove  her  reputation.  It  is  a  strange 
thing  any  one  should  go  to  foi^e  a  bond  on 
such  an  eminent  pei-son. 

L.  C.  J.  Holt,  It  is  strange  indeed  ;  but  the 
question  is,  Whether  it  be  true  ? 

Mr.  Hall.  Ucr  confession  is  proved  by  Mr. 
Baker ;  but  we  have  many  witnesses  as  to  her 
reputation. 

Mr.  Mallet,  This  bond  is  not  in  the  indict- 
ment. The  bond  of  40,000/.  is  several  years 
Bincc.  Now  there  are  two  bonds.  Now  that 
of  54,000/.  is  not  in  this  indictment,  and  this  of 
40,000/.  is  several  years  since  that  it  was 
shewn  to  him.  It  is  strange  he  should  be  so 
▼erv  exact,  and  yet  did  not  examine  it.  And 
probably  he  might  mistake  iu  the  copy,  and  it 
may  not  be  the  very  bond  in  the  iudictment. 
Now,  as  to  Mr.  Baker ;  it  is  true,  we  have  a 
Loud  of  5,000/.  from  tho  duke  of  Buckiiigliam, 
and  we  are  suing  sir  R.  Clayton  for  this  mo- 
ney, and  hope  to  Lave  it,  now  tlWvv  so  many 
years.  And  sir  1{.  Ciiivtuii  did  prdi^r  a  hill  in 
CMiaiicery  aiyainst  ii*,  and  wo  in  aiis^^rr  did 
disclaim  having  :.t)v  such  hoiitl.  \\\\\  now, 
when  we  are  like  to  hn\e  a  <le<-ree  ior  this  sum 
against  the  trustee  of  the  duke  of  liuekini;- 
hanrs  estate,  he  cocDes  and  \\oiild  lake  oil'  our 
credit  in  this  matter.  \\  e  did,  in  the  \ear 
1GP5,  diselann  any  such  hund. 

Mr.  Nurthey.  Then  you  flo  admit  that  she 
owned  ihc  hond. 

[Then  her  uilnesscs  wore  called.] 

Mr.  Mulld.  !Mr.  (ilo>cr,  «lo  you  know  Mi"S. 
But Icr :* —  (/ toi'ir .   V es. 

Mr.  Mallet,  (Jive  an  account  of  what  you 
khftw  as  to  her  repntution. 

OltYver.  I  have  known  her  i;>  or  16  years. 
,\\\  that  1  know  of  her  is  fair  and  clear. 

li.  C.  J.  Holt.  Where  d(»  >ou  live  ? 

Ci lover.   In  Ued- lion- street. 

L.  C.  J.  Hull.   \\  hal  |)rtifc.ssii»!i  arc  you  of? 

Gliwer.   I  hL'loni>'ed  to  1  jncoln^s-iiin. 

1 1.  C  J.  Holt.  A  •gentleman  of  Lincoln  V  inn. 

Gloicr.  I  was  hruui^ht  up  at  the  university, 
hut  have  not  resided  tin  re  lately. 

L.  C.  J.  Holt.  II ow  du  yon  live  ?  Are  you 
a  house- keeper  ? 

67«>7't'r.  1  live  privately  at  present. 

Is.  i'.  J.  Holt.  Who  knows  you? 

Olmrr.  1  cannot  tell  who  knows  me  here. 
I  hcUevo  Mr.  Northev  does. 

Mr.  Nortluy.  I  Jo  not  intend  to  give  any 
character  of  you,  I  do  not  use  to  give  charac- 
ters of  my  clients. 


Trial  of  Mttrg  Buikr, 


[\m 


L.  C.  J.  HoU,  How  Umg  haw  joa tivcdio 
Red-lion-street? 

Glaoer,  Ten  or  eleren  yean. 

Mr.  MalUt,  How  did  she  lire  ? 

Glover,  I  knew  her  live  in  Deroulm* 
square  very  reputably ;  I  always  thought  to. 

Serj.  Wright.  Had  she  any  estate  of  kcr 
ownf 

Glover.  I  cannot  say  so  oartainlj;  it  wm 
thought  so.  8he  paid  every  body  very  paB^ 
tually. 

Mr.  HalL  Acquaint  my  lord  how  lon^  j« 
have  known  her,  and  wh^her  yoa  tfaiok  db 
would  be  guilty  of  such  a  forgery  ? 

Glover,  I  have  known  her  14  or  15  yon 
I  cannot  belie^-e  she  would. 

Mr.  Montagu,  Have  joa  heard  the  cfi* 
deuce  f — Glover,  Yes. 

Mr.  Montagu,  What  do  yoii  think  rf  il 
then? — Glover,  I  know  not  what  to  think. 

Mr.  Montagu.  Do  you  think  she  wooMew^ 
fess  herself  guilty  of  a  forgery,  if  she  wcresttf 

Glover,  I  cannot  tell  what  to  aav  to  that  I 
sufipose  nobody  would  confess,  il'they  wweiil 
guilty. 

Serj.  Wright.  Do  you  know  one  HcUnr    J 

Glover.  I  know  HebdoB. 

Serj.  Wright.  He  is  a  witneu  to  tbe  bni 
Was  he  sir  John  Hebdon*s  son  P 

Glover.   I  can  ^ve  no  account  of  that;  hi 
he  has  had  a  very  lionourable  character. 
[Mrs.  l^ujR  called,  and  appeaicil.] 

Mr.  Hall.  Mrs.  Rodnm,  do  yoa  know  Sfli 
Butler?— Kck/i/w.  Yes. 

Mr.  ///.//.    ll«»w  long  have  ynu  kooirn  hfff 

Txodutn.  Five  or  six  years.  3 

Mr.  Hall.  H  hat  do' you  know  ofherchfr 
racter  ? 

Uodwn.  I  am  the  widow  of  one  of  tbeolU 
killed  one  another  by  the  Temple.  I  wfW 
knew  of  any  liond,  nor  never  beard  hrrctaiati 
any  such  b'liid.  She  lived  in  good  repataita 
She  was  in  my  house  when  my  husbnd** 
killed.  She  hved  in  my  house  abouia)fir',  I 
never  hcani  she  made  any  such  prvtftsoa 
She  lived  h<niestly  and  decently.  Sh«  ••• 
inc  upwards  of  300/. 

L.  C.  J.  Holt.  For  what  ?  How  caiaeibr* 
owe  you  300/.  ? 

Jivdum.  I  kept  a  shop  in  the  Exelianef.i" 
my  liusbaud  was  a  broker.  She  owed  it  * 
partly  for  goods  out  of  my  shop,  ami  pirtlf  *» 
goods  out  of  Scotland.  lie  was  kilWifcj* 
half  a  year  asro,  and  I  have  kq>t  iheiikof  tfi^ 
Al»out  three  or  four  months  ago  sbe  kfl  ■* 
and  I  never  heard  of  any  bond. 

Seij.  Wright.  Did  you  never  hear  of  *■    i 
in  Chancer v  against  her? — RpJym.  No.*-      | 

Mr.  Mulltt.  Did  yon  heur  of  any  !»«'•? 
that  was  due  to  her  from  the  duke  ot  BncMT 
ham  ?  ^ 

Rodum.  I  was  told  she  was  suing  sir  B** 
Clayton  for  money  that  was  to  Iki  |«id  hif • 
the'diike  of  liucknighanrn  actwmt,  ■■^^i 
the  iTcdit  of  ihai  I  trusted  her.  [ShawcslW 

Mr.  Hull.  How  long  have  yoa  knows  ■■ 
Butler  ?— 6A(ia.  About  sixteeayevti 


JbrfifffngaBand. 
Do  you  think  she  would  forge  a 

eed  T  cannot  ^re  an  acconntofthnt. 

Hovr  has  she  behaved  herself? 
ever  knew  her  guilty  of  any  rude- 

jht.  Pot  up  more  witnesses  if  you 

We  have  done. 

^idt.  Mrs.  Butler,  will  you  say 
r  yourself? 

(«r.  1  am  altogether  innocent  in  the 
ever  wronged  sir  Robert  Clayton, 
f  else,  in  my  life. 

ioU,  Gentlemen  of  the  jury,  this 
,  alias  Stricklaml,  stands  indicted 
a  bond  in  the  name  of  sir  Robert 
the  })enalty  of  40,000/.  the  condi- 
layment  of  S0)000/.  among  other 
in  six  months  after  the  death  of  sir 
And  also,  that  she  did  publish 

the  true  bond  of  sir  R.  Clayton. 
!ard  what  evidence  has  been  given, 
*  guilty  of  this  forgery,  and  the 
fit. 

some  time  since,  as  is  proved  to 
r.   Woodward,  this  gentlewoman 

with  this  bond  of  40>000/.  And 
this  account,  as  she  said  :  To  wit, 
on  having  given  her  this  bond,  it 
r,  and  was  come  to  the  lady  Clay- 
irbich  occasioned  some  difference 
I.  Clayton  and  his  lady.  She  said, 
id,  by  direction  from  sir  Robert, 
eliveied  up  to  him  to  be  canoell- 
it  sir  R.  Clayton  had  engaged  to 
I   new  bond  in   the  penalty  of 

the  payment  of  96,000/.  (there 
time  supposed  an  arrear  of  interest 

payable  after  sir  Robert's  death, 
in  tlie  mean  time.  She  delivered 
Mr.  Woodward.  He  takes  a  copy 
is  produced  and  read.  And  so,  ac« 
ler  direction,  Mr.  Woodward  does 
r  bond,  with  the  penalty  of  54.000/. 
1  told  Mr.  Woodward  sir  Robert 
his  bond  upon  the  delivery  up  of 

40,000/.  Mr.  Woodward  having 
bat  it  was  an  extraordinary  sum  for 
0  engage  himself  in,  and  he  be- 
'  considerable  man,    he   advised 

this  new  bond  well  attested; 
ore  to  get  witnesses  of  unques- 
dit  to 'see  it  executed.  And 
e  offered  himself  to  ^  with  her 
,  to  be  a  witness  to  this  new  bond. 
,  sir  Robert  is  not  willing  that  this 
own  ;  yoo  are  not  a  proper  person 
ss  to  it ;  therefore,  says  she,  I  will 
ler  witnesses  to  attest  it.  Where- 
es  her  this  first  bond  of  40,000/. 
rougbt  to  him  for  the  payment  of 
gave  her  also  the  draught  of  the 
He  sa^'s,  this  bond  that  she  brought 

attested  by  four  witnesses.  Sir 
m»  upon  her  answer  in  Chancery^ 
ig  any  thing  of  this,  slie  having 


A.  D.  1699.  [ISeS 

disclaimed  in  Chancery  the  having  of  any ;  some 
time  after  he  had  heard  a  report,  as  if  she  was 
setting  op  of  a  new  bond,  and  that  Mr.  Wood- 
ward could  give  an  account  of  it.  Wherefore 
he  sends  BIr.  Baker  to  Mr.  Woodward,  who 
gave  him  the  same  account  that  be  has  done 
here.  Theu  sir  Robert  makes  a  complaint, 
and  has  her  brought  before  me  ;  and  there  was 
Mr.  Woodward  with  this  copy.  And  this  was 
objected  to  her,  as  if  she  had  forged  this  bond. 
And  it  seems,  when  she  was  there  under  exa* 
mination,  and  is  proved  to  you  by  Mr.  Baker, 
she  did  plainly  confess,  that  she  had  forged  this 
bond  of  40,000/.  and  that  she  had  procured 
one  Lewkar  to  do  it  for  her,  who  set  sir  Ro- 
bert's name  to  it ;  and  said,  that  the  witnesses^ 
whose  names  were  set  to  it,  were  innocent,  and 
knew  nothing  of  the  matter. 

Now  what  is  said  for  her  on  the  other 
side?  They  bring  some  persons  for  her,  that 
say  they  have  known  her.  One,  that  says  hit 
belonged  to  Lincoln's- inn,  and  had  heen  ac- 
quainted with  her  fourteen  or  fifteen  years^ 
and  did  look  upon  her  as  a  civil  woman ;  and 
for  his  part,  he  does  not  believe  she  would  \m 
guilty  of  such  a  forgery.  Another,  who  is  a 
woman,  says  she  has  Known  her  some  time» 
and  she  says,  she  has  trusted  her  much,  and 
did  never  bear  her  say  an^  thing  of  this  bond, 
but  she  behaved  herself  civilly,  and  she  took 
her  to  be  a  very  sober  person.  Another  wit* 
ness  says,  she  looked  on  her  to  be  a  very  honest 
person.    This  is  the  sum  of  the  evidence.  ' 

There  is  a  very  strong  evidence  to  induce  yoa 
to  believe  that  she  did  forge  the  bond.  Such  a- 
bond  she  had,  that  is  plain.  She  does  give  no 
account  what  is  become  of  it ;  and  she  doea 
not  shew  any  manner  of  pretence  of  having  so 
much  money  from  sir  R.  Clayton  due  to  £er|; 
she  does  not  make  it  appear,  why  sir  Robert 
should  give  her  a  bona  upon  any  acoonnt. 
Now,  for  any  to  say  that  they  knew  her,  and 
tliey  do  not  believe  she  would  forge  a  bond, 
that  is  no  evidence ;  nobody  ought  to  bdievei 
ill  of  Mrs.  Butler,  or  any  one  else,  unlcH  it  bo 
made  to  appear.  But  the  question,  is  not, 
what  they  do  believe ;  but  whether  the  matter 
be  proved  to  jou  to  your  satisfaetkin  that  riM 
has  forged  this  bond }  And  if  yoo  are  satisfiei 
that  she  did  forge  it,  you  ouglit  to  find  her 
guilty ;  and  if  you  do  not  believe  the  evidence 
to  be  satisfiustory,  you  ought  to  acquit  her. 

[Then  the  Jury  withdrew,  and  being  return- 
ed, gave  their  veraict  as  follows :] 

C/.  ofArr,  Are  you  agreed  of  your  verdictf 

/ttry.  Yes. 

C/.  ofArr.  Who  shall  say  for  you  ? 

Jury,  Foreman. 

C/.  ofArr,  Bring  Mary  Butler  to  the  bar. 
How  sa^  ye?  is  the  prisoner  at  the  bar  guilty 
of  the  forgery  whereof  she  stands  indicted,  or 
not  guilty? — 'Foreman.  Guilty. 

The  Judgment  which  the  court  pronounced 
against  her  was,  That  she  should  pay  a  fine  of 
500/.  to  the  king,  and  cootlnue  in  prison  till  sht 
paid  it. 


IS63] 


7  WILLIAM  lit.       Procee£ngs  against  the  Duke  of  Leeds,     [ISS( 


407.  Proceedings  in  Parliament  against  Thomas  Duke  of  Lekds, 
on  an  Impeachment  of  High  Crimes  and  Misdemeanors: 
7WjlliamIIL  a.d.  1695—1701.* 


April  27, 1695. 

1  HE  House  of  Commons  havingf  read  a  Re- 
port from  a  Joint  Committee  of  both  Houses 
relating  to  the  distribution  of  Money  bv  the 
East  India  Company,  the  following  Debate 
arose  :f 

[£]  stood  up  and  said,  Mr.  Speaker,  1  con- 
ceive there  is  a  necessity  to  search  this  matter 
to  the  bottom.  The  House  has  a  thread  in  their 
hands,  they  ought  to  provide  laws  tor  the  future 
to  prevent  the  members  of  this  House  taking 
money.  All  imaginable  endeavours  have  been 
used  to  stifle  all  discoveries.  10,000/.  has  been 
pretended  to  be  given  to  the  king.  50,000/. 
offered  to  buy  an  act  of  parliament,  or  gain 
their  charter.  The  facts  prove  themselves,  and 
Mr.  Bates  appears  an  unfortunate  person,  whom 
the  care  of  his  friend,  the  duke  of  Leeds,  and 
the  sense  of  his  oath,  have  caused  to  make  such 
contradictions.  1  move  that  the  House  would 
put  the  inatier  in  such  a  method  as  becomes 
their  justice,  and  as  the  shortness  of  their  time 
uill  allow. 

[D]  Mr.  Si>eaker,  I  do  fully  agree  with  the 
worthy  person  near  me,  that  there  never  were 
greater  and  more  t»eneral  instances  of  corrup- 
tion, and  nect?ssity  ofspecdy  rcmwly.  Tliat  it 
is  very  tit  this  House  should  het  the  world  see 
that  they  ;ire  in  euruost.  I  ask  Irave  to  put 
you  in  iniiul,  what  praclicc  and  arts  havr*  bron 
used  to  stitle  and  stop  your  discovery,  so  tluit 
what  you  liave  is,  as  it  were,  by  the  utmost 
force  and  constniiut.  Von  cannot  wonder  at 
it,  wlioii  you  now  find  si»  great  a  man  at  the 
bottom  ;  hut  tliere  is  no  person  in  a  post  so  lii:>h 
that  lliis  IloU5<*  Cisnnot  ren':h,  no  man's  prjic- 
ticc  or  art  so  docp  that  ih's  n)r.se  cannot  <iis- 
covfr.  HiTi'  have  hern  mII  iina^-jnary  endea- 
vours used  toohstruci  this  Hntpiirr.  First,  his 
majesty's  naim^  was  ina<lc;  nsi',  o!"  at  tiio  coui- 
mittees,  witii  liopcs  pi'r)ia|KS  tiiat  that   misfht 

*  Sir  Thomas  Osborne,  crr-ated  l»ar«»n  of 
Kiveton  and  vist'ounl  Litiuir-r,  l»y  uin^  C?iiarl»'s 
V,  Anjjfust  l.>,  1673,  and  earl  oK  J)anhy.  June 
f^7,  1674,  marquis  of  (.'armartlien  by  kini^-  \\  il- 
liam,  April  '20,  J6»9,  anil  dukr  of  lirnls,  April 
JO,  1001.  This  is  tilt'  tliini  lim<^  thai  Artichs 
of  Impcarhnu'ut  had  been  c\hihit»Nl  in  tlj«' 
House  of  fiords,  airjunst  him.  T\u:.  (irsl  was  in 
167.'>,  upon  which  ih«.*  House  resolved.  "  Tiiat 
there  was  not  sutlirient  mailer  coi.iained  in 
them  to  impeach  the  Lonl  Treasurer;''  the 
second  was  in  i67R,  see  >ol.  11.  p.  .M)9. 

t  I'Vom  "  A  ('ollection  of  the  Debates  and 
Proceed  in  t^s  in  Parliament,  in  1(>'.U  and  160  j, 
upon  the  Inquiry  into  the  late  Briberies  and 
Corrupt  Practices." 


stop  an  V  farther  enquiry  ;  and  if  it  were  anil 
use  of  there,  you  may  reasonably  eipecl  it  wm 
made  use  of  elsewhere :  but  that  appeucd  to 
be  so  far  from  being  a  matter  of  reflectioB  « 
the  king,  that  sir  Joaiah  Child  often  oonphiMl 
of  it  as  a  rudeness  to  his  majesty,  that  whi 
other  kings  had  yearly  as  a  present,  tbejr  M 
not  offereii  to  his  majesty  in  three  ytm:  i 
was  indeed,  if  not  a  matter  of  right,  a  matlertf 
custom. — ^Then  a  nolile  lord,  who  mty  k 
named  for  his  honour  upon  this  oocaiioo,  Ik 
earl  of  Portland,  he,  whsn  the  mat  lumtf 
.50,000/.  was  pressed  upon  him,  did  abiolittelf 
refuse  it,  and  told  them  he  would  ftr  era  ■ 
their  enemy  and  opposer  if  they  oierad  m 
such  thing  to  him.  I  having  thus  roeaiioMi 
the  innocent,  must  say  somewhat  of  tbeeoikf. 
A  stop  having  been  put,  the  duke  of  Leeds  oiil 
be  applied  to ;  certainly  there  never  waii 
more  notorious  bribery,  and  that  in  a  pcna 
whom  we  might  have  expected  to  hare  km 
free  from  such  a  crime,  whether  if  you  lOfHl 
the  greatness  of  his  place,  or  of  his  'former  ib- 
ligation.  It  is  fit  to  speak  plainly  on  tucb  oe- 
casions,  the  House  ought  to  endeavour  to  l^ 
move  such  a  person  from  the  king's  coiMi 
and  presence.  What  security  can  tbe  oM 
have,  when  we  are  bou^rht  and  st)ld  to  one  a* 
other?  We  have  seen  our  designs  detcatti  • 
our  attempts  beti-ayed,  and  what  woaderi^it* 
Can  any  man  think  it  more  strant^e  tbat  Mff 
counsels  should  be  sold  abr(»ad,  than  thatdiv* 
ters  sliould  be  sold  at  home  ?  Certainly  a  nut 
may  reasonably  believe,  that  he  who  wili^ll 
the  sulijeots  will  sell  the.  kingdom  if  hecanbm 
a  sufficient  hriho.  What  prince  can  Ik?  wfc* 
such  counsels  which  are  yiven  for  private  i^* 
vantajre;  several  proposals  for  remedy  majl* 
hereollered.  One,  that  this  house  sbouldai* 
dress  his  Majesty  to  remove  the  duke  ot'Ufdi; 
hui,  with  siibHiission,  an  addiess  is  toomeNi 
loo  low  a  thing  for  the  Hou«k<3  to  do  iitW  - 
time,  and  upon  buch  an  occasion :  !  thcrdif  . 
move  we  may  lodge  an  impeachnieot.  **  Tb* 
Thomas  duke  of  i^eds,  l^inl  I'rtNiilrti!  «< 
his  majesty's  council,  he  impeached  by  tto 
House.'"  V>r  thus,  »'  That  Thomas  rfiikerf 
Leeds  be  im)>eaclied  by  this  Himse  of  higfc 
crinu.s  and  misdemeanors  ;  and  particularlf « 
<^.!orruption  in  taking  a  bribe  of  .^,000  :jui»* 
to  obtain  a  charter  and  regulation  tor  tbe  £a^ 
India  Company." 

[  K  I  says,  I  wonder  the  gentleman  w  hosPOW    ; 
last  shiMiid  say  that  which   1  hope  be  clido* 
lid  have  sold  ^ 


bidieve,  Tiiat  that   I(mhI 
couuscIn  t«»  France. 


should  have  sold  i 


L  /)]  rose  ay^aiu  and  said,  It  is  with  toofi 
easuK'ss  I  stand  up,  but  that  gentk-man  Af 
mu  to  it,  for  1  du  Dot  take  pleasure  w  n^**  1 


for  High  Crimes  and  Misdemeanors. 


A.  I).  1695. 


[1268 


I  was  far  from  sayio^  any  such 
t  ar^rued  only  from  possibility  ;  that  it 
•asouable  to  believe  one  as  the  other, 
m  honour  andjustice  were  not  the  rule 
actions,  there^  was  nothing  incredible 
lit  be  for  their  ad vantag^e. 
fconds  and  agrees  in  the  motion  for  an 
neat. 

lys,  That  God  alone  who  can  produce 
:  of  darkness,  can  fully  discover  the 
;tices  in  this  affair.  That  such  actings 
ire  a  blemish,  if  not  a  scandal  to  the 
>n  itself;  1  agree  in  the  motion  for  an 
nent. 

emanded,.  by  what  law  it  is  a  crime  to 
ley  at  courtP 

uswered,  if  there  be  not  a  law,  it  is 
•e  should  be  a  law  to  prevent  it. 
ys,  The  law  of  God  is  against  him, 
ce  by  him.  He  took  an  oath  as  a 
unsellor.  Justice  is  not  to  be  sold  by 
Qon  law.  But  there  are  parliaments 
1  such  crimes,  and  it  is  hoped  there 
ill. 

ays,  it  seems  doubtful  whether  there 
*  in  this  Report  for  an  impeachment ; 
before  the  House  goes  to  an  impeach- 
ty  ought  to  put  the  question  upon  the 
ind  see  whether  it  be  a  crime, 
bjects,  there  is  no  law,  so  no  trans- 

ed,  «  That  there  does  appear  to  this 
ipon  the  Report  from  the  Committee 
louses  appomted  to  examine  the  per- 
itioned  in  the  Report  of  sir  Thomas 
ccount,  Tl^at  there  is  sufficient  matter 
:h  Thomas  duke  of  Leeds,  president  of 
ity*s  most  honourable  privy-council,  of 
nes  and  misdemeanors." 

ed,  <«  That  Thomas  duke  of  Leeds, 
npeached  of  high  crimes  and  misde- 

id,  «  That  Mr.  Comptroller  do  go  up 
yrds,  and,  at  their  bar,  in  the  name  of 
le  of  Commons,  and  all  the  Commons 
od,  impeach  Thomas  duke  of  Leeds  of 
mes  and  Misdemeanors  ;  and  acquaint 
hat  this  House  will  in  due  time  exhi- 
;ular  articles  against  him,  and  make 
same." 

KE*s  Speech  in  the'  House  of  Lords. 

I  reading  of  the  Report  from  the  Lords' 

ee,  his  grace  expressed  himself  in  this 
vis. 

t  as  he  had  formerly  protested  himself 
i  in  this  matter;  so  he  still  denied, 
I  fiuth  and  honour,  that  he  was  guilty 
inch  corruptions  as  were  suggested 
iiDy  and  that  if  the  whole  truth  were 
1,  it  would  tend  to  his  honour  and  ad- 
Tbat  he  would  be  very  free  in  tell - 
kmlsbips  now  before  hand,  all  that 
a  which  lie  was  any  way  a  concerned. 
wipdn  deGtercdi  that  Mr.  Bates  intro- 
XIU. 


duced  sir  Basil  Firebrace  to  him,  and  that  he 
had  had  conferences  witli  sir  Basil  upon  the 
subject  of  the  Ea^t- India  Company,  which 
Firebrace  was  cooccrneil  for.  That  some  time 
after,  Mr.  Bates  came  and  informed  him  that 
he  was  to  have  a  sum  of  money  of  sir  Basil ; 
and  desired  his  lordship  to  lend  him  one  of  his 
servants,  Mr.  Bates  keeping  but  a  footman,  to 
receive  the  money,  and  so  he  lent  him  M.  Ro- 
bert. That  his  lordship  knew  nothing  of  tlie 
sum ;  but  after nards  Mr.  Bates  came  to  him» 
and  told  him,  he  had  received  5,000  guineas, 
which  he  offered  to  him,  telling  his  lordsliip  that 
he  had  been  very  obliging  and  kind  to  him  ; 
and  that,  in  ackiiovi  ledgmcnt  of  the  many  fa- 
vours he  had  receive<l  from  his  lordship's  hands, 
he  humbly  desired  him  to  accept  of  them : 
which  he  refusing,  Mr.  Bates  pressed  him  ear- 
nestly to  take  one  half  or  a  quarter ;  which  he 
still  refused,  declaring  he  would  not  touch  a 
penny  of  them ;  and  told  him,  since  he  had 
taken  them,  he  thought  there  was  no  need  of 
returning  them,  they  were  his  own,  and  wished 
him  good  luck  with  them,  as  1  remember,  said 
his  lordship,  I  did  once  to  Mr.  Harry  Saville, 
for  whom  I  had  a  great  respect ;  which  reminds 
me  of  a  story  I  must  neeos  tell  your  lordships 
upon  this  occasion.  He  then  related  the  story: 
That  when  he  was  treasurer,  the  Excise  being 
to  be  farmed,  for  which  many  put  in,  the  bid- 
ders for  it,  who  were  to  ^ve  m  their  proposals 
sealed  up,  havmg  applied  to  Mr.  Seville  tor  his 
interest  at  court,  he  came  to  his  lordsliip  and 
desired  ,that  he  would  tell  the  gentlemen  that 
put  in,  who  were  several,  that  Sir.  Seville  had 
sitoke  for  them :  what,  said  I,  rproceede«l  the 
duke)  would  you  have  me  tell  all  of  them  so, 
when  but  one  is  to  have  it  ?  No  matter  for  that, 
said  Mr.  Seville,  for  whoever  has  it  will  think 
1  have  done  him  this  service ;  and  I  am  sure  of 
a  ffood  present,  without  more  ado :  so,  my  lords, 
woen  ttie  men  came,  I  told  them  one  after  ano- 
ther. Sir,  you  are  very  much  obliged  to  Mr. 
Seville ;  Sir,  Mr.  Seville  has  been  very  much 
your  friend.  A  little  after,  when  the  thing  was 
settled,  Mr.  Seville  came  and  thanked  me  for 
what  1  had  done :  and  told  me  he  had  got  his 
present  that  he  had  expected ;  which  I  told  him 
I  was  glad  of,  and  wished  him  good  luck  with 
it,  as  I  now  did  to  Mr.  Bates.  And  thus  I 
was  then  a  shadow  to  Mr.  Seville,  as  f  was  now 
to  Mr.  Bates." 

The  Duke's  Speech  in  the  House  of  Com- 
mons. 

The  Duke  had  proceeded  thus  far  in  his 
Speech  when  he  received  private  intimation, 
that  the  Commons  were  proceeding  to  impeach 
him :  upon  which  he  broke  off  fionicwiiat 
abruptly  ;  and  immediately  quitting  the  House 
of  Peers,  presented  himself  at  the  door  of  tlie 
other  House  ;  and  by  the  means  of  one  of  the 
members,  caused  the  House  to  be  inforincHl, 
that  he  desired  to  be  heard  ;  witicli  being  coui- 
plied  with,  he  was  admittrd,  uith  the  usual 
compUments  of  a  chair,  and  leavr  to  be  cover- 
ed ;  after  accepting  of  which,  he  rose^  and  put- 

4M 


7  WILLIAM  lU.       Froceedmgs  ag&tnxt  the  Duke  \ 


tiugofl^his  bat,  expressed  himself  to  the  fgl- 
lowintjf  effect : 

•*  Mr,  Speaker,  and  f^^ntleiiictiof  the  Hmise, 
Tn  the  first  j<1ace,  I  thiitik  you  heartily  for  this 
favaur  of  hearing  me.  I  had  atteDded  sooner, 
if  I  had  had  the  least  intimation  what  the 
Hou^e  was  upon.  1  wish  the  dispatch  thereof 
had  not  been  bo  quick.  The  oec&sioa  of  oiy 
cximiin^  is  from  the  two  Votes,  upon  the  Report 
from  the  Committee  of  both  Houses ;  I  did  aU 
I  cottld  to  be  intbrmed  of  tlie  pavticulan^,  but 
could  not,  nor  have  1  any  uoiea.  I  was  earnest 
therein,  6nding^  myself  concerned,  and  hearing 
of  a  report,  a  mon&trotis  long'  rt'port,  to  the 
end  that  I  mi|^ht  not  be  under  the  displeasure 
of  either  or  both  Houses  ;  it  is  a  bdd  trutli, 
but  it  is  a  truth .  tliis  House  had  not  been  sit- 
ting bnt  for  me.  1  wt«  formerly  pursued  by 
this  HoiiNe  in  two  points,  for  beings  for  the 
Frrirth  interest  and  for  popery ;  1  had  then,  if 
I  migiuhave  been  heard,  justified  myself,  as  I 
hope  I  have  abce  done,  and  shall  by  all  the 
actions  of  ray  life*  One  Fii'tbracc  was  in- 
trodttc^d  to  nie  by  the  means  of  l^Ir.  Bates, 
wbotn  1  have  toniv  known,  and  if  f  am  not 
in uch  deceived  in  him,  1  cannot  believe  that 
^ntleman  nould  have  transacted  such  a  mat- 
ter if  pnt  upon  it.  The  evidence  is  but  hear- 
say^ and  1  hope  you  uill  not  condemn  on  hear- 
•ay*  I  would  not  take  up  your  time  by  enter- 
ing into  particLibi'S  \  but  there  is  a  money  -  part, 
as  well  as  a  treaty  -part ;  and  as  to  the  money* 
part,  much  of  it  is  false ;  what  is  trne,  1  have 
made  no  secret*  I  can,  and  do  ^^y,  that 
n^ilher  directly  nor  indirectly,  upon  my  faith 
and  hoDOur^  have  I  ever  touched  one  penny  of 
the  money,  t  observe  a  great  deal  of  pains 
baa  been  taken  to  hook  and  draw  men  in  this 
matter  by  a  side-wind,  and  Firebrace  thinks  his 
tncrtt  witL  deserve  10,000  and  30,000/.  This 
5,000  guineas  was  DO  part  of  the  40^0001.  The 
committee  culled  in  and  ejcamined  several  wit- 
nesses \  but  Firebrace,  aflei-  his  first  bearings, 
ii«flire<l  to  be  called  in  again  himself,  contrary 
to  all  rules,  which  slices  at  least  that  he  is  a 
very  wilUnjj  tvitness.  I  have  a  thread  which  I 
hope  to  spm  Goer,  and  make  it  appear  that 
this  was  a  desiirn  laid  against  me,  long  befora 
the  naming-  of  this  coiumiitee;  that  warnini^ 
was  g^iven  me  some  time  since,  ihat  this  matter 
woitld  be  proved  ag;ainst  me,  and  that  Firebrace 
bad  been  told,  he  should  be  excused  if  lie  would 
charge  ihe  diikt-:  I  ask  no  tavour  but  your 
favourable  justice,  ft  will  be  a  most  unfortu- 
nate tliing  in  pmnt  of  lime,  to  be  under  the 
disjdeosurc  of  thii  House,  or  of  ihe  nation.  1 
pray  that  no  severe  sense  be  put  on  what  will 
mar  u  candid  oik-,  taidthatif  it  may  be,  tl)e 
House  would  r^-eonsider  what  is  done,  or  at 
ieu^t  prtM-rve  me  from  cruelty  ;  and  not  trt 
me  lie  on  the  tack  and  be  blastcil,  until  ttie 
parliament  bhallslt  0|iain,  If  you  will  pro- 
eeed,  I  hope  it  wiU  be  speedily ,  ibr  1  had  rather 


want  council,  waul  time,  want  any  thing,  than    mons  tliAt  »1u  v  h 


be  brOQffbt  to  m  \ 

have  at  least  jour  gpoedy  ji 

Tbii  Speech   beings  eniM* 
withdrawn^  Mr.  CosnfiAftilter,  t 
members,  went  up  to  llie  HoicM  «f 
the  Impeachment ;    aiMl  thm  tam 
were  joined  with   the  Lords, 
prepare  the  Article 
dent. 

UtbaU  i 

The  ComrooDB  taking'  the  iN 
into consideratioOi  a  wortliv  roc  _. 

[^D]  said,  By  this  nohfe  jordl 
pomt  is  now,  whether  the  V 
comm  ittce  of  bot  h  H  ous ' 

Impeachment,     This  nolu.  ; vj 

to  the  matter,  would  not  eotef  iiii« 
but  passed  it  over  witli  excuse  of  il 
He  makes  no  excuse  as  to  the  fac(^: 
ment  of  a  contrivaoise  was^  ibst  tb 
guineas  charged  on  hifn«  was  i|p  ptf 
40,000/.  Firebrace  woi  to  looaciiil  k 
this  is  on  tgffravation  of  the  cnnti 
Thomas  Cooke  hafl  a  double 
with,  and  one  without  the  5,0 
this  is  an  indication,  that  if  I 
trivanee,  it  was  not  by  the  eoind 
sir  Tho*  Cooke,  to  trifle  the  «ii<iaii1 
ceal  the  eorrnptioti .  Tlie  «[»eedy  j j 
House  is  to  be  wiaihetl  aud  desired. 
such  a  ooDtri Vance,  sueh  a  thread  I 
tioned  by  ibis  noble  lord,  it  is  not  I 
but  the  House  wherii  he  ts  imp 
him. 

[T}  moved.  That  a  oommiiteei 
pointeil  to  withdraw^  lo  oooaidar 
oe  done,  in  order  lo  gratify  that  I 
justice/     His  friend  Mr,  1 
contradicting  hi m$elf,  is  1 1  ill 

of  Firebrace.     Who  was  his  l*amit 
his  servant?  Those  were  que 
asked.    M.  Robart  was  a  Kcnmntl 
preaidcnVs  and  is  fled.     Mr  Ba 
kept  the  money  in  his  house  ?    \^t 
come  of  it  ?    Sometimes  he  had  sp 
times  it  was  in  his  clo«et 
money  was  not  in  his  hoose  < 

Tuesday  moming'i   M.  

him  y  but  he  would  never  dechtre^oi 
he  brought  it. 

In  the  middle  of  these  debates,  i 
was  sent  fi^m  the  Lords,  to  ar  "n--^* 
mons,   that  it  was  the  opini' 
ships,  that  the  discovery  m'&<\ 
Cooke  was  not  satisfactory, 
entitle  him  lo  the  benefit  of  th 
nify  him,  and  that  their  )<  i  l-luivs  ,! 
concurrence  of  the  Common  -.     i'liiy 
passed  a  rote,  as  the  Lords  kwl  ^m 
it  up  by  the  lord  ContDgaby. 

April  99.    The  Lords  aequuint«il 


,-.1  ,1  uai 


be  under  yours  or  the  nation's  displeasuip,  I 
thank  vou  agiun  for  this  favour,  avvd  j»ray  if 
yoa  will  not  re-consiidei',  that  this  matter  moy 


Act  for 

Basil  Fir 

Craggy,  and  for  restniiiun^  them  i 


69] 


fir  High  Crimes  and  Misdemeanors. 


A«D.  16£^. 


[1270 


\  their  estate*,'  to  which  they  desired  the 
Dcurrence  of  the  Comnioiis. 
April  29.  Mr.  Comptroller  Wharton  and 
ien»  brought  up  the  Articles  of  Impeach - 
ait  a^^ainst  Thomas  duke  of  Leeds,  lord  pre- 
CDt ;  which  are  as  follow : 

mCLES  or  IMPEACHMENT,  exhibited 
by  the  koights,  citizens,  aud  burgesses  in 
parliament  assembled,  in  the  nanoe  of  them- 
selves and  of  all  the  Commons  of  England, 
against  TyoMAS  duke  of  Leeds,  President  of 
his  majeaty's  most  honourable  privy-coun- 
cil, for  high  crimes  and  misdemeanours. 
^'  1.  That  certain  merchants  tradinsr  to  the 
ist- Indies,  haying  either  forfeited  their 
■rter,  or  beinff  under  an  apprehension  that 
Wf  had  forfeited  the  same,  an<l  having  made 
■r  homble  applications  to  their  majesties  in 
and]  for  obtaining  a  charter  of  confirmation ; 
»  said  duke  of  Leeds,  being  then  president  of 
Bf  majesties  most  honourable  pnvy  council, 
d  sworn  to  give  their  majesties  true  and 
Ihful  advice,  did,  contrary  to  his  oath,  office 
d  duty  to  their  majesties,  and  in  breach  of 
a  great  trust  reposed  in  him,  by  himself,  his 
■Bis  or  servants,  oomiptly  and  illegally 
Ht,  contract  and  agree,  with  the  said  mer- 
Hts  or  their  agents,  for  5,500  guineas  to 
■eare  the  said  charter  of  confirmation,  and 
m  a  charter  of  regulations,  or  to  use  his  en- 
■nurs  to  obtain  the  same, 
v*!.  That  in  pursuance  of  suck  corrupt  con - 
Mt  lad  agreement,  the  said  duke  of  I^ecds 
d|lj  himself,  his  agents  or  servants,  reci»tve 
'  isoifpl,  from  the  said  merchants  or  their 
SVrii,  certun  notes  or  securities,  whereby  he 
"'tkey  were  empowered  to  receive  the  said 
900  guineas  u[Km  the'  passing  of  the  said 


^3.  That,  soon  after  the  passing  of  the  said 
Mer  of  confirmation,  the  sum  of  2,500,  part 
the  said  5,500 ;  and  soon  after  the  pnssinjif 
tbo  said  charter  of  regulations,  the  furtlier 
■b  of  3,000  guineas,  other  part  of  the  said 
loo  guineas :  were,  pursuant  to  the  said  ror- 
(loiMitract  and  agreement,  actually  received 
^«lhe  said  duke  of  Leeds,  or  by  his  agents  or 
IviBts  with  his  privity  aud  consent. 
^And  the  said  knights,  citizens  and  biir- 
■■a,  by  protestation,  saving  to  themselves 
V  liberty  of  axlii biting,  at  any  lime  hereafter, 
7  other  accusation  or  iiApeac!in)cnt  a^^inst 
■aud  Thomas  duke  of  Leeds,  aud  also  of 
ffiof  to  the  answer  that  the  said  Thomas 
ke  of  Leeds  shall  make  unto  tfie  said  articles, 
^y  of  them,  or  of  offering  proof  of  the  prc- 
*>t,  or  any  other  impeachments  or  accusu- 
^  that  shall  be  exhibited  by  them,  as  the 
^ihall  (according  to  the  course  of  narlia- 
^)  require ;  do  pray,  tliut  the  said  Thnnms 
to  oif  Leeds  be  put  to  answer  the  said  crimes 
mUemeanours,  and  receive  such  punish - 
%Mthe  aame  shall  deserve ;  and  that  such 
Bftadingii  examinations,  trials,  and  judg- 
Sl^iy  be  HPOii  every  of  them  had  and 
■»•■■  agreceUe  to  kw  and  juatioe.'' 


The  Ddke*8  Speech  thereupon. 

The  Articles  bein^  read,  the  duke  of  Leeds, 
repeating  several  thmgs  to  the  same  effect  as 
formerly,  said,  **  That  Mr.  Bates  desired  that 
he  would  allow  him  to  bring  sir  Basil  Firebrace 
to  him ;  and  tliat  he  bid  Sir.  Bates  take  care 
of  sir  Basil,  for  he  took  him  to  be  a  very  ill 
man  ;  but  iSlr.  Bates  said,  he  knew  him  Very 
well :  so  after  much  intreaty  his  lordship  per- 
mitted Mr.  Bates  to  bring  him.  That  Mr.  Bates 
and  his  lordship  had  had  a  lon^  acquaintance 
and  friendship,  and  what  he  did  m  this  manner 
was  only  to  liefriend  him."  His  brdship  added, 
'^  That  tbis  storm  which  was  now  fallen  upon 
him,  was  some  time  a  gatliering :  and  it  waa 
promoted  by  a  faction,  and  a  )>arty  who  had 
onl^  A  pinue  aufainst  him  ;  and  the  kin<^'s  busi- 
ness had  been  cklayed  on  purpose.  That  he 
had  an  original  letter  which  gave  him  an  ac- 
count of  this  some  time  before  it  broke  out ;  and 
it  appeared  only  levelled  against  him,  because 
none  else  were  prosecuted ;  and  there  appeared 
a  joy  they  could  catch  at  this ;  for  then  they 
stupiied ;  and  sir  Basil  was  treated  with  to  dis- 
cover only  this  part,  and  so  he  should  beez-. 
cused  from  any  further  discovery."  Uia  lord- 
ship concliideil,  praying  a  copy  of  the  Articles 
of  his  Impeurhmcnt,  and  Of  the  Report  made 
by  the  Coinuiittce  to  the  House,  which  waa 
readily  granted. 

The  I>ukl*s  Ant^wer  to  the  Articles. 

April  30.  Tlie  Lords  sent  a  Message  to  ac- 
quaint the  C(»nMnons,  That  the  duke  of  Leeds 
having  this  day  put  in  his  Answer  to  the  Arti- 
cles of  Impeachment  exhibited  against  him, 
their  lordships  have  sent  a  copy  thereof  to  them« 

The  Answer  was  received  and  read,  and  is  as 
follows:  **  This  Defendant,  saving  to  himself 
all  advantages  of  exc(?ptions  to  the  said  Articles, 
humbly  saitL,  Th:tt  he  is  not  guilty  of  all  or  any 
the  malti.T.i  by  the  said  Articles  charged  in 
manner  jihI  I'urm  as  the  same  arc  by  :.the  said 
Articles  charged  against  him.  Leeds." 

Upon  tlir  (Inkers  putting  in  the  Answer,  he 
again  declared,  helore  God,  ;md  upon  his  ho- 
nour and  eotwscienn-,  that  he  was  not  guilty, 
and  had  ^\\'T\1  \vroi:g  done  hini  i:i  this  accusa- 
tion. 

May  1.  The  Lorus  sent  a  M(*ssage  to  the 
Coinn)nns  to  acquaint  them.  That  they  think 
thcnisolves  obliufcd  in  justice  to  put  the  House 
in  mind  of  the  Impeachment  a<;ainst  the  duke 
of  Leeds,  to  which  the  Duke's  Answer  having 
been  ti-ansmitted  to  them,  the  l^onU  desire  to 
l>e  acquaiiite<l  when  they  can  he  read^'  to  make 
gMfui  the  ArtiHrs  of  Impeachment,  to  the  end  a 
( mrain  day  may  he  apiraintcd  by  the  Lords  for 
that  purpose. 

Upon  this,  the  Commons  ordered,  "  That 
the  An:3wer  of  the  duke  of  Leeds,  to  the  Arti- 
cles of  Impeaehn)ent  airuiubt  him,  be  referred 
to  the  consideration  of  the  Committee,  to 
whom  it  was  referred  to  draw  the  mid  Attic 


I271J 


7  WILLIAM  IIL       Froceeefings  agaimt  the  Duke  of 


0les  of  ftnpeachmefit:   and  thai  they  do  con- 

pdvr  wl).tt  is  to  he  done  thereupon,  according 
}  the  course  of  ptir]iiimcDt§  j  and  report  the 
aiiie  ta  the  Housi^.'* 

May  2.     The  duke  complained  iu  the  House 

Lairds  of  the  deJay  of  the  Hoase  of  Com- 

nons^  in  not  repl yinj^'  to  hiv  An*\^  er»  aJled^n^, 

Ihat  the  Impeachment  uas  ouly  to  load  him 

i^ith  disgrace^  and  thit  theA'  never  intended  to 

try  Inuh      And  added,  "  That  the  parly  used 

threat  partiality  towards  hitHt  and  did  not  intend 

to  enquire  afier  others :    that  they  shewed  a 

mark  of  their  pattiahty  and  spleen,  in  their 

Amendment  to  the  Bill  for  imprisouiu^  sir  Tho- 

aas  Cooke,  sir  Basil  Firebrace  and  the  others; 

itr  Basil  was  to  he  baited  because  he  wa^  the 

riliiess  agiiinst  bis  lordship**' 

ThiH  day  the  Comoioos  res^*!ved,  "  That  the 
*"  •  of  any  money,  or  other  aJvantacfe,  to  any 
member  ot  parliament,  for  the  (iromotiog  of  any 
matter  whatsoever,  dependinjj,  or  to  l^  tranb* 
acted,  in  parliament,  is  a  higli  crime  and  mis- 
demeanor, and  tends  to  the  subversion  of  the 
J!)n|;lii»h  constitution/' 

Mays*  A  motion  being-  made  in  the  Hou«e 
%f  Lords,  to  read  the  bill  for  granting'  lo  the 
kintiT  a  duty  upon  Glass,  &c.  the  duke  of  Leeds 
?ose  up  and  told  the  Lords,  ^'  Tliat  it  grieved 
liim,  that  he,  hIio  was  as  much  as  any  man  for 
the  dispatch  of  the  Money- bills^  and  never  op* 
posed  any,  should  now  do*  it ;  but  he  hope<l  tlte 
Lords  would  consider  his  case,  not  onty  as  his, 
the  cose  of  any  of  their  lordships  ;  for  it 
IS  in  the  power  uf  a  li^iker  to  accuse  at  the 
I  of  a  session,  and  one  mi^ht  lie  under  it 
ithout  remedy  :  and  since  that  they,  hv  mis- 

«ement,  had  delayed  this  Money-bill  for 
?k«i,  it  wottld  not  be  of  mighty  ill  conse- 
<;  I        I  Ite  a  day  or  two  longer, 

:  I'ery  earnestly,  that  if  the 
i  1  wJ  not  reply  *  the  I  m  peach  - 

1  iPged  ;   for,  if  it  were  not, 

h'   II  L*  reproach  tiiereuf  all  his 

life.  1^  Cummons  would  do  tut- 

llimg  1.  ..  ,  .  .  u...»L^h  ihey  had  appointed  a 
Ck»uimittec  lo  inecl,  they  uierbut  oucf ,  and  that 
for  fomi,  and  never  met  more,  nor  would  do 
any  thmgciu  il/' 

^*  'ly  the  Commons,  at  a  conft- 

>  a  wiilttni  I'aptr  lo  J  he  Lords, 

^  t  the  Couimon*  will    make 

^  List  the  duke  of  Leeds,  in 

I  11  the  Ajrlto5'«^  nirntinued, 

iit*  »ho  »*  !'  d  to 

<l  ios,  hftVf  i'  \   cm* 

l»k»ytd    in  iuukmg   into    nidence  against  I  he 
fltthr  ;  and  that  in  Ihc  prcfiaration  of  the  erf- 
thcv    nicct  uiih    an    obstruction, 
f  nr  Itohart,  uho  apjtcafed  hv  the 


Ivio 


the  to 


ia» 


tmittce 
wiine^,  U  wiihdru' 


of  b<^iih  (Ion 


whi*^ 


ha*t 


f  male  g> 


moat  being'  desirous  that  jttsbce^ 
out  any  manner  of  delay/' 

Tl»e  Pa|>er  bein^  hrou|^l| 
HoufiCy  and  reail,  it  wi 
without  any  debate^  or  any  i 
the  duke  of  Ijeeds,  that  an  " 
made  to  the  kinj^*  to  iaaiie  «  ¥t\ 
fftoppinif  the  porta  aniJ  seisin 
The  duke,  in  ttssistsnce  to 
them,  that  it  was  requisite  lo  in 
Christian  name,  and  mnl  his 
his  siroame  being  RobarL 

The  Duke  of  Leedi  then  roMi 
the  House  of  Commons,   for 

heard^of,  an  unprccedentrd 

a  man  with  crimes.       '        aj 

to  make  it  pood,  I 

denccs;  and  now  tbey  -  ^' 

a  material  wiiness,  and  i 

duce  this  xviloess;  an  li  ^>  i«.i*.r*j| 

more  to  produce  evidence  to  ae 

to  answer  mch  questions  by  whid 

himself.      II ts  lordship  then  pr 

?;Oaiut  the  House,  that  in  truth,  f 
ti*l>art  to  see  his  daug'hter  Lemp 
into  the  country  big^with  cliiltlj 
to  call  at  Minns  to  see  his  dan 
being'  in  his  wjy  lo  his  dftn 
where  the  mtssieoger  ot  - 
might  hare  kn*nvn  he  u 
That  his  lordsl 
sent  a  me^ei  . 

his  fooluian  WiiWrvi  rMUi  nxna  iv^od 
Sunday  morning,  (fur  which  l^e  w| 
lo  let  him  kn*vw  U  '  ■-*    *   %  i 
the  house,  whicti  ^ 
sibly  return:    That  .,.>  ,...Js 
man  he  would  ^o  to  sleep,  nnd 
wilh  Robart  in  the    nmrnifrtf^j 

called  him  ;  but  wli<  4^ 

in  the  morning,  «hp 
and,  upon  enquiry,  he  fouii4| 
nor  pull  off  his  b«K)ta  in  his  i 
footman  said,  he  a^ked  wli« 
true,  th:it  this  lord  was  itnf 
Bates  was  in  priMin  ;  w  K 
to  lie  truf :  and  his  lord:-; 
eued   Biibart,       TSi 
a  letter  from  Roln 
his  lonl,  thut  he  dt 
S»  itzer  1  a  nd ,  th  m n ,  dl 

noil  Id   write    hin   ' 
the  uiaiter  o(  (hv 
That  his  h>rd*!iin  1 
wiiiii<»r,hy  \l 
M^^r  he  hmt 
wowld  UmI   ht  N*  * 
that,  my  UmU 
I  sled  upon 


LHrl'trr    |[|t 


am*  I  pcachmeiii  fthall  fall*' 


rrs] 


Trial  ofPatrici  Kimttftmount. 


A.  D.  1697. 


[1274 


Upon  which  lome  few  Lords  cried,  *  Well 
ored*.* 

Howorer,  the  lords  read  and  passed  the  bill 
Mt  Mune  daj,  for  the  duty  upoo  friass,  &c. 
id  bis  majesty  came  to  the  boiise  and  gave  the 
»yal  assent  to  several  bills,  and  among  the  rest 
•  the  Bill  for  imprisoning  sir  Thomas  Cooke, 
r  Basil  Firebrace,  Bates  and  Oraggs ;  and 
■o  to  a  bill  entitled,  *  An  act  for  the  king|s 
oat  gracious  and  free  pardon,*  but  with  this 

*  **  Surely  that  oat-cry  of  theirs  was  rather 
mark  of  scorn  than  approbation :  for  though 
m  dake,  by  sending awav  his  servant,  hadde- 
ivcd  his  adversaries  of  that  legal  proof  which 
M  oecessary  to  conviction,  enough  had  ap- 
1  to  prove  him  guilty  in  the  opinion  of  the 


!  world  :  and  if  any  tliin<^  could  be  added 
s  the  reproach  which  he  had  brought  on  his 
liaracter,  on  the  high  office  he  posMssed,  and 
■a  government  he  served,  it  was  the  solemn 
rvtestation  of  innocence  he  bad  set  out  with, 
id  the  contumacious  demand  of  a  speedy 
ial,  which  he  knew  neither  could  or  would 
hm  place."    Ralph. 


exception,  amongst  others ;  <  Except  also  all 
persons  who  have  been  or  shall  be  impeached 
m  parliament  during  this  session.'* 

And  then  his  majesty  commanded  the  lord 
keeper  to  prorogue  the  parliament  to  the  18th 
of  June,  and  it  was  prorogued  accordingly. 

On  the  S4th  of  June  1701  (two  complete 
pa^'liaments  having  intervened)  the  House  of 
Lords,  taking  notice  *^  That  the  Commons  hav- 
in^  impeached  Thomas  duke  of  Leeds,  of  hig^ 
cnmes  and  misdemeanors  on  the  27th  of  April, 
1695  'y  and  on  the  29th  of  April  exhibited  ar- 
ticles against  him,  to  which  he  had  answered  ; 
but  the  Commons  not  prosecuting,  order, 
<  That  the  said  Impeachment,  and  the  Articles 
exhibited  against  him,  be  dismissed.'  " 


f  **  Burnet,  who,  speaking  of  the  act  of 
grace,  which  passed  at  the  close  of  the  ses- 
sion, takes  care  to  remember,  it  contained  an 

*  Exception  as  to  Corruption,'  acknowledges 
'  the  whole  discovery  was  let  fall :  and,'  con- 

*  tioues  he,  <  it  was  beliered  too  many  of  all 
^  sides  were  concerned  in  it ;  for,  by  a  common 

*  consent,  it  was  never  revived.'  "    Ralph. 


08.  The  Trial  of  Patrick  Kinnynmount,  for  Blasphemy*  and 
Adultery  :  9  William  III.  a.  d.  1697.  [Now  first  printed 
from  the  Records  of  Justiciary  in  Edinburgh.] 


^n*  JosnciARi£,  S.  D.  N.  R^ls,  Tenta  in 
nKtorio  Burgi  de  Edinbur^,  vigesimo 
■eeando  die  mensis  Novembns,  millesiroo 
■czcentesimo  et  nonogesimo  septimo,  per 
bonorabiles  viros,  Adamum  Cockburne 
de  Ormistonne,  Josticiarum  Clericum, 
Dominos  Colinum  Campbell  de  Aberu- 
chill,  Davidem  Hume  de  Crossrig,  Joan- 
■em  JLauder  de  Fountainhall,  Arcbi- 
baMum  Hope  de  Rankeillor,  et  Jacobum 
Falconar  de  Phcsilo,  Commissionarios 
Justiciarii  diet.  S.  D.  N.  Regis. 

Curia  legitime  affirmata. 
Iniran' 
Pntrick  Kinnymnount  of  that  Ilk. 

M  this  (late,  there  appears  on  record  a  long 
■Moealor  on  the  relevancy  of  various  charges 
Wtiaed  in  a  previous  indictment  against  Kin- 
■■nount,  also  the  following  niiitute  : 

Tbc  Lords  at  my  lord  advocate's  dcsyre,  and 
BiHpect  of  the  absence  ol'  severall  niateriail 
^Jtatnes,  who  his  lordship  affirmes,  are  under 


*  Concerning  the  Scots  Law  of , 

*  Blackenzie  (Criminals  part  1,  Tit.  3,)  who 
'  *vct.  6.  mentions  the  ca^  of  a  woman,  who 
*■  fiaed  f«ir  drinking  the  devil's  health,  which 
*^«ver,  he  says,  was  not  held  to  be  blas- 
"^y.  Sec,  too,  the  Case  of  Thomas  Aiken - 
'•^i  p.  917,  Of  this  Volume. 


Kinnynmounths  influence  and  abstracted  by 
him,  tbev  continued  the  dyet  as  to  this  prooes 
till  the  first  Monday  of  December  next,  and 
ordained  the  pannell  to  be  carry  ed  back  to  pri- 
sone,  and  the  assysers  and  witnesses  to  attend, 
ilk  persone  under  the  patne  of  four  hundreth 
merks,  and  grants  certificatione  and  caption, 
against  the  haill  al>sent  witnesses. 

The  said  Patrick  Kinnynmont,  of  that  ilk, 
was  also  indyted  and  accused,  at  the  instanc«< 
of  his  ma'tics  advocat  mentioned  for  the 
crymes  of  hlasphemy  and  adultery  in  manner 
mentioned  in  the  indytment,  whereof  the  tenor 
follows : 

You  are  indyted  and  accused  at  the  instance* 
of  sir  James  Stewart  his  niaUies  advocat  for  lii« 
highnes  inteicst  in  the  matter  under  written, 
viz.  That  where  by  the  law  of  God,  and  tho 
layes  of  this  and  all  other  wcell  governcfl 
realmes,  the  crymes  of  blaspheniie  and  of 
wicked  irreligion  against  God  and  our  Saviour 
Jesus  Christ,  and  the  cryme  of  adultery  are 
most  horrible  and  detestable  cr^'mcs  to  be  pn- 
nished  will  all  sevtirity  ;  lykeus  hy  the  act  of 
parliament  Charles  second,  paihanient  first,  an 
ftventy  first,*  entituled  Act  against  the  (7rymt 


*  The  Act  referred  to  is  as  ftillows : 

Act  against  the  crime  of  lilasphemy. 

*'  Our  soveraign  lord,  and  the  eslalr<«  of  par- 
liament considering  that  hitherto  tUeve  K%.\.\^ 


1876] 


9  wauAM  in. 


Trial  ofpairick  Kinnjfnmaunt^  [tM 


\mi  btofipbemie^  it  is*  ^(atuteaQd  ordaioej,  Ihat 
[nrhosoevef  not  bring  distracted  tn  Uh  vvittg, 
«bali  m\\  upon,  or  curse  God,  or  any  of  the 
]personf»s  of  the  blessed  Trinity ,  sbaU  be  pro- 
I  C(-sK«d  before  the  cbeiff  jtistic«,  and  bein^  found 
guilty,  shall  be  punished  with  death  ;  aod  far* 
i  dei-»  it  is  statute,  that  vrhosoe?er  sbalt  den^ 
r0oif  f  or  any  of  the  persoovs  of  the  blessed  Trt- 
[  vitr,  and  obctiimleJ y  coottBue  therein,  shall  be 
^  in  lyke  manner  puui$he<l  with  death ;  lykeaa, 
I  ^y  tlie  <fle Tenth  act*  of  the  fifth  seMione  of  the 
^  current  parltamejit,  intitnled  Act  against  Bbs- 
pheniy,  the   forsaid  act  of  parliatneot  is  not 
^nly  ra^titied,  but  ftirder  it  is  statute  and  ordain^ 
[  ^/tbat  wbosoeter  shall  in  their  wryteiug  or 
nurse,  deny,  imput^ue,  or  quarrel),  argue  or 
reason e,  against  the  Being  of  God,  or  any  of 
,  the  persones  of  the  blessed  Trinity,  or  tbe  au- 
Ihonty  of  the  Hrily  Scripinres,  or  the  provi- 
f  dence  of  Go<i,  in  the  jjovernraent  of  the  world, 
•hall  be  punished  wiili  the  paines  contained  in 
I  the  satd  act;  Lykeas  by  the  act  of  partianaenti 
^ueen   Mary,  parlia^t  fifth,  cap.  tn-enty,  open, 
;  inanifeft  and    tnt'orrtgible  adulterers  are  or- 
dained to  be  punished  by  the  escheat  of  their 

|"1>een  no  law  in  this  kingdom^  agmiost  the  hor* 

1  vible  Clime  of  blasphemy.    Therefore  his  roa- 

I  Jestie,  ^ith  adriceof  hib  ^aid  estates,  doth  hero- 

[  ky  statute  and  urduin  thut  whosoef  er  hereafter, 

kliot  being  distracted  In  bis  wits,  shall  rail  upon, 

T#r  curse  God,  or  ony  of  the  persons  of  the 

Messed  Trinity,  shall  be  processe^l  before  the 

chief  justice,  and  Wing  found  guilty  ibfill  be 

piitiisbed  witlk  death.      likcas^  his  majesty, 

vith  advic^e  foresaid,  finds,  statutes,  and  or- 

I  lUiiis*  that  whosoever  here&fler  sliall  deny  God, 

[  4IJ*  anv  of  ihe  persons  of  the  blessed  Trinity, 

1  «lstioately  continue  therein,  sbali  be  pro> 

■ed,  and  being  found  guilty,  that  tiiey  be 

r  jpuutsbed  with  death/^ 

*  After  coQtlrmiug  the  fortner  Aci,  tbif  Act 
'«i>roceed!s: 

**  And  further,  bis  nuycsty,  with  adirice  and 

I  consent    foresiiic),  statutes  and  ordains,   Tbnt 

whoever  hereafter  shall,  in  tht^ir  writing  or  dis- 

j  course,  deny*  innnnoi    or  quarrel,  argue  or 

I  reason  agaioa  i  uf  God,  or  any  uf  the 

\  persons  of  the  If  t»^ty»  or  the  autborUy 

I  iii'  iUe  Holy  Scriptures  of  the  Old  and  New 

I  Tesiatnents,  or  the  providence  of  Goil,  in  the 

^ government  of  the  world;  stiail.  for  the  first 

Fuult,  be  punished  with  imprisonnnent,  ay  and 

while  they  give  pubtick  satisfaction  in  sack- 

Iclotb,  to  ihe  cuij^regaljou,  within  which  the 

i^iandaj  w  is  itununitted.     And  for  the  second 

llault,  the  dtlinrjuint  sbnil  lie  fined  in  an  year's 

If  alued  rent  of  Uin  rxMil  eNtate,  and  the  tiventJt-tb 

L|>:irt  of  hi9  perfcoujil  estate  (the  equiil  bdf  of 

livbicb  {iiwA  are  to  be  apidied  to  the  use  of 

|4iie  poor  of  tiie  parish,  within  whiob  the  crime 

■hali  happen  to  be  MHt.».iL»t.  ,|    u,yA  (h*i  rt«hr,r 

Ikalf  to  ibe  party  ii> 

loiprisoned,  ay  and   > 

iSKtion  ui  smpra.     And  t«ir  ihp  ihird  tauit*  he 
'  aU_be  j>M(iHhed  by  death,  as  an  oiiat^uiuv 


goods  »  and  ftirder  by  the  psrliaooent  njnl, 
cbjip.  seventy  fond h  *  niH'« n  M*rj,  u^  ip4 
m  411  i  test    a  Jul  tei  >:  i  i  <  sliabU  b^  M, 

fcsefting    the    foi .  .^    rzm\i  ^ 

aduUerctn;  and  by  liift  »*n  hm 

siicth,  cap.  an  hundn^l    aik.i  <    .  4 

cUired  to  be  nottour  and  miaitia;  uliAr^ 
where  bttjme«  arc  prof!ri^»l  or  tbv  iikiliav 
keep  company  and  \m\  a^  btl^ 

gttber  nmti^rtously  f  or  :t  «i4  Ml 

ftdmoniihecK  n  '     -  ['>  uuafit  tk  ki 

and  are  thert  i  a  iiei   NeitrtMi^ 

that    yow    kUk  -Tk    Kio8pt»«^ 

sh akeiog  off  all  IV  and  <iii r  nmm 

to  thts great  and  di *..:.„.  ;.»mi*arGo^iBl« 
Saviour  Jesus  Christ,   and   all  nfiirftoil 
majestie*s  laws  and  ntiihoniv.  Umiv  injmd 
to   blasplienie,  an* 
wicked  irrelt^rioiu 
name  of  God  and  oiir  Lord  Je 
soe  far  as  frequently,  or  at  Jn*l  or 
other  of  the  day  es  of  the  moneibsaf 
1696  and  1697,  ^ou  hare  prctuiasd 
your  wicked  passione  and  trroigioo,  *" 
a  nian  bougar  of  God»  and  tciii 
lykeasyou  also  blaspbeoMiiisty 
Christ  was  a  bastard,  and  fjurdcr  M 
Janvea  Dewar,  tn  LuisbgvUie,  k  F: 
cutting  out  of  his  ears  unlea  bt 
Christ    his    8jiviot»r:     And  Jfon 
wickedly    said,  and    which  ts    b 
agajno  repeated,  if  any  man  \\mV  M 
one  hand  and  Christ  <<  ,y 

stow  the  luggs  out  ot 
tbem  both,  and  vow  woo  hi  stse  who 
it  was  ill  done.  And  tarder  on  one  Of 
on  severall  of  the  daye*  and  n't^tl 
monetbs  and  years  fornftulw,  vowbei]i|(j 

ried  man  to  Wiil! 

committ  nottour  and  m  J  St«nr,i 

adultery  with  Jonuet  >  l^ 
miiid,  in  soe  much  thui  \ 
pany  and  bed  with  her  '• 
for  dayes,   neeks  anci 
servants  and  others  in  w^^    .^^u^*,  , 
bed  with  her  as  avouedlv  as  if  fbt 
your  wyffe,   and   lu^***  iift-fi   ficqi 
ihrowe  otf  your  t!  r  infd 

bed  logither  in  th-  r,  toll 

affix>ntedly,  that  you  have  Itad  m 
in  anothtr  bed,  besyde  yow  and  yi 
leresse  m  the  same  roumt*  nt  It 
ootnmitted  adultry  by  beddli^  ■ 
the  said  Jannet  as  with   your 
which,  it  is  manifest,  that  yow  artf 
and  pairt  of  ihe  forsaid  crymci  of  I 
irrehgione,  and  adultery,  wUicb  *" 
bytbelvi      '   *^      *      ^^  Tnqad*t 
to  bo  I  uo«o< 

con*^"  or  Ot 

Ih.  rand 

ol!i;  .^ ....- j',^~  :u  lymr 

Sic  Subtcni^Uurf "  /* 


of  blii«plu*uiy  And  adult«^y  liU  bba  M' 


J^  Bla&phemt/, 

l>ecem¥er  next,  tnd  the  indytment  be-' 
ated  tiva  voce.  The  lords  ordained  both 
to  interchaDge  tiieir  debates,  in  wryte- 
irixt  and  the  said  day. 

Deeei9her6^1697. 

inned  till  Monday  next. 

iTioNE  for  his  Miyesties  Ad?ooat»  againat 
itakk  Kinnynmount,  of  that  ilk. 

ck  Kynny  mount  of  that  ilk  baring  from 
di  bein  toose,  debauched  and  profligrat,  as 
or,  and  being  accused  in  anotherl^bell 
him  of  serendl  extravagant  and  wicked 
r  violence,  hath  added  to  alibis  wicked- 
cry  mes  of  horrid  bla8|iheray,  and  of  not- 
t  least  of  manifest  simple  adultry,  as 
nilarly  represented  in  the  lybell  raised 

Dt. 

the  relevancy  of  which  lybell,  in  soe 
oncems  the  blasphemie,  nothing  is  or 
>biected,  the  wonls  lybelled  being  raa- 
lilletng  against  God  and  the  Lord  Jesus 
knr,  which  by  the  act  of  parliament  is 
lade  capitall,  without  the  necessity  of 
the  quality  of  the  pannalls  obstinatly 
vring  therin,  which  is  onl^  a  qualifica- 
quyred  by  the  act  of  parliament,  as  to 
ying  of  God  or  of  the  persones  of  the 

Trinity,  which  may  proceed  from' 
id  error.  Whereas,  railieing  being  a 
of  pure  and  devilish  malice,  if  once 
tasd,  renderft  the  committer  absolutely 

but  the  only  thing  alleadged  against 
cU,  was  that  the  condescendence  upon 
le,  viz.  on  one  or  other  of  the  dayes  of 
meths  of  the  yeares  1696,  and  1697 
iras  too  laxt ;  and  that  the  place  was 
B marked ;  as  to  which  it  was  answered, 
\  Uasphemy  hath  beiu  indeed  habituall 
annau,  soe  that  it  is  lybelled  as  sucli,  or 
,  or  ane  or  other  of  the  said  dayes. 
latin  cry  mes  of  this  nature,  neither  tvme 
e  are  soe  materiall  and  commisable  at 
ae  or  any  where,  and  are  not  ly  ke  other 
,  as  of  manslaughter,  mutilatinne,  or  the 
rhicb  leave  visible  effects,  and  therfore 
ave  both  tyme  and  place  more  easily 
I* 

atSrdly,  The  witnesses  will  condescend, 
m  the  condescendence  if  the  pannall  be 
•d  to  give  in  his  exception  oiatibi  or  the 
I  may  then  be  considered  *,  and  this  in 
is  simicient  in  ly  belling  any  cry  me, 
n  the  day  or  iplace  make  not  a  special! 
itione. 

kit  4thly,  His  majostiu's  advocat  is  con- 
need  I)ci8,  that  the  lybell  be  restricted  to 
ir  or  five  last  moncths  of  ihe  year  1696, 
i  two  or  three  first  monetlis  of  the  year 

Secundo,  it  was  objected  that  the  adul- 
bcHed,  hod  not  all  the  qualifications  re- 
by  act  of  parliament  to  inferr  nottoiir 
ry,  and  therfore  iioe  pain  of  death  :  To 
A  was  answered,  that  the  qiialiHcationes 

iM  of  fiarliament  are  alternative,  viz. 
I  procreat  or  nottour  converse  at 


A.  D.  1697. 


[127* 


bed  and  board,  or  willful!  converse  tHer  prubi- 
bitione  be  the  church,  which  qualificationes 
are  reqnyred  disjunctively  and  not  jovntly,  and 
are  also  soe  lybelled  :  lykeas  the  lybell  sub- 
sumes upon  the  second  member,  viz.  nottour 
converse  at  bed  and  board,  secundo,  the  lybell 
doeth  chaige  not  only  nottour  adultery,  but  in 
case  nottour  adultery  should  not  be  found,  then 
simple  adultery,  which  is  at  least  relevant  for 
the  pains  of  law. 

Defences  far  Fatrick  Kinnynnumut  of  that  Ilk. 

Against  the  lybell  raised  and  insisted  on 
against himhy  his  msjestie*s advocat,  in 
answer  to  the  mfbrmatione  given  in  by  his 
lo'p  relative  thereto. 

Scverall  malicious  persones  having  conceivecT 
a  deadlie  prejudice  ag^nst  Kinnynmount,  and 
finding  no  imaginable  way  to  vent  their  ma- 
lice, they  did  at  last  fall  into  this  damnable  con* 
tryveance,  viz.  to  informe  his  majestie's  advo- 
cat, that  the  said  Patrick  Kinnynmount  was 
guiltie  of,  and  had  committed  severs  11  attro- 
cious  cry  mes,  whereof  some  were  capitall,  and 
did  soe  clamour  upon  and  importune  lib  ma- 
jestie's advocat,  that  at  last  they  did  impetrat 
from  his  lordship  ane  warrant  sumraarly  to  ap- 
prehend and  imprisone  him,  and  ikiBnyn- 
mouni  being  imprtsoned,  he  did,  ai\er  severall 
bills  presented  to  the  lords  of  privy  councill,  at 
last  obtaine  a  dely  verance,  ordaineing  my  lord 
advocat  to  give  him  ane  indytment,  and  insist 
i^nst  him  before  your  lop's  of  justiciary  ;  and 
iQnnynmount  being  accordingly  indyted,  and 
having  compeared  and  proponed  his  legall  de- 
fences against  the  said  indytment,  the  same  as 
to  the  relevancy  b  fully  determined  by  your 
lop's  interloquitor,  and  Kinnynmount  cfoeth 
with  all  due  submissione  acquiesce  in  your 
lop's  justice  therein. 

Dureing  this  denendance,  Kinnynmount's 
malicious  enemies  being  fully  convmced,  and 
finding  that  the  crymes  lybelled  in  that  first 
indytment  were  soe  false  and  groundless,  that 
It  was  impossible  that  any  probatione  could  be 
had  theranent,  soe  boundless  and  insatiable  was 
their  malice,  that  durinfr  this  dependance,  they, 
by  their  importunity,  did  prevaill  with  my  lord 
advocat  to  give  Kinnynmount  another  addi- 
tionall  indytment  for  luledged  blasphemy  and 
adultery ;  and  the  same  being  debated  before 
your  lop's  viva  voce  in  open  court,  my  lord 
advocat  hes  given  in  ane  information  against 
Kinnynmount,  wherein  by  way  of  preface  his 
lo'p  accuses  Kinnynmount  as  guilty  of  gross 
debauchrie  and  profliffateness,  and  of  extrava  • 
gant  wickedness,  antl  deeds  of  violence  from 
his  youth  ;  but  Kinnynmount  knoweing  that 
this  proceeds  only  from  my  lord  advocate's 
malicious  informers  more  than  from  himselfe, 
and  that  your  lo'ps  are  soe  just,  that  neither 
clamour  nor  calumny  can  have  the  least  in- 
fiuence  iipon  your  impartiall  justice,  doeth 
therfore  foibcar  to  make  any  furdcr  nnswcr 
than  to  deny  the  s^me  as  absoluiely  false  }■ 
every  poynt. 


My  \i 
upon  th( 


9  WILLIAM  UL 


Triai  qf  Patrick  Kinn^mounit 


My  lord  adrocat  liaviDsr  iherafler  iD^iiaieii  i 
upon  the  boiTid  exprpiisi«iis  Ivlieiled  and  al- 
Itratlged,  Ihat  tlie  sitmie  was  simply   capital], 
wkliQul  ilie  neee3$«lt;^.ol  addin;^^  that  itie  paunall 
did  nbsibately  coDtinuc  tUerhi* 

It  was  Biiswerf*<i  ibf  llie  pantiall,  iltat  Ue  did 
tkot  unly  detjy  the  jiaill  (ixpres&ions  ly belled^ 
hut  uUe(  ly  fmtn  hii  ^ery  mull  and  heart  diU 
distaste  aQ  J  ahhorre  (iie  &amef  oor  can  the  pan- 
Dai)  be  persiiaded  that  ev^r  any  such  expres- 
sions did  C5ca|>e  him  ;  and  Ingeniously  de- 
clair^s,  I  bat  t'roni  hw  fery  heart  he  abhotns  to 
jiear  such  eKpressioDs  lain  lo  the  charge  of  any 
Cbn^uan  ;  and  if  he  vrere  eouseicius'  to  him- 
fil'ife  of  any  such  f^w\i  (as  trucly  he  is  not)  he 
w^imUI  raiuer  throw  himsel(e  upon  bis  tna- 
jeitie^s  iii«ircy,  Ihau  offer  to  prnpone  any  defence 
tber  a^ainfft,  but  being'  conadouK  to  biiaselfe  of 
noc  soch  guilt,  atiA  only  appreheuBife  of  de- 
baucUeil  ami  siibometl  i*itn esses,  bia  defence 
against  Ibe  said  ttidytmem  is  shorily  tbis^  vh. 

That  fhta  said  iodytment  as  to  the  Mmsphemy 
Jy helled,  la  tio  wnyea  relevant,  in  re&pect  it 
UoejB  not  <?ond€Scend  upon  the  place  wbert*  the 
expressioties  ly  helled  are  at  I  cadged  to  haye 
hctn  uttered  and  spoken  by  tbe  paituall,  end 
&H  cnniioaU  lawyers  that  ever  wrote  doe  un- 
dni  mott.'^ly  agree  in  tbis,  that  in  all  criminal  I 
tybells  Locm  Midi  ought  necessarily  to  be 
ly  belled,  because  by  and  attour  tbe  common 
brocard,  that  dolus  taitt  m  gcmmlibu^  no 
fnimtuaU  tyheU  otigbt  to  be  sustained  in  tupi- 
tali  crimine^  which  is  contryred  of  niir|iu^  lo 
preclude  tbe  pannall  from  the  heuente  of  any 
defence  competfttt  and  allowed  to  him  by  law, 
such  as  alibi  as  to  tht^  j»annall  bimselfe^  or  aUbi 
li  lo  one  Of  more  of  tbe  witnesses  adduced 
igtiust  tbe  pannelK 

2.  As  this  lybell  doth  not  bear  the  locum  de- 
/tr^i,  «oe  iieilber  doth  it  condescend  upon  any 
definite  tyme,  but  allennarly  beares  the  ex- 
pressions ly belled  lo  have  bein  spoken  liy  tbe 
pannall  upon  one  or  other  of  tbe  daves  of  one 
or  other  of  the  moneths  of  one  or  otner  of  tiie 
yeares  ssixteen  hundred  and  nyntie  siix  and 
teven,  wiiich  i^  in  such  generall termes,  that  it  ia 
truely  adtoired  bow  my  lord  advocat  can  con* 
tend  or  pretend  that  such  a  general  I  lybell  as  to 
the  ly tne  either  can  or  ought  to  be  sustained  be- 
fore any  court  of  the  kingdome,  farr  less  before 
iuch  a  soverajgne  court  where  none  but  per- 
tones  weiU  knowen  in  crlmmall  lawes  doe  ajtt 
ay  judges. 

Attd  whereas  my  lordadvocat  in  bii  inform  a- 
lione  pretends  that  he  opponcs  the  lybell,  bear^ 
ng  that  tbe  pannaU  used  the  saids  expressiones 
frequeutly,  at  least  upon  one  or  other  of  tbe 
dayet  of  the  ^aids  tno  yeares :  Secundo,  that 
be  ia  content  to  restrict  his  lybell  to  one  or 
Other  of  the  dayes  of  the  four  last  motietbi  of 
tbe  year  tixteen  hundred  and  nyntie  six,  aod 
three  first  monetba  of  theyear  sixteen  hundred 
fttid  njnety  teven:  andT^tio,  hh  to*p  pre> 
tends,  thai  ibere  is  noe  neeetsity  to  condi^cend 
Upon  lyme  or  place  in  the  cry  me  of  blaspbe- 
mie  as  in  other  cry  toef  of  rauttlatio^e  or  man- 
ilMVghterf    wbi«b    leave    visible  efi«ets,  aod 


therefore  may  hare  tyme  aud  plac^mc 
marked  i  Q.uarto,  tyuneaml  place  msk< 
fereuce  aa  to  the  cry  roe  of  hlaspbemii 
wiinaceea  will  condescend  upon  both  m 
depone. 

To  all  which  it  was  reply ed  for  the 
That  the  fornier  defence*  atood  un^«< 
relevant  notiThbstan^iing  of  the  saidft 
and  as  to  which  tbe  couimon  law  mi 
of  ail  lawyers  is  repeated  Jind  oppooi 
all  pursuers  in  criminall  tybells  ai^ot 
make  tbeir  lybelLs  releTant  and  to  cot 
€i  insintctit  soe  incidi^  non  sunt  it  ft 
triia  h&minis  :  and  what  grt^ter  sol 
layd  for  the  ly  fe  of  a  man  tiian  to  suit 
aue  iudy tment  a&  Ibis,  by  which  tbe  | 
absolutely  precluded  from  bi5  c 
d 4^ fences  of  Aliliij  botti  as  to  him»etfe 
ueases,  and  is  also  precluded  from  i 
other  wiiness^a  who  mi^^ht  bav^e  heiti 
at  the  lyme,  and  mi<bt  h^ve  clearly 
tbe  pan  nail  aa  to  what  ib^  «tilnes«ei 
against  the  pnnnall,  (and  u  bo  are  all  ki 
be  persones  tnot^t  su^per-t)  m«ght  bi 
depone  aeiiinst  biro.  Heiundo,  tbe 
having  subjected  himselfe  to  a  le^^ll  tr 
veiiturcd  hu*  lyfe  upon  the  i^ue  nf  tbi 
metiti  tbtit-  is  in  effect  a  judiciull  tru 
l>etv*  ixt  ibe  pursot i-  (both  as  to  th*  n 
and  probatiun)  and  the  pannall^  fforfc 
Informed  by  bis  lawyen*  that  ihe  uw 
roent  waa  unques^ouably  irrebrvftot  ^ 
descending  upon  the  tyme  and  pi« 
thereupon  subjected  himself  to  trysll 
lop^sjufitlce^  and  repeat es  aod  oppoDf&bi 
defences  as  to  tyme  and  ptace  against  I 
vancy  of  tbe  indytmeut ;  neilher  c^ 
advocat  be  allowed  to  alter,  qualifi^  ai 
the  iudylraent  in  prejudice  of  thi&  |«a 
the  relevancy  thcrof  ns  it  f^tandfi  lousli 
mined  by  your  loji^s  inlerloquitur,  inj 
in  vrhmnalibiiS  non  lictt  VQgart.  Teft 
the  crymes  of  murder  aod  mutilnti^ 
tyme  and  place  be  uoce^sary  to  bccnoA 
upon  (as  niy  lord  ad  vocal  bim^rire  i 
ted  get  Ii)  then  mntfo  mogti  ought  the  » 
condescended  upon  in  the  cry  en e  of  blv 
uf*i  non  est  at  corput  deliciit  nor  tay 
Teslige  of  the  cry  me  renrtainiugf  aad  i 
TpucG  or  reason e  can  be  ossi^wd  why 
place  ought  not  to  he  I  j  belief!  in  tlit  < 
blasphemie  as  weell  as  in  others.  Qn 
pannall  bes  ventured  his  life  upon  Ibe 
tbt's  lybell  as  it  is  labelled,  ami  repi 
former  defences  against  tbe  rekraac 
satue. 

And  as  tny  lord  advocat  cannot  kil 
alter  or  quahl^e  the  ^me  from  ii  bal  ii 
soc  neither  can  his  lo'p  be  allowed  H 
tbe  jutme  by  dejio^ition^s  of  witi 
therhy  the  pannall  would  be  pn 
from  the  l>enefite  of  vonr  lop*«  { 
the  relevancy  of  tue  i|ualiBoiil(iii 
deponed  upon,  and  soe  ruu  ibe  hanf^^ 
ing  probations  to  be  led  uptin  matlirf  1 
tibly  in  tbemselve^  are  not  releriali 
to  be  precluded  oil  possitliitj  of  tiE 


M 


Jot  Blasphemtf. 

Mt  any  such  matters.  It  beingf 
r  him  to  adduce  probatione  befor 
9ceed  to  advvse  and  giwe  their 
\mng  by  the  law  oblidged  ex  in- 
proeeed  to  the  advyseing*,  but  the 
es  bis  said  defences  against  the 
d  Doe  man  will  pretend  that  wit- 
eiTeable  upon  ane  indytment  soe 
aelfe. 

I  adbereing^  always  to  the  forsaid 
inst  the  rdevancy  of  the  lybell, 
Dtreatiog  ante  omnia  your  lord- 
[uitor  injure  therupon,  doth  in  the 
jnenioiiafy  declaire  befor  Almighty 
ifaorres  and  trembles,  to  hear  any 
ones  as  tlieiie  lybelled  charged 
ristian,  farr  more  to  have  them 
a  charge,  neither  will  the  pannall 
his  lawyers  either  to  palliat  or 
laynousoess  of  the  words  lybelled 
but  doth  simply  and  absolutely 
in  every  |ioy  ntand  article  thereof ; 
■ly  abhorres  the  same,  soe  he  will 
defence  which  may  in  the  least 
fie  or  vindicat  any  such  ezpres- 
se  lybelled,  and  denys  that  ev^r 
liiro,  and  in  caise  that  ever  any  of 
es  lybelled  did  escape  tlie  pannall 
olutcly  denyes  and  abhorres)  the 
tainly  bein  when  the  pannall  hes 
!ly  drunk ;  and  it  is  weell  knowen 
Innk  and  after  cups  are  mad  and 
le  pannall  humbly  conceaves  that 
lanous  expressiones  when  he  was 
ink  have  escaped  him  (which  he 
lyes,  detastes  and  abhorres)  yet 
lever  be  sustained  to  inferr  agamst 
the  paines  lybelled.  Because, 
5  twenty  first  act  parliament  first 
the  second,  the  punishment  therin 
nly  appointed  to  be  inflicted  upon 
distracted  in  their  witts,  and  if 
ressiones  as  are  lybelled  did  ever 
mnall,  it  is  offered  to  be  proven 
It  the  pannall  was  al)solutely 
stracted  at  that  tyme.  Soe  that 
t  of  parliament  can  never  be  ex- 
t  the  pannall  as  to  any  expres- 
I  by  him  when  he  was  madd  and 
lid  IS,  and  the  other  act  of  parlia- 
i  upon,  viz.  the  act  sixtet-n 
lyntiefive,  appoints  allcuarly  tlie 
0  be  capitalK  and  this  is  the  first 
ly  such  villainous  cry  me  as  this 
upon  the  pannall,  and  conse- 
n  never  be  said  to  have  incurred 
on  therin  contained.  But  the 
utterly  deny  and  perfectly  detest 
U  the  villanous  expressiones  con- 
jrbell. 

lytment,  Kinnynmuunt  is  lyke- 
M  for  alleadged  adultery  with 
,  and  the  pannall  having  alleadged 
;hBt  pairt  uf  the  lybell,  the  act  of 
d  roilitat  only  against  nuttour 
Dottour  adultery  could  not  be  in- 
(ly  of  the  qaalifications  lybelled ; 


A.  D.  1697.  [ISgft 

and  my  lord  advocat  having  restricted  his  ly- 
bell to  simple  adultery,  by  ofTeriur;'  to  prove  the 
pannalls  frequent  goring  to  bed  with  the  said 
Jannet  Nisbet,  the  pannall  did  absolutely  deny 
the  same ;  and  it  was  further  alleailged  for  him, 
that  albeit  their  goeing  to  bed  togither,  were 
proven  (and  which  the  pannall  denyed)  yet  the 
same  could  never  he  sustained  to  inferr  against 
the  pannall  the  crymes  and  paines  lybelled  ; 
unless  carnall  dealling  were  lykMayes' proven, 
but  the  most  that  the  same  could  amount  to 
was  a  scandall,  which  is  only  proper  to  be  re- 
mitted to  the  Kirk  session,  to  be  cognosced  by 
them .    1  n  respetit  whereof, 

Decern^  13, 1697. 

Intra »'     Patrick  Kinnynrnount,  tif  that-  ilk* 

Indyted  and  accused  for  being  guilty,  actor^ 
airt  and  pairt  of  severall  roiirders,  abuses, 
hamesuckens  and  insolencies,  committed  upon 
severall  of  his  majesties  leidges,  conforme  to 
his  indytment  recorde<l  11th  of  Auq^ust  last. 

Piimieri.— »8ir  James  Stewart,  his  maj'ls  ad- 
vocat ;  Sir  Patrick  Hume^  his  inaj'ts  soUicilor. 

ProWi  in  Defence, — Sir  David  Thoircs ; 
Mr.  Tkomat  Skeine, 

Tlie  lords  commissioners  of  justiciary,  with 
consent  of  his  majesties  advocnt,  desert  the 
dyet  simpliciter  against  Kinnynmount,  as  to  the 
haiU  crymes  Ivbdied  in  the  said  indytment. 

The  said  Iwick  KinnymLount  of  that  ilk^ 
being  also  ind  vted  for  the*  cryme  of  adultery 
with  Jannet  Nisbet  his  servant,  and  for  horrid 
blasphemy.  The  lords  commissioners  of  jus- 
ticiary, <ieserted  the  dyet  off  consent  of  his 
maj'ts  sollicitor,  as  to  the  said  article  of  adul- 
tery, simpliciter;  and  did  proceed  to  give  their 
Interloquitor  upon  the  article  of  blasphemy, 
whereof  the  tenor  followes : 

The  lords  commissioners  of  justiciary  hav- 
ing considered  the  indytment  pursue<l  nt  the 
instance  of  his  majesties  advocat,  against  Pa- 
trick Kinnynmount  of  that  ilk,  fur  the  cryme 
of  blasphemy  (which  is  tlie  only  article  now 
insysted  in)  with  the  debate  therupon.  They 
find  the  said  indytment  as  it  is  restricted  by  his 
majesties  advocat,  to  have  beiii  committeo  iu 
the  four  or  fyve  last  moncths  of  sixteen  hun- 
dred and  nyntic  six,  or  two  or  three  firvt 
moneths  of  sixteen  hundred  and  nyntie  seven ; 
relivant  to  inferr  the  paines  lybellud,  and  finds 
the  defence  that  the  pannall  was  furious  di-  dis- 
tracted in  his  witts  relivant  in  the  ternies  of 
the  act  of  parliament,  but  repelts  the  ulledgi- 
ance  of  fury  or  distractione,  uryseing  from 
drunkness,  and  idso  re|)ells  the  h.-.ill  other  de: 
fences  proponed  for  the  |»annall,  and  remitts 
the  povnts  found  relivant  to  the  knowledge  ol 
the  assize.     Sic  SubscriOiiur, 

J.FAl.tON.%R,I.P.p    C. 

Efler  pronouncing  of  the  which  iiiteilo- 
quitor,  my  lord  advocat  consented  to  the  de- 
serting of  the  dvct,  and  ac^curdingly  the  lordj* 
commissioners  of  justiciary  deserted,  and  be 
thir  presents  deserts  the  dyet,  as  to  the  cryme 
of  blaspheuiie  simpliciter.  Sic  Suitcribitutf 
J.FALC0N4mI.P.  D.C. 

4N 


1283]  IS  WILLIAM  UL      Proceedtngi 


theDmk€tfK9rfiJk 


409.  The  Proceedings  in  Parliament  upon  the  Bill  of  Dii 
tween  bis  Grace  the  Duke  of  Kori-olk  and  the 
Mordant:*  12  William  IIL  a.  d.   1700. 


:££I>INGS  iHTfu  HOUSE  of  LORDS. 

Trhnuiry  15,  1700. 

XJpOV  reidtD^  ihe  Peiiumi  of  Heni^^  dgke  of 
Norfolk f  praying  leave  to  briagf  in  a  bill  to  ^fA' 
tolte  bis  marrimge  with  the  lady  BItry  Mnr* 
dan  I,  and  to  enable  him  to  marry  ag^Ia,  be 
having'  certaiij  proof  of  his  Mrii^'a  linn^  in  adul- 
tery with  sir  John  Germoine :  it  b  ordered, 
tha't  the  «iid  Pelitioo  be  taken  into  oocitidera* 
lion  to-morrow, 

February  16* 
Read  the  fimt  lime/  An  Act  to  dissolve  the 
duke  of  Norfolk's  marrin^e  with   the    lady 
Mary  Mordant,  and  to  enable  him  to  marry 
agaii)  ;*    In  the  words  following ; 

*■  Htimhiy  sheweth,  and  comphineth  to  your 

■i  mo«t  e^Kcelleot  majesty,  your  true  and  laiwfiil 

^  subject  Henry  duke  oi  Norfolk ,  and  earl< 

t  inai-shal  of  England,  That  be  did,  some  year«  I 

^  stfice,  marry  the  lady   I^Iarv  Mordant,  his  I 

now  wife;    and,  that  ahejiath,  for  div^ 

f  years,  lived  in  separation  ftoin  the  ssaid  sub- 

>je€t,  and  hath  bad  unbt^ful  familiarity  and 

I  adulterous  conversation  with  sir  Jobo  fier- 

^  uiarno,  hart,  and  is  guilty  of  adultery  on  her 

'  iiart,  and  hath  brokt^n  the  bond  of  matrimony. 

'  Forasmiicb  thcrctbre,  as  your  said  subject 

I  hath  no  issue,  oor  can  hope  for  uny  other 

'  tliao  spurious  issue  to  succeed  him  in  his 

1^  honours,  dignities,  and  estate,  unless  the  said 

^  marriage  be  dccWid  void,  aud  aonulleil  by 

^  pflrliament,  and  your  said  subject  be  eDablecl 

[•  lo  marry  any  other  woman.     Blay  it  please 

^  your  most  excellent  mQJe»jty,  out  of  your 

1^  princely  goodness  and  compassion   to  your 

I*  ttaid  iubject^s  misfortuQe  and  calamity,  and 

f*  for  the  future  support  and  comfort  of  bim- 

T*  self  and  family,  that  it  may  be  enacted:  And 

L*  be  it  enacted  by  the  king^s   most  excelleut 

7  majesty,  by  and  with  the  ad  rice  and  consent 

'•of  tlie  hitdi  sniritual  and  temporal,  and  of  ihe 

M  commons  in  tUis  present  parliament  assembled, 

L*  and  by  the  autuority  of  the  same,  tl>at  the 

p  said  Uind  of  matrimony  being  violated  and 

M  brokeo  by  the  manifest  open  adultery  of  the 

^  taid  lady  Mary  IVtordaut,  be,  and  is  hereby 

[•  enacted,  declared,  and  afljudged  to  b#  from 

y  henceforth   wholly  dissolved,  acmuUed,   va- 

r*  cated,  and  made  %ojd  to  all  intents,  oonstruC" 

I  •  lious,  and  purposes  wbalsoerer  i    and,  that  it 

f  *  shall  ai»d  may  be  lawful  to  and  for  the  aaid 

•  Henry  duke  of  Norfolk,  at  any  time  or  times 

^  herealW,  to  cim tract    uiatriraony,    and 


*  ladv  Mary,  m  if  slie  wer« 

*  wiA  any  other  wocxun  or  i 

*  he  might  InwlViTlv  int\rrv 

'  Mary  IV  iiai  i 

*  mooYt  ^^  ated j 

*  gOOQ,  jii  f'arrTagn| 
*GeadJQ<]_  I'luktal 

*  conslructioiii,  Aud  pur(Hi£Gs; 

*  and  every  child  and  children, 

*  matiimony ,  shall  Ij< 
■^  taken  to  be  born  in 

*  legitimate  asd  inbenuu^d?,  and 

<  Ihe  &aid  dakedum  of  Norfolkf 

<  marshal  of  E  rv-  ^ — ^   -  r.  d  all 

<  dignities,  harr  lurv,  and  i 
«  Dour,  lands,  i. .,lj,  and  otb«r 

*  meets  from  and  by  their  fathers,  qmi 
*■  other  ancestors,  in  like  oaunner  anij 

*  any  other  child  or  childreo  horn  in  U 

<  trimouy  shall  or  may  inherit  or  heti 
^  accordmg  to  the  coarse  ofinber^ 
*■  in  this  realm ;   and  to  hare  aod  i 

*  ▼ileges,  pre-emineocies,  i 

<  claims,  and  demands,  as 

*  childreu  bom  in  la^tful  wcdk 
^  claim  by  the  laws  and  cusitoiaii  i 

*  dura.     And  be  it  ft- -♦•■"-  --- 
•said  Henry  duke  < 

*  to  be  tenant  by  c...  _    ., 

*  inheritance  ol*  s«eti   wife    w 

*  hereaAer  marry  ;  hih!  such  wi 

*  marry  shall  be  ciit 
,  ^  and  tenemenls  m  li« 

*of  Norlulk  shall   !.         .     d 

*  whereof  she  shall  L     ..      ^Ide 
*'  husband  or  wife  msv  ^r  might  J 
*■  or  enjoy.     And  the  child  or  ctid 

*  such   iimrrluge  shall  and    may 

*  make  title  by  desoeul  or  otbe 

*  from  any  of  tlr--  ^-^t^'  ♦-  *■■    n^i  i 

<  or  children  i  .i« 

*  straint,  prohiL;  ,  u,    ....,.,, -c, 

*  tution,  prescription,  or  ciisIoaI 

*  excix'iscd,  or  used  to  the  < 
'  miseSf  or  aiiv  of  them,  in  auj  i 

*  standing.     And  be  it  fa rthtr  < 

*  authority  aforesaid,  that  tbr 

*  sJiall,  and  14  hereby  harrfnl 

*  and  from  all  do^vi  uj 

*  from  all  right  an! 

*  unto  or  out  of  any  oi  me 

*  lands,  or  hereditamenta 

*  lint!    f'"t    ■'*  "-'^veyiiioB 

tiu;.^-,,,  ii-w,    ,  uutofanj] 


matrimony,    and    to 
■  matry  (as  well  in  the  hfetime  of  Ute  said  j  « lands  or  bereditamentv,  A 

*  fore  made  bv  i\w  kaid  d  " 

^  See  Tot.    IS,  p.  88:1   and  997t  ^^  twa    *  ancestum  or ;  t] 

ir  Trials  rdating  to  ihit  afair.  '  um  «r  bcocL 


If85] 


mid  kit  Dueheutfor  a  Dioetee.  A.  D.  1700. 


[1286 


of  her  body,  or  for  easing,  discharg- 
counter-tecuriDg  any  the  niaoort, 


tbei 

ing,  or  counter-tecunng  any 
lands,  or  hereditaments  of  the  said  lady  Mary, 
or  any  of  her  ancestors,  shall  be  from  hence- 
forth, so  for  as  concerns  the  said  lady  Mair, 
or  any  issue  of  her  body,  or  any  interest  ror 
her  or  them,  utterly  Yoid  and  of  none  eflfect ; 
and  all  and  every  the  said  honours,  manors, 
lands,  or  hereditaments  of  the  said  duke,  or 
any  of  his  ancestors  or  trustees,  shall  frtim 
henceforth  remain,  and  be  to  and  for  the  use 
and  bianefit  of  the  said  duke,  and  such  other 
person  or  persons,  and  for  such  estates  and  in- 
tmsCs,  and  in  such  manner  and  form  as  if  the 
said  lady  Mary  was  now  naturaUy  dead 
wicboat  any  issue  of  her  body.  And  also, 
that  all  limitations  and  creations  of  any  use, 
catate,  power,  or  trust,  made  by  any  of  the 
nnoailorsofthesaid  lady  Mary,  unto  or  for 
tlm  use  or  benefit  of  the  said  duke,  his  heirs 
•rnasigns,  out  of  any  the  manors,  lands,  or 
becieditamentsof  any  the  ancestors  of  the  said 
Indv  Mary,  shall  be  irom  henceforth  void, 
and  of  none  effect.  *And  be  it  further 
wncted  by  the  authority  aforesaid,  that  the 
said  duke  of  Norfolk,  Kis  heirs,  executors, 
admbistrators,  or  assigns,  shall,  on  or  before 
the  95th  day  of  March,  1701,  pay,  or  cause 
la  be  paid,  onto  the  said  lady  Mary,  or  her 
aaMtts,  the  sum  of  10,000/.  of  lawful  money 
ef  £nglandy  which  was  the  portion  in  money 
paid  on  'her  marriage  with  the  said  duke ; 
and  on  default  of  payment  of  the  said  sum 
of  10,000/.  on  or  before  the  said  525th  day  of 
March,  then,  and  in  such  case,  she  the  said 
ImIj  Mary,  and  her  assigns,  durinpf  her  na- 
tural life  from  the  decease  of  the  said  duke,  if 
aheaball  survive  him,  shall  be  entitled  to,  and 
diall  and  may  have  and  enjoy  such  jointure 
and  other  advantages  as  she  might  or  may 
linve  or  claim  by  virtue  of  a  certain  indenture, 
QnuM|uepartite,  made  upon  and  in  considera- 
tina  of  the  said  marriage,  bearing  date  the  13th 
dnjr  of  June,  1677,  and  made,  or  raentionetl 
to  have  been  made,  between  Henry  late 
duke  of  Norfolk,  then  earl  of  Norwich,  father 
ef  the  said  duke,  and  the  present  duke,  by 
the  name  of  Henry  lord  Howard  of  the  first 
part  s  Henry  earl  of  Peterix>row  and  the  said 
dnchi,  by  the  name  of  the  lady  Mary 
Ifeidant,  sole  daughter  and  heir  apparent  of 
the  aaid  earl  of  l^eterborow,  of  the  second 
partf  l^fitkry  marquis  of  Worcester,  William 
•■rl  of  I\mis,  and  Henry  lord  O'Brian,  of 
die  third  part;  Arthur  Onslow,  esq.  and 
I  Dalmatroy,  cso.  of  the  fourth  part ; 


Bmon  Fox,  esq.  and  Thomas  West,  gent,  of 
^  the  Mb  part :  And  by  virtue  of  the  agree- 
^  Mints  contained  in  certain  articles  bearing 
'  diUe  the  S8th  day  of  April,  in  the  year  of  our 

*  Lord  1(KM»  made,  or  mentioned  to  have  been 
"Bade,  between  the  said  duke  of  the  one  part, 
'lad  tbesakl  Henry  earl  of  Peterfaorow  on  be- 

*  half  of  the  said  duchess ;  and  the  said  duchess 


^  Thia  cfauiae  was  added  after  the billwas 
biaagbl  into  the  House  of  Lords. 


*  of  the  other  part,  according  to  the  tnte  intent 

*  and  meaning  of  the  said  Qumquepartite  inden- 

*  ture  and  articles ;    and  also,  during  the  joint 

*  lives  of  the  said  duke  and  duchess,  shall  and 

<  may  enjoy  500/.  per  annum,  by  virtue  of  an 

*  indenture  Quadrupartite,  dated  the  15th  day 
'  of  June,  1694,  made,  or  mentioned  to  have 
'  been  made,  between  the  said  duke  of  Norfolk 
'  of  the  first  part,  the  said  earl  of  Peterborow. 

*  and  the  said  duchess  of  the  second  part,  ^Vil- 

*  liam  lord  Lemster  of  the  third  part,  and  sir 
*•  John  Mordant,  knight  and  baronet,  and  WiU 
'  liam  Longueville,  esq.   of  the  fourth  part. 

*  And  then,  and  in  such  case,  the  said  duke  of 
'  Norfolk,  his  heirs,  executors,  and  administra- 

<  tors,  is  and  are  discharged  of  and  from  the 
'  payment  of  the  said  sum  of  10,000/.  any 

*  thing  herein  contained  to  the  contrary  there- 

*  of  in  anywise  notwithstanding.  But  on  pav- 
*•  ment  of  the  said  10,000/.  in  manner  aforesaid, 

*  she  the  said  lady  Mary  shall  be  wholly  barred 
'  andexcludeil  from  her  said  jointure,  and  of  and 

*  from  all  other  advantages  out  of  the  real  and 

<  personal  estate  of  the  said  duke,  as  aforesaid.' 

Ordered,  That  the  duchess  of  Norfolk  may 
have  a  copy  of  the  said  bill ;  and  that  his  grace 
the  duke  of  Norfolk  shall  be  heard  by  his  coun- 
sel, to  make  good  the  allegations  of  his  bill,  on 
Tuesday  next ;  and  that  the  duchess  may  iMtve 
counsel  to  attend  at  the  same  time,  if  she  please* 

February  17. 
Upon  reading  the  Petition  of  Mary  duchess 
of  Norfolk,  praying  to  be  heard  by  her  counsel 
before  any  further  proceedings  be  made  on  the 
said  bill,  it  is  ordered  that  the  duchess  slialL  be 
heard  by  her  counsel  as  desired,  on  Tuesday 
next. 

February  20. 
After  hearing  counsel,  upon  the  Petition  of 
the  duchess  of  Norfolk,  a^  also  counsel  fpr  the 
duke  of  Norfolk,  the  following  order  was  madei 
It  is  ordered.  That  this  House  will  hear  wit- 
nesses  for  the  duke  of  Norfolk,  only  to  matter 
of  fuct,  since  the  rejecting  of  the  first  bill,  ex- 
cept only  Mr.  Daniel  Uermaiue,  Mr.  Himon 
Briane  alias  de  Brieune,  Mrs.  Anna- Maria 
Brianc  or  de  Bneone,  Mrs.  Judith  Possette  or 
Persode,  Mrs.  Klii^nor  Vancss,  who  are  at  li- 
berty to  give  evidence  to  matters  of  fact  before 
that  time,  which  were  not  then  before  the 
House;  and  are  hereby  required  to  attend  this 
House,  as  witnesses  on  the  behalf  of  his  grace 
tlie  duke  of  Norfolk,  to-morrow  morniiiif.  Also, 
That  to-morro%v  this  House  will  proceed  to  hear 
counsel  and  witnesses  for  the  duke  of  Norfolk, 
to  make  gooil  the  allegations  in  his  hill ;  at 
which  time  the  duch<*ss  of  Norfolk's  counsel 
shall  be  present. 

February  21. 
The  coun^l  being  called  in,  they  for  the 
duke  having  opene<r  the  nature  of  their  evj- 
deuce,  Mrs.  Elianor  Vanests  was  swum  ;  and 
being  asked  some  questions  by)  the  duke's  c«»uu- 
sel,  she  appeared  to  be  a  Dutch  woman,  and 
couU  not  well  understand  Eogliiih  ;  and  an  in* 


lag         MVBIIAMIIL 


U.l9r«te«r 


DcposinoM  or  £ixukml  Va^eeu. 


lV^ncary32. 
sworn,  dcpoMth  as  foDoweth, 


EfianorV 


Q.  Do  yoa  know  sir  Jobn  Germaiiie  and  the 

orXortblk?— J.  Ye«. 
How  loog  ba«e  you  knows  them? — Two 


When  did  700  first  come  acq;iiahited  with 
them  ? — Sir  Jobo  GCTmoiae's  sister  hired  me 
for  a  oook-maid  the  sommer  after  the  kisg^ 
came  for  En^^kmd. 

la  what  laontb  of  thit  year? — lo  May. 

Did  ^ou  life  with  ehbcr  ot'  them  as  a  serrant 
maid? — I  Hred  two  months  nith  my  lady 
dacfaess,  io  sir  Joho  Germaine's  bouse. 

How  loug*  did  you  live  io  the  house  with 
them? — ^Till  Ibcy  weoi  lo  Vaoxbal]. 

How  loDg  W3S  ibe  ducbe^  io  the  hiiuse  be- 
fiwe  they  went  to  VauxlMll  ? — Two  mociths. 

Where  was  that  boo&e? — Jost  over  Spring- 
gardcfi. 

It  the  time  when  the  lady  duchess  lired  with 
fir  John  Germaioe,  what  compaay  and  000- 
▼enatioo  did  the>'  keep  with  one  another,  and 
in  what  manner  f  — Like  man  and  wile. 

Where  was  it  the  lady  dncbcss  lired  when 
first  into  EogloAd? — In  sir  John 

Where  M  she  ttve  then?— The 


Did  yow  g«  widi  thm  in  ^ 

!  — ite  went  with  the  bdj  4 
!      Whose  serrant  was  jon  there?— UIt^ 
chem's. 

How  Umg  did  yoo  flnre  the  lady  dmhfli} 
— ;iihe  staid  with  her  till  she  went  to  ISB^ 

How  came  yoB  to  lenve  their  scrvire?— Tliy 
sent  her  away  npoa  the  accmmi  af  iht  hB 
trial. 

Who  went  with  yon? — Mm.  Smmm^ 
chambermaid  to  the  bdy  dochom;  ani  la 
Nicholas,  that  was  gcntleaaao  to  sir  JehnGv- 


Wbal  is  his  name? — ^NichofaM 

Who  took  care  of  yoor  naasacn?— Ni 
Hosier. 

Whither  was yoa ordered  tog«?— TnBd* 
laud,  to  the  liagne:  they  paid  har  in  MtB^ 
proflBised  filty  livres  bwidrs. 

Was  any  |<artof  it  paid?  and  hf  wh— ?— 
She  recciv  ed  it  ia  four  qnarttcta  Ikom  his  lii* 
ther  PhiLp,  at  the  Ha<«e. 

Whose  brother ?~&^  John  Cwihii^iil^ 
ther.  ..* 

Who  hired  you  when  yo«  came  laSi||^irii  , 
— Mr.  Briane*s  wiie.  a% 

What  kin  is  she  to  sir  J 
His  sisier ;  and  they  proouacd,  if  1 
not  go  lor  the  doAcsa,  she  won 
Holland  heraeU;  and  take  hm  into  kmr 


Hare  yon  seen  sir  John  < 
nmhcmuibcd         '" 
r  twice. 


Qnd  kii  DuekeUfJir  m  Dhoree. 


ng  htd  tbc  lady  doeben  lived  at  MQI- 
yoQ  left  her  aemce?— Nine  or  ten 

una  yon  to  tea  them  in  bed  together? 
MMTDone  was  suffered  to  come  into 
,  the  bed-chamber,  but  she  and  ano- 
I,  to  Wing  necessaries,  as  water  to 
tr  hands,  Md  to  clean  the  room, 
ru  see  them  at  their  undressing,  when 
t  to  bed  ?-»She  undressed  them  her- 
nw  them  in  bed. 

n  account  how  you  two  came  to  be 
into  the  chamber,  and  what  you  saw 
9he  lielped  them  to  bed,  and  saw  them 
together. 

>u  them  next  morning?*— Yes. 
at  occasion  came  yon  into  the  oham- 
*  morning  ? — 8he  came  with  choco- 
water  to  wash  their  hands, 
n  ever  see  Mr.  Nicholas  Hosier  there  ? 
)e  did  the  business  that  she  did  when 
J  not  be  present;   he  was  valet  de 

e  valet  de  chambre  tosir  John  Ger- 
to  the  duchess  ? — He  belonged  to  the 
t  Vauxhall,  and  sAerwards  to  sir  John 

be  to  sir  John  Oermaine  befbre  the 

less  went  to  Vauxhall,  or  not?— The 

vas  at  Vanxhali  when  he  came  to  sir 

maioe. 

ved  with  the  duchess  at  Vauxhall  ? — 

Germaine's  sister. 

ired  you?— Mrs.  Briane,  Mr.  Briane's 

lere  no  other  relation  of  sir  John  Ger- 

tiat  lived  there  besides  ? — Mrs.  Judith. 

Mrs.  Judith?  What  is  her  name? — 

not  know. 

cin  was  Mrs.  Judith  to  sir  John  Ger- 

-Hts  sister. 

i  duchess  use  to  go  to  no  other  place  ? 

>ut  to  the  neighbouring  gardens,  to 


you  were  at  Mi II -bank,  did  you  ever 
jchess's  father?— She  hath  been  se- 
!s  at  the  duchess's  father's,  and  the 
less  told  her  father  and  mother,  that 
gfht  her  from  Holland;  she  dressed 
les  of  meat  by  order  of  the  duchess, 
as  the  lady  duchess's  father  ?  Where 
e?^He  hved  at  Mill-bank,  but  cou!d 
is  name;  the  lord  Peterl>oronfi^h,  she 
ooukl  not  think  on  it  before  now. 
ihe  hved  with  Germaine  at  the  Cock- 
here  no  other  that  lived  with  them  at 
?— Nobody. 

'  John  Germaine's  brother-in-law  or 
in  the  house,  at  any  time  ? — Yes ; 
f  came  6i«t  to  England  they  used  to 

hem? — Mr.  Briane,  and  his  wife, 
n  see  any  ef  shr  John  Germaine's  re- 
i  any  time,  in  the  room  during  the 
the  dnchess  was  in  bed  with  him  ?— 
f  Bmum  and  his  wife, 
r  John  Germaine  in  bed  at  that  time 
lnQhcMi?— Yea. 


A.  D.  1700.  [HOD 

Etianor  Vamu  cross-examined, 

Q.  Was  it  at  Vauxhall  that  the  lady  dncfaeai 
said,  that  Germaine  was  her  brother  ?—jI.  Yes. 

Did  the  duchess  tell  you,  that  sir  John  Qefr 
maine  was  her  brother  ?-«-8he  gave  it  cat  among 
the  neighbours,  but  never  toldiier  so. 

Waa  you  cookmaid  ?-^She  was  hured  for 
cookmaid. 

Did  you  continue  to-  act  as  cookmaid  ?-^Yes, 
at  Vauxhall. 

Was  you  at  the  Cockpit  ?— 8he  used  to  clean 
the  rooms,  and  nobody  was  snffefed  to  come 
into  the  room  but  ihe,  Mrs.  Susannah,  and 
Nicholas. 

Was  there  no  other  woman  in  the  house  but 
you  ? — Yes,  Airs.  Susannah. 

Where  did  you  ae^.  sir  John  Germaine  ani 
the  duchess  in  bed  ?-^At  VauxhalL 

When  came  ^ou  from  Holland  ?-*ilbout  fire 
or  six  weeks  ago. 

Where  have  you  been  since  ?— She  does  not 
know  no  place  nor  street  in  London* 

How  came  you  over? — About  a  year  and 
half  sgo  she  met  Nicholas  at  Amsterdam ;  she 
asked  him  how  he  did,  and  if  he  had  got  a 
place.  He  answered,  No ;  but  he  believed  he 
should  very  soon  have  one  in  England. 

Who  sent  for  you,  or  brought  you  over  fronii 
Holland  this  last  time? — She  met  Mr.  Nicholaa 
about  a  year  ago,  and  said,  she  had  a  great 
mind  to  go  and  live  in  England  again ;  and  he 
said,  he  would  get  a  place  for  her. 

Who  sent  for  her?— Does  not  know. 

When  you  came  over,  who  paitl  your  pas- 
sage, and  first  took  care  of  you  ? — Nicholas 
hath  given  her  what  she  spent  since. 

Who  brought  you  to  town  ?  And  who  fur- 
nished you  with  money  ?  And  where  did  you 
Tand?  what  house  did  you  first  come  to?— 
She  landed  at  Gravesend. 

Who  received  her  there;  or,  when  she  came 
to  town,  brought  her  to  any  place  to  lodge  at? 
— Nicholas  brought  her  to  a  place  where  she 
was  secure. 

What  place  is  it? — She  does  not  know,  she 
never  was  in  l/ondon. 

Did  you  not  live  at  Vauxhall,  and  at  sir 
John  Germaine's  house  in  the  Cockpit? — She 
was  no  further  than  those  houses ;  she  means, 
she  was  never  in  the  city  of  London. 

Where  is  the  house  she  has  been  at  these  six 
weeks  ?-^be  cannot  tell  whereabouts  it  b. 

Waa  you  not  sent  for  back  from  Holland  te 
be  a  witness?-— No,  knew  nothing  of  it  till 
about— -now  about  eight  or  nine  weeks  ago. 

In  what  street  is  the  house  you  bavebMii 
at? — 1  cannot  tell. 

How  long  is  it  since  you  went  into  Holland, 
since  you  left  the  duchess's  service  ? — About 
eight  years  ago. 

Did  you  never  tell  any  body  the  occatkm  of 
vour  going  over  ? — Yes,  in  Holland,  but  not 
here. 

To  whom  did  you  tell  it  ?— To  a  great  many. 

Know  you  any  of  those  to  be  in  England 
that  yon  did  tell  it  te  ?— Dees  net  know  $nj. 


mVj  n  WILLIAM  UL      Prpeeedings  iietwcen  the  DuJte  o/N^fS   [Wt 

DiJ  yDu  ever  dkcore^  this  matter  of  v  our 

own  Accord  f  or^  wat  yna  asked  ta  do  it  r^l 
iBid,  I  would  tell  the  truth  if  I  irere  asked. 

Can  you  name  thepersoii  tbat  askcA  you  f — 
Mr.  Ni^lKiloi. 

Hmd  you  anv  discourse  about  ihis  matter 
abotit  eighi  \f  eet*  ag^  P. — ^When  1  ^ked  Mr. 
KIcholii*  it'  be  doutd  get  me  a  place  m  Ecig- 
land,  I  l«y  birn,  I  wauM  say  th«£  truth. 

What  disicoarsi*  bad  you  witi*  Mr.  Nieholas 
about  it  ? — I  asked  Mr.  Nicbt^las,  whether  there 
wa&aay  daui^er  of  auy  sucb  tbiug  f^Hc  said, 
lie  kms^  uot  b  Itt^  of  1 1, 

Did  you  ever d beaver  that  yoa  were  s^t  out 
out  of  the  way  iuio  Holland  ? — No, 

Whether  you  and  tbb  geutieiiian  that  tn- 
terurets  have  not  talketl  uioat  of  ibis  maUer 
belore  yon  came  hltber  ?■ — No. 

>Vbo  hnve  you  talked  lo  about  this  matter^ 
frtnee  you  c^nie  into  EofUud^  fie&ides  Nicho- 
las ?— Nobody. 

Afe  you  a  single  woman,  or  a  married  wo- 
maaf  J-^  ibgle  womaiu 


The  Duhdi  Caumcl 

Q»  W&s  it  your  business  to  look  afler  the 
i^bamb^F,  to  keep  the  iloor  constantly,  or  on 
what  «c^.asjon  ? — A.  I  used  to  wash  the  docb- 
esa^a  cloatb^f  and  bria^  tbem  to  sir  John  O^r^ 
tnaine^s  bousv,  and  kee|]  the  upper  rooms  f:\m^^ 
where  sir  John  Germaine  by. 

Bid  l^u^n  g^  over  with  you  into  Ho] land, 
and  come  back  with  you?— Mr.  Nicholas 
brought  me  into  a  room  where  she  was  kept, 
and  I  stayed  a  wbilt  with  her* 

Did  Susan  go  with  you,  and  ciime  with  you 
agiiu  r^Niebolas,  und  Snsan^  and  [|  were  in  a 
room  together,  and  Mi .  Gei'maiiie  eanit?  evt^ry 
night,  win?n  the  bouse  was  broke  up,  und  lohl 
Ui  what  passed. 

Did  SuE^n  go  to  Holland  ^vitb  you  P  Whe- 
ther did  you  |ro  before  Nicholas^  or  with  him  ? 
— Sir  John  Germaine  ordered  Nicholas  and  she 
to  gomio  Holland,  and  Niehobs  went  witli  her, 
(Si^mcd)      Elian  OR  VikKEss, 

DEPosmoNs  op  NrcnoiAS  Hosier. 

{Nkhotiit  Hosier  swom.) 

Q.  Whether  he  knows  sir  John  Oermaine 
and  the  duchess  of"  Norfolk  ? — jL  Yes,  Sir,  I 
underslaiid,  I  know  both^ 

How  long  have  you  been  acquainted  with  sir 
John  Germaine,  and  upon  what  occasion  P — 
The  ^t  he  camo  io  know  him  was  in  Sufiblk- 
street. 

Whether  ever  he  was  a  sor^atit  to  him  ? — 
Yes  ;  I  was  a  servant  to  htm  there. 

When  was  it  von  first  came  into  sir  John 
Germalne^s  service  f — it  was  above  Imlf  a  year 
before  king  Jarne^  went  away. 

Did  you  live  wilb  sir  Jabn  or  the  duchess  ? 
With  sir  John  Germaine. 

Where  did  be  dwell  at  that  time  ? — He  bad 
lodglDgsai  ib£  Golden  BaU. 


Wai  yoa  with  btm  afkrwanfewlrabttt 
at  the  Cockpit ?^Y^^  and  llii^d  m^^ 
at  the  Cockpit  t'JO, 

At  thai  time  did  you  know  the  duciaid 
Noriblk? — ^1  knew  her,  hecau&e  lii^)  \Mm 
she  was  m. 

Was  there  any  latlv  tbat  b«ed  wiib  ib  Jrii 
Germaine  at  ibiS  Cocfcpit  f— IttbiiiiMilv 
was  Mrs.  tiriane,  ^r  John  Gcn&aiar'i 

Was  there  any  body  «be  iMd  tP  ll|p 
there  f— There  was  none  lb  ere  bat  ha  ukt 

Was  there  any  other  )ifterwiril«*-|| 
nboul  two  or  tbretr  mouths  aiLer  ht  nj>\^ 
but  r  don't  justly  know  how  t^n^itiQ'PiHl 

Who  was  there  then  ?— There  wi4 
hy  name  Mrs,  JudUb  Gennaine. 

Do  you  know  any  thing  about  thai 
of  Norfolk  at  tiiat  time  ?— Yes, 

IV  hat  eoaTemation  bid  sir  John 
and  the  dochess  of  Norfolk  ?--^c  wnj 
bouae^  and  they  eat  and  drtak 
tay  together* 

Where  was  that  f — At  sir  John 
bouAe,  nejt  the  Cocknii. 

How  came  you  to  know  they  bf 
— ^Because  1   was  his  valet  de  cb«mlHfr 
helped  to  uadr^s  and  pui  him  lo  M. 

Where  was  the  ducbeiis  at  tbst  tjiur  f- 
duchess  waj  sometimes  a  he  J,  anil 
not,  according  as  be  eatne  komt,  tirti 

How  long  was  the  ducbes*  *rith 
Germaine  at  ibe  Cockpit  F«^4^e  atf< 
Cockpit  hefore  I  came  tliere. 

Whether  be  went  from  sir  Joho  GftiaiH 
service,  after  be  came  to  Li  re  there  ?^ 
his  service  several  times^ 

When  was  the  first  I iine  he  w€atf(^« 
John  Gennaine's  service  ?— The  fint  l»*^ 
left  bis  service  waji  in  Suffolk  street. 

How  long  was  it  before  he  came  tftli«* 
him  again  J' — ^11  e  came  into  his  service  i|i^ 
the  sommer  after  thia  present  kiDg:^:*^^ 
Eoj^land. 

VVbat  time  of  the  summer  was  \i?—oM 
not  justly  kll  that. 

^VhttiifT  the  dncbess  was  tb^re '*to"* 
came  to  ibf  Cockpit,  or  not  ?— Sfae  va  *P 
before. 

How  long  continued  she  there?— Aw *^ 
teeti  days  otter  he  came  to  sir  John  ^^f^ 

In  what  manner  did  sir  John  G^rmiiM* 
ibe  ducbess  live  tbi^re  during  tlioi#  ^ 
days  ?— He  says  he  bath  atreidy  u|i» 
tbat  before,  he  used  to  undresa  Ijjd»  w*  F 
him  a- bed  together  with  the  ducb^^ 

Where  did  the  duchess  Uve  uftffiii*'* 
from  i>ir  John  Germaiuc's  bouse -^-^ 
and  dwelt  at  VauxbaU* 

By  what  name  did  she  go  wheo  *'**'*. 
VouaibaU  ?— frshe  weui  by  tbeoaroeof^J*? 
Beck  man,  _^. 

Whether  he  went  with  ber,  orcmot**"? 
sir  John  Germobe's  service?— He  "**2 
my  lady  duchess  for  some  time,  bv  s*f  J^f 
Gei'maiue's  order  j  he  was  sonietipi*  *•* 
one,  and  sometimes  with  the  other; 
oue  paid  him^  and  sonieLimeatbe  otbsf- 
4 


»} 


mnd  his  DuchesSfJor  a  Difooroe. 


A.  D,  1700. 


[laoi 


'heth^  sir  Jobn  GerraaiDe  went  to  Vaax- 

? — He  came  there  sometimes  ;    he    has 

I  him  there  several  nights. 

^bether  he  stayed  all  night  there  ?— Some- 

•• 

^li€tber  he  was  alone,  or  any  body  waa 

I  bim? — There  was  somebody  lay  with 

Im,  upon  his  oath  ?— Madam  the  duchess, 
fem  Beckman. 

low  know  yoa  tliat? — Because  be  un- 
fed him  when  they  lav  together. 
low  often  was  that  ? — He  cannot  justly  say 
'  often,  but  it  was  several  times. 
f  bat  service  was  be  in  when  he  went  out  of 
riaod,  and  upon  what  occasion  ? — He  left 
John  Germame's  service  at  that  time  when 
trial  was  depending  between  the  duke  and 
duchess  of  Norfolk. 

ly  whose  order  did  you  leave  that  service  ? 
it  desired  leave. 

9ow  came  you  to  leave  that  service  at  that 
M? — Because  be  was  afraid  he  should  be 

Kto  speak  the  truth  of  what  h%  had  seen . 
ther  any  went  with  biro,  and  who  went 
■their  service  when  he  went? — There  were 
•servants  of  the  duchess's, 
ffhat  was  their  names  ? — One  is  called 
ttBDab  Barring  ton,  and  the  other  Elianor 

^hither  did  they  go  ? — He  was  ordered  by 
iobn  Germaine  to  hire  lodgrings  for  them, 
ire  they  should  be  unknown  and  private, 
^hat  was  the  reason  why  they  should  be  in 
«le? — He  knows* no  other  reason,  but  the 
Bt^cooe  before  the  parliament  between  the 
e  aed  duchess  of  Norfolk  ;  he  was  obliged 
ike  the  lodgings,  because  the  wind  was  con- 
y  for  tbem  to  go  for  Holland,  and  took 
mte  lodgings  for  tbem  by  the  order  of  sir 
n  Germaine. 

i^bat  became  of  Susannah  Barrington  after 
•  f— She  stayed  about  three  weeks  with 
'•  and  then  sir  Jobn  Germaine  came  and 
bod  lier  back  again,  and  where  be  carried 
ifct  does  not  know. 

^liat  became  of  Vaness,  and  yourself  after- 
vla  ? — ^Wbeo  the  wind  fkvonred,  we  passed 


^  bat  time  of  the  year  was  it  ? — It  wa^  about 
jter  that  be  came  into  Holland. 
▼  baltime  be  went  from  his  service,  and 
k  ordered  to  be  private  ?^It  was  about  the 
•  of  the  trial. 

Vbelber  be  batb  any  peper  onder.sir  Jobn 
^maine's  hand  for  his  discharge  ?  We  do 
^sk  it,  but  only  to  refresh  bis  memory. 
^  |xaper  was  dated  8tb  of  February,  1692, 
iKoiiiiig  the  vear  to  begin  the  first  of  Je- 
tty.] Whether  that  was  the  time  he  left 
^ocfacss'a  service  P — Yes,  about  six  or  eight 
Mis  after  he  went  to  sea. 
▼here  did  you  stay  in  the  mean  time  ? — In 
Viaories  near  the  Tower. 
^•e^  ceme  you  to  stay  there  so  long  after 
^^We  out  of  service,  before  you  went  be- 
^  «8e  f-*Bccauie  the  wind  was  contrary. 


Who  went  over  with  him  ?  What  became 
of  Elianor  Vaness  ? — She  went  with  him  to 
Holland. 

Who  bare  her  charges  thither  ? — Sir  Jobn 
Germaine  gave  bim  seven  guineas  to  pay  for 
the  expences  that  he  was  at  here,  and  to  cross 
theses. 

How  long  after  that  he  continued  in  Hol- 
land, before  he  came  into  England  ? — He  did 
not  stay  long  in  Holland,  but  went  into  his  own 
country. 

How  long  was  it  before  you  returned  to  Eng- 
land ?— The  summer  following. 

Was  be  sent  for  over  into  England,  and  by 
whom  ? — Yes,  sir  John  Germaine  sent  to  him 
often,  by  himself,  and  by  bis  brother  in 
Holland. 

When  be  came  over  in  the  summer  follow- 
ing (in  ninety-two)  whose  service  did  be  come 
to  P — He  returned  to  sir  John  Germaine. 

Where  did  he  live  at  that  time  ?— Where  lie 
lives  at  present,  at  the  Cockpit. 

Whether  after  he  came  back  in  the  year  1699, 
he  observed  any  conversation  between  air  Jobo 
Germaine  and  the  duchess  P — Yes ;  be  says 
he  saw  them  come  together  at  their  house. 

What  more  P — He  again  then  saw  tbem  a- 
bed  together. 

Where  P — In  the  boose  of  sir  Jobn  Ger- 
maine. 

How  ofU*n  may  that  be? — He  cannot  justly 
tell  how  often.  ' 

Whether  it  was  often  or  not  P— No,  be  cannot 
say  very  often. 

When  was  the  last  time  be  ever  saw  tbem  a- 
bed  together  P — The  last  time  he  saw  them  a- 
bed  was  not  at  the  Cockpit. 

Where  then  ? — It  was,  at  the  duchess's  own 
bouse,  where  as  he  believes,  she  lives  still. 

Whereabout  in  the  town? — It  was  upon  a 
comer  of  the  park,  near  my  lord  of  Oifbrd'a. 

How  Ivuff  since  he  saw  them  last  e-bed  to->- 
getber  P — He  cannot  justly  tell  the  time,  it 
was  about  two  or  three  months  before  be  went, 
away. 

Did  he  mean  the  first,  second,  or  third  time  P 
— It  was  two  or  three  months  before  he  went 
away  the  last  time  P 

In  what  year  did  be  go  away  the  last  time  P 
[Let  him  look  upon  any  note  he  hath  to  refresh 
his  memory.]  [Accordingly  he  looked  upon 
a  paper.]— It  is  tiie  S7tb  of  April,  1696. 

Did  you  go  away  then  the  last  time  P — Yes, 
he  says  that  it  was  the  last  time  be  left  hia 
service. 

How  long  before  that  did , yon  see  tbem  a- 
bed  together? — He  says  it  was  about  two 
months  and  a  half  before  he  left  the  service. 

When  my  lady  duchess  lived  at  Vaux-faallp 
whether  he  can  name  any  body  else  that  waa  a 
servant  in  the  house  at  that  time  P— Yes,  there 
was  one  Elianor  Vaness. 

What  servant  was  abe  P— She  looked  to  the 
kitchen. 

Whether  he  baa  seen  her  in  the  chamber 
when  the  duchess  waa  a-bed  there  P— -Yet,  very 
oflen. 


fB93]  12  WILLIAM  IIL     ProoetJLtgi  hiW€H  the  Duie  «/'A'ar^    (m 


How  ctme  i»ic  Ihal  was  cook-raatd  to  be  m 
tbe  cbaiuber? — lie  viy%  he  cannot  tdl  tbe 
reason  or  whal  busittetisi  she  liad  there ;  but 
tbere  she  was  for  oa«  tbio^  or  otber,  best 
kDOWfi  lo  herself;  he  does  not  know. 

Whether  when  tbe  duchess  was  at  Vaux- 
lialU  auy  relations  of  sir  Juhn  Gemaiiic  cutne 
10  her  there  ? — \e%,  they  woiiM  come  and  see 
lier. 

IV  bo  were  tbey  ? — Bilrs.  Brienoe  and  Mrs, 
Jutlitb  ^  he  soys  be  docs  not  remember  that 
Mrs*  Brieooe  lias  lain  tbere^  but  Mrs.  JudUb 
has. 

Where  it  was,  mod  n}>ou  wbut  occasion  he 
met  with  £lianor  Vaoess  after  be  carried  her 
over  into  Holland  ? — ^I  met  ber  in  Amsterdam. 

Whether  be  came  over  into  England  with 
ber,  and  upon  what  occasion  ? — I  met  her  at 
Amaterdam  ;  ami  she  aaked  me  ««'hat  bueiness 
1  bad  there,  whether  1  bud  a  moiter  ;  and  1 
saidf  no* 

When  was  that  ? — About  a  year  and  a  lialf, 
to  bii  reiiiembrance. 

Wbetber  lie  came  over  witli  ber  (he  last 
tini6  ?_^Yea ;  lie  came  over  into  En^Iiiud  with 
her  in  company^  uboutMX  or  seven  wteks  since. 

Where  has  ^^he  been  ^inee  be  caincuilo  Eng- 
land ? — She  w  as  in  Un^g'mgs. 

Wbeff  f — He  put  ber  into  private  lodgings, 
that  she  should  be  secure. 

Why  did  you  put  ber  into  private  lodgings  ? 
— Because  iie  was  afraid,  in  the  circum^taucea 
that  he  is  now,  that  somebody  might  give  them 
msune  affront,  or  do  ibem  ao  injury  ;  and  tbere- 
Im  h«  tkiii^t  it  best  to  be  in  some  place  of 
lemfily* 

What  particular  reason  had  be  why  be  should 
take  private  lodgin|^s«  or  have  that  tear  upon 
htm  ? — He  says,  that  when  he  was  last  here, 
iir  John  Germaine  cyanic  up  one  night  in  a 
great  pasjiiooi  ami  swore,  and  satd,  somebody 
would  betrav  him. 

i  desire  lie  might  re|)eat  that  again  P — Sir 
John  Germaine  came  tme  night  up  stairs  and 
eaid,  that  NicbaUs,  this  rogue,  would  betray 
fatin* 

Who  was  lhat?--ne  say*  it  *vss  one 
Nicholas  Uusbett,  iJial  serted  bim  or  both»  be 
cannot  tell,  but  be  wa.^  in  bis  st^rvice;  that  he 
heard  these M-ords,  ami  thai  be  tbou|:lii  in  these 
cwcumstatices,  tbe  secur^iit  \voy  would  be  to 
take  pivate  lodgin^^* 

WLflt  brought  bim  into  England  tbe  last 
thne  ?  Wbetber  he  wi&s  spoke  to  to  come,  and 
for  what  purpose?—He  says,  that  about  iwo 
or  tliree  years  ago  be  happened  to  meet  with  a 
irieod,  and  be  doii^ired  him  if  be  beard  uf  a  guod 
place  for  hine  in  Eughud,  In  let  bim  know  of  ilj 
tor  he  would  go  ana  serve  there  again. 

Wb ether  he  was  ^spoke  to  to  come  over,  or 

was  Elianor  Vaness  spoke  to^  and  what  was 

Ihe  occasion  ? — My  lord  asked  hi^m  If  be  would 

'  aiMsk  the  truth,  and  do  him  any  soirice  *,  and 

whether  he  would  briui^  this  girl  along  with  bim. 

Who  Wis  it  that  spoke  to  hiinP^My  lord 
duke  and  my  lord  Howanl. 

When  was  that  f — It  was  about  a  year  ago. 


Wher«  was  be  at  that  tJilie?«>l!ti«o| 
London, 

Did  be  go  orer  of  hit  own  aeoanl,  er  sn^  | 
sent  into  Holland  ;  who  it  was  thit  loll 

over,  Hod  for  what? — ttwasa&wgdfl 
quaiiiUocc,  that  he  denred,  in  c«ek»| 
a  place,  to  send  for  htm. 

Who  sent  for  Elianor  TaR«9«  ww^- 
says,  that  af\er  he  had  promised  m;  I 
and  lord  Howard  to  speak  tbe  tnilhsf  1 
knew,  they  deaired  bim,  that  if  hr  r 
Elianor  Vaness,  in  desire  her  to  oai 
speak  tbe  truth  of  (%tiiit  ibe  knew. 

How  long  atti  t  mett  iiiil  I 

Vaness?— It  is  ui  %«  moofhii 

met  with  her. 

When  was  tbe  ^rst  time  thit  kf  i 
Elianor  Vaueas  ahi>at  hrr  eomiaff  vm 
the  truth? — It  is  about  a  year  ikie& 

How  long  ia  it  slooe  they  rc»»|r«|| 
over  ? — About  twelve  months. 

Whether  he  was  aci)uelfiiril  wilk  I 
Vaness  before  he  met  with  ber  m  T 
Germaine'S  service  ?—  I  * 

You  say  you  went  ir 
service  in  Suffolk-strtL. 
you  came  to  bim  aj'-ain  he  lived  in  1 
pit ;  did  you  find  Elianor  Vansas  (b 
— He  says  he  found  her  at  the  ( 

When  he  waited  on  sir  Jobo 
bis  chamber,  who  watted  on  the 
her  chamber  ? — ^Tbere  was  one  1 
rington,  and  Elianor  Vaness. 

But  who  waited  upon  her  in  bsf  ( 
—  Susannah  Bartington  did,  Id  ^n 

Wbetber  be  had  seen  any  of  sir  Jii 
maitie's   relations  in  the  chMober, 
lady  and  sir  Johu  Germaioe  were  a4 
ih»?r  ? — Yes. 

Name  them. — He  say*,  he 
eiitw  HFIil  Mr.  Daniel  Gtrmainr  dierr 

Did  you  ^ce  Mrs.  .' 
not  rcmenibtir  that  he 
room  while  lb<?y  wen:  i 
other  liu  hath  seen  wIm  i 
gclhtT,  but  at  different  timi^i.. 

Whether  ever  he  bath  seen  the  ' 
any  other  placR  ? — H«  has  bcvu  al  i 
with  ber,  and  tlsjcwbere. 

Where?— At  m^  lord 
in  her  own  house. 

€ros$  Ejtmnim^ 

I  desire  be  may  re<luoe  tVu«a  m  n  rti^fi*^^  1 
what  linie  be  went  out  of 
upon  hU  note  asain.     [He 
uoie,  nnd  it  waa  oatcd  Stn  Februiin%  H*>i 

How  long  alter  this  went  he  *»ut  «<  &t 
land  ?— He  wtfkit  away  as  sooo  as  Iks  •"■  | 
was  favourable. 

Can  he  M  .^^ Hessjfv** 

some  time  l><  liecitai*iot«D^I 

land  about  Eo^iier,  I 

W  ben  be  told  h'm  gtiee  the  dukf  n(  ?lort"  I 
and  lord  Howartt  he  would  ^-  ■  *"*"  *^  ^ 
fvbetber  he  Mas  in  any  tern 
Noy  be  was  iu  no  service  it  IL^ 


297] 


and  his  Duehett,/ttr  a  Divoree. 


A.  D.  170a 


[IS88 


How  kmg  had  he  been  out  of  employ  ? — He 
BS  none  yet. 

But  how  kmg  had  he  been  out  of  employ,  or 
KVf  ice,  before  he  make  thia  propoaal  to  the 
like,  or  my  lord  Howard  ?-^He  says,  he  went 
nriy  about  the  97th  of  June. 

la  it  the  aame  year  his  paper  sneaks  of,  that 
e  spake  10  my  lord  duke  ?— No,  it  was  not ; 
m  apake  to  my  lord  duke  about  twelve  months 

SO- 

But  how  long  had  be  been  ont  of  ser?ice 
'lien  be  spake  to  my  tord  duke  ?  IVben  did 
m  leave  sir  John  Gormaine  the  last  time? — It 
I  about  three  years  and  half  ago ;  it  will  be 
wur  years  in  June  next 

Has  he  been  in  any  service  since  that  time  ? 
— N09  he  has  not. 

How  has  he  lived  since  then  ? — He  vByu  he 
■•  something  of  his  own  in  his  own  country, 
yon  which  he  may  subsist  some  time. 

I  think  he  said,  ne  saw  sir  John  Germaine 
wA  the  duchess  in  bed  together,  in  the  house 
rhere she  now  lives? — ^Yes. 

Then  I  desire  he  will  tell,  if  he  knows  any 
W  the  dudiess's  servants  that  were  alK>ut  her 
t  thai  time  ?^Yea,  he  does. 

Then,  that  he  \iill  name  them  f^Henry 


What  is  become  of  him  ? — ^They  told  he  was 
lad ;  and  there  was  Susan  Barrington. 

1  iMre  he  will  tell  of  some  of  the  servants 
kit  lived  wHh  the  duchess  at  that  time,  be- 
idei  that  person  that  is  dead,  and  the  other 
iHiieh  is  gone  beyond  sea,  as  they  say  ? 

[Mr.  Narthey  answercMl,  We  do  not  say  she 
•  few  beyond  sea.]— He  does  not  know  any 


ttai,  that  he  will  tell  what  montli  he  saw 
km  in  bed  together  ? — lie  cannot  remcml»cr 
fee  month,  or  the  day  ;  but  if  they  will  avk 
Uai  the  reason  why  he  remembers  it,  he  will 
ID  it  them. 

If  you  can  come  to  any  certainty  about  the 
Sne  of  the  year  or  the  month  ? — He  cannot 
tty  the  monUi,  or  any  particular  time. 

i¥hat  servant  he  saw  in  the  house,  or  who 
Itt  him  m  ? — He  had  himself  the  key  of  the 
iMrer  room,  and  could  come  in  when  he  pleased. 

Whose  servant  was  he  at  this  time  he  speaks 
if?  Whether  he  was  a  secvaut  to  the  duchess 
•r  to  sir  John  (j«rinaine?^He  was  servant  to 
lir  John  Germaine. 

He  WHS  saving  he  could  tell  a  reason  to  fix 
(betime,  let  hiui  recollect  himself  of  the  time  ? 
^-*He  cannot  remerolier  the  time,  but  he  came 
hto  the  rofim  to  bring  a  clyster,  and  he  was 
fcftred  to  stay  a  httle  till  my  lady  duchess  got 

That  he  may  be  positive  whether  he  had  a 
^tu  the  hiwer  room  of  the  duchess's  house  ? 
^fle  Bays  he  had  a  key  of  the  door  that 
l^tcs  into  the  park,  and  he  could  come  into  the 
loose  by  it ;  for  it  was  the  key  of  the  house. 

IVhat  servant  was  it  that  brought  him  up, 
>r  that  key  only  let  him  into  the  lower  room  ? 
*Qometimes  8u8an  BarriogtoD,  and  aometimes 
tVDiy  Keemar. 
VOL.  Xlll. 


What  room  the  lady  dnehesa  lay  in  ?-^It  ia 
a  room  that  looks  into  the  park. 

It  is  not  a  ground  room,  I  suppose  ?^No,  it 
is  up  stairs. 

llow  many  stories? — He  cannot  tell  what 
degree  it  was. 

Being  asked  that  question  again  upon  the 
reading  his  depositions,  he  sayslie  cannot  tell 
how  many  atones ;  but,  if  you  please,  he  will 
describe  the  coming  into  the  room  aa  well  as 
he  can. 

Describe  the  coming  into  the  room  ? — ^That 
aa  you  come  upon  theleA  hand,  there  is  a  way 
to  go  into  the  aucheas'a  room  ;  when  you  have 
paned  the  little  chamber-door,  you  go  into  a 
place  full  of  china ;  and,  after  that,  you  come 
to  the  duchess's  bed-chamber.  On  the  other 
aide,  going  up  stairs,  there  is  a  little  room, 
where  Husan  told  him  she  lay :  and  aftenvards 
you  come  into  a  room  where  the  chimney  is, 
aa  he  thinks,  on  the  right  hand,  and  he  thinks 
there  are  two  windowa  that  look  into  the  street, 
he  is  not  very  certain  ;  and  in  the  room  upon 
the  left  hand  there  is  a  door  into  a  great  room, 
and  firom  that  great  room  you  can  go  into  the 
lady  duchesa's  room.  It  was  so  at  that  lime, 
to  the  best  of  his  remembrance. 

How  many  rooms  are  there  upon  a  floor? — 
There  are  a  matter  of  four  rooma  upon  a  floor. 

Whetlier  he  has  s]K>ke  with  any  body  that 
he  knows  is  aoqoninted  with  this  house  aincu 
he  was  examined  here  before  ? — He  saya  he 
has  spoke  to  nobody  since,  that  has  given  him 
any  account  of  tlie  house. 

Whidi  side  of  the  park  does  the  window  of 
my  lady  duchess's  room  look  into  ?— Towards 
the  pond  where  the  brass  statue  is. 

IJoes  the  bed  chamber  look  towards  the 
brass  statue  ? — He  durst  not  go  to  look  out  at 
the  winilow  for  fear  of  being  discovered,  but  he 
could  see  the  water. 

Whether  he  knows  the  Horse-guards? — Yea. 

Whether  he  knows  Ariington  house? — Yes. 

W' huther  the  windoi^  does  look  towarda  Ar- 
lington-house, or  the  Horsp-guards  ?-*Hehatli 
l>een  there  several  times,  but  it  was  not  his  bu- 
siness to  go  to  the  window;  but  when  he 
was  in  the  rtioin  he  could  see  the  water. 

Whether  he  could  tell  which  way  the  win- 
dow' looked  .^—He  did  not  live  in  the  house* 
but  went  there  sometimes  upon  niessages ;  and 
when  he  was  there,  it  was  not  hia  business  to 
go  to  the  window,  but  he  could  see  the  water 
when  he  was  in  the  room. 

Whether  the  window  was  on  that  side  of  the 
little  door  that  he  came  io,  or  on  the  other  side  ? 
— Upon  the  left  hand  coming  in.  He  says  he 
has  explained  himself  as  to  toe  entering  in,  and 
he  can  say  no  more  to  it. 

Was  it  one  or  tw  o  pair  of  stairs  that  the 
duchess  lay  ?^He  cannot  be  positive,  whether 
one  or  two  pair  of  stairs. 

Who  hrouglit  him  up  tliat  time  he  broi^t 
the  clyster  ?'-Su6an  Uarrington. 

Who  told  him  at  the  Cock  nit,  it  was  the 
duchesa  of  Norfolk? — Sir  John  Germainei  her* 
self,  and  the  whole  faouat  told  him  ao. 

40 


I 


12  WILLIAM  in*     FrmuMngi  hetwuu  the  jy^ke  o/NorJJlk 


was  ovt:r  f— ^]So  |   as  eoan  as  b«  M 
btm»  he  wrrji  home  to  Mr.  CenoiWi 

WK«iIier  be  pretends  to  speak  of  t 
time  he  mnv  the  tli^cht'ss  In  Mintfah 
hause  in  Duke-filre«t,  but  when  be  en 
the  clyster  ?— Y«Sj  my  loril,  bt  hw  t 

I^et  him  tell  th«  tinier  aiKl  ctttun 
—He  KiyH,  he  cannot  ^ery  well  T«aif 
limes,  but  lid  had  someliane*  bticbea 
briMg  nud  carry  letters. 

When  was  ihat  time  oribedyfltrl 
about  tiro  months  b^for€  be  \th  thctu 

Was  that  the  U^t  time  he  tt^  tit 
ther?— Tiiat  wa»  the  last  tirn*. 

HtiV¥  Inng  before  that  did  h«  Hi 
get lierf-^ Long  htlbrt  that  time^ta 
houM'. 

Hemytf  he  has  $aen  sir  John  G*ft 
tFie  duchess  in  bed  together  i^Uewli< 
he  ne?er  see  them  in  btd  together  it 
bank  ?— iTe  has  seeii  tJjeio  there  tw 
times  d'bed  together. 

Wheo  did  your  master  order  yon  1 
a  clyster? — He  had  order  to  coraeia 
Mr  Germaioe  ailbe  due  best's ;  md 
Germaine  coming  to  ihe  diichc:»*t  h 
dertd  him  to  bring  Ihe  ciy<ittjr  nexta 

At  what  time  he  came  the  next  m 
He  bad  orilur  to  brin^f  it  at  9  o'dd 
brou|rh(  it  at  the  appointed  honr«  la^ 
the  little  room  IV here  Busan  nai  tj 
called  Jo. 

He  says,  he  waked  for  sir  Joba  I 
by  bis  ordertit  at  ihe  duehess's,  in 
late;  ^¥hteh  of  the  duche«is's  sern 
keep  company  with  F-^-^lIe  says,  hei 
very  well  it  was  Mr.  Keemer. 

Whether  that  lime  that  he  tiw 
maine  and  Ihe  dnches«  in  bed  l< 
MtlU  batik,  if  it  was  after  the  fit^t  ti 
sent  nut  of  England,  when  the  biU  v 
ing  b^tbre  the  lords  ? — It  was  aJlei 

Whnt  year  did  you  see  them  a* be 
at  Mill-bank? — It  was  a  day  or  two  I 
D'Atenant  died.    A  day   or  two 
died  Mr.   Germaine  came   to  Hdl- 
staid  Lhere  ahont  eig'bt  days. 

Nicola  I; 

D£POSTnoNS  OF  WnxiAH  Bi 
February  25* 

(  William  Bay/y  svrom.) 

Q.  Do  you  know  sir  John  GertDii 
ducbe^^s  of  Norfolk?— j*.  Y«- 

IVat  you  &«;rvimi  to  sir  Jobti  Gci 
Yea, 

It]  what  capacity  ?-— Three  Te^iv 
livery  J  and  three  yeftrs  I  was  Ris  stc 

Wben  did  you  first  come  to  bte ' 
—Three  weeks  before  the  kios^  wis 

Was  there  any  conversation  betv«i 
Germaine  aud  the  duchess  of  Noti 
ye  know  that  they  hvedtogetbcff  or 
pany  one  with  another  ? — No ;  I  w 
them  lire  togeiberi  but  teen  lima  J 


JM  he  before  that  time  koow  the  duchess  ? 

—No. 

'    Did  you  oarer  see  other  women  there  be* 
tides  this  lody  f* — Yes. 

Did  you  know  all  the  rest  that  you  saw 
there  f — No  he  did  uot  know  th*?m  alL 

Whether  he  was  not  told  the  rest  of  the  wo- 
men were  of  gfreat  quality  too  ?— He  uev^r  was 
told  sOf  nor  did  he  inform  himsc^lf  whelkicr 
they  Wiiic  or  no* 

At  Vauxball  and  at  the  Cock-pit^  I  llnok,  be  ' 
Epake  as  if  he  tmdressed  ^ir  John  Germaioe 
and  the  duehess  ;  whether  he  uodre^ed  ihem 
both  ?^Not  the  duchess. 

What  year  was  it  thoy  were  at  Vaushall  f 
— It  Avas  before  he  went  io  Ireland^  and  afif  r 
he  came  from  Ireiaod  \  but  he  caunot  precisely 
tell  the  time. 

Whether  he  has  been  in  any  service  tinee 
t^m*  when  he  Idl  sir  John  Germaiae's  ?^No. 

Whtlher  when  he  nanie.  about  a  year  ajfo, 
into  England,  there  was  application  made  to 
him  in  order  to  mnke  a  discovery  f  or,  whether 
he  offered  of  hiniself  to  make  it  ? — He  never 
did  ofltT  himself. 

Who  waii  it  that  first  asked  bim  the  qnestion  ? 
It  waf{  my  lord  Howard, 

Where  did  you  meet  my  lord  Howard  ?  and 
upon  what  ot'casion? — lie  says,  that  it  was 
that  person  that  he  had  atldressed  hiuiself  to, 
to  get  hto)  into  service  heiie,  ttiat  was  the  occa- 
sion of  their  meetiDg-loir^tticr. 

Did  you  know  the  lord  Ho  nurd  before? — No. 

Where  was  the  placa  they  met?- He  lulled 
liim  to  his  house. 

M*^  lord,  or  that  person  ? — He  says,  that 
f  erson  to  which  he  addressed  himself  to  get  a 
place,  told  him  he  bad  found  t>ne> 

Name  that  person F^-Hinhardson. 

Where  does  he  Ii?e.^— I  don't  know^ 

W'ere  you  acquaioted  with  him  befbre?^-^ 
Yes. 

Where  liad  you  been  acquainted  with  bim? 
—At  London  ;  it  is  a  woicau, 

Whelher  he  can  describe  the  room,  or  the 
furniture  of  the  roomt  where  this  nobte  lady 
mud  sir  John  Germaine  were  a- bed  together, 
where  she  lives  now  p — He  cannot  remember 
nny  things  of  the  furniture. 

Was  it  bung^  or  wainscoted? — He  says,  he 
cannot  tell,  and  yet  t^i^as  there  ol\eu. 

Pray,  who  was  the  clytter  for  ? — For  Mr. 
Germaine. 

Where  waj  it  to  he  administered  ? — A^bed. 

Who  was  a-bcd?^ — My  lady  duchess  wai 
a^hed  loo. 

Waa  it  to  be  administered  at  the  same  time 
as  he  atid  the  duchess  were  a- bed  tos;elh£r  ?^ 
No. 

Was  Hie  duchess  there? — He  laid  the  sy- 
linge  to  the  fti^-side)  till  such  time  as  the 
duchess  rose. 

Apothecaries  are  exact  in  point  of  time  in 
making  tlu-jr  bills  ? — He  says^  I  comptised  the 
dy  ster  myself;  but  he  did  not  compose  it  at  the 
durhera'a  house,  but  at  Mr.  Germainc^s. 

Did  yoaitay  with  air  John  Geriaaiiie  till  all 


and  his  Duchessyfor  a  Divorce, 


A.  D.  1700. 


[1308 


€r,  but  neFer  ?«w  any  incivility  be- 

w  yoa  them  in  company  togrether  ? 
lem  ID  company  in  my  master^s 

r  ago  P«-Aboot  fiFo  years  ego. 

id  your  master  thien   lire  P — He 

'here  he  does  now. 

iich^ss  of*  Norfolk  ever  lie  tliere  ? — 

)r  knowledge. 

B  the  time  she  usually  came  there? 

ly  in  an  afternoon. 

n  have  you  seen  her  there  f<^Two 

es. 

lime  did  she  use  to  come?  and,  at 

id  she  use  to  go  away  P—She  used 

TO  about  four  or  five  o'clock  in  the 

nd  might  stay  there  about  two  or 

ipon  your  oath,  and  pray  tell  whe- 
»r  saw  them  in  beil  together  ? — By 
M>d,  I  never  saw  them  in  bed  toge- 

lady  ducliess  use  to  come  thither 

unmaske<l?— She  used   to  come 

:  put  it  oflf  when  she  came  into  the 

1  to  come  with  her  ? — ^There  used 

.  Keemcr  with  her. 

npany  ?   Did  no  other  use  to  come 

Bir  John  Germaine's  house? — Yes, 

ant,  Mr.  Carter. 

in  tlie  room  with  them  in  sir  John 

house? — Mr.  Keeroer  staid  com- 

them  all  the  time  they  dined,  and 

;  the  other  servants  and  I  were  in 

m  to  them  ;   and  commonly,  when 

»sion,  they  would  call  Mr.  Keemer. 

e  no  other  servant  but  Mr.  Keemer 

3ed  tu  call  upon  ? — Yes ;  a  gentle- 

B.  Susan'  Harrington. 

i  seen  her  lately  ? — No,  not  these 

low  if  your  master  used  to  go  to  the 
>use  ?— Yes,  I  have  heard  so ;  but 
f  so  positively. 

ever  go  with  them  to  the  duchess's 
> ;  but  I  have  gone  with  them  as  far 
e-ferry. 

a  the  last  time  you  saw  them  toge- 
nnot  tell ;  I  have  been  out  of  my 
vice  these  four  years. 
X  before  you  left  your  master's  ser- 
}iink  it  was  that  you  saw  them  to- 
cannot  tell,  but  I  think  it  might  lie 
year. 

fone  with  his  master  as  far  as  the 
' ;  pray  then  let  him  be  asked  where 
Mster?— I  left  him  at  the  Horse- 

ert  did  your  master  give  you  when 

n? — He  ordered  me  to  go  home, 

le  bouse. 

low  whither  your  master  was  gone 

lay  judge  he  went  to  the  duchess, 

t  iwear  he  went  there. 

^B  Gennaine  come  hone  to  bed 


that  Bight  ?-^Some  nights  he  came,  and  some 
he  did  not. 

Did  you  carry  deaths  to  him  at  any  time  ?•— 
I  have  carriefl  eloaths  for  him  to  Mr.  Keemer, 
the  duchess's  servant. 

Where  did  Keemer  live  when  yoa  carried 
eloaths  to  him  ?— In  a  little  street  going  to  the 
fiowfing-alley. 

Who  did  he  live  withal  I — He  told  me  he 
lived  with  tlie  duchess ;  but  he  was  a  house- 
keefier,  and  had  a  house  there. 

Did  you  always  carry  eloaths  to  Mr.  Keemer 
for  your  master? — Sometimes  I  carried  his 
eloaths.  to  Mr.  Keemer,  and  sometimes  Mr. 
Keemer  came  to  me  for  them. 

Did  you  apnrehend  that  your  master  was 
theu  at  the  duchess's,  or  at  Mr.  Keemer's? — I 
cannot  tell  where  he  was :  how  can  I  tell  ?  I 
answer  as  punctually  as  I  can. 

When  Keemer  came  to  you  for  deaths, 
what  account  did  he  give  you  where  your  dias- 
ter  was  ? — He  gave  no  account. 

Whether  did  you  ever  see  the  duchess  and 
your  master  together  at  any  other  place  but  his 
own  house? — Never. 

When  you  carried  the  cluaths.to  Keemer's, 
did  your  master  lie  at  home  that  night  or  not? 
— Sometimes  he  lay  at  home,  and  sometimes 
he  did  not :  many  times  my  master  has  been  at 
the  duchess  of  Mazarine's  from  four  o'clock 
this  day  till  twelve  tlie  next. 

Repeat  it  again,  for  that  is  material.— -My 
master  has  taken  his  chair  at  his  own  back-door 
at  four  o'clock  on  a  Saturday,  and  not  com^ 
home  till  Sunday  at  twelve  o'clock. 

Where  has  your  master  been  at  that  time, 
when  he  staid  out  all  night  ? — At  the  duchess 
of  Mazarine's ;  and  when  he  lost  his  gold,  he 
has  sent  to  me  for  more  gold. 

Did  he  ever  send  to  you  for  any  deaths  whca 
he  was  there?— Never. 

Do  ye  know  where  he  was  when  he  sent  to 
you  for  eloaths? — No,  indec^d. 

Do  ye  Imow  Nicholas  Hosier? — Yes,  1  know 
him  very  well ;  I  saw  him  here  just  now. 

Did  you  know  him  when  he  waited  on  sir 
John  Germaine? — Yes,  he  succeeded  me,  aud 
I  succeeded  him  again. 

Yon  was  footman  when  you  went  to  sir  John 
Germaine :  when  was  that  ?  and,  what  year 
did  you  leave  off  your  livery,  and  serve  him  as 
his  steward  ? — I  cannot  tell. 

He  succeeded  Hosier^  and  Hosier  succeeded 
him :  Fray  let  it  be  asked  him,  at  what  time  he 
came  into  his  master's  service,  when  he  suc- 
ceeded Hosier? — It  was  about  the  same  time 
that  the  trial  was  here  before. 

How  long  was  it  ere  Hosier  returned  again 
to  serve  sir  John  Germaine? — To  the  best  of 
my  knowledge,  it  was  three  years ;  for  I  re- 
ceived and  paid  money  for  my  master,  and  Ho- 
sier was  away  all  that  time :  Uoeier  will  not 
deny  it,  if  he  were  called  in. 

Yon  say  that  you  succeeded  Hosier  at  the 
time  when  the  trial  was  here  :  How  long  be- 
fore that  time  did  you  return  to  yonc  master's 
■erviee?— About  three  ireektbdere  the  king 


him  ihrm  fmgs^  ud  vore  b»  U? cry ;  and  he 
wn  §kaatd,  mBkt  Mt.Ummr  went  iwa)%  to 
t  Uy  vmi  b»  movey,  l»  be  calerier  for 
I  ttticm  lui  gM  ;  «o4  to  Ibe  best  of 
.mj  tenvMK*  "  ^*M  tfarae  ycus  bdbre  Ni- 
otiIm  nifKtidiii  flue  inlQ. 

Hmt  IttQ^  WIS  ii  before  be  caoe  beck  tgaio 
ia  i0ve  ait  iob'j  Genrane  ?— Before  I  savr 
Inoi  M  Bj  MHlB^  hamt,  and  thai  be  look 

biilye<iMMllr.HoaMrw%i^d  be^ 
ftfc  liat  twaelhrtjani  iMOleiilef  yovir  naater^s 

wM  naeolkctitty  OMaaoty  far  tbal ;  as  I  bate 
m  aaol  i»  b^  aaicdi,  saw  il  it  oome  into  ed v 
aW,  My  Mrtii  ariilfnfrnirhnliii  into  Hollafrd 
vbaai  a  year  be^te  NacbelM  did  come  over: 
My  onoaer  told  lae,  belbre  be  ceme,  that  be 
wmM  wmi  Ibr  Niebolaa  aniii,  and  tbil  1  and 
Kifliaiftiibanii  hM«  ibe  dnqge  of  hi«  Uomt:, 
KkMw  oaae  e«er,  and  we  bad  the  pley  at 
mm  0Km  bouse :  NkbolBs  aUid  there  aooie 
iiM^Wlbadid  D«l  bice  bia  b<iaioe«s«  and  fio  he 
i^eftt  awty  ac«^ii,  beeniae  be  eoold  uot  hate 

•illMM^. 

ilbal  «te  time  did  Ntefaolaa  eooM  tnlo 
fiwlbi^  lihr  dhe  trial  «ras  before  tbia  Hooae  P 
«— I  caaoal  raaalie  wao. 

Had  y^«  ao  eeflitaiaof  teate,  or  diacfaarge, 
vrbea  yim  M  yiMir iiMmat*aaeryice ?— No ;  my 
iHt'g  *aa  ao  biodt  Ibal  be  brangbt  me  im- 
luiiianly  iato  tW  eatctae*  aa  tooo  aa  I  vaa  out 
«fbia«rfiea. 


WfUfmm  J3d^ero«a-evaiiiiiicd* 

Q.  Wbeti  ye«  cenied  the  cbjaUis  to  &ir  John 
4t«nBaiiae%  w»s  it  the  time  ivheo  you  vt ore 
km  ia«y  f-^d*  1  carried  ae  doathjf  to  him 
wbco  I  vara  bm  lifcry. 

Had  j^  mm  dbaaurac  with  Uie  dacheai^s 
Ji^iftta  tince  tialuidiiy  Mgbt  ?^No,  I  buve  not 
Men  Ibnit,  aer  do  aei  bcie«p  ibaia* 

He  nm  be  saw  the  dnebeaa  af  Norfolk  at 
Iba  Coebfiil*  ai  air  John  Germatiie'a  bouse 
^bero  be  sow  dwelle  :  l*ray,  recolteeC  your- 
■dl^  thei  yeu  niAy  ba  |ioattre  aa  to  llie  tinie  ? — 
I  taAiiei  rveel^  yoa  as  to  i\nf  year,  tt  is  so  long 
^  ifik  i  I  bfliefe  it  k  about  Ave  ycors  ago. 

Cteyoiibe|ioailireth«til  is  not  moref— >To 
^ibeheaiof  my  knowledtfe,  it  was  about  fire 

€ta  you  be  to  fur  iM?rtaiii,  thet  you  cao  sey 

[  M  f^^    not  mnre  f — I  c^uoot  SMrear  it  wia 

ioei^  but  t  b(4icTo  it  may  be  fire  yeera,  more 

Ymi  «ftir  i^tt  saw  her  two  or  three  ttmea 
bare  t  Was  »i  nil  in  one  yeer^  near  the  same 
Ine  or  m<>iilh  f  Cmi  you  mluce  it  to  aov  eer- 
ifcitjf  *— I  belitfroit  iinght  be  in  t^ummcrl 
Ad  \n  eoe  sutnaier  ?— Ves,  I  believe,  all  in 
I  {  to  till.*  liesi  tif  tiiy  koowW^e  there  itas 
Isi  a  wrnter  between  tlie  time  that  1  saw  her 
taadlasi* 
i    Did  jmi  know  the  duobcaa  of  Norfolk  be 


ter'a  homie»  and  took  bet  to  br  1^Mb4 
Norfolk  r->I  did  Dol  know  berlidiiiiiiU 
fi' as  here. 

Did  yoii  koow  her  uiy  time  lAtr  (telii 
before  the  time  you  saw  her  iaitr  JoluQe. 
maioe's  house? — I  waa  not  santbi  an 
the,  only  aa  I  bad  it  froiii  Sir.  Kifoe. 

Then  yoa  do  not  nodatike  «f  jwai 
knowledj^  to  say  that  It  was  tbeT-^l  Ml 
swear  Ibat  il  wjis  she,  but  aa  Mr.  I««s4 
one :  I  do  not  kaow  wbetbe?  I  iMilp* 
her  DOW  or  not,  it  ia  ao  h»ckg  ainof  I  o«  WJ 
believe  it  is  fire  years,  ir*">'  nu^r^ 

Did  von  tee  ber  befo-  ^Q  aeka 

at  sir  John  Gcradaa'i  '  lliefinlMl 

they  told  me  it  was  sbo^  I  nwlhiriilaia^ 
in  the  Pallmall,  with  two  other  ^i^ikmB 
With  her,  a  Little  before  thelml  en  laiil 
followed  the  coBcb»  aod  lhedoclii« 
some  lady's  house  m  Du«er  Ktrtct,  id^ 
told  me  tlie  ilticbess  wax  ihe  6(ii  itvaMM 
went  uiit  ;  this  is  the  first  time  tint  tift 
her,  that  I  know  of,  till  such  time  n 
totd  me  it  was  she. 

W briber  do  you  know  Nicholi»M 
bim  Tery  well. 

Can  you  tell  how  toog  it  ia  moot  hitfl 
last  into  Kngtand?— No*  he  has  bfus  hatP 
or  three  bmes  in  England  aince  i  kft  ^ 
toaster. 

How  looff  l>efore  this  exaroinstion  o*  w 
him*  or  spoke  with  hitu  f-^I  did  not  in  ^ 
abore  these  three  years. 

How  lon^  before  you  came  hither  m^ 
nees  did  yoo  sea  bim  f**I  bare  aot  "^ 
these  * 


1 


5 


ttitnc  tUtI  yo^  myi  \ms  m  ^^yox 


se  three  yeart  till  I  came  hither  !»»•*  | 
s,  and  did  ndroire  to  see  bi9  bnt,  ^  I 
man  that  hail  got  his  bread  ondcr  hti^ 
should  appear  here  againat  hinH  it  n  n^  ^ 
gratefol  a  thio£p.  -   am 

Bow  came  it  yoo  bad  an  mnA  mv^^rj 
to  follow  the  duchess's  eoach  f«*l  bad 
to  satisfy  my  own  humour^ 

Do  ye  koow  bow  NicbolM  bfd  i 
was  out  of  bis  master's  serrice  f^^Ne;  W- 
saw  bim^  not  had  any  a^^count  of  bill 
nor  hare  seen  him  the^  throe  yaan  liitt  I 

Did  you  know  wh«^n  Nicholas  aad 
V^aness  went  out  of  Euiflaml  ? — No,  I 
knew  when  they  went«  tior  when  tbaf  f 
Do  oot  you  know  what  busiiiiaa  bt  1 
of  Kogtand  ahtiut,  tiie  time  you  1 
— 1  know  oot  the  busincHi  be  went  e«rt4 
laod  upon. 

Did  he  at  any  tin>e  tell  yon  ba  ina  I 
away  to  hide  himseJf  from  €OifWB^  faitf" 
No,  I  heard  not  one  word  froia  him  ail 
of  his  parting. 

Wliat  raason  had  you  to  aay 
sight  of  Hoaier^  that  he  was  ua^raldy 
eomirig'  hither? — 1  shauki  ibtok  my 
gnuelul  to  eat  a  gentJeinaoS  braad  see) 
anil  do  him  all  the  aitite  and  malioa  1  i 

Repeat  those  wordsf — 1  slioubl  tbiak  i 
f ery  imgraterul  to  prosectite  {  if  i 
any  harm  lo  a  master  ibai  i  bad 
«Qaua^Y«arK  I  abocikl  iUakmy^dti 


K 


md  iii  Diehttttfir  a  Intone, 
him  tinak  of  hiouelf  what  he 


A.  Di  1700. 


rx309 


lome  •tber  w«inls.— 'For  any  thing 
•piteand  niaiioe. 

I  ^oa  lire  When  you  followed  th« 
icb? — At  Mr.  Germaine's. 
if  a  wUnen,  and  ao  is  Hosier ;  let 
lioodwlt'  what  he  meana,  and  where- 
ly  differenee  between  him  and  Ho- 
1  are  witiijeMea?— I  say,  I  should 
▼ery  ungrateful,  if  I  would  do  any 
in  whoM  bread  I  did  eat  ao  Jong, 
iQ  muoli  money  under  him. 
a  does  Hosier  do,  being  a  witoesa 
ncheaa  of  Norfolk?  What  harm  ia 
hn  Germamel^l  do:n|t  know. 
:on  it  uugri^ul  to  sp^  the  truth 
lice  of  a  master?— No,  I  would 
untruth  for  all  the  masters  in  the 

there  any  fault  more  in  Heaicff 

-—1  know  not. 

lid  Elianor  Vanesa  live  with  sir 

ae  when  you  li?ed  there? — I  know 

s. 

in  that  was  here  as  a  witness  ?— 

d  there. 

)  went  she  away  from  sir  John 

lerfice? — (  know  not,  I  cannot 

(Signed)       IVoxUm  Bayly. 

March  5. 
d  witness  being  called  in  for  the 
irfolk  (and  the  Duke's  oouniel  be- 
he  examination  of  the  witnesses, 
ay  in  short- hand  and  iranscribedf 
hem,  and  subscribed,  via. 

AWRswoRTH  swom,  deposed  as 

fultoweth : 
know  Elianor  Vaness?  And  did 
3  duchess  of  Norfolk's  family  ? — 
live  with  the  duchess  about  Oo- 
md  left  her  in  September,  about 
biu  two  months :  £lianor  Vaness 
icn  I  lived  there,  and  was  cook- 
he  leave  the  duchess's  service? — 
inning  of  January,  or  the  latter 
ber,  1691. 

casion  went  she  away  ? — She  waa 
to  tlie  best  of  my  remembrance, 
»mpany  with  Dutchmen, 
led  she  any  other  office  but  in  the 
uul  she  access  to  tlie  duchess's 
ever;  she  waa  not  allowed  to 
ler  tlian  the  first  floor :  ahe  used 
Dom  next  the  street,  one  pair  of 
doer,  and  the  back  park>ur  even 
was  not  suffered  to  come  into  the 
nber. 

I  upon  the  docbesa  in  ber  eham- 
I  Knight;  she  was  constantly  in 
and  used  to  warm  lier 


\  wu  allowed  to  come 


ilVa 


no  hi|[ber  than  the  firet  floor ;  expUm  thai?— 
The  kitchen  ia  under-ground  backward;  thai 
room  Vanesa  cleaned  waa  aven  with  the  atraet, 
aground-room;  the lanndry*maid doaad Hit 
next  pair  of  stairs. 

Wnat  was  the  lanndty-aiaid'a  name  ?— Su- 
san ;  she  is  dead. 

Do  you  know  how  long  ?-^Nc 

Did  you  ever  see  Vaness  in  the  dncheai't 
chamber? — ^Never  in  my  life;  1  never  heard 
ahe  was  alk>wed  to  come  there. 

tlow  long  is  it  since  you  lived  with  thif 
duchess  ?— About  aix  er  9eveo  yei^  or  vfry 
pear  it. 

Do  you  remember  the  bill  that  waa  brought 
into  parliament  againat  the  duchcaa,  while  you 
lived  there?—!  came  to  the  dochesa  the  Oc-. 
tober  before  that  bQl  waa  brought  in. 

Was  Vaneaa  turned  wey  bSfore  that  ?— Slie 
was  gone  a  month  or  thereabouts  before  that. 

Do  ye  remember  the  month  ? — ^To  the  best 
of  my  remembrance,  it  was  about  the  latter 
end  or  December,  or  the  beginning  of  January. 

Waa  there  any  atir  about  the  Dutch  foel« 
soldiera  haunting  Vaneas? — 1  never  saw  any, 
but  have  heard  the  servanta  aay  they  did. 

Can  you  say  what  time  it  was?  Whether 
before  or  after  the  bill  .^—Before  I  heard  anjr 
thingof  the  bill  she  was  gone. 

Crott-eMminctf. 

Where  do  y  ou^  Kve  now  ?-«.Mrith  air  Thenas 
Bamardiston. 

What  atation  were  yon  in  when  yoo  Uved 
with  the  duchess?— A  footman. 

Do  you  know  Hosier  then  ?-i-fNA. 

Where  did  the  ducbesa  live,  when  you  came 
first  to  her? — Upon  the  row  between  the  Horse- 
ferry  aud  Mill- bank. 

Ilow  long  did  you  live  there  ?-9A  fortnight 
or  thereabouta ;  not  much  more. 

Do  you  know  where  ahe  lived  before  ?vinNe. 

Do  you  koow  sir  John  Germaine  ?  and,  on  tht 
oath  you  have  taken,  did  he  ever  come  to  the 
duchesa*8  houae  while  you  lived  with  her  ?-*| 
never  aaw  him  in  the  house ;  1  never  saw  any 
unhandsome  thing  by  the  dnchesa  all  the  tinf 
I  lived  with  her. 

Dklyou  never  see  sir  John  Germaine  with 
her  ?— Nq,  never ;  and  I  had  the  privilege  of 
the  first  floor  and  the  second  floor,  and  helped 
to  rub  the  rooma,  and  sometimes  I  rubbed  the 
hidffing-room. 

Had  you  the  privilege  of  goinff  up  staiia  in 
the  morning  ?— No,  it  waa  one  Peacock  thif 
rubbed  thi*  room  above  stairs. 

Did  yon  know  Vaness  ?  Waa  she  servaal  t# 
the  duchess  when  you  lived  there?— Yaa,  ahg 
was. 

Can  you  be  peaitive  aa  to  the  time  ef  ber 
going  awa^  ?^Aa  near  as  I  can  tell,  it  waa  in 
the  beginning  of  January,  1693.  I  eame  Ul 
the  O^ober  Before,  and  ahe  went  away  the 
January  followmg. 

Were  you  by,  when  she  waa  discharged  ?-v 
No* 

Who  paid  her  ber  w^ae  ?««-I  OMMi  UlL 


130'^} 


13"WILLIAM  111. 


Pnceedingi  hetmen  the  DvleqfSorfSi 


m 


Did  you  uerer  iee  Vatifss  in  llie  duchass'i 
Did  yoti  atleod  at  die  ducUciii's  chamber  iti 

tarn*. 

DiJ  you  tiever  attend  in  bf  r  chatolier  when 
olie  wag  ti»bed  ^^-No. 

WtiQ  was  it  or  her  women  thit  attended  in 
licr  ctiaifiber  ? — Suiaa  ^ — ,  Frances  Knight, 
«nd  ^utftn  BarriD^toD^ 

WlieiitUd  you  seeSuKSH  Bttriugloii  last  ? — 
Ahtrpt  iWe  ye&rs  ago. 

Did  ^kt  coQilontly  attend  in  the  daebfta^a 
ebamberr-'Slieand  Mn>  Kulgbi  carried  cHmb 
^aslanOv  l^  warm  ihe  bed. 

Hrtw  t>td  w&i  yoii  wUeti  ym  Jived  wiUi  tlie 
4udH!is?^Aboiii  f'if  iitcen  years  dd» 

How  old  are  yoti  now  ?-^I  lltiok  about  S7. 
*  Thomas  ilAWK^woftrit. 

.  JosK  PEACOCK  BwOTDf  deposetb  as  fotbwelb ; 

Q.  Did  you  life  witb  tbe  doche&s  of  Nor- 
folk  in  lG9i? — J.  It  is  *ix  years  since  1  letl 
her  leiricet  last  January  or  tbereabouts  ;  1  lir^ 
«d  two  years  and  a  half  with  her»  or  there- 
aboula ;  1  came  in  ^u^ustf  and  staid  tlU  Janu- 
ary two  years  tbllowingi  or  tbareabouts. 

Dili  you  lire  witb  the  duebe$&,  when  tbe 
first  trial,  tm  they  call  it,  c«roe  ^n  in  uarlm- 
ment  f-^Ves,  I  lived  with  her  before  ana  aAier« 

Did  you  know  VaLiess? — 1  knew  one  whose 
Bam«  W119  ei'ted  Lctia. 

What  was  her  bustneas? — Below  stairs  in 
tbe  kitchen  ;  I  ni^ver  saw  her  in  any  other 
room,  but  ihe  eutci'  room  next  to  the  street,  anil 
1  waf  thtre,  all  the  while  sht!  w  as  there^  and 
afler  ibe  was  gone. 

Did  you  ever  see  her  in  the  ducbF^s'ft  bed- 
cbaniheri' — No;  the  work  she  was  employed 
about  was  dirty  work  ;  t  never  saw  her  clean, 
but  nasty r  and  could  not  eat  the  Tictuab  of  her 
dressing* 

Was  3'ou  there  befoi"**  VanessP^-Yes,  I  was 
in  the  house  some  time  before  her  gfrace  ciime 
(Iter,  to  help  the  upholdcri  and  to  carry  look- 
tu^-|r  I  assets  and  »taudi!« 

nTien  did  slit-  oiHiie  over  ?— ^he  came  to 
B1ill<h:ink,  but  1  know  not  when  she  eauie 
over  I  ftJy  lady  Peterboroug^h  ordered  me  tu  do 
what  I  did. 

Was  yon  servant  there  trt  the  duchess  before 
she  carac  over  ?^l  nevtfr  saw  my  lady  duchess 
before  she  came  tliere,  except  some  year^  be- 
fore at  Drayton,  when  h^  hvcd  witb  her. 

Who  hired  you  ? — I  came  there  by  the  lady 
Fttf^rb Droughts  order,  and  had  my  vietuaTs  ut 
my  lord  Pcterhomu|;^h^s. 

IVho  hired  you  ?— I  was  not  hired  at  all. 

How  long  did  you  live  at  Mill -bank  P— T 
lit ed  about  two  yearss  and  a  quarter,  or  some- 
what morOp 

What  was  yonr  nropi^r  bumness,  when  you 
lived  with  the  duchess  ? — When  the  ducliess 
went  abroad,  1  weni  with  the  coach  ;  and 
when  she  supped  or  dioed  at  bomej  1  kid  the 
fi«tb,  forks  and  s^oo^t 


X 


Mi 


I 


Did  you  ever  wart  above  itifliMi,| 
have  waited  abo^e  aiiair^. 

Who  waited  uiioii  tbe  dncbeis  in  Udm- 
ber  f_Fr«at^fl  kiiig'bt,  one  !;§u3ut,  tads 
8u!^nnab. 

L'pon  your  oatli,  did  yon "everMvlbftvtw, 
Helena,  ^  into  the  ditchei^'j  l)d-r^rii*«* 

I  never  once  saw  her  there  ull  [he  m  \ 
staid  there  ;  1  rubbed  the  bed-chtin^j^ftti 
long  rubbing-brush  ;  I  nercr  aw  imtm, 
nor  aboro  ttairs. 

Do  you  know  at  what  time  ft  vn  t^on 
tu  hf  e  witb  my  lady  duehmf-Ys;  K 
c^me  whib  1  was  there. 

Did  yon  liv^witb  the  ducbetiWS^it 
canae  to  Millbank  ?=-!  hv«i  fit  iht  otW  fits 
with  the  duchess j  but  &i  Miilboiik,  mi 
Dmyton. 

Uki  you  know  how  Vaness  left  tbe  doAa^ 
service;  and  why .^ — Yes,  upon  crtinpluill 
disorders,  and  her  ill  dressing  ibeitfinii 

What  disorders ?^There  were  omu ami 
the  door  tn  enquire  tor  her,  twice,  of  ram 

Did  yon  sec  the  fellows  ?— Y^  1  w* 
felbwt ;  they  came  to  the  door  in  the  M4 
the  eveiiioij/and  I  aoqusitited  tbe  duel 
itf  and  told  ht^r  grace,   I  did  nfat  Ihietk; 
lor  bef  bouse^  because  I  bad  tbt; 
silver  spotins  and  forks. 

W' hat  Bort  of  men  were  they  F—Oo««fi 
appeared  to  be  a  foulkaoldier  in  a  Mucfl*: 

lu  what  miinner  was  she  put  i^^t^ffkl] 
tbe    liousel' — Upon    these    com{4Aiau, 
duchess  said  she  would  turn  her  awty. 

Did  you  hear  tbe  duchess  say  so  f^YtL 

Was  that  before  the  trial  at  the  iMtik'  l^^*^ 
or  alter  1^- — To  the  b«s»t  ot  n>v  rL'inenilmiKf.i 
WHS  lietbre  tbe  t rial » the  latter  end  ot  UMt«^i 
or  the  beginning  of  January,  bnl  t  cauDOtkl ' 
positive;  1  think  it  was  the  litter  tdi 
December. 

Did  ihe  go  away  befbre  the  trial,  or  ncnf' 
1  think,  belore  the  trial,  bui  1  am  out  i'm' 
Yet,  at  Ibe  time  of  the  trial,  1  rf^aufnibcTt* 
ther  cook. 

Are  you  sure  of  that  f — Yes,  I  am  snrcrflf 
it  was  the  cuachuian^fi  wile,  one  Gosljtiis*. 

Do  yon  know  Rauj^eur  or  >Jicoh  ?— Nfl. 

Y^o  u  1  i  ved  a  t  M  i  1 1  ha  n  k  t%i  o  \  ea  ns ;  do  ft 
know  nn  Mich  tnan? — t  never  heard  hissiP 
before;  1  had  no  acipiaintaoce  with  biai,li 
ever  saw  bJna  about  house. 

Q*  Where  do  you  li?e  now? — .1.  Ne 
Huntingdon;    I  board  in  a  house  ibete. 

How  long  have  you  heeu  out  of  serrke?- 
Ever  since  1  let^  my  lady  duchess. 

How  do  you  live  then  f — ^1  boardinabiKW 
I  follow  no  employment,  but  liva  on  my  um 
except  to  teach  children,  two, three  or  fnur^* 
ot'cliarity. 

When  eauie  you  to  the  duchess's  scvti 
first  ?— I  served  tier  about  ten  or  twelve  vet 
ago;  hut  I  cannot  remember  the  predsetiiB 
jt  is  so  long  Evince. 

Mow  long  did  you  M?e  with  b^  jihrnf^ 


\ 


02 


end  his  DuehesSffar  a  Divorce. 


A.  D.  1700. 


[ISIO 


i  whb  her  about  half  a  year  at  Drayton  in' 
tliamptonthire ;  I  went  about  November, 
staid  to  Lady -day  following. 
low  long  was  it  before  you  came  to  lire 
I  her  the  last  time? — I  cannot  tell. 
Tou  aay  you  came  to  live  with  her  about  two 
ra  ana  a'qoarter ;    what  time  was  that? — 
lODOt  tell,  but  that  may  be  easily  found  ;   I 
d  with  her  about  six  years  ago,  or  thm- 
nU. 

low  long  did  yon  lea^e  the  duchess,  after 
hearing  came  on  in  this  noble  house  ? — I 
not  know  ;  it  was  about  a  year  and  three 
irtcrs,  or  two  years,  1  cannot  be  positif  e. 
•Vas  it  after  the  trial  began  .^— Yes,  I  think 
trial  began  in  January,  and  it  was  a  year 
r  it  began. 

^nnut  jf'on  be  positive  what  time  yon  came 
life  with  the  duchess? — I  came  about 
^t  to  Mill-bank,  but  the  duchess  was  not 
ne  then  ;  but  the  Clctober  following  my  lady 
heas  came. 

\\  here  did  the  duchess  live  then  ?— I  do  not 
»w,  I  was  at  the  lady  Peterborough'a)  I 
ped  her  aenrants  to  carry  Uiings,  and  to  get 
ipreadv. 

DM  youlcnow  where  the  duchess  lived  then  ? 
!fo ;  some  said  she  livctl  in  Flanders,  others 
Rollaod,  and  some  in  France. 
IVas   you    never   at   Vauxhall  while    the 
cbeaa  lived  there?— I  was  never  there  while 
tduchesi  lived  there,  if  she  did  live  there. 
Wt»  you  never  there  where  she  did  live  ?— - 
hen  nobody  lived  there  I  have  seen  the  house 
iCK  ttaey  said  she  did  live. 
How  ioDg  ago  is  tbat?->I  know  not  how 

aago,  but  it  was  in  the  sununer-time. 
m  caoie  you  to  take  notice  of  that  house 
m  than  the  rest  of  the  houses  in  Vaiixhall  ? 
ho  waa  it  told  yon  the  duchess  lived  there? 
1  think  it  Was  one  that  was .-— — .^ 
You  aai«i  the  duchess  went  sometimes  by 
Iter ;  dkl  you  go  along  with  her  at  that  time*? 
Yci,  1  did,  with  some  other  company. 
IVai  you  ever  sent  to  the  house,  to  fetch 
•ds  from  thence  ? — No. 
Who  went  with  you,  when  you  went  with 
e  duchess  there  ?— One  Mrs.  Boufflen,  and 
m  or  three  other  ladies. 
Do  ^-ou  know  sir  John  Germaine  ? — I  never 
ivhun  but  in  his  coach,  as  he  was  going 
big  the  street ;  I  never  saw  him  in  any  house, 
'lay  otiier  place,  sitting  or  going,  but  in  his 
Mch. 

Was  you  never  at  his  house  ? — I  never  was 
bis  bouse,  nor  any  place  were  he  lived. 
You  aay  you  were  at  the  duchess's  chamber 
rub  the  room  ?~Yes,  1  was. 
Did  you  not  see  Vaness  there?— No.' 
Can  you  take  it  uiion  your  oath  that  you 
te  aaw  her  there  r — No,  I  never  saw  her 
*c  ;  but  1  saw  Susan  Harrington  there. 
WbM  service  did  Siiisan  Barrington  do  there  ? 
tee  helped  to  dress  and  undress  her  grace, 
I  to  mend  liaen,  as  I  think. 
^bca  aaw  you  her  last  ?— It  was  about  the 
» IQih,  or  1 1th  of  August  laati  ftt  the  George- 
in  Huntingdop. 


Do  you  know  where  she  lived  then  t — She 
was  at  Huntingdon  then,  and  came  with  the 
lady  duchess  to  take  a  stage-coach  for  London ; 
she  was  at  the  George-inn  in  Huntingdon^! 
think,  about  August  last. 

You  say  you  lived  at  the  duchess's  house 
at  Mill- bank,  before  the  duchess  came  thither : 
did  Vaness  come  with  her,  or  was  she  hired 
after  ? — I  think  she  came  with  the  duchess. 

Do  you  know  whence  the  duchess  came, 
whpn  she  came  there  ? — As  I  have  heard,  sho 
came  from  Vaulhall :  when  my  lady  duchess 
went  thither  by  water  the  summer  after,  I  waa 
told,  that  my  lady  lived  at  such  a  house  in 
Yauxhall. 

Ditl  not  you  know  that  my  lady  duchess 
lived  at  Vaux-hall?— I  never  knew  my  lady 
duchess  till  she  lived  at  Millrbank. 

What  account  had  you  at  the  duchess's 
house  where  she  was  then? — People  said  she 
was  in  Flanders. 

Do  you  know  when  Vaness  came  to  live  with 
the  duchess  ? — I  believe  she  came  to  live  whh 
the  duchess  at  Mill- bank. 

Do  you  know  when  she  was  discharged  out 
of  her  service  ?— I  think  it  was  the  latter  end  of 
December,  or  the  beginning  of  January  ;  I 
think  so,  but  I  doa't  speak  positively. 

Was  yon  by  when  her  wages  were  paid  ? — 
No. 

Have  you  ever  seen  her  since  ? — No,  I  nerer 
saw  herVrom  that  hour  to  this. 

Where  have  you  lived  since  you  left  the 
lady  duchess's  service,  and  how?-  have  yon 
any  estate  ? — I  have  a  small  matter  to  Uve  on ; 
]  live  near  Huntingdon,  I  was  bom  near  there  ; 
it  is  my  native  place ;  I  have  lived  there  about 
liiur  or  five  years,  or  within  seven  miles  of  thai 
[ilari;,  or  thereabouts. 

Did  Vaness  dress  the  duchess's  dinner,  when 
she  lived  there ;  for  it  seems  she  was  not  good 
enough  to  serve  you  ? — Yes,  she  did  dreu  the 
duchess's  dinner,  hut  I  did  not  care  to  eat 
victuals  of  her  dressing. 

When  did  you  first  complain  to  tlie  duchess, 
that  men  followed  Vaness  ?  or  that  you  appre- 
hended danger  by  her  being  there?— I  cannot 
tell. 

Was  she  dischar^  immediately  after  that  P 
— I  think  she  was  discharged  immediately  after 

You  say  there  were  some  other  ladies  that 
went  with  the  duchess  to  Vauxhall ;  can  you 
name  them  ? — Mrs.  Marsluil,  and  some  others ; 
but  1  cannot  be  positive. 

Did  you  know  Mrs.  Briane  ?— No,  I  never 
heard  her  name  before. 

Did  the  duchess  eat  always  at  Peterborough 
house,  or  Mill- bank- house,  as  you  call  it? — 
Sometimes  she  eat  abroad,  and  sometimes  at 
home. 

Who  dressed  her  victuals  when  she  eat  at 
home  ? — Lena. 

What  do  you  mean  by  Mill-bank-house?— • 
Peterborough- house. 

Who  did  you  hear  say  the  duchess  lived  at 
that  house  at  Vauxhall  ?— The  duchi»  was 


w^ 


^m 


ISII]  12  WILLIAM  lU.      Prnctedingi  hetmen  the  Zhde  &fNorfi 

Did  you  kww  Thomas  H>«k 
frUow  M!r¥atit  ? — Y^,  he  eamc  i 
came  la  MiJMjank  ;  Mr.  P««<70elt 
Ihey  were  both  AerrmDts  together* 


g^tig  by  water^  anil  told  tlie  Udies  then,  tliat 
that  waa  ibe  Wnane  she  hskd  Ijf  od  iit,  at  Vaux- 
Itall  \  and  \«atking  in  the  garden  of  the  said 
|u»tm?t  told  them  m.  Jonas  Peacock. 

Feuhces  Kj«)iq[iT  Bwora,  deposeth  as  fuUo weth : 

£2:  How  bn£  have  you  lived  la  the  duch^ns 
of  NoH  61  k  's  f am  iiy  ?— 4.  Tff euty  tevcti  y  ear$  ^ 
or  iifiwnrds. 

With  whoTQ  did  you  live  all  that  ttme? — 
IVitii  the  bdy  duchess's  father,  the  kdy  Fe- 
Urborc^ughi  and  the  duchess. 

Did  you  hre  with  the  ditches^  when  the 
lifed  at  Atin-h«i]V?^Y«^p  t  hved  with  her  at 
her  fii^t  coming  ther«, 

H&reyoit  b^  with  her  ever  since?— Y*a, 

Hid  you  know  V^ness  in  the  duchess'^-s  family 
at  Aldl-Uank,  and  what  etnpioy  had  the  there  P 
— Ye«j  I  know  her  very  well  j  she  w«a  in  the 
Jiitcheti, 

Did  yon  use  to  he  in  I  ho  duchess'*  hed- 
ch&tnber,  and  shout  her  person  f — Yes,  I  was 
the  first  in  the  mom  tog  there^  and  tbt  last  at 
uight,  con$taii(ly> 

Did  you  know  Ehanor  Vaneas  th«re ;  and 
4id  she  die  to  eovue  into  the  duche«&*s  eh^m* 
bet  P— She  nefcr  came  then** 

Where  uaed  she  ta  emplo^f  herstlff^-In  the 
liitchea. 

Waa  she  well  enough  iit  eloathtt  cleanly 
eotnigi),  and  At  to  conie  inta  th«  duche««'a 
chaniUer  ? — No,  the  was  not, 

IVhat  time  went  she  aw»y  ;  mid  tijwn  what 
•coonnt?— My  lady  put  her  away,  betmuse 
■ohliers  came  and  asked  for  her^  and  sent  for  her 
to  ale^hou^es  about  t£!n  o'clock  at  itig^ht.  I 
went  up  one  niorntng,  and  complained  of  her  to 
toy  lady  duchess,  and  told  her  that  the  told icrs 
haunteu  her,  asked  for  litir,  and  sent  for  Iter  to 
Ale-^ houses  at  ten  o'clock  at  night :  and  my  lady 
duchefs  said,  the  wodld  not  ki^p  a  servant  that 
IteptililMora, 

-  Was  this  b«lore  the  trial? — Yea;  my  lady 
put  her  away  upon  my  speakings  this. 

Do  you  know  why  ahe  was  put  aivay  ?^— 
Y^en,  for  ha  dog  ioldiera  haunt  her  compDny 

Consider  well   what   you  wiy  F — \  ea,  i 
lords  \  I  apeak  what  my  conscience  tells  me 
Here  I  am  before  the  hpihy  I  must  speak  truth. 

How  far  <^I^  you  recalled  yourteif,  if  it  was 
before  the  trial,  or  not,  that  she  was  put  away  ? 
• — Ft  was  before  the  trial. 

How  long  ? — ^T  catinot  remember  ;  I  think  it 
was  about  a  quarter  of  a  year ;  1  cannot  tell 
exactly,  but  it  was  near  upon. 

Row  tfe«r  was  you  to  the  do  chefs  f  What 
was  your  employ  meat? — I  hdped  taget  her  to 
bed f  as  her  chamber-maid* 

Did  £haiior  Vanets  never  undresi  herP — 
^o^  uefer  id  this  world. 

Did  YOU  Dever  know  her  cotne  into  the 
^ehess  a  chamber  ? — NctcT;  never*  Oh,  Be ! 
never  inde^« 

Do  you  know  Nicholai  Hosier  P — I  don't 
kaow  fiim :  there  were  many  asked  for  Mr, 
'  Keetuer  i  but  I  diil  not  knoif  ibem,  for  he  has 
tnany  aciinaiiitaiice. 


my 


FrantefKni^ht  crostt-^mi 

Ywi  Bay  you  lived  twenty -sef^ 
upwards  with   the  duc^h^w  ami 
do  you  live  with  the tJudiess stilt: 

How  Jong  13  it  since  you  hi 
mother  ?^ After  the  ducliess  wg 
came  to  live  with  her  aiad  my  Ion 

Have  you  been  in  her  service  i 

After  the  duke  parted  with  my ' 
where  did  slie  go  to  live  f — She 
bauk,  and  no  where  ebe  that  I  kn 

Came  you  to  live  with  her  n 
marriage?  and  have  you  liv«d  i 
since  ?  and  did  she  ever  Hv«  at  ^ 
never  lived  with  her  at  VauithalL 

Then  you  have  not  lived  with  hi 
—  I  have  lived  with  her  ever  sit 
tak&ti  my  oath,  and  us  near  as  1  en 

Where  did  the  duchess  Hve  hel 
to  Mill  hank  ?--S^he  lived  at  Vaux 

Did  not  you  live  with  her  tin 
broke  my  le^,  and  wmb  brought  tf>  I 
and  staiil  ih^e  a  tw^lvemouth ;  fi| 
my  surgeon,  he  can  tell  it«  I  g 
speiik  the  trtith. 

Do  not  >ie  anf^. — No» 

Did  you  Gontjoue  wah  the  dm 
broke  your  l^  f— Ves^  and  wha 
leg-,  I  went  home  to  her  mother's* 

When  left  you  the  duchess  atle 
with  tuy  lord  duke  f — I  left  her  at 

Do  you  know  the  question  ih 
When  did  you  leave  the  iluclif 
p rte«l  w it U  t lie  d uke  F —  1  k  now  q 
tion  as  you  ask«  I  speak  the  trm 
1  can. 

Where  did  my  lady  duchess  g< 
lefl  her  ? — I  weut  away  lame^  ajid 
no  tervice. 

W  lie  re  did  you  come  In  my  I 
apin»  when  you  were  well  ? — kt  i 

Was  you  et  er  with  her  at  Yansl 
not  there,  becauie  1  was  lame. 

Was  you  ever  at  VauxhallF^ 
broke  my  leg* 

Was  you  ever  at  Vaurhalf,  or 
yoii  I  was  lame* 

Was  )'ou  ever  at  Vaiixl»ll  at  m 
tell  you  I  was  lame;  I  give  yo 
your  f|uestif>n.  I  tell  these  noUi 
every  word  1  i»peak  is  truth* 

But  you  are  swore  to  speak  (he  < 
— 1  »pe&k  the  truth*     Why  »hatM 

Was  you  ever  with  the  ducbiMi 
— I  was  not  able  lo  be  there  willi  M 

Was  you  there  with  her,  or  irt|f< 
able  to  go  thither* 

Was  you  neve?  there  F—1 
thither. 

Wns  yon  never  there, 
chess?-* No,  I  never 
lite,  bat  «l  Mill-bftDk  aad  ^ 


^f— IwiiJ 

ne.  Of  mi,i 
«as  at  Ta«l 


and  hit  DuAeUtfor  a  Divorce. 


A.  IX  1700. 


r4314 


am  in  thiaioterlinettioii  was  altered, 
^  over,  her  examinatioD,  Yea,  I  ha?e 
but  I  did  not  atav  there.] 
erer  there  with  the  duchess,  or  not  P 
there :   I  tell  you  I  was  nut  there, 

nerer  there  with  the  dnchess  at  any 

1  fell  von  I  was  lame :  1  was  nef  er 

le  dncness. 

IS  the  duchess  before  she  came  to 

-Tliat  I  cannot  tell. 

as  she  when  you  broke  your  le^;  ? 

at  Blill-hanlc  with  her  mother. 

d  you  find  her,  when  you  came 

onnd  her  at  her  motlier*8. 

>n  tell  where  she  >ras  in  the  mean 

noTer  told  by  any  of  the  family 
as  at  that  time?— No. 
IS  come  to  the  duchess  when  she 
bank?— Yes. 

f  did  she  live  with  her  aAer?— I 
but  a  short  time, 
now  Susannah  Barrington  ?— Yes. 

you  see  her  hst? — ^Abont  three 

i  in  the  duchess's  service  still  ?— 1 
the  truth  :  she  received  a  letter 
rs,  acquainting  her  that  her  mother 
he  If  as  very  much  afflicted  with  it: 
e  duchess  came  in,  1  told  her  iprace 
ad  received  a  letter  that  her  mother 
id  I  did  desire  my  Udy  to  ^^ive  her 
>  Holland ;  and  she  is  there. 
30  tlie  letter  ? — 1  saw  it. 
m  her  mother,  or  from  her  sister  ? 
IS  from  her  sister,  that  her  mother 

una  Harrington  in  the  duchess's 
.  this  bill  was  depending  ?— No. 
is  it  since  you  received  that  letter  ? 
three  weeks  ago. 
is  it  since  you  went  ? — ^A  fortnight 

»  her  any  time  these  three  weeks  P 

Fc  with  her  in  the  house,  and  did 
her?— She  has  been  gone  about  a 

low  Mrs.  Judith  ? — No. 

now  Mrs.  Briane? — I  have  heard 

it  am  not  acquainted  with  her. 

:av  discourse  with  Vaness,  when 

Aill-bank  to  live  with  the  duchess? 

r  liked  her  discourse. 

Ter  hear  the  duchess  say  that  she 

;haU?— No. 

low  sir  John  Germaine? — I  know 

er.  see  him  at  the  duchess's?'— No. 
never  see  him  at  Mill- bank,  or  at 
re  ?— No,  my  lords,  never. 
■  come  along  with  the  duchess 
le  to  Mill-hank  ?  or  was  she  hired 
JO? — She  came  afler  her  return 

)  went  she  away  ?— I  cannot  tell 
III. 


the  day;  that  is  a  hard  question.  She  wrnt 
away,  on  m  v  speaking  to  the  duchess,  that  she 
was  haunted  with  bad  company. 

Did  not  she  dress  the  dmnor  when  the 
duchess  dined  at  home? — Yes ;  but  she  i^ever 
dined  at  home  but  very  seldom. 

Cannot  you  tell  when  Vaness  went  away  ? 
—No. 

Did  you  know  Nicholas  Hosier? — ^No; 
I  know  no  such  roan.  There  were  m^ny 
people  came  to  Keemer,  lord's  servants  and 
others ;  I  do  not  know  such  people. 

You  have  heard  that  the  duchess  lived  at 
Vauxhall.?-.Yes. 

At  what  time  did  she  live  there  ?— I  cannd 
tell  von  ;  I  was  sick  iu  bed. 

You  may  recollect  about  what  time  was  it. 
^-I  was  fame  in  March,  this  month:  I  cannot 
tell  what  year. 

Do  you  know  what  house  she  lived  in  P-* 
Yes ;  It  was  one  sir  Thomas  Grosfenor's,  at 
Mill.bank. 

I  ask  you  what  honse  she  lived  at  at  Vanz« 
hall  ? — I  know  not. 

How  came  you  to  know  the  duchess  lived 
at  Vauxhall  ?— You  ask  what  I  cannot  tell  you. 

You  dare  not  tell.*- Yes,  I  will  tell  the  truth 
before  all  the  Honse  of  Lords. 

You  said  she  lived  at  Vauxhall.'— No,  I 
never  said  it 

Whence  came  the  duchess,  when  she  came 
to  Mill- bank? — Shecamo  from  the  place  she 
did ;  I  did  not  ask  her  the  question  ;  I  durst 
not  ^e  so  bold. 

Cannot  you  tell  when  she  came  to  Mill- 
bank?  nor  from  what  place  she  came? — I 
cannot  tell  the  day  when  she  came.  I  do  not 
ask  from  what  place  people  come. 

When  did  ^ou  know  sir  John  Germaine 
first?— I  saw  him  first  with  my  lord  duk^ 
there,  at  his  house  in  the  scjuare. 

Did  you  never  know  him  keep  company 
with  the  duchess.' — No,  but  only  with  the 
duke  of  Norfolk  there ;  I  speak  in  the  presence 
of  God.  (Signed)    Frances  Knight. 

William  WiirrE  sworn,  deposeth  as  followeth  t 

Q.  Did  you  live  with  the  duchess  of  Norfolk 
for  some  y^rs  past? — A,  IJived  with  her 
smce  the  first  waek  of  the  first  trial,  about  six, 
or  seven,  or  eight  years  ago. 

What  care  was  there  taken  about  the 
duchess's  door  in  the  park  ? — I  generally  went 
out  the  first  in  the  morning ;  the  door  had  two 
holts,  a  cross-bar,  and  an  iron  chain  besides, 
these  I  unbolted  every  morning,  and  unbarredi 
when  I  went  out  early. 

Did  you  ever  hear  or  understand  that  Hosier 
had  a  key  to  that  door? — I  never  knew  any 
thing  of  it,  nor  kuow  not  of  what  nse  it  could 
have  been  ;  fur  he  could  not  come  in  till  the 
door  was  unbolted. 

Say  positively,  whether  ever  you  bare 
heanl,  that  this  man  had  a  key  tu  that  door  f-^ 
I  never  heard,  of  it. 

Did  you  never  set  him  come  in  at  that  doorf 
--Yes. 

4P  ' 


12  WILLIAM  III. 


1315] 

;  How?  Upon  what  occasion? — I  happened 
to  be  goinir  out  myself,  and  to  open  the  door 
for  him.  His  business,  I  was  told  by  my  lady 
dac}iess*8  maid,  wasi,  that  slie  had  lent  money 
to  a  man  in  Holland,  and  she  wrote  a  letter  to 
be  carried  by  this  man  to  her  sister,  to  seX  this 
money ;  and  she  sent  another  letter  by  one 
Bully  to  carry  to  Holland,  to  get  the  money,  as 
she  told  me. 

Did  you  let  him  in? — I  unbolted  the  door, 
and  let  him  in. 

Did  you  find  that  this  man  used  to  come 
freely  to  the  house,  at  that  door,  by  any  key? 
—No,  I  never  knew  it. 

Who  did  he  come  to  ?— To  Susan  Barring- 
ton. 

Did  3'ou  ever  see  him  above  stairs  with  her  ? 
—No ;  he  might  come  in,  and  I  not  see  it. 

Did  the  ducbess  or  servants  say  any  thing 
that  he  had  leave  to  come  in  ? — I  never  exa- 
mined that,  because  any  body  that  had  business 
had  leave  to  come  in,  as  tradesmen,  and  others. 

Did  they  tell  you  in  the  house,  that  Hosier 
was  at  lihoiy  to  come  into  the  house  with  a 
key  ? — No,  never. 

Had  you  ever  any  discourse  with  Hosier  ? — 
I  was  one  day  coming  from  Change,  and  met 
Mr.  L'Estrange  and  this  Hosier.  L* Estrange 
told  me,  that  he  was  ill  of  the  gripes.  I  told 
him,  that  the  best  thing  for  it  was  burnt  claret ; 
and  he,  and  1,  and  Hosier  went  to  a  tavern  in 
Smithfield :  and  while  we  were  together.  Hosier 
reflected  upon  his  master,  saying,  his  master 
had  used  him  ill,  and  deserved  to  be  ill  used. 
Mr.  L' Estrange  heard  those  and  s(iinc  more 
words ;  Mr.  L'Kstran^^c  told  nic,  ihal  he  spoke 
to  that  purpose,  lie  \tas  resolved  to  Iv  revenged 
of  his  master. 

What  did  hf^  s:»y  of  liis  inasttr :'  — lli»  said 
his  uiuster  had  usvd  liirii  xmt  ill;  lie  lud 
many  tlirealuiinr  uo-ih;  lie  said  hi:*  master 
was  an  ill  man,  and  d(  mtvim!  to  lut  ill  i.scd.  and 
the  tinu'  woiiK!  vauu:  win  n  ho  sin  ii!d  n  [u.it  it. 

Wlirn  did  lit*  r-ay  the  so  \V(r.,!3?--  li  uas 
about  Miohailiu:.:;  tuo  y<  ai-s  a;;o,  oi  u  year 
ago,  I  canniii  tcil  \^hi(h.* 

Q.  Yoiisay  you  lived  vrah  the  duclioss  the 
first  week  ol'iho  f-r.-t  trial :  \\as  >  auoss  there  at 
that  time  ? — A.  She  was  j;one  hciore  I  canu'. 

How  lonj»  f — I  cannot  tt  II ;  I  never  saw  htr 
there,  to  the  best  ofuiy  ii-mrmhiauoo,  but  have 
heard  there  was  sm  h  a  one  in  the  lamily. 

Did  you  know  llohier  ;' — I  sa-  him  come  in 
at  the  back-door. 

Whose  servant  was  he  then  ? — TIil'  first  time 
I  did  not  know ;  liut  a  liiili.*  aftor,  I  was  told  |  and  all  the  servants,  and  asked  for  the 
he  was  sir  JcdiM  (lerini'iiK-Vs. 

What  occasion  had  he  to  come  to  the 
duchess's  house  i* — 1  Lncw  not,  but  about  the 
business  of  the  IctU'i*. 

How  oOeu  did  you  see  him  there? — Two  or 
three  timi*s,  ot-  mure. 

With  whom  ' — With  Su'ian  Banington. 

What  was  his  business  with  herV  About 
Ibe  money,  asslie  luld  lue.    He  vteut  along 


Proceedings  betooeen  the  Duke  ofNorfoUi     [13l( 

with  that  woman  ;  she  sent  a  letter  by  Inn; 
and  the  sent  letten  by  aome  other  Dotchaia 
into  HoUand,  about  the  niooey. 

Did  be  ask  ibr  any  other  serrant  ?— Not  dnt 
I  know  of. 

Did  you  see  him  above  stairs  with  ber?— 1 
nbver  saw  them  in  any  apartment  but  thtf 
place  beloWy  where  the  Inmber  b,  near  tk 
park-door. 

Do  yon  know  Susannah  Banington  ?-l 
know  her  very  well. 

Do  you  know  where  she  is  now  ? — Her  w- 
therdied  about  the  10th  of  January,  sndtha 
I  saw  her  all  in  tears ;  and  she  went  away  db 
this  account  of  her  mother's  death. 

When  did  you  see  her  last? — I  have  Ml 
seen  her  this  fortnight  or  month,  that  I  knv 
of,  that  1  conid  distinguish  her  from  sDolhtf 
woman,  except  she  bad  a  mask  on. 

How  longbefbre  this  trial  saw  yoo  bcr?- 
About  a  fortnight:  she  s^ave  me  an  sorart 
that  her  mother  died  the  lOth  of  Jaooiiy  ■ 
Holland. 

When  did  she  go  away  ? — I  did  not  take  »- 
tioe  of  the  time  she  went  away. 

Did  you  know  Hosier  at  any  other  piMeM 
at  the  lady  duchess's?— Never,  bnt  as  1  kR 
seen  him  in  the  park,  and  with  Mr.  L'Ertrafi. 

Was  you  never  with  him  at  sir  JohaGer- 
maine'sr — Never. 

Do  yon  know  sir  John  Germaire?-^AAff  I 
had  lived  with  the  duchess  sometime,  Ivli 
told  by  some  in  tlie  street,  tliat  that  wm  b 
conch,  and  his  livery,  and  that  he  was  the  ua 
that  there  was  .so  much  noise  about. 

Did  you  never  see  him  in  the  dacbsf 
house? — I  never  saw  him  in  no  partofiuybiT 
duchess's  house,  nor  in  no  apart  meat :  Jodl 
am  the  only  man  that  goes  up  and  down  suii 

Did  you  never  see  him  in  tnc  duchess's cto 
pany  at  any  other  place!* — No. 

liid  you  t-oustantly  lie  at  liu-  duchess's  hcust? 
— When  the  diiohi'-s  %\as  last  at  Dra}KX,  i 
lay  at  Hichmond  two  or  thrconi^'.ils. 

Did  you  lie  constantly  there,  uhcn  lbe<!B* 
chess  u.is  iheri'? — 1  u«»s  sick  ui^ar a ilKfflih 
and  all  thai  time  1  lay  at  :ny  wife's;  bntnof^ 
commonly  lay  at  the  duchess''"",  since  »be  * 
come  to  Duke-strctt  to  live. 

You  say,  you  used  to  open  the  door  io  ikf 
park  first  in  a  mornini;;' ;  \\  hat  timtr  diJ  vi'J  ^ 
to  open  it  at  ? — At  six,  seven,  or  citirht  o'clock 
in  a  morning;  there  was  no  certain  hour;  ba 
1  generally  opened  that  door. 

Did  you  ever  know  llnuseur  come  iniitff 

I  other  door  hut  that? — Yes;  one  wet  dijl* 

came  in  at  the  street-door,  before  the  jW* 


woman. 

Did  he  never  ask  for  any  other  bodj?-* 
never  heard  hun  ask  for  any  but  Stuan  b^ 
rington,  for  she  was  his  country -womia. 

If  Nicholas  got  in  at  the  park-door,  e^ 
not  he  get  up  stairs? — If  he  coulJ  (Bfii* 
that  door  he  talks  of,  he  could  not  get  ^^ 
duchess's  apartment ;  for  there  was  a  «••*'! 
twixt  that,  where  the  plate  and  jeweb  iajil** 


Mnd  Air  IhukiUpJor  a  Divorce* 


A.  D.  1700. 


[ISliB 


ioald  open :  that  if  he  oould  get  up  two 
Hin,  he  eodld  not  jfet  in  there, 
bad  a  key,  and  got  in  at  any  door,  eould 
in  Barrington,  when  he  came  in,  with^ 
difficulty,  lead  him  round  the  bouse? 
Qot  say  but  she  miffht;  but  T  never  saw 
It  below  stairs  wiw  that  woman,  and 
went  away  without  going  up  stairs, 
on  never  see  him  bring  any  thing  to 
ie?— No. 

lamed  one  L'Estrange,  that  you  saw 
n  at  the  tavern,  what  is  he?— ^He  was 
fellow-servant  at  the  late  duke  of  Nor- 

disoourM  had  you  with  him  then  ?— 
iplained  to  me  of  his  being  ill,  and  1 
n  the  best  of  my  advice. 

time  was  it  that  Nicholas  had  those 
ling  words  against  his  master  ?-^Abont 
en,  or  twelve  o'clock  at  noon, 
long  ago  is  it  ? — I  cannot  tell  if  it  be  a 
two  years,  it  was  a  little  after  Michael- 
it  wliether  it  be  one  year,  or  two  years, 
t  tell  ? 

1  not  Mr.  L'Estrange  tell?— I  asked 
Sstrapge,  and  he  couM  not  tell. 
le servant  was  Nicholas  then  ? — He  was 
I  servant  then :  he  railed  against  his 
it  that  time  for  turning  him  away, 
^ou  not  know  who  was  his  master  a 
two  ago  ? — He  told  me  he  was  out  of 

ou  not  know  him  to  be  sir  John  Ger- 
lervant,  when  became  to  the'ducbess's  ? 
not  know  it  when  1  first  saw  him  and 
igethcr ;  but  some  time  before  he  went 
heard  he  was  bis  servant, 
ou  say  you  did  not  know  sir  John  Ger- 
bout  two  years  ago  ? — I  did  not  know 
IS  to  speak  to  him. 

WiLUAM   WHfTE. 

w  ftiAC-DoNNBLL  swom,  ileposoth  as 
i'ollowetb : 

[ow  long  Iiave  yon   lived    with   the 

I  of  Norfolk  T — A.  Four  ^ears  at  Lady- 

U 

lat  manner  was  the  door  going  out  to 

:  kept  ?  Had  any  body  a  key  to  it  that 

,  of  the  family  r  Did  it  use  to  be  left 

-It  was  not  to  be  left  open  ;  it  was  very 

0  be  left  open  ;  besides,  it  was  bolted 
:ed. 

here  particular  care  taken  of  that  door  ? 
I  myself  bolted  it  very  often  at  night. 
ou  often  unbolt  it  in  a  morning  ? — Yes. 
her  or  hot,  the  time  that  you  lived 
id  yon  know  any  body,  that  was  not  of 
ily ,  come  with  a  key  to  o|ien  that  door  ? 

ou  know  Hausenr,  or  Nicholas  ?  Had 
'  to  that  dwri' — I  never  knew  it. 
ou  ever  see  him  come  in  at  that  door? 
ned  that  door  for  liim  once  or  twice 

1  rang. 

was  that  ? — In  an  evening. 


What  did  he  come  about  ? — I  do  not  know  ; 
but  he  asked  for  Susan,  my  lady  duchess's 
servant. 

Did  you  ever  see  him  go  up  stairs? — I  never 
did  hear  he  went  up  in  my  lite. 

When  he  asked  for  Susan,  did  he  go  up 
then  ? — No ;  I  called  her  to  him,  and  I  never 
saw  him  go  up  stairs. 

Did  you  stay  with  him  all  the  while  Susan 
was  with  him? — No,  1  had  no  business;  I 
went  my  way. 

Was  Nicliolas,  when  he  rung,  in  the  psrk, 
or  at  the  inner  door? — In  the  park. 

CroU'  Examined. 

Did  you  know  whose  servant  Nicholas  was  ?' 
— I  did  not  know,  nor  I  asked  no  questions. 

How  often  have  you  seen  lum  at  the 
duchess's? — ^Three  times. 

Did  he  always  ask  for  Susannah  Barring- 
ton  ? — One  time  he  asked  for  Mr.  Keemer. 

Who  was  Mr.  Keemer?-^He  was  the 
duchess's  servant. 

Did  you  use  to  stay  with  him  ?  or,  did  yoa 
leave  him  ? — No,  to  tell  you  the  plain  truth, 
I  thought  he  came  to  court  Susan,  and  did  not 
stay  with  him. 

Did  you  ever  see  him  up  stairs  in  Susan's 
room  ? — I  never  saw  him  there. 

What  employment  have  you  under  the 
duchess  ?— 1  am  her  footman. 

When  did  you  see  Susan  last  ? — On  Tuesday 
se'n -night  in  the  morning. 

Not  since? — No. 

Where  did  you  see  her  then? — At  the 
duchess's  house. 

What  became  of  her  after  that  ? — She  said, 
her  mother  died  latidy  in  Holland,  and  she  was 
going  tbere. 

>Vhen  did  you  hear  her  say  so  ? — I  lieard 
her  say  so  several  times  before  she  went  away ; 
a  month,  or  a  quarter  of  a  year,  before  she 
talked  of  going  to  Holland. 

Upon  your  oath,  do  not  you  know  that  she 
is  at  the  duchess's  ? — I  know  not  of  her  being 
there. 

Can  you  take  it  npon  your  oath  when  she 
was  first  wanting?— I  saw  her  on  Tuesday 
se'n- night  last,  in  the  morning. 

How  came  you  to  know  she  was  gone,  if  you 
do  not  know  the  time  when  she  went  ?^-I  did 
not  know  she  was  gone,  till  I  went  home  froin 
the  house  here. 

Who  told  you  she  was  gone?— The  ser- 
vants. 

She  was  there  when  you  came  hither  ?— -On 
Tuesday  morning  I  did  see  her. 

Has  the  duchess  another  in  her  station?— 
There  is  one  Mra.  (*aml>ell,  that  dresses  my 
lady  duchess,  but  she  does  not  live  there. 

Did  she  use,  in  Susan's  time,  to  come  and 
dress  the  duclicss  ? — Yes,  she  used  to  come 
sometimes. 

Has  the  duchess  taken  any  body  to  do  Su- 
san's work  ?--!  know  not  of  any. 

(Higaed)        3Iatth£w  +  Mac-Doniuu.. 


|319]  li  ynUAAM  m.     Proceedings  hetaeen  the  Duke  ofNar/M 


Mr.  RoBEBT  Welbodrn  Rwoni»  depoieth  as 
foHowelh : 

Q.  What  account  can  yoa  gire  of  Mr. 
li^Estrange't  havings  notice  to  be  a  witneas  ? — 
A.  I  was  told  by  tbe  dnchesa,  That  L*£strange 
liad  been  with  her,  and  gave  her  an  account  of 
Home  particulars  between  White,  and  him,  and 
Nicliolaa ;  that  havinpf  the  J<ripiug  in  the  guti, 
they  went  into  a  tavern  together ;  that  he  heani 
WliitG  and  Nicholas  talk  to^rether  very  loud, 
but  he  told  me  he  had  the  cfripea,  and  could  not 
to  well  mind  what  he  said ;  but  he  heard  him 
use  hard  words  against  his  master,  but  he  could 
not  remember  that  he  said  he  would  be  re- 
venged upon  his  master ;  but  he  would  recol- 
lect himsell',  and,  if  he  could  remember,  he 
would  say  what  be  could :  he  told  me,  he  had 
been  bred  in  the  Norfolk  family. 

Did  you  ask  Mr.  L'£$trange  about  this  mat- 
ter ?— Yes :  Mr.  L'Estranse  told  me,  he  re- 
inembered  they  were  tognlier,  and  heard  Ni- 
cholas si>eak  very  liard,  ill  words  against  his 
master,  but  he  could  not  be  positive  what  they 
were  ;  but  what  he  could  remember  he  would 
speak,  if  that  would  do  the  duchess  any  service. 
He  desired  my  lady  duchess  would  give  him 
notice  the  night  before,  aud  he  would  appear. 

Wheu  was  this  P — it  was  Tuesday  or  Wed- 
nesday ;  I  think  it  was  Wednesday. 

Crott'  Examined. 

Q.  Did  the  lady  duchess  tell  you  what  Mr. 
L'Estrange  said  ? — A .  Yes ;  tliat  uave  me  the 
occasion  to  speak  of  it.  lie  said,  lie  heard  Ni- 
cholas say  hard,  ill  wonls  against  liis  master, 
but  not  that  he  hi^ard  him  say  he  would  study 
to  he.  rt^reni^fd.  i'erhaps,  says  he,  there  mi^ht 
bo  some  other  words.  Tliat  he  was  in  the 
kitchen,  and  wonid  endeavour  to  rrcollect  who 
was  there  besides  ;  and  if  he  had  two  or  three 
days  time,  he  would  enquire. 

Did  you  let  him  know  you  was  concerned  for 
tlie  duchess  ? — Yes ;  and  he  told  me  he  would 
tell  me  what  he  could  say  in  tliis  matter;  and 
he  shuuhl  l>e  ready  (o  appear  a:  any  time,  if 
that  would  be  for  the  duchess's  advantai^e. 

Did  lie  lell  you  he  was  i;oin{*-  abroad  into 
Holland? — Not  one  word. 

Did  you  intimate  t(»  him,  when  the  duchess 
was  to  make  her  defence  ? — I  think  1  did,  but  I 
cannot  be  positi\e;  hut  betook  nu  notice  to 
me,  that  he  would  not  be  there. 

Do  you  know  Mr.  I^a  Kountainc? — Yes,  I 
know  one  La  Fountaine. 

Is  he  in  the  duciiess'ssenirc? — I  believe  not. 

Do  you  know  wl.eilier  he  is  at  j)ra}ion? — 1 
have  seen  bim  at  Drayton. 

Did  he  live  whU  .sir  Jolin  (icrmainc,  that 
you  know  of? — Never,  thi.t  1  know  of. 

When  saw  you  Susan  Barrintrlon  ? — I  c:\n- 
not  be  positive  ',  but  1  think,  not  tliii  month  or 
six  weeks. 

Have  not  you  seen  her  since  this  bill  was 
brought  in? — I*oyiti\rly,  I  have  no». 

Hor.iRT  U'eldou^n. 


Elunoe  MoirFOBT  sworn,  ilqioseth  ts  fc 

Q.  Tell  the  Lords  if  you  know  Nieh 
sier,  sod  on  what  account  yon  came 
him.— J.  This  Nicholas  lodged  two 
limes  at  my  house.  My  husband  was  i 
man,  and  he  was  a  Dutchman ;  Ibey ' 
brothers,  they  loved  one  another. 

What  know  you  of  this  man,  this  }4 
—My  husband  told  me,  that  this  nai 
las,  (1  did -not  know  no  other  name 
my  husband  told  me,  that  lie  had  a  i 
rob  his  master,  and  that  he  knew  n 
gold  and  his  jeivels  lay,  and  had  m 
keys,  and  would  watch'  bis  opportuni 
his  master  was  at  play,  or  oat  of  lot 
left  the  keys  at  her  bouse. 

Your  husband  told  you  so?— Yes, 
band  bid  me  seud  for  this  roao.     Hh 
his  lost  dying  words. 

Your  husband  had  a  sad  misfortune 
was  it  your  husband  told  you  so  ?-A 
was  in  prison. 

How  long  ago  is  thai? — About eigt 
years  ago  last  Christmas.  1  woukf  i 
your  tordships  think  my  husband  was 
man ;  he  was  only  condemned  and  • 
for  changing  ten  pounds  of  his  own  m 

What  were  your  husband's  last  dyiD| 
— He  desired  me  to  send  for  this  fd 
deliver  those  things  he  left  at  my  hous 
for  him ;  he  came,  and  had  some  k 
drawer,  that  mr  husband  tokl  me  ht 
there.  He  took  two  or  three  kevs, 
them  in  his  pocket,  and  looked  mii,Hitil 
countenance. 

What  did  your  husband  say  to  yo 
bid  me  give  Nicholas  ihc  keys,  and 
have  a  care,  and  keep  good  company. 

>Vhen  was  that? — A  week  or  a  1 
before  my  husband  was  executed. 

Did  you  acquaint  Nichcdas  with  wl 
husband  said  of  him  ? — No,  an'd  picj 
honours ;  I  only  told  him,  my 
char{;:e(l  me  to  give  him  those  keys ;  L 
in  trouble,  and  havinc:  a  gi-eat  many  • 
I  talked  no  further  wiib  him. 

What  <lid  Niebolas  say  to  you?— H 
out  of  countenance,  and  told  me  be»o 
and  see  mc  anotl»er  time;  but  he  ne 
so  that  I  did  not  see  bim  atraiu  till  I  sa 
I  the  Meuse,  an«l  then  he  toUl  me  ibai  I 
come  to  see  me,  but  he  never  did,  In 
shunned  mc. 

How  long  have  you  known  NicI 
These  rijjht  or  nine  yrars.  I  knew  b 
he  was  lootman  to  sir  Jolin  (iermaii 
knew  liim  when  he  was  his  gentle 
knew  him  when  he  went,  and  I  knew  I 
ho  came  :  be  is  like  a  soa-rat,  hew 
goes  ivhen  he  pleases.  1  ho|K'  in  God  i 
It  wiH  be  conoid*  letl  by  this  Hou«e,  tb 
fellow's  wimess  should  not  be  taknj 
great  concern. 

(Signum)    Elcanob  +  J 


Then   the  duchess's  coiin 


M 


A'.  H  'vmo. 


lim 


>X>OYTDel  may  be  examinett,  as  to  ttte  with- 
^mLWw^WMf  wJhieHes,  and  Ihat  it  be  taken  in  writ- 
er =  ifvhich  was  agret^l  to,  and  lie  examtoed. 
'  T  *  ^  1  ^o  the  dtiches9^5  counsel  proceedeil  to  exa- 
i  ^  >  <^  c»tt)er  witnesses,  and  their  cTidence  taken 
jBlmort-hand. 

Ttm^n  Mrs.  Pitts  being'  called  for,  and  not 
/f>e-4»iriDjf,  William  Giidfrey  bein^  sworn,  said 
^  t  H  a  ^  eflect : 

B.  %^r^nt  to  serve  Mrs.  Pitts  on  Friday  taorn- 
ks*  -  when  I  came  to  ber  house  there  was 
i»i^v3^f^\  A  woman  with  a  pitcher  of  water  went 
k  a^ketl  her  for  Mrs.  Pitts  ;  she  said,  she 
■  •ot  At  hnrae.  1  $]hewpd  her  the  order»  and 
tft  im.  «rnj>_v  of  it  upon  tiie  lahfe.  She  was  loth 
cs^iveit;  sbesaid,  tli.e  ]hdy  would  he  within 
^•icriclfr  The  woman's  name  was  Olivet.  The 
^^t.  a»  t^ht  I  went  again,  and  a  woman  came  out 
^^  «s^td,  Mrs.  Pitts  was  not  at  home.  Then 
««  si|)ake  in  French  to  me  :  I  did  not  under- 
Bpittci   bet.     t  lef^  a  note  for  ber  to  attend  this 

^J»t%««  the  duche$&'*s  counsel    prayed,  that 

-       agreements     between    the    duke    ai^d 

■«ioH^$$,  iu  1694,  may  be  read  out  of  the  deeds 
J^**5«^tsted  for  that  purpose  •  which  was  agreed 
^^»  «i^id  read  accordingly. 

March  5. 

*-**fcts  Neocs  sworn » deposetli  as  folio weth : 

t*   I  desire  Mr*  Negos  may  he  asked,  whe- 

tbe  duchess  of  ^iorfolk  did  not  scud  some 

'.  by  him  ?    The  words  I  do  not  eoofirie 

to ;   but  whether  the  rocssage  sent  by  him 

'  lord  duke  was  not  to  this  purpose  ^   that 

iihstaniiii^    the  articles,   she  desired   to 

rfVoni  his  If  race  in  what  manner  she  shouM 

and  I  hat  she  would  iye  governed  by  his 

tions  ? 

I  think  it  was  tnucb  about  the  lime  of  the 

action  of  ihe^ie  articles  the  duchess  sent  to 

Mr.    D»ti<rneviUe  was   counsel  for    the 

Hke,  ami  sir  Thomas  Powys  f)f  the  ihichess. 

Ir.  Longuf  ville  took  what  cant  he  could  ; 

^nii  when  Ihey  came   to  talk  of  their  Hvin^f 

^rprately,  I  took  it  oidv  to  l>e  an  apprehension 

^iid  fear  that  my  lord  duke  would  contine  the 

iucbess   lo  some    hooKe.     My  lady  duchess 

at  forme;     1  wuiied  on   ber,   and  she  ex« 

I  herself  very  sensibly  of  the  misfortunes 

'  tlie  duke  and  herself,  that  such  differences 

^•iKftuld  have  been  between  them  ;  and  she  was 

<|esirous  to  let  my  lord  duke  know,  and  desired 

» that  I  would  let  my  lord  duke  know  it,  that 

hm  would  avoid  all  company  that  should  give 

'^^im  any  otfence,  and   that  she  would  not  so 

much  a*5  pay  a  visit,  but  where  he  hked.     I 

arquaiiiied  my  lord  duke  with  somethintr  to  this 

pur|)Oie  ;   Im  she  often  said  to  me,  more  than 

mtce  or  twice,   that  if  she  bapftened   to  die 

tefore  my  lord  duke,  she  would  leave  him  her 

«atale;    aod  I  know  i  Save  said  so  to  my  lord 

^oke. 

Whether,  from  thst  time,  do  you  know 
4bit  the  duke  sent  any  message  of  complaint  to 
Hw  dttehesfr,  la  the  place  wber«  sbe  lived,  that 


he  would  have  )%er  live  in  any  olfaer  way  ?--I 
know  fK»thin^  of  that  matter. 

Do  you  know  whether  my  lord  dnke  ever 
desired  ber  to  come  and  live  wjih  bim?-^ 
never  beard  of  any  such  thing.  ' 

Did  he  ever  send  to  ber,  to  avoid  any  cotn^ 
p«ny? — I  never  beard  of  anv  such  tiling. 

Whether  bad  you  atiy  Jirectious  taattxtfd 
the  duke,  that  be  would  give  way  in  a  coa» 
troversy  between  the  duohess  and  a  noble  lonl 
of  this  boujie,  whether  be  would  wave  bis  pri* 
vdegef^ — I  have  great  reason  to  desire  sir 
Thomas's  favour  iu  this  matter;  I  know  not 
what  he  aims  «t.  J  was  calkd  to  the  bar 
before,  to  speak  the  truth  as  to  the  matter  of 
the  privilege  ;  1  know  not  what  he  means  by  it. 

I  mean  it  only  as  an  instance  of  a  ci^d  mra- 
sage  between  the  duke  and  ducbes^i,  owning 
tier  as  bis  wile,  and  that  this  was  a  messAg* 
that  besjioke  a  good  understanding  between 
them  ? — Wilt  you  have  me  to  give  an  answer 
to  sir  Thomas,  my  Ion  Is  f  1  confess,  the  duke 
did  send  for  me,  and  asked  me  how  the  seltli^ 
meut  and  agreement  were  betwixt  the  duke 
and  duchess,  because  of  this  matter  of  the 
privilege. 

1  did  not  mean  tliat ;  but  only  as  a  late  ttt- 
statice  of  the  duke^s  owning  the  duchess  so  ^r  f 
—When  the  duke  sent  jbr  me,  he  would  know, 
whetiier  by  the  agreement  he  was  obliged  te 
let  her  have  the  privilesje?  I  said,  I  under- 
stood it  so ;  and  though  be  bad  no  mind  to  do 
it,  but  as  he  had  waved  his  privilege,  in  the 
case  of  an  uncTe»  he  would  do  it  for  ber. 

What  would  have  been  the  consequence,  if 
the  duke  Jiad  not  waved  bi^  privilege  P  Wotild 
not  that  have  defended  her  from  a  suit? — That 
you  mav  make  use  of  as  you  please* 

8ir  Thomat  Pitwyi,  I  would  only  make  tins 
use  of  it,  as  an  instance  of  kindn^^ss  between 
the  duke  and  duchess,  Faahcis  NijGus, 

After  the  examination  of  Francis  Negus,  he 
bein^  heiore  sworn,  the  ducbeas^s  counsel  de- 
clared tJiey  had  finished  their  evidence. 

Whereupon  the  duke's  counsel  desired  to 
call  a  witness  or  two,  to  support  NicbolAs  Han- 
seur's  reputation.  Then  William  Allen  wa# 
sworn  and  examined. 

WiLLUM  Allen  sworn,  deposeth  as  folio wetb ; 

Q.  Do  you  know  Nicholas  Uauseurf — 
jL  Yes, 

How  long  have  you  known  bim  ? — ^Tbree 
years. 

Did  you  not  know  bim  before  that  time  ? — 
I  knew* bim  about  three  years  ago. 

Bb«1  you  any  deahngi*  before  tliat  time  ^— 
I  bad  dearmgii  with  him  when  he  Jived  wUb 
Mr.  Gerraajue. 

What  were  his  dealinf^t? — Ai  honeit  mml 
fair  as  any  man  could  desire. 

What  ofBee  bad  be  under  Mr,  Germaioe?*-* 
fie  was  cook  to  Mr,  Germaioe,  I  suppse. 

What !  was  heeoolt  to  bim  ?^^He  bought  id 
the  goods,  and  be  paid  me  faooesily  fi»r  wlai 
be  Mugbt 


Pf4Ke£idiiigs  bel^wem  iJu  DmU  gf  iVor^ 


Q,  What  trade  Brecon  ? — A,  A  butcher. 
1'beo  he  |i&i4  you  his  master^ft  monej  for  his 
tnaifter^A.  goods  ?• — ^Ves,  he  paid  me  very  ho- 

Wnen  saw  yoa  him  last?— I  saw  him  when 
I  was  sumuiODcd  her*?  by  the  ordtr  of  this 
imusf^i  hut  not  before  of  l&te, 

(Sigiied)       WiLUAH  10  Allen. 

The  duke's  contiBel  moved  fijr  copies  of  the 
etAminations  and joornala  ;  ubich  wnigranttftl, 
and  ihe  coiin^l  withdrew.    The  following  err* 
?  maile 


9  th 


It  is  ordered  by  the  Lordf  spiritual  and  tem* 
poral  in  [tarhanietit  aj»eiiitiW,  That  copjes  of 
the  exaniiiiftuoiiij  signed  by  the  wiitieaset 
tbii  day 4  abd  iLntry  In  the  journal*  be  delivered 
to  either  »ide ;  aoiK  that  the  exaioinatmns  lakeq 
this  day  in  shnri-h&nd  be  trau^ribed,  in  order 
to  be  te&A  to  ihe  wttneiaes  to-morrow. 

It  isordei^d  by  the  Lords  s{iiniual  and  t^m^ 
poral  to  parijatfieot  asieu^hled,  Ih^it  ta^ morrow 
it  twelve  o^dock^  thi«  house  will  proceed  to 
bear  the  exnmtnabous  t&keo  thii  day^  read  to 
the  witnesf^e»r  rebtit)|r  to  the  duke  and  doebets 
of  Norfolk  J  and  all  hnh  summoued  to  ar  tend. 

March  €. 

After  the  exarnifiatloo  taken  yesterday,  re. 

^  liog^  to  the  duki2  and  dtu!lie»8  of  Norfolk, 

*■  were  read  to  the  witneai&es,  and  they  signing 
them^  the  duoh^s's  couuift'l  tnovcd  to  hare 

copies  of  ihe  de(}o±iit|ou]j  t;\keii  on  dtfjer  side, 
lyid  then  withdrew. 

March  5, 

Mattebw  M4C*Donnei^  £woro,  deposetb  as 

Ibilowetb ; 

I  was  goiufr  to  Mr.  Strange**  housefand 
1  aaw  idy  lord  Howtird  of  Eiicrick  corntngr  li^ai 
fray,  and  be  weut  to  ihe  door  aad  kuocked^  I 
made  up  to  the  dtior,  and  a  girt  oiiened  the 
door.  Mj  lord  a^ked  if  Air.  Siraog^e  wa^ 
within,  and  &lie  -linsiv^red,  yes.  Theu  I  went 
lo  tbe  door,  aod  asked  if  Mr.  Stracige  wat  at 
borne  I  she  answered,  no,  he  went  away  ou 
Thursday'  I  Eu^ked^  by  pucket-tx^at,  or  how  ? 
jghe  said,  by  loag^sea.  I  Ihoug'ht  abe  told 
my  lord  he  was  witJiio,  aod  so  I  caiueaway. 

(^gOed  )  M  AITHIW  +  M  ACDONKBL. 

BicBARO  Mat  sworn,  depoB4>lb  as  folio weth  t 

Q,  Doyou  know  NicholajHauseur?-^J.  | 
never  saw  him  tdl  Suaday  fdrtoigbt  last< 

Where  aaw  you  him  tbeii? — At  my  lord  duke 
f)f  Norlblk's,  I  bad  a  command  froto  my  ford 
duke  lo  take  him  iu  tbere. 

Where? — To  lodge  hitn  iu  my  lord  duke^s 
lioustf :  I  am  his  houaehold- steward  ;  he  com^ 
Ifiauded  mt  to  provide  for  him  in  the  house. 

I  don't  desire  you  shotild  do  any  thing  un> 
bceomittg  to  mv  lord  duke ;  btil  you  are  upon 
jcuir  onth,  and  you  niust  tell  the  truth  f~^l 
will  freely  tell  what  I  kuow« 


IE* 

1 


Can  you  give  me  any  memaaA^m 
before  that  lime  ?*—l  new  warn  nf 
hitn  ttil  ibi^. 

Hath  he  been  ibere  everMC*?* 
made  profinoo  for  hiai  by  1^  fiie 
mandi 

Bo  yoQ  know  %  ftoea  ?  Wbm  I 
bef^?— Do  Sunday  was  foftnall  4 
t  bit  her  like w  be,  and  I  waa  ntwei 
care  for  her. 

Where  wss  she  lodged  I — In  fny  la 
house  io  St.  James*!  square. 

Has  slie  been  there  a  fortaqg^^ 
fortnlf^ht  last  Sunday^  and  oooitag: 
tend  She  Lords. 

Had  she  tbe  bbeity  of  dheboffKvii 
kept  close  ? — They  were  Icept  oaltr  li 
Btrett  themselves;  nobody  was  Jmk 
to  see  them  i  They  de»r^  to  be  ibtv 
than  any  place. 

Do  you  know  thai  those  |irap1flj 
sent  tor,  arid  bow  Jong  before  tbejf" 
I  was  oevf'T  prlf  y  to  any  thing  of  |p 
f  ha4  no  kooif  l?4ge  of  their  names^  m 
tbey  came. 

Do  ynu  know  of  any  moat:y  lunt 
their  roiuing  oier  ? — ^Not  one  oeoiiy. 

Do  you  know  of  any  reward  the^  ' 
or  are  to  have  ?^l  ku&w  noi  oi'  as 
they  bave  had,  or  are  to  have. 

Cimi«T«>»i£a  RiJnz  sworn,  depoi 
f^llowetli : 

Q.  Are  yon  servant  to  the  duke  of 
^A.  Ves, 

Do  you  know  Hauseur  ? — 1  have 
but  am  not  aci^uainted  with  him. 

Ruw  Long  is  it  siope  you  saw  bit 
within  this  tbrtnigbt. 

Did  you  not  see  him  at  any  time  fa 
^No,  lam  positife  of  it. 

Where  did  yoa  see  him  first] 
Jamea's. 

In  what  plage  there  ? — At  bia 
house. 

Hath  he  been  there  ever  mtkoe  F— ' 

Was  tbcr«  a  woman  called  ¥ai 
him  ?— Vea. 

Did  they  come  at  Ihe  jiame  time  f- 

How  lrtDgago?.^A  fonnjjfhtj  it 
not  M»  much. 

Had  tbey  the  liberty  of  the  bowa 
ootiee  where  ihey  v>ere  P-^They  bad 
go  where  tbey  pleased  < 

Did  tbey  go  abroad  since  lb 
there  f< — I  caonol  tell ;  not  to  my  km 

Do  you  know  wheibcr  tbey  went^ 
bouse  ujjou  any  occasiou  f-^Not  to  a 
led^. 

Who  brougbt  them  Ibere  ? — I  da  i 

Do  you  know  whence  they  eantef' 

Did  you  nnder^tand  where  t|i«f  h 
fore  ?' — NOf  1  am  a  stranger  to  tfieai 
never  ^w  tbem  before. 

Saw  you  ibem  wlian  ther  came  &r 
I  was  woi  at  home.  Can 


i 


and  kts  DuehesSfJhr  a  Divarei. 


A.  D.  iroo. 


[15116 


AD  CoTTEB  fworn,  deposeth  as  fol- 
loweth : 

e  you  serf  ant  to  the  duke  of  Norfolk  t 

s. 

a  know  Nicholas  Hauseur  ? — I  did  not 

n  but  since  this  trial. 


lonsr  ago  is  that  P — ^Aboot  a  fortnight. 
>u  know  where  he  bad  been  before  P — 
new  nothing  of  himy  where  he  was, 
t  he  was. 

Helena  the  Dutchwoman  with  him  ? 
the  woman  canne  with  him  since  the 
Defer  saw  them  befo^. 

00  nef  er  know  them  go  out  of  doors 
}y  came,  but  to  this  house  f— Ne?er, 
seise. 

Inroi^t  them  to  the  duke's  ?— I  know 

ee  came  they,  do  yon  know  ? — I  ean- 

ley  nef  er  report  in  the  house,  whence 
ne  P— No,  1  nerer  beard  where  they 
IT  how  they  bebaf ed  themselfes. 
m  know  wliether  ef  er  any  reward  was 
em  ? — No. 

«  he  may  be  asked,  whether  be  has 
m  before,  for  some  time  past,  within 
night  or  three  weeks,  more  or  less, 

1  in  Somerset  house,  in  ordel*  to  this 
rhe  thing  is  this  ;  I  was  one  nijght  at 
t  bouse  with  my  lord  duke,  betwixt  six 
n  o'clock  ;  but  I  cannot  tell  how  long 
itherit  be  three  weeks  or  a  month ;  it  is 
f  that  I  know. 

were  you  there  about  T^A  went  there 
r  k>rd  duke. 

your  oath,  was  there  anv  thing  then 
ne,  relating  to  this  trial  r— -Upon  my 
lid  not  know  but  it  was  concerning  my 
irardofEscrick. 
le  there  with  the  duke? — ^Yes. 
Ott  know  who  they  went  top — No. 
your  oath,  do  not  you  know  whether 
at  to  Madam  Pitts,  or  no  P — ^They  went 
house,  but  1  do  not  know  her  name 
otto. 

Jiere  any  body  else  there,  but  my  lord 
nd  my  lord  Howard  P— God  knows. 
I  doke  called  me  to  the  door,  and  sent 
a  message;   and  1  went  and  came 

M  yoa  see  there  when  you  came 
-I  saw  none  but  my  lord  duke,  and 
tfmt  I  did  not  kneiw. 
lid  you  see  ffo  in  P— None  but  my  lord 
id  my  lord  Howard. 

Edward  Cotter. 

*■  Hdddlestone  sworn,  deposeth  as 
followeth  : 

lOB  yonr  oath,  do  yon  know  of  any 
I  Rbting  to  this  trial,  that  hath  been 
•ne  time  pastP— il.For  meetings,  I 
It  any  thing  of  them.  . 
M  nndentand  the  questioD  P— I  know 
of nj  niMingi. 


Hare  yon  not  been  at  any  plsice  where  any 
thing  has  been  done,  relating  to  this  trial, 
against  the  duchess  of  Norfolk  r— 1  do  not  un- 
derstand any  thing  of  the  trial.  I  know  no- 
thing  of  the  duchess  of  Norfolk. 

Fny»  give  a  positif  e  answer :  Hare  you  not 
been  present,  or  do  you  know  of  no  meeting, 
relating  to  the  proceedings  against  the  duchess 
of  Norfolk  ? — I  Defer  was  at  no  meeting. 

Who  do  you  lire  with  P — 1  live  with  my 
lord  Howard. 

Was  you  efcr  present  at  Somerset^honse, 
where  my  lord  Howard  and  others  met  ? — I 
hafe  been  at  Somerset- house,  but  know  no- 
thing of  any  concerns. 

1m>  you  know.  Vaness  P— I  know  no  sach 
person. 

Do  you  know  Nichohisf— I  do  not  know 
him. 

Pray,  answer  positif ely;  Do  you  know 
one  Nicholas,  called  Hauseur P — I  know  se- 
f  eral  of  that  name,  but  I  know  not  who  you 


1  mean  one  that  lif  ed  with  sir  John  Ger- 
maine.— I  know  him  not ;  1  nef  er  had  any 
oonf  ersation  with  any  body  that  lired  with 
sir  John  Germaine. 

(Nicholas  called  in.) 

Q.  Did  you  see  any  such  man  as  appean 
here,  at  Somerset- houie  f-^A,  I  know  no  such 
man  as  is  called  Nicholas  Hauseur :  I  know 
seferal  called  Nicholas,  but  none  of  the  Han- 
seurs. 

Look  upon  this  man  ;  hare  you  seen  him 
before  or  not  P — Yes ;  I  hafe  seen  him  twice 
or  thrice;  but  I  knew  not  who  you  meant 
before. 

How  long  is  it  since  yon  saw  him  first  ?— 
About  a  fortnight  ago. 

Hafe  you  not  seen  him  at  Somerset-house  P 
— Ncfer. 

Where  did  von  see  him  ? — In  Gefrard-street. 

Was  that  all  the  places  you  saw  him  atP— I 
saw  him  no  where  else. 

Whose  house  did  you  see  him  at  P^-At  cap- 
tain Soames's  lodging. 

Did  you  not  see  a  Dutehwoman  there, 
one  Helen  Vaness  ?— There  was  a  woman  widi 
him,  I  do  not  know  her  name. 

Did  you  not  see  her  at  captain  Soames's  P— 
She  was  with  this  gentleman  there. 

Did  you  see  her  at  no  other  time  or  place  P 
—No. 

Who  else  was  there  then  P  —  Captain 
Soamcs,  my  lord  Howard,  and  one  or  two 
more.  I  was  but  at  the  door.  I  hare  seen 
this  man  go  in.  I  was  but  a  footman  waiting 
at  the  door.  1  knew  not  the  otbers  that  were 
there. 

Did  you  know  no  more  that  were  there?— 
My  lonl  Howani  was  in  the  house,  but  I  know 
not  if  he  were  with  them. 

Did  you  er  er  see  Helen  Vaness  before  that 
time? — I  hafe  seen  the  woman  since,  but 
ner er  saw  her  before. 

Did  you  aercr  tee  her  any  where  else  P*^- 
k 


IflST]  12  WILLIAM  IlL      Proeeidings  hlmm  the  Duke  qfmrfM 


Nef  ttT  any  where  eise  bul  al  ttits  bause^  going 
and  coming'. 

ITi^  counsel  beingf  witlidrawii,  the  Miowtnt; 
CH^era  were  made  :  That  copies  of  the  €xami' 
ntlmck,  rt^ad  to,  aud  ligntHi  by  the  witnesses  to- 
day^ be  delivered  to  eiCher  slide.     That  tbb 

Bouse  wjH  peremptorily  praceetl  to  hear  ifie 
fluke  of  Norfolk**  and  tlochesi  of  Norfolk's 
coansel,  to  sum  up  the  evideoce  on  botb  sidesi, 
on  FHiiay  next,  sud  aU  the  Lords  summotied 
td  fttbend. 

The  ETideoee  haviog'  been  aymmed  up,  the 
Lordsf,  after  a  tong  debate,  ^od  a  diiiaioo  of  the 
Ifouse^  comoiitled  the  biJl,  by  a  majority  of 

WUereupoQ  the  duelieis  i  in  mediately  prefer* 
red  the  Pelition  recited  in  tiie  Order,  March  Q. 

March  8* 

Upon  reading  tht  Peiition  of  &Inry,  i!tieUes« 
of  Norfolk,  shewiog^,  ihal  by  the  Bill  qow  de- 
pendioc;  for  dissoLf  iog^  the  marriage  belweeu  the 
duke  of  Norfolk  and  your  Petitjosier,  her  join- 
tare  and  marriage- aj^reements  are  to  be  set 
^Lside^  and  other  things  m  the  Peiitioo  mention* 
ed,  and  pray  Jog.  to  be  heard  by  ber  counsel, 
toutrhitig'  til  a  several  cTarms  and  interest,  and 
ii«v^eral  daiMes  in  the  Bill :  It  is  ordered  by  the 
Lord 3  si»iriiual  and  temporal  in  parliament  as* 
itmhled.  That  the  Petitioner  shall  be  heard  by 
ber  eouQsel  lo* morrow  at  eleven  of  the  clock, 
at  the  Committee  of  the  whole  Houie^  to  ivbom 
the  said  Bill  stands  eommitted ;  at  which  time 
she  is  to  produce  ber  itaid  marriage  agreement 
and  writiugSf  as  in  the  Petition  is  set  forcb  i  at 
which  time  the  ddke^s  counsel  may  be  preseiU^ 
i£  he  tbiok  fit.     Mattu.  Joun^o^,  CL  Pari. 

Upon  which  an  Order  was  made  for  eounsel 
to  prepare  a  claitae  for  tfte  lO^OOOl 

The  duch^s^s  couomI  harini^  refused  to  join 
in  drawing  any  clause,  though  they  advised  a 
Petition  smout  the  jointure  and  marriage  agree- 
tneut^  the  duke^s  prepared  a  clause,  to  n  liich 
the  Lor^lfi  added  a  few  words,  and  passed  it  as 
in  tlie  BdK  The  Bill  being  sent  dowQ  to  the 
Commons^  the  duchess  presented  the  follow- 
ing Petition : 

T^  the  Honoarable  the  Kuigbti,  Citizens,  and 
BurgesseSi,  in  Farliament  assembled^ 

The  HuMBtE  PETITION  of  Mjiar, 
Duchess  of  NoaFOLK. 

**  Sheweth, 
"  That  for  putting  an  end  to  all  dlffereuces 
between  the  duke  of  Norfolk^  your  Petitioner '« 
husband,  and  your  Feb  tinner,  several  articles 
of  Agrf cement  were  entered  into,  and  escecnted 
in  April  1694^  by  the  said  duke,  your  Petitiooer, 
mnd  your  Petitiooer's  late  father,  the  earl  of 
Peterborough,  whereby,  and  by  dee<ls  executed 
pursuant  thereuntil,  die  duke  had  bis  then  de- 
mred  advantage^  and  bath  fully  enjoyed  the  be^ 
oefitthefeof:  That  your  Petitiooer,  alK)ut  ibe 
umt  of  pffrfectiog  the  ^yi  ^ee^  sigoitied  to  the 


said  duke  by  Mr.  Negus,  that  $h«  ttio<l| 
rt^adily  comply  with  all  sueb  or^JersM 
of  livtng  and  coor«*r6atioii,  as  lie  sjiii 
fit  to  appoint.  Notwithstaodiqg^  wid 
without  ever  signifying  any  disn&fiitii 
or  with  your  Petitioner »  and  witliuotii 
ner  of  aotice,  or  previous  prciceediugig 
mouand  ordinary  course  of  ju8tict,3 
from  your  Petitioner  thai  kgal  trial! 
clesiaatical  court,  which  by"  the  km 
realm  (ah  «he  is  ail  vised)  she  h  eoui 
did,  on  the  tOih  of  February  last,  eshi 
in  the  House  of  Peer*,  intituled,  *  i 
^  dissoli^e  the  duke  of  Norlblk^s  nism 
'  the  lady  Mary  Moi^launt,  and  ta  eo 
'  lo  marry  again  J  t^pon  which  the 
ings  were  so  very  quirk,  two  ^'itum 
brciught  from  beyoful  the  seas  hm«m 
examined  against  your  PetitioDer^ 
Petiiiouer  charged  with  facts  ^^?f^ 
committtrd  many  years  since,  and  i|| 
the  date  of  the  said  articled,  coqid  id 
pared  to  make  her  dc?feiice  as  she  in 
done,  if  the  proceeding  had  been  if 
according  to  the  kiioivn  laws  of  the  i^ 
places  of  abode  of  the  witne^^dj 
agabst  her  being  yet  not  knowu  ari 
to  your  Petitioner ;  And  your  PeiitiM 
notice^  that  the  said  Bitris  passed  M 
Lord^,  wd  seut  down  for  the  c«M 
tbia  honourable  House^  .J 

**  Vour  Petitioner  prays  siie  may  M 
her  couDsel  at  law  and  ontf  civil»aa  i| 
said  BUI,  be  tore  any  pn^Cfedings  be  hk 
by  this  boDOurable  House:  and  your  J 
shall  pray ,  &c.  M^a  v  S(a 


A  day  b^iog  appointed  by  the  Hmtn 
mons  tor  Lhe  Gomioittee  to  proceed, 
caused  the  Papers  following  lo  be  pnib 


THE 

DUKE  OF  NORFOLK'S  U 

WITH 

REASONS  FOR  pksBmc  nts  Bl; 

If  want  either  of  precedent  for  a  |» 
ary  divorce*  T^etonc  going  Utrough  tb 
and  ineffectual  fnethods  of  Dodoa  C 
or  of  demonstration  of  tact,  have  bil 

f»nved  the  duke  of  Norfolk  of  that  ici 
lis  wife's  aduUery,  which  the  difii 
lows  ;  the  late  statute  made  ia  ifas  I 
and  the  coming  in  of  two,  who,  while  tl 
former  Bill  was  depending,  had  b^mM 
to  prevent  that  discovery  which  thifi 
cannot  but  be  thought  to  remove  IJII 
against  an  act  of  parliament,  iuA  t^} 
benefit  of  the  duke,  but  of  the 
means  to  preserve  the  inheritiooi  I 
an  office  and  honours  to  persons  of  i 
ligion. 

Aud  since  bisbOp  Cnsens^s  4   _ 
lord  Hosse'S  Cascj  has  pavle  tt'i 


'3 


and  his  Duchess^Jt^r  a  Divoroe. 


A.  D.  170a 


[ISSO 


cinoM  which  tB^orern  the  spiritual  court 
u  nutter,  are  but  the  remains  of  popery  ; 
D«f  can  be  now  requisite  to  satisfy  the  most 
•nloufl  of  the  reformed  religion,  but  to  set 
lake's  proolii  of  bis  lady's  adultery  in  a 
iffht 

•  reputatioD  which  the  duchess  had  main- 
i,  of  wit  and  discretion,  made  it  di6firult 
any  to  beliere,  that  she  could  be  surprized 
t  very  act  of  adultery,  as  had  been  for- 
f  proved.  And  thoug^h  it  then  appeared, 
Mie  Henry  Keemer  lived  with  the  duchess 
t  she  went  by  a  feifi^ned  name,  at  a  house 
for  her  at  Vauxhallhy  sir  John  Germaine's 
icr ;  and  that  Nicola,  who  then  lived  with 
»ho,  used  to  receive  wood  sent  from  the 
CSS  to  sir  John's  house  by  the  Cockpit;  the 
■rawing  of  Nicola,  and  carrying  with  him 
>atcb  maid,  equally  entrusted  with  the  se- 
en sir  John'p  side;  loft  no  evidence  of 
constant  conversation,  but  Keemer  since 
f  and  Susannah  Harrington,  who  had  the 
;ruat  from  tlie  duchess, 
eemer,  though  very  unwillingly,  some 
■since  confessed  his  living  with  the  duchess 
'aoxhall,  where  he  pretended  she  was 
led  to  conceal  herself  lor  debt ;  and  what 
B Susannah  had  in  the  secret  was  unknown, 
iioola  appeared :  Nicola  coming  into  Eng- 
some  time  since,  in  expectation  of  a  ser- 
,  eipressed  his  readiness  to  discover  what 
«w,  and  to  endeavour  to  bring  with  him 
Doteh  maid. 

hi  proves,  that  for  two  months  the  first 
■ar  after  the  king  came  (or  England,  sir 
I  Germaine  and  the  duchess  lived  together 
MB  and  wife,  and  were  seen  in  bed  together 
utif  Mr.  Briane,  and  his  wife,  sir  John's 
f ;  and  that  Nicholas  Hauseur,  sir  John^s 
Ida  chambre,  used  to  be  assisting  to  him  ; 
Im  duchess's  woman,  Susannah  Barringtou, 
to  her,  at  going  to  bed,  and  rising, 
he  proves  the  like  convosation  at  Vauxhall, 
the  duchess's  house  at  the  Mill  bank,  till 
doke's  first  bill  for  a  divorce  wais  depend- 
I  within  which  time,  Nicholas  Hauseur, 
lir  John's  order,  carried  away  her  and  Su- 
th  Barrington,  with  intention  of  going  for 
had,  to  prevent  their  beinjif  examined  to 
1  they  knew  ;  but  the  wind  proving  con- 
r,  they  could  not  go  till  the  bill  was  re- 
d ;  and  then  sir  John  fetched  back  Su- 
■h,  who  was  most  useful  to  the  duchess ; 
iaosear  went  for  Holland  with  Ellen. 
B  eonftrms  Ellen's  eviilence  in  every  par- 
ir ;  and  besides  the  persons  mentioned  by 
i»  aa  privy  to  sir  John's  lying  with  the 
SH,  names  sir  John's  brother,  Daniel. 
olas  having  been  found  very  trusty,  his 
^  sent  for  him  to  return  to  his  ser- 
9  and  gave  him  the  opportunity  of  prov- 
the  <yMitinuance  of  the  same  adulterous 
BTsatibn,  at  several  times  and  places,  from 
Ummer,  1693,  to  the  S6th  of  April,  1696. 
^Wcars  be  had  afUr  his  return  to  sir  John's 
unseen  them  in  bed  together  at  sir  John's 
«  al  the  Cockpit,  and  at  the  dachess's 
t>L,  Xllf. 


house  at  Mill-bank,  and  where  she  now  lives ; 
and  iiRed  to  be  let  into  the  duchess's  apartment 
by  Susannah  Banriofi:ton,  or  Keemer.  Nor 
can  any  man  who  shall  read  the  testimoniaU 
given  Mr.  Hauseur  by  sir  John  ;  hy  the  last 
of  which  it  appears,  that  he  served  Inin  faith- 
fully as  his  steward  ;  reasonably  question  Hau- 
seur's  credit. 

Another,  who  had  been  advanced  by  sir  John 
from  his  footman  to  Mr.  Hauseur's  place,  and 
from  thence  to  a  good  office  in  the  excise,  very 
unwillingly  conBrmed  the  testimony  of  Hau- 
seur and  the  Dutch  maid,  not  only  as  to  the 
time  of  their  going  from  the  service  of  sir  John 
and  the  duchess;  but  though  being  no  fo- 
reigner, he  could  not  so  easily  be  sent  away  to 
prevent  discovery,  and  therefore  was  not  let  so 
nr  into  the  secret  as  Hauseur  and  the  Dnteli 
maid ;  yet  he  swears,  the  duchess  used  to  come 
masked  to  his  master's  house;  that  he  has 
gone  with  him  as  far  as  the  Horse- ferry,  to- 
wards her  house  at  the  Mill  bank ;  that  then 
his  master  sometimes  lay  out  all  night,  and  the 
next  morning  he  has  carried  Unnen  and  cloaths 
for  his  master  to  Keemer's  house,  or  Keemer 
has  fetched  them  from  him:  and  this  he 
proves  to  have  been  since  the  rejecting  the 
former  bill,  and  about  five  years  since,  when 
he  was  succeedeil  by  Hauseur,  as  before  ha 
had  succeeded  Hauseur. 

Two  other  foreigners,  La  Fountain,  who 
lived  with  sir  John,  and  was  served  with  sum- 
mons at  the  duchess's  house  at  Drayton,  and 
Hugonee,  who  ran  away  from  the  lord  Ha- 
versham's  since  summons  was  taken  out 
against  him,  seem  to  have  had  the  same  trust 
that  Hauseur  had;  for  both  declared,  That 
nothing  should  oblige  them  to  betray  their 
master's  secrets:  one  said.  No  court  cdukl 
dispense  with  an  oatli  of  secrecy ;  and  both 
declared,  they  would  immediately  go  beyond 
sea.  Sumnoons  have  been  taken  out  for  Mr. 
Briane  and  his  wife,  and  sir  John  Germaine^ 
brother  (who  are,  or  lately  were,  in  town)  to 
confess  or  deny  what  Nicola  and  Ellen  ap|ieal 
to  them  for ;  and  it  cannot  be  imagined,  that 
sir  John  should  chnse  the  liouour  of  being 
thought  to  have  to  do  with  a  duchess,  before 
:  the  clearing  her  and  himself  from  the  imputa- 
tion, by  bringing  his  relations  to  disprove  the 
I  charge,  if  what  is  sworn  to  be  within  their 
'  knowledge  is  false. 

And  if  sir  John's  vanity  should  prevail  with 
him,  at  least  it  is  to  be  presumed  that  his  rela- 
tions would  be  more  just  to  him  and  the  lady, 
thau  to  sufl'cr  any  thing  to  pass  against  them, 
which  they  could  with  truth  and  justice  prevent. 

But  since  none  of  them  appear,  the  world 
will  believe  their  alisentiiig  more  than  a  thou- 
sand wimesses,  in  coufifination  of  what  Mr. 
Hauseur,  Ellen,  and  Bayly  have  sworn: 
i  whose  evidence  not  only  stands  untouched  by 
•  any  thinfl^  offered  by  the  duchess's  wiinessea, 
but  is  plainly  confirmed  by  them  in  the  princi- 
palparts. 

I     This  being  the  natura  of  the  proofi^  it  i»  ob- 
;Ue» 

4a 


^1^5 


w 


^^^w 


1331}  12  WILLIAM  III.     PrMmtinpitth^en  Ihe  DiibrfS>,rfi&    [W 


I 
I 


1.  Tliat  th^re  DCfer  yet  wis  aoy  casf  of  tbjs 
kitidf  wkert*  ihe  evidence  Wi**  not  [tai>te  lo 
grt^ter  c>l>jectioDs  tUao  can  be  mada  to  iUia. 
,  Thmigb  m  tli6  tat^M^t  casi;;  of  ib^s  kiriil,  there 
WHS  full  (»!nviciioti  of  the  lady's  Uairb^  cbil- 
(lf*i>»  i*hiW  she  lived  separate  from  Ltr  lius- 
ttx^udf  mill  it^e  presumption  iros  ^ery  VioJeat 
fvhoftiA  tlie  children  uere;  yet  thii  waa  but 
pii»Uiii|vlionf  VLfn]  til  at  was  ^teakened  by  the 
Dre«UfUplHii)  iu  law  that  they  were  ttie  hus- 
Oftud^n;  ^^peciatt)',  siDCe  there  was  no  direct 
prufif  of  lUii  loTer's  ever  lyittAT  wjtJi  her, 
.  fi,  Thfiygh  in  ihnt  case^  by  itfailoo  fjfthe 
inlirrf  Hi  of  t>iiFliaiiivJrvf ,  nod  fear  oi'  the  deaibi 
l>f  witnemst.^^,  a  suit  wiu  bc^uu  in  DtM^toi-a- 
Cfiiutucins,  it  tvem  tukcu  lixiifi  ihi*nce  whii«^  the 
jfuit  was  «l*'j>*'Ddiiii^  j  lbert:i<>re  that  was  mLlier 
uii  tihjectiijrii  aj>^iniit  firric*fe4i«g  in  jmrliami^rtiti 
Uimn  04)  an^UHieiil  tor  iL 

5.  In  thai  case,  seier^l  wHrit^sstrs  wi?re  exn- 
miiit'd  al  the  btirs  of  balli  Ilnusvis,  who  had  not 
WlVI€3eiimiaed  at  Doetora-CoDimoD^f  nor  atty 
410^  given  of  iheir  uatnes  huf(»re  their  exa- 
luinatitjii, 

4.  U  up  pears  by  that  CBse^  aod  th^  pre^rfit, 
lliiit  tJie  vxfluiisialioiifi  in  parliftnictit  are  mmt. 
ftolenvn  dnd  tettJiin  tbftti  ihouc?  of  tbes|urittial 
€omi ;  uUirh  dL'(H.'nd  Ion  much  upon  ihe  hu- 
HeMy  of  the  rc^^istrr,  ot  bi$  dt^pnty . 

^'  H*^fore  Ihrtt  cnse,  |iiarliuiiieil^  liftTO  eith^'r 
brukrn  throngh  thf^  rahs  ^hir.b  bind  the 
s|nntti»1  ix^iiri,  as  in  tbi;  case  ol  tbi;  tluke  uf 
Norlolk^  Eliz.  where  the  pfkHiaTnenl  mtiHeJ 
the  itiattiaf^Pi  a^s  inwfnl  according  to  OiMi'B 
law  J  ibuo^'^h  protrat-M  and  kited,  hy  n^«son 
of  certaiu  decrees  aud  canona  oJ  lb«  Fope'ii 
law  *j  or  else  have  dissolved  a  mnrri^^e  wb^re 
there  had  beeo  no  apphcutifui  to  Duel  Mf!§^  cam  - 
ttioiis,  u&  it)  the  coMe  of  jMra*  Wbnvton,  who 
had  heeu  iii«rneil  tn  Mr,  t'ampbeK;  amlyet 
there  bad  ht^ea  no  exAtnUmtivn  ul'  uitneissts, 
1>Mt  what  had  h^^eii  before  the  two  Houseji^  £ 
4  3  W.  &M, 

^  hng  before f  in  the  ca^e  of^ir  R«lph  8ad- 
lefp  upon  proof  ht-fore  the  two  bouseis,  that 
lady  S£id I er*8  former  husband  had  despvttfd  hei-^ 
and  disawiPHrtil  for  I'lmr  yearji  before  slic  inar- 
riefl  $ii  l^)|jh,  ibe  parhaioent  leg^iiimated  her 
diiblren  by  hit  Haipb.    37  H,  B. 

Whert'as  ^H>tne  objifct  againsii  ib<?  fwissin^  the 
bill,  tm  if  it  would  countcuance  a  jurisklKtion 
in  I  he  House  of  Lords  to  exninme  to  such 
tn^tters,  in  the  first  iuRtance  or  originally  ; 
t)ie  objectron  would  be  tbe  ^ame  if  it  bud  be- 
en n^  a»  it  might,  io  the  House  of  Coinmons  ; 
Imt  in  Iruib  would  be  of  equal  force  apiifi»Ji 
II J  OS  L  privnie,  mul  several  piifibc  act^j  occufrion- 
ed  hy  tbe  exaiointttioo  of  witnesses  of  notorieiy 
of  fiicL 

*frlijicc  therefore  the  duke  hn-?  so  lonfj-,  ^ad  so 
of^t*n  in  isiin  enrlearoured  to  be  iVpi'd  from  a 
JwlVt  publicly  Jami^d  &nd  proved  to  have  bred 
iviiti  &ir  John  Germaine,  as  bis  wife;  tbe 
Alukc'^  former  tlisappHintmcot  cannot  hi  it  he 
jHHt'crtuI  ur^umtnts  Ibr  his  s>pctJy  oMaiuing 
ihut  justice  wlttch  \W  t^ainlu^-o^Kixtl  ^-sxsx^at 
give  ttlm}  tbck  ^vQwec  Te&c»\uu^  ut>  i^ixf^nit  \H!wa. 


to  that  liljerty  uf  fivinff  as  $bt  Hume  ^mn 
amtic  settled  by  artteles  :  But  n  mat  oC^ 
art  aiKl  oratory  th^tu  b*r 
lurned  tbia  into  a  H^c^CfS 
if  ^be  bat,  or  a  pardon  afkrwifik :  M  ikm 
not  heeu  evidcut?e  of  her  *clji»jfie«i^i|i 
ftuch  €on«Tructiofi^  the  iluke  wauidbtf  hp 
xhe.  bad  rt^pt^ot^^d  «>f  tbe  turmcr  iiyiinii  tir  y 
receivG^i  fi:r»m  her  ;  hut  now  hofnn,  i^b  Ml 
Joii|(^er  continue  to  bear  theinitntot  Iwiii 
and  put  bifo  in  dati|^er  of  bdng  WMiMdiit^ 
&ir  Jobei  CiemiAiiie'a  issut,  or  dcfvm  M 
the  exptuLalioii  of  Icstifing^  hii  ti»i!>flrs^  oi* 
and  oitat««  to  a  t^ut^unt  heir* 


Faavt^G,  That  ADt'LTiiav  worm  i  oisHtmi 

Beirrg  tbe  substance  of  sercral  (if  litib(«(V 
sc*ij!t*s  fipeecbes  in  tJit;  llmiMi  df  li^ 
upiin  the  Debate  of  iUeLfir^  BtaiHt^ 
— Taken  from  oci;riiial  jjaper*  wfl  »^ 
Bbhop^s  own  band. 

Tl«f  qaesiion  i»  indefinitely  io  b  iwlii 
Whvtbei*  a  nmn  hein^  diiforofd  frnmuii  "A 
ubu  b»tb  rornmittetl  aduftcry^and  isortM 
of  it*  umy  marry  hiT^l&^!f  to  mmthm  **f 
no,  dnrinsf  the  life  of  lirr  ivhicli  wilit^iwi^J 

l*btr  pbce  in  Ht,  diatthew  the  Stfc^  nft^ 
ag^fcin  8t.  Matthew  ibe  19ih,  hfl«gfMip«|^ 
cuily;  If  it  bf  not  lawful  for  k  mat?* 
away  hi*  wife,  and  marry  a^in,  tax^ i^ 
in  tne  case  of  fornication  (tor  lifce  iim^^ 
tlic  words,  hy  puttiti*^  tbe  eicepiM>iil>CTiita* 
marriaqfe,  cannot  alter  the  aense),  dim  t* 
(rurioj  it  mii*t  of  n^accsiity  folloif,  ihit  o* 
wife  he  [urt  3»aT  lor  fomicalioOj  lbe<J"^J* 
by  tbe  tenoor  of  Christ's  words,  is  l*ft  jj^l 
marry  again  ;  which  freedom  ii  ^^J^i 
to  the  aduhress  herself^  nor  anv  l»«a  *** 
sbnH  01  ai  ry  her, 

H.  Mark   and  St.  I^kc  have  b^eifr 

ed  to  8t.  Matthew  ;  and  it  has  been  ^ 

Cbriftt'iS  wonk  in  St.  Matthew  dii  ^^^  ^ 
|ifrly  bt^lon^  to  Uhrist's  discipl^  ^^^ 
1  bri^tian  diureh*  as  tbe  words  in  ^^^^^ 
anci  St.  Ltike,  which  arc  absolttte,  do  ^  ^ 
Ls  a  Baying  that  neither  I,  uor,  I  tbif^^ 
hoily  ei$e  et or  lieard  of  before  i  ¥m  ^^^j 
Jiermon  in  the  moimt  was  spoken  to  fe-|^ 
ciples,  and  especially  belnngisi  to  CbrHtS^ 

J I  is  clear  they  ar^  Sjiokoii  to  his  doc^ 
for  be  says  to  them,  that  they  are  tht  ^^ 
i]w  earth,  and  the  light  ot  tbe  worhJ ;  ao^ 
tbey  are  blei^edf  '  when  ihej  sofier  puf^ 
tion  Ibr  hii^  namt 's  sake  ,*  Trbich  m>  ciaM 
MV  tir  apply  to  tbe  Jews^ 

"Jt  is  tru£j,4bat  in  the  19th  cbap*«r  n^ 
Matt  he  Wf  Christ  answers  the  Scrib«i  and 
risees,  who  came  to  tempt  him  with  their  ^ 
lion,  *  Whether  it  was  lawfuf  for  a  lutnl^ 
awtiy  hk  wife  for  anj  cause,*  t9  th^ 
Moses  had  permitted  them  to  do*     But  J 


f, 


\ 


and  his  Duchess^Jbr  a  Dii)orce. 


A.  D.  1700. 


[18S4 


bnt  only  in  the  ctie  of  adoltery,  for 
L  away  their  wi?ei,  and  marry  ano- 
( a  rule  wbieh  eoneemed  all  Cbrii- 
verTetor  ever  after;   and  for  that 

recorded  by  St.  Matthew, 
rds  in  St.  Mark  and  St.  Luke  are 
aken  absohitely,  but  to  be  supplied 
tood  by  his  words  in  St.  Matthew,  as 
her  cases  is  clear ;  viz.  tbe  tbief  upon 
baptism  in  the  name  of  the  Father, 
loly  Ghost,  &c.  whereof  many  in- 
y  be  brought,  as  the  destruction  of 
cc. 

Christ's  words,  the  exception  con- 
iile,  and  infers  a  concession,  that  in 
'  fornication,  the  putting  away  one 
larrying  another  is  allowed.  It  is 
divers  other  his  exceptions,  which 
n  Scripture:  For  brevity,  1  will  in- 
lis  one,  viz.  *  Except  ye  repent,  ye 
ewise  perish.'  Upon  %vhich  text,  if 
shuf)  else  were  to  preach,  I  believe 
not  discharge  our  duty,  unless  we 
the  people.  That  if  by  the  grace  of 
lid  repent,  they  should  not  perish, 
zpption  here,  tS  f^k  niti,  unless,  is 
Lb  tbe  t  Kings,  iii.  IB.  '  None  were 
use  except  we  twain;'  they  two 
rere,  others  were  not. 
cepiions  proceeding  from  natural 
tacitly  implied  in  laws,  though  pro- 
general  terms. 

to  the  exception  here,  the  wonis 
aMe  of  any  other  sense,  than  as  I 
r'ed ;  for  except  that  restraint  be  re- 
arrying  again,  the  sense  would  run 
soever  puts  away  his  wife  commits 
which  stands  not  with  truth  or  rea- 
i  it  is  not   the  dismission   that  is 

but  the  marriage  of  another.  It 
p  thfc  plain  drift  of  our  Saviour  to 
Pharisees,  that  the  marriage  of  a 
p,  after  a  dismission  of  a  former, 
3tber  cause,  except  for  fornication, 
than  adultery ;  thereby  inferring, 
a  just  dismission  for  fornication, 
marriage  cannot  be  branded  with 

the  Pharisee's  question  [Is  it  lawful 
to  pot  away  bis  wife  for  every 
IS  not  without  a  plain  implication  of 
narry  another ;  which  our  Saviour 
ng,  gives  ft  full  answer,  as  well  to 
eant,  as  what  he  said  ;  which  had 
erfectly  satisfactory,  if  be  had  only 
that  one  part  concerning  dismission, 
{Other  concerning  marriage;  which 
wo  evangelists  express  not,  yet  it 
etched  necessarily  from  the  third; 
i  sure  and  irrefragable  rule,  that  all 
^lists  make  up  one  perfect  gospel, 
eniiats  and  college  of  I>oway  ui^ 
sh  doctrine,  Rom.  vii.  9.  The  woman 
I  an  hnsband,  is  bound  by  the  law 
^d  as  kmg  as  he  livetb ;  but, 
jkot  is  to  be  OEpounded  by  Cbrift^ 


9.  St.  Panl  bath  no  occasion  here  to  speak  of 
divorce,  bnt  of  marriage  whole  aud  sound,  as  it 
stands  by  God's  onlinance. 

3.  He  s|»eaks  of  a  woman  who  is  under  her 
husband  ;  so  is  not  she  that  is  divorced  from 
him. 

St.  Paul  useth  this  to  his  purpose  of  the  law 
being  dead,  to  which  we  are  not  bound. 

Nor  is  their  doctrine  more  favonretl  by  1  Cor. 
vii.  10.  *  Let  not  the  woman  deitart;'  as  being 
in  her  choice  whether  she  would  depart  or  not ; 
but  in  the  case  of  fornication  she  was  to  depart, 
or  rather  be  put  away,  whether  she  would  or 
not. 

The  bond  of  marriage  is  to  be  enquired  into, 
what  it  properly  is.  &ing  a  conjugal  promise 
solemnly  made  between  a  man  and  his  wife, 
that  each  of  them  will  live  together  according 
to  God's  holy  ordinance,  notwithstanding 
poverty  or  infirmity,  or  such  other  things  as 
may  happen  durinf^  their  lives ;  separation  from 
bed  and  board,  which  is  part  uf  their  promise 
so  to  live  together,  ckith  plainly  break  that  part 
of  the  bond  whereby  they  are  tied  to  live  to- 
gether both  as  to  bed  and  boanl.  The  dis- 
tinction betwixt  bed  and  board  and  the  bond,  is 
new,  necer  mentioned  in  the  scripture,  and  un- 
known to  the  ancient  church ;  devised  only  by 
the  canonists  and  schoolmen  in  the  Latin 
church  (for  tbe  Greek  church  knows  it  not)  to 
serve  the  pope's  turn  the  better,  till  he  got  it 
established  in  the  council  of  Trent ;  at  which 
time,  and  never  before,  he  laid  his  anathema 
upon  all  them  that  were  of  another  mind ;  f br- 
hiddiopf  all  men  to  marry,  and  not  to  make  any 
use  of  Christ's  concession. 

Be<l  and  board,  or  cohabitation,  belong  to  the 
essence  and  substance  of  matrimony ;  which 
made  Erasmus  and  bishop  Hall  say,  that  the 
distinction  of  those  two  from  the  bond  is  merely 
chimerical  and  fancy. 

The  promise  of  constancy  and  mutual  .for- 
bearance, if  it  hinders  divorce  as  to  the  bond, 
hinders  it  also  as  to  bed  and  board ;  and  because 
the  same  bed  and  the  same  table  were  promised 
in  tbe  marriage  contract;  but  the  promise 
does  not  extend  even  to  tolerating  adulceW,  or 
malicious  desertion  ;  which,  according  to  uod's 
ordinance,  dissolves  the  marriage. 

Our  Saviour  speaks  of  divorces  instituted 
by  the  Mosaical  law ;  br.t  they  were  no  other 
than  divorces  from  the  bond. 

Tbe  form  of  the  bill  of  divorce  among  the 
Jews  was  this,  Be  exiMdled  from  me,  and  free 
for  any  body  else.  To  give  the  bill  of  divorce, 
is  from  the  IIel>rew  root  ITU,  which  is  to  break, 
or  cut  off  the  marrriage.  ^^'ith  this  agree  the 
ancient  canons,  councils,  and  fathers  of  tbe 
church. 

Concil.  Neocsesar.  &  £hb.  forbid  the  retain- 
ing an  adulterous  wife.  Concil.  Eliber.  Amt;- 
lian.  &  Arelatens.  give  liberty  in  such  case  \o 
marry  again.  Clemens's  Constitntioo,  Ter- 
tullian,  St.  Basil  in  his  c  luons,  approved  by  a 
general  council,  are  for  marrying  again.  Coo- 
cil.  Venet.  If  they  many  in  any  other  cmk 
thaa  fornicatiooy  they  are  to  be 


18S5] 


12  WILUAM  lU. 


cated,  aud  not  otherwise.    Coneil 

gives  liberty  to  the  ionoceut  pirty  to  marry 

after  divorce.    Coneil.  Lateran.  ^ives  leave 

for  the  innocent  party  after  a  year  to  marry 

again. 

CoBcil.  Lateran.  If  any  one  take  another 
wife  while  a  suit  is  depending,  and  afterwards 
there  be  a  divorce  between  him  and  the  first,  he 
may  remain  with  the  second. 

£actantius,  St.  Hierorn  and  Epiphanias,  are 
for  allowance  of  marrianfe  alter  divorce. 
Chry^ostom,  Horn.  19.  1  Cor.  7.  says,  That 
the  marriaisre  is  dissolvet!  by  adullery ;  aud 
that  the  husband,  after  he  hath  put  her  away, 
is  nu  lon((er  her  husband. 

Tlieophylact  on  the  16th  of  St.  Luke  says, 
that  St.  Luke  must  be  interpreted  by  St. 
Matthew.  St.  Hilary  is  fv.r  marrying  again, 
as  Dr.  Fulk  saith  upon  St.  Matthew  the  7tb. 
The  eastern  bishops,  in  the  council  of  Florence, 
are  for  marrying  again :  Jiistiu  Martyr  speaks 
of  a  woman  giving  a  biil  of  divorce  to  n  dis- 
solute husband,  widiout  finding  any  iault  with 
it 

St  Ambrose  says,  a  man  may  marry  again, 
if  he,  puts  away  an  adulterous  wife.  Theo- 
doret  said  of  a  wife  who  violated  the  laws  of 
marriage,  therefore  our  Lord  requires  the  bond 
ortve  of  marriage  to  be  dissolved. 

All  the  Greek  church  to  this  day  allow  it. 
Erasmus,  Cajetan,  and  other  papists:  The 
mi\  law,  and  the  laws  of  the  emperor  are  clear 
for  it :  and  the  constitutions  of  our  own  church 
of  England,  in  the  time  of  H.  8.  Ed.  6.  and 
queen  Kliz. 

The  practice  of  the  Enijlish  church,  in  the 
Stat  1  Jac.  c.  11.  a;;aiust  second  inarrinires. 
divorces  are  cxce(ited  ;  ami  iii  Canon  107.  ii 
is  pro\i(le<l  iliey  bhull  not  many  atraiii  ;  luit  it 
is  not  said  such  maiiiai^es  are  \oi(l,  unly  the 
caution  is  fori'eited:  Neither  doih  the  Canon 
speak  of  such  separutioits,  iv  herein  the  bond  is 
broken,  as  it  is  hy  t'orhication. 

E%en  the  (.'anon- law  allows  man  vin^  agiain, 
in  case  a  woman  seeks  her  luihbaiid\s  life,  and 
in  case  of  a  bond -woman,  (iratian  savs,  in  the 
case  of  adultery,  lawful  niarriaues  ought  not  to 
be  denyed.  In  the  case  of  an  incurable  le- 
prosy, it  was  the  ad* ice  of  Si.  Gregory  to 
Austin  the  monk,  that  he  thai  could  not  contain, 
should  rather  marry.  Bellarmine  o\%ns,tliat 
the  bond  of  the  marriage  of  infidels  is  dissolva- 
ble; but  the  marriage  of  the  taitht'ul,  and  of 
infidels,  is  of  the  same  nature :  and  J  ustinian 
a  Jesuit,  confesses,  that  it  is  simply  lawful  fur 
the  innocent  party  to  marry  again.  And  the 
Kiimiui  doi'tors  allow  a  dissolution  of  the  bond 
of  marr'a;;e,  if  the  partus  shuuid,  after  oi-n- 
5Uinmatiun,  transfer  theuiseUts  into  a  friary  or 
nunnery. 

The  Canons*  which,  in  the  case  of  adultery, 
prohibit  m.»rr\ing  in  the  hl'e-time  ot  the  ciillty 
person,  are  contrary-  to  two  actN  of  parliament 
roadie  2^  Hen.  8.  and  :%  and  -i  Edw.  6.  w  hereiu 


Proceedings  beiween  the  Dwie^  Norfolk    [UJg 
Wormat. 


*  Kef.  Leg.  Eccles.  Tit.  dc  Adultcriis  et 
Divortiis. 


no  canoos  are  allowed  that  bt  say  way  rm- 
nant  to  the  laws  of  God,  or  the  Soiplvc,  ii 
king's  prerogative  royal,  and  ibe  lUMs  4 
this  land :  thirty  two  nersons  were  ti  renew 
the  canon-law,  in  whicn  renew,  iimapk^ 
archbishop  Craomer,  the  inooo«t  pciM  ■ 
permitted  to  marry  again,  acoordiagtBCMi  ^ 
law  aud  cuoceasioo. 

We  have  examples  of  iodi  narni|alilL 
4.  of  FranGe,aodH.8.of  Eogland,MllH* 

joy,  lord  Rich,  bishop  TbomboraodhaiA^  i 
Ters  others.  And  it  is  obserraUe,  tbl  iite  n 
caseofthemarqnis  of  NortbaniDtoii,  5  Eiff.i 
who  had  been  divorce<l  for  bb  lidj'c Mmj^ 
aud  married  another  before  any  ad  of  fA 
ment  maile  concerning  it,  an  act  vfaick  fmi 
alWrwards  (only  two  spiritual  and  twotMfad 
lords  dissent  mg)  declares,  be  hsd  bcM  mE- 
bertv  by  the  laws  of  God  to  iDsrry,aiAil 
lawfully  marry  another:  where  die  KtiMj 
festly  supposes,  that  whatever  hid  cMm 
for  law  till  that  time,  was  foid,askii|C*' 
trarv  to  God*s  law.  ^_^ 

'fhe  roost  oonsiilenible  men  of  the  refiM 
churches,  both  at  home  andabrosd,tretfM 
opinion :  Grolins  qnotes  Tertullisn,  io  tAn 
time  it  was  lawful  for  the  iunocent  f^^ 
marry. 

Lancelot.  Instit.  Jur.  Can.  ickDoeki|4 
that  dirorce  is  a  dissolutiou  of  the  mnii^ 

Seldeo,  who  is  not  hkely  to  cnotndidB    i 
laws  of  this  kingdom,  maintainetb,  th>f  ■'' 
riage  after  divorce  is  Io  be  allowed ;  •"JI'T: 
particular  Dr.  Hammood  doth  notcortii*" 

[  him,  but  is  clearly  for  it. 

The  opinion  of  Aujesius  deserfes  to  be*  j 
down  at  large:  *•  Marriaije,  says  be,cinw** 
dissolved  h\  men  at  1 1 leir  pleasure;  tD'lf*'^  | 
reason,  as  it  is considired simply  and abiolBWJi  ) 
it  is  ri;rhtly  said  to  be  iiidiss«)lvabW,  been*  i 
marriage  is  not  only  a  civil,  but  tJi'"**'** 
junction  ;  and  is  also  of  that  nature,  ihim^JJJ   • 

.  not  be  dissoUeed  without  detriiorut  of  «•» 

.  party  :  vet  it  is  not  st»  disstdiable,  butii  nuj 
he  dusof*  e«l  for  a  cau>e  w  hich  Gwl  aijpn-'rfjj  1 

;  j«ist ;  for  the  indiss*dvabdity  was  r»ol  iDsW** 
tor  a  punishmtut,  but  for  the  comfort  of  »•••• 

'  cent   persons ;    and    it   admits  aa  ^^^fJJJJ 

'  wherein  God  ceases  to  conjoin.  By  "'jjy. 
two  are  made  not  to  remain  «ue  o^' 
11  once  it  is  that  a  conUgious  *ii*^**  ^?L 
cau>e  of  disstd\ing  luarriage.  Bv  •"•'"^ 
the  very  essence  i.f  the  contract  i^  ^^'^^J^'u, 
latnl;  but  the  contract  ceabuig,  the  ^  |! 

.  pending  on  the  contract  necessarily  ^**??*l 
IS  against  all  reason,  that  all  mairimooi*i /"j 
ties  should  l»e  for  t  vtr  taken  away,  \eill»*J'* 

,  or  obliufation  to  those  duties  >b'ouid  f<*^ 
The  words  of  our  Lord,  Mat.  r.  33.  and  t*^ 

i  have  no  distmction  or  limitatiuu  ofthep*^ 

'  away,  but  simply  and  absolutely  »PP'*J^ 
putting  away,  tlierefore  they  approve  of  pj'J 

i  away,  not  partial,  i>r  t«»  a  partkulsr  fF"* 
froni  bed  and  U>ani«  but  total.*'  ^ 

None  are  against  the  reformed  ^^JJJJl 

Dr.  Howson,  Mr.  Bunny,  and  Dr.  M^^^ 

Dr.  Ilowson  was  a  profeiNd  adro"? 


mul  kis  DuehesSf/ora  Dhoree. 


A,  D.  1700. 


[IS3S 


ijMldii,  who  was  a  laprcal  maiotainer  of 
ueh  of  England  a^inst  all  the  poinu  of 
,iiid  particahiiy  in  this. 
Fiylor,  bishop  Hall,  Dr.  Fulk  are  for 
msrriam ;  no  anUiors  against  them 
>  ooiiDcal  of  Trent,  and  those  of  the 
of  Rome  ;  whose  credit  b  only  saved 
«  of  our  church  who  agree  with  them. 
I  the  difference  of  explication  between 
ibrose,  Origen,  ami  St.  Austin,  a  new 
dif orce  bM  been  thought  of,  from  bed 
rd ;  but  this  divorce,  or  name  of  a  di- 
ras  unknown  to  the  Jews  and  ancient 
tns. 

I  flo  much  before,  at  the  first  and  second 
of  this  bill,  that  1  was  in  good  hopes  to 
d  no  further  occasion  given  me  of  an- 
any  objections  against  it  now;  butsee- 
nrs  new  arguments  have  been  studied 
med  against  it  since  that  time,  1  shall 
leavour  to  satisfy  and  clear  them  all. 
he  first  argument  against  it,  is,  that  the 
ion  from  bed  and  board  doth  not  dissolve 
J  of  marriage.  To  which  I  must  reply, 
before,  that  this  is  a  distinction  without 
mce,  newly  invented  by  the  Canonists 
lool-roen,  and  never  heard  of  either  in 
or  New  Testament,  nor  in  the  times  of 
i«nt  fathers,  who  accounted  the  separa- 
m  bed  and  board  to  be  the  dissolution  of 
1  itself. 

hat  first  institution  of  marriage,  that 
ay  be  one  flesh,  is  by  adultery  dissolved, 
he  adulteress  makes  herself  one  flesh 
pther  man,  and  thereby  dissolves  the  first 
'  her  marriage. 

he  dgectkm,  that  if  the  bond  be  dissolv- 
afterwards,  if  the  man  or  woman  be 
led,  they  must  be  married  over  again,  is 
iMsry  consequence,  no  more  than  it  is 
"aoo  Mptiied,  who  may  break  his  cove- 
nd  renounce  his  baptism,  and  yet  upon 
pentance  be  received  into  God's  favour 
toe  of  the  first  covenant,  without  any 
ptism.  Suppose  a  witch,  who,  they  say, 
«  compact  with  the  devil  to  renounce 
itism,  should  afterwards,  by  the  gnuse  of 
sriously  and  truly  repent  herself  of  the 
Bcss;  I  do  not  believe  that  any  body 
lake  npoQ  him  to  baptize  her  again: 
a  priest  should  renounce  his  orders,  and 
Wk,  aud  yet  afterwards  repent  him,  and 
intotlie  obitrch,  he  need  not  be  re-or- 
aseoood  time.    The  case  will  be  the 


■  marriage. 

said  bentofore,  that  the  Roman  doctors 
il  this  dissolution  of  the  bomi,  when  the 
id  wife,  even  after  the  consummation  of 
gs,  would  transfer  themselves  into  a 
or  a  noDoeiy ;  but  because  it  bath  been 
lanbted,  that  no  authority  can  be  shewed 
iparticiilar,  1  shall  here  shew  it  out  of 
I  amstiUitions  of  the  church  of  England, 
id,*  ID  the  case  of  religion,  that  is  the 

iof.  Will.  Lyndewode,  sive  Const.  Ang. 

■  Tcr.mlktMiusscparentiir.  * 


true  understanding,  that  to  wit,  either  of  them 
betaking  themselves  to  relig[ion  before  carnal 
knowledge,  the  bond  of  marriage  be  dissolved : 
But  if  both  enter  into  religion,  and  make  solema 
profession,  then  such  marriage  is  dissolved, 
even  as  to  the  bond." 

5.  It  hath  also  been  said,  that  if  the  bill  pan,  ifc> 
will  pass  against  the  church  of  England ;  which,- 
I  confess,  I  do  not  understand ;  ror  the  church 
of  Enghmd  is  within  the  kingdom  of  England  ; 
and  if  the  laws  of  this  kingctom  be  for  the  bill,, 
and  have  declared  it  by  the  assent  of  the  king, 
lords  and  commons,  as  in  the  case  of  the  mar-. 
quis  of  Northampton  was  heretofore  declared, 
in  the  time  of  idng  Edward  the  6th,  that  bv  the 
laws  of  God  the  innocent  party  was  at  libertj* 
to  marry  again ;  certsinly  the  spiritual  lords, 
as  well  as  the  temporal  and  commons,  aro 
bound  to  admit  it :  And  I  know  not  why  tliej 
should  be  called  the  church  of  England  that 
join  with  the.  council  of  Trent,  and  plead  so 
much  to  uphold  it,  rather  than  others  that  join 
with  ail  the  reformed  churches,  and  plead 
against  the  canon  of  the  church  of  R!ome, 
which  bath  laid  an  anathema  upon  us,  if  we  dw 
not  agree  with  them. 

As  to  the  supposed  inconveniences  that  will 
follow  upon  manying  sgain: 

1.  More  inconveniences  will  follow  if  thej^ 
be  forbidden  to  marry  again. 

9.  The  lather  would  be  in  an  uncertainty  of 
the  children,  if  they  should  retain  the  adul- 
teress. 

3.  There  would  be  danger  of  poisoning  or 
killing  one  another,  if  no  second  marriage  wero 
allowed. 

4.  Where  the  parties  should  consent  to  new 
marriages  tor  their  own  lusts,  the  msg'istratea 
have  power  to  over- rule  such  practices. 

5.  If  they  be  kept  altogether  by  divorce 
from  marrying,  it  would  occasion  the  innocent 
party  to  sin. 


A  little  before  the  main  Question  about  pass- 
ing the  duke's  bill,  the  ducness's  agents  hand- 
ed about  this  paper,  among  such  as  thej 
thought  to  be  her  friends: 


CASE  OF  MARY  Duchess  of  NORFOLK. 

Upon  the  marriage  of  the  duchess  with  th« 
now  duke  of  Norfolk,  in  the  year  1677,  her  fa- 
ther, the  late  eari  of  PeterborffUgh,  paid  as  part 
of  her  portion  10,000/.  and  settled  on  that  mar- 
ria^  lands  of  near  1,000/.  per  annum,  the  re<4 
niamder  of  which,  on  failure  of  issue,  was  !!• 
mited  to  the  now  duke  and  his  heirs  for  ever  ; 
and  the  esrl  after  his  and  his  lady's  death,  se- 
cured to  the  duke  the  forfeiture  of  Drayton, 
worth  10,000/.  more ;  and  the  duke  received 
also,  by  agreement,  1,000/.  per  annum  for 
tweuty  years  out  of  the  earl's  estate,  besides 
very  rich  jewels,  plate,  and  other  tilings  of 
great  value,  which  the  duchess  brought  with 
her  into  the  duka's  ftonily:    And  gmldebtt 


Ittirctlly  tt  Dr»^toii  in  Noriliamptonihire ; 
and  ai  the  time  «kt  ibe  ret i^iuHou  ihct  afttin  re- 
tiree] la  Fnuice,  where  ibe  conliiiued  till  she 
liettrd  of  her  father^fs  iinprisanmcnt  in  the 
Tiwer,  anil  then  catiie  back  tn  Ennrlaiidf  nod 
lived  privately,  titl  her  father  oblaiued  his  )i- 
k^rty,  when  she  rame  home  to  him. 

Thai  the  Hth  of  Jauuarj,  1691,  the  duke 
wia|ira¥ ailed  on.  Uy  the  ioMit^tion  of  her  ene* 
Riies,  ta  exhibit  a  bill  id  the  House  of  Feerf^^  to 
II16  saiTie  effect  with  the  bill  now  depend  in  j^, 
and  divers  wittieiksea  were  examined  on  both 
aidfB ;  after  wbidi^  and  a  long-  «o(enin  debate 
aod  due  contiideratian  bad  by  their  (ordKhipa  nf 
Ibe  witnes»t«,  and  what  «*a«  sMrorn  by  thetn^ 
alie  17th  «t^  February,  ihey  were  pJeu**^  to  re- 
ject the  hill  uithoiU  a  seconi)  re<tiltiijt^. 

NoCwithstauding^  which,  the  dake  was  a|»iiiu 
pvavailed  00,  tJie  8^  of  Deoetnlier,  169««  to 
axhibil  a  second  bill  in  the  House  of  PeenB^  to 
tile  same  efSed  with  bis  first;  whichf  after 
•ereral  debet tes,  was  the  !}d  of  January  follow- 
ng  a^in  rejected. 

Some  linrie  aflerthis,  and  for  accommodating- 
all  dift'ereuces  between  thein,  prooosaia  were 
made  to  tlte  duchess,  which,  after  W^  agita* 
tioii,  OD  the  28ili  of  April,  1694,  were  reduced 
into  wriliuft^  and  executed  by  the  doke  and 
&e  pf^mbile  of  which  articles  is  in 

i  ffOida  following :  **  Whereas  direrse  coo- 
B,  debates,  demands,  and  Boita  of  seve* 


ral  natures  have  fitr  some  time  since  been  af  i- 
tated,  and  continued,,  between  the  said  diilce 
and  the  said  duche^ij,  his  wife,  Sec.  uttto  all 
nrhich  it  is  at  last  held  fitting  (it  being  oondu- 
cihla  to  tJMBy  vvisiieetlve  niiieK  and  eaae^  ta  bave.. . 


ecelemaaiical  court,  ^ 
rtaltn  she  is  entitled 
day  of  pebruiiry  lai^t, 
Peers  the  bill 
duke's  marriafs 
bling  him  to 
proceedings  were  nitt  vi 
(a  Frencii  rtKitman, 
lately  brought  from 
with  citamiried  agtiini^ 
facts  suppi>se<l  to  be 
aiooei  aad   hng  brft\ 
[,  and  on  w 
,  that  It 
muke  her  delence,  as 
the  proceedings  bad 
to  the  kaowD  la 

Tbe^ndiica 
aity  af  cociiplyj 
House  of  Peers 
she  could,  made 
a  week^s  time 
and  opon  exami 
witneeseat,  many  conti 
whereof  follow,  as  doll 
tions  taken  in  writin^j 
the  Hoai»e  of  Peers,     * 

For  Hauaeur  tlie 
chess  was  at  the  Coel 
he  came  to  lire  with  i 
that  he  oaatiniied  thei 
af^er  the  dncbess  k£i 
Vaiixhall. 

Vauefts  l^»e  eookmaij 
to  sir  John  when  the 


4ml  kit  DiuhtUtJbr  a  Dmoree, 


A.IX  1700. 


[\9et 


t  wen  erer  tbougbt  on  for  wit* 

swearg,  He  retiinied  agtin  to  tir 
'  1692,  beings  oftleB  sent  to  by 


Bayly,  enother  of'  the  flake's  wit- 
ira,  he  dki  not  return  agmin  to  sir 
» years  after  he  went  away,  Bayly 
l>eing  all  that  time,  and  three  years 
^ant  in  the  house. 
,  That  tliis  Terr  summer,  1699,  to 
er  term,  the  dnke  hrooght  bis  ac- 
t  sir  John,  which  was  tried  Mi- 
rm  1692;  at  which  time  it  had 
ikely,  if  sir  John  had  beliered  he 
done  him  any  harm,  he  should  hare 
Holland,  rather  than  ha?e  sent  for 
specially  considering  that  this  lel- 
rds  swears  sir  John  swore  in  a  rage 
would  betrav  him. 
being  asked,  who  tent  for  Vaness 

ered,  that  aller  he  had  premised 
id  lord  Howard  to  speak  the  truth 
snew,  they  desired  bim,  if  be  met 
lesne  her  to  come  OTer,  and  speak 
what  she  knew. 

g  asked,  how  long  aAer  he  met 
swered,  aboot  twelve  months  since, 
masked,  when  was  the  first  time 
her  about  coming  over  to  speak  the 
rered,  it  is  about  a  year  since. 
r  asked,  how  long  it  was  since  they 
come   over?    answered,  twelve 

einar  asked,  whether  she  was  not 
n  Holland  to  be  a  witness?  an- 
koew  nothing  of  it  till  eight  or  nbe 

rears,  she  was  sent  away  on  ac- 
trial. 

Peacock,  Hawksworth  and  Knight, 
Dts  of  the  duchess's,  swore  the 
ned  hrr  away  before  the  trial,  for 
iipany  with  Dutch  solilicrs ;  and 
ar  a  new  cookmaid  before  the  trial, 
rtwcars,  he  had  a  key  of  the  door 
he  i^ark,  and  could  come  in  when 

owns  he  knew  but  two  of  the  ser- 
'hereof  is  long  ftince  dead, 
the  duchess's  servants  swear,  they 
any  body  had  a  key ;  aiidthatifany 
n,  tbev  must  have  known  of  it. 
rove  the  shutting  up,  lyoltingr,  and 
i  door  every  night,  and  o|>eiiing  it 
ing ;  and  but  one  of  the  servants 
Birer  to  have  seen  him  at  the  door, 
!  rang  the  bell ;  but  came  only  to 
ywoman  of  his,  and  'to  carry  let- 
ind,  and  brought  answer  back  to 
I  not  admitted  beyond  the  paniagc. 
and  Vaness  swear,  they  saw  the 
sir  John  in  bed  together  at  3IilU 

eaa's  woman  swore,  she  has  put 
to  bM^  mA  Iftkeo  Iwr  up  t? cry 
9 


night  and  nomiag  scvierai  yem,  and  n^tvr 
saw  him  in  the  bouse.  And  two  others  swear, 
tbey  Were  constantly  in  wiiting  hight  and 
morning,  and  positivdy  deny  any  knowledge 
of  any  snch  thing,  aed  say,  they  never  saw 
Hauseur  there ;  mmI  that  Vaness  was  nefer 
admitted  up  stairs,  she  was  so  dirty  a  creature, 
mocb  less  to  dress  or  undress  the  doohen,  as 
she  pretendeil  often  to  hav«  dose. 

Vaness  swears,  she  ooold  not  tell  the  ptoow 
she  has  been  at  then  six  weeks  last  paat 
Whereas, 

Mr.  May,  and  two  other  of  tlie  duke's  aer- 
vants,  swear,  she  has  been  fouiteen  days  in  tile 
duke's  own  house,  with  the  fall  liberty  of  the 
house. 

Vaness  being  asked,  whether  she  ercr  toM 
any  body  of  tlw  occasioa  of  her  going  awwy  P 
she  swore,  yes,  she  told  it  to  a  great  HMUiy  ib 
Holland,  and  not  here. 

Yet  being  afterwanls  asked,  whether  she 
ever  discormd  that  she  was  sent  out  of  the 
way?  she  swore  directly,  no. 

These  are  some  of  the  many  plain  conte*^ 
dictions  and  disproofs  of  these  evidences,  bew 
sides  the  great  improbability  in  their  own  na- 
ture, in  several  things  sworn. 

But  it  is  also  to  be  noted,  that  Hauseor  lefl 
sir  John's  service  in  a  disgost ;  and  so  it  is 
prored  by  Bayly,  another  Sf  the  duke's  wit- 
nesses, and  that  what  Hauseor  swore  could  ba 
nothing  but  spite  and  malioe :  Yea,  it  is  proved 
on  tbe  duchess's  part,  that  he  swore  he  would 
find  a  way  to  be  revenged  of  him,  and  that  per-, 
haps  it  might  not  be  long  first :  and  Mr. 
Strange,  Mrs.  Pitts,  and  her  two  maids,  who- 
coukl  haye  deposed  yery  materially  for  the 
duchess,  refused  to  appear,  though  often  sirai* 
moned,  being  persons  not  in  the  duchess's  in- 
terest or  power. 

This  Hauseur  has  been  out  of  jflace  ever 
since  he  left  sir  John's  service,  April,  96,  and 
is  so  still,  as  he  swears,  and  so  in  oonseqaenoo 
likely  to  be  necessitous. 

Note  also,  that  Hauseur  swears,  sir  John 
gaye  him  seven  guineas  to  pay  the  chaiges  Of 
himself,  Vaness,  and  another,  '^which  were  or- 
dered to  bei  kept  private  till  they  could  be 
shipped  off,  and  also  for  their  passage  into 
Flolland,  which  was  in  time  fiom  the  8th  of 
February,  99,  till  Easter. 

W  hich  does  not  kM)k  1  ike  a  bri  be  for  a  secret  of 
this  nature,  being  hanlly  sufficient  to  maintain 
three  people,  and  pay  their  lodgings,  for  tWQ 
months. 

Hauseur  would  be  thought  a  mighty  confi- 
dant, so  as  to  have  a  key  to  the  duchess'^ 
house,  to  come  in  and  ^o  out  when  he  pleased, 
and  ^'ct,  as  well  acquainteil  as  he  pretended  to 
be  with  the  house,  and  the  duchess's  bed  cham- 
ber, he  could  not  tell  on  what  floor  it  was,  nor 
what  furniture  it  had,  nor  whether  wainscoted 
or  hange<l :  And  when  he  was  asked,  which 
way  the  windows  of  the  bed  chamber  looked  T 
he  trifled  in  that  question,  and  concluded,  be 
couKl  see  the  water,  but  was  afraid  to  go  nesr 
the  window,  for  tar«f  bsinf  diseoTered ;  *«iid 


mmB 


BP^ 


P 


1<J343J  12  WILLIAM  IlL      Praceedittgs  hiwem  the  Dtth  ofNorfS ' 

^el  lisd  no  scrapie  of  comiui^  info  ibt  boUic 
with  lib  key,  at  any  tiiise. 

Tbe»e  lhtP||5  Wing:  f^bierted,!!  rauilbecon^ 
.ililetreti)  ih&t  ihe  tacts  aow  iu  effect  cltargtiil 
ftguiiisl  th?  flucbess  are  su<fs[estecl  to  be  dune 
ttjiiiiy  remrs  vince,  a  ad  were  ftcbated  and  oon- 
aidereif  b«ibre  l+ie  peers*  betbre  the  rejeciion  of 
ihe  two  first  bills,  anil  long  b*?fore  the  a^jree- 
IneDt  for  puttiag  af»  end  tn  aJI  controversteji  a  oil 
,«leh<lie».  ffow  it  li  very  bard  to  put  the  duchess 
|o  ifif^oimt  flgaio  for  tboise  very  facts^  cousider- 
in^f  thaiafler  eig-ht  or  nine  years  many  people 
are  dead,  oibera  dispersed ^  aod  not  in  a  Utile 
tiiue  to  be  fouivd  out,  and  circiiraslauces  of 
time*  and  places  (which  io  the  nalure  of  ail 
the^e  ca^es  is  almost  ail  that  in  left  to  discover  a 
fabity)  fbi^0t. 

Tbe  ducbesi  is  also  under  the  nnaToidable 
tjecessily  of  proring  a  n entire  against  down- 
right swearing',  and  that  vviibout  any  matter 
introdtictory  ;  and  also  by  two  oiean  ^rvanib^ 
4he  one  turned  oiil  of  her  place  for  keeping 
eotnpany  with  tbot  soldiers,  and  the  other 
Jeafing  hh  place  in  dtsg'ust^  k^c&use  be  conkl 
noi  bit?e  tbe  play  mone-y. 
^  I^Iastf  rs  are  already  too  mucb  in  tbe  power  of 
Uieir  tervaots  :  aod  if  they  charge  their  masters 
with  aidulteryf  felony,  and  even  treason,  it  is 
,iiol  easily  iti  tbejMwerof  tbe  master  u>ddend 
bimself  against  clownright  swearing' ;  servants 
.liaring  ihoiie  opp4>rteniiiei  of  tht^  knowledge 
of  limes,  and  places,  and  company,  wbicb 
oanoot  he  denieil  or  avoided «  and  whicli  others 
iiave  nt>t  ;  whtfreupiin  tbey  may  fmme  iiml 
build  fitlsa  evidence,  and  many  times  are  of  ill 
, principles  and  de^pcrute  rortunes,  and  of  lem- 
,per^  very  reveni{elul  ;  so  ibat  whoever  turns 
.away  a  serv&ntf  be  is  in  his  power  for  his  estate, 
^bonour,  and  even  life  iti^lf ;  and  there fore^  for 
tbe  safety  and  freedom  of  families,  in  other 
countries,  tbey  are  not  |iemiitte4  to  he  eirideoce 
sg^aiust  tbeir  m^tcrsj  in  any  tnattef  crimiosd 
whatsoever, 

Note  aljso,that  tbe  duchess  Ihiokssbe,  as  an 
BnjjfliMh  «uhject,  haSt  by  Ma^na  Cliarla,  the 
fame  rij^ht  to  a  trial  in  the  W*g^\  and  ordinary 
.Hay  of  Justice,  as  tbe  rest  of  the  king's  suli- 
jects,  especially  considering  that  there  never 
yet, was  in  England  one  precedent  of  a  bill  ejc- 
hibitetl  in  tmrllament  to  dissolve  a  marriage  at 
the  firat  instance,  without  any  previous  pro^ 
ceedings  in  iJbe  ecclesiastical  courts,  (whicli  in 
these  cases  is  tlie  law  of  the  laqd)  and  not 
.fthove  Ave  or  six  bilk  in  above  ^00  year^  ever 
Passed  tn  dissolve  mania j^es,  or  make  second 
inarriages  good,  even  afler  there  ba«l  been  a 
dirorceiaihe  spiritual  courts,  and  those  bills 
too  iu  cases  generally  where  tbe  husbands  were 
vitboiit  any  recrimination. 

Ho  impediment  appears  why  the  duke  should 
not  have  endeavoured  a  divorce  at  Uw  bcibre 
he  had  attempted  a  bill  to  diss»olve  the  mar^ 
riage ;  for  any  apphcaiion  to  tbe  legislature 
for  trial  of  matters  nf  private  right  is  improper, 
Weiuse  tliere  are  projier  judifmlures  ihnt  give 
that  remedy  tbe  law  allows. 

To  aik  acy  thtog  of  ihe  l^isUlurei  in  pnrate 


eauses  betweeii  party  and  ptrtj,  b«| 
ihe  known  laws  in  force  give,  teetaa 
pmper  ;  because,  ^ 

1.  It  is  to  make  a  law  in  tme  pern 
whieb  is  not  the  law  m  auotbci'^. 

3.  It  is  to  retrospect  actions,  laJ 
!act,  to  aogmeal  or  alter  the  fieasl 
laws  %re  certain  ami  known,  tliatjicT 
conform  their  actions  lo  litem . 

3.  The  courts  and  tbriES  of  law  tj 
tbe  subjects  right  with  the  laif ,  aad 
cation  Lo  tbe  legiilature  takei  awt 
right  of  form  and  charging  ;  when 
tainty  in  ttnie  to  aotiwer,  and  eXic 
witnesses,  and  other  legal  d^l'eoca  d 
canool  be  denies]  the  meane$»t  subject 

The  consequence  that  short  tiiil 
ways  of  proct'Ciliogs  may  bttve  oa  t 
ments  of  estates  aud  familiestf  m&jr  W 
gerous;  and  thuugb  (he  duke  ot'iVu 
[lassed  tbe  House  of  Peers,  ytX  agie 
of  the  Peers  both  spiritual  and  tfiit 
tered  their  protest  a^inst  its  yumg, 
reasons  for  it 

It  ought  to  be  uo  prejudice  to  tbi 
that  the  next  heir  presumptive  tn  I  be 
not  jet  appear  to  be  a  PrGi««luit 
when  a  bill,  which  hath  latdy  pi 
Houses,  is  become  a  hw,  tl  is  n«<  li 
Qoble  family  wdl  be  widiout  a  Frutei 
bead  of  it. 

If  any  of  the  wilneises  formerly  «i 
the  bill  in  16^Q,  be  now  again  |iniJ 
humbly  apprehemled,  that  m  tW  ' 
ibeir  iestjnsony  they  then  fave  w 
over  til  row  n  by  a  greater  number  of 
so  it  will  be  again,  Ihougb  under  the 
iage  of  the  great  dbita  nee  of  time. 


Proceedings  m  the  Uot^sE  or  C 
JlfdrcA  ig,  1700. 

The  reading  the  bill,  for  diss 
marriai^  of  the  duke  of  Norfulk,  i 
time,  and  bearing  counsel  as  well  oi\ 
of  the  ducbess  against  the  bill,  a^  o 
the  duke  for  the  bill,  being  the  order 
helbre  the  counsel  was  called  in,  to  | 
inconvenJeoce  of  people  crowd iuif 
i louse,  tbe  House  made  an  ofik 
none  hut  the  counsel,  solicitors 
ties  sboiild  be  ca1le<l  in,  aud  thi 
n esses  shoutd  have  notice  to  alteoi 
readv  to  be  called  in,  if  tbe  B« 
thiol:  fit. 

Ji  was  also  intimated.  That  if  lilt 
duchess  did  think  fit  to  come  ialft^ 
tbey  should  be  accommodated  wilbi 
being  a  resptfct  shewed  to  the  o6i 
tbey  come  into  the  House, 

Jind  then  the  countel,  and  aofi} 
parties  of  both  side^  were  calMM 
the  bill  was  read  to  them. 

jInd  tbeo  the  lady  dueheai^  I 

Tbe  conQiel  thftt  app«ftr«d  iren|l 


A 


1 


and  his  DuchesSfJbr  a  Divorce. 


A.  D.  1700. 


[1346 


^  Mr.  Dodd,  Dr.  Pinfold,  for  the  du- 
Bf r.  Sen.  Wright,  Mr.  Northey,  Mr. 
J,  Or.  Oldish,  for  the  duke. 

Mr.  Spedcer  tlien  spake  to  this  effect : 

Speaker,  Yon  are  here,  I  see,  counsel 
li  sides.  The  House  have  ordered,  that 
ly  duchess  should  be  heard  according  to 
lyer  of  her  petition ;  and  my  lord  duke 
lewise  an  order  to  be  heard  to  make  good 
I.  1  think  the  petitioner  is  to  be  heard 
9  make  good  the  allegations  of  her  peti- 
and  when  the  House  have  heard  you 
as  to  that,  they  will  consider  whether 
rill  proceed  to  hear  the  allegations  of  tho 
ideont 

Tkomai  Powys,  Mr.  Speaker  ;  with  your 
',8ir,  1  am  of  counsel  with  the  petiliouer, 
icfaess  of  Norfolk,  asainst  this  Lill  th»t  is 
efore  you  ;  and  I  beueve  I  may  say  with 
iHurance,  that  this  bill  in  the  manner  it 
'  brought  before  you,  is  the  first  that  ever 
ttempted  in  this  honourable  Honse.  It  is 
Be,  that  sereral  years  ago  this  bill,  or  an- 
of  the  same  nature,  was  attempted  twice 
other  House,  and  as  often  rejected ;  but 
s  true,  at  last  it  does  come  from  thence 
,  but  not  without  a  protestation  there  ;  and 
Bbty  hope  that  you  will  take  notice,  that 
I  a  bill  of  divorcf3  in  parliament,  in  the  first 
ee  without  a  previous  prosecution  to  ez- 
!tbe  fact  in  any  of  the  ordinary  courts 
lave  authority  in  these  matters. 
B  a  bill  not  only  to  divorce  the  duchess 
I  very  short  warning,  who  hath  been  a 
venty- three  years,  but  to  render  her  infa- 
to  all*  posterity  by  actof  pariiament,  which 
nut  to  be  the  greatest  misfortune  possible 
il  aov  person ;  and  at  the  same  time  it 
from  ner  the  legal  trial  of  the  fact  whereof 
I  iocused,  and  which  she  hath  a  right  to 
!  laws  of  the  land,  sure  as  much  as  the 
at  subject ;  and  which  we  don't  appre- 
ibe  has  in  any  wise  forfeited  ;  nor  is  tliere 
Baton  assigned,  why  his  grace  has  not 
^leased  to  proceed  in  the  ordinary  course. 
N  Sir,  you  will  take  notke  also,  that  this 
trnth,  nothing  but  a  suit  between  party 
krty.  It  is  merely  a  cause  matrimonial 
%  husband  and  wife,  begnin  originally  in 
»D8e  of  Peers ;  and  as  hitherto  the  he- 
if  of  causes  between  party  and  party,  in 
ouse,  hath  been  strongly  opposed,  so  I 
t  will  be  thought  reasonable  tu  do  so  al- 
beeause  it  de|>rives  the  subject  of  that 
defence  due  to  him  by  the  law  of  the 
If  this  was  always  complained  of,  when 
loeedings  were  in  a  judicial  way,  surely 
mat  deal  worse  to  begin  there  a  private 
between  party  and  party  in  the  Icgisla- 
ly.  1  can  see  no  manner  of  difference 
sspect  to  the  loss  of  those  c^reat  advanta- 
t  party  is  intitled  to,  only' this  seems 
to  be  the  most  against  reason. 
this  is  a  summary  proceeding  with  a 
k  It  began  but  the  16th  of  February, 
at  a  week's  time  given  to  the  party  ac- 
L  XIII. 


cused  of  so  high  a  crime,  and  of  so  great  con- 
sequence to  the  partv  accused,  to  be  heard  to 
it ;  and  though  perhaps  we  may  with  reason 
enough  find  fault  with  the  tedious  proceetlings 
in  some  courts,  where  appeals  and  writs  of 
error  are  justly  due,  as  where  property  is  weH 
fixed,  it  must  needs  be  reasonable  :  I  'say,  from 
various  causes,  though  suits  in  the  ordinary 
courts  are  very  tedious  ;  yet  I  am  sure  a  sun:* 
mary  way  of  proceeding  without  due  warning, 
or  any  certain  way  of  making  defence  by  any 
k^own  rules,  and  without  oath,  as  here  with- . 
out  appeal,  without  any  possibility  of  retrieving 
the  matter  again,  with  gpreat  submission  ;  and 
if  this  must  te  for  all  that  one  has  in  the  world, 
such  a  summary  way  is  a  very  terrible  thing. 

I  would  be  glad  any  one  would  make  it  bis 
own  case,  and  think  with  themselves  how  they 
should  like  it,  if  their  life,  estate  and  all  they 
had,  were  put  upon  such  a  summary  way  of 
proceeding.  It  is  true,  in  some  kingdoms, 
where  the  government  is  arbitrary,  the  pro* 
ceedings  are  summarily,  and  most  commonly 
they  go  together :  and  if  we  were  in  a  plact 
where  the  judges  were  infallible,  and  thert 
were  no  false  witnesses,  and  truth  could  be  dis* 
covered  at  an  instant,  a  summary  way  would 
be  best ;  but  since  men  are  fallible,  since  ther« 
is  passion  and  partiality  in  the  world,  sinee  of- 
tentimes there  is  notorious  detections  of  per- 
jury, tend  several  things  are  difficult  to  be  dis- 
closed, and  require  a  reasonable  time  for  exa- 
mining into  facts ;  from  thence  it  is  that  there 
are  settled  courses  for  determining  all  ques* 
tions  in  England  between  party  and  party; 
and  there  are  known  rules  and  good  methods  n>r 
the  relieving  against  any  ill  judgment  that  is 
given. . 

Whatever  you  may  think  of  this  particular 
case  of  the  duchess  of  Norfolk ;  the  exampU 
is  of  mighty  consequence  to  all  parents,  that 
perhaps  mske  hard  Mh  to  give  their  daugh- 
ters considerable  portions,  and  may  think  they 
have  married  them  well,  and  made  provision 
for  them  and  their  children :  1  say  it  will  b^ 
hard,  if  their  daughters  should  be  sent  home  to 
them  upon  a  formight's  warning,  and  that 
witnesses  should  be  examined  against  them 
without  their  having  notice  so  much  as  of  the 
^places  of  their  abode  ;  and  a  thing  should  be 
determined  before  the  witnesses  can  be  well 
known :  and  it  must  be;  ai^reed  to  be  of  preat 
consequence  to  all  collateral  heirs,  if  marriages 
are  so  easily  and  suddenly  set  aside  for  want  of 
issue;  which  I  find  to  be  one  of  the  causes  as- 
signed for  this  bill,  and  that  it  might  be  in  a 
summary  way,  perhaps  before  thoy  can  well 
hear  of  it.  ram  sure,  this  is  a  matter  of  too 
great  temptation  to  be  put  upon  lupu  that  may 
grow  wenry  of  their  wives,  and  desire  a  better 
fortune,  or  desire  change,  or  may  be  movetl  by 
a  thousand  reasons  we  cannot  think  of,  to  re- 
vive old  quarrels,  and  think  of  things  long  since 
passi'd,  if  you  will  see  such  a  precedent  of  di« 
vorciiig  in  such  a  summary  way. 

TIhs  is  sure  of  infinite  concern  to  us  in 
higher  matters.    A  bill  of  divorce  of  %  wonaa 

4R 


12  WILLIAM  III*      Proceedings  betwren  the  Duki  tfKorfM 


10  (wiHmmEDt,  w  if  bout  a  leg^l  trial » is  just  tlie 
wmie  ilnng  as  a  bill  ofaUaiiider  against  u  man 
for  ti^ason ;  ibe  one  forfeits  ibe  estate,  cormpts 
the  blood,  apil  taki^a  away  bb  life,  and  the  otbcr 
does  very  little  Jess ;  for  ]  lind,  according^  to 
the  bill,  il  is  to  forfeit  ber  joLntiire.  to  defame 
ber  peraoti ,  cor r  11  pt  h  er  r^p  aiat  ioa  ;  and  t ho  ugb 
it  leave  b«r  life,  it  is  k ft  «itb  iti4iny,  which  la 
worse  ibat)  deaib  |  and  in  a  cast  of  this  |%h 
morceDt,  sure  you  will  be  careful  how  you 
alter  the  course  of  tri all.  I  beteech  yuu,  Sir, 
will  not  the  reason  be  th^  same,  that  a  bill  of 
attaiuder  may  be  brought  against  a  man,  aftd 
Ihat  wi1n«sies  p gainst  him  may  be  fetched 
from  bevoridsea,  whtch  he  had  fmmerly  dts- 
L  charge<r  fVortv  his  service,  and  put  th«  other 
Mile  to  prove  tirhatis  always  very  difEcult,  the 
negative,  to  uk^ke  his  defence,  which  must 
needs  rcjiuire  a  leasonable  time  for  the  fnaking 
out  of  circumstances,  and  laying  evidence  to- 
gether ?  Where  will  be  the  difference  between 
proceed itig  against  a  man  for  his  life  without  a 
trial,  and  proceeding  against  a  woman  for  her 
jointure,  wnere  b^r  name,  family,  and  reputa- 
tion is  concerned,  and  perhaps  her  children, 
the  legitimacy  of  whora  must  come  it^  qucs« 
tion  ;  and  in  a  case,  where  the  pen^Du  by  no 
behaviour  of  hers  bath  furfeiteil  such  a  trials 
nor  the  person  that  prosecutes  this  liill,  cannot 
shew,  that  be  bath  beer:i  obeitrncted  iu  his  pro^ 
eecding  in  the  oroinary  way  ?  I  ueed  not  take 
notice  of  what  f:^\Qry  body  k'noffs,  that  we  have 
a  happy  constitutio^v  if  we  can  keep  it ;  efory 
man  can  call  hit  wife  bis  own,  and  hia  estate 
bis  own,  because  it  cannot  be  taken  away  but 
by  legal  tiiat ;  hut  if  you  w\\\  go  into  ibeie  ex- 
traordiuary  resc^rts,  when  the  courts  and  the 
law  is  open,  withiftit  any  pre?ious  preparations 
for  th^it  mailer,  by  baring  a  tair  examination, 
that  the  party  cannot  say  there  u^  a  snrpriize,  I 
know  not  where  it  will  end  ^  and  thouc:li  in  one 
case  it  may  be  desi ruble,  that  there  should  be 
an  extraoi^ioary  relief:  but  ^ill  this  go  no 
farther  f  Can  any  body  sav  tb&tf 

That  which  we  find  in  Magna  Chorta  is  not 
to  be  forgot,  where  there  is  so  much  care  in  the 
■everal  instances  of  it  for  the  preserving  of  pro- 
perty, and  the  right  of  trials,  *  Unod  nullum 

*  dc^truatur,  nee  super  eum  ibimus^  nee  super 

*  eum  mittimus,  nisi  per  legale  judicium  pirium' 
'  iuornra  rel  per  legem  terne/ 

Why,  iu  this  cajse  the  ecclesiafitical  law  is 
lex  terrtE,  And  if  that  be  to  he  taken  away 
without  any  reason,  why  may  not  the  law  in 
any  other  case  ? 

We  have,  perhaps,  in  time  of  great  emer- 
gency and  public  ditficultiea,  bad  some  ei^ra- 
nrdinary  laws  grounded  on  extmordinary  rea- 
sons ;  but  now  we  are  in  a  time  of  settled 
peace,  when  there  may  be  a  jiitt  deiermiuaUon 
according  to  the  lawoftheUnd,  t  cannot  sc« 
any  reason  for  this  proceeding,  no,  not  in  thi:^ 
pariicular  case, 

I  would,  Bir,  with  your  favour,  take  notice 
of  those  few  in»taucet  of  this  kind,  that  have 
l»een  in  England  by  act  of  parliament^  and  m 
what  maDoer  ibey  bafe  procieeiicd. 


There  hare  not  passed  hii^l^  sis  ii 
dred  years;  I  thioV  I  may  chullcn^ 
the  other  side  to  shew  so  great  a  m 
those  I  have  I  shall  quote:  but  \\\ff 
in  another  manner  than  this  has  dont. 

It  ia  tfuei  where  persons  ba^e  hul 
in  a  proper  court,  and  wit n eases  hif* 
min^,  and  sentence  tiutil  been  pri 
and  \i  here  the  jiarty  as  to  the  f^t 
concluded  according  to  the  h\\  at  i 
when  all  this  hatb  passed,  sojm 
there  have  been,  that  aftcrt^sink  an  i 
liament  has  pa&«ed  to  fitrc  <^gtbea  the 
and  to  carry  it  farther  than  th«  ^t 
court  wiiralZow,  even  lo  lhe*litK 
marriage,  and  enahling  the  inawtni 
marry  a^n  ;  but  you  will  find  sll 
are  founded  and  built  upon  the  licatm 
courts,  and  recite  those  sentenits  i 
inducement  to  the  pasdng  of  those  tn 
cmv^  leate  jnjrt  to  take  notice:  of  th 
firat  we  hndj  is  that  made  in  ihe  t 
niai'(|uis  of  Northampton,  which  vrai 
He  was  married  to  a  daughter  of 
E<i«es,  and  she  eloped  trom  htm,  so 
secuted  in  the  ecclesiastical  courts 
was  sentence  againa.t  htr  of  divon 
marquis,  from  hence,  took  upon  bic 
adiiughterof  the  lord  Cobhamj  am 
years  marriage  of  her,  he  oblain«d 
parlianieut  to  ratify  the  se«oa4 
which  act  recite  a  settlement  ofdif 
ecclesiastical  court. 

This  toai  its  rise  from  examiaatiai 
to  law ;  and  that  act  of  parliamctiiif 
upon  it,  and  recites  it  an  a  previaui 
cesaary  to  induce  that  act. 

The  ne^rt  that  foUows  was  tbe  hm 
the  lord  Ross,  afterwards  earl  d 
though  there  jierb^ps  was  ^  f^reAt  i 
of  fact  a^  cnn  be  prcteivded  in  tbis  d 
did  not  stand  iin[reiicbed  of  auj  in^r 
havjonr ;  hut  even  in  that  case  the 
the  act,  folio wt!d  a  divorce  in  ibc  ec 
court,  and  I  hat  pa^eil  with  ^nch  ditB 
it  was  four  }ears  iu  hand ;  it Wgan  ii 
and  was  not  pass^ed  till  ^vcnty  :  I  b 
of  it,  find  it  says.  That  forssfiiucb  i 
commonly  called  lord  Ros^. 

And  it  procee^l^  thereupon  to  cn^ 
marry  again  ;  but  this,  8ir,  could  no 
two  acts  of  parliament,  besides  the* 
the  ecclesiastical  court  ^  for  he  Rr 
court  to  declare  the  children  illcgii 
then  in  the  year  (70)  the  parliament 
act. 

]  know  nf  no  other,  till  we  coa 
that  buppeneil  within  our  memorj 
case  of  a  person  of  great  worth,  tlM 
will  give  no  offence  when  I  cite  ibi 

h  was  the  case  of  Mr.  Lnkaoar 
been  grossly  abused  by  bis  wifct  kf 
and  etpen  aduhery  ',  out  ttie  act  i 
went  no  farther  than  to  disable  ll 
born  while  she  lived  in  opt^n  jdulltifl 
act  recites  a  sentence  of  divorcer  In 
of  it,  and  1  crave  leave  I  may  rtiJ  < 


1 


and  his  Duchess fjbr  a  Divorce* 


A.  U.  1700. 


[1350 


reciten  that  Mr.  Lakenor's  wife  had  | 

in  her  hasbaDd. 

vas  indeed  a  famonscase  not  long  ago, 

that  was  taken  away  by  force,  and 

to  be  married,  and  an  act  of  parlia- 
le  afterwarda  to  declare  that  marriage 
Old ;  but  even  there  was  a  proceeding 
th  a  witness.  The  person  that  had 
»med,  was  actually  indicted  and  exe- 

was  not  there  to  make  a  divorce,  and 

been  a  vain  thins  to  have  gone  into 
aal  court,  where  there  was  no  mar- 
»*  it  was.  only  a  law  after  the  fact  de- 

by  way  of  caution,  to  give  the  more 
m  that  that  marriage  was  null  and  void, 
e  last  T  know  of  ^and  it  may  be  proper 
>  observe  hew  quick  these  people  come 
ras  that  of  a  noble  earl,  that  did  obtain 
ament  an  act  for  divorcing  him  and 

it  is  the  case  of  the  earl  of  Maccles- 
It  in  that  case  it  will  be  proper  to  take 
YOU,  that  there  were  previous  proceed- 
be  ecclesiastical  court ;  there  was  a 
libited  against  her,  a  charge  upon  her, 
ssses  examined,  and  she  had  a  fair  op- 
f  of  making  her  defence ;  there  was  a 
ad  a  long  proceeding  against  her,  and 
ition  of  nor,  in  order  to  a  sentence  of 
inicatioo;  and  then  there  came  the 
tition  into  the  House  of  Peers,  setting 
i  there  bad  been  such  a  proceeding  as 

that  she  stood  in  contempt,  having 
lecuted  as  far  as  that  court  could  go : 
examination  of  witnesses,  in  all  the 
sve  heard  of  a  divorce  by  act  of  par- 
ihere  bave  been  proceedings  in  the  ec- 
al  court ;  this  was  the  way  of  former 

now  we  are  beginning  where  the  mat- 
t  to  end. 

vr  tlie  first  application  is  to  that  place, 
■11  these  instances  (as  I  think  it  ought 
IS  the  last  resort.  It  is  true,  this  nie- 
f  not  please  the  duke,  for  we  know  his 
a  haste  for  cutting  the  knot  asunder  at 

the  legislative  fiower;  but  i  hope,, 
se  precedents,  you  will  think  it  more 
le  it  should  be  at  first  untied,  or  at 
iened  by  a  jndicial  proceeding.  If  you 
» not  see  how  in  justice  the  parliament 
'  the  like  remedy  the  next  sessions  to 
r  that  may  be  in  the  like  case ;  it  may 
rse,  for  here  is  no  pretence  of  any  sp  i- 
iie.  Can  the  parliaroetit  of  £ngland, 
we  take  our  measures  of  justice,  deny 
remedy  in  justice  to  any  others  that 
e  like  case  ?  What  is  it  tbat  guards  you 

infinite  application  of  this  nature,  but 
p  persons  to  take  the  ordinary  coarse 
i  to  come  round  about  to  the  parlia- 
1  the  last  remedy,  to  carry  the  sentence 
farther  than  the  ecclesiastical  court  can 
if  persons  can  come  up  directly  hither, 
t  to  think  vour  lobby  will  be  crowded 
ItKNiera  of  this  nature  the  next  sessions ; 
Ihe  sessions  now  are  long  and  frequent, 
rie  business  may  be  so  great  as  to  ob- 
I  other  business ;  I  am  sura  a  commit- 


tee for  adultery  would  have  a  full  employment. 
Let  it  be  considered  how  strange  it  would  bet 
if  some  poor  man,  upon  this  precedent,  shall 
come  and  make  application,  and  tell  you  ha 
stands  in  need  of  such  a  bill  from  the  condition 
of  his  family ;  that  his  wife  plunders  his  house, 
sells  his  goods,  and  lives  in  adultery,  and  prays 
this  matter  may  be  examined  in  a  summary 
way,  because  he  is  not  able  to  go  through  th« 
costly  course  of  ecclesiastical  courts,  and  be  fa- 
voured with  a  divorce ;  would  not  this  poor 
man's  case  seem  to  have  the  like  justice,  or 
possibly  more  ?  And  yet  if  such  a  mean  man 
should  come  with  such  a  petition,  perhaps  it 
would  look  strange ;  but  yet  in  justice  there  is 
no  respect  of  persons ;    the  law  in  England  is, 

*  unum  pondus  et  una  meusura ;'  and  if  thia 
should  be  done  in  the  case  of  a  great  and  rich 
man,  and  not  for  a  poor  man,  they  may  say 
what  has  been  said  by  some, '  That  our  laws 
'  are  like  the  spider's  web,  which  only  hold  the 

*  lesser  insects.' 

Shall  those  tbat  expect  the  best  foitunei  andl 
greatest  advantage  by  marriage,  not  undergo 
the  bad  fortune  of  marriage  too  f  1  am  sure  if 
this  be  so,  it  is  a  privilege  of  peerage  never 
thought  on  before. 

You  may  see.  Sir,  by  this  bill,  how  prece- 
dents ^row  ui>on  you ;  at  first  in  the  case  of  the 
marquis  of  Northampton,  it  was  bard  to  get  aa 
act  after  a  divorce :  so  it  was  in  the  case  of  iny 
lord  Ross ;  the  last  sessions  in  the  cave  of  the 
earl  of  Macclesfield ;  it  went  farther  there,  be- 
cause there  had  been  a  previous  proceeding  in 
the  ecclesiastical  court,  and  his  lady  had  ob- 
structed that  sentence,  that  act  passed  before 
sentence ;  but  now  we  are  come  to  have  it  done 
without  so  much  as  a  trial  to  get  a  divorce  m 
the  ecclesiastical  courts;  to  have  all  passed  at 
once  in  a  summary  way,  it  will  be  but  to  peti- 
tion the  parliament,  and  all  shall  be  determined 
without  a  possibility  of  being  re-hcerd. 

1  know  nothing  can  be  said  on  the  other  side 
With  good  reason  (unless  that  which  I  heard  in 
another  place),  why  they  should  not  go  to  the 
ecclesiastical  court,  which  isj  that  those  courts 
cannot  divorce  ^fiifiCtt/a  matrimony  ;  therefore 
it  would  have  been  a  vain  thing :  this  may  be 
a  good  reason  for  them  to  come  to  you  afteir- 
wards,  but  it  is  no  reason  for  them  to  come  here 
at  first,  unless  they  would  say  at  the  same  tin^, 
that  every  thing  ought  to  be  begun  in  parlik- 
ment,  because  it  is  |)ossible  every  thing  mav 
be  brought  to  the  House  of  Peers  at  last :  wiU 
thejT  say  that  all  ejectments  ought. to  be  begun 
originally  in  the  House  of  Peers,  because  tA\et 
the  |>arUes  have  been*  at  great  charge  and 
trouble  in  the  courts  below,  they  may  be 
brought  thither  bv  writ  of  error  at  the  laslP 
This  would  have  been  a  good  expedient,  in  a 
cause  lately  where  a  deed  was  tried  over  and  over, 
if  the  persons  concerned  in  so  many  verdicts, 
had  -once  thought  of  having  begun  in  parlia- 
ment to  have  had  it  settled,  whether  it  was  a 
just  deed  or  no ;  if  this  be  the  rule,  it  would  be 
well  it  were  known,  and  made  to  be  the  law  of 
the  kingdom;    for  tbat  law  will  be  always 


r 


12  WILLIAM  UL 


I 


t^ak«n#?tJ  bard  whtdJi  ts  made  in  one  case,  if  it 
rniiy  uai  fie  bad  m  another  ;  tbe  law  of  Euy- 
larid  doe*  eo  ibroug^iout,  and  if  it  be  law  for 
me  k  i«  lor  aooliicr.  I  have  but  one  thing 
wore  to  lay  befort?  ^^oti,  apd  that  »eerua  worthy 
€f  your  cviisideratron,  besitks  ftU  tbat  I  ha^e 

YiMi  obf^rf e  ibe  bill  ir  general,  without  te- 
•Iroiut  ©riJine  and  jjkce,  or  ile*criiition,  of  cir- 
#omit&n<'e«  reladof  k^  the  fact:  now.  Sir,  I 
mniil  take  leave  to  an^u^mt  you,  that  m  long 
•go  as  April  16^4,  bii  jfnice  the  duke,  who 
©{m»Mlain«ortb(K  rnait^T,  su  Jf  soiue  misfiiflime 
had  WnJlen  him,  hurinjf  madt*  f firmer  corn- 
pb^iits  and  atleitipf*  <Vjr  fylitwiuing  whftS  be  now 
de^ires^  did  at  hm  »ri  ApFil  1094^  not  stiddetily* 
Itiit  by  advice  of  coutibH,  with  hi«  Otend*  about 
him,  afti^r  a  Joriij  time  of  nyitalion,  come  to 
liHifleft  with  Im  wife  the  diiebess  ;  of  which  ( 
omie  Jenre  ooly  lo  read  \ke  iireamhle. 

Th*  urticle?!  m\*  belwi-en  hw  ^^riice  the  duke 
of  Norti>lk  and  ibe  Earl  id"  i^elerhoroogb,  and 

If  in  ibit'rrfore  deterniined  by  tbe  partie^^  and 
am'^d  a«  folio ii'eth ;  ami  therfupfm  the  arti- 
cle prr»cenl  to  seitle  every  tbbg  between  the 
duke  and  duehefs  to  hiso^iii  Batisiaclion,  and 
«CL'orifing  to  his  own  dt-she:  hb  grace  bath 
reaped  rhe  bencHl  of  tfiofc*  articks^  by  having- 
reeeirrd  a  gri-at  sum  of  motipy  ;  and  the 
diit-iiesfi  pMdrt!  with  her  interest  la  that  great 
and  noble  inaoor  of  Sheffielti ;  his  |f?ace  hath 
liad  aK  tbat  be  on  his  jiart  wag  to  have,  and 
liaitii  executed  abundance  ut'deetli;,  nar^natitto 
llbtgtei^nient.  Now  if,  nt^er  all  this,  there  be 
fl '  prosfjet't  of  fan  her  advantage  by  auolher 
marrin^i.^  that  will  not  uiuve  you  topve  hifn  a 
liberty  for  n  departure  from  so  solemn  an  afiree- 
ftaent ;  in  what  a  cundition  nre  peu]de  that  havD 
purchasetl  their  peart?  as  the  duchess  ha/?,  if 
tiiey  tXiiiy  have  liberty  to  l^o  back  Iteyond  this, 
Fcir  the  iidl  has  no  F^tint  ?  iSioeiy  all  reconcitk-^ 
lion  between  men  :ind  tht'ir  wivpra,  and  all  acts 
towardii  them,  and  all  acts  of  kimliiess,  arc  to 
be  t  a  van  red  ;  and  matters  of  a  divorce  are  of 
ftu  odiou-s  nntULT,  and  uot  to  be  encotira^ed 
after  such  cnnipoitiirc  of  differences,  and  recon^ 
ctliation.  We  have  instaocei  of  some  thai 
have  taken  their  wiveii  og^ain,  and  livtd  com- 
fortably afierwiitik  ;  surely  it  shall  not  be  in 
their  p<iWtr  to  go  hack  and  say,  Pray  let  us  be 
divorce^]  ;  it  is  contra  ry  to  the  use  id'  all  ncis 
uf  parduii.  \Vh:it  is  the  end  of  all  acts  of 
paiUamet^tof  genrral  pardon,  and  all  statutes  of 
limitation,  but  to  ease  ]>eop]e  in  such  a  ta^e  ? 
For  it  ii  impoasibic  that  any  person  can  be  able 
to  delend  iheir  afttotis  uine  or  ten  years  ago  ; 
Ihey  caunot  keep  tht-ir  wiincs&t*  alire,  and 
thertibr€:  the  hiw  hnth  often  limited  a  time, 
beyond  which  persons  slmll  no(  ^o  bark  :  and 
Aa,  we  think,  the  duke  hatb  done  by  articles, 
and  surely  they  are  eoncIusiTe  both  beJbre  Got! 
and  mnn. 

1  shall  say  no  more,  but  that  1  do  not  appre- 
hend the  nation  will  be  in  any  great  danger,  if 
the  dnke  do,  betwixt  this  and  the  next  session, 
urooeed  In  the  ordinary  coursei  and  prepare 


Proceeifhgs  hdv^^eem  ihe  Dtdi  ofKurfiM  [131 

nutterft  a«|tiiDst  another  aeami  I  mimt 
b  of  gr^t  con£r«iuetice  ;  ti«  ttM  <u  iiti^li 


we  have  a  good  coustitution ;  kitifHktili 
case  of  a  particular  ptxsM  la  Ik  bmkfn^ti^i 
breach  in  ihi^  constitution  miy  ao(  be  ror 

easily  reoof  ered, 

I  liope  tbli  eaiute,  thut  a  pm^imd 
out  oftime^  and  t>efore  thnst  fmpviiiV 
made  that  hai^e  h^eu  hi  nil  olli«r  cvtt^ ili 
remitted  to  its  proper  phce,  wbcft  tiir  jj^ 
will  ^ve  the  duk«^  a  tuwiaig,  if  ihtj  Wii 
before  that  tinte  recoucded. 

ftlr.  Dodd.  Sir,  Sjitaker,  1  deni^tkfoe 
of  a  f^ord  of  the  tame  mde.  Hich  lililH 
not  com  roon  *  1  t  h  iti  k  ther^  hre  aot  sboft  llm 
instances  to  he  !buod  in  ihe  reeonb  rf  4i 
kingdoni* 

This  bill  is  to  flia^lre  a  marrii^retftcrttBlf 
three  years  ctmtinu^ce*  aitil  thai  rwi  i|a 
10  many  d^ys  notice  a£  there  his  b«n  |<itf 
of  the  sYiarTjage,  for  to  serve  the|iartkikrf^ 
poses  of  one  (lei^OD  :  It  fe  a  b*v  itWrtbti^ 
posed  fact  commitied ;  the  law  *bc*uM  ips  Irfr 
and  the  fact  ibilow ;  it  is  not  a  |tntnl  btif 
all  the  people  of  Eng^land  ;  as  tfudt,  ilii^ 
have  l»een  another  con^fidertiitoa ;  thwt** 
occasion  for  a  particidar  law,  it  is  a  Wtfi* 
the  IjordSjand  in  a  litile  lime,  forwhill  bi»r 
the  Lord*  will  prescribe  to  il.  Thert  ii  **• 
of  these  bills  for  a  coiinj*oner»  imlsaiin  fli|Nl* 
rtoss*f  case,  who  wa.s  of  a  noble  fmmiljr. 

It  is  not  preteoded  by  ihij  bid,  iImn  ^ 
durhe&s  hath  had  any  spurious  ma^,  ili^ 
that  wa»  the  eiroumjsfanees  of  one  of  tl»  m 
that  did  psiiw,  and  that  was  a  tpaif rial  a«* 
stani'e  In  tht-  case  ;  and  thai  \i  ant  ''^MP 
hercr  These  hith  are  not  to  bemdea^*( 
but  upon  csrtraordinary  occasiooi  i^^  ^ 
utmost  extrcmiEy,  and  lili  tht^n  f  hapesaci!  •• 
bbaU  not  be  niade  use  of;  and  we  tlajnl'j 
prot^eeilirirf  upon  tbis  bill  in  this  ti%  ** 
a  ppear  much  harder ;  for  it  Is  the  fir«it  irtsyt^' 
this*  nature,  when  there  has  been  no  ptw^al 
i  11  it  o  V  CO  u  rt  w  h  atsoe ver ,  to  coot  ii  t  ilw  d  «** 
of  this  offeore,  no  citation  all  this  whifci** 
ecclesiastical  courts,  where  the  docbc!»<"f* 
have  ail  opportiinitv  to  tuake  her  defeM*- 

If  tboie  courts  bsTe  jurisdiction  io  mt  • 
thing*  il  is  in  cnse  of  malrimoaj  i  If  ^''^ 
brought  into  lh*>sc  courta,  the  durbei  ■»! 
bo  allowetl  to  make  her  dtfence»  noiwjf  7 
way  of  recrimination,  but  exam inaUfW*  *'•■* 
nesses ;  a  commission  might  be  haJ^*"* 
amine  whnesses  beyond  s^.  if  tb«  ^*J^ 
witnesses  there,  or  in  th«  country  ;  ''*^'"£ 
appeal  to  a  superior  court,  and  th«Dt*  ^ 
delegutes  :  These  are  all  proper  dHiftif^'^ 
the  law  allows,  thai  there  may  be  do  s»ff* 
tffron  the  party  ;  and  it  injnred,  be  |°*L- 
ri  If  bled  in  another  place:  These  |>r(>0«***n 
we  think  are  necessary  to  go  before  1  "J, 
this  nature,  for  then  the  fact  woulfl^F** 
and  if  the  ducbeis  had  been  H>afiri** 
thiji  nmnner,  aa  lo  the  fact,  we  t^^^ 
have  o|)ened  our  mouths  agaiuft  it. 

By  the  same  reason  that  a  bill  h  ht^w 
dissolve  ibii  murriage,  in  a  tittle  tiiue  }^  ^' 


and  his  Duchest,Jbr  a  Divdrce* 


A.  D.  1100. 


[1S54 


(mB  to  mairy  people :  Be  it  enacted  for 
ad  socb  reisoDs,  such  perMDs  shall  be 
I.  This  would  be  a  much  readier  way 
of  contracts,  than  any  proceedings  in 
lenastical  courts.  And  though  they 
ly  the  law  of  £ngland  takes  notice  of 
ti  of  matrimony,  as  well  as  any  other 
at  is  no  answer ;  for  the  fact  is,  whe- 
re is  any  contract  of  matrimony,  or  no ; 
t  is  here,  whether  my  lady  is  guilty  of 
DCS  charged  here  in  the  bdl ;  and  for 
ought  to  have  a  proper  trial,  and  ought 
lied  to  an  account  in  the  ordinary  roe- 
tbe  law ;  and  then  it  might  be  proper  to 
e  sentence  farther  than  those  courts  can. 
ou  will  be  very  tender  of  making  a  new 
it ;  and  I  do  not  know  of  any  bill  before 
convict  a  woman  of  a  supposed  crime ; 
I  is  the  first  bill  of  this  nature,  and  you 
Mider,  whether  you  will  make  a  pre* 
f  it  or  no.     Though  this  before  you  is 

of  a  ^reat  and  honourable  person,  yet 
ticewiU  be  the  same  if  it  should  hapiten 
'  other  man  in  ttie  kingdom  should  be 
tme  circumstances,  and  willing  to  slip 

trials,  whereby  the  person  accused 
ave  an  opportunity  .of  making  her  just 

as  is  the  case  of  this  noble  lady,  who 
nI  on  atlter  twenty- three  years  nuur- 
a  determination  in  as  many  days  in  this 
inary  manner. 

le  theretbre  you  will  not  proceed  in 
r  this  extraordinary  nature,  of  which 

not  one  instance  to  be  given,  where 
e  begun  to  examine  a  supposed  crime, 
have  always  letl  it  to  |he  determina- 
he  law  in  the  ordinary  course ;  and 
i  it  ought  rather  to  be  so  in  this  case, 
it  is  not  pretended  by  the  bill,  that 
iny;stop  put  to  their  proceed insfi  there ; 

00  abstDceof  witnesses,  no  iucapacitj^, 
fraoe  may  proceed  there  to  convict  this 
he  crime  he  supposes  her  guilty  of,  and 
there  have  her  just  defence  ;  and  till 
re  is  no  crime  tor  you  to  judge  upon, 
>pe  you  will  think  fit  to  reject  this  bill. 
imfold,  Mr.  Speaker,  I  desire  to  speak 
»rds  as  to  the  ecclesiastical  law,  which 
of  the  law  of  England  as  much  as  any 
vr  our  Idw  does  not  receive  <  majus  et 
;'  and  the  ecclesiastical  courts  have 
ded  for  several  ages,  and  are  governed 
rules  which  every  subject  has  a  ri};ht 
this  bill  is  to  dissolve  the  bond  of  mar- 

mI  to  give  leave  to  marry  again  ;  and 
leave  to  shew  the  House  what  our  ec- 
al  constitutions  are  in  that  case,  and 
Icr  they  have  been  in  that  point,  and 
ie  constitutions  a^e  funded  upuu  the 
nd  decrees  of  councils. 
ises  where  tlitf  bond  of  marriage  is  ta 
red  are  but  few,  and  they  arise  before 
s ;  it  is  in  the  case  of  a  precontract  or 
or  consanguinity,  and  there  the  bond 

1  by  the  sentence  of  the  judge,  and  the 
itD  liberty  to  marry  a^n ;  but  for 
•M  afterw ardi|  whether  it  be  the  case 


of  adultery,  or  any  thing  elye,  the  law  eccl»* 
siastical,  which,  as  I  said  before,  is  |>art  of 
the  law  of  England,  hath  been  very  careful  do| 
to  dissolve  the  marriage. 

The  48lh  canon  says,  if  any  layman  ahall 
put  away  his  wife,  and  marry  another,  he. 
shall  be  excommunicated  :  Tliat  was  the  sease 
of  those  early  days ;  and  sure  they  did  not 
.  think  it  an  indifferent  matter  because  they 
punished  it  with  so  heavy  a  punishment.  I& 
It  was  in  the  council  of  Aries,  314,  and  there 
it  was  decreed,  that  if  a  man  took  his  wife  ia 
adultery,  ha  should  be  forbidden  to  marry. 
There  what  was  to  be  done  ?  Counsel  should 
be  given  him  not  to  marry  while  she  lived» 
though  she  was  an  adultress. 

And  in  the  council  402,  the  Neapolitan  evan- 
gelical, apostolical  council,  it  was  decreed. 
That  if  a  man  was  divorced  from  his  wife,  or 
a  wife  from  her  husband,  there  they  were  not 
to  marry,  but  should  remain  unmarried,  or  be 
reconciled. 

And  in  the  African  council,  canon  108,  there 
it  was  provided.  That  they  who  were  divorced, 
whether  it  was  a  husband  from  his  wifo,  or  a 
wife  from  her  husband,  they  should  remain  un- 
married. This  was  the  sense  of  the  ancient 
canons  and  councils,  and  this  is  received  into 
our  ecclesiastical  constitution.  In  the  15th 
year  of  the  reign  of  queen  Elizabeth,  in  the 
chapter  of  divorces,  it  is  said,  That  upon  a 
sentence  of  divorce  there  must  be  an  admo- 
nition, and  a  prohibition,  that  the  party  ahall 
not  marry  again. 

And  in  the  year  160S,  in  the  beginning  of 
king  James's  reifi^n,  there  was  a  farther  pro- 
vision made  to  keep  tliem  from  being  mar- 
ried again,  and  that  was  this.  That  they  should 
give  bond  and  security  that  they  should  not 
marry  again ;  this  is  certainly  our  ecclesiastical 
coustitution,  and  grounded  on  the  sense  of  the 
ancient  canons. 

Now  it  remains  to  shew  some  advantage  thia 
would  have  hatl :  If  she  had  had  the  trial  which 
of  common  right  is  due  to  the  meanest  subject, 
she  would  have  had  the  advantage  of  chal- 
lenges, which  she  cannot  have  here ;  for  here 
the  evidence  must  drop  from  the  witnesses' 
mouths,  who  are  foreigners,  and  have  been  fong 
absent ;  there  they  must  give  an  account  of 
themselves,  which  here  hath  not  been  done  by 
any  body.  The  lady  might  have  given  her  ex- 
ceptions to  those  witnesses,  and  had  a  commis- 
sion into  Holland,  to  have  examined  how  these 
witnesses  behaved  themselves,  and  whether 
these  oersont  were  to  be  believed  and  credited : 
here  she  would  likewise  have  Uberty  to  give  aa 
account  how  this  design  began.  I  do  now 
speak  with  respect  to  the  doke,  but  I  do  say  it 
does  seem  to  have  begun  a  year  and  a  half  ago. 
She  would  likewise  have  had  the  advantage  of 
a  thorough  reconciliation :  and  here  are  some 
deeda  in  1694,between  the  duke  and  the  duchess, 
which  1  hope,  if  the  House  will  take  an  ac- 
count of,  will  have  its  due  eflect ;  she  would 
likewise  have  had  the  advantage  of  an  appeal, 
the  eommoo  right  of  theeol^ieGty  and  grounded 


feoccfl,  ami  even  ber  recrimination,  and  had  a 
time  to  prove  it ;  there  was  publication,  and  a 
day  set  down  lor  acntence ;  but  vlie  spun  out 
thp  time  till  the  narliameut  was  road^'  to  rise, 
and  then  my  loriVs  friends  advise<l  him  to  be- 
^\n  in  parliament ;  and  when  the  Lords  were 
acquainted  of  my  lady  Macclesfirld*s  standing 
in  contfmpt  of  the  court,  and  she  was  prose- 
cuted so  far,  that  she  was  almost  ready  to  f;^ 
to  prison  for  her  contempt,  then  the  House  of 
I^rds  did  think  fit  to  receive  my  lord  Maccles- 
field^K  bill,  and  not  before ;  but  before  my  lord 
Macclesfield  brought  his  bill  in  parliament, 
there  was  nothing  remained  to  l)0  done  in  the 
erclcsidstical  courts  but  sentence :  and  I  hope 
for  all  these  reasons,  you  will  not  proceed  upon 
this  bill. 

Mr.  Seij.  Wright.  Mr.  Speaker,  I  am  of 
counsel  tor  the  dake  of  Norfolk ,  who  is  your 
supuliant  for  this  bill,  for  redress  against  the 
highest  injury  that  can  be  oflircd ;  the  rights 
of  his  marriage  Ited  have  been  invaded,  nnd  he 
crines  for  that  relief  here,  which  no  other  court 
ran  alTorrl  hiiu  ;  for  the  learned  doctor  on  the 
other  sidi^  tislls  you  plainly,  from  the  canon 
law,  thut  there  ca*n  be  no  divorce  n  Tinculo  nm- 
itiiKonii  in  their  courts:  now  to  send  us  to  a 
court  iWr  relief,  that  they  tell  us  before-hand 
c.in  ;;iie  us  none,  is  in  effect  to  tell  us  we  shall 
have  none  at  all. 

The  bill  is  founded  upon  the  suggestions  con- 
tained in  the  first  three  or  four  lines  of  the  bill, 
that  the  duchess  of  Norfolk  hath,  for  divers 

J^ears,  lived  in  separation  from  the  duke  her 
lusband,  and  hath  had  unlawful  familiarity  and 


have  come  away  before 
they  were  in  the  spiritual 
ceeiUng  there,  to  leave  thai 
a  mistrust  of  their  own  \ 
objection  in  that  case,  t 
away  from  the  jurisdictior 
^Ve  do  not  come  to  you  1 
ritual  court  can  grant  us 
no  farther,  if  the  fact  be 
a  se|)aration  a  mensa  et  ti 
marriage  is  to  be  contin 
submission,  this  is  to  pu 
stead  of  the  guilty :  wh: 
desire  more,  than  to  be  s( 
and  board  of  her  husban 
accompany  sir  John  Ge 
further,  for  we  come  to  t 
solve  this  marriage  for  ' 
by  several  learned  write 
reason  for  so  doing,  fur  a' 
the  wife :  it  is  expri^^ly, 
put  away  bis  wife,  e.\ce 
tion  ;  this  text  plainly  al 
fornication  a  man  might 
but  the  Popish  canons  tl 
have  put  a  construction  u 
shall  put  her  away ;  but 
moved  from  your  bed  an< 
not  marry  another.  Thi 
no  precedent  of  a  bill  of 
liatli  been  a  previous  pro: 
tual  courts.  I  agree  the  i 
tou's  case,  that  that  act  dt 
ings  in  the  spiritual  C4>ti 
stroi:ger  than  this,  for  1 


and  his  DuchcsSffor  a  Divorce. 


A.  D,  1700. 


[1358 


r  for  a  Iodj;  time,  and  that  sbe  had  kept 
V  ^ith  others ;  so  that  the  parliameut 
[oimd  thi  bill  apon  what  had  been  done 
e  divorce. 

•eal  to  your  own  memory,  that  in  the 
Macclestield's  case,  there  was  no  use  at 
bat  side ;  the  bill  was  brooght,  that 
ad  been  proceedings  in  the  spiritual 
or  is  there  any  such  thing  recited  in  the 
:  only  an  express  downright  charge  of 
r ;  nor  was  it  proper  for  them  to  have 
Led  any  proceedings  in  the  spiritual 
ince  they  waved  that  prosecution ;  but 
he  other  side  insisted  on  it,  as  a  reason 
e  pariiament  should  not  proceed  in  it,  it 
I  take  upon  them  an  original  jurisdic- 
ut  we  were  then  answer^  by  a  learned 
lan  against  this  bill,  that  it  was  in  vain 
ere,  for  they  could  not  give  the  remedy 
;bt  reasonably  be  expected.     I  beg  the 

0  mention  a  case  or  two,  where  divorces 
en  in  parliament,  and  there  have  been 
ecdings  in  the  spiritual  court ;  one  of 
KS  the  case  of  Mrs.  Kniqfbt,  who  was 

infra  annoi  nukiles  to  Mr.  Goodw-in. 
ine  knows,  that  a  marriage  infra  annos 
m  a  good  marriage ;  and  if  the  woman 
D  nine  ^ears  old,  she  shall  be  endowed  ; 
:  notwithstanding,  for  some  irregular 
ings,  without  going  into  the  spiritual 
wy  came  into  parliament ;  a  bill  was 
by  which  this  marriage  was  dissolved ; 
link  it  is  expressly  enacte<l, 
the  shall  not  marry  till  such  an  age. 
cs  farther ;  for  here  I  am  sure  the  doc- 
Id  have  explain^,  and  told  you,  if  there 
D  reason  to  dissolve  the  marriage,  they 
ave  done  as  great  a  feat  in  the  spiritual 
that  thev  could  have  examined  wit- 
npon  oath,  and  could  have  told  you 
*  there  was  proper  evidence ;  yet  the 
ent,  without  any  reganl  to  what  they 
I,  would  assert  their  own  jurisdiction. 
iue  of  Mr.  Wharton  was  mentioned  on 
if  side ;  and  therefore  I  need  not  say 
ig  to  it :  there  was  nothing  of  divorce, 
led  any. 

say  tiiis  hill  begins  where  it  is  proper 
ers  of  this  nature  to  end ;  and  that  after 
!  taken  a  turn  into  the  spiritual  court, 
elled  three  or  four  years  there,  then  it 
St  for  the  judgment  of  parliament.  I 
mow  if  they  had  been  seven  years  in 
rt  (and  pernaps  if  they  come  there,  we 
t  get  out  sooner)  to  what  use  the  exa- 

1  of  that  court  would  be.  This  house, 
oe,  would  not  let  those  depositions  be 
v,  especially  if  the  witnesses  to  their 
re  living. 

say  this  is  a  very  summary  way  of  pro- 
l  it  may  be  too  quick  for  the  duchess ; 
may  be  pleased  to  consider,  that  there 
ill  brought  into  the  other  House  some 
po,  and  rejected ;  upon  what  terms,  that 
t  opon  as  to  sbcw  you  by  and  bye. 
■e  matter  was,  the  witnesses  that  proved 
I WM  lent  out  of  the  way  by  the  ducheis 


and  sir  John  Gcrroaine,  when  tilings  were  un- 
der an  examination;  and  we  hope  a  matter  of 
this  nature  never  shall  be  baffled  by  keeping 
the  evidence  out  of  the  way. 

We  told  them  long  ago,-  who  the  witnesses 
were ;  tiiey  were  the  ducbess's  servants,  such 
as  they  thought  fit  to  entrust. 

They  say  this  bill  deprives  the  duchess  of 
her  trial ;  1  hope  nobody  thinks  the  parliament 
will  pass  a  bill,  without  due  examination  of 
witnesses,  and  legal  proof  of  the  fact ;  if  so, 
what  matter  is  it,  whether  the  proof  be  made 
before  the  |Nirliament,  or  some  inferior  court  ? 
If  the  duchess  be  guilty  of  this  crime,  we  come 
here  for  relief,  which  the  spiritual  court,  the 
doctors  tell  you,  cannot  give  us;  since  ihe 
duchess  hath  broke  the  kmnd  of  matrimony, 
we  come  to  you  to  dissolve  that  marriage,  aud 
I  hope  we  shall  have  it. 

The  doctor  hath  insisted  on  one  thing,  that  I 
think  is  very  extraordinary :  he  tells  you,  by 
the  rules  or  their  law,  if  the  woman  cain  recrT- 
minate,  and  prove  her  husband  guilty,  in  such 
a  case,  they  must  set  the  fault  of  one  against 
the  fanlt  of  the  other, 

I  wish  the  doctor  could  have  told  you  the 
offence  had  been  equal,  that  the  injury  to  fa* 
milies  had  been  equal ;  a  man  by  his  iiilly  of 
this  kind  brings  no  spurious  issue  to  inherit  the 
lands  of  his  wife,  but  a  woman  deprives  her 
husband  of  any  legitimate  issue ;  for  when  sbe 
converses  in  this  manner  with  another  man^ 
the  issue  may  l)e  equally  looked  upon  to  be  that 
man's,  if  not  more,  and  his  lady  hath  kept  this 
conversation  ever  since  the  year  1<)87,  and  lefl 
the  duke. 

One  thing  is  farther  objected,  aud  they  insist 
upon  certain  articles  of  agreement  in  uinety- 
four,  and  they  read  to  you  the  preamble  of 
them :  why,  8ir,  the  articles,  if  they  come  to 
be  read  through,  I  am  sure  it  won't  amount 
to  whnt  they  pretend ;  it  does  not  amount  to 
this,  that  the  duchess  might  use  her  body  as 
she  pleaded ;  there  is  no  agreement,  that  she 
should  live  after  her  own  pleasure.  Indeed, 
sbe  was  to  have  the  use  of  her  houshold  cfoods, 
and  servants,  and  live  ivhere  she  pleased ;  but 
that  will  not  justify  her  in  her  way  of  living. 

Then  to  tell  you,  these  are  matters  of  long 
standing;  the^  are  so,  and  of  a  long  conii- 
nuancc ;  for,  if  my  instructions  prove  trur,  we 
shall  prove  this  scene  of  ailultery  for  matter  of 
eight  years  successively,  and  that  by  scxvants 
that  wero  privy  to  the  intrigues,  who' were  sent 
away  to  Holland ;  but  no  sooner  was  the  bill 
baffled,  but  tlie  man  was  sent  for  again,  and 
the  same  conversation  continued  that  was  be- 
tween the  duchess  and  sir  Johu  Gcrmaino  bu- 
fore  he  lefl  England. 

The  same  was  continued  ai\er  be  came  back 
to  his  service  in  ^1691) ;  only  they  were  some- 
thing more  cautioui,  and  people  were  not  ad- 
mitted so  familiarly  to  see  them  in  bed  together 
in  (1692) ;  and  so  it  continued  till  1696. 

They  mentioned  the  Statute  of  Limitations, 
which  was  to  put  an  end  to  frivolous  and  vexa- 
tioui  actioni :  bow  .they  oan  apply  it  to  thit 


Proaedingi  tetteetn  th€  Duke  ^N&rfiA 


i 


I  e&ntiot  «•€  ;  bfH3*u»e  »  iii*a  tbiU  not 
tiring  friToIous  an<l  vcicatioos  actions  after  a 
Jong  dislaiiee  of  tiEni.s  lUerefore  a  niBii  shdt  not 
coiiipUiiL  when  be  liatti  recc^ivni  tiie  grealest 
injury  Itml  cau  be  douc  to  iBankind. 

t^ir,  th^y  arc  kind  lo  ui  ftgam,  jo  reeom- 
ineti<1iQ{^  it  lo  ih^  tluke  to  gt»  into  the  «piritutil 
eourt  t)tl  tlie  nrx'i  ti«&<iions  ^  but  we  thiok  wc 
tre  in  prt)[im°  iiiHhud  here,  tbr  thai.  ruUeftv hick 
the  ipiriloal  ^lurt  canitot  ^v%ni  \  and  siote  we 
liai/e  au  ^oi>tl  riMSoi]  lo  cahoc  here*  if  we  pro*!: 
the  l^i.'tf  I  hope  this  hi^h  court  will  not  senit 
twaj  a  criinjdftiui  nfibb  n»tnre»  wiibout  suoh 
reh^f  ai  snitablif. 

Mr.  Nor  they.  Sir^  1  am  of  the  same  side : 
I  ^oiili)  bei^  leave  tu  sn)'  Ihig ;  At  to  W'h^t  the 
#ciuiiiel  hive  siild  hi  relation  to  tU«  evidence, 
that  there  werethi«<H  M^iioeiisea  examined  iJfW*n 
#&Qi,  iQ  the  INiuse  of  Pei^rSf  bt^bre  ibe  hiLl  did 
pasa  there ;  and  I  heller e  Ihey  ttre  aware  of 
that,  aoti  lliat  when  you  bear  our  wirnifwes, 
there  will  he  no  answer  to  be  given  on  llitir 
■ide ;  and  indeed  the  witoessee  they  bronghtt 
were  so  far  iVom  cuMJtra dieting  ourVitn eases, 
that  they  did  rciilly  eonfirm  ibem.  Bui  that 
is  not  the  case  now,  ivbat  oar  evidence  ht  or 
whether  it  he  tit  lor  yon  to  behe^e  ihem,  ibai 
will  be  i*hcn  you  h*ave  beard  them ;  and  for 
the  matter  of  the  liinei  that  you  eaunor  take 
Untice  of  neither,  till  you  hear  our  evidence. 
But  this  1  may  say,  we  shall  bring-  a  man  that 
iviLl  ipeak  to  uilhin  four  or  tive  yean, 

Bttt  the  uialter  thfy  apply  tbemielrea  to, 
which  is  material,  is,  whether  it  is  proper  for 
you  to  proceed  on  this  hi  I),  that  is,  to  p'lve  such 
m  relief  aw  we  desirc.%  hy  dissolvinj^  ihi^  tnni- 
riftgef  And  in  the  next  place^  whether  this  he 
m  proper  time  to  ask  tbi^  favour  f 

For  the  first,  the  iearned  doctor  tells  you,  it 
IS  not  proper  at  any  lime  to  do  it,  for  be  wooM 
bftve  the  caoan  taw  govern  here,  as  it  does  in 
Iheir  courts,  But  the  cotin*iel  on  the  other  side 
have  ciied  you  sevei-al  precetl«nt»  where  il  hath 
been  done.  In  the  Cage  of  the  marquis  of 
Norlbanipton,  the  second  mnrria^  was  con- 
trary to  the  canon  law,  and  yet  that  mat'Hage 
wai  eonfirmed  according  to  Ood*$  law<  And 
this  hill  is  to  relieve  a^n&t  the  canon  law. 

Now,  whether  wc  are  here  in  a  proper  time ; 
■ir  Thonjaa  Powys  has  said  a  great  many 
ibinga,  which  may  be  proper  to  many  other 
purposes.  One  argument  was,  because  the 
witi^e«ses  caonot  he  U|Ton  oath ;  but  that  we 
know  will  nni  prevail  in  this  placc^  In  the 
next  place  they  e?ccept,  because  this  proceed- 
ing is  in  A  summary  way.  I  would  know  of 
them,  whether  there  i«  not  the  same  objection 
to  all  prvceedini^  before  a  jury,  that  they  liaifi 
no  notice  II  bat  witnesses  will  be  produced  ? 

Then  in  the  nejtt  plice  Ibey  vriu^  a  gfreat 
arg^ument  tbr  tbe  recHaJ  of  some  of  these  hills, 
Iliat  there  have  been  a  sentence  in  the  ecclesi- 
astical court!;.  Now,  it  iM  true,  ihey  have  been 
io  in  some  of  those  eaaet»  t  But  I  beg  leave  to 
observe,  that  in  the  eaue  of  ibe  manjois  of 
Nortbarfipion,  thtf  hill  was  not  to  ojnlirtn  the 
Mei«o«e^  or  tu  cttAbAa  t&ea  to  inirry,  ^  to 


deliver  them  out  of  Ibe  lianda  of  tlir  ee 
ticsl  comta,  who  aaid  it  was  D«it  bwful 
ease  to  marry,  #br  they  were  i»amH  bi 

1  beg  leave  to  say,  that  in  the  imm 
Inn)  MiiiCcle^held,  there  w«^  do  ttiAht 
bill  that  came  down  to  yon  of  any  pri^a 
in  the  eocie$ia^tical  c^ourla  :  And  J  ti 
to  be  the  reason^  becaustf  there  was  noiv 
tbougli  where  there  was  m  aenicnce,  th 
trciod  reason  to  take  notice  of  it.  And 
there  h  aa  much  e^rtainty,  and  k  good  | 
to  proceed  on  this  bill,  as  in  ihe  oibtrea 
the  witne^sc^^  have  been  already  t^XMsa 
the  Houic  of  Lords,  In  the  case  «f  a 
Rosa,  there  waa  no  regard  to  the  ddivai 
of  the  ecclcaiaMical  courts,  as  a  ^mie  1 
parliament;  and  il  was  looked  upaa  u 
consequence,  for  tlie  witne^Mi  m&t  Oi 
^in. 

It  is  true,  when  we  came  beforeyoa  »i 
such  a  proceed  in  (f,  we  came  under  tliit  4 
vantage,  you  will  he  sujie  in  expect  i|il 
and  fuller  proof ;  but  for  that  w«  wiQ  ti 
take  to  make  the  fact  lo  [dam,  ihu  ihtfQ 
give  Ibe  least  preleticc  to  answer  ii>  it. 

We  are  berea^kmg  that  we  cannot  him 
where  elae :  their  gi^al  design  i»  Mj, 
that  we  have  learnt  from  tbe  dvilita,  iii 
you,  their  methods  are  very  grar«i«|^ 
rale,  and,  that  they  may  have  a  eofaisi^ 
examine  witnesiea  beyond  sea;  aMll«i 
<ifK|uire  how  their  own  servaiita  bite  fifti 
yond  s^. 

An  to  what  sir  Thomas  Pow^^s  mtM  I 
that  is,  that  we  should  go  loto  tfi^:  ipi 
court,  and  apply  ourselves  here  asfaio  oeil 
fiions,  j  do  noi  tiiink  the  legialattire  will  m 
back  lo  a»k  that  in  ihe  ^piritu&l  cmdt 
both  have  submitted  to :  For  attrr  the 
had  miscarried  in  the  relief  he  sought  t? 
ther  bill,  by  tbe  duchesses  seodiag  tbe  will 
out  of  the  wa^  ;  why,  truly,  after  tlul^M 
vent  any  proseeulioD  in  the  spiritual  CQdr 
ducheai)  submitted  to  a  feparation  bv  »^ 
and  that  was  all  ihe  duke  could  have  ^ 
to  by  the  ecclesiaftical  Jaw  :  We  Wl* 
upon  thai,  and  come  to  enforce  that  sr|Sr 
And,  to  make  it  effectual,  aod  for  that  ^^ 
humbly  hope  will  be  thought  but  JListiee 
duke,  lb  at  is,  to  be  deUvered  fri^m  ttia 
and  to  have  liberty  to  marry  a^in ;  ve 
there  is  uo  occaj^ioti  ^r  delay,  and  tbit  v 
can  be  hurt  by  a  precedent  that  carnet  tt 
this  nature,  and  deJiver  us  froiiA  a  law,  i 
in  the  days  of  popery  was  put  upin  a*. 
ihe  M  hole  matter,  I  bo^je  you  will  think 4 
are  here  very  projierly  for  relief,  M^i  ifc 
shall  bav(»  the  favour  to  c:ill  our  wilaftfi 

Dr,  OiiiiiL  Sir,  the  i^reiii  ohjectjot  ^ 
the  pacing  of  this  hill  was«  bec^iuie  vii 
bad  not  been  eiamined  in  the  proper  evfl 
is  very  true,  geiiemlly  sp^Lin^,  V^  ^ 
ought  to  be  so  ;  bat  hetie  is  a  very  gff^* 
tion  to  that  rule,  and  nbich,  I  thiofc,  I 
admit  of  an  answer^  aud  that  is,  the  «a|fli 
ibe  fact  I  and  in  that  case  thet  bttfiD  *tf 
cution.     And  if  that  bo  wi,  I  thiol ilii 


il] 


and  his  DucIiesSyJbr  a  Divorce. 


A.  D.  1700. 


11362 


a  clesrer  demonstratioD  in  I  he  world ;  for 
ill  formeriy  the  duchess  came  to  give  in  her 
wer  in  the  House  of  Lords,  to  the  charge 
iiiHt  her,  the  did  declare,  that  in  the  year 
or  thereabouts,  she  went  oat  of  England, 
i  tarried  three  years,  and  returne<1  about  the 
le  of  the  revolution.  And  it  does  plainly 
tear  there,  be? ond  all  question,  that  she  was 
lAmbeth,  and  went  under  tlie  name  of  the 
ly  Beckman,  and  was  attended  by  one 
Bemer,  who  went  then  by  the  name  of  Good- 
ID.  Besides  this,  there  are  witnesses  that 
Bik  to  particular  facts.  >ow,  I  say,  here  is 
U  which  amounts  to  demonstrauon ;  and 
ere  there  is  a  notoriety  of  fact,  that  is  an 
sefition  out  of  the  general  rule,  and  it  is 
per  to  begin  with  execution. 
oere  is  an  exception  to  the  general  councils 

canons  that  Lave  been  mentioned,  that 
«  sbaU  not  be  a  divorce  d  vtnru/a.  Sir,  I 
,  it  was  an  ecclesiastical  constitution,  which 

against  the  law  of  GikI  ;  and  it  is  demon- 
^y  BO ;  for  where  our  Saviour  says,  that  a 
I  Aall  not  put  away  his  wife,  except  in  case 
braicatloD ;  it  is  plain,  tliat  in  case  of  foroi- 
"Hi  he  may. 

'here  is  another  thing  insisted  on,  and  that 
hmt  there  was  a  reconciliation  between  the 
K  and  his  duchess.  It  is  true,  a  reconci- 
on  sboiil'l  drown  all  thinjg^  before  that  time ; 
^beo  tlie  law  takes  notice  in  case  of  a  re- 
^  that  does  recrudescerCf  it  rubs  upon  the 
MK,  and  then  that  which  was  before  laid 
«f  is  brought  again  upon  the  stage,  and 
^  yMam  with  greater  ven^^eanoe.  And  we 
'^^hin  proof  of  her  living  in  tlie  same  man^ 
flnoa,  as  before. 

Mm  they  would  insinuate  to  you,  that  in 
»  Ibcre  was  a  trial  in  the  ecclesiastical  court, 
%  aught  be  a  recrimination ;  but  there  must 
k  compensation,  which  cannot  be  thought  in 

cue ;  for,  I  think,  in  this  case,  under  fa- 
1*1  there  is  no  comparison.  I  do  not  tliink 
^  are  pmria^  for  it  is  impossible  for  the  bus- 
i  to  do  that  injury  as  the  wife  may ;  for  she 
^  bring  a  bastard  into  the  family,  and  then 
•stale  does  not  go  according  to  the  law  of 
I  and  nature,  for  every  body  desires  his  own 
jd  should  succeed  him. 
ir  Tko,  Powjfs.  Sir,  1  shall  say  but  very 
Hi  But  three  or  four  things  have  been 
ktioaed  on  the  other  side,  which  they  offer 
"they  oonceived  them  to  have  great  weight, 
yet  they  seem  to  me  as  very  capable  ol 
f  answered ;  and  I  crave  3  our  favour  to 
L 

bey  have  gone  much  open  the  proofs  that 
r  are  ready  to  make,  and,  I  think,  not  very 
nrly,  because  we  speak  against  their  pro- 
\mst  upon  this  bill ;  but  1  am  sure  it  turn)) 
I  lEem :  For,  according  to  tiieir  own  shew- 

they  are  very  well  prepared  to  |>roceitl 
icgnlar  course,  for  they  have  their  wit- 
Ci  ready,  and  nothing  d»es  obstruct  them. 
[f.Seri.  Wright  mentioned  a  thing,  which, 
Mt  oontesa,  1  was  surprized  in  ;  tor  wheu 
Id  him,  he  ooold  not  find  any  precedent  of 
OL.  XIIL 


such  a  bill  as  this,  without  a  previous  proceed- 
ini;  in  the  spiritual  court;  xMr.  Serj.  Wright 
said,  it  was  quite  otherwise ;  ami  to  shew  \ou 
it  was  so,  he  cited  two  cases  whrn;  there  uns 
no  marriage.  Now,  1  always  underMoml,  a  di- 
vorce must  be  in  any  ca<te  where  there  was  a 
mairiage,  tbrthecaseof  Mr.  Knight's,  that  was 
very  lately :  That  was  the  cusc  of  an  infant, 
who  they  pretended  to  have  married  infra  annos 
nubilct;  and  therefore,  says  he,  the  declaring 
of  that  marriage  to  be  null  and  void  by  act  of 
parliament,  was  a  divurcc.  The  other  was  the 
ca!W  of  Mrs.  Wharton,  which  was  no  marriage 
neither,  for  marriage  must  he  by  consent,  and 
that  was  a  force :  and  that  he  fancies  to  be  a 
case,  where  there  was  a  divorce  too,  without 

firocecding  in  the  spiritual  court ;  and  yet,  of 
lis  own  shewing,  it  was  no  marriage. 

Another  thing  I  am  much  more  surprized  at, 
we  insisted,  that  they  would  not  shew  an  act 
for  making  a  divorce  without  givhig  the  party 
an  opportunity  to  make  a  defence  ;  antl  the 
doctor  says,  in  common  cases  it  ought  to  be  so : 
and  they  cited  the  carl  of  Miiccleshcld  we  lirst 
mentioned,  and  the  doctor  to)d  you  the  pro- 
gress it  had,  and  that  there  was  a  full  and 
regular  procecdin«r,  of  great  length  of  time ; 
and,  that  my  lady  Macclesfield  h.id  all  her  wit- 
nesses examined,  and  my  lord  prosecuted  her 
to  an  excommuniiuition,  which  is  in  eflect  a 
sentence,  for  it  is  in  our  law  as  in  cases  of  out- 
lawry. This  he  calls  a  precedent  wherein 
thev  proceeded  to  get  an  act  of  narlianient, 
without  n  previous  proceeding  in  the  spiritual 
court. 

He  tells  you  in  the  next  place,  Tiiat  not- 
withstanding the  divorce  in  the  case  of  my  lord 
Ross,  the  parliament  did  examine  witnesses  ; 
it  is  true,  they  difl,  for  I  don't  think  they  will  so 
entirely  pin  their  faith  u|Kni  those  proceedings, 
as  to  hare  no  other  satisfaction.  But  will  he 
therefore  say  they  took  no  notice  of  it,  when  it 
is  the  foundation  and  ground  of  the  bill  1* 

He  tells  you  in  the  next  place,  that  the  crime 
does  not  seem  equal  between  the  one  and  the 
other ;  and  so,  in  some  sort,  thry  ridicule  the 
doctor's  notion  of  recrimination.  But  I  ap- 
prehend the  doctor  is  right  in  it :  for  it  would 
be  hanlif  a  man  should  marry  a  young  woman, 
and  give  her  an  ill  example  in  his  o\\  11  family, 
(I  do  not  say  it  is  this  case)  anil  hrin;:  her  ac- 
quainted with  loose  and  ill  company,  and  by  his 
example  or  provocation  lead  her  into  the  same 
offence ;  would  that  man  deserve  to  be  rewarded 
with  a  new  wife,  and  another  portion,  because 
his  first  wife  hail  only  followed  his  example  f 

Tiiey  sa}',  the  offence  is  not  e<]ii.ii,  U'cause 
the  man  brings  no  children  into  the  family. 

I  doubt  it  happens  olWntimes  to  them  that 
go  abroad,  that  they  hrinu  home  that  to  their 
wives  which  sticks  longer  by  them  than  their 
children. 

Then  to  come  and  say,  the  articles  cannot  l>e 
of  any  use  to  us  at  all ;  and  to  imat;ine  that  we 
use  the  ailiclc<)  so,  that  the  liueliess  might  be  at 
perfect  liberty  to  live  in  mluUcry  ;  1  wonder 
how  that  conceit  hath  followed' him  hither^ 

4S 


UBT)        IfiWILlMlf  m. 

mgi  altoF^  «Sf  upon  our  hdng  iMndaMMU  \ 
ItMbOltllMt  weilMNildhafa  « tiMl*  MMBioi 


tov 


l€ur 


■wiir,M  thali  denm  butmaiMrt  I 
tbia  wkai  u  abioliittly  peptwa 
•ordfAlioe.  Thi* hath  spcBt w 
tmij^  and  I  am  Mira  Hm  fntaa 
baaa iiainiiied  havagifaD mob fi 
«MiaJttMi  it  dolh  afiM  m  gnat  J 
tail.  Wabarelikawiaaafloodmi 


»;  now  we  hif«  beard    

but  m  abort  tUM^  BO  BMra 

Dtpiawiy,  Jb  iMke 

KKaoiaal- 

itbitbaTe 

_ 1  fariatj  of  «a- 

Ltet  it  dolh  afiM  m  gnat  deal  to  bo  aud 
toil.  Wobarolibewiaaai^flUBjrwiOMM 
OBboamauQcd,  bat  lam  far  Aom  propomif 
.aaytbioglodelayit.  Wobadm  wodiViime 
attowod  OS  ID  tbo  Houae  of  Uwda,  but  diat «  n« 
rola  for  700,  ood  wo  do  nor  ancct  it  bore : 
Bot,  ofon  while  wo  are  at  tbia  bafi  m  ooHoa 
fiom  a  very  wortby  BMnbor  gioaa  oa  mtdlU 
goooo^  opoo  aiffbt  artfaiaoook-maidt  of  a  nia.i- 
tartbotwilldJ^ber;  and  ba  wiU  bo  roadj 
to  moboitonl,  tbatabowoa  tamed  away  for 
MiigmopnjnontfaKef  mHoUaod;  aodlbare- 
fifn^  8irt  joa  aeo  how  limo  m  neocmaij  in 
pout  ofaceideDia  that  do  bappaa;  aiodlau^- 
taol  make  our  diefeoee  bow. 
. .  ThoraopOD  the  connaci  wHbdnw ;  aadlbe 
Moumuoo  baviog  oooaidmd  of  tbo  deabo  of 
^oouiael.fiNr  uio.diicbon  tobaiotinM  ^1- 
-  lowed  Iheip  to  niako  their  defimoe,  were  of  opi- 
BioD,  that  tbo  ooimael  aboiild  pniDaod  tbeii  to 
Waker  their  defeaoe;  and  caodua  wan  ordacefl 
^babioaghtin. 

And  tbo  conoad  being.  caUad  in  agab,  nr 
jRowlaud  Gwynne  Umg  u  the  chair  of  the 
committee^  acquainted  tSem  with  the  deterui* 
nation  of  the  committee. 

Then  sir  Thomas  Powys  obsenred  upon  the 
evidence  that  had  been  civen,  and  insisted,  that 
the  evidence  given  before  the  Committee  of 
Commons  did  differ  from  the  evidence  git  en 
by  them  upon  oath  in  the  House  of  Lorti^ ; 
and  offered  to  produce  tlie  examination  of  the 
said  witnesses  upon  oath  in  the  House  of 
Lords.  And  an  objection  being  made,  that 
•such  examination  ou^ht  not  to  l^  read  in  tliat 
ease,  at»  evidence  before  this  committee ;  the 
counsel  withdrew,  and  the  committee  con^ 
sidered  of  the  said  objection,  and  were  of 
opinion,  that  the  said  depositions  should  not  he 
read. 

And  the  counsel  being  called  in  again,  were 
acquniiited  with  it,  and  that  if  they  had  an^ 
witJiesi.sos,  vira  voce^  to  encounter  their  evj- 
dcnee,  Ihey  might  produce  them. 

9iv  T/uMias  Powys.  Sir,  by  this  resolution 
my  client  is  deprived  of  that  defence  1  thought 
I  could  have  made  for  her ;  bat  I  submit  to 
the  jjlcasure  of  the  Committee. 

Mr.  Jtu'ood,  The  examinations  in  theHou^e 
of  Lords  w  ere  so  lately,  that  it  is  an  easy  thing 
for  the  Koliciiors,  who'  were  by,  to  give  an  ac- 
count of  a  contrariety  in  the  evidence,  if  there 
were  any. 

A  Member,  Whether  yon  have  any  other 
evidence  to  offer,  but  as  to  this  point  ? 

Sir  Tho.  Pouys.  All  our  evidence  wonldtend 
to  contradict  these  witnesses ;  and  if  the  read- 
log  of  those  deiiositions  will  not  be  allowed,  we 
—- tajjide  your  pleuprr,  and  submit  it  to  you. 


tagaiiatiiimo*ilWfc 


Mr,  JDcicfi/.  We  HHfc««hMtit  iO|«itw 
witneratsw^'i  ia  oofMBmpoa  intb^dM  Mt 
of  evidence, 

Sir  Eamiand  Gi 
persunt  jiained,  who 
j^ood  reputalicin,  Mr. 
Daniel  Germiiine  aod 
be  witnesses  of 
you  say,  not  ef  credit* 

QfimseL  We  hm 
Mn.  Pitts,  and  dt>EMi  1 
side  to  get  them  be (W;, 
prejiidge  our  case,  to  oaf  tbay  ava  moarot^ 
rest ;  that  h  to  detonwaotbo  Vgte.  V| 
have  Eikewise  satBHWod  Un.  Pilli  aai  hk 
twii  maids;  aud  wbatfaor  tbag  «ilappHi,« 
not,  that  we  cannoi  tall ;  bot  Aio.wo  wmmiif 
m  oialceOBilo  voQ« 

duchess's  woman,  pdvj lO  tbo  w|nb  OOBifM- 
tioa,  h  proved  to  bam  boos  witb  hoc^aoelhi 
bill  was  brought  miHtiM  Popoa  of  Lwdl, 

A  Mmbtt,  VV  hotbv  bo  baa  OM^Eng  oft- 
i\mf%  to  produce^  liia^  \m  OOB 
delenceuy? 

Sir  Th&.  Fo^ys.  Sir,  if  yen  eirpe^it^ 
by  me,  I  am  a  figured  that  v^c  hktm 
but  if  1  cannot  bring  those  pwmlc  i|£ 
selves,  d  I  cannot  bring  NtcbGW  acini 
Nichola,  I  despair  of  doing  any  g%>od,  if  1  bnat 
a  thousand  otoer  witness^ie  a{|aitisl  him  1  19 
therefore  I  pray  ihiji  tkvoar  <il  yua^  ihat  iea|t 
it  is  your  pleasure  that  tbla  et  idme  h|  atf 
alio  wed,  you  will  not  make  a  b:i4  ismmndmm 
of  it,  that  I  do  not  proceed  to  n^ake  •  '  s^ 

tbis  bill ;  for  I  cannot  truly  do  it»  unless  1  hd 
some  otiver  iListructions  from  my  dieot,  Lsl 
shaJI  defeat  htT  expectation  to  proceed  spn 
ihe  other  part  of  ibe  case,  since  what  we  Ml 
upon  with  good  authority,  as  we  tbovght,  if 
not  tbooght  lit  to  be  admitted. 

fiir  R^ Gtaynm.  Sir,  yon  are  atlibcitjls 
go  on,  if  you  have  any  thing  more  to  say,  tka 
that  you  cannot  procasd  without  fuithcr  4inB» 
tions  frt)m  your  client. 

A  Memlmr,  Whether  they  have  any  liuDgtt 
oCi?r  in  the  defence  of  the  duchess,  opso  ibt 
crime  she  is  charginl  with  ;  for,  I  bdievCr  it  *^ 
a  new  thin^  for  the  counsel,  w  hen  tiicir  cfatii 
charged  witli  a  crime,  to  sav,  they  cannot  ik- 
fend  her  linlesa  ihey  go  and  ask,  whether tbtf 
shall  defend  her,  or  no  ?  If  they  hare  any  tiiiy 
to  my  m  her  defiance,  we  shall  be  ready  tebesrili 

Sir  It  Gi^Y^fie,  Sir  Thomas  POwys,  htu 
you  an^  thing  merit  to  say  ? 

Sir  tho.  Pe^jft.  I  cannot  but  repeat  vbl  I 
have  already  said,  that  I  would  be  gU  0 
make  the  be^l  defence  this  case  may  bear;  ai 
I  may  say,  I  have  defended  it  twice  wilbWH 
gooi]  success,  and  this  is  a  third  tinie;  wjg 
would  make  the  best  defence  this  eaWW^ 
bear  now.    And  I  must  own  to  yoo,  dMJJP  ; 
course  of  our  evidence,  we  did  proposa  loiflk  J 
Ri^lves,  h  so  far  broke,  by  the  6nt  daM 
tion  you  were  pleased  to  make,  that  i | 
venture  up<)n  I  lie  rest  of  the  dcfeoM^IIiW 
jpxiv  pleasuru  \m  0i4  to  adlmit 


13G9] 


Proceedings  against  Sir  Wm.  Williams.  A.  D.  1695. 


[1370 


Sir  ii.  Gtcynne,  Vou  may  by  any  solicitors 
flir  ai^eDts,  that  were  prcseut  when  these  wit- 
nesses were  examined  in  the  House  uf  Lurds> 
pnive  what  they  swore  there. 

Mr.  Dadd.  (Veai»|ireheml  you  have  already 
iletermiocd  the  mutter,  and  we  cannot  now 
meddle  with  it ;  but  it'  I  apprehend  it  arigfht 
IroiD  tlie<:hair,  it  is  your  opinion,  that  we  may 
produce  the  solicittn-s  ami  a{;;ents,  to  give  an 
Mxwunt  of  what  was  sworn  in  tlie  House  of 
Lords.  Now  %ve  are  under  this  disability  by 
•your  .determination,  that  we,  relying  U|)on 
what  you  have  determined  against  us,  are  not 
pre|uired  witli  our  solicitors,  or  others,  to  give 


evidence  of  that  matter,  but  in  a  little  time  they 
will  be  able  to  give  an  account  of  what  waa 
then  sworn. 

Mr.  Atwood.  It  seema  they  want  to  be  taught 
their  lesson. 

And  then  the  Counsel  withdrew,  and  the 
Committee  proceeded  unon  the  Uill  cliiuse  by 
clause,  and  went  through  it,  and  ordered  tho 
same  to  be  rcporteit ;  which  was  done  accord* 
ingly ;  upon  which  the  Dill  passed.* 

•  "  The  duchess  nllerwards  m:irried  lir 
John  Gcrmaiue,  hart.*'     Former  Edition. 


410.  Proceedings  against  Sir  William  Williams,  bart.  for  llic 
Publication  of  Dangerficld's  Narrative :  36  Chakles  II.* — 
7  William  III.  a.  d.  1684—1695. 


An  Information  against  Sir  William  Wil- 
liams, for  Printing  and  Publishing  a  sedi- 
tious Libel,  rejecting  upon  the  Duke  of 
York,  the  King*s  Brother. 

Rex  r.  Williams.    Trin.  3C  Car.  2. 

.  Mtdd.M.  Quod  Willielmus  Williams  nu- 
per  de  Westm'  in  Com'  Midd*Ar'  cxistens  homo 
pemiliosus  et  seditiosus  ac  raachinans  ct  false 
naiittose  et  scditiose  intendens  pacein  et  comm' 

*  Mr.  Wy  no,  in  his  learned  *'  Argument  upon 
the  Jurisdiction  of  the  House  of  Commons," 
pi  31,  notices,  that  the  <*  Bill  of  Rights,  after 
numerating  among^  the  invasions  of  the  cou- 
fltkation,  '  the  prosecutions  in  the  court  of 
IJo^s- bench,  for  matters  and  causes  cognisa- 
ble only  in  parliament,'  declan^s,  *  that  the 
freedom  of  speech  and  debates,  or  proccedhi^i 
m  parliament,  ought  nut  to  be  iiupeached  or 
questioned  in  any  court  or  place  out  of  parlia- 
Mieof.'  "  And  he  says,  **  That  this  declaration 
applies  specifically  to  the  rases  of  the  prosecu- 
tions of  the  Speaker  and  Sergeant  [Topham] 
will  be  evident,  when  it  is  observed,  tnat  no 
oiber  cases  had  occurred  in  the  reigns  of 
Charles  9,  or  James  2,  where  it  had  l^n  at^ 
tempted  to  question,  in  any  other  court  or  place, 
the  freedom  of  proceedings  in  parliament." 

It  is  observable  (though  I  recollect  not  to 
li«Te  met  with  the  observation)  that  the  Honse 
«r  Commfins  appears  tu  have  been  desirous  that 
the  Bill  of  Rights  should  aliolish  all  informa- 
I  in  the  court  of  King's- bench. 


On  January  99,  1688-9,  that  House  ap- 
pointed m  committee  (of  which  Mr.  Pollexfen, 
•ir  Georfl^e  Treby,  sir  Edward  Seymour,  Mr. 
Finch,  sir  William  Williams,  sir  Aobert  Saw- 
yer, Mr.  Sommers,  Mr.  Eyres,  and  other  emi- 
nent persons  were  members)  **  to  bring  in  ge- 
neral H(ads  of  such  things  as  are  absolutely 
necessarv  to  lie  considered  for  the  betlei-  secur- 
iug  our  iic-ligiun,  fjaws,  and  liberties." 


I 


tranquillitat'  hujns  Regn'  Angl'  iuquietare  mo- 
lestare  ct  perturbare  ac  seditionem  discord'  et 
malevolentiam  int'  diet'  l>om'  Regem  nunc  et 
subdit*  snos  hujus  Regu'  Aogl'  facere  movere 
ezcitare  et  procurare  necnon  sereonissim'  et 
excellentissim'  prindpem  Jacobum  ducem 
Ebor'  et  Alban'  unicum  fratrem  diet'  Dom' 
Regis  in  maximum  o<liu'  contempt'  et  vili- 
pendiu'  cum  dicto  Dom'  Heee  et  ligeis  et  fideP 
subdit'  ipsius  Dom'  Regis  uiduceie  ac  inferre 

On  the  second  of  February,  sir  George  Treby 
reported,  That  the  committee  had  agreed  u|)ou 
several  Heads,  which  he  read  in  his  place  and 
delivered  in:  after  some  amendments  made  to 
some  of  them  they  were  agreed  to  by  the 
House.  The  twenty -second  head  is  '<  In- 
formations in  the  court  of  King's-bcnch  to  be 
taken  away." 

On  the  fourth  of  February,  it  was,  among 
other  thingM,  referred  to  the  same  committee 
*'  to  distinguish  such  of  the  general  heads  as 
are  intro<luctory  of  new  laws  from  those  which 
arc  declaratory  of  ancient  rights."  In  the 
afternoon  of  the  7th  of  February,  sir  George 
Treby  accordingly  made  a  report,  in  which, 
among  the  practices  which  are  declared  to  be 
**  utterly  and  directly  contrary  to  the  known 
laws  and  statutes  and  freedom  of  this  realm," 
is  enumerated  the- **  causing  Informations  to 
be  brought  and  prosecuted  in  the  court  of 
King's-bcnch,  for  matters  and  causes  co<>r- 
nizable  only  in  parliament:"  and  among  the 
new  laws  by  which  it  was  proposed  and  advised 
to  provide  tor  making  a  more  firm  and  perfect 
settlement  of  their  religion,  laws,  and  lilierties, 
and  for  remedy  of  several  defects  and  inconve- 
niences, one  was  **  for  taking  away  Informa  * 
tions  in  the  court  of  King's-bench ;"  and  to 
this  report  the  House  agreed. 

Ultimately  the  suppression  of  Informations 
in  the  King's-bench  was  not  specifically  intro- 
duced into  the  Dill  of  Rights,  but  it  seems 
probable  that  it  w«s  one  of  the  articles  eoocem- 


pred'  perimpLeod'  per^eieud*  ti  ad  «fie<^'  redi- 

he  Mfiiich  the  two  Houses  dis^greed^  aud 
whicL  were  discussed  in  the  conferences  be- 
tsreeii  tliem*  t^^^ectitig  ihat  moat  loifMirtant 
itatuta  during  its  progrms,  'nt«  Uouaa  of 
brdi,  it  aeeiDi^  indir^  objected  attof^tU^  to 
ikfic^uw  recUiug  ttie  pro^C'Citikjii  of  ialtHrina- 
lions  in  the  Kiiitr'^-bL^iwh,  Jor  iiiuil«t»  eog- 
nixalile  only  in  pat  U&FneDt^  6bC,  t  lliey  alleilj;^d 
ftiat  ttiey  did  not  fuily  a|ifireJi£Eid  wkiit  whm 
meaol  by  it,  nor  ivhat  instaoces  tb^re  iiad  been 
i}thi  which  thereJore  they  dt-sirciJ  mi^bi  be 
escplained  if  the  CommoiM  iboutd  tliink  fit  tft 
insist  tardier  on  it.  The  Cunm^ous  ane»werod, 
that  they  ibougbtit  a  very  blgh  gtierance  aod  a 

'matter  of  the  ^entest  ctinst^qiience  to  tbo 
IfOnk,  and  to  ibemsetvea,  that  matttrt  find 
«ause«  cognizable  only  io  parlianieiit,  should 
bedracrp  into  examinatton  in  inferior  courtr 
liee  Commons  Jonroak,  Febniary  8^  11,  1^- 
Ott  the  last  of  which  days  sir  WilUdm  WiiJiaiBt 
was  added  to  ihe  [iiauagt;rs  of  1  tie  coaiereuce,aod 
lie  re[Kiiied  Lbe  [jroceediiigii  upon  ihe  tree  cod« 
ference  which  ^a«  had  on  that  day,  aiihoug^b 

.  If  r.  Bommers  had  reported  the  proceed tngs  of 
Uie  ordmary  coaKbrc^ce  which  had  taken  plaee 

,  «m  the  ^ame  dfij.  It  ap^ie^i^  a«  if  the  two 
Hotisei  bad  adjusted  by  a  comfrombe  tbeir 
disagreements  upon  the  iol^eei^ 

Aecordiogf  to  Mr.  Bairingtmi «'  the  attorney 
genenii^s  power  of  (iliag^  Informatifins  ex  officio^ 
^ieems  to  he  borrowed  from  the  civil  law,  wher^f 
there  is  always  a  parti  pubtiqnc,  or  public 
proeeeutor"    ObSi  on  WesL  printer. 

In  a  recent  Case  (Et'x  v.  Mary  Jooes  and 
another,  Mich.  Term,  5U  O.  3,)  iltat  mo^t  np< 
rigttt  and  learned  magistrate^  01  r.  Justice  Bay- 
ley,  seemed  In  be  of  ommon  that  Air.  Attor- 
ney's ptfwer  of  tiling  Inibrmations  ex  officio 
WHS  sometimes  exercised  vesfatiounly, 

'n\e  ([ue^lioo,  Whether  commitmeuts  by  a 
house  i}f  parliament  may  be  examined  by  a 
court  of  law?  has  been  frequently  a  imitated.  8ee 
the  Cases  of  captain  Streater,  vol  *%  p.  atiS,  oi 
RSchard  Tbomp«ou,  vol.  8,  p.  1,  of  fieojamln 
Flower,  a.  n.  J7&9,  the  receut  Case  of  sir  Fran- 
d«  Burdett,  and  the  otbejr  cases  and  autboritieSf 
partvcolariy  th&  learned  investi{j[atjoos  of  Mr' 
HargTovti^  tbereiit  refi^rred  to.  In  vol.  5  of  this 
CoUeeiion,  p.  948,  upon  a  niotioQ  I'tir  a  Habeas 
QorpuSf  it  was  held  by  Newdi^ratt,  a  Co  mm  en- 
wealth  j  udg^  of  B<  R.  that  a  pn^ooer  cuuuHitted 
hy  the  parliament  coutd  not  he  disci iarg;ed  by 
an  inftfior  court.  Tho  following  Itepurt  of 
FHtcbard's  Case.  JT  Car.  !l.  B.  R,  I  ha?e  ex- 
tracted from  t  Kehle  87 1^884,8$/.  The  same 
case  i;^  shortly  ind  ill  reported  in  sic  Tbomaa 
ftkymond  ito,  l  Ler.  I^S^Sid^rf.  ^5. 

"fb>  HiuM  •rimfai  «i!dM^  bn«  to  be 

Muailted,  and  dL'breretl  the  order  to  ihe  Ser- 
jfjnl  at  Alios  lo  bike  bim,  and  atttsr  tUm  Hotise 
fmngMttdiis  tta»iftkea».aidd«^aeik^f«M 


lingi  ogairM  Sir  MfK' WMIi^     ^ 

^end*  idem  W,  W,  nono  dw  £^4iiolL  iam 
UegQ^  Dom*  CaroU  Secundi  nunc  r(«|»lifr 
^tc  Bi^apod  Parooli^  Haucii  MtrtioiiDCf^ 


H 


n 


! 


paidt  ^d  secofity  given  to  appear  iIm  icsta»> 
sious|  winch  per  ^uritm  it  iilefil,i»itti 
order  cannot  be  executed  alWvt^.  Ba  1^ 
Hydo  chid'  juatice,  the  c)»aacdbf  vf  evai 
may  CQiise  tlieirordef^  to  be  ^xescuid.  Kuilj 
Tw»sden,  he  must  have  a  spedal ohler Ifib tii 
Hou8e  to  ei^ecute  tkejr  orders.  Bvi  hr  Ju«(i| 
and  Wiudham,  the  House  of  Lorii  m  aglfi 
other  courts^  but  b  wholly  tkttfraiintd  hffm 
rogaUou^aud  ceaseth  iiil  ihe  aext«i»«o.  ill 
so  wflg  Hli  eater's  Ca^s^e,  [See  it  asftWeMirrtd 
to-}  on  iJibeaii  Corpus  i65^i  be  wttddtrati 
the  padtament  baing  determined,  ipimtiWi 
be  i^pake  those  wo^s,  for  whkh  Uvtuvm 
mitted.    Adjoruattir. 

**  The  return  of  the  Habeas  CorHiinHte 
he  was  committed  March  27  lo  tb  flM,ii 
fees  paid,  being  taken  into  custodT  If  U. 
8erjeant  at  Arms  ot^  ibe  Hoosc!  of  Wft.JP 
saying  when  bmotily)  by  their  oitii?filwn 
Feb.  Coleman  ext^epied  for  the  inccrtiiBi^  i  * 
doih  not  a|tpeftr  what  the  fees  m^m^ 
should  be  judge  of  them.  Aha  tltr  EMOtf- 
ment  ia  not  only  jbr  fees,  but  till  «can«j{Wi 
to  appear  the  next  sessions.     Atljcrutiur. 

*'  The  parliament  by  pforojaiwD  i»  p* 
ended  :  and  were  llie  prisoner  cDininiiliflJ^if' 
contempt,  the  court  mi^ht  ia  coflvffiictkl  D9I 
have  bailed  htm.  But  here  the  «tm  af lii 
day  of  the  taking  is  matt  rial,  !kluf[  in  ^ 
kuowledge  of  the  8trjeanl  at  Armi;  thenfe 
it  shall  be  presumtxl  the  takiog;  wai  t^^ 
riaing-  of  the  parUameBt,  which  court  «MW*ff 
King,  Lords,  and  Commons ;  at  vrbicb  '^ 
all  the  privileges  of  each  particuiif  ni^ 
cease,  and  each  prorogation  ii  «  atw  p'* 
ment ;  and  the  bill  twice  r^d  bcfurc  "^S 
be  begun  atiew ;  and  therefore  m  at0^ 
bim  till  the  next  parltamenti  kt  tbe  p^ 
oo^fht  to  bi^  dfi^c harmed'  PaHiimftitt  B^ ^ 
and  4  Inst.  1  H,  7.  20,  is  Plowfrdjai'iC*' 
By  Windham,  recogBi^ance  uikeu  bjf 
wnM  is  fmitless  by  tlielr  ses^jon,  but 
Ijiven  there  is  delegated  to  the  chfloce 
as  a  thioff  finish  fed  ;  but  this  is  ^^  f** 
And  by  Tvrisden^  it^  all  one  wbetb<r»"2 
fatten  sittitigr  the  parliament,  or  afWr,  ^^ 
is  but  a  contempt  to  tbem,  whidi  ii"*.*"* 
may  diicharge :  mtti  m  Cheoje'l  Ctfdi'jy 
fei7  ^ftiament,  1  henrd  tt  daelarvJ, ttal**^ 
ercr  is  done,  must  at  the  oeit  , 
hegiia  anew^  exoef>t  in  error,  where 
may  be  retomabie  st  the  trtxt 
gtvuaded  en  judicial  records  But 
nmtter  of  con  tempt,  which  ii  disci 
sesiioo  of  pari  1  amen  L  II  y de  chief 
£d.  3.  2^  determines  ^ii»^C}ait:  i 
ia  omnibus  coucnrred  d«arij  thit 
to  be  dtscharged.'' 

S^  the  Tria(  of  Rabeit  FVUMT 
the  murder  of  Thomat  DiBfrtM 
Note  therito,'f«C-»,-|[K'5OTltmi 


JorpubliMng  Dangerfief<Pt  Narrative.  A.  D.  1695. 


llSfTi 


Midd'  Vi  et  Armis,  &c.  iaiso  illidte 
e^uic*  malitiose  scandalose  seditiose  efc 
\wo  Lucro  8U0  proprio  inpriiiii  et  pub- 
isavit  et  appunctuavit  qnodilam  t'alsuoi 
nim  seditiosum  et  detamator*  Libel  I' 
*Tbe  Infnmiation  of  Thomas  Dan- 
,  g^eot.'  in  quo  quideni  libello  iiit'  at' 
prout  sequitur.    The  lufurmatioB  of 
DangerfeiUl  genf .   About  the  months 
H*  or  October  1679,  when  Mrs.  Cdlier 
elf  (pred'  Thomas  Dangerfeild  in  in- 
he  pred'  mentionat'  innuendo)  waited 
o'rd  Feterborou^  (Henricum  Comit' 
>tigh  innuendo)  to  be  introdnccd  to  his 
t\\e  duke  of  York,  his  kirdship  inquir- 
e  (prefat'  T.  D.  innuendo)  if  the  lady 
d  ipveu  me  (pred'T.  D.  itcnim  iuuu- 
f  directions  how  to  discourse  tlie  duke 
icob*  Ducecn  EI)or'  innuendo)  I  (scip- 
I'  T.  D.  innuendo)  replied  site  (pred' 
,  Powis  innuendo)  had :  then  he  (pred* 
t«rborough  inuuendo)  desired  to  know 
fv  were,  upon  which,  I  (preil'  T.  D. 
)  shewed  his  lordship  a  Uttt(^  hook,  in 
as  contaiuetl  a  scheme,  and  the  pre- 
iscovery,  which  I  (pred'  T.  D.  innu- 
m\  made  in  the   Frenbyterian    Plot, 
»ok  his  .lordship  carefully  perused,  and 
ome  omissitin  therein,  he  (pred'  < 'omit* 
(•ii^rli  innuendo)  ordei'ed  uie  (pred'  T. 
eodo)  to  write,  while  his  ionlship  did 
^  nie  (seipsum  T.  D.  innuendo)  those 
ideli',  that  the  Presbyterian  party  in- 
i>  make  an  inburreciion  in  the  north, 
»  join  with  an  army  of  the  Scots :  Im- 
y  after  this  his  Ionlship  tuok  us  (pred' 
Margaretam  Collier  in   Inforuiatione 
It*  mentionat'  innuendo)  into  the  duke's 
red'  Ducem  Ebur'  innuendo)  at  White- 
•ere  we  (pre«l'  T.  et  Mug:i^tram  Cellier 
:>)  both  kissed  his  hand  (inanus  pred' 
iJueis  Kbor'  innuendo)  anil  me  (pred' 
lido)  he  (|*reii'  Duceni  Ebor'  innuendo) 
n  the  ti^roiiud,  for  I  (prod'  T.  innuendo) 
fhoy ;  then  &  (pred'  T.  innuenilo)  j^ave 
nefts(pr(d'  iiuceui  innuendo)  the  alore- 
e«l  little  hook,  which  he  (pred*  Ducem 
u)  after  some  short    perusal    thereof 
me  (pi'ed'  T.  innuendo)  for,  and  also 
diligence  for  the  Catholic  cause,  and 
so  uiv  (pred'  T.  innuviido)  to  j^o  on,  and 
1^(1  suc<*ess  to  all  my  uiiderrnkin<;s, 
iu  tiiise  very  words  (viz.)    That  tlie 
erian  Plot  was  a  thiu;^  of  most  miuhty 
ence,  and  if  well  manafred,  would  be 
inducible  to  the  safety  of  the  Catholic 
.nd  I  (dictum  Ducem  innuendo)  flo  not 
1  but  the  eflects  of  it  will  aiisner  your 
tion,  especially  in  the  northern  parts, 
(|ired'  Ducem   innuendo)  am  well  as* 
he  major  fiart  of  the  (^entry  are  my 
Ducem    innuendo)  friends,  'and    have 
•ufficient  demonstration  of  their  affec- 
nie  (pred'  Diicju!  innuendo)  as  also  of 
tantioiis  to  prfisecute  this  I'reshytcnaa 
the  utmost,  for  tliey  arc  no  straii*;ers  to 
fn:  ImaediatHy  alVer  this  bis  highness 


fpred*  Ducem  Ebor'  ionuendo)  ordered  Mrs. 
Cellier  and  myself,  in  the  hearing  of  my  lord 
Peterborough,  who  was  priry  to  the  whole  dis- 
course, to  be  very  careful  of  what  we  (pred' 
Thomam  Dangerfeild  et  Magistram  Cellier  in- 
nuendo) communicated  to  the  persons  who 
were  to  be  the  witnesses  in  that  new  Plot,  lest 
we  (nred'  Thomam  et  Magistram  Cellier  inuu- 
endo) should  be  caught  in  the  subornation,  and 
so  bring  a  terrible  odium  upon  the  Catholics, 
and  make  ourseWcs  (pred'  Thomam  et  Ma^is* 
tram  Cellier  innuendo)  uncapable  of  any  fur- 
ther service :  After  this  the  duke  (pred*  Ducem 
innuendo)  informed  us  (pred'  Thomam  et  Ma- 
gistram Cellier  innuendo)  that  in  a  month  or 
two's  time,  the  commissions  would  be  ready, 
but  ordered  us  (pred*  Thomam  et  Magistram 
innuendo)  in  the  mean  time  to  bring  our  part  to 
bear  with  the  commissioners,  and  particukirly 
ordered  me  (p'd'  Thomam  innueiido)  to  find 
out  some  nersuns  (as  there  were  enough  sure 
amongst  the  Catholics,  as  well  as  elsewhere) 
which  were  fit  to  be  trusted,  and  that  should 
accept  of  such  commissions,  which  should  be 
delivered  to  them  by  a  person  appointed  for 
that  purpose,  but  not  to  be  known  to  them  to 
be  any  other  but  a  Presbyterian,  so  that  when 
occasion  should  require,  they  might,  together 
with  those  which  we  (pred'  Thomam  et  Ma- 
gistram Cellier  innuendo)  then  had,  be  ready 
to  swear  in  the  Plot,  and  that  the  Presbyteriaas 
were  raising  forces  against  the  king  and  go- 
vernment, and  hatl  given  out  commissions  to 
that  purpose;  and  in  order  to  this,  1  (pred* 
TliomaUi    innuendo)  did  in   some  short  time 
after  procure  one  Bedford,  Curtis,  Crey,  Hill, 
Hopkins,  and  others,  to  accept  of  such  com- 
missions when  they  should  be  ready,  whose 
business  in  the  mean    time   was  to   spread 
reports  in  the  coffee   houses,   that  the   Po- 
pish Plot  was  a  contrivance  of  the  IVesby- 
terians,  \'c.      Now  for  our   (pred'  Thomam 
cl    Magistram   Cellier  inuuendo)  encourage- 
ment in  the  prosecution  of  that  sham  plot,  the 
duke  (prcfl*  Ducem  Ebor'  Innuendo)  nromised, 
that  he  would  take  care  that  roonev  should  not 
1)0  wanting,  but  oniered  us  (p'd*  Tliom'  et  Ma- 
gistram Ccillier  innuendo)  to  use  all  the  expedi- 
tion the  thing  would  allow,  to  make  a  disco- 
very thereof  to  the  king's  attorney  :    afW 
which,  the  diike  (p'd'  Ducem  Ebor'  innuendo) 
said,  the  Catholic  party  wouM  be  cased  of  the 
charge,  in  regar<l  he  (pre«r  Ducem  innuendo) 
was  sure  it  would  he  defrayeil  some  other  way : 
then  the  duke  (nred'  Ducem  innuendo)  made 
divers  rows,  and  bitter  cxticrations,  to  stand  by 
us  (pred'  Thomam  et  Magistram  Cellier  iiinu- ' 
endo)  in  the  tliiu'r,  and  engaged  on  his  honour 
to  be  our  re\«ardcr,  adding,  that  such   consi- 
derable services  were  not  to  be  slighted,  and 
further  proiuibed,  that  to  \\  hose  lot  soever  it 
should  happc  n  to  be  imprisoned,  according  to 
their  fidelity  and  stedfastness  in  ti:e  cause,  so 
much  the  mure  should  their  rew  ai  d  be  aug- 
lUiMitcd,  and  that  all  care  possible  should  be 
used  to  siip|>ort  and  preserve  thciu,  but  parti' 
cularly  dcsuing  me  (pred'  Thomam  innuendo) 


WILLIAM  II L       Frocecdhg^  ngmnst  Sir  IT'm*  WiUiam,    pjffi 


ti>  keqi  up  i(itbecouracrfaii8flndaciiverLiaract«f 
wliidi  hifl  highness  (p'd*  Uuecm  Etior^  iDimein- 
(lo)  timl  bearUof  tiie,  all  whicb  I|  (pr£il^  Thom&in 
Jivnuendci)  prouaUcd  lo  do,  wliereujion  we  (pned* 
Thomam  el  Alagislradi  Celiicr  inhueoda)  witb- 
dr€w  to  ihe  iDr*!  Peterborough *s»  ^vhere  we 
(pred^  ThcMriELm  et  Magistrarti  Celller  inuu^ 
codo)  continued  till  Iiis lordship  (pred'  Cfitn' 
Peterborough  liinuendci)  had  iQlroduced  sir  llo» 
bi^rl  Paytou  la  tite  duke,  whicb  lieiDg  d{>ric,  his 
lordship  left  tln.*ni  together,  as  he  ([ived^  Cnm* 
Peterborough  inmiendo)  said,  and  eam^  to  u« 
(pred^  TltOLiiiiiii  et  Magistracn  CelJier  itiniiendo) 
where,  ntuougvt  other  discourse,  his  lorflihip 
(pred'  Con^  Ptiterboroug'h  innueado)  told  me 
(pivd'  Thorn  a  TO  iouueudo)  I  bad  o  great  oppor- 
timitj  to  make  my  fortuoe  wliat  1  would  iny- 
^i\  if  I  (pred'  ThoDnam  it^rnin  inrtueudo) 
tv^oiihl  hut  follow  the  advice  of  his  master  tlie 
'^iike  of  York}  wbo,  aa  hit  Itirdshlp  said,  would 
vertaiuly  he  tny  kin^^  in  a  very  short  time,  add- 
ii>Sf,  thot  1  (pred*  Tbomam  ititiueoflo)  raust  be 
resolute  in  my  uudert^kjiifis,  for  said  he  (pred' 
Cufuit^  Peterborouijh  iunueodo)  the  duke  (pred' 
Diiceu)  £bar'  innueudo)  much  alFecta  rei^otu- 
tioOi  but  ha^t^  niorUiby  th^  tiuvorous  mau ; 
theo  I  (pred*  Thomam  innn<?ndo)  answered  \m 
tftrdAhip  (pred^  Comit^  Peterborough  iuBueudo) 
th&t  t  (pred^  fbomam  tunueado)  valued  out 
my  lili/i  provided  to  lose  it  would  be  sen  Jc4;a- 
btc  lo  the  duke^i  interest^  at  which  expressiau 
liff  (pred'  Com  it'  Pelevtiorough  inuueudo)  s^&eiu- 
ed  fuMy  satisfied,  and  froui  that  tinte  eolled  me 
(pred*  Tbomain  innuendo)  coptain  Willou|S'hby, 
^nd  at  our  (p*d*  Thoniam  el  Magi^imm  CeJlier 
innuendo)  commg  away,  his  lordship  (pred' 
*  Comit'  Peterborough  inuuendo)  pive  particular 
order  to  bis  ser ranis,  that  at  what  time  soe?f?r« 
day  or  tiightj  either  Mrs,  Cellier  or  Diy^elf 
(pred*  Thorn Hm  innuendo)  shoubj  come  to 
Speak  with  his  lordship,  we  should  he  fortlj  with 
'  admin ed,  and  then  we  (pred'  Thoniam  et  Ma- 
^tstram  Celher  innuendo}  parted.  Some  short 
iiine  afler,  I  (pri^r  Tboraatn  (nuueodo)  went 
10  wait  on  his  lordship  (pred'  Com  it'  Peterbo* 
rough  innuendo)  from  the  lady  Powis  at  luid- 
tiig^ht^  to  desire  him  (pred'  Co  mil'  Petarbtirough 
inuuendo)  to  move  the  duke  (pred^  Ducem 
£bur*  innuendo)  to  get  me  {pred  Tbomam  in- 
uueudo)  with  lill  expedition  to  tbe  king,  J  or 
then  I  was  ready.  About  four  days  after  this 
his  lordj^hip  sent  for  me^  and  took  me  {pred^ 
Thomam  innuendo)  to  the  dnke  (pred*  Duceiu 
£bor*  ijinuendo)  again,  w  ho  was  lu  hb  cloiet 
ml  Whit€;hall,  and  tlie  duke  (pred^  Ducem  Ebor* 
innuendo)  told  me  (pred'  Thomam  innuendo)  I 
must  j)  re  pare  myself  to  wait  on  the  kiag,  to 
give  his  mejesty  a  more  particukkr  aecoufit  of 
the  Presby  teriji'n  Pku,  than  what  the  httJe  book 
made  mintion  of,  which  hook  the  duke  (pred' 
Ifucem  Ebor'  innuendo)  said  he  had  ^iren  to 
i^t  king,  and  that  he  (pred^  Ducc*m  Ehor*  in^ 
nuefido)  bud  so  onlereit  the  matter^  that  1 
(pred*  Thomaju  innuendo)  should  be  furnished 
Wtth  itiuuey  to  enable  me  in  the  prosecution 
thereof;  but  his  highness  (predict^  Ducem 
£bar*  mnuendo}  ehtiged  me  to  eoiiaiii^  well 


my  «tory,  before  t  (pre^'  Thonufi  ii 
waited  Jn  the  king ;  tbeo  Ihf  iliilit  (p«4' fii» 
cem  EWr'  innueadu)  told  oae  (pud^  Ikmm 
innuendo)  I  hod  guined by  T05 diligaiii|0t 
reputation  among  th^  tatkfit^,  u^iiJ 
(p'd'  Thora^  innuendo)  gboulid  b%1ibullr 
my  services  to  that  caute,  adilinf,  in  i^'i 
Thorn*  iduuendo)  shouhl  id  1  eliort  ^m  m 
the  Catholic  religiub  Aoitruli  m  tibtM  ki^ 
dotti$,  and  heresy  torn  up  1»T  d»  iiioi»l|l 
that  he  (pred'   Duoi^tii  Bm*  hmmiKilki 
heard  of  the  proposal  which  bid  kn  tai 
me  (pred'  Thomam  innuftui?)  hylkisfk 
Powis  und  Arundel^  aboot  lakitii  ra  Ik  li^   ^ 
(Sei-eoiasim'  Dom'  noslr*  ft^^  mmM   ^ 
and  of  my  refusal,  as  also  oi'  wbii  1  (p^ 
Thomam  innuendo)  bad  acf«|k(d  Rtu^^tt} 
lord  £jhaflesbury,  and  of  all  iitjr  trtuvtfMBa 
the  PrL-ybyterian  Ptot^  %&\m^,m  tkm  wk 
{fix.)  if  you  (pred'  ThoniaujDiifdWi*' 
nuendo)  value  the  relii^on  jmur^h^Vfm 
tere.*il(iotert»ae  pred*  Ducii  Ebr' ifiW** 
as  you  sny  you  do*  and  yourc^n  ^"'^'Jf 
piness,  take  my  advice  (Adiisnatfll'jiirfW* 
CIS  Ebor*  innuendo)  and  dvpefiil  «?»  '■f^ 
nour  aud  interest  foi^  your  adfanwii««°t'  w 
look  like  a  man  of  coorajje  anfl  ^^^^ff^ 
les;a  dbcourse  may  serve  ttitii  JtJt*  ^?™^P^ 
mam  innuendo)  than  anotber,  so  .T |.5 
will  but  move  by  the  measarei  »!«**  * ^f3i 
Ducem  Ebor*  inuuendo)  will  gitJ  5^ 
Thomam  innuendo)  you  sbaU  oot«**f  ,|p^ 
with  fiai'ety,  but  be  rewarded  wmt^^^^^F 
f  actions ;   to  all  ttii^V^^^ 


s 

m 


greatness  of  your  j  ,  ,  ^ 

Thomam  innuendo)  replied,  I  IP^^^il^ 
innuendo)  would  stand  and  fall  in  ui^^^^i^ 
of  the  lioman  CathoHc  religioo  tfiiif  f^ 
ness*s  serriae  (^ervitium  pred'  Diai^^^p^S 
nuendo)  and  was  not  a  littJe  ctiocert^^^fl^ 
ref tuning  to  Igll  the  king  (Scrcniisiinr^^^ 
num  nostrum  Regem  innuendo)  tthmr^^^ 
Tiiomam  innue^ndo)  was  then  well  w-^  t 
my  g-hoatly  father,  stood  condcmtifidi^ 
retic ;  but  this  i  (pred^  Thomam  i 
offt^r,  that  if  his  highness  (pred*  Lraon^* 
innuendo)  would  cnmmnnd  me  (pred^T^^ 
innuendo)  lo  thi^  attempt,  1  would  iKit  ^^| 
ther  to  accontplish  it,  ur  lose  my  triiB^^L 
which  the  duke  (pred'  Dunem  EJNor*  &n^^ 
gare  me  twenty  guineas,  and  said,  if  I  ^ 
Tbomam  innuendo)  would  he  but  riuw*  ^ 
what  1  (pred*  Thomam  ionneodo)  hi  in- 
take n  al ready «  he  (pred'  Duc^m  £bor'  iD^: 
do)  would  so  order  it,  that  my  hie  ihtM^^ 
ha  in  the  least  danger,  adding,  in  tbeM  ^ 
(vi£.)  We  are  nut  to  hare  men  takea  ia  ' 
daring  actions*  hut  to  bate  them  make  a^ 
fectual  dispatch  aud  be  got»e,  upon  nl^ 
(pred*  Thoniam  innuendo)  took  mj  9^ 
Some  fihort  time  after  this,  when  1  (pr^d* 
mam  innuendo)  was  ready  to  coQTity  tbi^' 
into  colonel  Mansers  chamber,  I  (pi^H 
naam  innuendo)  weut  to  the  bnl  PWft*"*^ 
who  brought  me  to  the  duke  (prof 
EIhit*  innuendo)  to  whom  I  to4d  boi 
Thomaui  innuendo)  was  r^ady  to 4 
ten  in  th«  fs^lonei'i  chamber^  H^ 


(pred*   Ducetn  Ebor*  innuendo)  an- 

1  (pi-ed^  ThoQiarD  iniiueikdo)  must  make 

t^tiat  1  (ipsum  Thomam  iteriini  mnueutiii) 

T**  ^  l>e'  im|>owereil  to  niake  a  general  teiirch 

>'  Uae  like  nabire,  tor  mid  the  dtike  (pred*  Du- 

^ff*   JSI:>0)>'^  iteruin  innuemio)  in  these  words, 

Z^^)_   ^intae  I  (pred'  Du^^n  Eljor*  iterum  iti- 

')  law  yoQ  (pmP  Thomam  ttwum  iimu- 

Itist,  l&c  lady  Pciwis  lias  inlbrined  me 

JDuccm  Ebor*  iterum  iDtiuendo)  that 

ft  re  abuudance  of  letters  and  witnesses 

so  iluvh  is  now  higb  lime  to  begin ;  by 

'^,^tne  there  was  some  great  man  come  to 

5  ^>«m    the  duke,  w>'r  w!thdre»v.      About  four 

^"  ai^lirt- ttiWj  when  I  (ipsum  Thomam  Dan- 

^^1«J  *i|crt»m   innuendo)  had  been  pressing 

*^^%ly  with., Mr.  JSecretary  Coirt'Dtry  for  a 

'  ^'^Tit,  a^^co^ld  not  prevail,  I  {ipsnin  Tho- 

**>    i  tenim  innuendo)' went  io  the  tord  Peter* 

^JJ^M^lu'ftud  did  desire  his  lord«bip  to  make 

ion  16  tlie  duke  (pred'  Dticein  Ebor* 

Um   ipiiucodo)   to  use  some  means  tor  a 

.    ,^_     ^ut^  to  which  hi«  lonlship  (pred*  ComJt* 

^^^^fboroug-h  innuendo)  answered,  it  was  my 

^JJ'^U  there  was  oot  a  warrant  granted,  and  thai 

^Jit  (fuke  (prefat*  Ducem  Elior*  iternm  mnuen- 

^^^  »*as  senaible  of  my  nejf lectin^  to  make  an 

^fidafit,  aoibat  novr,  he  (pred'  Uuceiii  Ebor* 

^wAiBuendo)  did    beg^in  to  donht  my  courage. 

^^^Bioiaa  Daagerfieid  in  Contempt^  Legtimlm- 

IB^yteif*  Aog-rrnanlfeBt^  in  matum  exeinplum 

*  ^^omn*  ahor^  itt  tali  Casu  Delim^aen^  ac  contra 

^"  |Micem  diet'  Doiii^  Kt*gis  nunc  Coron*  et  Dig- 

flilml'  !^nas,  tkc.    Unde  idem  Attorn'  diet*  Dom* 

nunc  Ciencrar  |)ro  eodem  Dom*  R^gfi 

adTijiamvnlu%  Sec,     Et  modo  scilicet'  me 

IS  prox*  post  Crast'  Hancte  Trin'  isto  eo- 

tenti*  coram  Dom'  Rege  a  pud  Wealm' 

pred'  iVittietmua  WiUiains  per  8imonem 

»art  Altoru*  auu*  et  habilo  auditn  infor- 

luation'  pred*  dccit  quod  ipse  noii  in  tend  it  qnod 

^Qin*  Reac  nunc  ad  information*  prod'  in  Cur* 

im^  liesif'is  nunc  hie  responderi  velit  aut  de- 

t  quia  dicit  qucnl  materia  in  eadem  informa- 

menttonat' eideni  Willielmo  Williams  in 

ia  preil*  impobit  in  partiamento  et  non  in 

-^^ur*  Dom*  Regis  nunc  hie  audiri  et  terminali 
debet  et  idem  Wilhehiiu»  Williams  uUeriuadic' 
d  p^  Legem  et  Consuetud*  Parliamenl*  hu- 
Regn*  Aogt'  Prolocutor  domus  Commun*  in 
imcflt'  Assemblat'  pro  tem^iore  existen* 
^-Q*bujusm(Hlj  Parliament*)  secundum  ofiicii 
mbitum  ut  minister  ejLiadem  domus  debet  et 
ftemper  eonsueTit    lo<]ui  ftifrnare  et   publicaie 
tal'    process'  Atiglice  proceedingt  diet'  domus 
*  et  in  tali  modu  et  forMia  qual'  ipse  per 
i«m  Commnnea  stc  acaetnblat'  loqui  signare 
fltpoblicareordinat'furetQiiodq;  queliliet  locntio 
si|^iiatiii  sen  poblicatioalicujus  process*  ejuidera 
ilaisas  Comm*  per    pred'    Prolocutor'  jaxta 
*onlin^  dictor'  Comm*  in  forma  prt^d'  lact  secun- 
dum   Legem  et  Con<$uelud'   Parliament'  sunt 
.tttta  et  facia  eonindiii*  Comm'  sic  in  Parlia- 
'■Wfit*   Aseemllat  et   ut  eor'    locutio   sij^natio 
€t  publioatio  et  oon  nt  Act'  sett  fact'  jjujus- 
..modi  Probictilpr'  propr'  aerop*  accept*  et  Capt' 
faerunt  CliMidt};  hujxismoili  Proltieutor  de  hu- 

VOL.  xni. 


jnmodi  locotkme  si^rDatioiie  aeti  puldicatjone 
p*  ipium  Juxta  ordm*  eorandin'  Comm*  in 
Parhameot'  assemMat*  sedeo*  Parliament*  Ui* 
fact'  in  aliqua  al^Cur'  sive  loco  qnocuhq;  pre- 
terc(uam  in  parliament'  respondere  uon  debet 
Et  idem  W.  W.  ulteriua  dicit  quod  quod- 
dim  Parliament'  Dom'  Carol i  S^cundi  nu^' 
Heists  Angl',  ht:.  p*  ipaum  nup'  lle^m 
delnto  modo  summonit'  ad  inciioand'  apud 
Westm*  pred'  17,  die  Oclobr'  Anno  Regn* 
diet*  nup'  R«.-gi9  31.  p'  difersaa  Prorogation' 
continual'  fuit  videli'  a  pud  Westm*  pred'  uso; 
21.  diem  Octobr'  Anno  Reg'  diet'  no  per  Regis 
32.  qtto  quidem  21.  die  ()ctobr*  ParliamenI* 
ill'  a  pud  Westm'  preil'  tent'  fuit  et  ibidem  ah 
eodeiti  die  usq;  tO  diem  Jaijuar'  Anno  Regti' 
diet'  nuper  Regis  3'i.  suiiradici*  cootinuaiit 
seden'  Quodq;  idem  W.  W.ante  pred*  17  die 
Octobris  Anno  SI.  aupradict'  scilicet  decimo 
die  Octobris  Anno  31.  aupradiei'  apud  C\\i\* 
Cestrie  in  Com*  ejusdem  Civit'  debito  moda 
electus  fuit  un'  Civiu'  pro  ilicl*  Ciritate  Cestrie 
in  eodem  Parliament'  deservitur'  et  po«tea 
*eilic€t  p'd*  decimo  seplimo  die  Ociobris  Anno 
Regn'  diet*  niiper  Regis  31.  tiuprad'  apud 
W*estro*  pred*  idem  W,  \S,  sic  elect'  debito 
raodo  retorn*  fuit  un*  Ci?ium  pro  pred*  Civitate 
Cestrie  in  parliamento  ill  deserritur'  pmut  per 
rctorti'  bde  in  Cur*  Cancellai'  apud  Weetoi* 
pred'  de  Recoitlo  remauen*  pi  en  i  us  liquet  et 
apparet  et  duran'  toto  tempore  Parlii^nienr*  ill' 
idem  W.  W.  fuit  et  remaosit  un*  Comm' 
in  endem  Parliamento  Quodq;  idem  ^\  .  IV^ 
ad  pred*  Ses^nion'  Parliament  tent'  per  p*ro* 
gatioa*  ut  prefurtur  apud  Westm'  pred*  dicia 
vieesimo  primo  die  (X'tobris  Anno  St.  su- 
pradict'  apud*  Westm*  pred*  debito  modo  elect* 
et  constitui*  fuit  Prolocutor'  pro  Commuuibtit 
in  eodem  Partiamontit  assemblat  et  sic  prolocu- 
tor pro  Com  muni  bus  in  i^iirtiamenl*  ill'  asi>etti- 
blar*  idem  W.  VV.  continuavit  usqv  dissolution' 
ejusdem  Parliamenti  quodq;  in  eadem  Session* 
Parliom^^nti  pred'  ad  inchoution'  ejusdeni  Ses- 
sion' videlt*  vicesimoprimo  die  Octobris  supra- 
diet'  apud  Westm*  pred*  idem  Dom*  nup*  HtJt 
allocut' fuit  tunc  Dominis  et  Communibus  in 
Parliamento  ill'  as&emblat*  ad  p'sequend*  uttc- 
riorem  examinationem  Conspiration*  Angtlce 
ike  phty  cum  stricta  ct  impartiali  IiiquisitioAtt 
et  eis  adiunc  et  ibidem  dixit  qnuii  ipse  non  pu- 
tavit  seipsum  neq;  ipsos  secur*  quonsq;  male> 
ria  ill' perageretur.  Et  idem  W.  W\  ulterius 
dicitqmid  in  tadem  Session'  PHrlianuui'suprad* 
que  aptid  Westm'  jired'  continuavit  usq;  de* 
cimu'  diem  Jauuar'  Ar'  Regn'  diet'  nup'  Regis 
32.  supradicrto  otraq;  dumus  Parliament'  illius 
in  p'rosecution'  diet'  direcliouis  ejusdem  nup' 
Regis  strictam  el  impariiar  inquisition'  de  pre- 
mentionat'  Con^iration'  de  et  concenien*  dioto 
nup'  Rege  fec^^runt,  Et  super  Inquision'  ill'  in 
eadem  Hcssion'  V*arliament  supi-adici*  pred' 
Thomas  Daogerfield  in  iufurmation*  pred*  so- 

Iierius  s^>ecificat'  pred'  Libellum  inlilulal*  *  The 
nformation  olTbomas  Dan gerfield  gentleman »* 
ul  vcram  iRformatiou*  suam  de  Conspiratione 
pred*  tam  Dominis  Parlia»nent'  (eodem  Parlia- 
ment' in  domo  sua  apud  Westm*  pred'  Asiem- 
4T 


-joret  impress'  Anguce  -  snuuiu  oe  uniiMni  ica- 
isteti'  prius  prelect*  Anglice  <  Perused,  et 
tignat'  p'  p'rolocutor  eoruDdem  Comin*)  et 
quod  idem  Prolocutor  nominaret  et  appunctu- 
aret  personas  ad  infbrmatiou'  pred'  im(irimend' 
per  quod  idem  W.  W.  (eodem  W.  W.  duran' 
tot' Session'  Parllamenr'  supradict'  uno  Comm' 
in  eodem  Parliameuto  Asseinblat'  ct  Prolocu- 
tor Domus  Comm'  i\V  ut  prefertur  existeo')  in 

•  prosecuton'  ordiu*  pred'  ut  Prolocutor  Douiub 
Comm'  preiP  postea  et  duran*  cadem  Session' 
Parliameoti  pred'  scilicet  10  die  Novembris, 
Anuo  Regn'  diet'  Domini  nuper  K^is  32.  su- 
prad'  apud  pred'  Paroch'  Ssancti  Slartini  in 
Campis  in  uicto  Com'  Midd'  pred^  lui'urm- 
ation'  dicti  Thome  Daog^erticld  eifideiii  Com- 
raunib'  hujus  Regn'  \uffV  ut  p'fertur  e.\Ui- 
bitam  periegit  et  siguavit  apponendo  nouocu 
Willielmi  Williams  Prolocutoris  Domus 
Comm'  pred'.  et  adiunc  et  ibidem  uppunctuavit 
Tbomam  Ncwcombe  ct  Henricum  Hills  (ad- 
tunc  Typograplios  dicti  Dom'  nuper  Regis) 
ad  impnmend'  dictam  Information'  p'd' Thome 
Dangerlield  juxta  pred'  Ordin'  eorundem 
Comm'  et  Officii  sui  dfbitum  £t  superinde 
dicta  Infbrmatto  predicti  Thome  Daiigerfield 
postea  et  duran'  eadcm  Session'  Parliamenti 
ficilicet  10  die  Novembris  Anno  Uegn'  Dom' 
Duper  Regis  32.  supradicto  impressa  luit  per 
eosdem  Thoroam  Newcombe  ct  Ilenricum 
Hills  juxtu  ordinem  prrd'  videlt'  apud  p'd' 
Paroch'  Sancti  Martini  in  Campis  que  quiaem 
appofiitio  nomiuis  Willielmi  Williams  Pruloc:u- 
tor'  Domus  Comm'  p*d'  et  appunctuatin  pred' 
Thome  Newcombe  et  Henrici  Hills  ad  impri- 

tnonrl' flint  ft  m  Infnrmntinti^  n'(V  Thatrip1)nnar<»r. 


he  was  at  that  time  reside 
and  had  so  entirely  retired  I 
that  he  was  obliged  to  bom 
in  court.  For  this  informs 
to  the  kindness  of  Mr.  ^\ 
possessed  some  letters  froi 
unfortunate  accident  they 
lately),  upon  the  sulject. 

SIR  ROBERT  ATKYNH 

The  Information  taken 
(without  the  Defendant's  P 
severe  and  heavy  charge 
defendant,  set  out  w  iih  th 

*  From  a  Tract  priiitc 
*<  The  Power,  Jurisdictioi 
**  Parliament ;  and  the  An 
"  of  Commons  asserted : 
*<  Information  in  the  Kii 
<*  Attorney  General,  aga'>i 
*'  the  House  of  Commo: 
"  Atkyns." 

In  the  casex>f  the  King 
Term  Rep.  293,  it  was  arc 
motion  for  a  criminal  in! 
bookseller  for  printing  and 
of  the  House  of  Commons 
in  fact  been  previously  prii 
Hou8e,]_reflecting  on  tin 
Home  Tooke,  that  the  1 
themselves  were  not  justil 

(rivinnp  ■  sonntiAii  fn  the*  nn 


Jin^puhUikif^Dai^erfiekPs  Narra^.  A.  D.  1695. 


[1382 


IS  agaimta  gentleman  of  the  pro- 
i  law,  and  one  who  hath  had  the 
Speaker  of  aereral  parliaments, 
^bserre  in  this  Information  the 
ctiires  or  epithets  fastened  upon 
:  it  stiles  him,  a  pernicious  and 
It  charges  him  with  the  worst 
:.  stirrinff  up  of  sedition,  disturbing 
he  kingdom,  endeavouring  to  pro- 
etwcen  the  king  and  his  sutijects ; 
the  duke  of  York  into  contempt 
and  his  subjects ;  and  with  the 
publishing  a  false,  scandalous, 
infamous  liM.  These  crimes 
e  set  out  in  Mr.  Attorney's  Infor- 
he  worst  of  adverbs ;  and  with  a 
them  together ;  viz.  That  these 
one  by  the  defendant,  falsely,  on- 
istly ,  wickedly,  maliciously,  scan- 
tiously  and  devilishly.  And  to  add 
r>  all  this,  it  is  charged  to  be  done 
i*  the  basest  principles  :  out  of 
for  one  of  the  most  sordid  and 
viz.  For  his  own  lucre. 
Iher  be  observed.  That  the  Infor- 
lot  al ledge  or  affirm,  that  there  is 
>r6on  in  the  world  as  Thomas 
(though  it  mention  the  name ;) 
such  person  did  ever  frame  or 
f  such  scandalous  aod  libellous 
rmation,  as  is  mentioned  in  Mr. 
Turmation.  But  (for  all  that  Mr. 
ws)  the  name  of  Thomas  Danger- 
but  a  feigned  or  borrowed  name, 

1  libel.  The  House  of  Commons 
{ti6ed  in  making  the  Report  in 
smuch  as  it  reflected  on  innocent 
It  is  the  undoubted  right  of  every 
is  accused  of  a  crime,  to  be  tried 
the  country  ;  and  as  it  appeared 
r  part  of  the  publication  in  ques< 
.  H.  Tooke  had  been  acquitted  by 
a  foul  libel  on  him  to  sav  that  he 
*the  crime  of  which  he  had  been 
ind  it  was  mentioned,  that  in  this 
sir  W.  Williams,  where  an  infor- 
filed  against  the  defendant,  who 
iker  of  the  House  of  Commons, 
I  a  libel,  "  Dangerfield's  Narra- 
determined  bv  this  conrt  that  the 
as  not  iustitied  in  publishing, 
id  published  as  speaker,  and  by 
ilouse  of  Commons.  This  deter- 
remains  in  force,  notwithstanding 
pts  in  parliament  to  get  rid  of  it ; 
rt  Atkyus  in  his  *<  Treatise  on  the 
idiction  and  Privilege  of  Parlia- 
cates  the  legality  of  this  deiermi- 
m  <l<!cision  therefore  proves,  that 
'  Commons  themselves  cannot  jus- 
shin*^  of  any  matter  reflecting  on 
odividual. 

nl  Kenyon  in  giving  judgment, 
»f  R.  V.  sir  W.  Williams,  which 
ly  relied  upon,  happened  in  the 
i :  but  that  has  no  raatioD  to  the 


and  that  the  defendant  may  be  the  author  and 
composer  of  this  libel,  as  well  as  the  publisher* 
And  one  would  not  imagine,  upon  reading  Mr. 
Attorney's  information,  that  any  thing  of  these 
matters  thus  charged,  was  ever  transacted  in 
parliament :  bnt  Mr.  Attorney  gives  them  ano- 
ther date,  both  of  time  and  place.  He  does  not 
lay  the  scene  at  Westminster,  but  at  St. 
Martin's  in  the  fields,  and  he  times  it  to  tha 
year  1682,  whereas  there  was  no  parliament  io 
that  year.    This  was  warily  done. 

Thus  the  case  stands  u|K)n  Mr.  Attorneys' 
information,  aad  should  it  be  left  here,  it  would 
be  a  woeful  case  with,  the  defendant ;  but  as 
Solomon  says  in  his  Proverbs ;  the  first  in  his 
own  cause  is  just,  then  comes  the  other  party 
and  enquires  into  him.  The  plain  Enghsh  of 
which  is,  as  we  used  to  say, «  One  tale  is  good 
till  another  is  told. 

The  Defendant,  in  his  Plea,  states  the  matter 
truly  and  fully,  and  tells  ns,  that  there  is  no- 
thing true  in  this  Information  exhibited  against 
him,  save  only  tliat  there  was  such  an  infor- 
mation of  Daugerfield's,  but  that  the  defendant 
was  none  of  the  author.  It  was  drawn  up  and 
delivered  into  both  housies  of  parliament,  first 
to  the  Lords,  upon  oath ;  and  there  ordered  to 
be  entered  in  their  Journal :  and  afterwards  de- 
livered at  the  bar  of  the  House  of  Commons. 
And  that  the  Defendant,  being  Speaker  of  tlie 
Commons,  he  examined  that  Informotion  of 
Daugerfield's,  and  directed  the  printing  of  it : 
but  it  was  all  done  in  tione  of  parliameut,  and 
ordered  to  be  done  by  the  House  of  Commons... 

present  case.  There  the  publication  waathe 
paper  of  a  private  individual ;  and  mider  pre- 
tence of  tlie  sanction  of  the  House  of  Com- 
mons, an  individual  published  :  but  this  is  a 
proceedinir  by  one  branch  of  the  le^i^itlaturev 
and  therefore  we  cannot  enquire  into  it.  1  do 
not  say  that  cases  mav  not  be  put  in  which  we 
would  not  enquire,  whether  or  not  the  House 
of  Commons  were  justified  in  any  particular 
measure,  if,  for  instance,  they  were  to  send 
their  Serjeant  at  arms  to  arrest  a  counsel  here 
who  was  arguing  a  case  between  two  indivi- 
duals, or  to  grant  an  injunction  to  stay  the  pro- 
ceedings hens  in  a  common  action,  undoubted- 
Iv  we  should  pay  no  attention  to  it.  But  the 
Report  in  question,  being  adopted  by  the  House 
at  large,  is  a  proceeding  of  those  who  by  the 
constitution  are  the  guaniians  of  the  liberties  of 
the  subject ;  and  we  cannot  say  that  any  part 
of  that  proceeding  is  a  libel.''  And  Grose,  J. 
added,  '*  It  must  be  remembered  that  that  [the 
case  of  sir  W.  W.^  was  declared  by  a  threat 
authority,  to  be  a  disgrace  to  the  country." 

It  is  remarkable  that  in  this  case  of  Rex 
V.  Wright  (8  Term  Rep.  p.  294)  the  Reporter 
i*epreseuts  the  learned  persons  who  argued  in 
support  of  the  application  for  an  Iiifoniiatioii 
to  have  stated  that  sir  Robert  Atkyns,  iu  this 
Treatise  on  the  Power,  Jurisdiction,  and  Privi> 
lege  of  Pariiament,  vindicates  the  legality  of 
the  determination  of  B.  R.  in  sir  William  niU 
liamt'scase. 


w 


wmt^^ 


lassj 


7  WILU AM  m.      Pfiweedingi  iigBfiti*  Sir  Wm.  mUims,    flJII 


By  tim  niTrab>e  of  the  Pfea»  ill  th^uttloui^ 

iijji?ctives  and  uotoward  ftdTeriw  are  thrown Rff, 
mvA  thft  fJ«^D<)aDt  cleared  fram  the  matiee. 
Nor  is  it  tnie  tbot  is  sitiij  iti  Mr.  AttorDey'f  Iit- 
fbrmntipn,  to  l»c  done  I'wr  the  defendoiil*«  lucre. 
He  diilit  out  r^«f  obedience  io  the  pavlititneiit ; 
and  he  litniiss*  tbul  he  itiatle  any  profit  by  it, 
hut  actJfinJing  to  iht?  order  nf  the  Hou^;  the 
}ir<ilit  otVihe  (ftmtiod  was  t^  tJNujDT^rfield,  ''  Aud 
all  thk  is  eon*"ei«ed  by  t^^e  deiniiTrer. 

The  plsH  couiiisttj  ot  tiie»e  p^n^  t  matter  «f 
lacli  matlei-  of  record,  and  matter  of  law.  !t 
befbswith  matter  of  law;  and  sets  down  the 
law  and  custom  of  parliament.  Then  he  does 
aisume  the  matter  of  fact,  oud  of  records  and 
brit)^  them  home  ta  that  law.  He  tells  ui^ 
Thot,  for  C4»rtain,  there  was  sudi  a  thing  atf  a 
Pojjish  Pl«l,  and  thatit  w»sa.de»jieraie,  horrid, 
detiUfh  plot.  And  here  all  the  Ititter  tdjectiirea 
and  adverbs  would  hare  been  well  besLewedp 
rather  than  upon  the  speaker  ef  that  imHia- 
ment;  which  parliament  with  aneh  admirable  j 
zeal  and  canragc  did  prosecute  somm  of  those 
pbtters. 

He  lets  forth,  that  tbe  lord  Btaf^rd  was  m  I 
paHi^menl  conrict  belWe  tlie  Lords  of  High  i 
tre«»on;  committed  in  that  plot ;  and  he  was 
convicted  at  the  prosecotion  of  the  €«nimoni, 
acc^jrtliiig  to  the  law,  and  ccstom  of  parlia- 
megt^  He  say»^  that  the  king'  in  his  Hpee^i 
to  ibe  Ijonh  «md  Common^i  charged  thi^m  to 
make  a  furllier  itrict  and  impartial  enquiry 
alier  thk  plui.  Then  the  plea  tells  uv,  They 
did  accord  in  |j[ly  make  an  impartial  onquiry^ 
and  divert  otiiert  were  tbereupon  conr ieted  ni' 
that  plot. 

It  now  appars  plainly,  that  all  that  is  con* 
tatned  in  tlus  Plea  was  not  only  done  during* 
the  parliament,  but  by  th«  parliainent  itsdf ; 
and  thai  the  defendant  only  acted  ns  speaker. 
Aod  itia  worth  the  remeniueriii^ti-o,  (hat  there 
has  been  anoth«>T  parUameot  ^ince,  nimiely  that 
M  Oxford.  And  though  all  that  was  done  hy 
him  in  the  parliament  at  Westminiiter,  was  then 
*«ry  well  kiKiwo  and  rememhere^i ;  and  though 
be  were  »o  pertucious  and  seiHtious  a  mau^  in 
the  opinion  of  Mr.  Attorney  *fi  iuforDialionf  yet 
the  world  had  a  heiter  opiiuon  of  h;mT  for  he 
was  chost^t  ."Speaker  again » in  that  ht^er  parlia- 
ment, and  his  mfLjesty  approved  of  bin. 

At  ladl^  the  det'eiidant  concludes  hli  plea  to 
ihejuriidiclion  of  this  court  :  liz.  That  what 
he  had  Kti  acted ^  being  acte<l  in  parliament  time, 
and  hy  order  uf  pftrliurnt^ntr  he  ilemanda  Hio 
judgoient  of  tbis  court,  whether  they  will  take 
conusance  oC  iL 

The  Attnnicy  General  demivred  to  it* 

The^aubject  matter  of  this  record  slavery 
large  field,  vi;i.  The  Fewer  aud  JuriadrotiaD  ol 
PiirUAment,  and  yet  1  shall  have  hut  a  narrow 
path  to  T^alk  in.  It  ia  a  very  nice  and  leader 
point ;  it  li  my  case,  as  it  waa  bacctofore  with 
tbote  th»t  were  tu  and(*i|^a  the  old  SaKtm  trial 
by^  fire  ordail  (per  ferrum  csmdeiis)  if  I  li^ead 
*««ifle  imd  muke  a  wrong  atep,  I  m^  do  tnyiclf 
•  mischtri;    But  by  the  grace  of  God,  I  fhall 


tall ecare  aeitlier  oo  the  one  hand  ti>  gtw  tij  jmI 
occafflon  of  oHeuce  to  tti^aie  abofi^  tnc ;  am  m 
aa  the  Qth«r  band,  ftUnll  f  !>«  vwiiiif  iiM 
dutj  I  owe  to  the  kiofdam'i  ca^H.   I  ill 
afjcak  my  mind  freely  in  ii ,  and  leite  die  mim 
1 0  God .     And  while}  i umi  ar^ur  lV>r  tN  im* 
dom  of  acting  in  f^arliamenf,  nvtA  i^Aim  ^ 
Hpeaker,  and  ^ndenf  (»urU»  taitintiiiulbn.t  nghtti 
and  prifitefes,  I  may  jiiilly  ctmi«ilbit«taf 
and  reasonable  prtfilfj^e  lor  inyw^t,  llH  il 
happen  tmaviares  to  itiiH^plac^  aVitrd,  drtnk 
imsiippreh ended  in  wh»t  1  ssi^%  A  mvy  Wiit 
liberty  iniftanily  to  expbin  m)fi44f  Ami  tab 
myself  to  lie  under  the  priolectiua  of  tk  tain 
while  I  argae  ilm  law. 

In  arguing  this  caae,    !  iliall  mtk  ttni 
points,  or  lay  down  these  three  iKHLtUom '. 

1.  lliat  what  b  done  in  lUta  catr Jt  ilopt i 
a  CO  nrse  of  justice,  and  tliut  in  il^ehi^eil 
of  the  nation  (the  paitiament)  aud  accunlni|i 
the  law  and  custom  of  piarhameiit^ 

2.  Thit  howcverf  that  which  is  d^trtalfill 
case,  h  not  to  he  impuictl  to  the  defeadabt,  vll 
acted  in  it  but  as  the  servant  or  mimster  «f  tSi 
parliameot,  thougtiin  a  very  boo<>uraUe«liMi 

3.  Tliat  these  being  ma^ltera  trausadtJ  il 
parliament,  and  by  the  padiameni^  tl««i  c«ill 
ofthtf  King'ii^hanch  ou^hl  not  lotatrooot* 
mace  of  tbtm  ;  nor  hatb  it  any  jinisdiciitfB  li 
judge  or  deteFmine  of  them. 

As  to  the  first,  1  shaU  frame  lHi»  sTt*«pnii 
Mo  indiciment  or  action  lies  tsir  wlvetii  At  ii 
a  comae  of  justice,  or  in  a  ^av  of  le^l  ff^ 
<^eihng^  Bnt  what  has  been  Jone  by  th«  is- 
fendant,  and  liy  the  Hou^ie  of  Coon  moot  to  1m 
case,  bath  been  done  in  a  coui'se  of  jn«tier,«4 
in  a  way  of  legld  proceed  in(^  and  tlisl  mlN 
bigheat  court  of  the  ntLti«n«  Tlierefore  riii 
haih  been  here  done^  is  neitlrier  subject  to  m 
action  or  indictment, 

I  fihaU  first  pmre  the  m^pr  profaiili»: 
That  no  indictment  or  action  lies  forwitt* 
done  in  a  course  of  jusiice. 

The  rea^n  of  the  law  is.  That  the  lav  ss4 
courts  of  law,  and  jusiice,  and  remedies  afv^ 
wrongi  ought  to  \m  free  and  opeti ;  and  cw  m» 
most  oe  frighted  nor  disco urs|fed  fnMn  a  itf^ti 
provecution  of  his  righl* 

To  prove  this,  I  sliatl  make  bold  m  cits  ibr 
opinion  and  anthority  of  »  Inwa- clerk.  1^ 
report  of  it  is  in  the  Hdy  Scripture,  the  livcrt 
and  highest  repoil.  It  was  the  opiiikai  sai 
advke  of  the  t4>wn' clerk  of  Athent.     l\ewe# 


it  in  the  Acts  of  the  Apostles,  and  it  inslsatff 
^lled  and  nuieted  a  mighty  uproar,  it  hiiii 
much  weight  in  it.  'If  any  niaji/  saytl% 
*  have  any  matttr  against  anether,  the  W  ji^ 
'  o|ien,  and  there  arc  deputies  ;  let  tbecQi*  flfi, 
he,  '  implead  une  another,'  ,^J 

The  prtie^  to  a  suit  in  law,  tlie  connM* 
attorney,  the  ^vitness,  the  officef^  tlMJiii 
ail  under  a  prutection  of  the  law  for  wMl 
do  01^  say  iu  the  prosecution  ofa  suit ' 
any  lejral  pfoceedjng, 

J  will  put  some  ikw  caseisnjiei 
of  these  wha  nre  ibe  sercr&f  «ctori 


tUMtM 

liiil 


X 


K    Afl., 


JtgrpMiAing  DmgerfUU^^  Nmt9the*  Jl«  D«  1^5* 


[I3M 


lltt,  tf  ^  B.  Si  fdtkd  ilie  stAt.  or  W. 
t  rtfOfti  ilaii4l«ft»at  iivws,  wti«iret)jr 
•jr  glKMV  betweeo  lll«  luiif^  and  his 
iJie  grettt  ni«fi  of  tli€  r^nlm,  i«  to  be 
i,  till  the  tir«t  uiithur  of  tbe  Uile  be 
ito  tbe  court.  This  comes  near  our 
1  tilts  IS  all  th«  punishment  ttiat  the 
li>6tiiupon  this  crime  of  reporting:  snob 

Mte  in  hiH  exposition  upnu  tbts  stat. 
Instit.  9?e,  says,  That  this  stat,  ex- 
to  enirajudicial  slanders.  And  tt>erp* 
he,  it'  any  man  bring*  an  appeal  of 
robbery  against  any  of  the  peers  of 
»  although  the  char;^e  be  false^  yet 
he  p9er  na?e  an  action  De  Scandal  is 
n,  neither  at  the  common  law,  nor  by 
d'  W.  1,  nor  iioy  other  stat.  ibr  any 
al,  nrir  for  alHnning^  the  matter  of  it 
either  to  counsel  or  attorney^  or  for 
he  «»amc  in  evidence  V*  u  jury, 
he  Wtrd  BeaiKhamp'!*  caae^  13  H^  7, 
«>»  a7i  '2B  Sir  Ricbaixl  Cmfts  sued 
brgcry  of  false  deeds  s,rainst  the  lord 
iji :  The  lord  Hcnuchump  sues  sir 
^As  in  an  action  De  Hcandalis  IVfa^- 
on  the  statute  of  2  R.  2,  c.  5,  for  iliiv 
^kmng  htm  with  for^ry ,  Keble, 
Hr  the  loi^  B.  admits,  tliut  at  the 
■fr  no  action  did  lie  tor  lliiu  slander, 
a  eoiir»e  of  Ifgul  proceeding^.  But 
ii  i*ni,  that  thl^  statute  uf  S  H; 
■  •in  in  such  a  case,  though  it 
mfier  occasintte<i  by  a  suit.  But  hy 
ike  rest  uf  the  cniirt,  the  action  De 
ilfnatum,  did  not  lie  for  such  a  slan- 
h  Iht  matter  id  it  weit?  false,  liecnuse 
is«3cution  of  a  lawful  suit.  With  this 
uhon  and  Chphum's  ease  in  Justice 
f[>.  *3 1 ,  and  VV  estou^s  case,  Grok .  Jac 


^oke  puts  the  dif&renee  in  his  9d  VnHt. 
4.  If  It  man  prefer  a  bdl  in  the  Htar 
m^amst  a  ^-reat  peer,  and  chart;e  him 
ry  Of  perjury,  no  action  De  8cand. 
i»,  it  tu^in^  in  a  Icffnt  proceediu|«',  aud 
si  'in  thiit  court  had  a  juriedic* 
ha  bill  in  the  Star  Chamber 
locmeii  *br  felony  (which  that  cmrt 
HS^^  fiith,  nor  nc»  jurisdiction  in) 
'WT  B.  Coke)  has  not  the  face  of  a 
ledin^,  and  ;»hall  not  excuse  a  man  in 

tScand.  Magn.  sir  Rich,  Buck- 
kp*  l't|  Cro.  Eliz.  930y  the  same 
tcre  there  is  but  a  mistake  of  the 
t  one«  well  commenced, 

'  :  1  .»^.«  in  the  proceed in||j[s 
eiffpoiie  Ihem  to  the  action  De  Scnnd. 
ir  a  niiti  bring  on  apoeal  uf  murder, 
^  the  t|^or«nce  of  the  party,  or  his 
Homey t  it  is  made  retiimnhli^  in  the 
Pfeas/uf^-.  r-  in.  '.,,,'  .  \  <  y:r. 
yet  no  t  h% 

(6  suit  hettr^  wen  iwjjuii,  iiii*i  n  ut/iiig^ 

tre  of  a  lawful  toit.     So  says  sir  E. 


^u$  of  t  oonoifilor  pleidiog  for  hii 


He  likcwbfr  hi  what  he  affirms  or  pTesds  for 
hischcnl,  if  it  be  pertinent  to  the  matter  of  Ih*" 
suit,  and  he  has  it  by  instruction  from  htsclieatf 
he  shall  be  protected  agaia»l  an  action  of  atan*' 
der  foi-  it.  This  is  a  point  that  may  cooosra 
many  of  us. 

It' was  the  case  of  sir  Hen.  MoaDtsgu  w^ 
copder  of  London,  M.  3  Jac.  Cm.  fo,  90,  in  B. 
It  fiuL  Bro#k  bfou*rht  au  action  upon  the. 
case  fbr  &lander  agatnst  sir  H.  Bi.  f»»r  saying'ot* 
the  pi.  Brookf  that  he  had  cotnmitted  Nelony. 
8if  if.  M.  pleaded  specially  to  the  action,  That 
he  was  a  counihellor  at  law,  i^nd  was  rctaintit 
a^nst  the  pi.  Brook,  and  at  the  trial  in  giving 
of  evidence  to  the  jury,  he  did  indeed  speale 
those  words ;  but  arerred  that  they  were  perti- 
nent to  the  matter,  and  wei*c  part  of  his  instruc* 
tion.  It  was  revived  upon  a  demurrer,  That 
tlie  plea  was  ^ood»  the  words  bein^  pertinent^ 
tboug^i  they  were  false.  And  there  is  a  fiirtl^er 
reason  given  by  the  conrt  in  that  case,  viz. 
the  worfls  »p|iear  iic»l  to  be  spoken  out  of  ma- 
lice :  and  r»o  actions  of  thi«i  sort,  nor  will  any^ 
indictment  of  this  nature  lie,  unless  there  b« 
malice  in  the  defendant;  and  where  there  is 
any  J usti liable  occasion  of  speaktng^  words  that 
a  man  in  dischar^  of  bis  function  or  calting^  is* 
led  by  the  subject- matter  of  dbcour^,  as  ^ 
preacher,  or  {deader,  or  the  like,  to  s|)eak  words  - 
in  such  case ;  it  shall  be  presuiited  they  wsft 
not  apokan  out  of  malice. 

In  the  case  of  an  Attorney. 

8ir  £.  Coke  in  his  2d  Instit.  h  his  ezposiHoii 
of  the  Stat,  of  Articuli  super  ChdJtas,  28  E.  1, 
c  10,  tells  us.  That  in  the  very  nt'jrt  year  after 
the  making  of  that  stat.  viz,  Q9  E.  l',  WilK  dO 
VVenton  broug-htan  A ctii in  of  Conspiracy  in  th# 
Kini^'s^ bench,  against  William  ot  ff enijts%Ten, 
piinMin  of  NeirtoR,  and  John  of  Mntden,  parsott 
of  Askerby,  fur  causing  the  plaiutijf  to  be  citsd 
l«»forr  the  archdeacon  of  Lancctn  for  a  trespasip .. 
whf-reof  ht*  hafi  been  acquitted  in  the  kmg*S 
court.  John  of  Mahlen  pleaded,  That  he  was 
'  Commnnis  Atlvocalus  pro  suo  dando/  and  so 
jiistifit'd  as  an  attorney  ;  and  it  wits  fonnd  thtf 
parson  ws^  Communis  Advocatus,  and  so  not 
guilty  of  thtfciitispiracy. 

Id  the  case  of  a  Witness :  For  what  he  ssji 
as  a  witness  or  for  what  is  said  against  him,  to 
disable  him  from  beine  a  witness,  or  to  take  off 
his  credit,  no  action  of  slaodf  r  %vitl  lie. 

35  H,  6,  14.  In  »n  anion  of  com  pi  racy,  out 
of  the  dffendautsiusiified  as  being  a  witness,  t^ 
the  jury. 

Crok.  Jac.  452.  lo  the  King's-bench,  Wi|v 
too  igaiost  Dobraeet,  in  an  actioti  for  slander. 
There  was  a  suit  in  die  spirit aal  court,  and  ths 
plaintifl*  thai  brought  the  action  of  slander ,  wai 
prtntuc^  as  a  witness  in  that  cause,  and  the 
dclendknt  in  that  «uit  in  the  spiritual  court,  put 
in  exoepiious  against  him,  That  he  had  beea 
perjurra,  and  therefore  i>ught  not  to  be  used  as 
a  witncMt.  Thereujton,  WestOEk  the  witness, 
brought  tliis  action  tor  that  slander.  And  alter 
arguments,  the  whole  court  held,  thst  the  b£> 
lion  of  slander  did  out  tie  for  this  malltM^r  of 
slaodf,  bectnts  il  wis  iii  a  t^tint  of  justice, 
•ftd  (Mi  M  UMidcia. 


1387J 


7  WILLIAM  III. 


Pfocsedingi  againsi  Sir  /f  m«  WUUsMis^    [! 

ible,  for  tUe  safety  of  the  Liof^  tud  iiit    ^ 
if  a  tncin  be  subject  to  an  actiea  fof  it,HwJU| 
a  me£Liig  that  Ire&soo  sb&t!  l^e  tmotberd,  i 
meD  wilJ  Qcit  expoftc  tbemwlfft  tu  idira^t 

J.  HDug^fitou  held  tbe  action  wtuM  baI 
upon  &n  i^iininnK  fcmmi ;  r<>r  by  ibn  ll 
party  is  tiat  acquitted,  but  niiv  W  itt^ 
again  ntiit  con^icietl.  Uui  lie  hoiili,  tin  f  I 
be  iu<Uf:(«dt  and  wmn  trial  *  L^itiaio  ftiaiil 
^  (X*ii«tatu5/  ill  en  ne  shall  biire  »n  icumi) 
llic  case^  in  nature  of  a  coti^^nc)' ;  for  i 
be  is  absolutely  aer|iittled  ami  lii^  i(l 
acciisatioti,  tin  J  nevir  can  be  indtdd  ipii 
ill  at  particular  lad. 

Dudileridge  agrees  m\h  Houijliioo.aiJf 
tbb  case ;      if    uu    action  of  cvtiffirtg 
brought  apiJDSt  ti  uian,  for  indictiag  iie 
lifT  of  trea4S(^n«  itie  defcndaiil  timj 
cially  (aud  tbat  is  tbe  safest- way  r    ^ 
that  lie  beard  tbe  jilainttif  sj^aksucbsifiA 
treasonable  ivords,  and  lb  at  \m  ibifmifM 
plained  to  a  justice  of  peace,  Hha 
ttia  plaintiiT  upon  il,  aod  thi«  {iia;i  he) 
excuse  him. 

Ley f  Chief  justice,  inclinet  loo  i|^ 
acttoD,  and  givea  a  aferong  Fvaxoo, ' 
be,  it  \^  misprision  t»  coQeeal  it ;  lad  J*i 
allow  of  this  action,  it  sball  be  d«agEf«i 
to  di&coTer  it,  ao  tliat  ilie  defedbit 
*  Lupum  auribua  tenere/  Aiid  »  »k| 
inent  was  arre^ied. 

But  we  find,  that  sooo  after,  wlicn  lltj 
of  tbat  court  were  cbangcil^  the  «ame|J 
brought  a  ne\v  actioti  for  tlie  same  ciii^  =  ^ 
it  was  adjudged  for  tiie  plaiotiff,  that  ib*it 
tiua  woutd  lie^  but  tbe  Judges  adcciuvNH^ 
was  the  first  precedexit.  1  suppose  it  m^n^j^ 
pjeadipg  not  guilly.  Perhaps  tbe  wurt*^ 
have  been  of  anottier  op  in  ion  ^  bod  tbt  W 


iog^ieil 


In  a  Writ  of  Conspiracy,      One  of  tbe  de- 

fiindafits  |>)eadedf  that  be  was  one  of  tbe  io- 
tlicl<ir«.  Judtrmcnt,  li  atUu.  And  the  plea  is 
aUuwefJ,  m  H.  ti»  5.  and  3S. 

Nay  thougb  it  be  not  in  a  couree  of  justice, 
in  a  iuit  of  lnw,  yet  if  a  man  be  in  tbe  doiuje^  of 
liis  dut^,  and  in  di&chari^  of  his  fuuetion  and 
tiii  lawful  caltijoif,  and  in  rliscoursing  of  a  sub* 
jeet  firoper  i^t  hi*  funclioo,  aud  enforcins:  of 
wary  man^a  duty  of  avoiilingof  any  iia^  and  in 
pomiiil  of  it,  tella  a  ator^  wbicb  lie  ^kea  tip 
upon  trust,  and  doe«  not  knc)W  it  to  be  (a1^, 
ttnd  it  prove  £ii  ta^t  to  bt'  utterly  untrue,  and  an 
lDQoe«nt  person  i^  highly  sJandered  h^  it^  yet 
lie  iball  not  be  mibjccl  ti>  aji  action  of  slauder 
0)r  it.  Tbe  occasion  of  Ei|ieakin]gf  shall  clear 
him  froui  tb«  malice,  without  which  tlic  action 
will  not  be. 

In  the  Book  of  BlartjrSt  written  bv  Fox* 
UiCTe  is  a  story  of  uue  Greeuwood,  wboli^'cd  in 
Sufiblk,  tbat  be  had  perjured  bimt^If  beloretlie 
byiap  of  Norwich,  in  t^Jyiup'  n gainst  a 
maflyr  tbat  was  burnt  in  queen  Mary^»  lime : 
AEid»  say 8  Fox,  this  Greenwood  afterivank,  by 
Ihi  just  judgment  of  God,  bad  bis  bowels 
fotleil  in  niiiij  and  so  he  died. 

This  stiiry  by  Fojc  in  bis  Book  of  Martyrs, 
Wli  utterly  false  of  Mr,  Greeitwood,  and  afler 
Ifet  ftioti^  of  that  Book  of  Martyrs,  Mr, 
Pffienwoodwas  biiug  in  that  very  same  parisfi. 

One  Prist  a  parson  bappened  to  l>e  preseiiti^d 
la  the  living  of  that  parish  where  this  Mr. 
Ojreenwood  then  dwelt ;  and  ^1  £Xxz.  in  one 
of  hii  first  sermons,  happened  to  iufeigh 
ft|;ajnst  tlie  sin  of  |>er]nTy  ;  to  wltich  ht5  text 
did  le^d  bioj ;  and  the  better  to  deter  the  peo- 
ple froui  the  sin  of  pt^rjiiry,  be  told  this  story 
out  of  FiJX^i  Book  of  Martyrs,  ^nd  named  Uie 
very  man  Mr,  Greeuwooil ;    arid  Mr.  Green - 

wood  himself  was  then   in  tlio   church,   and  .  .       ,     .     , 

beitrd  tliis  story  toldof  bituself,  but  the  preacher    datit  [ileadefl  specially,  and  justiJi£d,ac!COMf 


knew  It  not^  fiut  thou^lit  tbe  story  to  be  true 
Greejiwood  brings  au  action  of  bjanrier  ugaitiit 
prist  tbe  preacher  ;  aud  ngou  the  trial  uf  tbe 
cause  before  the  L.  C,  J,  \\my\  tlie  caij*:  ap- 

rriufj  to  lie  thuii,  be  directed  the  jury  t:)  fiud 
the  defendrtnt,  for  Ihai  it  apppjired  it  was 
not  done  out  of  malice:  Ami  C.J.  Pophaui 
atftrmed  it  to  be  good  taw,  it  being  a  in  alter 
delifCred  after  his  occasion,  as  matter  of  story. 
This  caje  i^  cited  by  air  E.  C  m  sir  Henry 
Mountagu's  case,  before  meutioncd.  Crook, 
Jac.  f,  ^0.  With  this  agrees  the  cas^  of  the 
lorrl  Cromwel,  n^«inst  Denny  tt  vicar^  4  Rep, 
}3,  b.  iu  an  action  ile  Scand.  Magii. 

There  is  a  case  in  many  circunistanc<s  of  it 
much  resenibho;^  uur  case. — It  waa  the  case 
between  ^aiith  and  Crash  aw,  and  others,  M, 
30  Jac.  in  liie  Klu^^'s  bench,  in  air  Jeffr. 
Palmer's  Rej>.  3] 5.  An  action  upon  tbe  case 
in  there  brought  against  tbe  defendants,  for 
molidonsly  causirig  the  plaintiflT  to  be  indicted 
of  treatiou  ;  upon  which  imiictment  the  grand 
jury  fosrndau  ignorarnns.  To  this  action  the 
defendants  pJradtMf  not  guihy,  aud  were  found 

fu i lly ,      1 1  w as  \m\ eii  to  ^Tteal of  iud^cneo t ; 
btt  to  ftccUie  one  fot  UeasQiik  ¥i^  i^%^^q^> 


' 

k 


tu  the  opinion  of  judge  Dodderidge.  TSh  * 
is  Cro,  Car.  13  ;  Sc  Latch.  79, 

The  allowing  «f  such  actions  of  e^ofl'^i 
or  upon  tbe  case^  or  of  indictmeBi*  Q"*'' 
matiuns  for  what  is  said  or  done  in  a  ^^ 
of  justice^  and  eispecially  by  way  (if  ilis<5**I 
of  treasons,  would  prove  of  a  mi&cbieȣns* 
sequence;  and  would  be  an  occasion  ("f** 
tipl^  ing  actions  against  the  parties  wtl]*  ^ 
against  counsel,  the  attorneys,  the  witness* 
so  suits  would  be  infinite.  As  in  thisprtseiii*^ 
should  an  action  be  adjudged  to  lie  ip^*J 
defendant  for  what  he  has  acted  by  «atlwrtff  J 
narhenient,  what  a  niulliiude  of  icw"* 
he  stirred  up  by  it  ?  If  i\\e  Speaker  tw  ti*w* 
this  information  for  what  he  has  doue:  K'  * 
same  reason  be  would  be  liable  to  the  ww* 
the  seiperal  great  ijer sons  iliat  are  said  io  Ik.* 
famed  by  u»e  printing  of  Danger^tW'i  luj 
rative.  Aud  if  the  Speaker  be  liibltt  ^IJ^fJI 
ed  but  by  com  maud  of  otherf ,  lEid  ^  "i 
minister,"  how  much  more  would  til  ^^^ 
£:ons  he  liable,  by  whose  command  beiiiiiE|" 
And  how  many  narrAtif^es  bare  there  » 
printed,  wherelu  several  great  perscaf  •* 
^^«x^  ^^%^dbadQu^  audliow  maaj  ^^ 


Jbrpubttsking  DangerflekPs  Narrative^ 
So 


A.  D.  1695. 


riS90 


latnre  have  tbere  been  printed  f 
!  would  arise  a  mulUtode  of  suits. 
Drue  Drurie's  case,  6  Rep*  74.  The 
ijudeiuflf  of  that  case,  ^i^e  a  rery 
e  and  caution :  they  say, That  judges 
have  good  consideration  in  all  cases 
I  before  them,  not  only  of  the  present 
It  also  of  the  consequences,  what  ge- 
jodioe  may  ensue  upon  them  either  to 
ir  subject  The  case  before  you  ex- 
r  requires  that  consideration.  The  pre- 
the  king  will  be,  that  he  will  not  be 
>y  this  means  men  will  be  discouraged 
overing  treasons.  The  subjects  will 
trejudice,  by  the  multitude  of  suits 
arise  by  it  This  may  suffice  to  be 
aintaining  the  first  proposition,  That 
lation  or  action  lies  for  what  is  said  or 
course  of  justice. 

inor  proposition  is,  That  what  is  here 
the  defendant,  in  this  case,  was  done 
se  of  justice,  and  in  a  legal  proceed- 
that  in  the  highest  court  of  the  nation, 
»urt  of  parliament)  and  done  accord- 
t  law  and  custom  of  parliament.  This 
ake  out  in  the  next  place, 
making  this  out,  I  am  under  a  ne- 
'  speakmg  of  the  transcendant  power 
^  court  of  parliament,  and  I  must  as; 
\  positions  following. 
It  the  House  of  Commons  was  ori- 
md  from  the  first  constitution  of  the 
le  representative  of  one  of  the  three 
'  the  realm,  and  a  part  of  the  parlia- 

it  what  is  done  by  either  house,  ac- 
D  the  law  and  usage  of  parliament,  is 
,  and  in  the  judgment  of  law,  the  act  of 
i  parliament :  And  that  what  concerns 
nust  of  necessity  concern  the  whole ; 
ly  by  consequence,  but  by  an  imnne- 
oemment,  as  being  one  and  entire. 
It  what  hath  been  acted  in  our  present 
the  defendant,  as  Speaker,  and  by  the 
r  Commons,  whose  minister  he  was, 
hose  command  and  order  he  did  what 
was  done  according  to  the  law,  and 
parliament. 

he  first.  That  the  House  of  Commons 
.the  first  constitution  of  this  kingdom, 
the  narliament.  There  has  b^n  an 
that  nath  been  stiffly  maintained  by 
nes,  and  others  of  late,  that  the  House 
ions  originally  were  no  part  of  the 
at,  at  least  not  as  now  elected,  and 
I  of  knights,  citizens  and  burgesses ; 
their  beginning  was  in  the  49th  year 
lenry  3,  when  that  king  had  given  a 
rtbrow  at  the  battle  of  Evesham,  to 
If  ontford  earl  of  Leicester  and  the 
And  that  to  balance  the  power  of  the 
lat  king  caused  the  knights,  citizens 
ssses  to  ne  chosen,  aad  to  make  a  part 
rliament.  And  from  hence  some  un- 
ovating  writers, '  quorum  res,  et  spes 
ione  pendent;'  and  who  would  destroy 
DSy  aid  rtmoYe  our  ancient  land- 


marki,  and  the  ancient  and  just  Ihnits  and 
boundaries  of  power  and  "authority ;  persons  of 
necessitous  estates,  or  of  greedy  and  ambitiouf 
appetites,  which' drive  them  upon  devising  how 
to  do  some  acceptable  service  to  those  that 
maintain  them :  or  at  the  best  out  of  unsettled 
judgments,  and  too  much  zeal,  which  carries 
them  to  a  contrary  extreme.  These  men  con- 
clude, that  thercfure  all  the  power  and  privilege 
the  House  of  Commons  claims,  is  not  by  pre- 
scription, but  that  they  depend  upon  the  king't 
royal  will  and  pleasure,  and  had  their  ortginai 
by  his  mere  concession,  and  not  hy  ancient 
inherent  right,  nor  original  constitution,  and 
therefore  may  be  resumeil  at  pleasure. 

It  was  one  of  the  Articles  against  Dr.  Man- 
waring,*  in  the  parliament  3  Car.  1.  for  whieh 
he  wus  impeached  hy  the  Commons,  and  sen- 
tenced by  the  Lords  in  parliament ;  that  to 
subvert,  scandalize  and  impeach  the  good  laws 
and  government  of  this  realm,  and  the  autho* 
rity  of  the  high  court  of  parliament,  and  to 
avert  his  majesties  mind  from  calling  of  parlia- 
ments, and  to  alienate  his  royal  heart  from  his 
people,  be  did  in  his  sermons,  and  in  his  books 

Krinted,  endeavour  to  persuade  the  kinff :  that 
is  majesty  was  not  bound  to  observe  the  laws 
of  the  realm  concerning  the  rights  and  liberties 
of  the  subjects :  that  authority  of  parliament 
was  not  necessary  for  raising  of  aids  and  sub- 
sidies. Hi^  sentence  was  imprisonment  durinfl^ 
pleasure,  and  but  1,000/.  fine  for  this  high 
offence,  not  20,000/.  as  hath  been  of  late  times. 
He  was  to  acknowledge  his  offences,  as  it  should 
be  set  down  by  a  committee  in  writinfi^  at  the 
bars  of  both  Houses.  He  was  suspen£d  from 
his  ministry  ;  disabled  to  fireacli  at  court ; 
his  books  were  to  be  called  in,  and  burnt  in 
London  and  both  the  universities. 

Power  limited  by  law  is  safest  It  may  bs 
thought  *  Potestas  minor,  sed  tutior  et  diutur- 
nior.  £a  demum  tuta  est  Potentia,  que  viri* 
bus  suis  modum  imponit' 

To  encounter  these  new  and  upstart  opiniooSy 
I  shall  mention  an  author  or  two,  whom  all 
sober  men  reverence,  that  are  of  a  contrary 
judgment  to  these  new  authors.  And  they  are 
eitl^  eminent  lawyers,  or  divines.  And  I  am 
the  more  encouraged  to  do  it,  because  his 
majesty  that  now  is,  hath  upon  several  occa- 
sions wen  pleased  graciously  to  declare,  that  he 
holds  parliaments  to  be  the  best  method  for 
healing  the  distempers  of  the  kingdom,  and  the 
only  means  to  preserve  the  monarchy  in  credit 
at  home  and  abroad ;  and  he  promises  to  rule 
the  people  by  the  law. 

Hales,  that  solid  learne«l  divine,  in  his  Golden 
Remains,  cites  Baldus  for  it :  *  Digna  tox  est 
Majestate  Kegnantis,  leg^bus  alUgatum  priu- 
oipem  se  profiteri.' 

And  learned  Hooker,  that  great  champion 
for  the  discipline,  and  for  tlie  rites  and  ceremo- 
nies of  the  church,  in  his  Eccles.  PoUty, 
delivers  his  opinion  quite  contrary  to  these 
time-servers.    Pag.   S7.  '  All  pubfic  govern- 


•  See  T0|.  3,  p.  336,  of  this  ColleotioB. 

4 


JWl]  7  WILLIAM  m.  .   Procee^tigswgainti  Sir  Wm.  WWiam,    [UK 


pMot,'  (Mt  he) '  of  whftlkiiid  ioeT«r,fMiBcth 
•tfTidaiuy  to  hare  oriwa  from  driiherateodTiee, 
coMuluttion  mod  oompontMHi  botwoen  moi. 
That  eompoflitioB  sigiiiBcs  the  UwnJ  And, 
faff.  ^.  he  says  fiirtbery '  That  the  power  of 
BBUiing  kiwa  to  Gommaod  the  whote  politic 
HQcietiei  of  oaeo,  belonga  properly  to  the  nine 
entire  Mcietics/ 

.  What  can  be  aaid  more  in  confutation  of  the 
that  goea  hy  the  name  of  air  Rob.  Fil- 


The  dnke  of  WiCtemheiy,  at  the  cooncil  held 
nt  Wonnce»  when  other  priocca  disoouncd  of 
many  priviiegcf  and  conreniencea  of  their 
lordshijpa  and  territories,  openly  protested  it  to 
he  hie  greatest  iUicity,  that  he  could  *  in  aperto 

*  oampOyOtin  sinasubditoram  suomm  dormire. 

*  Mon.espet  maari  jaculb,  nee  arcn,'  &c. 

.  1  shall  further  add  onlv  the  judgment  of 
one  or  two  of  our  most  nmoua  and  learned 
judges  concerning  this  matter. 

Forteacu,  tfiat  was  first  lord  chief  justice, 
and  afterwanis  lord  chancellor  in  the  reign  of 
H.  6,  in  his  ezoellent  book  in  commen&tion 
of  the  Lawa  of  England,  affirms  this  doctrioe. 

*  Ad  tutelam  l^gis,  sobditorum,  ac  eorum  Cor- 
poram  et  bonornm  erectust  rez  est.  £t  ad 
aane.polBstatem  A  populo  effluzam  ipse  habet.' 

8ir£.  Coke,  in  bis  12  Rep.  64.  ddirered 
his  opinion  freely  in  the  Case  of  Prohibitions, 
before  the  king  and  the  lords  of  the  counsel ; 
where  there  was  a  warm  debate  between  the 
judgea  and  Dr.  Bancroft,  archbisliop  of  Can- 
tarbury.  And  what  sir  E.  C.  delivered  for  law, 
was  with  the  clear  consent  of  all  the  justices  of 
Eugland  and  barons  of  the  exchequer.  And 
there  sir  E.  C.  savR,  it  was  greatly  marvelled 
at,  that  the  archbishop  durst  int'orm  the  kin^, 
That  the  king  had  au  absoiute  power  and  au- 
thority by  the  word  of  God  to  determine  what 
causes  he  pleased  in  his  own  person. 

Audit  is  admirable  to  observe  u  ith  what  a 
true  and  honest  courage  that  grave  chief  justice 
sir  £.  C.  answered  the  kiu*^  himself  in  that 
debate.  When  the  king  was  pleased  to  say, 
It  was  treason  to  afiirm,  that  the  king  was 
under  the  law:  The  chietju.sticc  answered  him 
with  the  words  of  an  ancient  judge,  and  author 
of  our  law  (that  is,  out  of  Bractoo)  That  the 
king  was  sub  Deo  et  I^ge.  And  FIcta,  ano- 
ther of  our  ancieut  authors  in  our  science, 
useth  words  tc»  the  same  effect.  This  doctrine 
differs  from  some  of  our  late  mottos  in  the  Ser- 
jeant's rings. 

Tacitus  in  his  Annals,  gires  this  excellent 
commendation  ot'two  of  the  best  of  the  Roman 
emperors,  Nerva  and  Trajan:  *  Res  olim  in- 
aociabiles  miscuerunt,  imperium  et  liber- 
tatem.'  And  that  author  well  observes  it  as 
the  true  case  and  condition  of  a  people,  and  a 
necessary  consequence  :  *  amissa  viitute  pariter 
acLibertate.' 

This  discourse  of  mine  may  seem  to  some  to 
be  a  digression ;  but  a  man  can  never  have  a 
juster  occasion  for  it  than  now,  and  upon  ibis 
argument  and  suit :  I  make  that  my  apology, 
which  I  learn  from  king  James,  (bis  majesty's 


royal  gnndfathcr)  m  hii  disosMeiffc 
Powder-TreaaoD,  which  pnwnitllNHi 
■eawnaUe.  *  There  is  a  tiaia,'  mih  \^ 
Jamci^  *  when  no  man  ought  to  ben  dan 
It  hath*  savs  he  •  boen  everJisUMtpsnl 
rule  in  all  wall  gofomcd  coMSMa-aali^ 
whether  Christian,  or  Ethniekl^  TVtihi 
cither  their  NligioB,  or  their  ldB|,«lB 
country  was  in  any  extreme  haasA,  mpd 
conntry-man  ovght  then  to wilbM flJAa 
hia  lonffue  or  his  hand  accoidiBglsynai^ 


KS 

¥A 

t\ 

iTi 

iLc 

im 

r' 
r' 

or  faculty,  from  aiding  lo  rapdlheisyvyi^  r 
presa  the  violence,  and  avenge  the  gvkifn  I  ^ 
the  authors.'  F 

To  aujpport  the  power  and  piifilfgediir 
Hooso  or  Coaunona,  as  being  an  cantidpK  r 
of  the  parliament ;  it  ia  ahadCiiely  asenwyi  V 
make  it  out  against  tbcae  innovalsis,  ihSlihe  i 
House  of  Cmnmona  have  aver  bcmapirtd  | 
the  parliament,  and  that  tJiey  werebsgkbR  | 
49  H.  S.  Or  olherwiae  they  are  Vol  pii» 
rious  in  their  power  and  privileges,  mk  off 
them  but  of*  grace. 

Every  privilege  ia  by  preacriptioa,  ssji  iht 
k>rd  Dier,  fid.  60,  d  aiedL  m  Trewiaaaid'iCw. 
which  I  shall  have  occasion  to  BBentMNi  vrntf 
large  before  I  have  done.  And  in  ths  hk 
Dier,  fol.  70,  in  the  cano  of  Withers  uA  b^ 
■ham,  it  is  held,  that  a  man  cannot  prcscribii 
an  incident  or  appendant,  nor  indeed  is  n 
power  or  anthonly  where  the  principsl  thq 
hath  not  had  a  perpetual  oontinnanea.  Tbm 
fore  where  thehejpnning  of  a  thing  is  ksssi 
there  can  be  nothing  belonging  to  it  bj  pt 
scription. 

In  one  of  our  late  king^s  reigns,  the  Uui:se 
Commons  in  an  Address  of  theirs,  maile  rv 
tion  of  their  privileges  as  their  ancient  2B<'<  • 
doubted  right  and  inheritance:  but  ofi«« 
was  taken  at  it,  and  they  were  told,  it  hsd  bi 
better  if  they  had  saiJ  their  privil«ge»  «( 
derived  from  the  grace  and  permissioD  vi  i 
kine*  and  his  ancestors. 

Now  1  shall  cleaH^'  prove  that  these  Povi 
and  iVivileges  were  mdcod  tlieir  ancient  ris 
and  inheritance.  Which  tliey  eannot  be  usii 
that  House,  or  the  Commona  by  their  rrp 
sentat'ive,  have  been  ever  from  tW  bc^nn 
of  the  government  a  part  and  member  of  < 
parliament.  I  sba^l  pnive  it  out  of  seveAl  i 
thentic  authors  of  the  law,  historians  sod  an 

Suaries,  and  by  a  multitude  of  records,  ao^ 
ivers  acts  ot  oariiament,  w  hich  are  sli  t 
sorts  of  proof  tnat  can  be  in  a  question  of  t 
nature. 

The  Mirroar  of  the  Justices,  of  which  h 
sir  £.  Coke  says.  That  roost  of  it  was  wril 
before  the  Conquest  (as  appears  by  the  h 
itself)  Tho.  Home,  a  learned  man,sdMBi 
to  it  in  the  reign  of  £.  1,  in  this  Mirronrrfl 
Justices,  c.  1,  s.  3,  it  is  said,  that  king  ili 
onlained  for  a  perpetual  usage,  That  Mi 
the  year  or  oflener,  if  need  be,  the  piiiiiWi 
should  assemble.  And  to  let  yon  aeasf  vbj 
that  parliament  did  consist,  he  letts  «  it  ■ 
same  chapter  by  whom  the  laws  WSR  ih 
made.    It  is  (saya  he)  among  other  t 


fir  pMuhlng  DAngerfieUPt  Nttrraiive.  A.  D. '  169.1. 


[1594 


Ttwt  no  kiD^shouklcbtnge  hit  money, 

y^  iOBpiir  it,  nor  inhaoce  it,  nor  make  tmy 
y°yy  kot  of  wber,  witliout  the  assent  of  the 
4;m«  a^id « all  the  Commons.' 

^J^  ^^.  C.  in  his  Preface  to  the  Oth  Rep.  tells 
?*■  ^i^M  tenants  in  ancient  dcmeMi,  becanse 
SJ  fnw\  ia-  tenure  they  were  boond  to  plow  and 
id  llie  king's  demesnes,  before  the  Con  • 
*^  g  Aad  in  the  Conqueror's  time,  had  difcrs 
^alvBsvi^  wbicb  they  claimed  by  prescri|Kitvn ; 
lOff  others.  Not  to  contribute  to  the 
ftne  knights  of  the  shire, 
the  pnrilege  must  be  as  ancient  as 
tenure  and  service,  for  their  urivilege 
_^^*  ^y  reason  of  their  senrice,  and  their  ser- 
[J^^M  Jknown  by  all  to  be  before  the  Conquest, 
^^*M»  tine  of  Edward  the  Confessor,  and  in 
TJ^^ioie  of  the  Conqueror.  And  it  is  cxi»re8sly 
3y  Py  this  learned  and  reverend  jud^,  That 
S^^*^  tCMots,  in  ancient  demesne,  claimed  this 
t  ^^^.^^cwription;  and  it  couM  not  be  so,  if  the 
of  the  knights  of  the  shire  had  bc^un 
im  memory  of  man,  or  of  any  record, 
^♦^■^tforo  it  clearly  follows,  that  koi{rhts  of  the 
^  ^^.S*"**  ^  ^^^  in  )*arliaroent,  and  the  paying 
i.  -  ^^gss'totfaem  for  their  service,  has  been  time 

^  .  vf*^  °>"^*  "^  ^<^  '^^  ^n  4^  H-  ^>  ^or  that 
^    ""^^  withia  time  of  memory  in  a  legal 


^_11iO  aame  argument  is  usedl>y  a  learned 

^  ^^<aMfor  and  antiquary  Hr.  Lamhard,  in   his 

^^  iuBBiOa,  or  Commentary  upon  the  Courts  of 

^^^Jfaisticoyiol.  57,  and  439,  and  S45,  where  he 

ns  that  the  narKomeat  was  used  in  the 

time,  and  then  consisted  of  the  king, 

I  and  Commons,  as  in  the  time  of  king 

mnno  719.    Ho  does  affirm.  That  bur- 

BB  were  chosen  to  the  parliament  before 

I  Gonqneat,  tbl.  8S7,  S58, 965. 

I'a  Tenures,  sect.  164,  says.  That 

towns  called  burroup^hs,  be  the 

nt  towns  tint  are  in  England,  for 

lb*  toiHis  that  now  are  cities  or  counties,  in 

old  time  were  burroughs,  and  called  burronghs, 

.  §fif  lliat  of  such  old  towns  came  the  burgesses 

..-to  thoMliament. 

.fir  £.  C.in  his  Comment  upon  this  text  of 

1  Inst.  110,  says  it  is  called   Pariia- 

J  because  every  member  of  that  court 

Forkr  U  mtnt.    Many  pretenders  to 

§^,  take  upon  tbem  to  censure  sir  E.  C. 

I  and  some  other  like  etymologies,  as 

J  ridiculous. 

J«eC  me  do  right  to  that  learned  in  the  law, 

^..  aiii^  (which  is  mure)  lionest  and  worthy  chief 

a     iiMliee,  who  lives  in  his  useful  works,  and  in 

„   ilhni-0reat  blessing  from  God)  a  numerous  and 

-  «  Ikarishingi  posterity.     It  is  true,  tnentum  is  an 
n^^.wiioary  termination  of  divers  wonis  of  the 

-  V^iMOtor  gender,  and  so  it  is  (if  we  will  be  strict) 
k   via. tin  word  f^rliamenium.       But  give  ine 

.  lOMTA  to  say,  if  it  be  ridiculous,  lie  is  not  the 

eiMr  the  greatest  that  hath  lieen  guilty  in 
kind  ;  nor  is  it  any  proof  of  illiteratfuess, 
BiT  4o  be  charged  only  u|)on  the  urofu'ssiou  of 
tbe  common  law,  as  if  it  were  an  absurdity  pe- 
rils. For  the  antiquity  of  the  like  etvrao- 


]mj,  k  ia  of  above  » thousand  years  slaodiug ; 

you  XIII. 


and  for  the  authority  of  it,  it  is  tube  met  with 
in  the  imi»erial  laws  of  Jusiinian  the  Roman 
emperor,  and  the  laft  of  the  iioman  «*uipt:i-on. 
Even  in  the  very  text  <it'  the  civil  law,  it 
makes  the  etymology  of  Testaaicnlom  ^  *  Ex 
*•  eo  npiiellatur*  says  the  text,  *  quod  testatiii 

*  mentis  est.*    *  Alliisione  quadam  etymolo^ 

*  g-ica  ostendit  rri  ct  vocis  coitvenicintiam,'  says 
Vinius  in  liis  comment  fol.  970.  ^  Nomen  ab 
'  offick>  convenienter  habet.*  And  Yiiiius  says 
further,    *  Dstque  hi\juMnodi  alliisiva  dmvandi 

*  ratio,  omnibus  auctoribna  ad  mod  u  in  faniiliarifl. 

*  In  jocis  Venustas  delcctat;    qualis  est  ilia 

*  Ciceronis,  Fiiles,  quia  fiat  quod  dictum  est.' 

And  sir  E.  C,  it  may  be.  was  prompted  to 
this  etymon  from  that  ancient  author,  the 
Mirrour  of  Just,  who,  in  the  place  I  before 
cited,  c.  1,  sect.  3,  though  he  did  not  expressly 
mention  the  word  parliament,  yet  speaking  of 
it  under  anothdlr  name,  he  tells  us  what  their 
property  is,  viz.  ^  A  parler  la  menL' 

Thus  much  by  way  of  digression,  for  the 
vindication  of  that  houour  of  our  profssaiou, 
sir  £.  C.  to  whom  not  only  his  own,  but  all 
posterity  are  highly  obliged,  esiiecially  our 
profession. 

The  Register  of  Writs,  fol.  fi61.  '  duoil  ho- 
*■  miues  de  antiqno  Dominico  non  coutribuatit 
'  expensis  Militum  ad  Parliamentum  veoientl- 

*  urn.*    This  is  the  title  of  the  writ. 

The  writ  itself  runs  thus,  viz. :  *■  Monstrare- 

*  runt  Nobis*  says  the  king  *  Homines  et  Te- 

*  nentes  de  Manerio  de  8.  quod  t^nim  de  anti- 

*  quo   Dominico  Ctironv  Aiigiiie,  iit  dicitur, 

*  quod  licet  ipsi  et  enruin  Anteccssoi-esTenentes 

*  de  eodein  Manerio  u  tempore  quo  non  extat 

*  memoria,  semiier  hactenus  quieti  esse  con- 
'  suevenint  de  expensis  i^lilituni  ad   Tarlia^ 

*  meota  Nostra,  vcl  Frogenitorum  Nostrornm 
'  Kegum  Anglite,  pro  Couimunitate  dicti  Comi- 
'  tatus,  venieutium,  5cc.' 

M.  11  H.  4,  Fitzh.  avowry,  Placito,.  52, 
(which  is  said  ti»  be  the  first  case  in  our  Year 
Books,  concerning  wages  to  knights  of  the 
shire)  in  a  replevin  the  detcndunt  avows  as 
undersheritT,  by  virtue  o^  k  Jieri  facias^  to  levy 
the  wages  ot  the  knights  of  the  shire ;  and  he 
took  his  di^tresH  in  a  town  called  Wotton.  Tre- 
main,  for  the  i»laintiif,  pleads  in  bar  to  the 
avowry,  that  \V.  temps  d'ont.  ^c.  never  paid 
to  the  wages  of  the  knights  of  the  shire ;  and 
so  issue  is  joined  upon  that  prcsi-i  iptiun. 

M.  14  *U.  8,  fol.  3,  iu  ihe  Year  Book,  by 
Fineux  Ch.  J.  The  parliament,  says  he,  con- 
sists of  tlie  king,  tlie  lords  and  the  Commons, 
and  they  are  by  the  common  law  one  body 
corporate.  Now,  that  they  caiuiot  be  at  the 
common  law,  but  by  prescription. 

I  shall  now  proceed  to  prove  it  by  several 
records  of  parliament,  that  the  Comitions  have 
evrrbecu  a  part  of  the  parliament,  ascunstitiifod 
at  lliis  day,  «f  knijrhtK,  citizens  and  bnr^e^se*. 
■  Ex  Ubtulo^  l*nrtianienli,  anno  51  E.  ii^ 
Alembr.  5,  num.  4  J.  Mr.  Pryu's  4ili  |»arl  of  a 
R^'ffister  of  Parliamentary  Uril**,  Ibl.  yi;>,  in 
sir  Itob.  Cotl.  Ahr.  it  is  ti>o  shuit ;  bat  at  large 
in  Mr.  Pryn,  u  before  cited. 

4U 


7  WILLIAM  UL      Proceedingi  agaimt  Sir  /Km,  miUamt,     [ISK 


15952 

ThtTP  ts  )i  Petition  of  the  Commona  to  the 

kiEKf  in  Frpoeii. 

It PTii^  For  tliat  of  Cotnmon  Rigbl  (w^liich  is 
the  «ame  wkli  the  Common  Law,  in  the  lao- 
giiage  of  tire  acts  of  imrlmmeiat)  of  the  realm. 
Of  every  (^Cluut^  of  EngkiKl  there  were  and  are 
eho«en  two  persom  to  be  at  the  parhamcnl,  for 
the  commi»f)9  of  the  counties,  b«««tlf  s  ihe  pre- 
lates, (tul&es^  earls  aod  barons,  and  &Lich  as  hold 
hy  barony  i  and  besides  cities  and  burroughs, 
who  oug^ht  to  chuse  of  themselTes  such  a* 
are  to  Answer  for  ibom^  And  such  as  are 
choar'H  tor  the  counties  oujrbt  to  have  their 
aecustomed  wag-ts,  and  to  have  writa  to  the 
iheriiftf  to  levy  them. 

They  ^>ra  y  that  it  Ite  ordained  I  his  ftreseni 
parliameot,  thai  the  n  ages  be  kvied  of  sit  lUe 
corattioiis  of  the  t^ountles,  ajs  welt  within  fran- 
ohist^s  as  uitboui^  excepting  wiihin  cities  and 
burouf^hf,  aoti  excepiing-  of  ibo^e  that  are  sum- 
mooed  Uy  writ  (uieaniog  the  barons)  and  their 
lennnts^ 

Rfsj^.  Soit  fait  come  derant  ad  este  use  ea 
eest  Vnse- 

This  was  in  the  tinae  of  E.  3«  who  was  but 
the  fourth  king  in  succcst^ion  from  that  H.  3, 
10  whoee  reign  oar  new  authors  would  have 
our  knights,  cidzens  and  burjf  esses  to  hate  their 
originaL 

And  the  king's  Answer  to  the  Petition  of  the 
Commons  admits  the  dt alter  of  the  Petition  to 
be  true,  and  refers  to  uatage  in  former  times. 

Ja  the  same  fourth  part  of  Mr.  Pryu^a  re^»- 
ter,  foL  64a,  5  H.  4,  rot  par),  num.  ft,  and  7B. 
On  the  be  hah'  of  Rich.  CUedder,  e^q.  menial 
■ertant  to  Tho,  Brook,  knight  for  iSouai'Tstd* 
shire»  The  Commons  petitioned,  That  whereas, 
*  After  the  custom  of  the  realm,  all  the  lords, 
knights,  citizens  end  burgesses,  with  their 
terranls  coming  to  pnrHament,  by  the  king^s 
writ^  in  coming,  going  and  returning,  are 
under  your  royal  protection,*  Slc*  And  this 
Petition  was  answered  by  the  act  in  print. 

We  may  note  from  hence,  that  tlieir  privi- 
Jege,  and  therefore  much  more  their  being  a 
part  of  the  high  court  of  parliameat,  it  wa$  by 
cuatom  of  the  realm. 

I  would  note  Curther  (since  1  shall  hare  oc- 
casion to  use  it  for  another  very  material  point) 
tiiBt  this  custom  (though  the  then  pretsfut  oc^ 
caiiou  for  the  mention  of  jt,  was  frorn  ike 
aertanl  of  a  member  of  the  Commons  House ;) 
y*t  it  is  sliedged  ait  one  entire  custoni  for  the 
whole  parUanicnt,  vis;,  all  the  lords,  knights, 
eiti^ena  and  burgesses.  They  are  all  but  one 
body,  one  court ;  nnd  iheir  rights  and  privileges 
are  entire,  and  nut  some  for  I  he  Lords,  and 
other  tor  tht^  Commons ;  but  it  is  a  joint  prtvi- 
k-dge. 

From  lienee  it  follows,  you  esnnot  invade 
the  priviUge  of  the  one  H<jusej  but  yoti  tnrade 
boib 

Eltiiig,  io  I'm  Treatise  of  PaHiametits,  lot. 
115.  It  is  also  in  air  Rob.  CdU.  Abr.  foL  453, 
tiut  uot  so  full, 

to  ibe  time  of  the  satilc  klDgi  5  H»  4^  niim, 
74. 


The  Oimmony  pr^y,  That  whifvas  aeeiti- 
iu^  to  the  cik^tom  of  the  realm  ^  the  \m^ 
knights,  citizens  and  ^urg«'»es,  cemiBf  la  ^* 
ti anient,  ought  not  for  anj  tklifltri  £e.  t«  Is 
arrested, 

it  ill  said  to  be  the  cuttom  of  tht  wlwfc 
realm  (that  is,  the  same  with  tiie  common  law) 
and  it  is  made  to  be  one  entire  (rustoma,  bih 
for  the  Lords  and  CommoniE ;  ^id  lys  is  im 
freedom  of  debater,  and  iml  tha 
last  that  I  cited,  thotigh  in  the  s 

39  H.  6trot,  par*,  num.  9,  on  ih#' titlndf  of 
Wr,  Clerk,  burg,  of  Chippertbam  in  Wiltiliifc. 

And  ir  E»  4,  rot.  pad.  num.  SO*  oq  lk4ti> 
half  of  J.  at  WdL  cit,  lor  Exeter.     • 

In  both  these  cases  (tbougti  apofi 
of  two  prtieular   members)  yet   the  wltb 
House  of  Commons  petitioned. 

And  the  petition  on  the  bettalf  of  Wr,  Clid(, 
runs  thus ;  *  That,  whereaf  time  tjiat  «i»^ 
mind  is  not  to  the  cot)lrary,  it  hath  bei 
&c,  and  then  sets  forth  their  pri^lege. 

The  petition  of  the  Comniont  on  lite  bektf 
of  J.  at  Will*  h  in  these  words,  ¥i«,  •  Tbefif*- 
dom  of  which  Commons  bath  erer  aftM^  1km 
time  been,  and  oweth  to  b«,  that  the  kaigtotf 
the  shire,  citizens  of  the  cities^  and  baroii^  oftk 
ciui|ne  ports,  called  to  any  of  tbe  part»«tSM^ 
of  your  noble  progenitors  (afnoiig  i  ' 
ti^  and  fraucbise^s)  bave  had  aSd 
lege,  that  any  of  them  eboold  not  ha 
by  their  persona  or  gocHls  in  their 
any  such  parltameott  their  abiiltng,  not 
ing  to  their  pmjjer  homes,'  &c. 

Their  freedom  hail  *  ever*  b<^n  ;  theti  it  M 
not  begin  firsts  nor  had  ifaey  themaelfei  thor 
beginning  in  49  H.  3. 

And  *►  owcth  to  be  :*  theti  it  wa«  not  of  n»«t 
grace^  9iixd  by  permission,  bctt  of  right  itou^i 
8o  to  be. 

And  two  acts  of  parliament  passed  upoDtb«t 
two  petitions,  which  confirm  the  tmtb  of  tbow 
suggestions. 

And  another  thing  I  would  obserre,  wbi£l 
do^  naturally  and  easily  flow  from  these  re- 
cords, and  Ls  very  useful  to  us,  tlz.  That  Ik 
Commons  petitioning  to  have  thesse  friL^doBa 
allowed  them,  does  nothing  derogate  from  tbcir 
right  to  those  hbertics  and  francuises,  norbia 
argument  to  prove  them  to  be  mere  ematatHMi 
of  myal  favour^  for  the  humble  way  ofal* 
dress,  by  the  Communs  to  the  kiu^  to  have 
their  rigrits  maintained,  i«  made  o^  of  by  &m 
noveUsts,  to  prove  they  were  granted  fta© 
time  ly  time,  merely  by  the  k.in^'s  gi^oe, 

I  am  far  from  condenmiug  this  bumble  ^nj 
of  subjects  addre^ing  to  their  foiereiga:  il 
becomes  the  duty  of  subjc^cts,  and  is  doe  ia  tlv 
majesty  of  a  kmg,  to  have  all  decent  rerereaes 
shewn  ;  bnt  1  w  ould  not  have  ill  u^  uiada  if  * 
their  humility,  to  deprive  Ih em  uf  ibeir  nglli. 
It  was  (as  1  take  it)  the  observation  of  C-cMP^ 
in  his  commentary f  of  the  tem|ier  al  the  sli' 
fjritatus^ '  Jam  duniiti  ut  parcatit,  ooo  tn  a^' 
viant.^ 

la  thut  faitious  case  of  Thomas  Th^pt  ^ 
%eakGr  of  the  Coiumon^j  Zl  U«ti.  <^,  uunt*^ 


J 


1397]  fwrpubHtUng  Dangerfiel^t  Narrative.  A.  D.  1695. 


[1398 


there  are  the  Very  words  of  the  Petition,  at 
Jarge  set  forth,  in  the  fourth  rejg^.  of  Mr.  Pryn, 
Ibl.  644.  Thorp  was  taken  in  execution,  at 
the  suit  of  the  dulce  of  York.  The  whole  House 
of  Cammons  petitioned  to  have  their  Speaker 
restored  to  theoi :  and  their  petition  is  in  these 
wwds :  '  By  oommon  custom,  time  out  of  me- 
mory of  man,  and  ever  afore  these  times  used, 
in  every  of  the  parliaments  of  the  kind's  .noble 
progemtors,'  &c.  And  so  it  proceeds  to  de- 
clare the  privilege  of  the  Commons. 

I  would  observe  also,'  out  of  these  three  last 
■ooords  of  parliament;  that  when  any  breach 
of  privilege  befel  but  a  single  member  of  that 
House,  as-that  of  Walter  Cierk,  and  J.  at  Will. 
the  whole  House  thought  itself  concerned, 
and  the  whole  House  petitioned  ;  especially  in 
this  last  case  of  Thomas  Thorp,  their  Speaker, 
to  whom  the  dl  of  York  was  no  friend.  This 
will  be  useful  to  my  second  point. 

Hitherto  I  have  presented  you  with  records 
of  parliament,  as  being  the  most  proper  proof 
of  the  riffhts  of  parliament,  much  beyond  the 
reports  of  our  historians,  from  whom  our  inno- 
▼ators  fietch  most  of  their  arguments.  I  shall 
now  ofleryoa  some  records  out  of  an  inferior 
court,  one  of  the  four  courts  of  Wcstminster- 
hnll,  that  is,  out  of  the  Exchequer:  but  they 
■re  judicial  records,  adjudged  oy  the  whole 
eourt,  by  advice,  with  ail  the  judges  of  both 
benches,  to  confirm  the  same  point. 

M.  IS  £.  4,  and  H.  13  £.  4,  in  the  office  of 
the  pleas  in  the  Exchequer,  mentioned  by  Mr. 
Pkyn,  in  his  fourth  part  of  his  Register  of  Par* 


i  Writs,  fol.  752. 

Id  a  plea  of  debt  by  Donne  against  Walsh 
Wabh  was  menial  servant  to  Henry  earl  of 
Vmrf,  and  he  sued  out  his  writ  of  privilege, 
nnd  the  writ  under  the  great  seal,  was  of  this 
tenure :  viz.  *  Cum  secundum  consuetudineni 
in  regno  hactenus  obtentam  et  approbatam, 
Ilemini  Magnates  Milites  Comitatuum  ac  Gives 
et  Burgenses  Civitatum  et  Burgorum,  ad  Par- 
Uementa  nostra  venientes,  ac  eorum  Familiares 
rattone  alicujus  Traosgressionis'  (and  so  pro- 
needs  to  enumerate  other  sorts  of  actions)  <  dum 
lie  in  pariiamentis  nostris  morentur,  arrestari 
lot  implacitari  minime  debeaut,'  &c. 

And  then  the  writ  mentions  that  action  of 
lebt,  brought  against  Walsh,  menial  servant  to 
the  earl  of  Essex,  in  that  present  pariiament, 
>  VoIns  mandamus'  (says  the  king  by  that  writ 
of  priviic^  to  the  barons  of  the  Exchequer,) 
;  «.iA«i  m{  iin  ggt,»    Those  words  do  not  refer  to 


the  custom  set  Ibrth,  nor  to  the  law  u|ion  it, 
bat  to  the  allegatioB  in  the  writ  of  matter  of 
het ;  vis.  That  Walsh  the  defendant  was  me- 
niel  servant  to  the  earl  of  Essex. 
And  then  the  defendant  does  by  way  of  plea, 

Eounded  upon  that  writ,  apply  the  writ  to 
mself;  and  avers,  that  he  is  the  same  person 
mentioned  in  the  writ ;  and  avers,  th;it  he  was 
the  menial  servant  to  the  earl  of  Essex,  and 
dien  demands  alk>wance  of  his  privilege. 

The  plaintiff  in  that  suit  traverses  the  custom 
nd  privilege  alledged  in  the  writ  (as  to  the 
\  m^mM)  bat  admits  it  as  to  the  free- 


dom from  arrest.  This  traverse  is  in  the  na- 
ture of  a  demurrer;  for  it  is  <  Quxstio  Juris, 
ad  qnam  respondent  dudices  non  Juratores.' 

*  Et  super  hoc  viso  et  prslecto  brevi  pne- 
dicto,  per  Barones,  &c.  Habitoque  avisamento 
Justiciariorum  Domini  Ilegis,  deutro<|oe  Ban- 
co in  hac  parte.  Quia  videtur  prcefatis  Bare- 
nibus  de  avisamento  Justiciariorum  pnedicte- 
rum,  quod  talis  habetur  et  habebatur  consuetude, 
quod  Magnates  et  Milites  Comitatuum,  ac 
Gives  et  Bursrenses  Civitatum  et  Burgorum  ad 
Parliamentum  de  Sumonitione  Itegis  venientes, 
ac  eorum  Familiares  Ratione  alicujus  Trans- 
gressionis,  dec.  dum  sic  in  Parliamento  moren- 
tur, capi  aut  arrestari  non  debent.'  (But  then 
they  adjudge  that  the  privilege  does  hold  only 
against  arr(*sting  their  |)ersons,  but  not  against 
the  suing  them.) 

This  strongly  proves  the  point  I  have  in 
hand,  That  the  House  of  Commons  have 
their  privileges  by  custom,  and  therefore  the 
House  itself  could  not  have  its  original  within 
time  of  memory,  as  49  H.  3  is,  in  a  legal  un- 
dei-standing. 

It  is  very  useful  further  to  observe.  That  the 
single  and  sole  occasion  of  *his  record  was 
from  the  privilege  of  the  peers,  from  the  suing 
a  menial  servant  of  a  peer.  No  man  denies 
but  the  peers  have  ever  been  a  part  of  the  par- 
liament :  nay,  our  new  modellers  of  the  go- 
vernment would  have  the  parliament  to  consist 
only  of  the  king  and  lords. 

And  yet  it  is  said  to  be  a  Joint  Custom  for  the 
Commons,  as  well  as  for  the  Lords,  by  express 
and  particular  words.  Why  did  they  not  lay 
the  custom  for  the  privilege  of  the  Lords  only, 
that  might  have  served  for  that  present  occa- 
sion, wliich  was  about  the  privilege  for  a 
menial  servant  of  the  then  earl  of  Essex  ? 

But  the  custom  was  an  entire  custom  for 
both  Houses :  this  proves  them  to  be  cooeta- 
neous,  and  twins  by  hhth  and  original. 

All  this  is  by  the  judgment  of  all  the  twelve 
judges,  in  a  judicial  proceeding :  and  it  takes 
in  the  opinion  of  the  chancellor,  who  issued 
out  that  writ. 

The  other  record  of  the  same  court  is  en- 
tered H.  19  E.  4,  rot.  7,  i  inter  Ityner  et  Cou- 
sin, keeper  of  the  wardrobe  to  the  king,  in  an 
action  of  debt  too ;  and  there  the  defendanc 
claims  his  privilege,  not  as  servant  to  the  king, 
but  as  servant  to  Thomas  St.  Legcr,  knight  of 
the  shire  for  Surrey. 

And  the  writ  of  privilege  sets  forth  the  same 
entire  custom,  both  for  Lonis  and  Commons 
(though  the  occasion  was  here  from  the  Com- 
mons only)  and  the  couit  of  Exchequer  gives 
the  like  judgment,  as  in  the  former  case,  by  ad- 
vice too,  of  all  the  judges  of  botli  benches. 

The  next  record  I  sluiU  make  use  of,  shall  be 
that  of  £.  2,  which  is  n  most  invincible  proof 
that  the  knights,  citizens  aiitl  burgesses  have 
originally  >  and  before  49  U.  3,  constituted  the 
House  of  Commons,  and  have  ever  been  a  part 
of  the  parliament. 

The  burgesses  of  St.  Albans,  in  their  petition 
to  the  kiDg>  aayi  That  they  *  siciit  cceteri  Buir- 


1399] 


7  WILLIAM  IIL       Fr&c^€di$ig^  agninsi  Sir  IVm,  WWi^ms,      [IWO 


St  tiACB  RegtQi  m\  Par Ji  anient  uro  Uegii,  per 
itos  Cowibivr^tii*^  nms  venire  dv-UemU  prout 
nirOHBetiJi  tempcyribiji  Teoiro  coosueferaol, 
tMin  Dpnatw^re  Domini  Eilwanli,  ntiper  Regis 
JU^iw,  Fwim  tU^h'  (which  uiuil  b«  E.   1,) 

*  tt  prti^'Xiiltiiuin  (iMonim*  (wKich  mint  he  ud- 
4e!r«tiK^d  ofibe  (ir^tg^-oitars  m  xhe  plural  Dumber 
itif  R*  1»  fVir  he  tnetuicms  t!ie  then  kin g-  E.  % 
afU-fwjirtli)  s/o  that  of  nece»aiiy  it  must  tak<?  im 
kiui;  lUn,  3,  and  his  falfaer  king  Joha,  at  the 

Aod  ihi%  (!flm[>utalion  much  exe^fHlii  *he  dati* 
gu't^n  to  tb«  UtniN;  otXomiutiaa  by  these  new 
iUAhnrtt,  rise.  ^9  H.  3. 

Aa4  then  the  Petition  deseetid^  to  the  men- 
tion ol  llii^  liien  king- St  imtf  yi^.  E.  ^.  ^  tem- 

*  Murv  l>atni[)i  Rtrgifi  (}ui  nunc  eili  sent  per  ante 
•^  buit^iiM  iiarlknientUEii/  Ami  the  PetJiiuti  com- 
pkjtw  vf  thti  a  hen  If  of  Hertfordshire,  who  by 
thc>  ahbut'fi  prm  tiriiig,  refusefl  to  iitiowiou  ihat 

Tb«  mmm€^  by  the  counsel  is,  ^  Hcruteotur 

*  B/Mik^sC'  ^^  Caocethiria,  ai  tewporihun  i»ro- 

*  fimitofum  reg;t»  hargeuse«  pncdiuti  aol^liatit 

Thiif  nniwer  adnnU  the  general  naage  of  bur^ 
l^tliii  io  he  cbo»eD  tot^  divers  horougbK,  in  the 
lime*  of  the  kin^^'s  protrf^mtorH  j  for  it  k  absurd 
to  Uunk,  lb  at  that  neeiled  any  9i;are]i  of  the 
Rfilla  ill  ChaAC4;ryf  hut  ihe  search  was  to  be 
only  I  It  betht^r  that  partieulAi'  boruu^h  of  St. 
AilMuv  wm  one  of  those  ancient  borough!}  that 
liad  itacf}  that  jiri^ili^Q^e,  and  had  a  ri^ht  to  it, 
^hioh  wouhl  appear  By  the  Rolls,  and  returns 
of  ^^rits  of  $nuinion>j. 

Thi;  record  la v^  tbo  usai^e  for  Ihe  borough  lo 
have  lieeij  *  &i-(np4.  r,  ante  iustaiii^  p&i  liaiucutuii]  |' 
so  Ihat  Ihf*  uvage  haij  beru  fi  om  ever. 

lu  the  i^olls  of  Pmlmment  1 1  tL  4^  nnm,  5% 
cited  by  iMi'.  Prv  it,  in  his  Uievia  Parlia^iitetila- 
ria  UediviVEit  loL  kU5,  th^re  \s  n  PtsULioii  of  ihe 
Commons  in  French,  rediing  iti**  stttt,  of  7  H. 
4y  c.  \^^  which  iitiitutc  (as  the  Ptrtitton  i^y«) 
witg  matli^  ft>r  the  [rr^^eniii;^  the  fiun chides  and 
libt-rlics  of  ihn  eki'timi  of  kni^hls  uf  the  i»hire, 
Uit^  ttiroui^Uoul  the  whole  r«^a|iB,  ami  by  the 
kit);^'^  }»rogeiiitOL!i  IVuqi  purlin rn en t  lo  pitrJia* 

lilPIll^  tiiite  out  uf  flllDil  iJ^beiTCiJ. 

j  ^vill  iHiw  |i!il  tiiiM.ourt  in  inlod  of  faiimeacts 
of  jKirliLimeii*,  thitt  fiiJlv  prove  tJvi<j  point, 

riio  statute'  of  :>  U.  3,  |iarL  2^  c,  4.  (in  a 
lltTie    II hi£|]     p;\Lli:iuii'iits    v^erc   mit    sn    much 


toriim;  m  mt  Heor;  Sfidimtjaf  Bnk'i  teL 
Hist.  Ekor  fainoufi  l^ld«ii»  oor  kurfkeri  CAftik% 
nrhd  hy  general  words,  used  10 1^  Ipsub  Ism^ 
fb«  the  aivemhhng  of  pBrlJaoieiiUf  ibm^  Wk 
bjr  thai  oatne^  urofe  the  CottnMxw  l»  Ics  |hi 
of  ihe» ;  b«ii  tjiey  (h»  not  profte  iIm  Cmhomi 
lo  b«  io  elected,  an4  to  conmt  ftf  koiflila,  do- 
-i£tn)»,  and  burgrises,  a>s  i^  clearij  prura  b^  tki 
reciitds  I  have  iilreatlj  offereiL 

The  pari  in  meat  tti  tLie  Sajiiici  ltw*«  "is 
lifted,  *  CuftiKniiiie  coticllianif  taai  c)cri  ^ma 
'  popuh.^  And  the  Uvra  were  iiiHi«i  *  pr  caa* 
^  mo&e  ooQcilium^  el  atsensDna  onmnimt^ 

*  copor^  el  priudpum  proc^mm   cmamm,  d 

*  omttium  aapirntuni  aemor'  ct  popukir^  \aam 
^  f«!gni  «t  pfipuli  {^mTentua.*  Ki»f  E4«9ti 
the  Coofesftor  coufirixia]  tbe  Saspsd  Ie»i,  iai 
made  oe^^  says  LAmberl  10  hts  book  OcftWi 
Atij^lor.  LegibuK,  c.  By  fol.  139,  oa4  llMiiiia 
said,  aU  to  he  done  *  k  rege,  JsoraaHHM  oi  fspf^ 
'  lo.'  Thase  ^enenil  words  csMlttOl  Iv  Mr* 
stood  otherwise,  tljaii  to  icujftil«  th« 

And  ao  « tf?!ius  fegiii  asaensnota 

*  pulatione  «t  ^wHciu,'  os^  ttlr.  SaUti^  i 
judgment  wa?i  i^iren  ccMicemiiig  Lunfraaki  a^ 
biahop  of  Caoierbury .  The  ^tolule  vi  MjfM 
CharU  ^sji maile  tmd  confirofed  $}  H,  :i,  wiiii 
was  tbriy  jirsLV%  bdone  this  new  lUtr  0^  Ikn  «k 
ginal  of  tlie  House  of  Commviis,  v  tz.  49 ILI^ 
And  rl  ap{M>iir«  by  sieT«r«l  sistiatss^  that 
Ctiarta  was  made  »  D©' 
fMiya  ttnc  ti^atiite:  '  Per 
^  fe  realij^*  ^y«  auAlher*    '  Per  le  lCiiy« 

*  et  ConimuiiLJi  de  le  ierr«,^  9Ay»  ftiiother 

h  is  worth  the  uhik  to  exauune  the 
of  their  upituon,  and  it  will  appe&r  host  wcil 
they  are. 

These  new  authors  dfiirin,  that  the  Hotfi 
of  Cotntnons  began  to  be  admit  ted  ss  a  part  of 
the  parhanient,  not  till  49  H.  3.  Their  tmm. 
\%,  beean&e  (use  Mr.  Pryn  say;*,  in  hia  Pies  ki 
the  Lords  foL  ]BSi  and  in  hiK  pretaee  to  fir  Ma* 
bert  CoLt.  Abr.)  the  first  writ  of  summoM  d 
any  ktiigbt<i,  citixeOK,  atid  hnrgeises  now  e<" 
tani  is  no  ancienler  than  49  H.  5,  dorvo  10  ud 
11.  And  frciin  thence  he  <!Ondud«^  thatilii 
I  note  t  nppment,  that  the  Comtnons  had  oio  ^me^ 
nor  voui  by  election  in  partiamrnt,  li^fivrf  lit 
end  of  Ihe  reifrn  of  U.  3p  and  su"  R^jherl  FiIokt 
is  in  hkt?  HID  oner  poiitire  in  it  m  hk  bouk^  c^l«^ 
The  Fi^ee holders  Gr^nd  Inqiiesti  lot.  IS,  n»ii 
:  they  both  cite  ^tr.  Heldeti  ajid  CanMkn  tail 


vitlucil)  *  it  i^  tiitTi'by  rmiicted^  hy  Rj^srcvt  of  the     other  beamed  atithors,  and  Mr,   Diigdale  is  b« 


Pnlnin;*  I^onlN^  uji.l  CNuiipmoiis,  iLuit  all  per- 

*  sons  and  comtn^riulUt^;  x^hlch  Uiniihl  h;tvi^  a 

*  PiUiniHnim  to  parUntuPol,  should  coiiie  fr*mi 

*  ihnict'li^rth  to  parliiirueriN  in  the  iiumiierii^ 
^  I  bey  iveiv  lK)uiidtit  lii  dt>,  ainl  h^iA  hetu  ac- 
^  rnstojUi'd  of  nbl  tini*'j» ;  ovhtrwi^i*'  thfy  ^htjuhl 

*  \w  iiuiiTf'CHl  as  ttf  old  limes  Lad  been  uccu^i- 

*  Imned/ 

(hit.  1*51 1 1  7  If .  i,  \YM'^  J.  num.  jn,  Thi^  ie 
hll  I  Hit  id  m  HjsIi*  Coll.  A  III".  TIml  oci  dct^larts, 
thhjt  till!  ('otuiiioht-  hiul  (Vir  liL-Aii  a  nien^Wmt 

J>e  HVA'lv  without  their  u^j»eiit-  I  uill  not  impend 
timi;  iiA  t^ilaig  iho&e  l^aiued  anU(jaariea^  or  liis* 


Origines  Juridicialea,  fol.  18^  lollowa  the 
it.  It  is  true  i^!r.  S^^blen  in  bia  Titks  of  Ho- 
nour, iiil  717,  lowarda  the  end  of  thst  h\.  de^ 
Like  notice  that  the  lirst  roll  that  tliey  fiil 
extant  \%  that  of  49  U.  3,  lor  ibesumnroaiagil 
the  Com  moo?*  by  *sy  of  election  \  but  he  ijoa 
not  llienee  conclude^  (as  thc*«e  new  duLb{ir»i^} 
that  Ibis  WAS  the  tirat  dttre  that  the  ComiooBa 
cu^nic  tn  the  parhament  by  eteetioo. 

liut  in  other  |dacei  nt  his  U-arned  bosk|  bi 
dncii  silriinifi  j  iiitintaie  hii  opinion  to  be  tbtttiii 
CaiLuni)im  did  vpry  jincimily  and  long  bt-fe** 
40  W.^t  ntuke  att  oiiseritial  part  ol^  th<^  psritf- 
tn^ni^  and  wvie  KuaifDiiiied  lail|  butui  vi^ 


I]  Jirr  puhUthittg  jbangerfieliPt  Narraiive.  A.  D.  169iS>' 


[1408 


they  were  siiiDfiiooed,  and  when  they  fint 
i  to  be  dMtiniiraithed  from  the  Barooes 
iffee^  Sekksn  himself  aeems  much  unre- 
d. 

sriicd  Camden  doei  indeed  date  the  ori^- 
if  the  Commons  as  a  part  of  the  |>arlia- 
t,  and  as  now  elected,  from  49  H.  3,  fbl. 
f  his  Britannia,  in  the  edit,  at  Lond.  An. 
*.  But  let  us  take  notice  open  what  an- 
ty  he  does  it.  He  says  he  has  it  *  ex  satis 
iqno  seriptore,'  but  he  names  not  his  au- 

r.  Sdden  fol.  ^13,  says,  he  could  never 
with  that  author,  and  professes  he  gives 
credit  to  that  relation,  out  acknowl^ges 
had  been  a  great  change  in  the  constitu- 
>f  the  parliament,  but  supposes  it  lon^  be- 
19  H.  3,  viz.  in  the  time  of  that  king's 
r  (king  John)  and  that  it  was  done  by  a 
though  the  law  be  lost,  as  many  rolls  of 
laient  were,  wherein  those  laws  were 
ed. 

d  the  dis^netion  of  '  Barones  Majores  et 
rea'  he  supposes  was  made  by  act  of  par- 
mt,  about  the  time  when  the  great  cluirter 
i|^  Juhn  was  made  at  Runny  mead,  viz.  17 
DBis.  By  which  Charter^  some  of  the 
nes  Majores  were  severally  to  be  sum- 
id  to  parliament  by  special  writs.    And  all 

toumtsifi  €apUe,  or  tenants  by  knights 
ye  were  to  be  summoned  by  a  general  sum- 
I  directed  to  the  sheriff  of  every  county, 
r  this  conjecture,  it  should  seem  that  the 
:  of  parliament  before  consisted  but  of  one 
e  or  assembly.  And  it  is  g[enerally  held, 
at  the  first,  from  the  beginning  of  the 
I  of  William  the  first,  till  that  charter  of 

John,  all  tenants  in  capite  had  a  right  to 
1  pariiament.     For  says  Mr.  Selden  fol. 

medio  foKi.  Tenere  de  rege  in  capite, 
to  bo  a  baron,  and  to  have  a  right  to  sit  in 
■eb  or  courts  of  judgment,  are  synoni- 
That  great  charter  of  king  John,  rays 
m,  was  made  by  the  king  and  his  barons, 
litieros  homines  totius  regrni,'  and  that  it 
m  1km,  made  the  distinction. 
It  Mr.  Selden  does  by  no  means  leave  it 
.  3,  or  his  son  E.  1,  or  to  any  other  king 
ly  time,  to  send  his  special  writ  of  sum- 
i  to  such  of  the  barons  only,  *  quibos  ipse 

dignatus  est  brevia  sumfiioniiionis  diri- 
e;'  as  Mr.  Camden's  nameless  author 
ht  him,  and  from  Mr.  Camden,  Mr.  Pryn, 
tobert  Pilmer,  and  Mr.  Dugdale  take  it 
md  so  propagate  that  error.  8o  that  this 
fkocy  ts  wholly  groundetl  upon  the  credit 
bat  onrertain  writer,  whom  Mr.  Selden 
J  never  meet  with,  and  to  whom  he  ^ve 
redit.  The  argument  upon  this  subject, 
OS  fol.  701,  in  Mr.  Seldcn's  Tit.  of  Honour, 
is  continued  to  fol.  718.  Mow  the  argu- 
t  taken  from  the  rolls  of  summons,  which 
lot  extant  before  the  time  of  49  U .  3,  is  of 
reiglit.  For  by  the  same  arpfumeiit  it 
It  w  proved,  that  there  was  no  jmriiament 
I  the  time  of  49  H.  3,  till  S3  K.  1,  lor  there 
» roil  nor  no  other  testimony  left  of  a  sum- 


mens  for  any  knigfals,  dtizaiis  and  burgesses, 
from  49  H.  3,tiUS3£.  1.  And  yet  we  know 
there  were  no  less  than  fourteen  parliaments 
between  those  times. 

They  may  as  well  argue,  that  there  were  no 
acts  of  parfiament,  nor  no  parliament  till  9  H. 
3,  when  Magna  Charta  was  made,  because 
there  are  no  rolls  of  them  till  that  time^ 
Whereas  it  is  beyond  all  dispute,  that  there 
were  parliaments  and  acts  of  parliament  long 
before,  as  4  Will.  1,  when  the  bishops  were 
brought  in  to  hold  by  barony!  (as  Mr.  Selden 
conceives)  and  some  in  H.  1,  and  others  yet 
extant  in  history,  yet  the  rolls  of  them  are  lost. 
This  is  obser?e<l  by  the  lord  chief  justice 
Vaughan,  in  his  Rep.  fol.  368,  in  the  case  of 
Thomas  and  Sorrel. 

In  the  next  place,  these  late  authors  proceed 
further  in  their  error,  and  maintain  that  the 
Commons  had  no  further  power  in  pariiament, 
than  what  the  king  and  the  Lords  admitted 
them  unto. 

And  sir  Robert  Filmer,  fol.  40,  allows  nei- 
ther Lords  nor  Commons  any  power  but  by 
the  king's  Imre  permission,  and  thus  they  are 
growing  in  their  invasions  against  the  court  of 
parhament,  and  impeach  one  first,  and  the  other 
will  follow  more  easily. 

And  sir  Robert  Filmer  farther  holds,  the  le- 
ipslatire  power  rests  solely  in  the  king,  and 
tol.  39,  he  hath  these  words, « But  the  truUi  b/ 
saith  he,  *  the  liberties  and  privileges  of  both 

*  Houses,  hare  but  one  and  the  self- same  found- 
'  ation,  which  is  nothing  else  but  the  mere  and 

*  sole  grace  of  kings.' 

And  doctor  Heylin,  in  his  Life  of  archbishop 
Laud,  fol.  91,  denies  the  privileges  of  parlia- 
ment to  be  the  peoples'  birth-right,  but  liokltf 
them  not  otherwise  exercised,  than  by  the  grace 
and  goodness  of  the  king. 

Mr.  Pryn,  sir  Robert' Filmer,  and  Mr.  Dug- 
dale,  lay  great  stress  upon  the  diversity  that  is 
in  the  writs  of  summons,  between  the  summona 
for  the  Lords,  and  the  summons  for  the  Com- 
mons. 

That  to  the  I^rds,  say  they,  is,  '  super  ne- 
'  ^tiis  pradictis  tractaturi  vestrumqiie  consi- 

<  hum  impensiiri.'  But  that  to  the  Commons, 
is,  say  they,  only  *  ad  fiiciendum  et  consenti- 
'  endiiin  his  qiite  tunc  ibidem  de  communi  con- 
'  silio  dicti  regni  contigerint  ordioari.' 

It  is  true,  that  for  many  years  of  late,  that 
distinction  hath  been  so  used  in  the  summons, 
but  not  constantly  so. 

As  to  this  point,  I  will  cite  Mr.  Dugdale's, 
and  Mr.  Pryu*s  own  books  against  their  own 
opinion. 

The  very  first  writ  of  summons,  which  as 
they  say  is  now  extant,  for  the  summoning  of 
the  Commons  by  election,  viz.  49  H.  3,  runs 
in  these  words,  *•  NobiM:um  ac  cum  prwdictis 

*  prsHatiti  et  magnatibus  nostris  super  pramissis 

*  tractaturi  atque  consilium  impensuri.'  Dugd. 
Orig.  Jur.  p.  18. 

The  writ,  *  l>e  expeusis  Militum  qui  vene- 

<  runt  ad  Pailiamentum  venieuiibus,'  says  that 
writ,  *  usque  ad  Weatmonasterium  ibidem  de 


1403] 


7  WILLIAM  III. 


*  diversis  negociis  nobigcum  tracUturis.'  See 
Mr.  Pryn's  4th  part  of  a  Register  of  Parlia- 
roent  Writs,  fol.  8. 

In  Mr.  Ryley*s  Piacita  Parliamentaria,  it 
appears,  that  as  the  summons  to  the  temporal 
Lords,  fol.  318,  wqs  '  ad  tractandaro,*  and  so 
likewise  the  sammoos  to  the  prelates,  fol.  319, 
so  also,  fol.  330,  it  is  entered  in  these  words, 

*  Mandatum  fuit  singulis  Vice-oomitibus  per 

*  Angliam  quod  de  quolibet  comitatu  duos  mi- 
'  lites,  et  de  qualibet  civitate  duos  cives,  et  de 

*  quolibet  burgo  duos  Burgenses  eligi  et  ad  dic- 

*  turn  Parliamentum  venire  facerent  ad  tract- 

*  andnm,'  &c. 

In  the  same  book,  fol.  570,  an.  15  E.  9^  there 
is  mention  of  a  writ  of  summons,  for  knights 
out  of  Wales,  to  a  parliament  at  York,  *  ad 

*  tractandum  et  consilium  imneuUendum.' 

In  Mr.  Pryn's  Ure?ia  Parliamentaria  Redi- 
Tira,  fol.  274,  there  is  the  very  indenture  re- 
turned by  the  sheriff*  of  Norfolk  for  Great  Yar- 
mouth, <  ad  tractandum,  cousulendum  et  con- 

*  ientiendum.'    31  £.  3. 

And  fol.  68,  of  that  book,  another  writ,  '  de 
, '  expensis  militum,'  18  E.  2,  reciting  the  cause 
for  which  they  had  been  summoned  to  the  par- 
liament, viz.  '  ad  tractandum,'  &c. 

And  in  the  same  l>ook,  fol.  145,  it  appears, 
that  18  £.  3,  the  writs  to  the  sheriff's  for  chus- 
ing  knights,  mentioned  what  their  work  was  to 
be,  in  these  words,  viz.  '  Nobiscum,  cum  pnc- 

*  latis  et  proceribus  preedictis  super  diversis  et 

*  arduis  negotiis  nos  et  statum  regni  noetri  spe- 

*  cialiter  tangentibus  tractaturi  et  suum  consi- 

*  Hum  impensuri.' 

And  fol.  1  i7  and  119,  the  like  words  in  the 
writs. 

And  fol.  177,  the  indenture  rclurned  by  tiie 
sheriff*  of  Wiltshire,  recites  their  triibt  in  the 
same  words,  and  pursues  the  words  of  the  writ. 

And  276,  and  2'C^'3y  and  381,  indentures  tv- 
turncd  from  Keadingf,  Bristol,  I-K)Ddoii,  with 
the  same  words.  And  ih.  fol.  178  and  170,  and 
20 1  for  Windsor,  and  i>63.  So  that  in  the  reigns 
of  seven  several  king's,  and  those  of  the  most 
ancient  kin^rs,  there  was  no  such  distinction  in 
the  writs  oi'sununons. 

Another  arj^anutntused  by  these  late  authors, 
to  pro^c  tiiat  the  whole  power  and  all  the  pri- 
vileg^es  of  the  House  of  ('onunon<(,  are  n(>t 
from  the  ori^nnal  constitution  of  the  govern- 
ment, (nH  I  atiiru],  and  I  hope  have  pro>ed 
they  are)  hut  of  a  hitor  orij^inal,  and  hy  the 
mere  <(race  and  indul^jenco  ol'  princes  (as  in- 
deed the>  must  he,  if  the  Ili)Use  of  Commons 
be«;an  within  memory)  is  taken  ihuu  the  words 
and  phrases  of  our  historians,  who  have  writ- 
ten since  tin?  cominj;  in  of  the  Normans,  and 
ascribe  the  niakintf  of  laws,  and  ail  the  detir- 
iiiinations  and  decrees  in  malters  of  judicature, 
and  all  the  actings  of  the  ancient  paviiaiuetits 
before  the  time  of  tlie  Normans,  to  the  kin^ 
anil  Lords  only,  exclusive  to  the  Coninionti, 
and  that  tlie  Commons  had  no  part  in  them,  till 
this  time  of  49  H.  3. 

And  they  OToood  this  oniiioB  jummi  the  Ibrra 
of  penniog  of  oar  aafl  A 


Proceedings  against  Sir  Wm.  Willians^    [1(U 

which  seem  by  the  words  of  them  Is  be 
concessions  ot  our  former  kiofr*,  tnd  to 


to  km 


proceeded  only  from  their  royal  bounty,  uis 
tbeir  sole  will  and  pleasure. 

And  they  confirm  themselrei  in  thit  «(i> 
nion,  from  observing  the  coarse  used  is  the b^ 
ginning  of  parliaments,    when  lbs  tftAa 
makes  his  humUe  petitions  to  the  kio;  fit  the  k 
granting  of  them  freedom  from  snati,d  k 
freedom  of  speech. 

Now  to  discover  the  falsity  of  these  gnu^ 
and  the  weakness  of  these  argumeats,  tabi 
from  the  words  and  phrases  used  by  oar  bill- 
ri<ins,  I  shall  shew  that  our  historians,  wb 
have  written  since  the  time  of  the  cooiis(|;iiif 
the  Normans,  and  have  translated  the  8m 
annals,  hare  in  those  translations,  umeid  li 
the  Saxon  titles,  used  the  titles  that  weieimr 
in  use  before  their  own  times,  which  titles  wi 
in  the  Saxons'  times  had  quite  difierentint- 
fications  from  the  titles  used  in  the  limes  t/tfat 
translators. 

The  title  <  earl,'  for  example,  is  used  is  tli 
penning  of  the  Saxon  laws  (as  among  thoKif 
Atbelstan)  as  we  may  see  by  Air.  liinbertii 
his  book  De  Priscis  Anglor.  Legibns,sBdtk 
title  *  comes,'  came  in  araoiUBrst  ns  since  hm 
the  empire;  and  signified  a  difiemittbiqfii«i 
earl.  Now  our  translators  mistaking  tboietfi 
titles,  *  earl'  and  '  comes,'  to  signify  the  m 
thing,  wherever  they  met  with  ean  in  then* 
nals  of  the  Saxons,  they  have  rendereditciM 
in  tbeir  translations :  and  whaterer  in  ihM 
times  was  done  by  earls,  and  whstefer  po*« 
the  earls  then  used,  is  hy  our  translators  »• 
crilK?d  to  our  comites,  who  are  tlieivlorcilo 
called  earls,  when  in  truth  thev  hatl  iltierrti 
sii^ni fications,  and  wereditfcreniin  ilieir|H'»cn. 
Mr.  Schlen  takes  notice  of  this  eiTor  in  « 
Norman  or  English  translators  j»roct^ 
Irom  their  ijjnorance.  I^ut  from  ilii*  tfr-r 
false  conclusions  have  hceu  raised,  aud  \^* 
measures  taken  in  our  discourses,  cou^r-a,; 
the  power  of  the  peers. 

Sir  II.  S|>elman  observes  the  same  imiriii 
our  translators,  in  rendering;  wonls  and  t""<*i 
*  \on  e  moreSteculianli»iuiori.>,'  biitai-CinJ-i*? 
to  the  titles  used  in  their  own  times,  wliiuiniBy 
times  they  signified  difiercut  ihiiiijs.  Aiv"«*« 
says  Mr.  Selden,  in  the  Saxoui'  times,  diao^^ 
every  gentleman. 

Now  because  nobiiist  in  our  times,  is^ae^ 
ly  restrained  to  peers,  whom  \se  call  tlienni*- 
lity,  our  new  writers,  ns  Mr.  Pr\n,aiuliirn»' 
iKTt  Filmer,  and  several  others,"  asciibt  iil  «* 
the  carls  an<l  harous  and  other  pt't TM't  «* 
times,  which  they  read  in  the  traiiJiJi'** ■ 
the  Saxtui  annals,  tt>  he  acte<l  by  th"seili*t*|« 
(•ailed  nubiUs  in  tho«»^  annals.  Ahliyugh  ■ 
truth  in  those Suxou  times,  they  wireartrfj 
the  middle  sort  of  persons,  as  well  asI'VthW 
of  the  highest  sort  of  ditrnity  under  the  li* 

Those  translators  miNlc.!  »»ur  new  iutliOB>g 
the  Norman  writers  translate  the  »oni  !■■• 
into  Imrones,  and  these  new  autbori  rf  •^ 
whatever  they  find  in  these  translsliioi  It  • 
Klatfedof  the'barones,  they  limit  itai  »i* 


JorpMuhing  DangerfUlfPs  Narrative.  A.  D.  1695.  [1406 

prores  from  the  titles  of  acts  of  parliament, 
and  the  forms  of  those  acts  heingf>  b^  way  of 
charter  and  grant  from  our  kings  m  ancient 
times,  as  that  of  Magna  Cliarta,  «  Dominus 
<  Rex  Concessit ;'  and  the  stat.  *  de  donis  coo- 
*  ditionalibus,  dominus  Rez  statnit,'  sure  he 
was  no  lawyer  that  used  this  argument,  and  be 
nererread  the  Prince's  case. 

Nor  sir  E.  Coke,  3  Inst,  nor  shal]  f  need  to 
labour  in  the  confutation  of  this  error,  the  fal- 
lacy of  it  being  so  well  known  to  e?ery  man 
that  wears  a  gown.  As  for  that  stat.  of  Mafi^. 
Char,  whereby  the  king  only  seems  to  speak, 
and  all  that  is  ordained  b^  that  stat.  runs 
in  the  langnasfe  of  the  king's  concessions 
only  ;  yet  we  know  tl>e  stat.  of  15  £.  3,  c.  1, 
which  confirms  it,  says  of  it,  tliat  it  was  or- 
dained by  the  king,  lords  and  commons.  The 
stat.  of  88  E.  1.  c.  8,  and  c.  13,  hath  these 
words,  viz.  '  The  kin^  hath  granted  unto  his 
'  people  that  they  shali  have  election  of  their 
'  sheriffs  every  year,  if  they  list.'  One  would 
take  this  to  be  a  most  (;fracious  liberty,  and  an 
high  condescension  if  it  should  be  granted  now 
a  days. 

And  our  innovators  would  be  apt  to  conclude 
from  the  words  of  this  act  and  from  the  pen- 
ning of  it,  that  the  people  once  had  this  migh- 
ty privilege  merely  as  a  boon  from  the  king, 
and  by  virtue  of  bis  grant.  Whereas  there  is 
nothing  more  certain  and  clear  than  that  the 
freeholders  (who  are  often  called  the  people, 
and  are  the  true  proprietors  of  the  nation  and 
land)  had  originally  and  from  the  very  first 
constitution  of  the  nation,  the  election  not 
only  of  all  sheriffs,  but  of  all  other  magis- 
trates civil  or  military  that  had  any  authority 
over  them  under  the  king;  so  that  they  had 
a  mighty  freedom  in  the  very  constitution  of 
the  nation,  and  this  overthrows  all  the  wild 
fancies  of  sir  Robert  Filmer,  and  Dr.  Heylin, 
and  some  later  doctors,  as  if  all  were  derived 
from  mere  grace  and  bounty,  and  many  other 
deductions  might  be  made  from  tlie  knowledge 
of  this. 

The  freeholders  had  originally  the  election 
of  the  conservators  of  the  peace,  who  are  be- 
com(;  out  of  date  by  introducing  our  present 
justices  of  peace,  who  have  their  power  not  by 
the  election  of  the  freeholders,  or  are  they  of 
their  nomination  (as  anciently)  but  nominated 
by  the  king,  and  have  their  power  by  special 
commission  under  the  great  seal ;  and  how, 
and  by  what  means,  and  in  what  tempered 
times  tliis  cnme  alH)ut,  and  that  this  freedom 
was  gained  from  the  freeholders  of  England, 
you  may  rend  in  Mr.  I^mbard,  in  his  Eirenar- 
cliH,  fol.  16,  19,  20,  147.  It  was  done  by  act 
of  parliament,  in  the  beginning  of  L.  3, 
and  in  his  infancy,  when  his  mother  IsabeJ 
rule<l  all. 

The  freeholders  originally  and  from  all  an- 
tiquity did  likewiK(>  by  writ  at  the  county -court 
8i\l«'U  in  pleiio  Folkmote   chuse    the   Here* 
tochii ;  \V  hat  were  those  i*  That  tiounds  like  a 
Hur  km  reals  only  in  the  king,     strange  wonl.      1  will  imitate  our  Norman  or 
iipHr  IfMld  hftTs  h,)  which  be    English  traosiators  ia  the  trtnsiatiuii  of  the 


) 

our  present  barons,  and  so  ascribe  all  jn- 
power  antiently  used  in  parliament  to  the 
B  on^y.  And  they  bring  those  historians 
anslators  for  a  proof. 

'  example,  the  Saxon  title  thanes,  was  in 
k2on  times  applied  to  all  lords  of  mannors. 
ie  translators  of  the  Saxon  annals,  trans- 
it the  title  thanes,  into  barones,  ourin- 
>rs  apply  all  that  in  Saxon  writers  is  said 
clone  by  the  thanes,  that  is,  all  lords 
anoors,  as  peculiarly  belonging  to  the 
'  of  the  barons  in  our  times. 
Dce  it  is  that  sir  E.  Coke  cautions  us 
It  taking  reports  of  law  from  historians : 
preface  to  the  Sd  Rep.  he  calls  it  Chro- 
aw. 

?  wonl  baro  was  not  in  use  in  England 
t  Normans'  times,  and  the  root  of  it  (as 
Selden  and  Camden  and  sir  U.  Spelman 
us)  is  from  the  Northern  language  barn, 
I  signifies  the  male  sex,  as  when  we  put 
of  baron  and  feme ;  or  it  sigpiifies, '  a 
»!der'  hence  come  the  words,  conrts  baron, 
nroine  Baronacrii,'  says  Camden,  Eliz. 
Lond.  An.  ICOO,  fol.  137, '  omnes  quod- 
i«do  Regni  Ordines  continebantur.'  It 
:^hended  the  ^ntry  as  well  as  the 
r«t  persons.  After  this  manner,  Godwin 
I  Roman  Antiquities,  speaking  of  the 
m  magistrates,  translates  the  words  tri- 
i  CapitaUi  into  three  High  Sheriffs,  but 
Hbrds  no  argument,  that  what  was  done 
ic  Triumviri  among  the  Romans,  may 
ore  lawfully  belong  te  the  power  of 
sheriffs  among  us. 

i  so  the  words  '  Procercs,  Magnates, 
i  nates,  Nobiles,'  and  such  like,  were  not 
writers  of  the  Saxons'  times  restrained 
B  of  the  highest  rank  then,  such  as  our 
fend  barons  are  now,  but  to  all  persons  of 
^tter  sort,  though  not  of  the  highest  rank, 
aly  to  Patricians,  and  those  of  the  Scna- 
.  order,  but  to  those  also  that  were 
estris  ordinis.'  Excluding  none  but  the 
Ma  capita,'  or  *  sine  Nomine  turba,'  such 
Aomansstyled^  Plebeians.'  Magnates  et 
ceres,'  are  said  to  make  the  statute  of 
vain,  but  we  all  know  that  the  parlia- 
that  made  it,  consisted  then  of  king,  lords, 
ommons. 

«  great  charter  made  17  of  king  John,  ap- 
by  the  body  of  the  charter  itself  to  have 
nade  '  per  He^em,  barones,  etliberos  lio- 
Bitotius  Regni ;  so]  that  it  is  most  plain 
I  not  made  oy  the  king  and  the  barons 
as  Mr.  Selden  observes  in  his  Title  of 
w,  fol.  709,  and  there  he  refers  to  the 
m  Rolle  17  Johannis  dorso,  memb.  Qi.* 
«  H.  S,  apeaking  of  this  meeting,  calls 
wootgiam  AngliK,'  and  rot.  clause;.  28 
*  Fan  anica  mcmbr.  l^,  dorso,'  it  is  called 
iMMBtmn  de  Runni-meade  quod  fuit 
■^'Horinna  Rcgem  Jobannem  et  barones 


groH  mistake.  That  the 
Is  only  in  the  king, 
1  hftTs  h,)  which  be 


vKeiv  the  Daiire  fref^om  Uiat  the  people  Imtl 
bgr  the  ancient  consiituUoQ  of  our  goverDiuenl, 
ooDtftry  itt  all  the  new  doclrmes  ol'  our  fate 
writen,  and  proire  IliAttlie  privileges  ar^d  fVee* 
doio<  ^«^e  yet  eojoy  are  not  mere  em&hahothi  of 
royal  favour,  as  otur  oovebhts  iroulU  uopoae 
upon  iM. 
8ee  sir  E.  Coke  to  this  parpose.  3.  Inst.  174, 

1  coukJ  name  some^rreat  men,  thai  have 
lately  uaeii  tfa«  tame  language  in  books  pub* 
Itabed  *  sub  mafni  Dominis  umbri.'  Bractoo, 
Mrbo  liv«4  in  the  lima  of  H.  .HJ,  ]«  c*  L  fuL 
1,  affirms  '  Lafps  vigorem  tiabct  quicf^njd  cle 

*  cofisiliu  ct  oottaeavo  maj^luin  et  Itei^ub. 
'  commuiii  spooMiie  (autliaritalt  teds  pne- 

*  ndefil»)ittsielucrilirainl«iiietappfMMtiioi," 

la  lh«  met  plactf  titat  bamUe  and  modest 
wwj  of  iIm  peottle'a  aiidr^vaing  to  Ibetr  sere- 
rrign  either  for  the  making  of  laws  fwbicli  has 
be»t  irm  aiicieoi)  or  lor  gvanluig*  ol  pririlc^es 
(•a  Ihc  Speaker  ar  the  CttfDiiKMia  baih  of  kie 
yaan  dooe)  it  akcwa  imlted  great  r«f  ctvnce, 
and  1  do  not  in  the  laast  di^ke  it ;  and  it  be* 
cofnea  the  maifsiy  of  the  pfiaoe  to  be  so  ad* 
dtcawrf  to;  but  Ice  k  aal  ba  oMde  as  arfniaeat 
that  etthar  ttia  lawa  ttMnnpoe  nade,  or  Ibe 
prifik^  so  albwed.  are  piucaiiiai,  and  OMta- 
fy  of  tnvour,  and  may  be  refiiaed  them* 

I  would  be  bacb  Ito  pay  wagea  and  to  naio* 
tain  aitnycduugaaerefyaiialhaiatyica  km* 
lalf  mv  bainble  oerraul, 

la  uwt  act  of  pirtiancaiialihited,  The  Phi* 
tiaoaf  Rig1it,thetiileoirr«oiiaod^iialifiaaii- 
•iH;  3  Car.  K  the  Lorda  and  C^munaaa  pal»- 
iIk  kitif  *  btic  it  waa  for  Ihetr  ri^ta  aad 


ftinkgo;  Q«t  for  any  oew,  bai  for  tlMtr  an* 


inODS  enjoy  -^^-^ 

graoe  »i»d  iavoiiri   y«a 
awer«d  Uy  the  woftU   i 
homble  petition, ! 
that  freeaom^  as  o  r 
mc^f  ami  all  their 

and  hb«.>rtiei,    Sol ^ 

also  a  (letitioo  of  tight. 

Nor  it  tbta  reqiMai  of  l_ 
the  use  of  it,  if  we  maj  I 
in  his  Treati^  ol  the  i 
tntes  in  Parliamefit,  I 

ThaoiaaHo^i 
that  it  recorded  to  I 
dom  of  apeeoh. 

1  hope  I  ha?e 
tb«  Houae  of  Coma 
hi^h  court  of  j 

ongioal,  at  49  1 

the  nation  iiaelf,  and  i 
Csaar  in  bit  . 
the  ah^ofigioat,  i 

petiml  baio^i  la  I , 

law,  •taoipa  dom.  Am.  4  j 

their  are  tberrfara 

wiibihaMii»rtlnl 

topsM 

tarypai 

pamaiy,  but  inc^ 

aatatat,  wbich  they  4 

^ve  dooa^  If  llieir « 


Isbaliliithai 
it  aninttthatibal 
aia  one  anlifi  bad j  i 


1409]  JhrpMukiMg  Danger/kid's  NbrraHvt.  A.  D.  1695. 


ri4io 


if  easily  broken  when  first  the  twnd  !• 
IniEen.  If  this  be  well  coonilerefl,  the  ciiose- 
qoenoe  of  this  case  will  be  better  understood. 
It  eonoems  the  defendant  only  by  name  and 
*  immediately,  but  in  the  right  and  near 
it  IB  now  most  evident,  that  it 


aeariy  concerns  the  House  of  Lords:  this  in-  {termed  the  Speaker 


l^ge,  and  so  allowed  by  the  judfnnent  of  that 
court,  by  advice  of  all  the  judges  of  boUi 
benches. 

The  Speaker  of  the  House  of  Commons,  by 
the  rolls  of  parliament,  (which  nre  the  most 
proper  proofs  in  a  thin^   of  this  nature)  is 


ftrmation  of  Mr.  Attorney's,  like  a  Terrm  molus^ 
•r  as  that  great  blast  would  ba?e  done  (had  not 
Alnighty  God,  in  his  infinite  goodness  to  -this 
aation,  prevented  it)  shakes  the  foundation  of 
boCh  houses,  and  reaches  to  all  future  parlia- 
■Mita;  it  firiebts  me  to  speak  what  may  be  the 
tftds  of  it,  if  it  should  prevail  and  be  stretched 
ii  the  otraost.  I  am  far  from  saying  or  think- 
mn  it  is  so  intended.  But  who  knows  how  far 
a  angle  precedent  will  be  made  use  of  in  times 
tooomer 

All  the  estates  in  parliament,  are  all  called 
by  one  common  name,  as  Commune  Conci- 
aam  Rcgui,  Blagna  Curia,  they  are  one  body 
politic,  M.  U  H.  8,  fol.  3,  in  the  Year  Book, 
[which  I  cited  before  to  another  purpose) ;  it  is 
■id  by  Fineuz  Ch.  J.  that  tlie  parliament  at  the 
wmmon  law  consists  of  the  king,  lords,  and 
Domoioiis,  and  they  are  (says  he)  but  one  body 
sarporatc. 

This  proves  likewise  (what  1  before  argued) 
hat  the  Commons  at  the  common  law  (which 
a  «6  initio)  were  a  part  of  the  parliament. 

In  the  case  of  Ferrers  out  of  Crompt.  Jurisd. 
if  Courts,  fol.  8,  9, 10,  (for  I  keep  within  my 
prapar  element,  and  move  in  my  sphere,  and 
afta  authors  of  oar  own  sciaiice  of  the  comnMm 
Ivr)  H.  the  8th,  called  befora  him  the  lord 
ihaai  I  llor,  the  judges,  the  Speaker  of  the  House 
if  Conmons,  and  others,  and  thus  expressed 
limaelf  before  them,  viz.  That  he  was  in- 
hrnMd  by  his  judges,  that  he  the  kiug  an  head, 
nd  the  two  houses  as  members,  were  knit  to- 
Mber  in  one  body  politic,  so  as  whatsoever  of- 
HKsa  or  inimy  (dunng  time  of  parliament)  is 
tfered  to  the  meanest  member  of  the  house,  is 
e  be  jodgod  as  done  to  the  king's  person  and 
be  whole  court  of  parliament.  And  sir  Ed- 
sard  Noiintague  the  Ld.  Ch.  J.  then  present, 
MiAnned  all  that  Uie  king  had  said,  and  it  was 
■Biuttd  to  by  all  the  rest  of  the  jui^pes.  Now 
f  .yea  bruisa  or  pierce  the  bands,  (and  the 
Qtoasa  of  Commons  may  well  be  compared  to 
he  handa,  for  they  have  been  the  liberaJ  hands, 
■d  the  hands  foed  the  head)  the  liead  and  all 
he  rest  of  the  body  most  quickly  be  sensible. 

In  IVewinnard^  Case,  Dier.  60,  and  61, 
he  privilege  of  the  Commons  upon  this  very 
leeoiuit,  is  termed  the  privilege  of  the  parlia- 
■eetv  aiid  the  judgment  J^ven  in  that  case  by 
he  Honsa  of  Commons,  is  there  said  to  be  the 
t  of  the  most  high  court  of  parliament. 
I  statute  of  1  Jac.  c.  1,  says,  the  pai-lia- 
■sat  ia  '  the  whole  body  of  the  realm.' 

By  the  two  records  that  1  cited  before  out  of 
hi  affioa  of  pleas  in  the  Excliequer,  12  £.  4, 
tappeara  in  two  several  cases  of  privilege,  the 
M  eemwaing  the  Lords,  and  the  other  con- 
:  the  Ceounoni,  in  both  cases  the  privi- 


a  thing 
tr  of  the 


Pariiameiit,  so  it  is 


|M«aa  laid  and 

roii.  zuL 


aa  one  entire  privi- 


in  the  roll  of  1 11.  S,  iu  sir  Robert  Cotton's  Abr. 
tbi.  155,  it  was  in  the  reign  of  a  king  that  was 
no  favourer  nf  parliaments. 

Sir  John  Bnssey,  Speaker  to  the  Parliament, 
sir  Robert  Cotton's  AJiir.  30  R.  2,  num.  14 
and  15. 

51  E.  3,  num.  87,  sir  Robert  Cotton's  Abr. 
fol .  1 5 1 ,  sir  Tlionuis  H  uugerford ,  Speaker  of  the 
Parliament. 

And  so  is  the  Speaker  of  the  Commons  stvled 
in  the  case  of  Ferrers,  iu  CroropUiu*8  Jurisd.  of 
Courts,  fol.  8,  0, 10,  (before  cite<1.) 

In  the  statute  of  6  11.  8,  c.  16,  the  clerk  of 
the  House  of  Commons  is  called  clerk  of  the 
pariiament. 

In  the  case  of  Godsol  and  sir  Christ.  Hey* 
don,  IS  Jac.  iu  B.  R.  in  serieant  Roll's  Rep. 
fol.  It  was  affirmed  by  sir  £.  C.  that  iu  au- 
cient  time  all  the  |iarlianieot  sat  together,  aiul 
the  separation  was  at  the  desire  of  the  Com- 
mons, notwithstanding,  says  he,  they  are  but 
one  House :  and  he  turthcr  affirms,  tliat  lie 
had  seen  a  record,  SO  H.  1,  of  their  degrees 
and  scats. 

Having  made  it  appear  that  the  parliament 
is  one  enure  body,  and  therefore  mutually  con- 
cerned in  powers  and  privileges  as  to  the  right 
and  title  oi  them,  though  divided  sometimes  in 
the  exercise ;  1  shall  proceed  briefly  to  show 
what  those  powera  are,  in  onler  to  tlic  nroviug 
that  what  in  our  case  is  charged  to  he  none  by 
the  Speaker,  by  order  and  command  «)f  the  par- 
liament, (for  so  1  may  now  affirm)  is  pursuaut 
to  their  |M>wer  and  jurisdiction. 

The  parliament  hath  three  powers  :  1.  A 
legislative,  in  rps|iect  of  which  they  arc  calkid 
the  three  estates  of  the  realm.  2.  A  judicial, 
iu  respect  of  this  it  is  called  Magna  Curia,  or 
the  high  court  of  pariiament.  3.  A  counsel - 
Muf  power,  hence  it  is  calletl.  Commune  Con- 
cihum  Reijroi.  For  the  proof  of  these,  1  shall 
cite  some  tew  antiquaries,  but  chiefly  some  au- 
tbora  of  our  profession  of  the  law,  and  those  of 
the  best  authority  with  U!i.  I  shall  mention 
them  without  observing  any  exact  nietlnid,  be- 
cause divers  of  them  extend  to  more  tliati  one 
of  these  cUstinct  powen,  and  some  of  them  re- 
fer at  once  to  all  of  them. 

Sir  Henry  Spelman  iu  his  Glossary  Tit.  Oe- 
motum,  which  was  the  old  Saxon  word  fur  a 
pirliament,  fol.  «i61,   *  Con  ventre,*  swys  he, 

*  Regui  Principes  tain  Kuiscopi  quani  Magis- 
'  tretiis,'  there  nre  those  tliat  now  make  up  the 
House  4if  Lords,  '  Liheriq;  homines,'  there  are 
the  Commons,  what  is  their  proper  %%ork  and 
power  ?    *  i'onsulitur  de  rouununi  salute,  da 

*  pace  et  hello.'  This  proves  them  the  Com- 
mune Concilium  Retfui. 

Learued  Camden':     '  Quod  Saxoues   olim 
■  Witteua  Qcmot  uos  I^riiamentum  recta  diei- 
4X 


Ufj  YWlLLlASlllL    '  Ph>c€ediftgi  agaiAri  Sir  H^:  WSBbmt^      [HH 

*tiins,'  M  td  their  jwiv^r,  *  8iimimm  ei^-    3n>^  Ihe  pope  dcmnnded  bH  r«nl  tirf  dlllt# 

*-^ro  sarTClttniiiiUh<>rttAtem  Uafect  -  '     ■'  '^  t'e-    rear».     The  jm  I  '-*    '*Mkv«,  cwatm^  tiWBf 


rcfHJis,  intcr[»retiini)is,  pI  in  on 


> 


r<»r  of  Jvslioes»  (this  is  «»  ambority 
In  lnw)  c,  1»  tbi.  9,  say«f  PttrHimenls  were  in- 
stHntevt  *  PUr  oyer  et  terra in^r  ;*  this  is  th% 
iujireme  eowft  *i»  I  >yer  and  Temiiner.  The 
court  of  KingN-h<;nch  ts  slid  to  be  above  «ll 
iMim  of  Eire  tir  Ifwierawt ;  «n4  if  tbc  Rmg*i- 
lie^ch  lie  ai^j'jbfiied  into  any  county,  where 
the  EI  I  ^  *i*^  Eireceases,  *  Jn  [tr«?» 

*  ieius: 

*■  Bui  iiiis  ini.M  i>  amvvethe  Kmg^s-bciirh and 
aH  CDiirta  of  Oyer  ttiid  Terminer.  The  KingV 
(ieiich  is  the  highest  Eire,  but  tliis  is  (tccord- 
m^  to  8olomoQ^s  hyperbole)  higher  than  tht 
liighest. 

'  Bnt  what  is  the  proper  subjeet  of  their  Oyer 
And  INsnnhier  f  Onr  ancient  atilhor,  who  wr*ite 
iome  part  of  bis  book  before  thecoiiquest^  telK 
H^,  their  work  ti  to  lieiir  and  determine  *  let 

*  plain tes  de  tort  Je  roy,  de  la  reign »  et  d^  leur 

*  enfaosi*  (the  kingf'fi  children)  m  that  they 
itoake  an  intpaHtal  enquiry,  hut  says  onr  au- 
t1>or  iiirtber,  *  !>e  enx  specialmeut  de  queux 
*tf»rta  lun  ne   poit  aver  autrcmenl  common 

*  droit,'  this  files  rery  hig'h  to  prove  llieirjii- 
dicial  |>ower.     1  forbear  to  Engtifih  it. 

It  is  the  proper  >iork  of  titis  supreme  court, 
^  deal  with  such  delitiquents,  as  are  loo  high 
thr  thi*  court  of  ihe  Kin^*s.  bench  or  other  or- 
dinary con  lis.  Against  whom,  through  their 
p«>tenfY  or  miglity  intereat,  common  riglit  can* 
not  beliad,  it  must  be  undenHood  in  ordinary 
ooorte.  And  the  wriling'  and  printiQjg^  of  this, 
was  never  taken  to  be  a  scandal  to  the  govern* 
roeot  or  to  the  justice  of  the  nation.  For  the  , 
Author  speaks  in  the  person  of  the  king'  himself,  i  hi  wliose 
and  tells  us,  that  the  high  cnurt  of  parliament 
is  armed  with  a  power,  able  lo  cope  with  and 
ijuell  the  roost  insolent  offenders. 

When  the  CJreat  Jildge  of  all  the  earth  comes 
to  make  inquisition  for  blooil^  and  to  eitecute 
judgment  hy  tltc  hands  of  this  high  court, 

*  The  loOy  looks  of  roan  shall  be  humhletl,  and 

*  the  hanghlioess  of  men  shall  lie  bowed  down 

*  and  mailc  low/  To  discourse  of  ihiti  jndf^- 
^enr,  will  m;ikea  Foclix  tremble. 
•*  We  linvc  oficn  heard  it  confidi-nlly  said  from 
ftie  pulpit,  Thnt  our  laws  are  like  the  spiders '^ 
#cbi»,  wliich  Ccilcli  ihe  liltle  flics,  Imt  the  ^rcat 
ones  break  through  ihem.  Now  il  is  quite 
ri>nimry  wiifi  this  great  court,  Ibis  yrcat  court 
#ucountei'S  only  with  ^rpdi  oifenders.  It  is 
Kke  the  imperial  eagle,  *  Aouila  m*n  capit 
^  BItisctts/  it  leaves  them  to  this  and  other  in- 
nfrifir  courts,  but  tiiat  lakes  ttt  task  the  *  Ani- 

*  ntalia  Majora/ 

In  that  ifreat  case,  Rot*  Pari*  40  E.  3,  num. 
7-,  king^  John  had  resigned  up  ihe  crown  of! 
Cngland  to  the  pope,  hy  the  hnnd  of  l'*indid-  I 
tlbua  his  legate,  and  sordidly  .submitted  to  take 
the  crown  at  his  hand  a;^tn,  at  a  yearly  tri- 
bute, 
'  io  thei*ti%ir  of  iHrr  noble  kiiig  Ediivard  the 


and  comufon!.,  r  i^it  •  Aathrr  tlit  1 

I  nor  any  other,  t    i  :  1  ,     t  Ui6  reiSi* 

people  thereof  into  subfectici},  *  mm 

I  <  de  eux/      ThiK  intiiii«te%  thai  wtllil 

*  joint  consent  the  rroi«ii  ma^  be  ditpoicd «f. ' 

This  was  the  highest  iwiitttim  in  kV|  %t\ 

one  of  the  highest  points  tn  law, 

the  kin^^s  claim  of  an  ab»olut<>  pi»wer,attli»s  I 

time  when  the  pope  was  in  hb  liMglit    liil 

the  Commons   jt>m   to    ibe  i^iilwiMi,  li#1 

against  lUc  pope's  and  king  Jolm^  pmmmm^ 

a  despfitic  [Kjwet, 

Sir  Tlin.  Smithy  who  ^iras  a  mecrelMf  i4§ 
in  his  Oomroonw,  L  -S,  c.  S,  M,  >0,  H  *l 

*  Oomitiis  Parlianienimriis  tM^«ita  *^  t 

*  solutiB  potevtahs  tis/  (f  V  ^f  if  f 
the  bead  of  them,  a:s  it  on 
this  shows  where  th»'                   ali 
under  Almighty  G^h.              .ikI  aiii««f  ^ 
Magnalia  he  tells  us,    '  InccrU  Mint  ( 

*  versias  «lirimnnt/     Th»s  nb^irs  tlirir  in 
cendent  j«t        ' 

greatest  <i  1% 

WOuW  qnirihbiy  ueeicie  this  liJ^jMjie  jotj 
versy,  were  il  ouec  before  lUeru,  wilitoai  i 
roent. 

This  appears  to  be  the  proper  hasinai  ^i 
iiarl lament,  e%eu  frt»ni  ihr  \vrli   of  son 
both  to  Lonis  and  C'  '  bey  iid  i 

anciently  difter  in  an N  :  il^isll 

abundantly  shown  alretidy)  ihry  are  *  Ds  J 

*  duis   Rpgni  tractitare,  n  Cohri^iem 
^  dere,*  here  if  their  *irei 


costing  to  that  eqit 
*  tan^t,  ab  oiiin  " 

Their  legiAla 

out  b3'  Bracton , 

IriU^ 


I  j4Jod  • 


■  time  of  Hvp  I 

have  the  Hoom  tti  begin)  1 1 

him  before  ;  *  !  habet,' 

*  quiroTiffI  dr  f  >>flSi!ftStt 

*  tuij  lonsionel 
*tni^-  !.         ,           -^    _,  --■  fbenii! 

*  et  approbaimiT/   6  H .  4,  num,  11.    tliel 
cord  there  uses  loo  grnss  a  worff     l%t  i 
mons,  sayN  the  roll,  require  th 
harel»een,  made  it  their  rei] 
and  the  lords  accordeil,^  that  ' 
sons  should    be  removed    ou 

hoi  IMC. 

This  in  some  asrei,  a-*  iti  the  ui^m  d  tt  I 

■    -^   ->ipn 

in  llir  I 


would  have  been  tlto 
tioii^  t^ni\  a  Hiuey  ttu 
guftg'e  of  the  pnlntt 
IJambr.  Dr,  an 
title  of  the  pnm 

printed  by  llie '■    ■■  < 

saucy  thing  with  their  pr 
hands  topresume  V^ 
cned.     Thu^  «nvt   ; 

But    \'    ^ 

dee<i 

of  thi:  ifiiir  ri'fjUMrti  \,*y   ur  rcn 

kin^'i  hduse^^hef^  l>e  iriM 

& 


JtlSJ  Jkr.pujUishing Danger^ltPt  Narrative.    ^"'  A.  D«  IGBS: 


[lAli 


»%  ia  the  nigo  of  a  R.  2,  or  H.  6,  but  of  H.  4, 
Be  of  our  wisest  and  most  acti?e  valiant  kiog^. 
But  it  ina^  be  thouffht  tliat  these  four  pei^ 
MM  wera  m  some  desperate  Popish  plot  of 
illing  the  king,  as  the  four  we  have  beard  ol\ 


No*  the  king  himself  will  resolve  that  doubts 
kat  noUe  king  said  id  answer  to  it,  *  He 
kneir  no  cause  wherefore  they  should  be  re- 
Moved,  but  only  for  that  they  were  hated  of 
llie  people.'  And  yet  that  great  king  chaived 
lOae  four  to  depart  from  nis  house,  lliis 
tHm  their  ooooacUing  power. 

I  miffht  enumerate  a  fast  multitude  of  Ani* 
alim  U^jora,  no  small  flies,  that  hare  in  seve- 
A  a^n  been  catched  in  the  net  or  web  of  an 

Soiry  made  by  the  House  of  Commons,  who 
i  only  for  such  greater  6sh,  such  as  we  call 
m  pike,  who  by  oppression  live  upon  the 
nailer  fish,  and  devour  them.  The  Commons 
>  that  end  tish  with  a  net,  that  has  a  wide  and 
9g^  mesh,  such  as  lets  go  the  small  fry,  and 
Miipanes.  none  but  those  of  the  hirgest  size. 
acD  as  the  lord  Latimer  in  the  time  of  £.  3, 
■kr  ao^  such  as  Michael  de  la  Pool,  earl  of  Suf- 
ilk,  and  k>rd  chancellor,  in  10  R.  S,  Thomas 
mndeli  archbishop  of  Canterbury,  SI  R.  1?, 
■d  Mich  like ;  William  de  la  Pool,  duke  of 
■fiblky  UH  H.  6,  who  were  all  impeached  by 
le  House  of  Commons  in  acreral  parliaments. 
And  I  myself  bare  seen  a  lord  chief  Justice 
T  ftlus  court,  while  he  was  k>rd  chief  justice, 
md  a  learned  man,  by  leave  from  the  House  of 
lOmmons,  pleading  before  that  House  for  him^ 
■Mt  and  excusing  what  he  had  done  in  a  trial 
hat  aaaia  before  them  in  the  west,  whereof 
■Biipiaint  was  made  to  the  House.  And  lie 
lid  It  with  that  fnmi  humility  and  reverence, 
lad  thon  of  his  own  profession  and  others, 
pare  no  for  his  advocates,  as  that  the  House 
iMJaiLil  trnm  any  further  prosecution. 

In  the  late  act  of  IS  of  his  now  majesty, 
br  aalcty  of  his  royal  person,  there  is  a 
■oviao  for  the  saviuff  of  the  just  antient 
and  the  privOege  of  either  of  the 
of  Parlisiment,  or  any  of.  their 
8,  of  debating  any  matters  or  business, 

bieh  shall  be  debated  or  propounded  in  either 
if  the  said  Houses ;  or  at  any  conferences  or 
■mmittces  of  both,  or  either  of  the  said 
HoiiMS}  or  touching  the  repeal  or  alteration 
if  any  eld,  or  the  preparing  any  new  laws ; 
MTtberediesMngof  any  public  gnevaiicrs^  I 
Anrved  but  now  out  of  Tn^winu.  Case  in  the 
hL  Dier.  that  the  judgment  of  the  House  of 
'^  in  a  case  of  the  privilege  of  that 


Plame,  ia  that  report,  is  called  a  judgment  of 
Iha  moit  hig^  court  of  parliament ;  which 
piafea  they  are  not  without  a  judicial  power. 

S  H.  6,  sir  Hob.  Cott.  Alir.  fol.  674.  The 
|ieil  case  between  the  carl  of  Warwick  and  the 
ami  Marshal  for  precedency,  fol.  576,  vsim 
drtwmined  by  the  king, '  By  advice  niiii  con- 
amof  the  Lords  and  Commons;'  and  yet  one 
~  1  hare  thought  that  a  case  of  prccedf:ncy 
(•should  have  been  a  pocu- 


two  peers-s 
Lorif.     . 


In  the  case  of  l  H.  7.  in  the  yeaif  books,  foT. 
4,  about  reversing  of  Attainders,  it  is  advised 
by  all  the  judges,  that  those  knights  and  othera 
of  the  House  of  Commons,  should  not  sit-in 
the -House,  till  the  act  for  reversal  of  their 
Attainders  were  passed.  And  the  reason  isv 
that  it  ia  not  convenient,  that  such  as  were 
attaint  should  be  judges ;  (and  it  might  have 
been  added  in  their  own  case)  so  that  attainting 
by  bill,  or  revcMng  attainder*,  though  by  bill, 
is  most  properly  a  judicial  act,  and  the 
members  of  the  House  of  Commons  are  ac- 
knowledged to  be  judges  in  that  case  by  all  the 
judges,  and  by  that  statute  of  6  H.  8.  c.  16. 
which  I  mentioned  before  to  another  purpose; 
the  Journal  of  the  House  of  Commons  is  called 
a  record. 

I  have  formerly  observed,  but  to  anotlier 
purpose  too,  that  the  writs  of  summons 
anciently  for  electing  knights,  citizens  and 
burgesses  to  parliament,  did  direct  them  in  their 
duty,  that  they  were  to  meet  *  ad  Consulendun^ 
et  consilium  impendere,'  though  of  late  years 
this  has  been  omitted,  and  now  advantage  ife 
taken  of  it. 

Let  us  in  the  next  place  examine,  whether  the 
matters  acted  in  this  case  by  the  House  of 
Commons  be  warranted  by  these  powers  of  the 
parliament,  and  have  been  done  in  pursuance  of 
those  powers. 

And  upon  examination,  we  shall  find  their 
have  done  nothing  but  what  they  had  a  i'ufl 
power  to  do,  and  what  is  agreeable  to  the  law 
and  usage  of  parliament. 

It  is  set  forth  in  the  plea,  (and  admitted  by 
the  demurrer,  but  we  all  know  it  to  be  true) 
that  there  was  an  horrid,  devilish,  and  Popish 
plot  The  enquiry  afler  which,  and  the  search- 
ing of  it  to  the  bottom,  and  discovering  all  the 
accomplices,  was  *  Negotiuiu-.Arduum,*  and  ft 
did  *  Regem,  ot  Statum  R^ni  specialiter  tan- 
gere,'  according  to  the  writ  of  summons  te 
parliament.  ■ 

For  the  plea  tells  us  the  design  of  it,  viz.  to 
kill  the  king.  9dly.  To  subvert  the  govern* 
ment  and  the  laws,  to  suppress  the  true  re- 
ligion, and  to  destroy  the  professors  of  it^ 

The  plea  shows,  that  one  great  lonl  was  con- 
victed of  it  by  impeachment  of  the  Commons, 
and  attaintedf  before  the  Lonls.  The  king's 
speech  shows  there  was  neeil  of  furtiier  eut|uiry, 
and  that  it  was  not  as  yet  thoroughly  done,  nor 
himself,  nor  the  two  Houses  safe ;  mid  the  king 
charges  Iwth  Houses  to  make  nil  impartial 
eiiquiry.  The  woni  impartiuriiu|»oits,  thi*!^ 
might  he  some  grtat  ptM-sons  cuiiceriifil;  tlif^t 
miirht  lie  apt  to  he  favoured. 

And  tlic  pl(^  shows  tint  both  lloii*<rs  accord- 
ingly made  a  strict  and  impartial  ciupiiry  after 
the  ronytpiracy. 

All  thij  ippears  plainly  <n  he  tiic  propinr  work 
ofaparliument,  and  histnajesty  hiiiisi'if  wns  of 
that  judiriuciit,  and  char^tMl  tiieiu  lo  do  their 
duty  in  it. 

And  the  enquiry  is  the  mo^t  projNT  business 
of  the  House  of  Coninions. 
-  ¥9Ji  tbii  reason  they  are  eonMDoiily<  ttyM 


iN^^Ti^ 


ifli  bow  Mtte  tbi 

err  poMie  by  fcmr  dd 
l^cdi,  lb«Ji^  ttuti 


c«rii< 


7  WnXIAM  III.       Ffoe^€ding$  cgumft  Sir  B^m  WaSmi,    [l«t 

tnent ;  uid  tntleel  all  «»«iiorjMliMOi|li« 
be  or>eii  ati<i  orm*tv  reatfff. 

TUt  :  oTtHiMScrMlbtai 

ft  reconi  irl,  »0<f  1»ftQiinill 

any  penoti  iua>  resort,  m  «^r  E.  Cldb 
hii  Prtfiiev  ta  the  3f)  Ftep  9iti1  t!ut  Hfi 
iinciciit  Jaw  of  EftjE^i  i»»iisdwi>r 

a  gfeueml  act  of  \m  i  j  E  I, »  ^A 

Iboo^  a  gvoerml  bw  it  nm  in  tlicpniilM 
of  acalulet.  ai  1  obiovai  of  iiMitii  |lii> 
and  QMfiil  ut  of  paHtsmrot  lif««dluiM) 
oomes  to  past)  in  ibat  art ot^ 46  £.  i^tte 
monf  prayed  tbal  o  f«canl  iif  utalvo^t 
done  in  the  king's  eO«rt»  ottybt ia  raioa tii^ 
mtin  there  ^  perpetnd  ofidaiof  lir  4  p 
SODS.    AodtfaojeinDplftblbaliiCbinhiaii 
b>d  refined  to  odlfiBr  ll^  poof^  t»  MT^iai 
to  have  cxeiDplt^eatioiis  Ibr  tfitoeeifi* 
the  king  or  tu  bia  dioftJfiQliSC* 
ihey  pray  that  teafdi  asd 
mad«  to  auy  person  of  aoy 
thoog:h  it  concern  tbo  kiof  or  iif 
make  afcoiost  tbe  bine  or  mf  M9* 
amwer  it,  '  Le  Hoylo  voet.* 

Bot  then  it  irai  nwdo  AiOfc  OTUb^  Mr 
detirerediii  at  Ibe  bar  oT  teBMB  4 
mofit,  which  oufbt  to  coonrt  tf  iM  M 
tneiubera,  who  are  s«ppoied  lo  um 
parts  of  tbebbupbai:  solliittlii 
rery  piiblte,  hAm  ibis  pabbibbl 
priot 

Let  me  oboerre  byOic irair«tbol lbii« 
of  the  iafonnatioo  (EhtmmOm^pMi^ 
not  sent  lor  by  the  Honso  of  ClWWIiMi 
for  any  tbbir  ibat  opfom.  OMfa  hW 
tbe  HoQsa  or  GooiiMOB,  OS  be  M  WHlff 
10  tbe Lofdt,  ofbb  mm  ooeoid,  nteibk 
far  from  ualioe  or  iU  flai|pi« 

TbeConmioiitonleritlobtiiftirs*    "^ 
Jonraal,  amoof  olber  talhPMaiMi 
been  gtf en  tbem.  AwA  bciMi,  ibqy 
and  teferal  olbrrs  to  h«fitiolid* 

Hbe  ofleooe  and  Tinnal  m  sa 
Attorney's 
fi«ed  waolboroof 
bear  tbe  Hoose  of 

ibcmoelrescolbiapoiol:  lb«f  cooU  (it^ 
bo)  giro  a  bettor  Meomicfit,  aiilma^v^^ 
reoBon  for  tbe  prwiiv  of  it.  Bui  Itf  ''**L. 
aerrod,  Ibey  barely  aMseil  lo  bo  prMd.  Til 
dv  not  (pT«  any  atteatalM  or  ctmI  Io  il«  b 
leave  aJ  1  that  kear  or  fvail  it»  to  jvdft  w  kl« 
ao  tbcy  tbinb  du  Tt^nr  ibi  ait  Bsbr  fi  ii 
ova,  by  printior  it  villiool  neniaoaof  tbeW 


1*15] 

The  Grand  Inquefst  of  the  nation,  though  sir 
Robert  FiUiier^s  Ulil  writing  terms  them  so  by 
way  of  dimioutiou  and  contempt^  (as  if  enquiry 
were  tbetr  highest  work). 

This  eo«(nii  V  of  theirs  it  nec4ssiary  in  a  boH- 

lerfiency  to  ufl  the  seTeml  hig-h  powers  of  that 

bigh  court     Namely,  in  order  ta  their  lei|rts. 

lature,  or  to  the  tuceroise  of  their  power  of 

I  jiidicatnn?. 

Coorta  that  have  power  of  Oyer  and  Ter- 

siner,  and  to    punish  great  and   enormous 

'  Crimea,  are  siiU  by  thdr  commissioners  anoed 

•  with  a  power  of  eiapannelUo^  grand  inqoests, 

to  make  eni]iitnc«  io  order  to  their  exercise  of 

their  p»Mrer  of  detennining. 

Or  ft  may  be  in  order  to  their  eonnsellhig 
jioiver,  tor  removal  of  great  officers  or  fkrorites, 
wberrof  1  hare  gifeu  an  mstsoce,  and  the 
porliiiment  Rolls  and  Joomals  are  full  of  them. 

Biit  still  they  first  make  enquiry.  They 
etiquire  among  theiHselves,  and  erery  grand 
juryman  by  his  otith  is  to  iiupart  his  know- 
ti^lt^'  m  any  thing  material  to  his  fellows.  But 
the  uioiit  edectual  enqtitry  is  most  probably 
from  Without  doors;  and  without  such  enquiry, 
things  of  great  imporLaoce  may  lie  cooeeal^l. 

And  the  drfcsidanis  plea  shows  some  good 
effect  of  that  eiiq;uiry,  Uiverx  were  conri^ed : 
and  one  Tbotnae  Daugerfield  deliferrd  in  an 
Io  format  too,  and  that  upon  oath,  sod  first  to 
the  LoTda*  Boose,  so  that  it  did  not  begin  with 
.^he  CuiBmoBs;  hut  if  it  were  so  iniamotis  and 
malieioua,  why  did  not  the  l^rds  reject  tt»  and 
coiamit  the  informer  and  puaish  him?  No, 
they  receired  it,  and  entered  it  of  record  in  tbetr 
Journal.  The  reason  was,  it  waa  done  in  a 
cimrae  of  legal  proceeding,  they  ooidd  not  re- 
ject tt,  being  the  proper  court  of  justice  for  a 
abuig  of  this  uaturr.  And  the  king  had  gireo 
it  tbem  to  charge  to  enquire.  Nor  do  tliey  by 
.reoemiffof  it  giro  it  any  oountenanoe  or 
credit.  Then  why  shoold  it  be  so  heinooa  a 
thing  io  the  House  of  Commons,  more  thao  in 
liie  Lofds  P  L^  US  remember  stili  they  are  Uit 
one  body ;  and  though  tbey  sever  thcmselres 
for  lN4r  better  ibspaicb  or  fbek*  great  atfaira^ 
aud  distriboaatba  work  anioogat  Ibim,  yoitbt 
power  by  whieb  tbey  acty  ii  entire. 

But  wb V  ihoold  any  maiB  dftide  and  aerer 
tbose  ihat  are  eatiref  It  conoenia  tbe  Lords 
nyiaity  wiib  Ibo  Dommoiia, 

But  bow  cornea  it  to  oooccro  the  Speaker  of 
ibe  Gammons  so  highly  above  the  Honae  tlself^ 
wbo  aeia  merely  as  a  minister,  and  by  oem* 
mood  of  tbe  House;  butibal  1  raecic  for  a 
yoitii  distbitl. 

Bnt  pet  bops  it  may  be  aUosred,  that  what  is 
House,  io  reoeitiug  Oanzer- 
an  and  entering  of  tt  in  &oir 
io  io  parliamenlary  enmigb*     But  tbe 
i  and  senndai  artses  lint  opnn  ibe  pob- 
f  o^  it  m  pnnt.    Now  a  wool  or  two  la 


Mippondlfjw 
In  begin  btf«i 
it»  Iwishwf 


jiMtioe»  I.  a. 
Ifiiwtsnnbbdaiid 


aiiA  bi  ^hfhpAmsmm 
«  Ibn  LnsdTmMirt 


,  wbvi 


ao«ho9dldf   WbiMtbeynit 


ibei 

If  »t  were  no  < 
ilto^oUcdi,« 


Ibej) 


^tbeou 


Jhr  publishing  Dangerfid(Ps  Narrative.  A.  D»  1G95. 


[1418 


e  to  print  it  as  beiug  his,  tnd  with 

the  matter  of  that  iDfonnation  were 
le,  yet  what  is  done  by  thefloose 
as  and  by  the  defendant  as  their 
all  true,  that  is  that  Thomas  Dan- 
I  drawn  up,  and  was  the  author  of 
latioo,  and  this  was  true.  By  the 
t  punish  the  reporters  of  false  newt, 
'  IS  but  imprisonment,  till  the  first 
brought  forth,  and  that  is  done  in 
[See  the  Ist  St.  in  such  cases  of 
lise  news,  ?iz.  W.  1,  c.  M,  the  re- 
y  to  be  imprisoned  till  he  have  found 
whom  the  word  was  moved.  So  is 
,  the  Stat.  De  Scandalis  Maffnatum. 
L  S,  G.  11.  Dier,  155.  The  lady 
case,  Crok.  Jac.  163,  but  more  fully 
I  actions  of  slander,  fol.  19,  SO.  If 
r  sbinder  be  brought  for  reporting 
ler  had  said  slanderously,  the  plea 
iration  must  aver  that^.  did  nerer 
the  defendant  may  plead  that  in 
(t  so  report,  and  it  is  a  good  plea,  by 
Leonanl's  Ren.  1,  p.  287,  in  an  in- 
;)on  the  stat.  or  W.  1,  c.  S3,  and  2  R. 
r  reporting  false  news,  it  was  found 
as  to  the  defendant's  reporting  the 
but  as  to  the  *  maliciose  et  seditiose, 
IS,'  and  the  defendant  therefore  dis- 

lior  is  avouched,  and  his  name  is 
h  the  information,  and  it  is  upon 
he  Lords'  House,  and  he  in  person 
it  to  the  Lords. 

if  there  can  be  any  just  reason  or 
signed  for  the  printing  of  it,  it  shall 
ciibed  to  malice  or  ill  design,  and 
ilice  alledged,  this  information  lies 
can  a  thing  so  dishonourable  as  ma- 
design,  be  decently  or  justly  con- 
Igected  against  so  great  and  grave 
ly:  Why?  It  is  the  body  of  the 
)n.  And  can  a  whole  nation  be  in 
pected  to  harbour  malice,  and  to 
ugn  against  the  common-weal,  that 
themselves  ? 

lay  most  probably  and  justly  be  this 
,  to  induce  the  printing  this  narrative 
tion  of  Oangrrfleld.  The  plot  was 
rate  and  dangerous,  it  was  not  yet 
vered  and  searched  to  the  bottom. 

commanded  by  the  king  lo  search 
o  it.  Besides  it  was  the  proper 
e  Housf  of  Commons  so  to  enquire, 
re  the  grand  inquest  of  the  nation. 
>ne  positive  wituess  already  that  had 
lese  particulars,  before  the  highest 
istioe,  where  the  great  persons  con- 
t,  sate  themseUes  as  members  of  the 
use.  But  one  witness  alone,  though 
Bcient  to  make  an  accusation,  yet  it 
[>uffh  to  make  a  conviction ;  in  high 
B  taw  requires  two  at  least.  The 
*ommons  could  not  in  duty  and  con- 
khe  king  and  kingdom,  pass  it  by  or 


1 


This  Information,  though  but  from  one  man, 
might  possibly  have  given  courw  to  another 
person  or  more  than  one  to  testify  to  the  same 
particulars,  if  there  were  any  more  that  knew 
them  to  be  true,  who  were  nnwilling  to  be  tb« 
first  in  the  discovery,  not  knowing  but  they 
might  stand  singly  in  it:  but  finding  the  dis- 
covery already  made  and  sworn  to,  might  then 
think  it  their  dotv,  and  be  encouraged  to  ap- 
pear also  in  it,  when  it  might  probably  be  of 
effect  and  amount  to  a  legal  testimony.  The 
difficulty,  and  the  danger,  and  discouragement, 
lay  upon  the  first  inibraier. 

This  consideration  might  induce  the  House 
of  Commons  out  of  a  sense  of  their  duty,  to 
make  a  further  and  impartial  enquiry  as  his 
majesty  had  commanded  them,  to  make  it  yet 
rif  povible}  a  little  more  public  in  order  to  a 
rnller  proof :  and  printing  is  but  one  wa^  among 
many  other  of  publishing  or  enquiring  into  any 
matter.  And  of  late  years  enquir]^  by  printing 
has  been  a  most  frequent  practice,  and  we 
meet  with  it  every  week,  and  it  is  become  the 
most  ordinary  way  of  making  enquiries,  which 
run  into  all  parts  of  the  nation.  And  the  print- 
ing of  public  proceedings  at  trials,  has  been  ge- 
nerally of  late  practised  by  the  courts  of  law, 
or  by  the  judges  of  those  oourtt,  or  by  the 
chief  of  them. 

But  what  has  made  this  Information  oTDtn- 
gerfiekl's  more  public,  than  Mr.  Attorney  Ge- 
neral's preferring  this  Information  against  the 
defendant  Mr.  Williams,  for  causing  it  to  be 
published  in  print?  Had  it  not  been  thus 
awakened  again,  it  might  have  slept  in  silence, 
and  have  been  buried  in  oblivion.  Tacitus  the 
Reman  historian,  tells  us  in  his  Annals,  in  the 
life  of  Nero,  of  one  Fabricius  Veieuto,  who  was 
accused  for  uttering  slanderous  speeches 
against  the  lords  of  the  senate  and  against  the 
priests,  in  certain  books,  which  he  termed 
Codicellos,  which  in  our  dialect,  is  the  same 
with  libels  or  little  books.  Nero  would  hav^ 
the  bearing  of  the  cause  himself,  and  he  was 
convicted  before  him,  and  was  condemned  to 
exile,  and  his  books  were  isentenced  to  be  burnt. 
Tacitus  observes,  that  before  this  sentence  for 
the  burning  of  the  books,  there  was  little  notice 
taken  of  these  books,  and  few  there  were  that 
read  them :  but  when  once  it  grew  dangerous 
to  read  them,  then  they  were  much  sought 
af\er.  But  the  very  opening  of  that  Informa- 
tion of  Dangerfield  here  in  this  great  court, 
and  in  so  great  an  audience,  which  was  of  ne- 
cessity^ and  occasioned  by  Mr.  Attorney's  In- 
formation that  recites  it,  though  Mr.  Attorney 
never  intended  this  ill  consequence,  haih  macfe 
the  matter  of  it  as  public  as  possibly  can  be. 
And  it  must  be  observed,  that  it  never  yet 
came  so  far  as  to  a  trial,  nor  to  have  an  igno- 
ramus found,  much  less  to  an  acquittal  moda 
Ugitimot  in  which  case,  according  to  the  opi- 
nion of  some  judges,  an  action  of  conspiracy, 
or  upon  the  case  for  a  slander  will  not  lye,  as 
not  being  ripe  for  it  till  an  acquittal :  by  the 
same  rtaaon  it  is  not  ready  for  an  Information, 


And  the  greater  the  |>ersoos  tre,  if  they 
1  the  rank  of  suhjecls,  they  must  be  sub- 
ject to  the  Lingo's  Ui*&,  and  they  are  the  more 
projier  lor  the  uiidertukiag  and  encounter  ofthis 
hij^ii  court,  h  tviltnot  be  '  Impar  cougressiii,* 

1  cited  before^  the  Mirror  of  Juiitices,  c.  1, 
p*  d»  where  it  ii  said,  Uiat  parliameots  were 
i^rdiittied  for  to  heu*  «nd  detcrnalDe  iu  &ucb 
wrongs,  and  at^iost  such  persons,  especially 
iigmn«t  H  horn  olherw  ise  conimoii  right  cannot 
be  h&d.  I  will  cite  no  historians  1o  prore  what 
liftlh  been  done  in  aiitient  times  within  this  very 
kfO^onif  of  thiii  nature  araiust  the  lii^heat 
sul^ecU.  1  wilt  keep  sliu  vrithiu  my  owo 
jipbere,  "-'  "*'^  none  but  authorities  inlaw. 
And  au  rir  in  the  way  that  belonga  to 

iue»  an-'  I  am  under  the  protectiun  of 

Ihli  cov  \\\e  laWf  and  may  rely  uf^wn 

ibe  (^r^  ri|  that  blessed  promise,  '  Ue 

miW  keep  ihee  in  all  thy  ways,*  There  imtH  bt 
DO  res|>ect  of  persons  in  doing  justice.  The 
l^at  Judeeul*  all  the  world  gire«  it  as  a  rule, 
and  bioisett  fires  the  example,  *  God  is  iio  re- 
i^ect  er  of  perao&s . ' 

Tbe  kia^  was  pleased  to  ebar^e  both  Hoiisaa, 
i»  fomke  a  stiict  and  impartial  eti<}utry.  f  shall 
eiietwo  anthortties  tn  law,  thai  come  to  this 
p^ial,  T^e&rat  is  in  cntofa brother  and  lieir  ap- 
iarml  too^  and  of  a  MnoQ  Ibal  did  afl«r  sue- 
f  in  iJie  crows.  Kimg  Rieliafil  tlia  m  b 
Ilk  M^fiw  CuHa.  *  pe^it  sibi  Judtdmn  fieri 
iaComtieiobanuefrstresQOQtticattlvm  fiMi*  I 
PMiia  eoatra  einii 
Tiwt 


o  juraT«iat, 


it  Mtj  faartly  fe  abfacted  tbat  tbt  luAf 
iBMif  oaoMlaiaH :  Thikbiii  he  oaqi^hiBi 


and  is  ID  bis  greatest  si 
deed  is  prasiuoed  ia| 
which  makes  the  ** 
*  Coram  Heee/ 
bean  said  to  bare 
hishtgbeoiirtof 
as  FJ.  8i  one  of  the  hi 
lute  of  oar  kint^  said  in 
(which  I  cited 
he  was  intiMinc- 
tbeo  presem)  that  he  m 
in  his  slate  rovat,  as  m  I 
Then  if  we  eoinitkr  ib» 
J.  Gaseoigti  eoauniltidp 
settled  fixed  hm^  and  d 
whose  chair  now 
Hottsaiu  time  gf 
this  piriiice 

*  Ne$cit  Tm|ierarar 
The  ?- 

say  a 

What 
preadied 

tbeat  eases  IhaA  11 
calM  ilktai  mim 
aronM  bates 


]        •  JhrpMuhing  Ddngerfidffs  NarraKve.     '  '   A.  D.  169B. 


[1423 


ever  dooMad  but  they  wert  sabject  to  the 


process  be  erronemii.  *  Qui  jiura  judicis  ali- 
'  quod  feoerit,  non  Tidctur  dolo  nialo  fecisse 
*  quia  iMTere  necesae  est.* 

Keilwey  91>«  h  roed.  by  Brudnel,  and  the 
lord  Dier  in  Trewinnard's  Case,  fol.  dO^  h. 
Where  a  writ  of  privilege  in  case  of  a  parlia- 
ment^man  arrested,  is  granted,  where  it  ou||flit 
not  to  be ;  and  the  sncrifl*  by  virtue  of  thaifc 
writ  discharged  tlie  person  arrested.  Yet  the 
8herifr(saith  that  case)  is  not  chartreabic  in  an 
action  for  this :  *  Farere  ncccsse  est.'  What 
that  necessity  is  we  may  see  in  that  case  of 
Trewinnard,  Dier  fo.  61,  4  me<l.  if  the  sheriiT 
refuse  to  execute  the  writ.  And  as  a  fair  warn- 
ing to  slicrifi*!!  and  other  officers,  not  to  resist  or 
disobey  the  commands  and  onlersof  the  House 
of  Commons,  the  lunl  Dier  mentions  what  pu- 
nishment was  inHicteil  u|wii  the  sheriffs  of  Iion- 
don,  in  the  case  of  Geo.  Ferrers.  They  were 
committed  to  the  Tower  for  their  contempt  in 
not  letting  a  parliament- man  taken  in  execu- 
tion, to  go  at  larcfc,  when  the  Serjeant  at  Arms 
of  tlie  House  of  Commons  came  for  him  with- 
out a  writ.  Nay,  the  lord  Dier  says,  in  the 
latter  end  of  that  case  of  Trewinnard,  that  if 
the  parliament  ermi,  (he  speaks  it  of  the  Uousp 
of  Commons)  yet  there  is  no  default  in  the  she- 
riflf.  When  the  late  king  being  in  person  in 
the  House  of  Commons,  and  sitting  in  the 
Speaker's  chair,  asku«l  the  then  Speaker,  ^Vhe^- 
ther  certain  members,  whom  the  king  nameil, 
were  then  in  tlie  House  i*  The  S|ieaker  an* 
swered  readily  and  wJM^Iy,  and  with  a  good 
presentness  ot  mjml  ( which  arose  from  the  ge- 
nius of  that  HoiiKi-)  *  That  liu  had  rieithcr  f.ye^ 
^  to  see,  nor  ton<;ue  to  speak,'  butajk  the  HdU'.r 
was  pleased  to  direct  him. 

3.  As  to  the  last  point ;  Tliat  fur  matters 
done  in  or  by  the  parlianicrit  (sm  the  matters 
in  <MJr  ease  are)  neither  thr  Kii>|;'s- bench, 
nor  any  othf;r  court,  but  the  cruirt  of  |iarha- 
nient  itfcif,  can  hy  law  take  ef};;nizance  of  it. 
Thi<i  is  the  gri-at  |»i)iiit  of  tlie  cxse. 

I  shall  fiiit  offer  tn  protc  it  hy  lteason<i,  and 
then  I  shall  back  and  erifurce  tiiosr*  ri.json-<f  by 
many  authoriiien,  and  those  of  the  hi(;tie<it  sort. 

1  lleason.  The  parliani«:nt  gives  laW  to  iW.x 
court  of  the  King's  liench,  and  to  all  otiif. 
courts  of  the  kingilom ;  ami  thf.n.fof.  a  is  ah 
«>(iid  and  preposterous  that  it  shonli!  nci-iir 
law  from  it,  and  be  subject  Vt  it.  TIj*:  ^c':dit:i 
It  not  judged  of  the  less. 

2.  The  |iarlianifnt  Ih  the  imrrc-;M;ite  cirirt 
for  examining  th«*  jii'!|;rii<-iitH  ot  tin:  ciwrt  r.t 
Kir;f'j»-|jenr'h,  aiid  if  ihi-v  l»e  prroowfUi,  t'u^y 
r'\frsi'  ihein  ;  and  if  ihii  i:oij.'l  should  a^^asult 
Uvv  lake  njftit  ih#ni  to  prori-ril  in  thi<i  rauso 
rmd  t'if*^  Midgriicnt,  tli«'  par||.irri«'rit  v»li»-n  it 
ri.»':ts,  1.0  (!oufit,  wi'l  vt  it  asiii*f  as  errnj.pt^in  . 
and  no  m:in  d'Hrs  ui  tlio  k-a^it  doubt  hut  th«-y 


er  te  jprooeed  to  my  lecobd  point,  wherein 
I  be  brief,  ruB.  That  howev^er,  the  matters 
cd  in  the  Attorney  General's  Information 
IC  to  be  imputed  to  the  defendant  in  this 

be  beiog  out  the  minister  or  mouth  of 
loow,  and  acting  only  by  their  order.  He 
pcntly  in  the  parliament  records  styled 
Buth  ef  the  Home  whose  Speaker  he  is. 
.  HakeweN  in  hia  Treatise  of  Parliaments, 
XI,  among  the  catafogoe  of  Spealaftv,  be- 
with  Petrus  de  Mountf.  whom  he  makes 
ctr,  44  H.  3,  of  the  House  of  Commons, 
■e  cites  the  repster  of  St.  Albans  tor  it, 
Of,  where  it  is  said  that  Pietrus  de  Mount* 
Hee  totius  commanitatis  consented  to  the 
MDt  of  banishment  of  Adomar  ile  Valence 
p  of  Winchester,  and  sir  Robert  Cotton 
m  with  Mr.  Hakewell  in  this  point.  Mr. 
I  In  hit  preface  to  sir  Robert  Cotton's  Abr. 
10  opinion  by  himself,  that  *  tota  conimu- 
1*  signifies  the  whole  liarunage.  But  it  ap- 
Iby  the  body  of  the  letter  there  written, 
'  eoimnunitas'  b  distinguished  from  the 
JMct.'  Sir  Robert  Cotton's  Abridgement, 
S,fbl.  12,  in  the  upper  part,  it  is  said,  the 
band  great  men  by  the  mouth  of  sir  Henry 
iBraot.  31  r.  Hakewell  in  his  aforesai^l 
like,  speaking  of  William  TrusscI,  says, 
^moiM  answered  by  his  mouth  :  ID  E. 
9R.  2,  Dumb.  16,  nr  Robert  Cotton's  Abr. 
74.  The  Commons  return  their  Answer 
he  king  by  sir  James  Pickering  their 
ker.  17  R*.  2,  numb.  17,  sir  R.  Cott.  Abr. 
The  Idng  advising  with  the  Commons, 
Wing  a  peace  with  France,  rctunj  tfieir 
cr  by  air  John  Bussey  their  Speaker. 
lekewell  in  his  book  before  cite«l,  fol.  S0:>, 
4,  nays,  that  sir  John  Ti].ioft,  vihile  he 
speaker,  signed  and  seeled  tlie  deei!  of  en- 
r  the  crown  with  these  viords,  '  Nomine 
i«  commonitatis.' 

-  Elsing  in  bis  Treatif e  of  Parliaments, 
25,  tells  as,  that  what  was  s|Kik(  n  by  the 
Ker  is  entered  m  the  rolls,  as  s(ioken  by 
-«mmon!i. 

t  fake  what  is  done  by  the  defV-ndsnt  to  be 
"^per  acting,  yet  he  aciin*,r  cit) y  as  m  mi-  '. 
•  end  servant  to  thehis;h  ronrl'of  parlia-  ' 
ft  by  the  ordinary'  rules  of  la-.r,  In  «-a«»e*  fif  ' 
vs«  he  is  not  suable.  r.or  ai.v  wnv  [  .::.!-:i. 
^M-it. 

is  is  resoWed  in  th<*  coup.'f  ^s  rf  Rirlan'i* 
6  Rep.  5%.  and  the  sain**  <  a-«;  t.-ke«ri%e  r'*-  ' 
d  in  Sloor'tf  Rep.  76.'».  Tim  :ri  offiry-r  or  . 
>tcr executing  process  which  .*  err/.n*  nu'ily 
rted  (as  where  a  cfsptai  i*  a»iro'»-il  b'^u'mst  ' 
V)  tiitf  officer  is  to  he  excti^d  :  f"r  lit-  imikt  • 
isputethe  euihority  of  the  co«jn.  b  a  obi-y.  • 

I  link  d'iu*4 

iM4  the  serjeanu  in  I^ndon  were  e»'-u%ed  j  but  tb»-y  will  ilo  ii ;    i'ufr*-itnf  it  it  wholly  ii 
■rid  not  gudty  of  any  offenr*..  .  »ain  f-^r  ibit  i.-./urt  \o  l-ilf  «:";fr;:z.'iO'.»:of  it  ;'ar  1 

in  the  case  of  tbe'Mar^bb.K?.  I'j  H^p.  ;  it  rauTsot  be  tt^'i^i  »-l*wwh«^i',  it  U  rig  in  a 
■bcrathe  distinction  is.  If  the  court  h^rn  i  rniii^^r  of  jmi^iir.uvn  S^n  the  staiut«  of  27 
mental  the  offieer  is  escased  though  the    Eia  c.  8. 


Th^  pr»-%rnble  rcr.iiing,  flat  p-rro- 


UtS] 


7  WILLIAM  IIL       Proeeeiiiigs.a5ai7ui  Sir  Wwu  WilUant, 


seoufl  jodgiBcnti  giren  in  the  Kin^'s-beoch  are 
only  to  be  refurmed  by  the  lugh  court  of  par- 
liawent ;  wbich  court  of  pari lameBt  was  not  in 
those  dayi  to  often  holdeD,  as  id  aadent  time 
it  had  been:  neither  vet  in  respect  of  the 
^naler  a&ira  of  the  realm  coukl  they  weM  be 
oonsidered  of  and  determined  in  paiiiafflent,  &c. 
[iJac.  c.  1.  The  hke  words.] 

There  is  an  ezcoption  of  errors  thai  con- 
cerned the  jurisdiction  of  the  King's-bench ; 
those  remain  as  before ;  and  in  the  &mn  that 
an  referred  to  the  jud^  of  the  Common  Plena 
and  barons  of  the  Ezcheqner,  by  S7  £lia.  c.  8, 
the  jurisdiction  of  the  parliament  is  to  examine 
them,  &C. 

5.  This  court,  as  all  the  courts  of  common- 
law,  judge  only  by  the  ordinary  roles  of  the 
common-law.  'But  the  proccediufTi  of  parlia- 
ment are  by  quite  another  rnle.  The  matters 
in  parliament  are  to  be  discussed  and  detennined 
by  the  custom  and  usage  of  parliament,  and  the 
course  of  parliament ;  and  neither  by  the  drilv 
nor  the  common-law,  used  in  other  coorta. 

4.  The  jodffes  of  this,  and  of  the  other 
coorta  of  common  law  in  Westminster,  are  but 
assistants  and  attendants  to  the  high  court  of 
parliament:  and  shall  the  assistants  judge  of 
their  soperiors .' 

6.  The  hi^h  court  of  parliament  is  the 
derni?r  resort,  and  this  is  creoerally  aflirmed 
and  held  ;  but  it  is  not  the  last,  if  what  the;  do 
may  vet  again  be  examined  and  controlled.* 

6.  Yhe  parliament  is  of  an  absolute  and  un- 
limited poirer  in  things  temporal  within  this 
nation. 

I  sbsil  now  proceed  lo  Authorities  that  are 
full  :o  i:i:s  ;  ■•  :.i.  ar.J  lio  second  aii-i  back  ihtsr 
rc;^?-  >  ir.i:  I  liiTe'iFere-:  ;  i*ber€.n  I  shall  r.-i 
i-Li5e;\t  i:.y  rae:..-  J  by  reducir:.:  Pr  ra-ikin^  i-r 
lijtm  L  .  .t:  t.-r'-e  rcM^n*  that  1  have  oiftrt'J. 
l*ca-«e  *-.  r.:€  '■•I  tne  aiitr-'.-r.t.csjuiLty  severil 
\.'i  rhc*€  rtiSvr.s.  a.,  at  t::ce. 

That  tlie  pi7..anii:i:t  'iia»:i  i;.e  h'^bc*!  and 
ir.-*:  sccTxrC  aiitl)Oi.i_v  i-t  an\  ciurt  :  ".iii  :: 
hiiii  2,7.  -'■-  'r^ie  ;■<-.« /r :  iliatV.  .«  the  lii.-hT-s: 
c-  ::l  .Ti  :;•;■.  rii.tr.  >  ackiiO^U'dje^i  L-y  •.  jr 
n:  .•;:  .■.i::.f:<i  ^r  .  ^  -.\  ^s  writers  acd  List  - 
r  ir.rr  ;  ? >  I  •.*  ..:  r.  :  \>lio'.y  Litii  iherr. 
I  .■Jii^.i  I  ■:.■  r. ..:  ■.  ■  e:  i..-:'j  ;  b.:  I  rr!y  •■.i.._\. 
a3"j  j-j:  a  .  ♦'.•-  5:'':>i  >"»t  mv  f-r-v  j*  ai  1  ar^j-.:- 
ir.eL!s  u\}'-z  ::  \  *  i-L:--.;.**  in  !*•*. 


erroneous  proceedings  in  iicher  coort 
tborities  in  law,  wfai«^  oonfirmf  oae  • 


In  Trewinnard's  case,  it  is  i 
the  parKaraeat  err,  it  is  not  i 
other  court :  this  is  spoken  in  a  CMe  i 
then  occasion  was  upon  a  jodgw 
onl jr  by  the  House  of  Coauwas,  ia  i 
pri»ile^. 

Agreeable  to  this  is  SI  E.  9,  fo.  46. 
Tit  Error,  pisc.  66,  in  the  Utter  a 
case,  and  7  U.  6,  Br.  Afar. Til  Ensr. 
bv  Cottesmore,  and  1  H.  7,  fo.  19, 1 
pUc.  ]37.  Error  in  parlianmi  fin 
▼ersed  in  parliament,  *  et  noo  aiiier;' 
is  not  an  higher  court.  1  II.  7,  f 
By  all  the  jndgei  in  the  Eichc^aff- 
for  a  judgment  in  the  Kin«Vbcoc 
must  be  sued  in  parliament ;  and  tstl 
ment  shall  correct  the  judgmeals,  is 
to  correct  the  judges  that  gire  eom^ 
liooest  judgments.  These  are  the  i 
the  opiniooa  of  the  kwd  chief  jmm 
in  his  Repoits,  fo.  139,  in  Buahcl'ica 
says  he,  in  all  agea  have  been  coapli 
the  king  in  the  Star-rhamber,  (« 
conn  now  dissolred  by  parliameati 
parliameoL  He  there  mentions  max 
those  44  that  were  hangttd  in  kisi 
time  before  the  eooqueft,  for  corr 
ments ;  and  tboeein  the  tinae  of  E.  1 
R.  2,  for  their  pcraicioas  renU 
▼ooches  the  jooinals  of  pariiaafoi 
fctaDces  in  the  Judgment  of  Ship-mo 

I  IjaI  kind's  time.  ac<l  the  pan.cuhr  j 

!  fieached*. 

,  .Sir  L.Coke.  iuLii  ICRep.  :"  '.  .-i 
a-e  "ipvken  i\  *:r  L.  f   U::   -»i..i'. 

•  viiih  tLe  c.«irc*:'nP€Dt '-•i' ji.  i;.-.- J«J. 
kr^  -ir-ih  l.:s  cv«;n.  that  :^  :  •  >a}  . .-. 
IK<-iM  I-t'  rarui.iteni.  -.n  »:..c£i  -t 

i  l>?nis  :>  t"..c  snprtiTie  y^c^z  o»t! 
j  id^t*.     Ft  ii"c.-7*rbe  id  the  i  -"x 

\:y.  It  iiie  c^vin  rf  Ki qs**- >.-»...  er* 

.  to  reversed  la  i..c  --f'/c:  Ho  >•-•  ■  r' 1 

b-.  i'k  kifiT  «::ri  :..c  .LS»rr.t  •■:  -i,^  i 

■.:.-i  i; 


er.:.:t 


Car. 


I'r 


.■v-  jr.:  ; 

-■'     -I) 
■   i-< 


e  evt-n:.  ■- 

lit     .a.> 


•   >.)Tim'.n  €i 
,:^:P.ir.v-::-er- 

V..  •ri5>:r  !  . 


•{  (. 


i:i'...^"i     MIS    IS    <',veke-    -^t 

'.•r.'i.  vti  .t  niusibe  <:-i.-i  r 

,e  larhioat-ct  i  ii  I  p  .-v^ci:  t^ 

l->!y.  and  that  tbea-  ^-jwer  i: 

::  I*  r-=-.-e,  though  a*  Ij  the  <x 

.s  ■:*•-.  j'.-d  lato  j.Art>,  a2>»:  »i  d.^ 

P;  iLe  H  ;w*«  oi'  L-.-nls  eie--.  *€  a:) 

!  H.  .:>c    t'  Pan.arsr-.t,  or  a»  a  Ch 

-s.   ».i.     ::   Mr    H   ..«€  •:•!"  C'jmn 

r."  a:  :  .•.  >aj-e  :.'."-:.     lt.^th   H 

.  .   r  ^u-.  :-,:e:::'.7.  i:.  i  d.4*olfeil 

k*  ;.-.r  :■»  i>  -:r"  H..  r-x:raus.  ifaey  I 

-t-.be.-.  ir. :  i:.e  -.c«  canz  ?:  be  m  bi 

:  '.J-.  c.'icr  a  ^>.  a:  the  ^aoM  tine  i 


\ 


n; 


wt*      t.. 


i. 


u-j  ■-■<.' 


i    :.     Matters     of 


•  >--  t. 


ofthvUli 


Jbrjmhlishing  DangerfiekTs  Narreiivei 
pro 


A.  J),  lesa. 


lUSS 


It.  599.  Coorts  «t  ?arianee, 
tin  to  the  parliament. 
In  the  Chapter  of  the  court  of  the 
h,  errors  in  the  Kingr'g.hench  in 
t  concern  their  jnrtsdiction,  and 

there  excepted  in  the  act  of  ftf 
3.  cannot  be  reversed  but  in  the 
f  parliament. 

1  (37.  There  is  a  court  erected  by 
f  14  £.  3.  oap.  5.  Stat.  S.  For  re- 
jE  of  jud^i^ents  in  the  kind's  gpreat 
istiug  of  a  prelate,  two  earls,  and 
to  be  chosen  in  parliaraent  by  that 
ihf  case  before  them  be  so  difficult, 
'  not  well  be  determined  irithout 

parliament,  (it  does  not  say  by  the 
rds  only)  then  shall  the  tenor  of  the 
)U(;[ht  by  the  said  prelate,  earls  and 

the  next  parliament,  and  there  a 
•ot  shall  be^en. 
irum  et  difficile  sit  Judidom, 
idiciain  res|>ectu  usq;  magnam  ca- 
.  Pari.  U  £.  3.  Nam.  ult  Sir 
ton's  case. 

ap.  9.  The  chapter  of  Treason  in 
ul.  31.Thejudgeoroourt  in  some 
forbear  going  to  judgment  till  the 
wH  before  the  king  and  hisparlia- 
er  it  ought  to  be  judged  treason  or 

court  proceeds  by  tiie  ordinary 
common  law  ;  but  that  hiffh  court 
t  proceeds  not  by  that  law,  but  bv  a 
to  that  high  court,  which  is  called 
isuetudo  IHirlianienti,'  and  consists 
ms,  usages,  and  course  of  pariia- 
therefore,  this  court,  nor  no  other 
t,  can,  for  this  very  reason,  judge 
!  of  what  is  doue  in  parliament,  or 
ment. 

urt  should  take  upon  it  to  proceed 
B,  it  would  justly  be  said  of  it  as  a 
T«*gu]ar.     *  Metiri  se  quemq;    suo 
|K;«le,  venim  est.* 
>tt.  Abr.  90,  R.  S,nu.  14,  15. 
hiaxey  delivered  n  bill  to  the  Com- 
rlirfment,  for  the  h  -noor  and  profit 
anil  of  all  the  realm,  com  pruning 
^eous  **xii(*rceM  at  the  king's  house, 
Iff  liishopK  :i!id  laiMes. 
Camh.    I>r.   1  Itavp  before  roen- 
d  t:tke  «>ct*asioii  again  to  complain 
le^H  of  thiM  bill. 

/asoffendpit  wiih  the  Commons  for 
lis  hill  to  the  kin*^  ;  for  it  seems 
ilerlaiiifd  this  inlormation  fVom  a 
rin  i,  (an  wns  done  in  our  case  from 
)  and  lh«*y  |>ror<*ee|pd  upon  it. 
sHiil  it  uas  all  offfiicc  against  his 
libeity,  and  said  he  would  be  free 


or  delivered  to  them,  but  by  the  House  itself, 
and  that  is  xme  of  the  laws  and  customs  of 
parliament;  and  yet,  no  doubt  but  it  was 
well  known  to  every  member  of  that  House, 
ajid  yet  it  came  not  to  the  king's  knowledge. 

Nu.  16.  The  Comroona delivered  to  the  king 
the  name  of  the  ezhibiteri  which  was  sir  Tbo. 
Haxey. 

Nu.  17.  Tlie  Commons  afterwards  earoe 
and  submitted  themselves  to  tlie  king,  and 
craved  pardon,  nnd  the  king  excused  them. 

Nu.  93.  8ir  Tho.  Haxey  .was  adjudged  by 
parliament  to  die  as  a  traitor.  The  king  watf 
offended,  the  Commons  forsook  the  exhibifer, 
and  submitted,  and  the  Lords  adindge  him 
guilty  of  treamm.  This  teems  to  be  a  strong 
case  against  the  libertT  and  the  privilege  of  the 
House  of  Commons,  (but  it  seems  strange  how 
it  should  be  made  treason  ;>  but  it  is  strangw  ; 
•speotally,  if  it  be  soppooed  this  sir  Tho. 
Haxey  was  a  member  of  the  House,  one  would 
have  thought  be  should  have  been  under  a  pro- 
tection and  special  privilege.  But  I  take  mm 
to  be  no  member,  for  be  is  afterwards  called  sir 
Tbo.  Haxey,  clerk  ;  and  graduates  in  the  uni- 
versity and  those  in  orders,  were  usually  digni- 
fied with  the  addition  t>f  sir;  and  it  is  not  yet 
quite  out  of  use  in  the  university,     . 

I  find  by  Mr.  Pryn,  in  his  plea  for  the  Lords, 
fol.  345,  that  in  the  next  king's  reign,  H.  4,  tho 
Commons  exhibited  a  petition  on  tho  behalf  of 
sir  Tho.  Haxey,  (for  be  was  not  executed,  the 
archbishcp  of  Canterbury  took  him  into  his 
protection,  being  a .  clergyman  ;)  and  the 
Commons  in  their  petition  affirm,  that  the  judg- 
ment against  sir  Thomas  Haxey,  for  delivering 
in  this  bill  to  the  Commons  in  parliament,  was 
against  right,  and  tlie  course  that  had  been  used 
before  in  parliament,  in  destruction  of  the  «ua- 
toms  of  the  Commons. 

Here  note.  That  the  right  and  course  of  par- 
liament, and  the  customs  of  the  Comnoons,  are 
mentioned  as  synonymies. 

'  Upon  this  petition  of  the  Commons,  the  judg- 
ment is  adjudged  to  be  null  and  void. 

But  thu  could  be  adjudged  no  where  but  in 
parliament,  for  it  concerned  the  right  and  pri- 
vilege, and  the  customs  and  course  of  the 
parliament. 

1  U.  4.  nu.  91,  In  sir  Rob.  Cott.  Abr.  the 
record  says,  sir  Tho.  Haxey,  clerk,  (Minloned, 
and  the  judgment  reversed,  and  he  restored  to 
,  all. 

I  This  case,  in  very  many  circumstances,  smts 
t  with  the  case  of  Dangerileld,  and  in  many, 
'  with  our  present  case.  Ours  is  in  the  case  of 
'  an  heir  s^piiart'iit  or  presumptive.  But  a 
I  (rreater  than  the  heir  is  here,  in  this  rsse  of  sir 
I  Tho.  Haxey,  namely,  the  then  king  himself. 
But  I  cite  it,  principally  to  prove  one  of  my 
the  third 


:  reajtnns  and  arguments  to  the  third  point, 
fohn  Buvsey,  the  Sppnkfr  to  the  |  nnniely.  that  there  arc  rights  and  customs  that 
[as  that  roll  of  parliament    calH  '  are  peculiar  to  the  Iii;;rh  court  of  parliament  - 


rgeil  to  declare  the  name 

Ml  that  hill. 

I  appears  the  king  could  not  take 

it  was  donein  the Ckrmmons'  House, 

U. 


of  him  j  and  that  there  is  a  law  called  the  course  of  |rar- 

I'  liamcnts,  ami  it  may  he  observed,  thul  the  cus- 
toms of  the  Commons  are  the  law  and  courMOf 
parliament. 
I     4Y 


Domawns'liouie,  uota  ib«  time  miglil  try  the 
ftme;   and  that  time  is  wbeft  the  Commottt 

[ipply  to  tlie  king  in  it,  and  not  before,  Uhere- 
Utilo  the  kinj^  granted  ;  ^vhich  allows  it  to  be 
the  law  and  course  of  the  parUament. 

4  lost,  fol  15,  Every  court  of  jastice,  sayfi 
fir  E,  C.  hath  rules  and  custom*  for  its  three- 
liOQ.     80  the  htjrh  court  of  parhaineat^  ^  de 

*  suit  propriis  tegihus  et  coasuetodmibus  con- 

*  siitiit.' 

Again,  sir  E.  C.  in  his  Select  Cases,  printed 
1677,  fol.  03. 

Note,  says  he,  the  prinleij^e^  order,  or  cus- 
torn  of  parliament,  either  of  the  Upper  House, 
or  of  the  House  of  Comtnons,  hclonga  to  the 
determioation  ooW  of  the  court  of  parlianioul, 

Aod  there  he  cites  two  precedents  for  it- 

The  first  that  of  *27  H*  6, 10  the  conlrovcrRy 
between  the  earls  of  Aruodel  and  I)e?oiishire, 
fur  precedency  ;  the  king,  by  adwice  of  the 
XfOrds,  rcferrt'd  it  to  the  jud§res  to  examine  and 
to  report ;  not  finaUy  to  deierroine  as  judg^es  of 
the  ckhe,  biAt  as  asst^taiits  to  the  Lotdii. 

The  judges  answered.  That  it  w  as  a  matter 
ofjiaiiiament,  and  beloii|j^ed  to  the  king  and  the 
Lords  10  determine. 

One  would  think  this  were  a  strange  ansiver 
of  the  judgtfS,  to  deny  their  advic<? ;  wcrethey^ 
not  •asislanls  to  the  LonU  in  maiti  is  of  laiv  j** 

The  true  reason  of  their  dcchniug  to  give 
their  advice,  i;*,  it  was  a  ca^e  above  Iheuii  ma] 
not  to  be  determined  by  the  ordinary  rules  of 
law,  and  therefure  out  uf  their  element,  *  Omvh 

*  supra  nos,  nihil  ad  nos,*  Tlicrefore  their  iin- 
■wer  Wtt5,  That  il  v%as  a  matter  ot  p.iihameut, 
aiid  belonged  to  the  kuig  and  Lords,  hut  not  to 
th?  judges. 

ThJH  is  a  resolution  of  ^U  f b«  judgas  ja  the 


This  i«  in  ti  case  that 
of  the  Coiumons  t&nd  tl 
they  say,  that  judgii 
jadge  of  iUr  pnillw 
thailhep 
those  of  t 
nlon  law  b  tbo  pi 
the  courUof  VVesti 

This  is  a  second 
m  the  verv  point. 

Mr,  Hakewel,  id  hts 
of  Enacting  Laws  in  l^ 
ports  this  case  of  Thorp 

It  is  tiine  now  to  C(ini( 
thai  is,  to  resolutions 
point. 

And  fir«t,  tht^  irMilui 
Coinmuns  in  ti 
or  atlea«il  a  ciai 
of  an  author  thai  i« 
friend  In  the  House  of 
I'lcrgyinan  too.      I   ni 
Life  of  flrrlihi!$hop  Liii 
that  the  House  ot  "" 
tiou  in  lr]',;i,  agni 
tlt^n  in  the  House, 
done. 

Let  me  (iresent  yon 
mtide  jpy  tlit^  l^rds,  whi 
thing  in  the  form  of  au 

Insir  Uob.  Cott.  Abr. 
thot  (tarhamenl,  all  the 
lis  temporal,  lieinp 
bertics  and  franchises ; 
matters  in  the  same  par 
be  alterward^  u^oved,  tot 
land,  ought  to  be  dcten 
cusseil  by  the  cotirKe  of 


f  jmhVuhing  DangorpeUPs  Narrative.  A.  D.  1695. 


[14S0 


ct  of  parliaraeDt  full  io  tlic 
can  go  no  higher. 
ISC  of  Richard  Strode,  one  of 
Plvmpton  in  Defonshire,  in 
4  U.  8,  for  agreeing;  with  the 
s  in  putting  out  bills,  as  it  is 
hich  seems  to  resemble  tlie 
ling,  mentioned  in  our  case. 
out  were  aguinst  the  abuses 

0  were  a  great  and  numerous 

10  by  these  bills  took  them- 
ilized  and  slandered.  [Pryn's 
I,  fo).  401,  at  large.] 

ment  was  risen,  this  Richard 
e  had  so  done  in  parliament, 

found  guilty  in  the  Stannary 
nned  to  forfeit  40/.  (a  mode- 
as  for  this  imprisoned  in  a 

castle,  and  fed  with  bread 

anient  met  again,  he  peti- 
ent  for  remedy,  and  that  the 
ainst  him  and  the  executions 
id  ;  which  was  done  accord- 
rliament.  [4  H.  8,  c.  8.]. 
ther  enacted.  That  all  suits, 
?innations,  executions,  fines, 
uislinients,  passed  or  had,  or 
issed  or  had,  upon  the  said 
!ry  other  person,  that  was  in 
thus  far  it  is  k  private  and 
the  reason  of  this,  and  the 
r*  to  all  like  cases ;  but  then 
<  or  that  of  anv  parliament 
e ;'  for  any  bihj  speaking, 
iring  of  any  matter  concern- 
,  to  he  commune<l  or  treated 
large  and  general  words)  be 
f  none  effect.  And  it  goes 
i  that  any  person  vexed,  or 
ivise  charged  for  any  cause, 
[  have  an  action  of  the  case, 
on  so  vexing  contrary  to  this 
ver  treble  damages  and  costs.^ 
action  given  against  one,  for 
>  in  a  course  of  justice.  But 
uing  in  an  inferior  court  that 

11  in  the  matter.  This  act 
isdiction  in  such  parliament 
ler  courts.     1  know  that  in 

1  Ilollis  (afterwards  the  lord 
n  and  others,  3  Car.  1,  the 
iulted  upon  some  questions 

That  that  act  of  8trode*s, 
ict,  and  extended  to  Strode 
)t  it  was  a  particular  act  in  a 
ad  in  that  part  extended  to 

s  meant  that  no  part  of  that 
law,  then  1  must  crave  leave 
Hr  opinion  was  extrajudicial ; 
upon  their  being  consulted 
•tts  pro|KKinded  to  them,  and 
that  weight.  And  I  must 
appeal  to  the  very  words  of 
D  J  to  any  man  of  reason  and 
if  reaiOD  aright,  that  thall 


read  them;  and  I  must  oflfer  tome  reasons 
against  their  opinion,  and  cite  some  good  au- 
t4iority  in  that  point,  and  thbn'  leave  it  to  this 
court  to  judge  of  it. 

The  words  and  persons,  and  time  mentioned 
in  the  latter  part  of  that  act,  are  general.  It 
speaks,  indeed,  first  of  Strode  iu  particular ; 
but  then  it  hath  these  words  *  every  otiier  per- 

*  son.'  It  mentions  that  parliament  in  parti- 
cular ;   but  then  it  proceeds  to  s|>eak  of  *'  any 

*  parliament  that  thereafter  shall  be.'  Tbeu 
the  things  also  are  general  that  the  act  extendi 
to,  not  only  to  indemnity  Strode  for  what  he 
had  said,  or  done  in  paruameiit ;  but  then  tlie 
indemnity  extends  to  every  other  person,  *•  for 

*  any  bill,  speaking,  reasoning,  or  declaring  of 

*  anv  matter  concerning  the  |iarliament.' 

llie  words  of  the  royal  assent  to  this  bill,  are 
such  as  are  constantly  used  only  to  general 
acta,  Tiz.  *  Le  Roy  veut ;'  whereas  to  a  parti- 
cular act,  the  royal  answer  is,  '  Soit  drou  foit 

*  al  parties.' 

And  this  act  of  4  H.  8,  is  enrolled  as  general 
acts  use  to  be.  But  a  private  or  particular  act 
is  always  filed,  but  never  enrolled;  for  this 
latter  distinction  we  shall  find  it  in  the  case  32 
H.  0,  fbl.  17, 18,  fur  authority  in  this  questiou, 
sir  E.  C.  in  his  4th  lost.  fol.  19,  holds  this  act 
of  4  H.  8,  in  the  latter  part  of  it  to  be  a  general 
act. 

ft  is  indeed  commonly  said  *  Boni  indicia  est 
'  ampliare  jurisdictionem.'  But  I  take  that  to 
be  better  advice  which  was  given  by  the  lord 
chancellor,  (sir  Francis  Bacon,)  to  Mr.  justice 
Hutton,  upon  the  swearing  him  one  of  the 
judges  of  the  court  of  Common  Pleas ;  that  he 
would  take  care  to  contain  the  jurisdiction  of 
the  court  within  the  ancient  mere-stones  with- 
out removing  the  mark. 

I  find  but  one  resolution  in  all  otir  books, 
that  I  can  meet  with,  that  seems  to  make 
a^nst  us  in  this  point,  and  niaiutains  a  juri^ 
diction  in  this  court,  for  a  misdemeanor,  or  con- 
spiracy sup|MMed  to  be  done  by  some  particular 
members  ot  the  House  of  Commons,  in  the 
House  in  time  of  parliament.  It  is  reported  by 
Mr.  justice  Croke,  in  his  Reports  of  the  time  of 
king  Charles,  fol.  181 ;  but  it  is  more  fully  re- 
ported in  a  late  book,  entitled  Memorials  of  the 
English  affairs,  set  out  by  a  learned  lawyer, 
and  the  son  of  a  judge  ;  and  it  is  the  case  that 
I  lightly  touched  upon  but  notv,  that  of  Mr. 
Hullis,  Sclden,  &c. 

The  offence  charged  upon  Mr.  Denzill  Hollis 
(who  was  afterwards  the  lord  Hollis,)  Mr.  Sel- 
den,  sir  John  Elliott,  sir  John  Hobartanddivera 
ether  parliament  men,  was  for  a  force  used  upon 
the  then  Speaker,  sir  John  Finch  (bflerwards  lord 
keeper)  in  keening  him  in  the  Sneaker's  Chair 
against  bis  will,  when  he  would  have  lefl  it ; 
and  pressing  him  to  put  a  question,  which  the 
kieg  had  forbidden  him  to  put.  For  this  sup- 
posed offence,  aAer  the  parliament  was  dis- 
solved, these  parliament' men  were  first  con- 
vened before  the  council,  where  they  refused  to 
answer  the  charge,  it  being  for  matters  done  im 
parliament. 


1*31] 


7  WILLIAM  IIL       Proceedingi  agmst  Sir  Wm.  WiUiams,      [1432 


Then  the  jud^^es  hail  questions  propounded  ,  they  tried  the  coiucil  and  the  Sur-chai^bcr 
to  them,  to  ^hicli  they  gave  their  resolutions,  ,  first.] 

that  for  thinfirn  done  not  in  a  parliamentary  {  The  lord  chancellor  Bacon  in  hi«  proToind 
vay,  a  parliament- man  may  be  punished  after  '  book  of  the  adfanceroent  of  learning,  didibt 
the  parliament  is  ended,  if  be  be  not  punished  '  all  precedents  that  taste  of  the  tiroes ;  and  id< 
is  parliament ;  otherwise  as  just.  Croke  said,    vises  that  precedents  should  be  derived  fruB 


*  There  would  be  a  failure  of  justice  ;  but,  that 
regularly,  be  cannot  be  compelled  out  of  |Ar- 
liament  to  answer  things  done  in  a  iiarliament 
in  a  parliamentary  course.' 

This  ansM  er  Heems  to  be  very  oracular,  for  it 
resolves  that  a  parliament- man  shall  not  answer  j 


good  and  moderate  times. 

The  only  reason  that  I  find  eiveo  for  thit 
procee<ling  in  the  case  of  Denzill  Holli^  isiHit 
given  by  Mr.  just.  Cmke,  vix  That  other- 
wise there  woulit  be  a  failure  of  justice. 

This  reason  must  be  |f rounded  either  upon 


opinion  that  parliaments  will  be  partial  in  i 

of  their  own  members- 

As  to  the  first  of  tlieae  (the  long  interrali 

between  parliameols,)  this  under  favour  ought 

to  lie  no  reason,  especially   to  come  from  • 
:  judge's  mouth,  (I  have  a  great  hoooor  fbrlfcs 

memory  of  that  reverend  judge)  who  nnul 

nceibi  know,  and  ought  to  assert  it,  that  bjr  die 
,  law  parliamenis  ought  to  be  very  frrqueot,n4 

judges  oup^ht  to  take  part  with  the  hiw,  sad  ID 
\  maintain  if. 

Before  the  conquest  (aa  it  is  untnilv  caflei) 
\  by  the  law,  parliameots  were  to  be  held  twice  a 

vear,  as  appears  by  king  £dgar's  laws,  c.  5,  in 

Lamb,  de  prisds,  &c. 
And  tho  Mirror  of  Justice,  c.  1,  sect.  S.  idk 


fur  things  done  in  parliament  in  a  parliamentary  '  the  infrequency   of  parliaments,  or  npoo  aa 

course.      If   it  be  tlone  in   a  parhamentary        •  '       • 

course,  what  occasion  can  there  be  to  answer 

for  it  ?  But  who  liliall  judge  what  is  a  parlia- 

n^entary  coursi>,  hut  a  parliameut  ?  Not  juiiges 

of  the  common  law  y  for  the  parliamentary 

course  differs  from  the  rules  u^  the  common 

law.      But  they   refusing  to  answer,  at  the 

conncil  board,  ucrc  couioiitled  close  prisoners 

to  the  Tower.* 

Aller  this  sir  Robert  Heath,  the  king*s  at- 
torney, preferred  an  information  in  the  Slar- 
chamber  against  them,  that  uns  not  proceeded 
in.  The  lord  keeper  was  under  difficulties 
about  it,  says  the  author.  The  judtresof  the 
Kiu{;'s- bench  wore  to  consult  with  tl)e  rest  of 
the  judge's  in  granting  a  Habeas  Corpus  for 
hailing  the  piiMim-rs.  The  rest  of  the  judges 
yyoiiUl  hear  aiv.  "uteiits,  so  it  was  put  uA\  and 
delayed,  (as  our  author  reports  it.)  At  last  an 
iiifonnatiou  was  exhibited  against  them  in  the 
Kin^'s-bcncb.  The  dt  tendunts  pleaded  to  the 
jurisiliction  of  thort)urt ;  tli»-ir  \Avd  was  over- 
rultil,  and  tlioy  n  I'u.sliii;  to  |il*-a(l  o\tr,  ju.'lg- 
jiKhtuas  tnltrcd  by  '  uihil  dicii,'  and  they 
iiiM  <l  and  iiiipri^'orivd" 

Mr.  just.  C'niK,',  :.t  ISip  latter  fii-l  of  those 
litporls,  iiivt  s  thiv  lii. ti-.i-r  u«'(  otmt  ofihrit  case, 
ti.:*t  alivrwards  in  ihc  ii;.iha!:,int  17  Car.  i, 
1 1  ivas  rtsoiMil  iiv  ihc  Ii(  ns.-  ol'  riMnmosis, 
t.ii.t  tl'.Oii'  paiiian»rnl-M)cn  siiwuld  liawarc- 
t  ^-nipon^L*  for  ilicir  ilaiiiams  suslainti!  for  the 
soi»i(?es  to  ilu'  t:o:innonv\caitli  in  llu*  pa;lia- 
ii:eijt,  :\  Car.  I.  I  fa  jmL'-e  hatli  tiuMi^^hi  fit  to 
lirport  ll;is,  it  uiay  l)r  as  lit  for  mo  to  lueniion 
it.  I  take  that  to  \u:  tin;  first  prt-i  td(  nt  or  iv- 
feoltition  jjivcn  in  any  cast  fur  \»liat  v,as  done  \n 
parliainoiit,  a-.i'l  it  sm-.M  aloin-  ;  I  liavo  heard 
of  n«>n<'  .^iiirc  ;hat  n»iihur.  It  smns  to  l>i-  lii- 
ru;ll\  a:,'ainit  I'.jo  (.revision  made  hy  it  ;  it  is 
jK*;.rly  within  ihi-  Minity  and  reason  of  it, 
.'>tiodL\s  act.  1  uish  1  couhl  not  say  that  even 
ihoac  tinus  of  ;;  lar.  1,  utTi-  not  lull  of  trou- 
ble. It  appi'ars  nnuh  by  the  (hHirulty  the 
jn«l;;(v;  s(Mnnnl  to  he  at  in  the  pr()ivi:di:«Vs  of 
that  caso  ;  iliit.  ni  tract'*  inuih  fioni  that  ve- 
Jifialion,  tlial  ui!)<'r\u>.<«  i.s  justly  due  to  a  n;Mi- 
Intion  s.i  sdlii.i.i  as  iliaiufall  the  ju.lyt-s.  [The 
lii"ioh!tion  of  th«  Cninnioiis  in  Tieuinnard's 
Case  i>>  c;;!)<.<l  llu-  jnil^rn,,.,,!  of  (ju;  mcist  hij4li 
court  of  [Kiiliannnt.  ll  ii  had  Inen  clear 
that  the  Jviiir's.i^jjmi,  ^.^,„|,|  1,,^^^.  finished 
it,  thiy  would  have  lu'irun  with  it  there,   but 


*  Sec  Vol. 


y,  i>.  2Ji,  of  thib  Collection. 


us.  That  king  Alfred  ordained  fo%a  penfftait 
usage,  that  twice  in  the  year,  7ano  if  ntol 
were)  oftener,  the  seniors  or  earls  sbouU  aaen- 
ble  themselves  at  London  to  speak  their  mio^ 
And  it  is  reckoned  among  the  abusioos  (u 
they  are  there  termed)  of  the  common  iiw; 
That  whereas  parliaments  ought  to  he  twicen 
the  }ear  for  the  salvation  of  ibe  souls  ef  trtv 

.  pasaers  (and  at  London  too)  that  they  arc  ilterr 
hut  vury  seldom,  and  at  the  pleasurt'  u!  lU 
kin;;:,  f^»r  subsidies  and  collections  of  trt-a^arc. 

!      Ai.d  by  the  statute  of  4  E.  3,  c.  14.  piiiu* 

.  mental  oujrht  to  be  once  a  year,  and  ofi«>nf.r ,; 
need  Im).  1  hare  heard  a  civilian  in  the  H>'>u>< 
of  Commons  ji,nvc  this  consn  uciiun  to  ihat  siu.t 
act,  lUitt  the  words  (if  net-d  be)  should  rrtfr  i« 
the  parliaments  being  (once  a  year)  as  ut.iu 
to  the  words  (aud  ottuiei)  an  J  1  never  Hi-aM 
that  any  man  was  of  that  o|iiniun  but  hniiH:!; 
but  I  remember  he  himself  laughed  whtf:iii« 
bp(»ke  it,  but  he  was  more  laughed  at  tor  thit 
ridiculous  exposition.  And  should  that»cQ!« 
he  put  upon  it,  it  would  make  tlie  latr  a  tcnr 
ridicnIouK  thing  indeed,  tor  then  the  ^hort  of  i( 
would  b«*  this:  Tlut  we  should  hare  a  {'urt^Jk- 
ment  when  there  is  iieL'd. 

But  to  lefute  that  fancy,  there  is  uL<ttb» 
statute  of  the  same  kinirV  tune,  ndniel\ .  60  £. 
:t,  c.  10,  which  says.  That  for  re<lrfss  i»t  tlnefi 
mischiets  and  grit  vances,  wbich  daii^  hap|Nti, 
it  is  accorded  that  a  parliameui  sli.ill  \ic  hol<Ma 
every  year,  without  auy  sueh  reairivtiou  \d 
need  be.) 

And  by  the  act  of  lo  Car.  2,  c.  I.  these  sell 
are  declarcil  to  Ih;  in  force.  And  tiuihrr,  nil 
declared  and  enacted.  Thai  tlie  U^iUimg  of  psf- 
liaiiicnts  shall  not  be  discoutinucU  above  toM 

I  yeorti  at  the  most. 

I  2 


I4S33  Jir  publisUng  DangerfiebPt  NamUhe.  A.  D.  I695> 


[1434 


Notr  how  caD  aoy  man  say  in  defiance  of 
■heie  lavrs,  That  there  caii  be  any  lont^diacon- 
•BBnance  of  parliaments  P  His  now  majesty  has 
Wen  pleased  graciously  to  declare  his  reaoln- 
lion  oAen  to  meet  his  people  in  parliaments, 
and  in  the  word  of  a  king  Uiero  is  power.  Nay, 
we  ba?e  the  kiog's  oath  for  it,  for  he  is  sworn 
to  observe  the  law ;  and  *  eadem  prsesumitur 

*  esse  mens  regis  qu«  legis ;'  and  it  is  an  high 
presumption  for  any  man  to  think,  or  say  other- 
wise. 

For  that  other  ground  of  that  reason  giren 
Ij  Mr.  justice  Croke,  ?iz.  That  there  would  be 
i  failure  of  justice,  if  offeoces  committed  in 

Cliament  were  not  punishable  in  the  King's- 
ch ;  namely,  because  parliaments  will  be 
partial  in  cases  of  iheir  own  members.  This 
flarries  with  it  a  very  high  reflection  npon  that 
gicst  and  solemn  nsserobly,  to  enteruin  a 
fbou^ht  so  mean,  and  so  dishonourable  of  the 
iapreme  court  of  the  nation,  that  the  court 
iȣicb  is  to  correct  the  errors  of  all  other 
iourtay  and  ia  the  last  resort  of  the  nation,  that 
hmy  abould  be  guilty  of  ii\justice  and  |>ar- 
iality.  No  man  that  is  a  lover  of  his  coun- 
ry,  or  a  friend  to  his  own  true  and  honest  in- 
erat,  will  harbour  a  dishonourable  thought 
»f  that  great  assembly. 

I  am  apter  to  think,  that  the  reporter  of  that 
iaae  did  mistake,  when  he  charged  that  worthy 
kod  reverend  judge,  Mr.  just.  Croke,  with  the 
afltfriag  of  that  for  a  reason.  I  find  the  moot 
^reread  of  our  judges  speak iug  with  the 
giaalMt  reverence  of  that  supreme  court.  Be- 
sidcSy  the  learned  lord  chief  justice  air  Edw. 
Vwkmf  who  often  expresses  his  ^reat  veneration 
(or  tbcm,  hear  what  the  chief  just.  Brook,  and 
iiMl.  Maunden  say  of  that  assembly,  in  IMowd. 
Comment,  in  the  case  of  Hill  and  Grange,  fbl. 
175«  a.  towards  the  lower  end  of  that  folio, 

*  Injustice*  (say  they)  *  may  not  be  presumed  of 
■  a  parlument.'  Ana  in  tlic  earl  ot  Leieester's 
case,  in  the  same  comment,  fol.  398,  towards 
the  end  of  the  folioy  *  The  parliament  is  a  court 

*  of  very  high  honour  and  justice,  of  which  no 

*  man  ought  to  imagine  a  thing  dishonourable.' 

1  do  af^ree,  that  an  oflfence  committed  in  par- 
liament, IS  a  very  high  offence ;  but  the  higher 
it  is,  the  more  jiroper  it  is  fur  their  judit^ature ; 
and  that  court  is  armed  with  a  |>ow«r  to  iNinish 
the  highest  oflences,  and  the  highest  ofienders. 
But  to  lake  it  out  of  their  hands,  and  to  make 
it  determiiuible  in  any  other  court,  is  a  dispu- 
rageroeoi  to  that  grave  and  supreme  court.  We 
easily  agree  that  a  purliaiiieat  may  err,  for  ihey 
are  not  intalUble;  but  the  law  hath  provided  a 
remedy  against  tbooe  ernirs,  and  a  way  tti  re- 
form I  hem.  A  subsequent  parKament  may  re- 
form the  tTforsof  a  preceding  parliament,  as  1 
have  proved  by  several  auilioriiiea.  But  to  say 
Ihey  u  ill  be  partial  or  unjuKt,  or  corrupt,  or  fto 
any  iliiitg  out  of  malice,  is  to  raise  a  scandal 
upun  the  whole  nation,  whose  representative 
they  arc. 

1  will  make  no  difficulty  to  affirm.  That  if 
aay  udcnce  whatever  be  committed  in  the  par- 
&imcut  by  any  partiuiUr  ncmhen,  (at  this 


was  accounted  a  force  or  riot  in  the  case  of 
Dencill  Hollis  and  Selden,  and  others  commit- 
ted upon  the  Spraker)  it  is  an  high  infringe* 
mentofthe  right  and  privilege  of  parliamnity 
for  any  person  or  court  to  take  the  least  notice 
of  it,  till  the  House  itself  either  has  puniahed 
the  o^der,  or  referred  them  to  a  due  or  pn^ 
per  course  of  punishment.  To  do  otherwise, 
would  be  to  make  the  highest  court  an  offender, 
and  to  charge  them  with  injustice. 

Nay,  their  right  and  privilege  so  far  extends, 
that  not  only  vvbat  ia  done  in  the  very  House 
sitting  the  parliament,  bnt  whatever  is  done  re- 
lating to  them,  or  in  pursuance  of  their  order, 
during  the  parliament,  and  sitting  the  parlia- 
ment, is  no  where  else  to  be  punished,  but  bv 
themselves  or  a  succeeding  parliament,  al- 
though done  out  of  the  House,  as  in  the  case  of 
Ferrers. 

If  any  shall  imagine,  as  Mr.  Prvn  does,  and 
others,  that  of  later  times  the  parfiament  have 
encroached  more  imwer  than  anciently  be- 
longed to  them,  1  liave  already  answered  this 
objecAioD,  by  shewing  how  large  a  power 
they  exercised  of  old :  And  see  what  in 
further  mentioned  in  Lamb.  Archiou  57,  via. 
That  king  H.  3,  was  told  by  his  Lords  sinritual 
and  temporal,  that  of  ancient  time  the  creating 
and  deposing  of  all  the  judges  and  great  officers 
belonged  to  the  parliament. 

1  du  not  deny,  but  some  sort  of  ordera  by 
them  made,  are  no  k)nger  in  force  than  while 
the  parliamrnt  sits ;  but  then,  what  is  done 
after  the  parliament  is  risen,  is  not  to  be  said  to 
be  done  by  their  onler,  for  then  it  ceases  to  be 
their  order:  This  must  be  understood  of  mat- 
ters executory,  not  as  to  things  executed  by 
their  order  during  pariiaiiient. 

Uuwerer,  this  case  of  l>eusill  Hollis  cornea 
not  home  to  our  present  case,  but  it  is  wonder- 
fully short  of  it :  This  was  an  offence  chained 
only  upon  some  particular  members ;  and  it 
cannot  be  denied,  but  |>articuUr  persona,  eveo 
in  the  |>arliaiiient,  may  misdemean  themselves, 
and  they  are  to  be  punished  by  the  parliaUMDt, 
but  no  where  else- 

But  in  our  case,  that  which  makes  the  of* 
fence,  and  fur  which  the  information  is  brought 
by  the  king's  attorney,  is  what  is  done  by  tba 
whole  U(»use  of  CommiMis,  and  by  virtue  of 
thi-ir  express  order.  Although,  as  1  hsve  al- 
ready olMerved,  the  inf«Nrmatioii  itself  does  not 
expressly  own  it,  yet  tlie  demurrer  tu  the  de- 
fendant's plea  (which  sets  it  all  forth)  does  roost 
plainly  avow  it.  Ami  this  I  am  sure  is  without 
any  ooliiur  of  prei*t:deut,  and  never  waa  at^ 
tempted  till  this  time. 

If  any  man  will  extenuate  or  justify  this  way 
of  proivuding,  by  sayiiiif,  that  this  was  noi  lor 
any  thing  done  in  the  ilo«ise,  but  a  matter  dcNie 
out  of  the  House  ;  vis  tlie  printiui;  and  puh- 
hsliiiig  was  abr(»ad  in  the  printui^-lioiise.  ai:d  in 
tbe  streets, and  spreading  them  abn»ail  ilirou«rb- 
out  the  kingfkNii :  yet  this  nill  nf»t  saUe  i ,  lor 
the  d<!fri>daiit  iiid  Mhatliediit  as  8|N*aker  and 
not  in  his  pnvaie  «*aparitv.  And  it  wus  done 
by  order  of  the  whole  iiuuie  and  aUting  ite 


7  WILLIAM  IIL 

r|Rif!laiit€fkt  i    BO  tliat  llm  iofornnilHia  itte^t  (li- 

thmr  fnwrr  mnd  aetiiig<8;  for  1  have 
r  ffriovtd^  thml  wttat  ibe  defcD^ivt  bu  doo^ 
i  uTia  hts  tct,  Imt  tikdi^pd  ihf^  acting  or  tb«  wltol^ 
foitsr  of  C&mmotti.  And  I  hz\  e  abo  prored, 
'tttt  tbe  tirr>  HoiHet,  at  to  the  riflit  of  the 
fowet  iKat  iliifv  rliiin  aiwi  «»e,  iv  bdt  one,  and 
kmj  mre  tntire"  tli<iii|^h  they  may  divide  in  ihe 
cx^ndie  of  I  hut  ptmiT*  Hn  that  it  tA  a  inatler 
«f  the  highest  eoEic^Tiiment  ii>  tlie  D&lion  thai 
IMmhlT  run  be, 

lir  &.  Ci>kc  in  lib  faanb  TmL  i^  lits  Chap* 
teriyf  ibe  Ili^li  CaotI  of  F^rlisiuentf  raieotions 
two  exaes  only,  anr|  some  oiher  Ijej^inaltigr^  of  a 
ptogfCiiOmi  ■guinil  Ktich  m  absented  them- 
m^fm  fmn  fjartianieiir,  and  4e|faned  fnm  it 
wilbnut  li<?€nce  ;  but  Ih^y  bad  no  effect,  m  be 
altirin««  but  or»ty  agamsi  ux  limorous  biiTicasesi, 
(inhere  lhtHy-mii«  meinbef^  were  iotonneil 
af«iti«l)  nbo  ^  a  J  rctltfrjenffim  TexatH»ni'tn,^ 
lubmiaeil  to  tities ;  bat  be  could  not  Hnd  tbat 
«fer  1b^y  pai*i  any, 

*rbe  firat  <*f  tb«  two  t^ses,  Ji  that  of  tbe 
bialtop  of  Wlficbesteff  it  is  in  the  Vear  Book 
«C5  E.  3,  M,  18  and  19,  Fitz,  H.  .4br.  lit. 
Ckifun*  plac.  161,  Aod  be  aSSrms  thai  th<hse 
•re  ati  Ibe  cams  thai  he  can  fiml  eo&eern- 
in|f  IhU  mttlter,  Tbe  auil  a^aiost  the  hiibop 
mema  by  ortginal  writ  in  the  K tog* V bench , 
and  ,U  charges  Itim  nitb  a  trc-Riiu^  &nd 
^eonteinpt  in^departinj;^  from  ibe  ]mrl lament 
wkbtrat  Ibe  king 'a  licence. 

The  bishop  there  pleads  (af  the  defendant 
4nea  in  ibis  case)  to  the  jurLsdictifln  of  tlie 
^Ofirt.  '  £t  diril  quod  si  <[mH  eorum'  (speaking 
of  Ibe  horda  of  padLanient^)  *■  de[iquent  er^a 

*  Dommum  Regem  in  ParUamento  aljqun,  in 

*  parliamento  debet  corrigi  et  emendari,  et  non 

*  aTibi  in  minorl  curia  quam  in  ParUamento. 

*  Unde  non  intendit  quod  Domitius  Rex  relit  in 

*  curia  hie  de  hujusrnodi  IraQi^re^ione  et  €on- 

*  templa  faclis  in  ParUamento  responderi.' 

Note  tbe  plea,  m  to  the  oftcnce,  m  rery  g:e- 
semi,  i>^  ^iily  restrained  to  the  oflence  pf  ab- 
senting from  the  parlmmcnt,  but  to  any  trespass 
«r  offence  in  parhamenl.     Si  quh  dtUqutrit. 

And  it  woubt  be  a  tittle  improper  to  call  ab-  , 
«enoe  from   parliamcntf  offence  committed  in  | 

fadiament,  for  it  looks  like  tbe  quite  contrary  t  ' 
ut  in  a  juet  sense,  any  olfeoec  committed  by 
^  memtier  relatincf  to  the  parliament,  tbou{i[b 
done  out  of  the  House,  is  iermed  an  offence  in 
parriamcnt,  Ho  printing  any  tiling  by  order  of  I 
parliament^  though  it  be  done  and  executed  in 
mnotber  place,  yet  it  may  be  said  t*)  be  done  by 
the  parliament,  and  in  parliament^  if  it  be  by 
tbdr  order,  and  in  lime  of  parliametit. 

We  may  note  further^  tuat  this  is  a  prosecti- 
tJon  only  against  one  particular  person^  for  n 
pariieular  offence  and  tron tempt  charged  upon 
itirn^  But  in  our  case»  the  prosccuLion  is  sgam^t 
the  ¥ery  SSpeaker  of  the  parliament,  and  is  in 
^«ct  a  proseculron  against  the  parliament ;  for 
it  iJE  against  bim,  for  what  he  did  by  command 
and  order  of  parlifttneiiti  and  iitting  tbe  pariia^ 


And  Ibou^  Hw  AflofDejCSoail  7i|Mli  | 
fbe  biau»p*«  pk&,  tb^  tbe  1^  m^  m  k 
what  omrl  be  w^isld^  fti  iKr  hiibcf  i^ 
itpof]  htm  and  maiBtaitt^  \m  Ibnner  fK%.  mi 
ib^re  jl  r«!Sta ;  io  tkat  aa  «r  £.  Coke  dbervs, 
Tbal  tbe  bbbop^s  plai  M  ila«id  avd  n  fe« 
titer- mteil,  aj^ie^Siiie  tt  ^kt  roiltt^B  if 
former  cim^c  8»  ilii*  S^-mmf  dkam  m  « 
Ibofity  pQ  onrsJe* 

And  Ibon^  Mr.  Pl»»ie»  the  bfryq  [ital 
foL  I7]t  to  tbe  like  iafoms^ott  p<tf  tafeciiri 
bim  ft^d  oihen,  1  mmd  l  Fliiip  mA  Mm^ 
pl^ded  that  he  t«iiittiBeil  eonciiH^y  Imili 
be^nnin^  to  tbe  eod  ^  tbe  poiia^Jiest,  mi 
traverse  tbe  •bailee,  w^ben^y  hre  fmm  Ij 
Ibe  fldvant^v  •f  ibe  ptes  w riniwiifaii^ 
I  et  thi«  m  tm  totfcanty  afaintf  ■%  Mrle«^ 
think  fit,  '  RetiuaciaTe  jon  pr9  if  bfrateia,* 
having^  so  true  an  occaaMHi  «f  «1eam|  lii^ 
self  frmn  that  aiaiffli£Ut»ui  impoiaitia  «  liaf 
absent  Irom  doing^  faB4«Tty  m  parf  ^fliiBi,  •« 
certa-inly  i«  a  viry  biob  bmdi  oftivtfi  ■! 
he  migbt  be  immtWi  of  lyia^  mm§m  A  wi 
therefore  thmi^il  best  U>'  ti««tt»  k  to  ck*^ 
bis  tepulatioii  in  ibat  poiiit;  y«t  J  miiii  c^*' 
fcsi  I  shouM  dflf^r  bsve  iilriMi  it,  a*f  ■■ 
there  any  fartber  prcweeiitiiMi  i^iiiil  IM, 

1  will  mention  but  cine  moai  tsedkttn^ 
morer  and<  tl  is  a  reeord  out  of  Vba  VMbp^' 
Eotis,  W  E.  3,  Hum*  9,  air  Riftm  C«^ 
Ahfidgmettl,  and  iritb  Umt  I  wiU  coMMt.  I 
take  it  to  he  very  pertinent,  and  1  ain  nitii 
Terv  seftsooablel 

Amtmg  llie  petitiooa  of  tbe  Cdmnao— ,  tigil 

They  pray  the  king*,  that  be  wiE(  retjaiMii 
archbishop  and  all  other  oftlie  rJc^nrk,  *'>W*f 
for  the  peace  and  good  i^ovenimeiit  el  ibe  lai 

And  for  the  kiog^'s  ^ood  will  towtnb  *i 
Com  moos. 

The  kitig^s  an«wer^  is. 

The  same  prayetb  tbe  kin^. 

And  I  wish  With  &U  my  heart,  it  wtre  ftt 
Com  moo  -  Pray  er , 

I  have  but  orte  prayer  more  to  makiv  ■! 
that  is,  that  tbia  court  will  aJloiv  tht^rf^ 
dant%  plea. 


This  Case  is  reported  in  S  Shower,  4TK 
Comberbach,  18.  The  fol lowing  is  Sbaw'i 
report  of  it ; 

Tbe  l&mm  v,  Wtixuiis. 

**  Information  for  pnbtts^bing  an  ia&DM 
libel,  called  *  DangerBeld'a  Narratite/ 

«'  The  defendant  pleads,  that  by  the  bit  ai^^ 
cnitoms  of  En  Eland » the  Speakers  of  the  BfNi 
of  Commons  naTc  aigned  and  piibli&b«d  Ifcl 
acts  of  tbe  House,  &c. 

**■  Mr.  Attorney  General  deoourf. 

"  Mr.  Jtme$  was  begin  oing  in  irgoi^  lil 
took  some  exeeptioas^  as  that  hv  dtn^ 
the  libel  in  tbe  intbritiatioii  and  thai  ia 
to  be  the  same* 

''  X.  C.  J,    We  will  not,  to  roeb 
debftlie,  tbe  tono^kif  of  loeli  la  sHi 


ST]  for  publishing  D&ngerfiekPs  Narrative, 

let  us  bear  what  they  have  to  \ 


A.  D.  1695. 


[1438 


ant  plea 

rit 

««  Bf  p.  FolUxfen  began,  «  The  court  of  par- 

iament,  &c.' 

«•  i.  C.  J.    Court  do  you  call  it?  Can  the 

ier  of  the  House  of  Commons  iustify  the 

mdalous,  infamous,  flagitious  libel. 

•'  Blr.  PoUex/en  then  said,  *  1  ha?e  no  more 

D  say,  5ec.' 

<*  JL.  C.  J,  Let  judgment  be  entered  for  the 

"  And  afterwards  Mr.  Williams  was  fined 
,O00/.,  and  upon  payment  of  8,000/.  of  it, 
tisfaction  was  acknowledged  upou  record." 

He  also  gives,  the  following  note  of  the  Case 
lord  Peterborough  against  Williams : 

LOBO  PeTERBOROUGiI   V,  WiLUAMS. 

**  Scandalum  Magnatum  on  the  statute  of 
Raeb.  S,  c.  6,  for  publishing  *  Dangerficld*s 
Narrative :'  the  defendant  |)leads  the  same  plea 
he  did  to  the  information  in  the  king's  name; 
it  a  demurrer  being  thereto. 
<«  It  was  argued,  that  the  declaration  was 
,  and  that  there  was  nothing' of  slander  in  it 
Mm  the  plaintiff,  for  they  had  averred  none, 
il  enly  set  forth  the  whole  pamphlet  with  an 
n  quo  qnidem  libello  diversa  falsa  et  scanda- 
oea  oontinentur,'  and  mention  r^one  in  parti- 
ilar,  which  Mr.  Pollexfen  uiged  to  be  naught. 
**  And  the  Court  doubted  it. 
**  But  the  ^neral  opinion  of  the  Bar  was, 
mt  toeh  their  doubt  was  not  on  the  point,  but 
I  bvoair  to  the  defendant^  to  gain  him  time  for 
eoBipromise;  (it  being  thought  that  he  had 
lid  saffideot  before  for  that  offence)  for  the 
Mpner  of  declaring  seems  goo<l,  and  if  upon 
le  whole  it  ap|»ear  to  the  court  there  was  any 
latter  scandalous,  the  action  lies,  if  otherwise 
ot. 

**  And  it  was  afterwards  agreed,  as  I  was 
nformed. 

'*  Note,  In  Scandalum  Magnatum  no  costs 
te  to  be  given  the  plaintiff,  though  a  verdict 
«  for  him." 

As  to  sir  Robert  Sawyer,  see  the  Case  of 
ir  Thomas  Armstrong,  vol.  10,  p.  105,  of  this 
Collection,  and  particularly  the  passage  cited 
loin  Mr.  Hargrave,  p.  117. 


Uder  Mr.  Williams  Wynn's  permission,  I  in- 
sert from  the  Appendix  to  his  "  Argument 
lipon  the  Jurisdiction  of  the  House  of  Com- 
inoiis,"  the  following  passage : 

*'  The  Demurrer  beine  allowed  by  the  court, 
|ilea  in  bar  was  pleaded  by  Mr.  Williams, 
}«riy  similar  to  the  plea  to  the  jurisdiction, 
OS  over-ruled ;  but  this  last  plea  was  after- 
^rda  withdrawn,  and  iudgment  went  by  de- 
uh.  A  fine  of  10,000/.  was  imposed  by  the 
Hnt  of  King's- bench ;  but  James  2,  after- 
tudM  remitted  9|000(.  of  it^  «DiiC»ing  this  ito- 


g^lar  condition,  that  nothing  should  be  giveni 
to  any  of  the  courtiers  who  bad  been  employed 
to  solicit  this  abatement. 

*'  Upon  examining  the  notes  and  papers  of 
sir  William  Williams,  I  find  that  the  above  wap 
not  the  only  prosecution  that  he  was  exposed 
to,  for  the  aischar^  of  his  duty  as  Speaker. 

*'  The  same  mformatinn  of  Daoeperfield^. 
which  accused  the  duke  of  York,  also  con- 
tained charges  against  the  earl  of  Peterborongb, 
and  that  nobleman  commenced  an  action  for 
Scandalum  Magnatum,  against  Mr.  Williams^ 
for  licensing  the  publication  of  the  information ; 
and  also  seven  others  against  the  printers  and 
booksellers  who  had  printed  and  sold  it* 

'<  To  this  action  Mr.  Williams  put  in  a  plea, 
similar  to  that  in  the  former  case ;  but  the  dis- 
position of  the  court  of  King's-bench  had  al- 
ready been  found  so  hostile  to  the  allowance  of 
any  privilege  of  parliament,  that  it  was  thought 
most  advisable  to  compromise  the  matter,  and. 
James  2,  who  hail  been  gratified  by  the  early 
payment  of  Mr.  Williams's  fine  of  8,000/.,  in- 
terfered to  induce  lord  Peterborough  to  accept 
150/.,  which  was  paid  to  him  in  satisfiustion, 
and  a  non*  proi.  was  entered  on  the  roll. 

«  Much  surprise  has  been  expressed  at  the 
failure  of  three  different  bills,  which  were 
brought  into  parliament  in  1689,  1690,  and' 
1695,  to  reverse  the  judgment  given  in  the 
King's-bench  afamst  Mr.  Williams.  It  has 
been  seen,  that  the  Bill  of  Rights  refers  to  this 
case,  1^  one  of  the  offences  by  which  James  2 
had  forfeited  the  crown,  and  the  House  of 
Commons  had  expressly  declared  the  judg-. 
ment  to  be  *  illegal,  and  subversive  of  the  free- 
'  dom  of  parliament'  (July  12,  1689.)  It 
does,  therefore  appear  inconsistent,  that  this 
very  judgment  should  have  been  suffered  to 
continue  unreversed,  and  the  illegal  fine  whicl^ 
had  been  imposed  on  the  Speaker,  unrepaid. 

'<  To  account  for  this,  it  is  necessary  to  look 
at  the  circumstances  of  the  times,  and  the  con- 
duct then  adopted  by  parliament,  in  similar  in- 
stances. 

**  Among  the  difficulties  which  pressed  upon 
the  new  government,  after  the  Revolution,  that 
of  raising  money  was  the  principal,  and  parlia* 
ment,  disgusted  with  the  profusion  of  king 
William-s  grants  to  his  favorites,  was  led  into 
^  the  opiiosite  extreme  of  parsimony,  even  in  in- 
stances where  the  national  justice  called  for  a 
more  liberal  proceeding. 

**  We  shall  find,  in  consequence,  tliat  there 
was  no  disposition  to  make  pecuniary  compen- 
satioo  to  any  of  those  who  had  suffered  ille- 
gally during  former  reigns,  unless  a  fund,  in- 
dependent of  the  public  purse,  could  be  foun4 
for  that  purpose. 

*'  With  a  view  to  supply  this,  a  bill  for  the 
attainder  and  confiscation  of  the  estates  of  the 
deceased  chancellor,  lord  Jefferies,  was  brought 
in,  and  an  intention  was  eotertained  of  fining, 

^  **  It  appears,  tliat  in  these  different  actions, 
lord  Peteroorough  actually  recovered  and  re- 
ceived above  6,700/.  besides  costs." 


mQ  T^vnLUE&HUI.      3ft  wiwffi|iVipii » IBfc 


fWxiOfjB,  m  op[*<>ailiorj  to  cFery  bill  tur  ihe  rt- 
TersaL  of  i^roccediDf^Ri  which  were  likely  to 
eniail  peciintary  ei)ii]jj^tsation  to  the  fiartj 
affri€ved ;  and  this  eoitiUmation  was  filrong- 
ca<iug1i  (particularly  in  ttie  House  of  Lnrds)  to 
throiv  oyl«¥ery  liilf  of  tlii*  tialure.  Tbe  dl< 
tcyndOTs  of  Ru&sdt  attd  Bydti^y  mett  imleed 
rer«rMd^  becayse  do  nppUcutioQ  could,  m  those 
iaata^tcc^i  be  ma,4e  for  cotn  pen ea  lion  ;  bui  the 
bitt  for  reversing  the  equally  illcgul  oollawTy 
fif  sir  Tboraas  AririE^rciii^,  containf  rJ  »  cSaose^ 
iJiri*cliti(^  that  the  aum  of  5^000/,  of  wiiich  his 
hiiiiily  tia^l  heei)  deprived^  sboulil  be  repaid  to 
them  out  of  the  eb'tates  oi'  his  judg^es  -and  pro- 
secutors, and  wasi  lost .  A  bi )  I  pasEteil  t  h  e  H  o  use 
of  Conitnoti^,  tor  cbarginif  the  heirs  of  lord 
Jeffenes  with  the  repayment  of  14  J6G^.  which 
ht  bad  extorteil  from  Mr.  FH deaiix,  &;»  tlie 
C4MidltiofT  of  pardon  for  a  cbui^e  of  tres^on, 
*nd  laid  out  in  the  jmi<?hase  »f  an  estate,  yet 
•v-tn  litis  waa  thrown  f>ut  by  lie  Lords, 

**■  Vmxi  the  eame  grounds  of  objeetioo,  it  la 
jirDb«h[e  that  the  bills  for  the  revenatof  the 
|ildyfuient  aci^B||HM^4|[i|liamB  were  tost. 

ihai  iin^iii^?Sjmrm^iniM  u  wtt 

W.  WliliaM  ky  the  B«ib<fWff,toi  tSmma^ 
Mr  «l8d  tita  iiMMWHioB'  ifliiMr  bill,   mr 


;  mumm 
HobeitWM,iB  coatcyieitoiii  neanl  a^tosttlie 
bill,  both  ID  person  aod  by  couttael,  and  tboogb 
pMed  by  the  House  of  Commons,  m  1095,  it 
failed  in  the  Hoase  of  Lords. 

*<  On  this  occasion,  sir  William  Williams 
made  a  speech  in  Tindication  of  himself,  tbe 
notes  of  wbieh  still  remain  among  his  papers. 

V  I  trust  that  I  am  not  misled  by  the  par- 
tiality of  a  descendant,  in  tbinkin<|^  the  histo- 
rical matter,  which  this  defence  contains,  suffi- 
ciently curious  to  justify  me  in  giving  an  ex- 
tract from  it. 

*<  After  stating  proofiB  of  the  diflTerenf  facts 
in  bis  case,  viz.  The  order  of  tbe  House,  9th 
Norember  1600,  that  the  Informations  of  Dan- 
gerfield  and  others  should  be  perused  and 
signed  by  the  Speaker,  and  printed  by  such 
pnnters  as  be  should  nominate,  and  that  Dan- 
gerfieldthonM  ba?e  the  benefit  resulting  there- 
from ;  tbe  printing  of  tbe  Information  during 
the  sifting  of  parliament^  Dangerfleld's  ac- 
knowledgvient  of  his  baving  receired  the  emo- 
lument; tbe  prosecution  commenced  by  sir 
Robert  Sawyer,  and  tbe  pleadings  therein  al- 
feady  mentioned.    Tbe  notes  proceed  thus : 

**  *  Aspersion — ^That  I  was  in  confederacy 

*  with  king  Charles  the  second,  to  discover  the 

*  secrets  of  the  Commons,  when  in  the  cbabe, 

*  and  approved  by  bim  iipi.>a  aneh  tenii8|  ton- 

*  certed  bv  nr  Ricbaitl  Mason. 

^« « 1.  Mr.  FraocisChariolODirffliinifeliiyw 
«I  wasflrttthouglftvpoBte^  «•% 

*  days  beibri  themeMb^ 

*  October  IWIL     -^^'^ 


"  *  I  was  a  Strang  to  it  i  1ia  Ini 
the  first  notice  uf  it,  and  my  answtf  f 

*^  *■  Thao  proposed  by  toy  lord  Ram 
iittaoimoti^ly  t^lected  hf  the  ilinae.    « 

'*  *  Au J  ticit  dav  approted  bv  tlic  Li 

''  *  U,  EaH  of  Majccteandd  wiO  tesiJi 
I  reru^ed  ihc  ci^eife  jasticefchip  of  ^ 
hecauj^  I  woul^l  not  be  thought  la 
tbiii]^  ihat  might  seeoi  to  incluoo  Wf 
interest  of  the  Ccwn^uns  in  thaitnf 

*'  *  3.  J  nevev  bid  any  place  m  Ijik 
1 1. *B  time.  I  ii^ei-  w  tight  aay.  I 
seek  this.  I  do  appeal  to  alHhc  mcl 
ewr  I  menp^onad  this  to  any  peraon* 

**  '  4.  1  was  hut  twice  with  L'g  Ch 
second :  the  3d  time  I  refused  io  ^  1 

"  '  5.  My  reword  is  my  jifrtiseoi^ 
a  Ad  two  years  dei-^uce  of  the  €ocd^«b 

**  *  It  ii  my  glory  1  have  left  a  rtmi 
rlj^bts  and  fieedome  of  ^rlm^t«. 
proceeding  posierity  will  juatif3*e  me. 

*^  *  1  look  upon  this  as  the  glory  ao4 
of  myst4fif  and  family, 

*'  *■  Aud  submit  it  lo  the  wisdome 
House)  to  dispone  of  it  tLS  they  >ha 
fitt. 

"  *  I  have  pleaded  a  plea,  wbtdi  wH 
ilselfe  to  iifist^rity, 

**  ■  I  havel^eeucondefuoed  ill<^TIy, 
p*J  8,000^*  in  ye  cjrowo,  uujustly  ag^ 

***  I  have  paid  tt  for  the  Com*«)S 
land. 

'< '  If  t  bad  bettayod  dT,  or  «■ 
Corn'ons ; 

*^  *  if  I  had  f  ubmitted  to  the  larortm 

**  *  If  I  bad  tamdy  yielded  and  cod 

*^ '  It  had  been  better  uilh  my  estati 

"  '  But  worse  with  raj  reputa^'iun. 

"  '  I  value  much  more  your  rights 
own  honor,  than  f  du  my  estate. 

'*  ^  Tbe  money  I^may  recover  agiii 
want ; 

•*  *  Tlie  dishonor  bad  l^een  irrecsva 

"  *  It  is  |»*iit  of  luy  honor^ 

'*  *  Thut  I  am  thus  eifM>sed  by  mj 
tutors,  with  the  s<ime  violenct%  wilbll 
loole^^,  with  the  same  assurance; 

**  *  And  if  they  had  the  aanne  judfis 
expect  the  same  judgi«i*t  *  * 
•  *  •  ^  ^  *  Ittanoli 
ness  now  to  recriminate.  I  t^ill  not 
sir  Rob't  Sawyer,  in  hia  mothod  oTdl 
himsdfeby  recrimin^n, 

**  *  Conaiaer,  if  ye  3  tbiaga  olficw 
were  tru# ; 

'^  *  1.  That  ye  information  wa«  fk 
'  my  order,  after  ye  riseinrr  of  yepaift 

''  '  9.  If  D^ngerfidd  baa  not  bad  fli 
'  of  this  inform *n : 

^'  ^  How  (dots)  ibis  ariile  sir  IWU 
'  upon  this  record  of  the  inferm*'    *" 
'  and  demurr  on  his  p*t,  and  de<*^' 
'  ^iren  a^*t  ye  phvi ledge  and 
^  dome  of  proct'edini;  in  parfd 

"*Letf»ebctbr:yi^--*  tl 


.•^ 


Ijie41]]         Proceedings  againti  the  Earl  ofMO/hrt.         A.  D.  169^. 


[1442 


i;^^^*  *  This  is  to  jastifye  ye  proceediiigf  and 
^^jad^tn't  of  ye  court  of  KiDgVbench  ag't  ye 

^^lu^ons  by  a  side  wind. 
B      ««  «  *i*||ig  |g  lo  ggy^  ye  Com'ons  conid  not 
s   ^H^ler  printing'y  and  the  speaker  ought  not  to 

•^bey  tneiD  or  their  erder. 
K    J^  *  Thiif  is  to  bring  the  privtiedffe  of  ye 

C«Hn*ons  into  question  in  W^V-hall. 
«  ^  **  *'  And  to  make  those  courts  judge  of  the 
«^  l^viledgesof  parrmt,  and  consequently  of 
^^  ^ari'rot,  and  to  sett  bounds  to  their  prooeed- 
^«  **>g«  and  debates,  and  to  make  Westm'r-hail 
^aperior  to  parl'mts."  " 


iVoceedings  for  the  reversal  of  the  judgment 
'  It  air  William  Williams  were  had  so  early 
the  Revolution  as  July  10,  1G89.    See 


Commons'  Journals  of  that  date.  Af\er  that 
period,  farther  proceedinsfs  were  had  at  inter- 
vals until  the  Slst  of  February  1695-0,  on 
which  day  the  House  of  Lords  read  tht>  s>rcoiid 
time  a  bill  which  had  been  sent  up  from  the 
C'ommons,  intitled,  "  An  Act  for  reversini^  a 
Judgment  given  against  sir  William  VViiliariiK, 
for  what  be  did  as  Speaker  of  the  House  of 
( -omroons,  and  for  asserting  the  Rights  and 
Freedom  of  Parliament."    And 

Die  Veneris,  SI  Februarii. 
Ordered,  That  the  said  bill  be  committcti  to 
a  Committee  of  the  whole  House,  un  Thurs- 
day the  27tli  day  of  this  instant  February,  at 
ten  o'clock  in  the  forenoon. 

Afler  which  I  do  not  find  any  fiirther  entry 
resjiecting  it. 


ill.  Proceedings  against  John  Earl  of  IMklfout,  John  Earl  of 
MiDDLETouNi  Ricliard  Earl  of  Lauderdale,  and  several 
others,  for  Treason  and  Rebellion,  inticing  the  French  King 
to  invade  their  Majesties  Dominions,  and  remaining  subject 
to  the  French  King  :  6  William  &  Mahy,  a.d.  1694.  [Now 
first  printed  from  the  Records  of  Justiciary  at  Edinburgh.] 


Coiu  JcsncuRi.s,  9.  D.  N.  RejOfiset  Rcginae, 
Tenta  in  Pnctorio  Burcri  de  Edinburgh, 
▼igesimo  tertio  die  mensis  Julii  millesimo 
sexcentesimo  nonagesiino  quarto,  per 
honorabiles  viros,  Adamum  Cockluim, 
de  Ormistoune,  Justiciariee  Clericum,  Do- 
ninum  Colinuni  Campbell  de  Aberuchill, 
Hagistrum  Davidem  Hume  de  Crocerigf, 
Dominum  Joanncm  Lauder  de  Fountan- 
faall,  Magistrnm  Archilialdum  Ho|)e  de 
Rankeillor,  et  Mazistrum  Jacobum  Ful- 
conar  de  Phesdo,  Commissionarios  Justi- 
ciarii  diet.  S.  D.  N.  Regis  et  Re^na*. 

Curia  legitime  affirmata. 

X  HE  said  day  their  majeatie's  advocate  pro- 
docedane  Act  of  Councill,  dated  the  19lh  in- 
stant, apuroveing  his  causing  raise  and  exeiuite 
letters  of  treasone  befor  the  snids  birds  against 
the  persones  mentioned  in  the  fulluwing  Act 
of  adjournall,  as  being  in  France  or  liavfing 
beiii  tbere  contrair  to  the  late  act  of  paiiiu- 
ment,*  and  as   corres|Hinders  with    tlie  late 

*  K.  William  and  U.  Mary's  first  parlia- 
ment, April  18,  1693.     Chap.  8,  Sess.  4. 

Act  againsi  corresponding  with  France. 

«*  Our  sovereign  lord  and  lady,  the  king  and 
aoeen's  majesties,  considering  that  ihi;*  king- 
dom being  now  in  a  state  of  war  with  the 
French  king,  is  in  great  and  imminent  danger 
from  correspondencies  with  persons  in  bii  do- 

\()L.  XIIJ. 


king  James,  and  g^ranted  warrand  to  the  said 
lord  advocat  to  insist  in  and  follow  forth  the 
said  proces  agniusl  the  saids  liaill  persones. 

Their  mi^cstii^'s  advocat  produced  the  cri- 
minal! letters  of  treasone  dew  ly  execute  against 
them,  upon  threescore  dayes  wairiiing,  by  a 
pursevaut  and  trumpet,  with   their  majesties 

minions  :  Do  hereby,  with  ad\  ice  and  consent 
of  his  csUitrs  of  pjuliamcnt,  statute  and  ordain. 
That  none  of  the  subjcTls  within  this  kingilom, 
without  cxprtss  ha\o  from  their  majesties,  or 
their  privy  council,  presume  to  go  to  the  king- 
dom of  France,  or  any  of  the  dominions  sub- 
ji'Ct  to  the  Fn-nrli  king,  aHer  the  first  day  of 
'Jm»*  next  to  couio  ;  or  being  alrojidy  in  tho 
said  kingd«)ui  of  France  or  cbuntriis  foresaid, 
|irtsuu»«r  to  stay  or  abide  therein  alU'rthc  first 
day  of  August  next,  without  express  leave 
from  their  majesiit.s  or  their  privy  council, 
under  the  pain'of  treason.  And  further,  it  is 
statute  and  ordaineil,  that  none  of  the  subject* 
of  this  kingdom  pi-esume  without  authority 
foresaid,  to  correspond,  keep  intelligence,  or 
haw  irommerceby  letters,  with  any  nerson  re- 
sidini;  within  the'said  kingdom,  or  dominions, 
after  the  date  hereof,  under  the  pain  of  b<'ing 
punLshetl  as  corresponders  whh  declared  trai- 
tors, and  that  this  act  continue  and  stand  in 
three  during  this  war,  and  no  longer :  As  also 
that  it  he  without  any  prejudice  of  any  former 
acts  made  against  treason  or  treasonable  cor- 
respondences, or  the  nunishment  of  such  as 
have  already  incurred  tlie  pains  thereof." 
4Z 


Tboinas  Hav,  soroetyme  clerk  to  Ihe  pri?y 
couiictil  of  i^Miland  ;  Mr.  Charles  Kiiinaird, 
brother  to  the  lonl  Kianaird ;  David  Lindsay, 
secretary  to  tlie  eurle  of  Melifort ;  coUoDell 
Thomas    Buclian^   sointyrne  desigm-d    lieut. 

ffenerall  Bucliaii  ;    ivllonell Cuonon,  »ir 

Charles  Caimey,  oclierwayes  desi^j^iied  major 
genenill  Cainiey  ;  captain  Audrew  Rutherford, 
cumtyme  ca^ttain  in  Dumbartounes  re|^iiuent ; 

cnptaiu    Pairiek   Auchmouiie,    captain   

Deans,  captain  31* Adams  captain 

Authven,  leivtenuiit  ;  fsaack  Threrald,  leiv- 
tenant  George  ISkeeiii ;  leiv  tenant  John  Fur- 
roster,   leivienaiit Auclimoutie,  ensi^iie 

Alexander  f niie.> ;  leivtcnunta  Daniel  and  Jotio 
Btihnes,  eusii;ne  William  Sioran  ;  ensign  Ro- 
bert Maxwell,  Icivtenant  George  Demjiseed, 
ensign  William  Ramsfty,  somtyme  in  Ilml^es 
regiment;  ensign  Alexander  l^uidilands, 
soinetyme  in  Wauchop's  regiment;  ensigne 
Laurence  Drummond,  of  —  ;  ensign  Wil> 
liain  Mcinzies,  brother  to leiFten.mt  Pa- 
trick Auchmouty ,  somtyme  in  the  Scots  guards; 
captain  Hubert  Somervill,  captain  William 
l)avidson,  teivtennant  William  Maine,  leivten- 
naut  8amueli  W  by urahame,leivtennant  James 
Henry snne,  leiTtenaut  Samuell  Maxwell,  leiv- 
tennaiit  William  Maxwell,  ensigne  Robert  Su- 
therland, ciisigiic  Alexander  Sinclair,  ensigne 
Charles  ratoiiu,  ensigne  John  Riddell,  leivten- 
naut  John  Bell,  somtyme  in  D'Offerrall's  regi- 
ment ;  ensigne  William  Jnnes,  in  Dt)fferrdl't 
regiment ;  ensigne  William  Lyon,  in  D'Offer- 
rclPs  regiment;  leivteniient  Joseph  Brodie, 
William  and  Hugh  Sntherlands,  nepheus  to 
nipjor  gencrall  Sutberlaud  ;  Walter  Nishet, 
soue  to  Alexander  Nivbot,  of  Craigintinuie ; 
W  iiliam  Sm(  lair,  sone  to  dcceist Sin- 


there,  calletl  Black  A 
vine,  of  Slapletoune ;  < 
being  (»f  tymes  called 
our  saids  lords,  the  sa 
hour  of  causey  there 
law  for  the  ciymes  of 
ty  comitted  be  them,  i 
l>ein^  ingadged  in  a 
agaiitst  ibe  h'rMicb  i 
of  thereligioucaud  liU 
liaill  tbi-Damed  |>ersone 
and  borne  sul  jects  ot 
their  uaturall  duty  an 
moneihs  of  June,  Juh 
moaeths  of  the  yea! 
eighty  nyne,  upon  tli 
ane  or  other  of  Ibe  daj 
saids  moneths,  and  i 
tbird,  or  ane  or  < 
the  moncUis  oi'  Jan%« 
or  ane  i>r  other  of 
year  1690,  1691,  161 
February,  Marcb,  « 
treasoneably  and  undi 
in  armes  and  open  reb 
kin^  and  bis  forces  an 
jestie  and  his  govers 
oountrey,  did  intyse  ll 
forces  to  invade  tbei 
and  to  quarrel  I  and  im 
and  autboritie,  and  rig 
did  fight,  resist,  and 
forces  warring  agaim 
Flanders  and  elsewhei 
(ikonekirk,  alt  and  nt 
Ace.  did  aid,  abait,  ass 
Willi,  give  help,  re<ld, 
iestipfi  rnf»mtf^><    nnd  1 


445]         Proeetdii^i  agfoM  iU  Emi  ^Sif/brth.        A.  D.  1097.  [1446 

•MBt,  asd  in  the  Mt  of  ai^rnal  past  therupea, 
ami  the  haill  persoaei  abore  named  and  mea- 


»  haf«  fboBd  tnficitnt  eniioii  aa 
siad  IB  the  books  of  adjounudl  far  their  ap- 
Mvaooe  belbra  the  saids  lorda  this  day  and 
laee,  in  the  hoar  of  caose,  to  have  underlyen 
m  bw  Ibrthe  crymes  abore  nentioned,  laofhll 
rme  of  day  bidden,  and  they  nor  none  of  them 
iterand  nor  appearand,  the  kwda  joiliee  elerk 
id  commijnioners  of  jostieiary,  therfbre,  be 
le  mootb  of  James  Guthrie,  roaeer  of  court, 
poerncd  and  adjudged  the  haill  ibrenamed 
eraooes,  and  ilk  ane  of  them,  to  be  denunoed 
ir  aorera^ne  kird's  and  lady's  rebells,  and 
■ilaincd  them  to  be  patt  to  the  borne,  and 
1  their  mfureable  goods  and  gear  to  be 
icheat  and  inbrought  to  their  majesties  nee,  as 
itiawes  and  fugitires  frae  their  majesties 
iwes  for  the  crymes  abo?e  ^lecified,  which 
«■  pronnnced  lor  doome. 

April  30,  1695. 

The  said  day  anent  ane  petione  gi?en  in  to 
le  aaids  lords  be  sir  James  Stewart,  his  roa- 
aties  adfocat,  makeand  mention,  that  where 
t  ane  justice  court  liolden  be  the  saids  lords, 
pon  the  4dd  day  of  July  last  bvpant ;  John 
trie  of  Mdfbort,  John  earle  of  Middletonne, 
JtchanI  earle  of  Lauderdale,  sir  Wm.  Wal- 
ee,  of  Craigie,  sir  Adam  Blair,*  of  Carberrie, 
id  90  others,  were  decfaired  oullawes'mnd  fu- 
itires,  for  not  compelring  before  the  saids 
rda  of  justiciary,  for  their  goeing  to  and  re- 
laing  within  the  kingdome  of  France,  after 
le  1st  day  of  June,  1693,  contrair  to  the  eigiit 
:t,  iburlii  sessione  of  his  majestie's  current 
iriiament,  and  for  sereral  other  treasonable 
ynea  committed  be  them  in  manner  men- 
in  the  lybell,  raised  against  them  ther- 

•  See  his  Case,  toI.  13,  p.  1807. 


persoaeai 

tioned  in  the  said  act,  being  by  his  roajestie'a 
appoyntment  cited  or  to  be  cited  befor  the  es- 
tatea  of  parliament,  most  of  them  (and  all  that 
are  cited)  to  underlye  tlie  law  for  the  treason- 
able crymes  committed  be  them,  and  the  rest 
•9  witnesses;  and  his  roajestie  being  willing 
that  the  |iersones  indyted  should  funtill  they  ha 
fonnd  guiltj)  hare  free  liberty  and  allowance  ef 
defending  themselves,  and  that  neither  4hey 
should  be  precluded  from  proponeing  tber  de- 
fences, nor  the  witnesses  to  l>e  citf  d  against 
them  rendered  incapable,  through  iheir  bein§^ 
rebells,  fugitiTes,  or  at  the  home ;  and  that 
therfor  all  the  aaids  peniones  as  weell  pairties 
as  witnesses  may  be  relaxed,  ad  hunc  effectnm 
allennarlie,  that  they  may  have  personam  ttandi 
in  judicio  before  the  parliament,  nut  prejudice  to 
his  majestic,  of  any  casuality  or  b^ihte  fallen 
to  him  throw  their  rebellione,  therfore  craving 
the  aaids  lords  woiild  be  pleased  to  grant  re- 
hxatione  to  the  haill  persooes  abore  mentioned, 
cited  or  sisted  as  pairties  or  witnesses,  ad  hunc 
effectum^  that  they  may  have  persona ti  standi  in 
judicio^  but  prejudice  to  his  mujestie  as  afursaid. 
The  lords  comroissiniicrs  of  justiciary,  hav- 
ing considered  the  petitione  above  written  ffiven 
in  be  his  majestie's  advocat,  they  allow  relaxa- 
tiooe  to  be  exped  for  John  earle  of  Melibrt,  and 
the  haill  remanent  persoues  above  mentioned 
ad  hunc  ejfectum  allennarly,  that  they  may 
have  personam  standi  in  judicio  befor  the  |>ar- 
liament,  and  that  the  persones  accused  may 
propone  ther  defences,  and  those  called  as  wit- 
nesses may  be  capable  to  appear  and  depone, 
but  prejudice  to  his  majestic,  of  any  casualitj 
fallen  to  him  throw  their  being  declared  fugt« 
tives,  or  at  the  home. 


12.  Proceedings  against  Kenneth  Earl  of  Seaforth,  for  High 
•    Treason:  9  William  III.  a.  d.  1697.    [Now  first  printed 
from  the  Records  of  Justiciary  in  Edinburgh.] 


OBU  JusncuRiA  S.  D.  N.  Regis,  tenta  in 
Pretario  Burgi  de  Edinburgh,  decimo 
quarto  die  roensis  Junij,  1697,  per  hoiio- 
rabiles  riros,  dominos  Colioum  Campbell 
de  Aberuchill,  Daridem  Huuie  de  Croce- 
rig,  Joanem  Lauder  4le  Fountainhall,  et 
Jacobum  Falconer  de  Phemlo,  Commis- 
aionahos  Justiciarii  diet.  S.  D.  N.  lUgis. 

Curia  legitime  afBrmata. 

I  HE  said  day  anent  the  criminall  adione  and 
lose  intended,  and  depending  befor  the  saids 
ffds,  at  the  instance  of  his  majesties  adrocat, 
(ainst  Kenneth  earle  of  8eatbrth,  makeand 
leotiotie,  that  where  by  all  lawa  dirine  and 
■mane,  and  by  the  laws  and  acts  of  parlia't  of 
lis  kingdome  and  oonstantpractiqetherof,  the 
jOMi  of  tr«eoM,  rebellioM  and  Icae  majes- 


ty are  most  strictly  and  sererely^  prohibit,  and 
particularly  by  the  act  of  parliament,  James 
IHrst,  pari,  ffirst  cap.  3,  It  is  statute  and  or- 
daine«l,  that  iioe  man  notoiirly  or  <»|ienly  rebel! 
ug't  the  kini^'s  |M*rsonc,  under  the  peine  of  lor- 
feiting  of  life,  lands,  and  goods,  and  by  the  act 
James  2d,  pari.  6tb,  cap.  13,  It  is 'ordained 
that  none  rebell  against  t!o  king's  (lersonc  or 
authority,  and  who  sf>c  makes  Fick  reTiel!ior.e,  to 
be  punished  aOcr  thu  quiiiity  and  '^unnlity  of 
sick  rebellione,  by  the  advice*^  of  t»io  three' es- 
tates ;  and  if  it  liappens  any  wiihin  tlio  realme 
o|ienly  or  nottonrly  to  rehell  against  the  king, 
or  to  make  weir  against  the  kiiig^s  Ifidges, 
ag't  his  forbidding,  in  that  case  they  arc  to  be 
punished  fil\er  the  quantity  of  the  trespass ; 
and  by  the  act  James  2,  par.  6th,  enp.  24,  It  is 
statute,  that  if  any  man  coniiiiitt  or  doe  treason* 
against  the  king's  pcrsone,  or  bis  majesty,  or 


14473 


9  WILLIAM!  1 11.      Pructedings  agnmsi  ihe  Earl  of  Stqf&rth. 


Tf^/ts  ill  fctr  of  uarr  igmiost  him,  or  rw^lte 
Any    Ihat   lies    eomittiiled    treHSorje^   or  that 
^«ii|»|ili«f  thcQi  in  hetp,    red   or   council!,     or 
tfifit  tiviik  the  houses  of  Ihem  that  are  cnn- 
•vicft  of  Ireosooe,  and   liolJs  ihem  against  the 
king,  or  thftl  Mulls  houses  of  iheir  own   iu 
furuienug  of  the  kings  reheUs,  ehaU  be  pu- 
aitUed  as  traytors ;  ao3  by  the  fifth  act  ^ irL 
first,  Cha.  Stl,  it  is  deelaired,  that  it  is  and 
•iiail  he  high  treasone  to  the  sobj^la  of  this 
<kiiigik>cne,  or  any  number  of  them  more  or  less 
-u|MNrany  g^roUQil  or  pretext  wbatsoroe?er,  to 
pryaeorcontinew  ra  arnies,  tofoantauiany  fiforts, 
itrea^ha  or  gamson«s,  to  make  peace  or  warr, 
or  to  make  any  trooties  or  leagues  with  for< 
raigne  princes  or  states,  or  amon|^  themselves, 
'  without  his  majesties  specioll  autliority  and  op- 
It  |irohntii>ne  fir^it  interponed  therto,  &nif  all  their 
'  niajtstit-s  subjects  ate  di^rharged  to  ofler  uiKin 
Any  pretext  whalsoevcr  to  iittero(it  the  doeJng 
of  any  uf  theae  tilings  hereat^er^  under  the 
paine  oi  treasone ;    und  by  the  12iid  act  of  the 
Sfcohd  6e&sioue  of  the  same  ptirUnmeni*  it  is 
statute  and  ordained^  That  if  any   persone  or 
tiersonee  shall  heirattev  plutt^  contryve  death 
and  d*?htniction  to  tlie  kings  majeslie,  or  to  dc- 
fryr^j  dejKwe,  or  suspend  him  from  the  style, 
fiouour  and  kingly  name  of  the  imperiaK  croune 
l»t)t  this  reahue,  or  any  other  of  his  dommiones, 
J'or  to  levy  wiirr  or  take  up  armes  against  his 
tl  luajestier  ur  any  eo'miuissionat  by  him,  or  shall 
I  inty*ie  any  straiigers  or  uliiers  to  invade  any  of 
J- his  majesties  dominiones,  tvery  such  persuae 
"•bi'ijig  leg.illy  convicted,  fchall  be  decerned,  d«- 

•  clnred  and  adjudged  u  tjuytor,  and  suffer  lor- 
,  fuuiture  of  ltd',  laniU  and  goods,  as  in  cases  of 
p  hivi;h  treasnne  ;  and  lastly  hy  Uie  '2nd  act  of  the 

•  iir&t  sesvione  of  this  current  parliament,  it  is 
declared  to  be  high  treasonc  iu  any  of  the  sub- 

I  jects  of  this  kiuj^donie  by  wiyteiog,  K^ieaking, 
( 4>r  any  other  lUdnner  of  way  to  disowae  quar- 

reit  or  impugne  their  majesties  roy all  power 
^•nd  authority,  or  right  and  title  to  the  crown  : 

Ni  X  trthelesst-,  tc  is  of  *enty  that  the  hM  Kcn- 
Inttlji  earle  of  8fafofth,shiikei|ig  off  all  fear  of 

(jo<t  und   regaird  to  their  ma'ljes  and  tliuir 

taweis,  l>eiug  buspecti'd  as  diaotfected  to  the 

Jate  bnppy  rtvolutionc,  and  therupon  put  under 
find  arrtibt  at  London,  in  the  year  \6%0,  uniill 
^Ktmerall  umjur  M'Kny  became  baill  for  him» 
'  Siil  upon  otie  or  other  of  the  dayes  or  moncths 
^of  the  A^id  year  breake  your  bail!,  and  nm 
-  away  and  repaired  to  the  late  king  James  then 

iu  Ireland,  wadgiog  \*arr  against  their  majt-s- 
\  lies,  und  continued  there  da  rein  g  that  rehel- 

lione  uuijll  that  in  the  end  of  the  year  16B9» 
» the  said  earle  landed  iu  the  I^wes,  and  from 
i  thence  carne  to  the  fiort  of  island  Donald,  be- 
I  longiiigf  to  himselfi  where  ho  continued  for  ae- 
►  verali  mopcths,  keeping  inLellinenc^  with  gc- 
I  aeiall  md«jor  Duchan,  w  ho  was  tlien  in  ^rmes  in 
^  ©tJen  rt^hi^llion  ar-i  their  mnjestics  in  ihis  king- 
M^nie,  fiomwiti>dipg  a  parly  of  about  ty%e  hun- 
kiii^d  horse,  with  whom  ho  purposed  to  hate 
lljoyaed,  at  le&.st  liave  assistcJ,  or  at  \e%ii  have 
|>  if  speared  in  at  mcs  with  him  in  the  /ou-said  re- 
Uo0e,  tfor  actv\uvVvAu\i^  wVwijsA  isnt  wwv 


i]t.d  I 


V 


as  the  mA  earle  |^tt  intellifMUflf  I 
genendl  majovB  lit  arch  ^  then  be  did  i 
or  cause  coovtical ,  >n  i 

ing  to  the  coovocat  >  ^  i 

men  in  the  countrtiy:»  of  K^ut^uil,  1 
Locbelsh,  and  other  places  pertMBfO|lif 
pending  on  hifu  and  lii&  other  «« 
or  depeuders,  within  the  shyre  of  Rm« 
where,  lykeas  the  s'ds  [lersonea  and  < ' 
alTectefi  to  the  govern meut,  did 
repaire  in  armes  to  the  said  «Liii  tt  1 
and  chiftain,  at  least  tbey  beiiK  Uttlj 
moi'e,  and  in  a  sort  of  a  camp  be  vul 
present  with  them  iu  artneP^oM 
sisting,  or  otherwayes  atM^iiof  ibcnj 
or  at  least  with  out  tlietr  m^estiei  Vf 
tbority  and  approbatione  first  tbKiatt 
and  particularly  upon  arte  or  othctdtl 
of  theraoneths  of  Mcirehf  Apr^lei  M^it^ 
July,  August,  HepUHnlier  or  l> 
year  1(590,  and  att  or  about  a  aliee  i 
trie  near  to  Bracid,  and  in  ntiier  pi 
the  laird  of  CotiUs  housie  in  tlie  < 
the  siaid  earle   wa*;   t) -^t.^ 
saids   rebellious  c 
displayed,  and  he  vv 

3ues5  of  Seaforth,  Jkc. 
amea  ffbrces,  Of  was   • 
thrcatoing  destructiou  to  all  iL^towWii 
majesties  goTertntienl,  at  lea;st  bewsaiai 
in  manner  fors  i><iut  their  tii«M 

lliori  ty  and  a  j  ;  x ,  and  w  hm  I 

of  Juajor  generml  .«!*  ivays  sudden  i 
clian  was  necesaitat  to  retire  with  his  bffvl 
the  highlands,  the  said  earle  not  hauBfl 
his  ineu  togttber  to  joyue  with  Bucbi 
continued  his  camp  with  tlie  forsaidi 
daylie  convocatingatiil  increaseiiig  ihef  > 
tier  during  some  da^*ca  that  gvnctaU 
M'Kay  continued  att  fnveroaa,  waitii^t 
the  coming  up  of  their  tuojeaties  focoii  i 
the  south,  wherhy  the  frenerall  ni»j^»rr" 
ing  the  said  carles  obstinat  rebeJhone,  I 
prebending  that  he  mi^ht  witbdraw  i  ' 
in  urmes  with  him  to  the  inftoctvil 
lands,  ami  joy ne  with  the  other  rvbellstbflvi 
armes,  he  upon  the  30th  day  of  Aogasl,  1  '' 
veaira,  or  ihtTaboi**,  gmve  c^imroti 
laird  of  ijalnagowau,  and  ruajnr  i 
ait  and  others,  to  attack  with 
poynted  to  them,  the  saids  earlff  < 
Assin-Lochglun  and  others,  nocl  to  < 
same  by  fire  and  sword,  wbicli 
in^  marched  to  those  pairts  ia  <  ' 
saids  commissiones,  the  tnbalittaals  \ 
countreys  being  then  tti  armefi  m\lh 
earle,  did  leave  anij    '  whif 

sioned  the  dissolriij ,  md  t 

that  were  witli  '   '  >eiidl 

his  friends  pal^ 
ly  to  those  cons  i... -...-.. 
hostility,  wherewith  the  hrtsf 

ned,  ftoil  being  thus  de-\. 
t  re  luetics,  an<]  I  \ywT4  I 

ssrftevrliijfuheii  jfiiW^auIl 

Derail  major,  by  all  wktcJi  ibesmid  earlcii 
^'Qkila.NiUl^ractioea  be  wis  gttiity  of  tltcc 


>J         Proceedings  agaimt  AleMinder  Pitcairne.         A.  D,  1697. 


[1450 


asone,  lese  majesty,  seditione  and  riseiDg 
nes  against  their  majesties  government, 
St  airt  and  pairt  tberot',  and  tlierby  he  hes 
red  the  paines  of  treasonc  and  rebellionc 
lie  fortaulture  of  life,  lan«ls,  and  estate,  and 
fc  and  should  bo  punislietl  t  her  with,  to 
fxample  and  terror  of  others  to  doe  the 
IB  tyme  cometng. 

bich  criaainall  actioae  and  cause  being 
nd  dircrso  tyroes  calletl,  was  continued 
duy  to  day  till  this  day,  and  the  samyne 
;-  tbid  day  called,  conipeired  sir  James 
art,  bis  majesties  advocat,  as  pursuer  on 
ne  pairt,  and  jon  the  other  pairt  compeired 
David  Forbes  advocat,  and  gave  in  ane 
f  councill  for  deserting  the  dyet,  wheruf 
;nor  folloues : 

Edinbun^h  the  18th  day  of  March  1697. 
loi-ds  of  his  majesties  privy  rouncill, 
ig  ro!isidere<l  his  majesties  letter  dii*ect  to 
of  date  the  first  day  of  March  instant,  an- 
oint; and  requvreing  them  to  sett  the 
of  Scafortli  att  liberty,  'who  as  lie  is  in- 
?d  hrs  rendered  himiieife  prisoner  to  the 
ioiiC  at  Inverness,  and  cast  liimselfe  U])on 
lujoslirs  mercy,  upon  sufficient  bale  to 
c::ccnMy  and  appear  when  c::lled  for,  and 
iprJs  tri  the  lord  advocat  not  to  insist  in 
rriminall  process  against  thi  said  earlc, 
g  his  majesties  p!easuri\  they  doc  hereby 
order  and  warrnnt  to  the  governoiir  of 
arrisoD  effort  William,  and  in  his  absence 


to  the  next  oommanduig  officer  tbere,  to  sett  the 
said  Kenneth  earle  of  Seafortb  at  liberty  furth 
therof,  in  respect  be  hes  given  l)ond  and  found 
sufficient  cautione  acted  in  the  books  of  his  ma- 
jesties privy  councill,  that  he  ^hall  live  peace- 
ably under  and  with  all  submissiono  to  the  pre- 
sent government  of  his  majestic  king  William, 
and  mat  h^  shall  not  act,  consult,  or  contry  ve 
any  thing  in  prejudice  thereof,  nor  shall  not 
converse,  nor  correspond  with  any  rebel  Is,  and 
that  he  shall  appear  before  the  saids  lords  of 
his  majesties  privie  councill,  whensoever  he 
shall  be  called  or  requyred  therto,  under  the 
penalty  of  two  thousand  pounds  sterling  in  case 
he  shall  transgress  in  any  pairt  of  the  pre- 
misses, and  recomends  to  sir  James  Stewart 
his  majesties  advocat,  to  desert  the  dyet  in  the 
process  of  treasone  presently  depending  at  his 
lordships'  instance  against  the  said  earle,  bi^forc 
the  lord  jnsticc  generall,  lord  justice  clerk,  and 
lonis  commissioners  of  his  majesties  justiciary, 
and  not  to  intent  nor  insist  in  any  new  process  of 
treasone  against  the  said  carle,  untiU  his  ma- 
jesties pleasure  be  funler  knowen  therein,  the 
said  earle  having  given  bond,  and  found  cau- 
tione in  manner  forsaid,  extracted  by  me. 
Sic  Subscribitury  Cib.  Zcluot. 

The  lonls  commissioners  of  justiciary,  con- 
formu  to  the  above  written  act,  and  by  consent 
of  his  majesties  advocat,  deserts  the  dyet  sim- 

t»liciter  againstthe  earle  of  Seafortli,*whereupon 
lis  procurators  asked  and  took  instruments. 


Proceedings  against  Mr.  Alexandeu  Pitcairne,  a  Minister 
of  the  Church  of  Scotland,  for  Higli  Treason,  and  disowning, 
quarrelling,  and  impugning  of  his  Majesty's  Royal  Power  and 
Authority,  and  Rights  and  Title  to  the  Crown:  9  William 
III.  A.  D.  1697.  [Now  first  printed  from  the  Records  of 
Justiciary  at  Edinburgh.] 


\  JusTiciAnii,  S.  D.  N.  Ueofis  tcntn  in 
I'retorio  Bnrgi  de  Edinburgh,  vigc&imo 
nono  die  mensis  Nnvembris  1697,  per 
lonombiles  %irosl>ominosColinirin  C-nmp- 
M'll  de  Al>cru<hiil,  Dnvidem  Hume  (k: 
Urocrrig,  Jor.iiiKiii  l<auder  de  Tnun- 
Ainliatl,  Arrhih.-ildum  ilupe  de  Kanketl- 
or«  et  Jacoiairii  F.ilcouardt:  I'hesdo,  Coin- 
iiiiksitinarios  Jiisticiarii  diet.  S.  D.  N. 
[l*.-gi$. 

Curia  legittiue  afiirmata. 
-Iniran* 
'.  AUrandrr  Pi(cairn,  minister  at  South - 
rlhhav,  now  prisoner  in  the  Tolbuith  of 
!Hirgn. 

{J  are  Indyted  and  accused,  at  the  in- 
t  of  lir  JauMi  titewarty  bii  majesties  ad- 


'  V  ocat  for  his  hidmes  interest,  and  by  speciall 
warrant  of  the  lords  of  his  majesties  privy 
I  c<inncill,  that  where  by  the  second  act  of  tiM 
j  first  session  of  this  current  parliament,  intitul- 
j  ed  Act  Ht-cngnosc'ing  his  Majesties  royall  au- 
'  thority  ;^  it  is  declared  to  be  high  treasone  in 

*    Act   recognising:   their  Mtijeityi   Royal 
Authority. 

"  The  Estates  of  Parliament  considering 
that  the  king  and  queen's  majesties  have  ac* 
ceptedof  the  crown  of  this  realm,  tendered  to 
them  by  the  meeting  of  the  Estates  in  their 
Claim  of  Rinrht,  dated  the  J  1th  day  of  April 
last,  »nd  according  thereto  have  sworn  the  oath 
appointe<l  by  law  to  be  taken  by  all  kings  and 
queensof  this  realm,  before  they  exerre  their 
regal  power :  therctbre  the  iutates  of  l*arlia- 


145 1]  9  WILLI  AM  lU.      Froecedii^  ^ 

•nj  aflhe  cubfects  of  iHk  klii|fd«inie  by  wrjte* 
jtj|f,  *fieakiog*  or  any  otb^jr  fuaiiQ«i't  w«y,  tn 

diltowruc,  «jtmiT('ll|  or  Unpuf^e  bis  oiiiyesties 
trtjiill  (ii>Wi;i:;,  or  outhority,  or  iig^ht  anil  tille  lo 
U]ecrc»^vi>€  :  N'ev€rtbek*i?tc,  it  i»  of  vertie  lb  at 
ytiw  sbakeiog  otT  sil  f^M  of  God^  and  rcgmrd 

nieot  fur  tbenasclroi,  and  la  n&me  and  bebalf 

of  the  wboU?  subject*  of  tbis  kbgdoixi  repre- 
iMfUled  by  tb^EXK  do  hereby  ass^i^^  re«o^i^, 
wad  ack  no  t%  lodge  their  maie^tjtf^  i^oyd  power 
ftnd  »utt)oriiy  over  tbe  «iiid  kio^^kini,  aud  Ibcir 
utuloubted  rigbi  and  title  to  the  imperiai  ciruwn 
tlicrcof:  like  as  tbeir  m^e^tiea^  wiih  advite 
ajid  coo^eot  of  tbe  iftid  Estates  of  Parliameol, 
do  ileclare,  that  it  is  bi^b  treiUMiti  in  aoy  of  the 
aobJectH  ut  ibts kit»j|[doiiif  by  wniiog,  spe^kiPir, 
or  tiny  othET  tnaoner  fd  wu)^'  to  disowD,  quarrel, 
or  tukpugo  their  maje^tu's  myal  power  4itid  au- 
Iboriiy^  or  ngbt  liJid  title  la  ihe  ifown.  And 
ftirlbert  Iheir  majei^iie^,  with  adrice  and  eoo- 
■<»il  fore^td,  do  stittuti*  and  oriJain,  That  iht* 
O^th  of  Abe^iaoco  hf^r^Tunto  iiubjuitt*'*!,  shall 
Im  Bwom  aod  aubicrdied  by  all  tliemeuiber« 
axid  ckrksof  parliaaieiil*  ttiiit  by  ull  othc^r  p«r* 
coos  presentty  in  pobbc  trust,  civil  or  mibtiAry, 
or  ^vbo  ^baU  l>c  hereaAer  calM  to  nny  fjubiic 
try«l  within  ibe  kiiigdorn ;  and  do  hereby  re- 
imd  md  rcst^md  mil  precedJDg-  laws  and  acts  of 
ptrtiament,  in  so  far  as  t bey  impose  auy  olber 
c^albs  (if  AUegriaoce,  Supreniac;,  Declarations 
and  T^ts,  c^c^pting  the  oaib  de  FideliJ^ 

At  to  tbb statute,  Mr.  LAisg,  to!.  4,  p.  ttf^ 
observer; 

**  Tbe  oBths'to  goTemnierit  merely  proOsssed, 

aa  in  England,  to  oe  faitbfutt,  and  to  liear  Uue 
allele  J4  nee  to  ^VilUann  and  iVIary  ;  wit  bout  an 
ackuowlcduraent  of  ibvir  lavvfid  title,  or  rigbt 
to  the  CTUwn.  To  relicTC  the  scruples  of  the 
conmeotioLis,  a  distincLtoo  bt^tween  a  kiug  dt 
facta  and  a  king  ^£  jurt^  vias  thus  bnivittuely 
iutrodnteii ;  but  there  were  lew  Jaeobiles,  who 
hesitated,  by  the  gmsa^&t  e<)ui vocation,  In  ac* 
ccpt  the  oatbs  to  llie  frcivurnuient^  wbieh  they 
meant  to  overturii,  uird  to  swear  ulleKiance  lo 
^Villiani,  wboin  ihty  had  conspired  to  de- 
throne." 

By  chap.  G,  of  the  fomtb  session  of  tbe  first 
parliament  of  king  William  and  queEfO  Maryt 
(April  18,  1693)  iu titled,  *  Act  for  taking-  tbe 
*  Oiitb  of  Allegiance  and  Assurance.* 

**-  Forasmuch  as  the  itnpostiig  and  takm^  tbe 
Oatliof  Alli^Hitiuce,  and  Lbe  As^oroni^e,  enacte^l 
in  this  curret^t  parbanient,  bsi  hereto  snhjuint-d, 
will  be  a  further  security  to  tbe  Protestant  re- 
lt|^]on  and  tbeir  majt^ties  g-overnment,  in  thin 
present  existence:  therefore  tb«  kiog  and 
queen's  u^jijesttes,  with  adviee  anil  content  of 
the  Ejitates  qf  ParUaiucnt,  E^tatute  and  ordain, 
tbat  tbe  iald  ostb  of  allc^aiice  be  Kwom,  and 
the  same  with  tbe  fbreieaid  assurHOce  be  sub- 
scribed by  all  nobl#rnen  anrl  their  eldest  soot 
being  pa.^t  tvi«^nty-O0e  years  of  af^e^  and  by 
all  persons  in  ofiices  and  pbeas  ot'  public  tniBti 
«ivU,  ecdviiaiticid  and  mditary."    Aad  tb«  wH 

1 


to  thf 

ivtl>«r  I 

8outl)i 
boond 

That! 

eonlaii 

aweari 
nerah 
that  * 
ad)  «* 
rank» 
oaib, 
suranc 
bor^*4 
gorlof 
titym| 
and  j&r 
tbeir  0 
the  ow 

of  %¥^ 
tbriiiei 
their  I 
ritfcs  a 
to  taki 
armini 
horaes 
judge 
the  cc 
beritOT 
tbinki 
put  Ih 
iQ  case 
by  lini 
ment,  a 
be  lier 
suj>plv 
ai)  tJOl 
others 
cbeata 
lies  cQ 
iecoud 
The 

*  cereh 

*  fid,  u 
'  tjes  k 
enaetec 
*jesty' 
ham  at 

The 
'  Act  I 
'  nicnt, 
if^s.  ^, 
before 
sooie  1 
mukry 

"  It 

assert^ 
tDajesti 
the  onl 
realm, 
and  qui 
and  e£i 
I  do  sic 

and  goi 


I  Jvr  ISgh  Treatmu 

I  traytM',  who  had  piit  awkj  the  righte* 
fig^  or  words  to  thio  efioct  or  porpooe ; 
being  m  manifeft  disownipg,  quarrelUng, 
ipugpeiog  of  his  maiestief  royoll  flower 
itbority ,  aod  rifffat  aod  title  to  the  crowne, 
-e  tbertbre  gnilty,  airt  and  pairt  of  high 
ae,  which  being  ibuod  by  the  knowledge 
inquest,  yoa  ought  to  he  jmnished  by 
life,  lands,  and  goods  to  the  example  and 
of  others  to  eommitt  the  lyke  in  tyme 

Sic  Sulncrihitur^        Ja.  Stbwabt. 

rn^r.— Hb  Majestie's  ad? ocat ;  sir  Pa- 
tf loae,  soilicitor. 

€uraton  in  defence.'— Bit  David  Tlunrei. 

'.  Lords  continues  thedyet  till  Wednesday 

od  gofemment,  against  the  late  king 
I  andnis  adherents,  and  all  other  enemies, 
nther  by  open  or  secret  attempts,  shall 
>  or  disquiet  their 
1  and  exercise  thereit 

Laing  (Hist  toI.  4,  p.  839)  speaking  of 
*esty  says :  **  By  a  new  assurance  to 


majesties  in  the  pos- 


A.D.iaW.  [1454 

next,  and  grants  ca[»tione  lor  apprdieadiBg  ihm 
absent  witnoMes  against  that  dyet. 

December  1, 1697. 
Intran^ 
Mr.  Alexander  Pitcaime  mmister  at  South 
Ronald  Shay,  indyted  and  accused  for  treason- 
able speeches. 

Ptirftt^.— Sir  James  Stewartj  his  majestiis 
advocat. 

ProcuraiOFt  in  defence,~^T  Daimd  Thoin, 

The  lords  commissioners  of  justiciary  witk 
consent  of  his  majesties  ad?ocat  deserts  the 
dyet  siropKciter,  and  ordainea  the  panuall  to  be 
sett  at  liberty. 

Sic  Subicribitur,   J.  Falconak.  I.  P.  D.  C. 


government,  the  distinction  between  a  king 
dejure  and  a  king  de  facto  was  abjured.** 

I  helie?e  that  this  is  not  strictly  correct.  I 
do  not  find  that  the  swearing  to  the  assuranoe 
was  required  by  either  the  38th  act  of  the  Snd 
sees,  or  the  sixth  act  of  the  fourth  sess.  of  king 
William  and  queen  Mary's  first  parliament 


END  OF  tOL.  XIII. 


Printed  by  T.  C.  HaoMnl,  PeierbiMOUf  a-Conrt, 
Flort.Street,  UMickm. 


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